Addressing Poor Performers & the Law

Addressing Poor Performers & the Law
Addressing Poor Performers & the Law
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The purpose of this report is to describe the similarities and differences between 5 U.S.C. §§ 4303 and 7513, the two sections of the law that authorize an agency to take an adverse action against a Federal employee for poor performance. As history as shown, poor performers are a serious concern for the Federal workforce, and one that the Government has had difficulties addressing. The biggest obstacle to addressing poor performers in the Federal Government is not created by a statute, but rather is simply a question of how supervisors manage the performance of their employees. This report addresses the limited ability of the law to address the underlying challenges of a performance-based action and the importance of educating and encouraging supervisors to use better performance management practices.

Table of Contents

Executive Summary iii

Findings iii

Recommendations iv

For Congress iv

For Agencies iv

For Human Resources (HR) Staff v

For Supervisors .v


Purpose of the Study 1


Chapter 43 and Chapter 75 – Two Paths to the Same Goal 3

The History Behind Chapter 43 3

The Property Right 5

Performance-Based Action Procedures under Chapters 43 and 75 6

Burden of Proof 7

The Performance Improvement Plan (PIP) 7

The Douglas Factors and Penalty Mitigation 9

A Critical Element 10

The Process to Take a Performance-Based Action 11

Chapter 43 and Chapter 75 – A Choice 13

The Role of Occupational Category 15

The Role of Length of Service 18

The Role of Disciplinary History 19

Chapter 43 and Chapter 75 – Agency Perspectives 21

Leadership Perceptions of Chapter 43 in the Two Largest Departments 21

Agency Representatives’ Perceptions of Chapter 43 22

Supervisors’ Perceptions of Performance-Based Actions 24

The Willingness to Act 26

Barriers that Cannot be Prevented through Legislation 27

Conclusion 29

Findings 29

Recommendations 30

For Congress 30

For Agencies 30

For Human Resources (HR) Staff 30

For Supervisors 31

Appendix 33


Federal employees, their supervisors, agency management, union personnel, especially Human Capital officers and employees across the U.S. Federal Government may be interested in this report.  Additionally, members of Congress, and Federal managers within the Office of Management and Budget, and Office of Personnel Management that is responsible for policy making authority may find this guide helpful as a reference with human resources and civil service matters.  Additionally, students pursuing research for courses within these fields, especially public administration, human resources, employment law, organizational development, and industrial-organizational psychology may find this primary source document that deals with civil service issues helpful for assignments.

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