On May 25, 2018, President Trump issued a new Executive Order “…Promoting Accountability and Streamlining Removal Procedures….”
This document has the potential to substantially change how agencies impose disciplinary or adverse actions in the federal government. Whether the changes will be successfully implemented across the board remains to be seen as substantial pushback from within the system is inevitable and delays in the final implementation are probable.
Here is a summary of the changes and the underlying philosophy for the changes.
Purpose of the Executive Order
The Executive Order states:
The Federal Employee Viewpoint Survey has consistently found that less than one-third of Federal employees believe that the Government deals with poor performers effectively. Failure to address unacceptable performance and misconduct undermines morale, burdens good performers with subpar colleagues, and inhibits the ability of executive agencies…to accomplish their missions. This order advances the ability of supervisors in agencies to promote civil servant accountability consistent with merit system principles while simultaneously recognizing employees’ procedural rights and protections.
To ensure that federal employees remain in the civil service based on their performance, the new Order provides a quicker process for taking action to fire a federal employee. It seeks to minimize the “burden on supervisors” and to restrict the opportunity of an employee to demonstrate acceptable performance.
Here are the key points in this process.
- An agency should not be required to use progressive discipline. The penalty should be tailored to a particular instance of misconduct.
- An agency is not prohibited from firing an employee because they did not fire an employee for comparable conduct but should consider comparable instances in evaluating potential disciplinary action.
- A suspension should not be a substitute for removal where removal is appropriate. A suspension is not necessary before proposing removal.
- All prior misconduct can be taken into account, not just similar past misconduct.
- Generally, agencies should issue decisions on proposed removal taken as an adverse action within 15 days after the end of the time given to an employee to reply to the proposal.
- Agencies should generally limit the written notice of adverse action to 30 days as prescribed by law.
- An employee’s performance should be given more consideration than an employee’s length of federal service.
- A probationary period should be used as the final step in the hiring process to evaluate potential for the appointment becomes final.
Restricting Avenues of Appeal
As part of this review of how actions are taken in the federal service, the Order calls for limiting appeal rights. Obviously, the Order does not preclude actions contained in federal law. But, an agency can negotiate limits on the scope of a negotiated grievance procedure.
Limiting the Scope of the Negotiated Grievance Procedure
Toward this end, the Order states that “[w]henever reasonable”, an agency head should work to exclude removal actions from a negotiated grievance procedure. If a union does not agree, the agency can and the Order indicates that the agency “shall” take the issue to the Federal Service Impasses Panel (FSIP) to resolve the issue.
While the Executive Order does not indicate the reason for this approach, the most likely answer is that arbitrators are often more inclined to split a decision in a case. The Merit Systems Protection Board (MSPB) is often less inclined to do this. Also, individual arbitrators view a case differently and there is less consistency in their decisions than is often the case with the MSPB.
Excluding Other Issues from a Grievance Procedure
Also, agencies are directed to exclude other subjects from grievance procedures or arbitration disputes. These include:
- Assigning performance ratings
- Awards of any form of incentive pay such as cash awards, quality step increases or recruitment, retention or relocation payments.
Required Agency Actions
Agency labor relations officers are going to be very busy as a result of this new directive.
A number of collective bargaining agreements in the federal government do not conform with the requirements of this Executive Order. That was obviously known to the authors of the new Order. Therefore, agencies are directed to renegotiate any labor union agreements that are not consistent with the new requirements.
Agencies are also directed to renegotiate any labor agreements that are not consistent with any final regulations issued by the Office of Personnel Management (OPM) as a result of this Executive Order.
There will be new regulations issued by OPM as a result of this Executive Order. The OPM director is directed to propose for notice and public comment regulations to implement the requirements of this Executive Order “as soon as practicable”.
Also, each agency is required to revise its discipline and unacceptable performance policies to conform with the new requirements within 45 days. Agencies are also required to conform to any new OPM regulations issued within 45 days after those regulations are issued.