Performance and Conduct


What is the difference between performance and conduct?

Performance is a “can’t do” and conduct is a “won’t do”. Performance related issues are usually ones in which the employee needs additional training, development or coaching. Conduct issues are ones relating to behaviors and attitudes in which the employee is aware (or should reasonably know) that their actions are unacceptable but takes them anyway. Performance related issues are handled under the Performance Management System (e.g. PIP’s) and conduct related issues are handled through the Progressive Discipline System.

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What are some things I can do to motivate my employees?

Through communication, find out what’s important to each one individually and try to provide it for them to the best of your ability. Some employees are motivated best by being given challenging and important projects, some by recognition, some by participating and being involved in a team to achieve a goal, some through being given autonomy, some through awards, some by being provided training opportunities and others by being able to perform quality work. Many employees are very productive in work environments where expectations are both clear and high. Each person is a little different. Everyone, however, needs to feel they are contributing and are important to the accomplishment of the organization’s goals and mission.

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Am I required to use a Standardized Position Description (SPD) if one is available? Where can I find these PD's?

If there is an SPD that fits, you must use it. These can be found at: http://hr.fws.gov/SPD.cfm.

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What resources can I use in developing clearer critical elements for myself and my employees? Are there standardized critical elements that I can use?

Primary resources include an accurate position description and clear statement of organizational goals, objectives, and priorities. Other reference resources include budget and other work plans, records of discussions of work assignments between you and employees, functional statements, previous performance plans, and sample performance plans. There are no standardized critical elements. However, benchmark performance standards are provided in the Department of the Interior's Performance Appraisal Handbook for your use in describing expected performance at various levels, and can be applied to every position.

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How long can a Performance Improvement Plan (PIP), also called the Opportunity To Improve Letter, remain in the employee’s Official Personnel File and be used after the one year period as referred to in the Code of Federal Regulations (CFR)?

The PIP is maintained in a performance-based action file which is established for each performance-based case. When a performance-based action has been effected and the employee has not appealed the action, the records in the file (including the PIP) must be retained for 4 years after the effective date of the action. If the action is appealed, the records in the file must be maintained for 4 years after the case is closed. If an employee has performed acceptably for 1 year from the beginning of an opportunity to demonstrate acceptable performance, and the employee's performance again becomes unacceptable, the employee shall be afforded an additional opportunity to demonstrate acceptable performance through the issuance of a new PIP.

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How do you deal with an employee who has no performance related issues but does have conduct problems and you currently have him/her in the Progressive Discipline Process for this conduct? For this scenario, assume that it is now time for the annual Performance Review and the end of year “Rating of Record”.

Sometimes performance and misconduct can be interrelated; however, it is important to recognize the difference in the two. In this situation, and assuming that it is not an issue where the conduct is affecting any part of the employee’s performance, you would give them an appropriate rating on the annual Performance Plan (Rating of Record) and then continue to document and carry through on the conduct related issue using the Progressive Discipline process.

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How would you deal with an employee whose conduct problem IS affecting their performance (assuming that they are currently in the Progressive Discipline process for this conduct and it is now time for their annual Performance Plan)? In this situation, assume that, other than this conduct issue and its resulting effect on performance, the employee’s performance is very good.

If the employee’s conduct is somehow affecting performance (and you currently have them in the Progressive Discipline process; i.e - Letter of Warning, etc., as well as it being time for their annual Performance Review), you should delay the Performance Review and focus on the conduct. Of course, you will want to be in contact with your Human Resource Office during this time.

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Can a supervisor ask an employee to perform a job function which appears to be or is unrelated to that position description and why that position was created?

A job description does not limit the duties an employee may perform. If, however, an employee is regularly required to do duties outside his or her job description, the supervisor should either do a PD amendment or redescribe the duties.

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When is it acceptable for a supervisor to use the term “insubordinate” when dealing with the conduct of an employee or when using the Progressive Discipline process?

“Insubordination” is a legal term. Because of this, the supervisor must be able to prove that the supporting elements of the term are present before it can be shown that the employee is, in fact, insubordinate. There must be intent on the part of the employee to refuse to perform a request for the supervisor to be able to use this term, when referring to an employee’s misconduct. If an employee refuses to perform a certain job task, the supervisor should clarify his/her understanding of the refusal with the employee. This is required so that intent can be established based on the employee’s full and complete understanding.

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Is there any policy out there that states whether you can or cannot consume alcohol on your lunch break?

Employees are expected to report to work “ready, willing, and able” to perform their duties. While there is no rule for most employees strictly prohibiting consuming alcohol during their lunch break, when they return to work they must be able to perform.

If an employee occupies a position where safety is an issue, management can implement a policy prohibiting alcohol use off duty during necessary periods. For example, a ban could be established on consuming alcohol by employees who operate heavy equipment, climb ladders, work around machines, etc. from 8 am to 4 pm. Any policy would have to be reviewed by their Regional HR and Solicitor’s offices, but if management can articulate the mission necessary reason, it shouldn’t be a problem.

If an employee is in a position where there are not legitimate safety issues, but a manager is concerned about their condition and their ability to perform, they should contact their Regional HR office. Unless the employee is obviously drunk, the manager may not have enough evidence to meet the standard for a disciplinary action based on the consumption alone, but there may be other alternatives. An example may be addressing the actual result of the consumption – disrespectful behavior, sleeping on duty, not meeting deadlines, etc. As far as discipline goes, remember, being intoxicated at work will fall under several of the Douglas factors for determining a reasonable penalty. The seriousness of the offense and the loss of the confidence of one's supervisors will weigh heavily in that determination.

A good reference for managers about alcohol in the work place can be found at OPM's website - click here to go to the site.

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I want to give an employee a gift certificate as a non- monetary award, what is the proper procedure on how to do that? What if it's a volunteer and not an employee?

For employees, you would complete the award form and list the gift certificate as a non-monetary award. The form then should be sent to the HR office. There is no limit on the amount because employees are taxed on the entire amount, as such you should be cautioned about a very high amount, as the employees salary will be reduced due to the taxes. For example, for a $50 award, the salary is reduced about $5. Refuges runs the volunteer program and has a manual chapter that covers awards for volunteers, it can be found at http://www.fws.gov/policy/150fw3.html.

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I want to give a non-monetary award, let's say a plaque or some other small thing. I understand that it needs to be procured as we would normally do. Do I need to complete the award form? What's it used for? Can't I just place the order for the plaques/mugs/etc. and hand them out without doing the award paperwork?

You can give non-monetary awards without an award form, unless the value is more than $50. If it's more than $50, you must complete the award form and submit it to HR. The employees' salary is then taxed on the total amount. Contact your Admin Officer regarding procurement of these items.

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Do I need to do a performance plan for my seasonal employees if they're going to be on for more than 90 days? If I have to do a performance plan, do I also need to do a formal performance appraisal too?

Temporary and/or employees whose employment is not expected to exceed 120 days during a 12 month period do NOT need to have a performance plan - everyone else MUST be on a performance plan AND receive an annual rating.

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Do you deal with conduct issues with a volunteer the same as a FWS employee? Do the Table of Penalties apply to them also?

No, volunteers should be removed from their position immediately for any misconduct - they have no rights to their "position" and as such the table of penalties does not apply.

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I've heard about something called a "dump" file that would allow me to put information in it about employees that I don't have to show them as long as I don't have their names on the file attributed to the file. Is this correct?

By letter of the law this is basically true. However, a savvy attorney might argue that if the dump file was identifiable even without a name on it (i.e. by color/content), it should be considered a systems of record and therefore should be available to the employee. A supervisor could possibly keep 1 dump file for all employees and keep all personal notes/records that he/she doesn't want to share in there and all other stuff related to the employee in a file with his/her name on it that the employee can view.

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If you have 3 functions within a critical element on administrative responsibilities ( i.e. Time & Attendance, Travel, and Small Purchases) and the person fails on one of those functions, do they fail on the entire element?

It is possible to fail the entire element, based on one subpart.  However, it is recommended to separate out the section if this is a real problem that might lead to a PIP and removal.

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