Creating a New Class of Federal Employees

October 22, 2020 9:52 AM , Updated October 26, 2020 8:26 AM
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President Trump has issued an Executive Order entitled Creating Schedule F In The Excepted Service. While the title does not sound like a major change, the reality is that the Executive Order would implement major changes to the federal government’s civil service system.

It is not clear how many federal employees would be impacted. Those employees who are impacted would not have the usual appeal rights available to most federal employees.

In effect, an observer of the federal government’s civil service may view this as a way to “drain the swamp”—a phrase often mentioned by President Trump prior to being elected president when referring to how the federal government and those who surround it function on a daily basis.

Rationale for the Executive Order

The Executive Order reads:

…I find that conditions of good administration make necessary an exception to the competitive hiring rules and examinations for career positions in the Federal service of a confidential, policy-determining, policy-making, or policy-advocating character….Placing these positions in the excepted service will mitigate undue limitations on their selection. This action will also give agencies greater ability and discretion to assess critical qualities in applicants to fill these positions, such as work ethic, judgment, and ability to meet the particular needs of the agency.

This change in the grouping of federal employees would not be subject to the civil service procedures now applicable to most federal employees. These federal employees would not have access to the usual array of appeal rights as “Agencies need the flexibility to expeditiously remove poorly performing employees from these positions without facing extensive delays or litigation.”

The Executive Order applies to all positions requiring the White House Office of Presidential Personnel for their appointment. The Senior Executive Service is exempt. It also would not allow adverse actions against Schedule F employees on the basis of their partisan affiliation, other protected characteristics, or their place as a whistleblower.

Categories Exempt From Existing Civil Service Procedures

Here are the schedules of federal employees as outlined by the Executive Order.

Some federal employees will be those “for which the Civil Service Rules and Regulations shall not apply to removals from positions listed in Schedules A, C, D, E, or F, or from positions excepted from the competitive service by statute. The Civil Service Rules and Regulations shall apply to removals from positions listed in Schedule B of persons who have competitive status.”

Schedule A. Positions other than those of a confidential or policy-determining character for which it is not practicable to examine.

Schedule B. Positions other than those of a confidential or policy-determining character for which it is not practicable to hold a competitive examination.

Schedule C. Positions of a confidential or policy-determining character normally subject to change as a result of a Presidential transition.

Schedule D. Positions other than those of a confidential or policy-determining character for which the competitive service requirements make impracticable the adequate recruitment of sufficient numbers of students attending qualifying educational institutions or individuals who have recently completed qualifying educational programs.

Schedule E. Conditions of good administration warrant that the position of administrative law judge be placed in the excepted service and that appointment to this position not be subject to the requirements of 5 CFR, part 302, including examination and rating requirements.

Schedule F. Positions of a confidential, policy-determining, policy-making, or policy-advocating character not normally subject to change as a result of a Presidential transition shall be listed in Schedule F.

Under the Executive Order, agencies are to conduct a preliminary review of existing positions in 90 days and a complete review within 210 days.

Role of the Federal Labor Relations Authority

Under the Order, agencies will be required to “expeditiously petition” the Federal Labor Relations Authority (FLRA) for approval to remove a reclassified Schedule F job from a bargaining unit. This means that a person in these positions may be removed from representation by a federal employee union if the FLRA finds the job is for a “confidential employee” or should be removed for other reasons.

The result is likely to be a drop in the number of federal employees represented by unions. There would also likely be a financial impact as people who are not in a bargaining unit are not as likely to pay dues money to the union that cannot represent them.

Politicizing the Federal Workforce

This Executive Order is largely a follow-up to one issued by President Trump in 2018 (Executive Order (E.O.) 13839) and which is now being implemented in the federal government after various legal challenges have failed.

In theory, the federal civil service is a professional cadre of non-political employees who work to accomplish the work of the administration in power. The idea was implemented in 1883 with the Pendleton Act. That worked well for a number of decades. The intent was to eliminate the new administration from hiring and firing the federal workforce which could (and did) lead to corruption and incompetence.

In my experience, most federal employees do work to implement policies of the administration in power. Most are generally apolitical in that sense.

Politics is often about public perception. There is a perception that some federal employees were working to influence the 2016 election and to take actions restricting the newly elected president from being successful. While the number of these people taking these actions may have been small in number, they did create a perception among some that an influential deep state does exist.

When President Kennedy issued an Executive Order creating a labor relations program in the federal government, the ground was laid for changing the nature and character of the federal workforce. The Civil Service Reform Act of 1978 created a legislative basis for the federal labor relations program and solidified the changes in the workforce.

Federal employee unions will quickly issue press releases and make speeches about this new Executive Order and how it will politicize the workforce. They will do this without any apparent sense of irony as they use their money and resources in the current election to elect Democrats to Congress and the White House. Should Democrats win the White House and Congress, the power and influence of the unions will increase. Should Republicans win, their power and influence will be diminished.

In other words, they will use their position in the federal government to elect their political allies while decrying attempts by the Republicans to “politicize” the workforce with this Executive Order or other actions that may work to reduce the influence of federal employee unions.

Perhaps the biggest surprise is that it has taken a Republican president until 2019 to seek to make changes such as those outlined in the Executive Order. The federal civil service has been politicized, as least insofar as the elected union representatives speaking on behalf of federal employees and taking public actions in support of one political party.

What Will Happen Next?

With national elections rapidly approaching, the next step will likely depend on the results of the election. Democrats support unions and, should Joe Biden be elected, he could issue a retraction of this Executive Order after assuming office.

If President Trump is re-elected, OPM will likely proceed as directed by the Executive Order. There will be numerous challenges in court as has happened with the Executive Order issued by President Trump on labor and employee relations issues in 2018.

The actual interpretation and application of the Executive Order will take place (or not) starting in 2021. It appears President Trump is laying the groundwork for substantially restructuring the federal civil service system in a second term.

© 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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