Attorney for Federal Performance-Based Action Cases

Defending Against Unfair Performance Ratings

1. How to Identify and Gather Evidence

• Inconsistent Feedback: Compare your formal review with prior informal feedback. Discrepancies may indicate bias.
• Benchmark Comparisons: Analyze how your ratings compare to colleagues in similar roles; unjust differences could signal unfair treatment.
• Documentation: Keep records of your accomplishments, emails, and positive feedback to counter performance claims.
• Unrealistic Expectations: Document any sudden changes in job expectations or lack of support.
• Bias: Identify potential retaliation or discriminatory behavior and gather any supporting evidence.
• Witness Statements: Colleagues familiar with your work can provide supporting testimonies.

2. What Constitutes an Unfair Evaluation?

• Discrimination: Ratings based on race, gender, or other protected factors.
• Lack of Specificity: Reviews that fail to provide clear examples of underperformance.
• Unachievable Standards: Ratings based on unreasonable or changing expectations.
• Lack of Support: Unfair if you weren’t given adequate training or resources to succeed.

What Happens If I Get a Poor Federal Performance Rating?

In recent years, a wide range of new policies were passed with the intent of making it easier to penalize poor performers in federal workplaces.

In October of 2020, The Office of Personnel Management issued new regulations establishing how managers should handle employees with poor performance ratings. The guidelines, which went into effect in November, enacted the following procedures:

• Employees with poor performance ratings will receive a notice from their supervisor concerning their performance, as well as metrics they should attempt to pass to improve their performance. However, compared to previous federal employee policies, employees now have shorter deadlines to improve their performance, and require fewer formal notices of their performance rating.
• Agencies now have no obligation to employees to help them improve poor performance;
• Employees who are accused of poor performance now have less time to respond to those allegations;
• Agencies are now responsible for reminding supervisors when workers who are under probation for poor performance are about to see their probation periods expire;
• Agencies are now restricted from removing or changing information in an employee's personnel record if an employee with a poor performance rating achieves some sort of settlement agreement with the agency before leaving their position;
• There are now mandatory procedures agencies can take to respond against supervisors who retaliate against whistleblowers.

Generally, employees who receive a poor performance rating will receive a formal notice from their supervisor informing them of how they failed to meet the expectations of their position, and what sort of achievements the employee must make to rectify those errors.

In certain situations, the employee may be placed under probation while they attempt to improve their performance.

Employees are usually given a certain timeframe for improving their performance. If they fail to successfully improve their performance even after multiple formal notices and chances to do so, they may be removed from their position.