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Technically, the within-grade increase determination is based on the
most recent rating of record as long as it was issued within the last
year. However, the regulations provide that a
supervisor, in making an "acceptable level of competence"
determination, may issue a new rating if the most recent rating does not
reflect the employee's current performance.
Consider the case where an employee's within-grade increase is due
in 3 weeks, the last rating was Fully Successful, and the employee was
given an opportunity to improve that began last month. You would need
to
decide whether the employee's current performance has come back up to
Fully Successful, and if so, you would approve the within-grade
increase. However, it is more likely that the current performance is
still
below the acceptable level, in which case a new rating needs to be
issued to support the denial of the within-grade increase.
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This answer depends largely on whether you proceed under Part 432 or
Part 752. Under Part 432, you have the option of demotion or removal
and you do not have to defend your reasoning for choosing either action.
As was noted in Figure C, mitigation to a lesser action by a third
party is not possible. So, if you meet the requirements of proving that
the employee was unacceptable, even after being
given an opportunity to improve, no third party can challenge your
reasons for removing instead of demoting the employee. Therefore, your
decision is based on your analysis of whether the employee can function
acceptably in a lower graded position or not. Some agencies may have
policies that require supervisors to explore demotion options before
going to removal, but that policy would be an internal policy, not
one that governs all Federal supervisors.
However, reduction in the agency-selected penalty, known as
mitigation, is a possibility in any action taken under Part 752.
Therefore, you will need to explain in any decision notice, and possibly
in a proposal notice as well, what factors led you to believe that your
chosen action (suspension, demotion, or removal) was the right one.
Most supervisors who have taken any kind of adverse action against an
employee
have been told about the Douglas factors. This is a reference to a
decision by the Merit Systems Protection Board that listed 12 factors
that might be taken into consideration when deciding on the appropriate
penalty in any adverse action. Your human resources office will be able
to provide you with a copy of these factors. At this point, it is
sufficient to understand that the factors force a deciding official to
examine any issues that might support a more severe penalty as well as
those circumstances that would convince the deciding official to lower
the penalty.
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Generally, annual leave and leave without pay are discretionary based
on the needs of the office and could be denied based on the importance
of focusing on improving performance in the time allotted. However,
sick leave, supported by acceptable documentation, must be approved as
long as the employee follows agency procedures for requesting the leave.
As noted earlier, you should be aware of certain programs under the
Family and Medical Leave Act of 1993 and the Family Friendly Leave Act
of 1994 that may require you to approve leave.
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Although we focus a great deal in this booklet on supervisory
responsibilities for informing and assisting an employee, the employee
has the primary responsibility for improving his or her performance. An
employee who gives the boss "the silent treatment" and refuses to
accept any assistance runs the risk of failing to improve performance
during the opportunity period and suffering the consequences. You may
want to consider contacting your human resources office and asking if
the agency uses trained mediators or facilitators to break through some
communication problems. Regardless, an employee needs to be told what
the expectations are for his or her performance and the consequences if
these expectations are not met. Be sure to document your efforts to
communicate these expectations and consequences.
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There is no legal obligation to provide counseling to an employee
before beginning an opportunity period because of the employee's
unacceptable performance. However, it is always good management
practice to talk to an employee when his or her performance begins to
slip below the acceptable level. Hopefully, early counseling efforts
would
be successful and there would be no need for a formal opportunity
period.
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As a general rule, you should give your employee a copy of the notes
from a discussion or meeting that pertain to your expectations and
responsibilities as well as the employee's responsibilities. It is
expected that you may take "supervisory" notes to serve as "memory
joggers" regarding the employee's performance. For example, these notes
can include dates or the number of times an employee was given an
instruction. This type of "supervisory" information does not have to be
included in the notes given to the employee. Contact your agency's
legal counsel or human resources staff for information on Privacy Act
requirements concerning supervisory notes.
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The question of who is "disabled" under the law is one that is still
confusing to experts. In most cases, you will want to turn over any
documentation you receive from the employee to the human resources
office so that they can obtain a physician's review of the employee's
medical documentation. Once you get a decision from the medical
experts that the employee's condition significantly impacts his or her
ability to perform, you will need to carefully consider what the
employee is requesting in the way of accommodation and assess whether or
not you can provide the accommodation.
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As stated earlier, if you take a performance-based action under Part
432, you must provide an employee with a formal opportunity to improve.
On the other hand, Part 752 does not require a supervisor to provide an
employee with such an opportunity. One reason for not providing an
opportunity period may be that your employee has several years of
experience in the job and additional training would prove useless.
Another
reason may be that your employee has already received extensive
informal training and additional training or assistance would seem
unreasonable.
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Yes. More than that, as the employee's supervisor and "rating
official," it should be your goal to keep an employee informed about
your assessment of his or her performance, particularly when that
assessment is negative. Within your agency, there may be a policy or
practice you must follow when you notify an employee that his or her
performance has become unacceptable. You should contact your human
resources office for further information.
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We have provided a sample of an action proposed under Part 432 in the
appendix to this booklet, but the real answer to this question lies in
your agency. Each agency has a "culture" that defines the amount of
information and documentation that will go into a proposal notice. At a
minimum, your notice will state which regulation the
action is being taken under, specify what critical performance
element(s) the employee failed to meet, cite the evidence of
unacceptable performance, and discuss the opportunity period (or the
lack of one). The notice will also explain to the employee the time
allowed for a written and/or oral response. Ask your human resources
specialist for some samples of other performance-based notices to get a
sense of what your agency requires.
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No. The law and regulations specifically exclude probationary/trial employees from the procedures that require the use of an opportunity to improve. This exclusion is because the entire probationary period is similar to an opportunity period. These employees should receive closer supervision, instruction, and training as needed during the first year of their employment.
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The regulations require that an employee receive a decision in Part
432 actions within 30 days of the expiration of the 30-day notice
period. This provision automatically gives you a 60-day period of time
in which to work. Additionally, the Office of Personnel Management has
issued regulations that give agencies the discretion to extend the
initial 30-day notice period by another 30 days, so you are
actually working within a 90-day timeframe. However, there are always
those situations where even more time will be needed, perhaps because
the employee has asked for a lengthy extension to prepare a response or
the deciding official cannot gather and analyze all the information
needed within the 90 days allowed. 5 CFR Part 432 lists six reasons
that commonly cause delay and allows agencies to extend the notice
period if
those conditions exist. If your situation does not fall into any of
the six categories, the regulations provide that OPM can approve an
extension of the notice period based on a brief written request by the
agency.
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One of the most important things to remember in taking notes is to
date them so they reflect when you met with an employee or when you
noted a particularly good or bad instance of performance. Keep track of
specific examples of poor performance on work assignments. Doing so
will make it easier for you to explain what's wrong with the employee's
performance through the use of examples. Note how you expressed your
performance expectations and how the employee responded to the
counseling. Once an opportunity period (see
Step Two for
an explanation of an opportunity period) has begun, you will need to
make notes of all routine meetings with the employee. In addition, you
may need to keep a record of when assignments were given to the employee
and what instructions were provided.
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Because the meeting is not disciplinary or investigatory in nature,
you are not obligated to allow union representation. The purpose of the
meeting is to explain your expectations of the employee and describe
any specific efforts you will be making to assist the employee in
improving his or her performance. Although any employee who is
being told that his or her work is unacceptable will view this as a
negative process, it is a meeting to discuss methods of assisting an
employee and is not disciplinary or punitive in nature.
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Your first step always should be to convey a clear message to the
employee about what your performance expectations are. Performance
standards that do not relate to the job need to be rewritten so there
will be no confusion between your oral instructions or written guidance
and the performance standards themselves. If the new standards that you
have written are substantially different from the old ones, you will
need to give the employee a chance to work under the new standards
before you determine whether or not the employee's performance is
unacceptable. As discussed later in Step Three, you do not always need
to rely on formal performance standards, depending on the legal
authority under which you take action. But you run a serious risk of
either having your action overturned or mitigated upon appeal if the
employee can demonstrate that his or her performance expectations were
not clear.
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No, you should not wait. In fact, good managers provide their
employees with performance feedback throughout the appraisal cycle. The
Office of Personnel Management reinforces this in its regulations where
it states that employees need to be notified of
unacceptable performance, "At any time during the performance
appraisal cycle that an employee's performance is determined to be
unacceptable . . . ." Notice also that the Governmentwide regulations
only call for a determination, not a formal rating of record. Check
with your agency on your internal policy regarding whether or not a full
performance rating needs to be prepared before you inform an employee
of unacceptable performance. Remember, regardless of whatever agency
requirements apply, no employee likes to feel "sandbagged" at appraisal
time, so confront the poor performance as soon as you become aware of
it.
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Once you approve leave, you cannot hold the employee accountable for
work that does not get done during the absence. In terms of short
absences, you may not have to adjust the deadlines or requirements at
all. However, if the employee is out for an extended time during the
opportunity period, you may need to extend the opportunity period for
the time of the absence to ensure that the employee has a chance to
perform acceptably. Depending upon the nature of the work, an
opportunity period shortened by approved absence may be valid if the
work assignments and expectations were such that the employee still had
the chance to demonstrate improved performance.
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There is no requirement for formal classroom training. One option is
to see how much of the training can be accomplished with the experts on
your own staff. On-the-job training is probably the most common form
of training provided during an opportunity period. Also, contact your
agency training officer and find out what is available through
self-instructional manuals, videos, or agency-funded training programs.
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Give supervisory feedback, provide remedial training, change work assignments, and assign a mentor.
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