The Office of Personnel Management (OPM) is issuing proposed regulations governing probation on initial appointment to a competitive position, performance-based reduction in grade and removal actions, and adverse actions. Comments on the proposed changes are due by October 17, 2019.
Highlights of the Proposed Changes
Here are the highlights of how the system for taking action against a federal employee would be changed.
- Progressive discipline would not be required;
- Disciplinary action should be based on the facts and circumstances of each individual employee’s situation;
- Suspension should not be a substitute for firing an employee where removal is appropriate;
- An employee’s disciplinary record, not just similar past misconduct, should be taken into account;
- Decisions should normally be issued on proposed removals within 15 business days of the end of the employee reply period following a notice of proposed removal;
- A written notice of adverse action should usually be limited to 30 days;
- Agencies will not be allowed to withhold information related to an employee’s misconduct or poor performance from other federal agencies;
- The probationary period should be used as the final step in the hiring process of a new employee.
- Any collective-bargaining proposal in conflict with this government-wide regulation will be contrary to law and non-negotiable.
Better Use of the Probationary Period
OPM states in its proposal that a probationary period is a good way to evaluate a candidate’s potential to be an asset before finalizing a candidate’s appointment. As the final step in the hiring process of new employees, the probationary period should be used to assess how well an employee is performing and that “instances of poor performance and misconduct should be dealt with promptly.”
This proposed change would require agencies to notify supervisors an employee’s probationary period is ending. The first notice would be at least three months or 90 days prior to a probationary period expiring, and then again one month or 30 days prior to the probationary period ending. A supervisor would be told to make an affirmative decision regarding the employee’s fitness for continued employment or otherwise take appropriate action.
Streamlining Removal Procedures
The proposed regulation would make it easier and faster to remove a federal employee by reducing the amount of time available to employees subject to Performance Improvement Plans (PIPs) to improve their job performance following a poor evaluation or reprimand.
The proposal states that “no additional performance improvement period or similar informal period to demonstrate acceptable performance to meet the required performance standards shall be provided prior to or in addition to the opportunity period….”
The new regulation would potentially reduce this time for improvement to 30 days. Under current practice in the federal government, this process usually takes between 60 and 120 days.
It currently can take six months to a year (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.”
Clean Record Agreements Banned
Executive Order 13839 states:
Agencies shall not agree to erase, remove, alter, or withhold from another agency any information about a civilian employee’s performance or conduct in that employee’s official personnel records, including an employee’s Official Personnel Folder and Employee Performance File, as part of, or as a condition to, resolving a formal or informal complaint by the employee or settling an administrative challenge to an adverse action.
Such agreements have often been referred to as “clean record” agreements. This provision does not prevent an agency from correcting incorrect or inaccurate information in a record.