Legal Insider: Performance Improvement Plans for Federal Employees

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located a Plaza America that specializes in federal employee, security clearance, retirement, and private sector employee matters.

Federal employees are usually told that a Performance Improvement Plan (PIP) is only designed to benefit them and make them better performers. This, unfortunately, is usually not the case.

Managers often promise employees that they will be given special assistance to ensure they are successful during their PIP, only to later find themselves facing termination a few months later when they have not received any of the promised assistance during the PIP process. For this reason, it is crucial that federal employees on PIPs, or those who have just received a poor performance evaluation, be on guard.

Promised Opportunity to Improve

PIP procedures were enacted by Congress and require federal agencies to provide employees with an opportunity to improve prior to taking performance-based actions. The federal statutes, regulations, and case law dealing with the PIP process emphasize the importance of providing an employee with a meaningful opportunity to improve, as a PIP is meant to assist employees in achieving performance goals.

As part of the meaningful opportunity to improve, an employee generally must receive the assistance promised by the agency at the onset of the PIP period. Moreover, a supervisor’s negative actions toward an employee during or after the performance of his or her PIP period may constitute a violation of PIP procedures.

Reasonable Opportunity to Succeed

The agency is required to provide a federal employee a reasonable opportunity to demonstrate acceptable performance during a PIP. Often times, issues arise regarding the reasonableness of a PIP where the agency has set up an employee for potential failure by requiring that too many tasks be completed in order to successfully pass a PIP.

Possible Outcomes of the PIP Process

PIPs typically tend to be 90 days in duration (although 60- and 30-day periods also occur) and are usually very detailed and lengthy. At the end of a PIP, if the employee has been deemed to have an acceptable level of performance there is no need for any action except to continue providing feedback and encouragement to the employee.

If the employee is still performing unacceptably, however, the next step is for the proposing official or supervisor in charge of the PIP to determine the best solution. If the employee is proposed for removal, he or she can be removed in a very short period of time after the decision on the PIP. The federal employee can then usually appeal an unfavorable PIP to the Merit Systems Protection Board (MSPB) or the Equal Employment Opportunity Commission (EEOC).

Potential PIP Defenses

When facing a PIP there are some defenses for federal employees, such as the following:

1. The agency gave no meaningful assistance to the employee during the PIP period even though it said it would;
2. The agency claimed the employee did not perform well on an area of the PIP even though its issue or problem with the employee’s performance was not even listed in the PIP;
3. The agency designed a PIP that was impossible for any employee to pass; or
4. The agency prepared the PIP in a purposeful effort to fail the employee.

Federal employees should always be wary if they learn that a PIP is being considered regarding their work performance. In our experience, the use of a PIP almost always indicates the beginning of a removal process for a federal employee.

We represent employees in federal employee retirement and employment matters. If you need assistance with a federal retirement or an employment issue, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.