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Developments at the GAO: Report on Performance-Based Adverse Actions

Developments at the GAO: On March 9, 2015, the Government Accountability Office (GAO) issued a new report, "FEDERAL WORKFORCE: Improved Supervision and Better Use of Probationary Periods Are Needed To Address Substandard Employee Performance", Report GAO-15-191. In the report, GAO discussed various issues concerning performance management for federal employees.

GAO first noted the importance of managers giving day-to-day performance feedback to employees as producing more desirable outcomes than removal options. The GAO report's survey of performance management experts and labor union officials indicated a general preference of allowing underperforming employees the opportunity to depart with clean records rather than removing them (including through clean record settlements)--taking a position contrary to that expressed by the Office of Personnel Management (OPM), as reported in a December 2013 Merit Systems Protection Board (MSPB) report. The GAO report's survey also emphasized the importance of agencies providing training to supervisors on how to manage employees, noting MSPB research finding the underuse of supervisory probationary periods to assess new supervisors' managerial competence.

GAO's report also statistically analyzed performance-based adverse actions for federal-sector employees. In 2013, 3,489 employees were removed for performance-based reason. Of these, 70% were terminated in their probationary period. Of the non-probationer removals, roughly 72% percent were processed as misconduct-based adverse actions under Chapter 75 of the Civil Service Reform Act (CSRA), while only roughly 27% were processed under the performance-based CSRA adverse action procedures. Of the Chapter 43 removals, 45% were appealed to the MSPB--of those, 54% were settled and 3% found in the appellant's favor. In addition, 652 employees were reassigned and 168 employees were demoted for performance-based reasons in 2013. In addition to these removals, GAO also identified at least 2,700 cases in 2013 of employees voluntarily leaving their positions after receiving low performance evaluations. GAO also noted that receiving an "unacceptable" performance rating does not guarantee removal, noting that 55% of the employees who received an "unacceptable" performance rating in 2009 were still working for the same agency in 2013.

If you are a federal employee facing performance-based adverse actions and wish to discuss your rights, consider contacting Passman & Kaplan to request an initial consultation.

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