U.S.Fish and Wildlife Service 224 FW 2, Appendix 2, The Impact on Standards on Actions 
FWM#:      031 (new)

Date:         July 14, 1992
Series:       Personnel
Part 223:    Performance Utilization
Originating Office: Division of Personnel Management

The Impact of Performance Elements and Standards on Taking Performance-Based Actions

1. Communication of Performance Elements and Standards. Performance elements and standards must be communicated to employees at the beginning of the appraisal period, must be in writing, and must be reviewed and approved by the next higher level official above the rating official. Though highly preferred when appropriate, the employee's substantive right to proper communication need not be tied directly to nor coincide with the officially designated appraisal period of the Service. Rather, an employee has a substantive right to communication at the beginning of the appraisal period which forms the basis of the action.

Although there is no requirement in law or regulation that an employee must sign a statement acknowledging receipt and understanding of performance elements and standards, the supervisor should be able to show on appeal of a performance-based action to the MSPB that the employee was made aware of and should have understood the performance standards and critical elements of the position at the beginning of the appraisal period which forms the basis of the performance-based action. In anticipation of a challenge on appeal, the supervisor should maintain evidence of the conveyance and receipt of performance elements and standards as well as counseling sessions or discussions with the employee regarding the requirements of the position, documents issued to clarify the elements and standards, or evidence of any other situations in which the supervisor answered questions or clarified the elements and standards. Alternatively, the supervisor may wish to rely on the obvious clarity of the elements and standards themselves if they have been properly communicated.

2. Clarification of Performance Elements and Standards. Although OPM encourages agencies to clarify performance requirements as early in the appraisal cycle as possible, a supervisor may clarify or further explain performance requirements to the employee prior to or during an employee's opportunity to demonstrate acceptable performance, unless the performance standard is the type of "backwards" standard found to be invalid (See Section 6 of Appendix). The supervisor may clarify the employee's performance requirements by means of counseling sessions or memoranda, revised performance standards, written instructions, on-the-job training, or other means which convey the nature and level of performance required of the employee.

3. Making Changes to Performance Elements and Standards. Nothing in law or OPM regulation precludes a supervisor from changing performance elements and standards. A supervisor may change an employee's elements and standards during the appraisal cycle so long as the change is properly communicated to the employee. In fact, supervisors are encouraged to change them when necessary to reflect current work requirements accurately. In revising elements and standards, the following approaches are suggested.

(a) When the Revision is Substantial. When the revision reflects a significant change in the performance expected and poses significant additional burdens on the employee, the revised element and standard shall become effective after they have been reviewed and approved by the next higher level official and communicated to the employee in writing. The employee should then be allowed to perform under the new elements and standards for a minimum of 90 days (the Service's minimum appraisal period) before the supervisor makes any further determination on the employee's performance.

(b) When the Revision is not Substantial. When the revision serves to clarify or provide greater specificity with respect to the employee's basic performance requirements, or when the revision does not cause a significant change in the employee's understanding of the performance expected, the supervisor may revise the elements and standards without higher level review and approval and without a delay in making performance determinations. Revisions of this nature can take place at any time during the performance appraisal cycle, including the time the supervisor notifies the employee of unacceptable or below fully successful performance and affords the employee an opportunity to improve.

4. Objectivity/Validity of Performance Standards. Supervisors are required to establish performance standards that will, to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria. The phrase "objective criteria" is often interpreted to mean that performance standards should be largely quantifiable or numerical. However, there is nothing in law or regulation to require supervisors to establish quantitative criteria. Standards are sometimes written that emphasize quantifiable criteria over equally important, but more difficult to measure, qualitative criteria. While standards must, to the maximum extent possible, permit accurate evaluation of job performance on the basis of objective criteria, they should not remove management judgment from the performance appraisal process.

Standards that strive to achieve maximum objectivity become overly mechanistic, thereby obscuring the more important aspects of job performance. Also, as discussed in Section 2 of this Appendix, standards may be supplemented and made more specific or clear during the appraisal period, as well as during an employee's opportunity to demonstrate acceptable performance. There is no requirement that quantitative criteria be included in performance standards. If quantitative criteria are included, they should be applied in an objective fashion. For positions which are not susceptible to a mechanical, judgment-free rating system (e.g., positions which involve a fairly broad range of duties that vary in complexity and significance), performance standards may allow for the subjective judgment of the employee's supervisor.

5. Absolute Performance Standards. There is nothing in law or OPM regulation that prohibits agencies from establishing absolute standards. Positions such as nurse, physician, air traffic controller, and others in which public safety, health, or national security is involved may warrant absolute standards. However, supervisors should be aware that the establishment of an absolute standard generally constitutes an abuse of discretion warranting reversal of a performance-based action under this chapter unless a single failure to meet the standard could result in death, injury, breach of security, or great monetary loss.

There is somewhat of an awkward situation for taking action under this chapter based on a valid absolute standard. That is, if action is proposed based on failure to meet such a standard, the supervisor must afford the employee an opportunity to demonstrate acceptable performance under that particular standard. If the employee performs acceptably when afforded the opportunity to improve, the supervisor cannot demote or remove the employee for the same errors which preceded and precipitated the opportunity to improve. Consequently, it is recommended that when basing an action on failure to meet a valid absolute standard, supervisors should carefully consider proposing action under 5 CFR Part 752 (adverse action procedures) without affording the employee an opportunity to improve. If an absolute standard is valid, a supervisor is entitled to take a Part 752 action based on that standard so as not to risk loss to life, property, or national security that could result from affording an opportunity to improve.

6. "Backwards" Performance Standards. If a performance standard level describes unacceptable performance rather than informing the employee of what is necessary to achieve acceptable performance, it is an invalid "backwards" standard. For example, a standard that allows an employee to "fail to meet deadlines" or "perform work inaccurately" does not inform the employee of what he or she must do to achieve acceptable performance, but rather describes unacceptable performance. Employees can actually meet such standards by doing little or no work or making numerous errors. A supervisor may not take action against an employee on the basis of such an invalid standard in that a "backwards" standard fails to meet statutory requirements because it neither provides an accurate objective measurement of an employee's level of achievement nor reasonably informs the employee of what is acceptable performance. Moreover, if an employee's performance standard is "backwards," it may not be relied upon to take a reduction in grade or removal action under this chapter even if it has been clarified or fleshed out. "Backwards" standards should be rewritten to describe performance which is good enough to get the job done, i.e., the standard should inform the employee of the performance that must be achieved in order to perform acceptably.

7. Subelements and Components of Performance Standards. Nothing in law or OPM regulation prohibits the use of multiple components of elements or standards. In fact, a performance element or standard containing several components may be an appropriate vehicle for capturing the various dimensions of a job, each of which may be important in accomplishing the work of the organization. Thus, if an employee's unacceptable or below fully successful performance on one or more components of a single element or standard provides sufficient justification to determine that the employee's performance is unacceptable or below fully successful on the element, the supervisor may initiate action. A supervisor must be able to demonstrate that deficient performance on one or more components of a single element or standard warranted an unsatisfactory rating on the element as a whole and that the employee knew or should have known the significance of the component. To demonstrate that the employee knew or should have known the significance of a component, a supervisor could include a statement in the standard itself, in a document issued to clarify it, or in discussions with the employee that failure to perform acceptably with respect to each component of the standard could be the basis for demotion or removal.

For additional information regarding this Web page, contact Krista Bibb, in the Division of Policy and Directives Management, at Krista_Bibb@fws.gov 
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