Presidential Power Versus Employees’ Constitutional Rights: Interpreting the Executive Orders Affecting Federal Workers

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By on October 21, 2019 in Human Resources with 0 Comments
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The three 2018 executive orders that affect federal employees moving forward have riled unions and left some government workers wondering if their Constitutional rights could be at risk.

While murky waters exist within the interpretation of federal law regarding a President’s power versus employees’ Constitutional rights, it actually boils down to interpretation of the law and these orders.

A President’s authority to issue executive orders that affect workers, as well as other matters, is dictated by Congress and the Constitution itself. Plain and simple, a President exceeds his authority if his actions conflict with existing laws or the Constitution. 

The District of Columbia District Court has in fact interpreted the President’s actions – the three executive orders – as in part conflicting with existing law, subsequently leading to the injunction that stalled implementation of that part of the orders until recently. The injunction expired after the United States Court of Appeals of the District of Columbia declined to hear the case because the district court lacked jurisdiction, and subsequently vacated its judgment. 

With the injunction expiring on October 2, the U.S. Office of Personnel Management (OPM) officially instructed agencies to fully implement the three executive orders, originally issued in May, 2018.

The three executive orders that were issued by the President in May, 2018 now in effect are intended to give agencies more power to 1) terminate employees deemed poor performers; 2) encourage agencies to renegotiate contracts with unions that represent government employees; and 3) narrow the definition of “official time” that federal workers holding union positions may spend on conducting union business while they are on the job.

The agencies have been implementing the parts of these orders that were not being challenged in court since June 2018. Indeed, presently OPM has issued proposed rules for an opportunity to comment that incorporate the executive orders’ mandates.

Implications for Federal Employees

So what do the executive orders mean for federal workers? 

Terminating Employees Deemed “Poor Performers”

First off, there is a smaller timeframe in which to improve poor performance.

The executive order to streamline removal procedures for federal employees decreases the amount of time that employees are subject to Performance Improvement Plans (PIPs)—that provide employees a chance to improve their job performance following a poor evaluation or reprimand—to 30 days, government-wide. That window previously lasted between 60 and 120 days and was up to agency discretion as to the length of the PIP and/or extensions of the PIP.

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.

Encouraging Agencies to Renegotiate Contracts With Unions That Represent Government Employees

For the country’s labor unions and the federal employees they represent, the executive order regarding unions means the scope of their negotiating power with agencies will be narrowed down to pre-2010 levels. Agencies do not need to broaden the items they negotiate with the unions any more. In essence, unions will be unable to influence the larger decisions that federal agencies make for their employees.

This is not to say that the nation’s federal labor unions could become completely ineffective. Unions will continue to represent government workers in adverse employment actions and administrative hearings—areas that are of immediate importance to those who are facing such actions or who are filing grievances. Unions just will not have the ability to provide full representation of the employees they serve when negotiating collective bargaining agreements.

While the unions’ power to bargain with government agencies has fluctuated with each presidential administration since the Federal Labor Relations Authority was established in 1978, some administrations have been amenable to unions’ negotiating rights, and others have been supportive of the agencies’ negotiating rights. Therefore, because unions’ negotiating rights are limited now, it is possible that it may expand again under a different administration.

It also should be noted that, while the President has the authority to issue executive orders that carry the force of law with respect to federal labor unions, including collective bargaining, it is undisputed that no such orders can take away the right to collectively bargain.

Narrowing the Definition of “Official Time”

Federal law allows government employees to represent labor organizations and perform other non-agency business while on the clock, but with little oversight. The executive order instructs that federal employees spend “the clear majority of their duty hours working for the public” and that agencies “monitor use of taxpayer-funded union time, ensure it is used only for authorized purposes, and make information regarding its use readily available to the public.”

According to the executive order, agencies will now be required to submit an annual report to OPM on the following:

  • The purposes for which the agency has authorized the use of taxpayer-funded union time, and the amounts of time used for each such purpose.
  • The job title and total compensation of each employee who has used taxpayer-funded union time in the fiscal year, as well as the total number of hours each employee spent on these activities and the proportion of each employee’s total paid hours that number represents.
  • Whether the agency has allowed labor organizations or individuals on taxpayer-funded union time the free or discounted use of government property, the total value of such free or discounted use.
  • Any expenses the agency paid for activities conducted on taxpayer-funded union time.
  • The amount of any reimbursement paid by the labor organizations for the use of government property.

Takeaways

With regard to the disputed interpretation of federal law regarding a President’s power versus employees’ Constitutional rights that is at the heart of the debate over these executive orders, ponder this: Just as the current President has with the stroke of a pen revoked many of his predecessor’s executive orders, the next president and the next can do the same. And while everything boils down to the interpretation of the law, the courts likely have not seen the last of these executive orders. 

© 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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