Agencies get even more performance management, disciplinary guidance from OPM

Agencies have even more new performance management guidance from the Office of Personnel Management this week.

This time, OPM is reminding agency leaders and managers that when it comes to disciplining employees, their own discretion, as well as the facts and history associated with the employee and his or her individual situation and potential violation, hold more importance than a suggested list of punishments.

Specifically, OPM is cautioning agencies against two concepts that have become common in managing and disciplining employees for poor performance and misconduct: progressive discipline and tables of penalties.

“Agencies should be mindful that neither the use of progressive discipline nor the adoption of a table of penalties is required by statute, case law or OPM regulations,” OPM Director Dale Cabaniss wrote in an Oct. 10 memo. “Further, the use of the approaches presents challenges that agencies should consider prior to adoption.”

OPM’s latest guidance is particularly relevant, as agencies continue ongoing efforts to review and then update their performance management plans and implement all parts of the president’s May 2018 executive orders on employee removals, official time and collective bargaining.

The injunction on those three EOs lifted earlier this month after more than a year of legal battles with federal employee unions.

The president’s executive order on employee removals also clarifies agencies aren’t required to use progressive discipline, OPM said.

Punishments for poor employee performance or misconduct should be based on the specific details of an individual situation, not based on arbitrary lists of possible offenses and correlated penalties, OPM said.

Like other recent guidance on performance management and employee discipline, OPM is careful to dance around existing collective bargaining agreements.

Some current agreements may include specific time limits or other requirements for disciplining bargaining unit employees, OPM acknowledged. Agencies must continue to abide by these agreements as long as they haven’t expired, but these requirements must be consistent with federal statute.

“OPM strongly encourages agencies to review existing collective bargaining agreements to identify any provisions [that] conflict with these statutory rights and, whenever practical and appropriate,
take steps to eliminate any conflicting provisions,” the guidance reads. “Agencies should also avoid adopting any contract provisions in future collective bargaining that interfere with the exercise of management’s statutory rights.”

OPM’s seven-page guidance is complex and often reads like an in-depth legal analysis, citing several past court precedents and previous studies from the Merit Systems Protection Board.

Agency managers have often deployed the concept of progressive discipline, which essentially gives employees multiple chances to improve their performance or address misconduct. Some managers may use performance improvement plans, for example, to document employees’ performance deficiencies and set workers on a path to try to improve.

This isn’t necessary, OPM argued, and it restricts agency managers from using their own discretion to consider an employee’s work performance and past disciplinary history.

“The supervisor should also weigh any relevant aggravating and mitigating factors that may be
relevant, such as the nature and severity of the offense, the employee’s disciplinary record and
years of service, the employee’s potential for rehabilitation and applicable agency penalty
guidelines,” OPM said.

A table of penalties is a list of common employee offenses with a suggested penalty for each infraction.

According to OPM, agencies put effective management of their workforces at risk by relying too heavily on tables of penalties.

“A table of penalties does not and should not replace supervisory judgment nor should supervisors
rely on this tool instead of using their best judgment, given the totality of the circumstances,” the OPM guidance reads. “It is vital that supervisors use independent judgment, take appropriate steps in gathering facts and conduct a thorough analysis to decide the appropriate penalty. There is no substitute for management judgment.”

If agencies do continue to use tables of penalties, they should specify them as “mere guidance” and remind managers the described punishments aren’t meant to be an exhaustive or exclusive list of options, OPM said.

It’s unclear how exactly agencies will take to their performance management policy reviews.

The Department of Veterans Affairs has sparred with the American Federation of Government Employees in recent years over the concept of “progressive discipline” during initial implementation of the VA Accountability and Whistleblower Protection Act.

VA began limiting performance improvement plans for some employees after Congress passed the accountability act back in 2017. AFGE at the time argued the department’s new performance management guidance conflicted with the terms described in the collective bargaining agreement it had signed with VA back in 2011.

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