By Bill Bransford
Q & A Session – Losing Retirement Because Placed on a PIP
April 7th, 2011 | Uncategorized
Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.
Q:
I have 18 years of federal service and was just placed on a PIP. Will this cause me to lose my CSRS retirement?
A:
Your annuity is not threatened by a PIP, even if you are fired because you fail the PIP. Also, if you are fired for performance, you have enough years of service to retire and appeal to the MSPB at the same time.
Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.
Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.
Tags: CSRS, PIP, retirement
Q & A Session – Hostile Work Environment and Leave
November 24th, 2010 | Uncategorized
Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.
Q:
After 23 years of government service, I was recently reassigned to a new job and new supervisor. I have not yet been placed on performance objectives, but my new supervisor has threatened to place me on a PIP after being unable to complete a task because I had an already schedule appointment. The next day my supervisor yelled at me in front of the office. I felt sick, submitted a leave slip and went home. I called in sick the next day, and I had already gotten leave approved for the remainder of the week. I have received a letter of counseling that said I would be docked pay and marked AWOL because I did not submit my leave properly. I have never had any problems with my performance and have a great deal of annual and sick leave I would like to use to take my mother to her medical appointments. What should I do?
A:
There is no justification for a supervisor to yell at a subordinate, especially in front of coworkers. That being said, if I had been threatened with a PIP and was given a deadline, I would cancel prior approved leave and doctor’s appointments to meet the deadline.
Also, if I had 23 years of government service with a spotless record and a new supervisor who clearly had me in his sights, I would make sure I followed leave rules, no matter how sick I felt.
Finally, if your mother has a serious health condition and needs your assistance (and this assumes you have documentation for both health conditions and the need for you to help our mother), you are entitled to time off under the Family Medical Leave Act. If you just want your time off to spend with your mother, your supervisor has every right to deny your leave request. You then have every right to file a grievance if you think your supervisor’s leave denial is unjustified and unreasonable.
Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.
Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship
Tags: hostile work environment, leave, PIP
Q&A Session – Personnel Action Based on PIP
November 2nd, 2010 | Uncategorized
Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.
Q:
Please provide me with the legal authority by which a personnel action can be authorized and issued for an employee who fails a PIP, is fired for poor performance and opts for a discontinued service or early retirement.
A:
The problem with an answer to your question is there is no specific legal authority. It used to be contained in the old federal personnel manual. The best I can do is a reference to 5 U.S.C. § 8336 (d)(1) and 5 U.S.C. § 8414 (b)(1) authorizes discontinued service retirement if an employee is separated involuntarily for reason other than misconduct or delinquency. OPM does not consider removal based on unacceptable performance or 5 U.S.C chapter 43 to be misconduct or delinquency.
Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.
Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.
Tags: personnel action, PIP, poor performance
Q&A Session – PIPs and Promotions
October 15th, 2010 | Uncategorized
Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.
Q:
- What is the difference between a PIP (Performance Improvement Plan) that is designed to help an employee succeed and a PIP that was merely put in place as a necessary step in the termination of an employee?
- If an employee was hired into a career ladder position and receives satisfactory annual performance evaluations but right before the 52 weeks are up, receives two quarterly performance appraisals with two “LTE’s” (Less that Expectation) in critical elements back to back and after the dates the evaluations were due, is management permitted to deny the promotion to the full performance grade of the career ladder position if the “LTE’s” do not contain sufficient information to warrant the “LTE’s”?
- If an employee is placed on a PIP and performs exceptionally well for the full 90 day period and is also notified by the Supervisor who placed the employee on the PIP that this employee passed with flying colors, is the Supervisor then permitted to issue a quarterly evaluation with the same two critical elements rated as LTE’s that the quarterly evaluation prior to the PIP contained and then subsequently use this as a basis to withhold the career ladder promotion?
- Is management permitted to ignore a grievance response deadline without asking for an extension to respond once it gets to the third level? What are the repercussions if management elects to not respond to a grievance submitted by the Bargaining Union on behalf of the employee?
A:
The following responses correspond to the questions in the order presented above.
1. The difference between a PIP designed to help the employee succeed versus a PIP used as a step toward termination in the scenario provided above is the proper versus improper use of a PIP. An improperly used PIP (if that fact can be proved) may form the basis for an employee to challenge an adverse action decision at the MSPB.
2. Career ladder promotions are discretionary. A manager makes a decision on whether to promote an employee based on the employee’s demonstrated ability to perform at the next higher level.
3. Yes. See previous response.
4. The answer to this question is determined by the terms of the collective bargaining agreement. In many labor contracts, the union or a grievant is permitted to move to the next level of the grievance procedure or to arbitration if a deadline is missed. Check your collective bargaining agreement.
Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.
Q&A Session – Promotional Denial
August 25th, 2010 | Uncategorized
Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.
Q:
Can a federal employee’s full performance level promotion be denied after the initial probationary period expired without any prior notification of unsatisfactory performance?
A:
Yes. Full performance level or career ladder promotions have a different standard than probationary periods. The standard for full performance is the ability to perform at the next higher level.
Generally speaking, an employee on a PIP has very limited recourse other than to try to adhere to the PIP’s requirements.
Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.
Q&A Session – Grieving a PIP
August 23rd, 2010 | Uncategorized
Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.
Q:
In a recent column I read that employees could not grieve being given a PIP. Could you please provide the legal reference for this?
A:
Many federal agency administrative grievance procedures (non-union) and negotiated collective bargaining agreements (CBA) exclude performance improvement plans (PIP) as grievable matters. This is because PIPs are considered to be a preliminary step in addressing perceived performance deficiencies and have no actual impact on employment, even though the employee usually feels that way. It is only when management decides to take adverse action on the outcome of the PIP (i.e., a demotion or removal) that a grievance can be filed, though there may be a better route, such as an appeal to the U.S. Merit Systems Protection Board (MSPB). PIPs can be challenged in other ways, such as with an EEO complaint if there is a belief that it is part of a pattern of unlawful EEO discrimination or reprisal. You should, however, check your specific agency’s procedure or CBA, whichever is applicable, to see how PIPs are treated where you work.
Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.
Tags: collective bargaining, grievance, PIP