OPM looks to repeal federal workforce policies impacted by Trump executive order

The Office of Personnel Management plans to repeal several Trump administration workforce policies focused on making it easier to fire federal employees.

The Office of Personnel Management plans to repeal several Trump administration workforce policies focused on making it easier to fire federal employees and discipline poor performers.

OPM, in a notice that will be published in the Federal Register on Tuesday, is looking to repeal a number of Trump administration policies, one of which prevents agencies from removing or changing information in a federal employee’s personnel record as part of a settlement agreement.

OPM said it would rescind the Trump administration’s prohibition on these so-called “clean record” agreements after receiving “continued objections” over the policy.

The policies stem from one of three executive orders former President Donald Trump signed in May 2018 focused on the federal workforce.

OPM will accept comments on its proposed rule through Feb. 3. It expects the proposed rule change will impact more than 80 federal agencies, from cabinet-level departments to small, independent agencies.

President Joe Biden, just days after taking office, repealed the Trump administration’s workforce executive orders. OPM, in the following months, issued new guidance to agencies detailing the steps to immediately repeal the Trump orders.

OPM said agencies had a “limited opportunity” to implement the Trump-era federal workforce policies, but is looking planning to further remove any impact the repealed EO still has on the federal workforce regulations.

That includes a final rule OPM issued in November 2020, outlining federal workforce policy changes under the now-repealed Trump executive order.

OPM said provisions of that final rule “are inconsistent with the current policy of the United States to protect, empower and rebuild the career federal workforce.”

Final regulations under the now-repealed Trump EO also gave federal employees less time to respond to potential allegations of poor performance or misconduct and shortened the governmentwide timeframe for Performance Improvement Plans (PIPs), last-chance opportunities for federal employees flagged for removal or demotion to turn around their performance.

These Trump-era policies also clarified that agencies have no specific requirement to help employees show improvement.

James Eisenmann, a partner at Alden Law Group, which specializes in representing federal employees, and a former executive director and general counsel for the Merit Systems Protection Board, said the ban on clean-record agreements frustrated both legal counsel for federal employees and agencies.

“That, I think, had significant damage to federal-sector practitioners, and employees and agencies, because it took away a very useful mechanism to resolve federal employee cases,” Eisenmann said.

While the Trump administration billed its policies as a way for agencies to remove poor performers from the federal workforce more quickly, Eisenmann said these policies, especially the ban on clean-record agreements, actually gave agencies fewer tools and less flexibility to handle personnel matters.

“It’s not always pawning off a bad employee. Sometimes you have, particularly [with] discrimination cases, not always somebody who’s got a poor performance or misconduct, but some other issue where a change in the records doesn’t make them suddenly look on paper to be good. It’s something that helps them and helps agencies resolve cases,” Eisenmann said.

During the public comment period for the draft regulations in September 2019, OPM received nearly 1,200 responses from federal employees, managers, unions and other organizations, who warned that banning clean-record agreements would give agencies fewer options to resolve personnel issues.

Commenters also warned the ban would increase litigation costs and would put an additional burden on third-party adjudicators such as the Merit Systems Protection Board, the Office of Special Counsel and the Equal Employment Opportunity Commission.

Eisenmann said OPM’s proposed rule change, once finalized, would phase out a “big chunk” of the Trump administration’s policies on employee performance and conduct issues.

OPM specifically plans to restore language that would require agencies to offer assistance to employees “in improving unacceptable performance,” and would direct supervisors to continually monitor performance, provide ongoing feedback and assist employees struggling with performance issues.

OPM said the current language “placed unnecessary restrictions and limitations on agencies regarding decisions on when performance assistance is provided to employees.”

“By placing these restrictions on agencies, OPM believes it was not supporting agencies and supervisors in determining the most effective assistance for struggling employees,” OPM wrote.

OPM is also looking to repeal a provision that requires agencies to notify supervisors at least three months out, and then again a month out, from when a newly hired employee’s probationary period expires, and to determine whether that employee should remain on the job.

Agency supervisors can more easily remove federal employees during their probationary period for reasons such as an inability to perform the duties of the position, lack of cooperativeness or other indications of poor performance.

OPM said the regulation “placed unnecessary requirements” on how agencies handled the probationary period for new hires and “prevented agencies from implementing policies most suitable for each respective agency based on their unique circumstances.”

While OPM plans to rescind the governmentwide requirement for agencies to notify supervisors about when an employee’s probationary period ends, it said agencies can continue to provide these kinds of notifications to supervisors, “and are strongly encouraged to do so.”

“While agencies are encouraged to notify supervisors that an employee’s probationary period is ending, OPM believes the frequency and timing of notifications should be left up to the discretion of each agency,” OPM wrote.

OPM said the ban on clean-record agreements limited agencies’ ability to resolve informal and formal complaints at an early stage, “in a manner that balances the needs of the agency and fairness to the employee,” and with minimal costs to the agency.

“While agencies may derive some value from having access to unaltered personnel records when making hiring decisions, OPM believes it should place greater weight on granting agencies a degree of flexibility to resolve individual workplace disputes,” OPM wrote.

OPM is reminding agencies that a clean-record agreement doesn’t prevent agencies from giving a full account of an employee’s performance to federal investigators performing background investigations, “and may not agree to withhold information about the circumstances of an individual’s departure from the agency.”

OPM plans to keep some regulatory amendments in effect, including procedures for disciplinary action against supervisors who retaliate against whistleblowers and the inclusion of appeals rights information in proposal notices for adverse actions.

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