Checklist for Proposals Under 5 Code of Federal Regulations (CFR) Part 432
Questions
- Does the nature of the employee's appointment and the nature of the action
require the use of 5 CFR Part 432 procedures?
(Note: If incidents of misconduct must be addressed, the action should be proposed under the provisions of 5 CFR Part 752.) - Does the notice give the employee 30 calendar days' advance notice of the proposed action?
- Does the proposal clearly identify the specific instances of unacceptable performance on which the proposed action is based and the critical element(s) of the employee's position involved in each instance?
- Did the instances of unacceptable performance cited in the proposal occur
within a one year period ending on the date of the proposal notice, and has
the employee previously been provided a reasonable opportunity in which to
demonstrate acceptable performance related to those instances?
(Note: If the employee's performance during the opportunity period is acceptable, a performance-based action may not be taken based solely on instances of unacceptable performance that occurred before the opportunity period.) - Were any numerical standards properly prorated during the period covered by the Performance Improvement Plan (PIP), and is there also clear evidence that the employee failed to meet the annual numerical standard in the year preceding the proposal notice?
- If unacceptable performance has been determined based on work samples, have the samples been systematically and objectively selected, and are they clearly representative of the employee's work as a whole?
- Was the employee afforded the assistance provided for in the PIP?
- Does the case file contain appropriate documentation; for example, work
samples, supervisory notes; documentation of assistance provided to the employee;
memoranda of counseling, etc., which clearly support the cited instances of
unacceptable performance?
(Note: If documentation cannot be made available to the employee and/or his or her representative, it should not be relied upon in proposing the action). - Has the employee been afforded an opportunity to make an oral and/or written reply to a named deciding official and advised of the time limits for doing so (usually 15 calendar days)?
- Does the proposal describe the employee's rights to representation; to
review the material relied upon to propose the action; and to a reasonable
amount of official time to prepare and present a response?
(Note: The management official responsible for approving any request for official time should be specified, and the employee should be advised where the supporting documentation may be reviewed.) - Does the proposal inform the employee of what his or her duty status is during the advance notice period?
- If the notice period is to be extended beyond 60 days, is it for one of the reasons specified in 5 CFR 432.105(a)(4)(i)(B) or will prior approval be requested from OPM?
- Was the proposal notice properly delivered to the employee?
(Note: The employee should sign acknowledging receipt, or if the employee refuses to do so, a witness should sign attesting to the employee's receipt of the proposal. If the proposal is mailed, it should be sent by both regular U.S. mail with a Certificate of Mailing and Certified Return Receipt Requested. Certification of receipt and a copy of the Certificate of Mailing must be retained for the case file).
Helpful Tips
- An employee's performance problems may result from many causes, many of which may be addressed by means other than formal action; for example, training, closer supervision, or counseling. The employee may also be experiencing medical or personal problems which are adversely affecting work performance. Consider whether a referral or contact with EAP, OMS, OEO, etc. should be made prior to the initiation of the proposal.
- An employee should be assessed for work performed while in an official duty status. An employee on approved leave (annual, sick, or leave without pay) cannot be penalized for work that is not completed while on approved leave. Excessive absence should be addressed under 5 CFR Part 752 procedures.
- Consider whether circumstances beyond the employee's control precluded accomplishment of the work.
- A performance based action must be based on unacceptable performance in the employee's position of record. Performance while on a detail may not serve as the basis for a proposal under 5 CFR Part 432.
- In the proposal, the employee should be offered the services of the Employee Assistance Program (EAP).
Medical/Reasonable Accommodation Issues
- If there are any medical issues that have been raised by the employee, the proposal should reflect that those issues were considered and that the employee was afforded an opportunity to provide medical documentation.
- If the employee requested reasonable accommodation prior to the initiation of the proposed action, was it afforded to the employee? If so, those efforts at accommodation should be cited in the proposal memorandum.
- If the accommodation(s) requested were not considered reasonable, have the barriers to affording the accommodation (for example, specific budgetary or operational concerns) been thoroughly considered and documented?
- Has reassignment or a voluntary change to lower grade been considered if the employee cannot be accommodated in his or her own position? Legitimate consideration for reassignment to a vacant position for which the employee is qualified is a requirement under current EEOC guidance and case law.
References
NIH Performance Management Guidance
OPM's Resource Center for Addressing and Resolving Poor Performance
