With the issuance of Executive Order (E.O.) 13839 on May 25, 2018, President Trump took a major step in creating a system for promoting efficient and effective use of the federal workforce and reinforcing the belief that Federal employees should be both rewarded and held accountable for performance and conduct. This final rule from the Office of Personnel Management (OPM) builds on the requirements of the Executive Order.
On September 17, 2019, OPM issued proposed regulations governing probation on initial appointment to a competitive position, performance-based reduction in grade and removal actions, and adverse actions. The agency received 1,189 comments on the proposed rule. OPM noted that a number of the comments appeared to be “submitted using text from a template. This widely utilized letter expressed general opposition to the proposed regulations.”
The Office of Personnel Management has issued a final rule for streamlining Federal employee removal procedures. The final rule becomes effective on November 16, 2020.
It 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.”
Here are key points to know from OPM’s final rule:
- An agency should not be required to use progressive discipline. The penalty should be tailored to a particular instance of misconduct. “If the facts and circumstances of a case warrant removal, an agency should not substitute a suspension.”
- 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. Agencies should not require that an employee have previously been suspended or reduced in pay or grade before a proposing official may propose removal.
- All applicable prior misconduct can be taken into account, not just similar past misconduct when determining an appropriate penalty.
- Generally, agencies should issue decisions on proposed removals within 15 business days.
- 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 how long a person has worked for the federal government.
- A probationary period should be used as the final step in the hiring process to evaluate potential before the appointment becomes final.
- Agencies must notify supervisors an employee’s probationary period is ending three months prior to the expiration of a probationary period, and then again one month prior to the expiration of the probationary period.
- Agencies are not required to help employees improve or provide an improvement period longer than required by law.
This “final rule” from OPM is based on the Executive Order streamlining the federal employee removal process which has been upheld in court. The Executive Order does not preclude actions contained in federal law.
Limiting the Scope of the Negotiated Grievance Procedure
The Executive 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.
The final rule from OPM does not address this issue. An agency can negotiate limits on the scope of a grievance procedure. This means a federal agency can negotiate with a union that removal actions be excluded from the scope of a negotiated grievance procedure. The final rule from OPM does not require taking the issue to the FSIP for a resolution. The Executive Order does contain this requirement.
With the various court decisions that have been issued as a result of legal challenges, the issue grew more complicated. When the initial “proposed regulations” were issued by OPM, an injunction was in place putting some portions of the Executive Order on hold. While the injunction was overturned in a later decision, the proposed regulations were issued in advance of the injunction being removed.
More OPM Actions Anticipated
In the final rule just published, OPM wrote that “As the previously enjoined portions of the Executive Order are now fully effective and binding on executive agencies, OPM anticipates proposing additional revisions to regulations, pursuant to the Administrative Procedures Act’s notice-and-comment process, consistent with the President’s expressed policy goals.”
Presumably, agencies will bargain on the scope of the negotiated grievance procedure for bargaining unit employees and will likely take the issue to the FSIP “if necessary”.
In other words, the final impact on agencies on these issues is yet to be determined.