Will It Be Harder to Fire a Federal Employee Under a Biden Administration?

November 10, 2020 7:50 AM , Updated November 12, 2020 6:54 PM
View this article online at https://www.fedsmith.com/2020/11/10/will-it-be-harder-fire-federal-employee-under-biden-administration/ and visit FedSmith.com to sign up for free news updates

Under the Trump administration, federal employee unions did not fare well.

As noted in The Swing of the Pendulum, unions fare well when Democrats are in power and do not fare as well under Republicans. There is no indication that a Biden administration will be much different in this regard than either the Clinton or Obama administrations were in dealing with federal employee unions.

Several Executive Orders were issued in 2018. These Orders placed significant restrictions on federal unions. Their purpose was to reduce the amount of government subsidies to unions and to restrict their involvement in day-to-day activities and to make it quicker and easier to hire and fire federal employees.

The Orders were challenged in court and went through a series of decisions. Ultimately, they were upheld and agencies either have implemented them or were in the process of implementing them.

Limitations on Executive Orders

The problem with any executive order is that it may not be enforced once the president that issued the order leaves office. By comparison, a law that is passed is still supposed to be followed by the next administrations. Changing a law in Congress is difficult and may be impossible depending on which party controls the House and the Senate.

Federal employee unions are not politically neutral. They generally supported Hillary Clinton in her attempt to become president. When Donald Trump assumed office the political efforts of the unions were a factor in some of the restrictions on unions that followed.

Now, with Joe Biden preparing to become president next year, the fervent efforts of the unions to elect him will have benefits.

One of the benefits is that executive orders previously issued can be revoked. No doubt, some of them will be revoked after Joe Biden assumes the office.

Here are the most significant items impacting the federal workforce that were in these Orders.

Restrictions on Federal Unions

  • Unions would 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 required to spend 75 percent of their time doing the work for which they were hired as a federal employee.
  • Federal agencies would be required to publicly post union contracts in an online repository.
  • Agencies were encouraged to conclude negotiations with federal employee unions in less than a year.
  • Several restrictions on official time. Official time is a system under which federal employees continued to receive salary and benefits working on behalf of the union rather than performing other work. The Orders restricted federal employees to no more than 25 percent of their time on union or other non-agency business.

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.

The Office of Personnel Management (OPM) issued guidance to agencies on implementing the Orders and they were having an impact—at least in some agencies.

Labor-Management Partnerships

An Executive Order ordering cooperation between agencies and unions was issued by President Obama.  This Order created the National Council on Federal Labor-Management Relations (Council) and required it to push a pilot program on bargaining permissive topics and submit a report on its effort.

President Trump issued this directive to agencies on these partnerships:

The Director of the Office of Personnel Management and heads of executive departments and agencies shall, consistent with law, promptly move to rescind any orders, rules, regulations, guidelines, programs, or policies implementing or enforcing Executive Order 13522.

In politics, the image is often more important than the result. Here is an analysis of the accomplishments of the partnership councils.

Regardless of the success or failure of partnership councils, we can anticipate that a President Biden will re-establish the same concept. That was done by Presidents Clinton and Obama and the philosophy of Democrats on this issue has not changed.

Expanding Bargaining With Unions

FedSmith author Bob Gilson noted in an article published in 2012, a primary purpose of the Obama Executive Order was to expand the number of topics on which federal employee unions can bargain without having to change the federal labor relations statute. These topics, known as “permissive” topics of bargaining, allow federal agencies to bargain with unions (or not to bargain on them) as they see fit.

Whether this is done with an executive order or through a directive to agencies, the same process will occur under Joe Biden.

A Biden administration will direct agencies to start bargaining on these permissive topics. Whether most agencies will actually do this remains to be seen but it is another way to repay the unions for their political support.

What Will Happen to Schedule F Executive Order?

In October, President Trump 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.

This change for some federal employees would not be subject to the civil service procedures now applicable in the hiring or firing process.

This Executive Order would reduce the number of federal employees in bargaining units and, therefore, reduce the potential influence of federal employee unions.

On the other hand, it would create a large number of newly classified federal employees loyal to the administration.

We will have to wait and see how a Biden administration will deal with this Executive Order. A bill was introduced by Democrats to nullify this Executive Order. Whether President Biden will want to revoke the Order or if he would see a major political advantage in leaving the Order in place under Democrats remains to be seen.

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

Tags:

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

Top