In cases of alleged misconduct, for example, the rules say that agencies need not follow the common practice of “progressive discipline”— increasing penalties for repeat or more serious violations — but instead must “adhere to the standard of proposing and imposing a penalty that is within the bounds of tolerable reasonableness.”
Agencies further are to consider “all applicable prior misconduct” and are not to substitute lesser penalties when removal would be appropriate, the rules say. Also, officials “are not bound by previous decisions in earlier similar cases” but should apply “their own managerial authority and responsibilities and independent judgment.”
Everett Kelley, president of the American Federation of Government Employees, said his union will review the new rules and weigh its legal options. “These rule changes erode key protections for civil servants that will make it easier for federal agencies to discriminate against federal employees and fire them for political reasons,” he said in a statement.
Rep. Gerald E. Connolly (D-Va.), chairman of the House subcommittee on government operations, called the Trump administration’s action “another unwarranted attack on the federal civil servants working tirelessly” during the coronavirus pandemic. “The new rule is a blatant attempt to cloak political retaliation in legitimacy,” Connolly said in a statement.
The rules carry out one of three executive orders President Trump issued in May 2018 about federal workers. A federal judge soon afterward agreed with federal unions that the rules overreached into protections guaranteed to federal employees by law and issued an injunction against many of the provisions of all three.
However, a year later, an appeals court lifted that injunction, saying the dispute must go through internal government channels first.
The changes have been advocated by Republicans who have sought to rein in the size and reach of the federal bureaucracy.
In comments published in the Federal Register on Friday, the Office of Personnel Management said that disciplining misbehaving or underperforming employees “will enhance the experience of well-performing employees, because poor performing employees place a resource strain on more productive employees and damage morale generally.” It cited an annual government-wide employee survey in which only about a third of employees say their agencies deal with poor performers effectively.
The new rules stress that while agencies must provide an employee deemed to be underperforming a chance to improve before taking disciplinary action — known in the government as performance improvement plans — the law does not require the additional help that some agencies offer beyond that period.
“No additional performance assistance period or similar informal period shall be provided prior to or in addition to the opportunity period provided under this section,” they say.
Also, agencies are to use the probationary period for newly hired employees “as fully as possible to determine the fitness of the employee and shall terminate his or her services during this period if the employee fails to demonstrate fully his or her qualifications for continued employment.” During that period, typically one or two years, employees lack the full range of civil service appeal rights.
The rules do not revoke employee appeal rights after any discipline is taken. However, they tell agencies to limit the period for an employee to respond to a notice of proposed discipline to the 30 days the law requires, and to issue a final decision within 15 business days afterward.
Other provisions include that agencies must not consent in a settlement to erase information from the employee’s official files unless it was put there in error; must take disciplinary action against management officials who retaliate against whistleblowers, including mandatory firing for a second offense; and must annually report detailed information on discipline they have taken.
The notice consumes 49 pages of small type in Friday’s Federal Register, only five of which cover the rules themselves; the rest reflect OPM’s responses to nearly 1,200 comments it received after proposing the rules last September. By OPM’s own recounting, that response was largely negative, with commenters using terms including “senseless and wrong,” “morally questionable,” “abhorrent” and “toxic.”
Concerns included that the policies would leave federal employees in “constant fear of being removed over minor infractions” and that they “would weaken or vitiate the procedural rights or protections of Federal employees,” OPM said. Unions further argued that the rules will erode protections under negotiated contracts.
OPM, though, said that the rules “simply provide direction to agency officials exercising the discretion afforded to them by law, including the right to discipline employees and the right to hire . . . Employees will still receive notice of a proposed adverse action, the right to reply, a final decision and a post-decision review of any appealable action, that is, what the Constitution requires.”
However, Mauricus Lofton, an attorney with the Washington office of the Tully Rinckey law firm, said that progressive discipline allows employees to learn from their mistakes and that consistent treatment of employees in similar situations is a key test of fairness.
“What this is doing is opening the door to allowing agencies to impose disparate penalties on employees and opening the door to discrimination as well,” he said in a phone interview.
From 2005 through 2019, firings of federal employees on charges of misconduct or poor performance have ranged from about 10,000 to about 12,000 a year, with the numbers on the higher end during the Trump administration, OPM figures show.
Those figures do not account for other types of disciplinary actions such as suspensions and downgrades, nor do they reflect employees who resign when faced with discipline in order to avoid having it in their official records. There are about 2 million federal employees.
Of those who were fired, 41 percent were still in their probationary periods, which typically last one year and in some cases two years, according to a 2015 report from the Merit Systems Protection Board, which hears appeals in disciplinary cases.
In a report the following year, the MSPB added that federal supervisors said the greatest barrier to removing federal employees for misconduct was the agency’s culture, not civil service policies themselves — which were in fourth place, behind support from top management and personnel offices for a supervisor attempting to take such an action.
In its notice, OPM added that some commenters supported the rules, including federal agencies that said the changes “will give more discretion to supervisors to remove problematic employees and shorten the years-long process for getting rid of poor performers and those with misconduct issues, thus increasing the efficiency of the service.”
The topic of least opposition involved the provision requiring discipline of supervisors who are formally found, by the MSPB or other authority, to have retaliated against a whistleblower. That provision, based on a 2017 change in law, not on the 2018 executive orders, requires a penalty of at least a three-day suspension and up to firing for a first offense and mandatory firing for a second offense.
The other two executive orders mainly involved policies for agencies to follow in labor negotiations. Some agencies have started applying those policies during new bargaining while unions have filed numerous legal challenges that remain pending.