Proving Unacceptable Performance Before a Performance Improvement Plan (PIP)

Federal agencies may assign a Performance Improvement Plan (PIP) to an employee in the case of an unacceptable performance review. In March 2021, a panel for the United States Court of Appeals for the Federal Circuit changed the requirements for agencies when an employee challenges any performance-based termination. Federal agencies must now prove that the employee had an unacceptable performance review per acceptable and legal standards before the PIP. This decision places the burden of proof on the federal employer.

As an experienced federal employment law firm, The Law Firm of John P. Mahoney, Esq., Attorneys at Law, PLLC can help protect your federal career. Call today at (202) 350-3881!

What Does a Performance Improvement Plan Involve?

A Performance Improvement Plan must be carefully and comprehensively crafted to avoid any confusion and establish the responsibilities of both the agency and the employee. Its goal should be to ensure the employee has all the necessary information to improve their performance, and their employer should also provide resources for them to do so.

A PIP must feature the following components:

  • Well-documented reasons for the unacceptable performance review based on the employee’s professional duties
  • A detailed explanation of the PIP goals, timeline, standards of evaluation, and how to achieve them, including through training from management
  • Consequences of failing to achieve the PIP objectives

How to Prove Unacceptable Performance Before Initiating a PIP

When a federal agency seeks to prove unacceptable performance from an employee before calling for a PIP, they must do so with thorough and objective attention. Respecting standards and expectations of behavior and performance are crucial for all parties involved.

To justify such a negative performance review, the agency must have relevant and detailed records of the employee. These include detailed observation of mistakes over time, as well as clear reasons for the unacceptable performance rating.

Documentation of unacceptable performance before choosing to use a PIP should not feature:

  • Any sort of personal attack against the employee for not meeting job expectations
  • Any form of discriminatory behavior
  • Vague descriptions

Why Seek Professional Legal Advice if Put on a PIP

The end result of a PIP is generally disadvantageous to the employee who receives it. This can take the form of a reassignment, demotion, or employment termination. If you receive an unacceptable performance review, even before being put on a PIP, you should contact a qualified attorney. Seeking legal counsel can help preserve your career in the long term, as you want any damaging allegation to be addressed and rectified.

A federal employment lawyer can review both the unacceptable performance review and the Performance Improvement Plan. Lawyers can check for administrative errors and determine whether the PIP meets legal standards.

Factors in determining discrimination against the employee include:

  • Inconsistencies between the reasons noted in the employee’s negative evaluation and other actions of the employer
  • Different treatment from other employees with similar work records

If your lawyer believes you have been wronged by an employer who may be using a PIP to remove you from the agency, they will discuss the legal options available to you. This may include helping you file a compelling appeal with the Merit Systems Protection Board (MSPB).

If you need legal representation after receiving an unacceptable performance review or being placed on a PIP, call The Law Firm of John P. Mahoney, Esq., Attorneys at Law, PLLC today at (202) 350-3881!