Cheri Cannon is a partner at Tully Rinckey PLLC and the former chief counsel to the chairman of the Merit Systems Protection Board. She concentrates her practice in federal sector employment and labor law and can be reached at info@fedattorney.com.
A recently released Government Accountability Office report on strengthening employee engagement reminded me of that line spoken by the warden in the 1967 film "Cool Hand Luke" to Paul Newman's character, Luke: "What we've got here is a failure to communicate."
As the report notes, the strongest driver of employee engagement in their employment was constructive performance conversations with supervisors and the sixth strongest driver was communication from management. Unsurprisingly, GAO found that in 2014 the government-wide employee engagement index fell to its lowest level in six years.
What is surprising, however, is that the engagement levels were not even worse, given the growing number of federal employees who in the 2014 Federal Employee Viewpoint Survey reported not believing managers and supervisors were good communicators. In fact, the percentage of employees who did not believe their supervisors provided them with "constructive suggestions to improve…job performance" rose to 20.3 percent – the highest level since at least 2004. The percentage of employees who did not believe managers "communicate the goals and priorities of the organization" rose to 19.1 percent, also the highest level since at least 2004, according to a Tully Rinckey PLLC analysis of weighted Federal Employee Viewpoint data.
In light of GAO's findings, all levels of leadership will likely come under pressure to improve their communication skills and efforts with subordinates. The biggest push may be placed on first line supervisors, whose conversations about performance can have the greatest impact on employee engagement.
Below are a few things supervisors should keep in mind when it comes to discussing performance issues with subordinates.
If an agency fails to communicate to an employee "the performance standards and the critical elements of the employee's position," it generally cannot take a removal or demotion action against him or her for poor performance. The timing of this communication is important. "The agency must communicate the critical elements and performance standards to the employee at or before the beginning of the appraisal period which forms the basis of the adverse action," the U.S. Court of Appeals for the Federal Circuit said in Weirauch v. Department of the Army (1986).
Communication can salvage an agency's attempt to remove an underperforming employee, even if the performance standards he or she failed to satisfy are deemed invalid. "An agency may cure otherwise fatal defects in the development and communication of performance standards by communicating sufficient information regarding performance requirements at the beginning of, and even during, the PIP," the Merit Systems Protection Board said in Henderson v. NASA (2011).
Performance standards can be communicated via "written instructions, information concerning deficiencies and methods of improving performance, memoranda describing unacceptable performance (e.g., in the PIP itself), responses to the employee's questions concerning performance, or in any manner calculated to apprise the employee of the requirements against which she is to be measured," the MSPB said in Melnick v. Department of Health and Human Services (1989).
Invalidated absolute (i.e., one-strike-your-out) and backward (i.e., negatively defined) standards generally cannot be cured through oral and/or written communications, whereas the curing of invalidated standards is possible when the they are based on "a single written standard of satisfactory performance despite the fact that the agency has a five-tier performance appraisal plan," the Board further noted in Henderson.
For the most part, communication between people is easy. The challenge is communicating the right message and in a clear way. Experienced counsel can help supervisors extrapolate that message or defend against accusations that they failed to communicate with subordinates all of which can lead to dissatisfied, disengaged employees who file claims against such supervisors.
