Fri, 10/23/2020
The Office of Personnel Management (OPM) issued new regulations last week that will make it easier for federal agencies to discipline and fire “underperforming” employees. The Final Rule, which becomes effective November 16, 2020, implements key provisions of President Trump’s 2018 Executive Order and will:
- Shorten the time and formal opportunities employees have to improve their performance or respond to potential allegations of poor performance before an agency can recommend discipline;
- Clarify that agencies have no specific requirement to help their underperforming employees improve, or to provide an improvement period longer than the law requires;
- Require agencies to remind supervisors of an employee’s expiring probationary period, giving the employer an opportunity to take disciplinary action before a new hire secures the due process rights of full-fledged federal employment; and
- Prohibit agencies from agreeing to strip adverse personnel actions, or otherwise alter an employee’s record, in exchange for the employee’s resignation as part of a settlement agreement.
The Rule also establishes stricter penalties and mandatory procedures for disciplining supervisors who retaliate against whistleblowers. Under OPM’s new regulations, agencies must at least impose a three-day suspension for a first offense of whistleblower retaliation, and after the first offense, they can propose firing the supervisor.
OPM reports that it received nearly 1,200 comments from federal employees, managers, unions and other organizations, many of which opposed the proposed regulations. Many labor groups and individual commenters expressed a desire to remain under the current civil service system, fearing the new regulations would erode federal employees’ due process protections and give too much power to supervisors “with no corresponding accountability.” In addition, unions said the disciplinary changes are arbitrary, unnecessarily harsh, and eliminate a meaningful opportunity period for federal workers to improve their performance.
Consistent with the Executive Orders, OPM dismissed unions’ calls for more reasoned and equitable approaches, stating, “[We] disagree with the commenters’ contention that the proposed rule does not streamline and clarify procedures and requirements to better support managers in addressing unacceptable performance and pursuing adverse actions. We decline to make changes based on these comments because the proposed rule effectuates changes that, in fact, make procedures more efficient and effective.”
OPM has indicated that it may make additional, anti-worker changes to the Rule in the future, consistent with the President’s express policy goals, which include removing adverse personnel actions from union grievance procedures and standardizing the length of performance improvement plans at 30 days.
For more information about federal workers’ rights, visit MSE’s Federal Employees page at https://www.mselaborlaw.com/resources/federal-employees.
