Court Upholds Implementing LR Orders for Federal Employees

September 17, 2020 9:04 AM
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In the latest decision impacting the implementation of several Executive Orders issued by President Trump on the federal government’s labor and employee relations program, a court has again upheld the government’s ability to proceed with implementing the Orders.

In this latest decision, the 2nd Circuit Court of Appeals upheld the ruling of a district court denying “a preliminary injunction to enjoin the implementation of three Executive Orders relating to federal labor-management relations.” The decision of the district court denying the unions’ request for a preliminary injunction was issued on December 10, 2019.

There have been a number of court cases on this issue as federal employee unions have filed numerous legal challenges to try to eliminate or at least delay having to deal with the financial impact the Executive Orders on federal employee unions.

In the latest legal decision, the 2nd Circuit Court of Appeals concluded that the claim in the appeal:

was unlikely to succeed on the merits because the Guidances were not subject to notice-and-comment rulemaking as the Orders were “presumptively legally binding” and the Guidances “did nothing more than summarize the legally binding . . . Orders.” 

The full court decision is embedded at the end of this article.

Impact of the Executive Orders

The intensity of the union reaction to the Executive Orders stems from the impact that they would have on the current operation of the federal labor relations program.

The current system provides numerous benefits to unions that are essentially funded by the federal government. Eliminating some of these benefits would most likely weaken the impact unions have on how the government operates on a day to day basis.

Summary of Executive Orders

Here is a quick summary of what these Executive Orders implement:

  • Under the new executive orders, unions will be charged rent for federal office space and will not be reimbursed for travel expenses or for hours spent appealing worker firings.
  • All federal employees will be ordered to spend 75 percent of their time doing the work for which they were hired as a federal employee.
  • Federal agencies will be required to publicly post union contracts in an online repository.
  • Agencies will be encouraged to conclude negotiations with federal employee unions in less than a year.
  • The use of official time will be severely restricted. Official time is the system under which federal employees are paid salary and benefits working on behalf of the union rather than performing other work. Federal employees will not be allowed to spend no more that 25 percent of their time on union or other non-agency business.
  • Unions will be charged rent for using space in federal buildings.
  • The Office of Personnel Management (OPM) recently reported the federal government spent almost $175 million paying employees working on “official time” in 2016. Testimony in Congress this week indicated that actual figure may be much higher than $175 million.

Making It Easier to Fire Federal Workers

  • The new orders will impact how long federal workers have to improve their performance after receiving a bad review. The time to improve will be reduced from 120 days to 30 days.
  • Agencies will be encouraged to remove (fire) poor performers rather than suspending them.

Agencies are now implementing these Orders throughout the federal government. No doubt, what the unions are really hoping for is that Joe Biden will win the election in November.

A second Trump administration would undoubtedly follow through with the intent of these Orders. A Biden administration, on the other hand, would eliminate all or at least most of the Orders in support of the federal employee unions that donate time and money in support of the Biden campaign and other Democrats seeking elected office.

Full Implementation or Elimination Depends on Election Results

In other words, while the federal government is moving out with implementing these Executive Orders, the final decision on implementation of the Orders will be be known once voters decide who will be the American president starting in 2021.

19-4143_opn Docket No. 19-4…

© 2020 Ralph R. Smith. All rights reserved. This article may not be reproduced without express written consent from Ralph R. Smith.

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About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47

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