OPM Interprets Executive Order on Labor Contracts and Telework
Is telework for federal employees nearing the end?
The Trump administration has made it clear it wants to end remote work and telework for most federal employees. It has taking steps to make the end of telework a reality for most employees.
Federal employee unions were negotiating contracts or amendments to contacts designed to “Trump-proof” existing arrangements for telework by federal employees while President Biden was still in office and with the assistance of Biden’s political appointees.
With the latest memo to agencies from President Trump and the guidance just released by the Office of Personnel Management (OPM) telling agencies how the presidential memo is to be implemented, telework may end soon for most federal employees when all is said and done.
In the example of “Trump-proofing” that attracted the most attention, the Social Security Administration, under previous commissioner Martin O’Malley, signed off on contract amendments to telework provisions shortly after the presidential election in November 2024. The amended contract struck out the Deputy Commissioners’ existing authority over telework. It inserted a new requirement that the Trump Administration’s appointees, “adhere to the current number of telework days, eligible positions, and percentage of employees permitted to telework as of the date of this agreement until October 25, 2029.”
As a result, President Trump issued a memorandum to agencies with the title Limiting Lame-Duck Collective Bargaining Agreements That Improperly Attempt to Constrain the New President. It stated:
Such CBAs inhibit the President’s authority to manage the executive branch by tying his hands with inefficient and ineffective practices. The Supreme Court has explained that a President “cannot choose to bind his successors by diminishing their powers.”
Telework Guaranteed by Union Contract? Forget About it! OPM Memo Cites “Management Rights”
What does this mean for employees who think their right to continue working at home is guaranteed through a union contract with the agency?
The OPM guidance essentially says, “Forget about it!” The OPM memo makes these points in defense of its position on the issue:
- Telework levels and exclusion of positions from telework are reserved as a management right.
- FLRA precedent indicates management rights include the right to determine the frequency of telework.
- An agency also has the right to exclude positions from telework.
- Labor agreements that conflict with management rights are unlawful and cannot be enforced.
- Even if the agency head has approved a contract, unlawful provisions of a contract still cannot be enforced.
This is the major point of the OPM guidance sent to agencies:
The agency head’s ability to set overall telework levels and to exclude specific positions from telework eligibility under the Telework Enhancement Act are exercises of management rights to determine the agency’s mission and organization, direct employees, and assign work. Precedent of the Federal Labor Relations Authority (FLRA) strongly indicates that management rights include the right to determine the frequency of telework, including whether specific positions may telework at all. (Emphasis supplied) Unions can negotiate procedures for determining individual telework eligibility within authorized telework levels, and appropriate arrangements for employees whose telework eligibility is altered. However, the substantive amount of telework agencies authorize and the substantive determinations of which positions will be eligible for telework is a management right. Provisions of collective bargaining agreements that conflict with management rights are unlawful and cannot be enforced.
If there was any lack of clarity as to what is meant in the new guidance:
[A]ny CBA provisions that purport to restrict the agency’s right to determine overall levels of telework are likely unlawful and unenforceable. Agencies should not interpret or apply such provisions to prevent compliance with the President’s government-wide directive in Return to In-Person Work. Any midterm bargaining should occur post-implementation.
What Happens Next?
Issues such as telework and the applicability of a union contract will usually go to the Federal Labor Relations Authority (FLRA). Unions will likely file unfair labor practices charges (ULPs) with the FLRA contending that the agencies enforcing the Trump memorandum and the OPM guidance have violated the labor relations statute and did not bargain in good faith.
The American Federation of Government Employees (AFGE) issued a press release confirming the union will challenge the latest steps by the administration. That is not a surprise, as unions have been building up for these events for a few months. AFGE President Everett Kelley was quoted in a press release:
President Trump’s return-to-worksite directive and initial guidance from the Office of Personnel Management explicitly stated that applicable law and collective bargaining obligations must be met. But on Monday, OPM issued another memorandum claiming that hybrid work arrangements set forth in union contracts are “likely unlawful” and should be ignored by agencies to meet compliance with Trump’s directive.
AFGE will not let the lawless actions of this administration or any agency go unchallenged, and we will use every option available to us to defend our contracts and support the hardworking civil servants who serve our country with honor and distinction.
We knew this was coming, of course. The administration and the unions are now gearing up for the next step in this process.
The administration will counter with the arguments outlined in the OPM memorandum regarding the applicability of management rights to telework while the unions will argue the contracts are valid, were signed by agency management (under President Biden) and they are entitled to have the contracts enforced by the FLRA and the courts, if necessary.
What Happens With Federal Employees Working at Home?
Federal employees are, of course, wondering what will happen with their ability to work at home. Predicting the future with accuracy is not possible.
What is probably happen is that agencies will direct most employees to report to work to a federal office on a given date. Most employees will follow that order. If given a direct order, they will probably follow the order. If they do not follow it, they may be terminated for insubordination after failing to follow a direct order from their employer.
Absence of a General Counsel at the FLRA
The FLRA does not have a confirmed General Counsel. The last confirmed General Counsel left the position in 2017. Since then, the FLRA has operated by relying on acting officials to fulfill the role.
In March 2021, President Biden appointed Charlotte Dye as Acting General Counsel. However, her tenure was later found to violate the Federal Vacancies Reform Act.
The nomination of the most recent nominee for the position expired at the end of the 118th Congress without confirmation. In the absence of a Senate-confirmed General Counsel, the FLRA cannot proceed with unfair labor practice charges against agencies.
A similar situation occurred with the Merit Systems Protection Board (MSPB) during the first Trump administration. The MSPB lost its quorum in January 2017 when the last remaining member’s term expired. From 2019 to early 2022, the MSPB had no confirmed board member. The Senate confirmed two members in March 2022, restoring a quorum and allowing the Board to issue decisions again. By the time the quorum was restored, the MSPB had a backlog of over 3,600 cases that had been pending review.
If this situation at the FLRA continues, unions may go into federal court seeking relief in their complaints in the absence of the FLRA’s ability to operate due to the lack of a general counsel.
If this is how the situation proceeds, many federal employees enjoying being able to work at home may find they have to work in a federal office while the case (slowly) proceeds toward a final conclusion after being directed to return to work by their employing agency.
Will this latest action signaling that telework is ending encourage more federal employees to take the deferred resignation offer on the table until February 6th? Some unions are advising federal employees to refuse to sign the resignation letter. Federal employees who do not want to return to working in an office are facing the temptation to take OPM up on the offer and continue to work at home or just collect a check until September 30th without returning to a federal office.
It is an interesting time to be a federal employee.
