In the latest of a string of moves to put its stamp on federal workplace policies, the Trump administration is set to propose rules to make employees’ performance ratings a top consideration in deciding who stays or goes during layoffs.
The proposed rules come with a 30-day public comment period. Given the requirement that those comments be considered before rules can be finalized, it’s uncertain whether they could be in place before President-elect Joe Biden takes office Jan. 20. If they are finalized, new rulemaking would be required to repeal them.
The move reflects a provision in a 2018 executive order stating that “agencies should prioritize performance over length of service when determining which employees will be retained following a reduction in force.”
That order, along with two others issued at the same time, reflected a general view by the Trump administration that federal personnel policies should be more results-oriented and that management should do more to hold employees accountable while limiting the role unions play in workplace decisions.
Following those orders, the already-testy relations between the administration and employee unions and their Democratic allies deteriorated further.
The administration in October finalized rules under one of those orders, essentially cutting employee protections in disciplinary cases to the minimum required by law.
The newly proposed regulations would affect procedures that agencies use when cutting their workforces for reasons such as reorganizations or budget restrictions, basically creating a pecking order among employees.
Under current procedures used by most agencies, employees first are divided according to whether they are in “permanent” jobs or those with time limits. Those in the latter category always would be the first to go, but if still more layoffs are needed, the permanent employees are ranked according to whether they are military veterans and then by years of federal employment, with a formula using their last three annual performance ratings.
The exception is the Defense Department, where performance ratings have been the top consideration among permanent employees since early in 2017 under a law that predates the Trump administration.
Under the proposed rules, employees in permanent jobs would be sorted first by their three most recent performance ratings, using a different formula than is now used. Status as a military veteran would be next, and length of service would be used “as a tie-breaker” for employees otherwise ranked equally, the rules say. The new rules would still require time-limited employees be let go first.
Jacque Simon, public policy director of the American Federation of Government Employees, criticized the proposal.
“There’s nothing objective about performance ratings,” she said. “Performance ratings are highly subjective, under Trump they were highly politicized, and now this.”
She said it was “doubly outrageous” that the value of military service would be lessened.
The RIF policies are a major element of civil service protections, even though in practice they have been little used in recent years. Since 2015, the annual number of RIF separations ranged from only 136 to 411, with only 56 through June of this year, out of a workforce — excluding intelligence agencies and the semi-independent U.S. Postal Service — of 2.1 million.
However, the number of people laid off reflects only part of the disruptions that occur during RIFs. Employees in eliminated jobs in some cases may be able to displace lower-ranked employees, who in turn may displace others. For those let go, there are job placement rights, appeal rights and severance pay entitlements.
Trump administration officials continue to carry out policies issued just before the election stripping most civil service protections from tens of thousands or more employees whose work involves making or carrying out policy and requiring a review of diversity and inclusiveness training that has largely suspended such training government-wide.
Legislation is pending in Congress to block the order to change the status of policy jobs, which sponsors are working to attach to an upcoming agency funding bill. Democratic leaders of the House Oversight and Reform Committee on Tuesday again protested the order on training, saying it has “shut down initiatives across the nation — inside and outside the federal government — meant to combat bias and discrimination in the workplace.”
Meanwhile, they have introduced legislation to require a review of “midnight” regulations issued near the end of the Trump administration that could be subject to repeal by Congress under the Congressional Review Act.