Executive Order on Firing Policies Leaves Federal Employees Contemplating Job Security

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By on June 3, 2018 in Human Resources with 0 Comments

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A recent executive order could have some federal employees contemplating their job security, or at least scratching their heads.

An overhaul of the way poorly performing federal employees is handled was one of three executive orders related to federal employment announced on May 25. The two other executive orders aim to curtail the amount of time employees can be paid for union work and direct agencies to negotiate more stringent union contracts.

Although the order aims to make federal agencies’ termination policies more efficient, its impact on employees is not as straightforward. What do federal employees need to know?

There’s a shorter window to improve poor performance

The executive order to streamline removal procedures for federal employees shortens the timeframe for employees subject to Performance Improvement Plans (PIPs)—which provide employees a chance to improve their job performance following a poor evaluation or reprimand—to 30 days, government-wide. It currently runs between 60 and 120 days.

The Federal Employee Viewpoint Survey has consistently found that less than one-third of federal employees believe that the government details with poor performers effectively, according to the executive order.

It currently can take six months to a year (and sometimes longer) to dismiss a federal employee, according to a 2015 Government Accountability Office report. “The time and resource commitment needed to remove a poor-performing permanent employee can be substantial,” the report states. “Concerns over internal support, lack of performance management training, and legal issues can also reduce a supervisor’s willingness to address poor performance.”

Federal employees should be aware of additional provisions in the executive order, which direct that:

  • progressive discipline should not be required;
  • disciplinary action should be calibrated to the specific facts and circumstances of each individual employee’s situation;
  • suspension should not be a substitute for removal of an employee where such a removal would be appropriate; 
  • discretion be taken into account regarding an employee’s disciplinary record, not just similar past misconduct; 
  • decisions should be issued on proposed removals within 15 business days of the end of the employee reply period following a notice of proposed removal;
  • written notice of adverse action should be limited to 30 days;
  • consideration of performance over seniority must be taken when processing workforce reductions;
  • agencies not withhold information related to an employee’s misconduct or poor performance from other departments; and
  • a probationary period should be used as the final step in the hiring process of a new employee.

When do the changes take effect?

The Office of Personnel Management (OPM) has 60 days to provide guidance on how to  implement the reporting provisions. Within 45 days, OPM Director Jeff T.H. Pon may propose new regulations to change agencies’ performance management policies. However, in a statement, Pon applauded the order.

“By answering repeated calls from the American public and dedicated civil servants across the country, this EO will allow more direct accountability for chronically poor performing employees,” Pon said. “By holding poor performers accountable . . . we are advancing our efforts to elevate the federal workforce.” 

He also noted that “[t]he vast majority of our employees are dedicated public servants who are dedicated to their missions and service to the American people.”

Clues from the VA’s employment change?

The current administration first sought to change policies regarding termination of federal employees under the Accountability and Whistleblower Protection Act of 2017, which gives the Veterans’ Administration secretary more power to discipline or fire employees, shortens appeals processes and prohibits employees from being paid while they appeal. It also includes protections against retaliation for employees who expose corruption.

The number of employees fired between the time the Accountability Act went into effect in June, 2017 through January 30 was 1,737, according to a VA accountability report.

Federal employees seeking clarification of the federal government’s new termination policies, those facing a PIP, or Veteran’s Administration employees facing termination should consult with a federal employment attorney.

© 2019 Mathew B. Tully, Esq.. All rights reserved. This article may not be reproduced without express written consent from Mathew B. Tully, Esq..

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About the Author

Mathew B. Tully is a founding partner of Tully Rinckey PLLC. He concentrates his practice on representing federal government employees and military personnel and can be reached at [email protected]. To schedule a meeting with one of the firm’s federal employment law attorneys call 202-787-1900. The information in this column is not intended as legal advice.

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