For example, the rules emphasize management’s discretion to order penalties up to firing in cases of alleged misconduct regardless of whether an agency had taken lesser actions against the employee first and regardless of how it had responded in some similar past situations.
For cases of alleged poor performance, agencies would have more leeway in fulfilling their obligation to help employees try to improve before taking disciplinary action.
Most of the changes would put in place the parts of a May 2018 executive order from President Trump that are not affected by a court injunction blocking portions of that order and two others issued at the same time.
In proposing the rules for a 30-day comment period, the Office of Personnel Management said that “failure to address unacceptable performance and misconduct undermines morale, burdens good performers with subpar colleagues, and inhibits the ability of executive agencies to accomplish their missions.”
After issuing proposed rules, an agency must review the comments and respond to them when issuing final rules, which may included changes. There is no deadline for those steps. Further, changes in federal personnel policies commonly don’t take effect until OPM later issues guidance to agencies.
Leaders of the two largest federal employee unions, though, said in statements that the rules would remove important protections.
“These proposed regulations encourage management by fear and intimidation and assume that managers are incapable of working with employees to help them improve their performance,” said American Federation of Government Employees president J. David Cox. “If these rules go into effect, they will greenlight arbitrary and discriminatory discipline against employees who will have little recourse to challenge poor or politically corrupt management.”
“With these rules, OPM directs agencies to take the shortest route possible to firing federal workers while at the same time opening the door to favoritism, retaliation and discrimination,” said National Treasury Employees Union president Tony Reardon. “The proposed regulations minimize the substantive right that employees be given time to improve their performance, and they sacrifice fairness for the sake of expediency.”
However, Jason A. Briefel, executive director of the Senior Executives Association, said the changes could help steer the government “toward a system that focuses on outcomes and resolution instead of leaving things in limbo.”
“We have always said there are adequate protections in the law and the regulations, but the whole system has become about the process rather than the outcome for the agency and the public,” he said in a telephone interview. “We’re focused on all these rules and regulations rather than managing ourselves as professionals.”
Civil service law requires that before agencies take disciplinary action on performance grounds, employees must be given a notice of their shortcomings and an “opportunity to demonstrate acceptable performance.”
Practices vary among agencies; commonly they use “performance improvement plans,” which may involve additional training, mentoring and heightened monitoring and guidance by supervisors. Some have committed to giving employees a certain amount of time to improve and providing informal help before beginning a formal improvement program.
However, the proposed rules say that agencies are not to provide any “additional performance improvement period or similar informal period” beyond the formal period.
The rules similarly would discontinue any “tables of penalties” that agencies have created for determining penalties for various types of misconduct, saying that the law does not require such tables and that they can tie management’s hands. They further tell agencies not to follow a practice of “progressive discipline” — a series of ever-more-severe penalties.
“There is no legal principle in the Federal Government that requires agencies to impose the least penalty to rehabilitate an employee. . . . Agencies should not require that an employee have previously been suspended or reduced in pay or grade before a proposing official may propose removal, except as may be appropriate under applicable facts,” the proposed rules say.
Also when choosing a penalty, agencies would have to consider an employee’s “disciplinary record and past work record, including all prior misconduct,” not just similar misconduct.
While they should consider what was done in a past similar situation in the same work unit and under the same supervisor, “conduct that justifies discipline of one employee at one time by a particular deciding official does not necessarily justify the same or similar disciplinary decision for a different employee at a different time,” the rules proposal says.
When actually carrying out a disciplinary action, it adds, agencies should stick as closely as possible to the minimum 30-day delay the law provides for employees to respond to the charges in all but the most serious cases, and to aim to make a final decision within 15 days afterward.
The rules also would:
●Order agencies to use the probationary period for newly hired employees, during which they have very limited rights to contest discipline, “to the greatest extent possible to assess how well they are performing the duties of their jobs; and instances of poor performance and misconduct should be dealt with promptly.”
●Prevent agencies from consenting, as part of a settlement with an employee who challenged a disciplinary action, to remove any information regarding the employee’s conduct or performance from their personnel files.
●Require that agencies take disciplinary action against supervisors who retaliate against whistleblowers, with penalties ranging from a three-day suspension to firing for the first offense and required firing for a second.