July 9, 2008

M E M O R A N D U M

To: IRS Chapter Presidents

RE: EQRS and Performance Evaluations

SUMMARY: Guidance is provided on use of existing contract protections to assist employees unfairly evaluated on the basis of EQRS.

As discussed in prior memoranda, I received a great deal of information through the National Training Conferences about your concerns around the IRS’s use of EQRS to evaluate employees. While I will be taking a variety of steps to address these issues on the national level, those steps will not resolve every local problem resulting from the agency’s actions. Therefore, this memo is intended to provide you with some additional guidance and suggestions on how to represent individual employees with performance appraisal disputes based on EQRS.

As a general matter, Article 12 provides a comprehensive scheme for the evaluation of employee performance, and numerous provisions that can help employees who receive ─ or fear ─ unfair ratings or reviews based on EQRS. Additionally, Article 25 (Workload Management) and Article 7 (Personnel Records) contain provisions that may be helpful in some disputes. Specific types of problems you have reported are discussed below, along with suggestions for preventing an unfair rating and supporting a grievance challenging a bad appraisal.

Annual Appraisals Based Entirely on EQ Reviews

Many of you have reported complaints by employees whose annual appraisals are based entirely on EQ reviews and no other type of case review, workload review, or observation. Appraisals based solely on EQRS violate the terms of the January 18, 2007 EQ LOU, which recognize EQ case reviews as “one factor in the appraisal process.” The LOU explicitly states that other means of evaluating work will be considered. If reliance on EQRS results in the manager overlooking other examples of the employee’s performance, a grievance might also cite a violation of Article 12, Sections 4C and 9D, both of which contain language requiring 2 management to base appraisals on a “reasonable and representative sample” of the employee’s work.

To prevent unfair appraisals based on EQ reviews, employees can take advantage of several existing provisions of Article 12: Section 9D requires a supervisor to consider any particular case(s) an employee submits for review. Thus, employees should submit examples of their best work and document the request for review. That request can be made at any time, and is perhaps most effective when made before the appraisal process is underway, for example, upon closing a case or completing a particular task. Employees also should take advantage of the right to prepare self-assessments, and cite concrete examples of their good performance that is not reflected in the EQ reviews. Self-assessments are discussed further below.

Old, Overage or Problem Cases Selected for EQ Review

I have heard reports that some managers are selecting only problem cases for review under the EQ attributes, overlooking other cases worked successfully by the employee. Once again, these actions violate the contract provisions requiring that appraisals be based on a “reasonable and representative sample” of work. (Art 12 Secs 9D, 4C). To support a grievance citing this type of violation, it is very useful to gather data showing the full range of work performed by the employee during the performance period, to demonstrate that the cases selected for review are not representative or do not constitute a reasonable sample. For example, an employee could show that only cases with short statutes were selected for review, when the majority of the cases were worked over a lengthier period of time. Similarly, an employee may show that most cases assigned during the period involved certain types of issues or a certain level of complexity, while only the more complex and unusual cases were reviewed using EQRS.

Data to support violations of the “reasonable and representative sample” rule can be gathered through information requests for examples of the employee’s work product. A request might seek specific cases the employee worked, or aggregate data such as ICS history reports, EQRS cumulative reports, or other reports that track average cycle time, case closure rates, or other summary information. Each request will vary depending on the employee’s specific job and circumstances. An example follows, including a suggested statement of particularized need:

Please provide data demonstrating the total number of cases worked by the Grievant during the performance period.

This data is needed to provide evidence at the grievance meeting that management violated the contract requirement to base the appraisal on a reasonable and representative sample of the Grievant’s work. The union will use the data to show that the Grievant’s appraisal was based on few reviews representing only a small portion of his/her work.

Inconsistent Interpretation of the EQ Standards

While the IRS characterizes the EQRS as a method to ensure consistent application of performance standards, it appears that this may reflect wishful thinking, as the EQ “attributes” 3 leave room for interpretation from one manager or employee to another. I have even heard reports that in some locations, managers are provided with mock cases to review under the EQRS, and the results show managers often reach differing conclusions about performance when reviewing the same facts. The contract protects employees from such inconsistent treatment, whether based on EQ reviews or any other method of evaluation. Article 12 Section 4E requires uniform treatment between employees with the same critical elements and standards, with particular emphasis on the work unit. Therefore, when you suspect that employees have not been consistently measured under EQ (for example, one manager has rated certain actions as errors while other managers have rated similar actions as correct; or where a manager rates an employee at a “meets” level in an element while another employee with similar EQ reviews receives an “exceeds” rating, etc.), consider gathering data to support the claim by citing the agency’s obligation under Section 4E. A sample request follows:

For each employee in the Grievant’s work group with the same position, elements, and standards as the Grievant, please provide sanitized copies of the annual appraisal and all underlying evaluative recordations used to prepare the appraisal.

This data is needed to determine the extent to which management violated its obligation to ensure uniform treatment in performance appraisals under Article 12 Section 4E. The union will use this data to demonstrate in the grievance meeting that the Grievant was harmed when the agency applied stricter standards to the Grievant than to other employees working under the same performance standards.

Unfair Application of Timeliness Requirements

As I discussed in earlier memos, the issue of EQ reviews is closely linked to the IRS’ increasingly strict application of timeliness requirements. Employees sometimes find themselves penalized under the automated EQRS for failing to take certain actions in a timely manner despite legitimate reasons why the timelines could not be met, such as time away from the job because of authorized leave, training, or collateral duties such as union work. Management’s failure to consider such circumstances when evaluating an employee may violate Article 12 Sections 4J (relating to union duties) or 4K (addressing other mitigating circumstances that affect performance such as authorized leave). Furthermore, negative ratings resulting from failure to recognize the effects of protected union activity, EEO activity, or FMLA absences, may constitute violations of the governing statutes, as well.

Access to Information

In addition to the statutory right of the union to receive data needed to fulfill our representational obligations, employees have a contract right to review their own personnel records. Article 7 lays out the rights of employees and their representatives to inspect such data, and no “particularized need” statement is required for requests under the contract. Furthermore, Article 12 Section 9A prohibits the IRS from relying on evaluative recordations (which includes EQRS reviews) unless timely provided to the employee. Together, these provisions ensure that 4 no employee should receive an appraisal based on evaluative records of which they were unaware.

Pursuing Other Problems Associated with EQ Reviews

In addition to the specific problems discussed above, you may encounter other ways that EQ reviews harm an employee’s performance rating. I recommend thoroughly reviewing Article 12 when new complaints are presented, to determine which provisions best address the situation. Where there is no specific provision fitting the circumstances at hand, consider citing a violation of Article 12 Section 4C, which requires fair and objective appraisals as a general matter.

Proactive Steps During the Performance Period

The contract contains several provisions employees can use during the performance year to set themselves up to receive the best possible rating. By taking these proactive steps, employees can prevent disputes or strengthen any grievances that become necessary. Such steps are also critical to ensuring a successful outcome at arbitration, because arbitrators expect employees to engage in a dialogue about their performance with their supervisors, and generally are not inclined to put the responsibility for performance evaluation entirely on management’s shoulders.

 Employees should ask their supervisors to clarify and explain performance expectations (e.g. how the EQRS rating “attributes” relate to job duties, CJEs for the position, IRM requirements, etc.) early in the performance year, or as soon as questions arise. Additionally, employees should document their questions and any responses from management, as well as any steps the employee takes to implement management guidance (email is an excellent way to capture a dated record of discussion). Management’s failure to provide meaningful explanation or clarification of performance expectations as they relate to EQRS could violate one or more of the following provisions, depending on the circumstances:

Article 12, Section 3E, which obligates supervisors to discuss and clarify CJEs and performance standards with employees annually, or whenever changes occur; and the EQ LOU dated January 18, 2007, sections 1 through 4, which require managers to explain the relationship of EQ attributes to CJEs and answer questions regarding EQ.

Article 12, Section 4M, requiring supervisors to provide ongoing performance counseling, especially when performance declines. Note that arbitrators have repeatedly held this provision requires “meaningful” counseling, such as specific and concrete advice and examples to improve performance, not simple criticism or generalities. 5

 Employees should rebut EQ reviews they disagree with. Article 12 Section 9A provides employees with administrative time to rebut an evaluative recordation, which includes EQ reviews. The EQ LOU explicitly recognizes that Section 9 applies to EQRS.

 Employees should provide self-assessments before their appraisal is due. Article 12 Section 4B5 provides employees with administrative time to prepare self- assessments, and 4B6 requires managers to explain the reasons for rejecting an employee’s self-assessment. By taking advantage of these provisions, employees may prevent disputes about their performance, or at least narrow the issues in dispute while creating an evidentiary record to support a grievance.

 Employees can request relief from unreasonable workload. Unfortunately, problems with unreasonable workloads are not new and are not limited to employees who are subject to EQRS. But as discussed, EQRS can heighten the potential for harm to employees who are pressured to carry heavy workloads, because the automated system charges errors for untimely actions without regard to surrounding circumstances. While the law provides management with significant discretion in the assignment of work, the contract contains provisions that can help prevent harm to employees in this situation. Article 25 lays out a process whereby an employee can raise concerns about an unreasonable workload and, if unresolved, may obtain a written response from the supervisor. By taking advantage of this process, an employee creates a record of their efforts to perform successfully under difficult circumstances, and management’s failure to resolve the underlying problem. Furthermore, where this record of discussion is cited in a grievance challenging an unfair appraisal, the employee may seek a remedy that includes a reduced inventory. While this process may not solve every performance problem, it provides another route to highlight the problems with management’s systems of assigning work and reviewing employees, and should not be overlooked as one option for pursuing relief.

While I have addressed the most common problems raised in relation to EQRS reviews, it is impossible to anticipate every possible situation you might encounter. I hope this memo provides you with some ideas for tackling these issues. For further assistance, please consult your National Field Representative.

Colleen M. Kelley National President