OPM tells agencies to ‘fully comply’ with recent court ruling on executive orders

The Office of Personnel Management has told agencies they must comply with the federal district court’s recent ruling, which invalidated nine key provisions of the president’s executive orders on collective bargaining, official time and employee removals.

U.S. District Court Judge Ketjani Brown Jackson ruled late last week that nine provisions of the Trump administration’s executive orders conflicted with the spirit and intent of the Civil Service Reform Act and Federal Labor-Management Relations statute.

“OPM will fully comply with Judge Jackson’s order and encourages other agencies to consult with their offices of human resources and general counsel to determine proper compliance measures based on the order,” Director Jeff Pon wrote in a memo to agency heads, chief human capital officers and HR directors. “OPM will work with the U.S. Department of Justice to evaluate next steps in this litigation and will provide additional guidance to agencies as appropriate.”

OPM’s latest memo rescinds certain aspects of prior guidance, which it issued to agencies back in July, related to the provisions the federal district court recently invalidated. All other provisions of the president’s EOs remain in effect, Pon said.

Federal unions started contacting agency labor specialists and negotiators as early as Monday, asking that they revoke the recently invalidated provisions and return to the state of previously existing affairs before President Donald Trump had signed the three executive orders.

OPM’s new guidance gives agencies the official go-ahead to make those changes, but it leaves the door open for a possible appeal. In a statement given Monday to Federal News Radio, the Justice Department said it was disappointed in the court’s decision and was exploring “next steps to ensure the President is able to fulfill his constitutional duties, run an effective and efficient government, and protect taxpayers from waste and abuse.”

Several unions and federal employment experts have said they expect the Trump administration will appeal. No appeal, however, will happen quickly, and guidance is necessary to help agencies comply with the court’s recent ruling.

Specifically, the judge enjoined the following provisions in the president’s EOs:

• The imposition of a 25 percent cap on the use of official time,
• The prohibition against employees’ right to petition and communicate with Congress,
• The ban on the use of official time by union representatives to prepare and present grievances,
• The one-hour per bargaining unit employee formula to be applied to set an aggregate cap on the use of official time,
• The limitations placed on unions’ use of agency facilities, such as office space and computers,
• The exclusion of challenges to performance ratings and incentive pay from the scope of the negotiated grievance procedure,
• The limitation of performance improvement periods (PIPs) to 30 days, with agencies alone having the discretion to apply longer periods,
• The direction to agencies to press for the exclusion of removals from the scope of the negotiated grievance procedure, and,
• The prohibition against bargaining over the “permissive” subjects.

More than a dozen federal unions, led by the American Federation of Government Employees (AFGE), National Treasury Employees Union (NTEU) and National Federation of Government Employees (NFFE) had consolidated their own separate lawsuits and sought summary judgement on four separate motions before the U.S. District Court for the District of Columbia.

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