Employee Relations FAQ

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.