Trump admin reshaping federal employee discipline, firing rules

The rules governing discipline and removal procedures for federal employees are on track for a major overhaul.

A slew of proposed regulations and executive orders from the Trump administration — along with recent court decisions and upcoming hearings — are reshaping how agencies handle adverse action processes for the federal workforce.

On the whole, Trump administration officials say the changes aim to boost employee accountability across government, while rooting out poor performers and anyone unwilling to carry out lawful presidential orders.

“In order to affect the policy priorities of the administration, we need to have people willing to and capable of carrying out those directives,” Office of Personnel Management Director Scott Kupor said in June, speaking about the new Schedule Policy/Career classification.

But others in the federal community say the administration’s personnel policy revisions would undermine merit system principles, employees’ due process and other critical aspects of federal workforce integrity. Dan Meyer, a national security lawyer at Tully Rinckey PLLC, sees a clear pattern across the recent changes.

“All these decisions are of a whole cloth: Restoration of a strong executive branch, reversing the congressionally forced reforms following Watergate and the abuses by the FBI during the Civil Rights Movement and the war in Southeast Asia,” Meyer told Federal News Network. “The presidency was weakened in the last third of the 20th century; now the Justice Department and the director of OPM are using new and existing authorities to crack down on the president’s own employees and appointees. And the Congress seems perfectly happy to leave the changes unchallenged.”

Ditching the Douglas factors

In one key proposal, OPM and the Merit Systems Protection Board are seeking to overhaul the procedures agencies use when firing employees, as well as the adverse action review process at MSPB.

Proposed regulations earlier this month look to change MSPB’s longstanding appeals process by forgoing the “Douglas factors” — 12 considerations, dating back to 1981, that agencies use to justify adverse actions against employees.

MSPB and OPM argued that the Douglas factors have made employee discipline policies too rigid. Instead, they proposed making determinations about whether an agency’s adverse action is reasonable on a case-by-case basis, with no specific factors that must be considered.

“Accountability and high performance go hand in hand,” Kupor said last week. “This proposed rule gives federal managers better tools to address performance issues efficiently while ensuring employees are evaluated under a fair, consistent process. These reforms will help agencies better recognize excellence, address poor performance and ultimately deliver better results for the American people.”

Some critics of the proposed regulations, however, said the changes would open the door to bias, inconsistency and politically motivated actions against federal employees.

“What we are seeing is the methodical implementation of a system where nonpolitical career employees can be fired for doing their job correctly but inconveniently, and where they will have nowhere to go for a fair, independent second look,” Tim Whitehouse, executive director of Public Employees for Environmental Responsibility, told Federal News Network. “Historically, that’s why Congress created and built up the merit system of federal service over the past 150 years — to prevent political patronage, loyalty tests and retaliation against people who catch waste, fraud or abuse or who won’t rubber-stamp something of questionable legality.”

Reshaping ‘suitability’ rules

A separate final rule from OPM this month means federal employees now face the possibility of being disciplined or fired for misconduct based on the government’s “suitability and fitness” standards.

The rule change allows for expedited firings of federal employees if they are deemed to no longer meet the government’s suitability and fitness standards, which historically applied only to federal job applicants.

“For too long, the federal government has had stronger tools to prevent someone with serious misconduct from entering public service than to address the same misconduct once that individual is already employed,” OPM Director Scott Kupor said Monday. “This rule closes that gap.”

The final rule also expands the factors agencies must consider to determine if federal employees should keep their jobs, such as timely tax filing, citizenship requirements and compliance with “any applicable nondisclosure obligations.”

It follows a separate OPM proposal to implement broad NDA requirements for federal employees — another effort facing significant pushback from many in the federal community.

“What is amazing to me is that all of this is being done without Congress passing one law or providing any meaningful oversight of the administration’s proposals,” Whitehouse said.

Schedule Policy/Career now in effect

A June 3 executive order from President Donald Trump means close to 8,000 career federal employees have officially lost their civil service protections, giving agencies leeway to fire them at-will.

OPM originally estimated 50,000 career employees would be moved to the new schedule, leading some to question whether there will be an eventual expansion of the reclassification list, although White House officials say no such plans are currently underway.

Schedule Policy/Career employees are ineligible for federal adverse action proceedings and cannot appeal their transfers into the new employment category. They also now must go through their agency’s internal general counsel office regarding prohibited personnel practices, rather than the independent Office of Special Counsel.

Administration officials say Schedule Policy/Career is meant to hold employees in “policy-influencing” roles more accountable and ensure they are carrying out presidential directives. Under the new employment classification, OPM said agencies can “act more quickly on serious performance or conduct issues.”

John Gibbs, director of the Roe Institute for Economic Policy Studies at the Heritage Foundation — the conservative think tank that published and organized Project 2025 — expressed support for the administration’s effort.

“We don’t want to have a system where when you elect a new president, no matter what party they belong to, the bureaucratic system is so deeply entrenched that no change is going to be made,” Gibbs said in a recent interview. “Many people feel that we were going in that direction, where there is such a large, bureaucratic machine that even if a president wanted to implement changes, they wouldn’t be able to do so.”

But Jules Torti, counsel at Protect Democracy, told Federal News Network that she sees the Trump administration’s personnel process changes, taken together, as a “complete revolution” in internal government operations.

“Together these changes mean more control by political leadership, fewer substantive protections and much more limited availability to seek outside neutral review of the government’s personnel-related decisions,” Torti told Federal News Network. “One major concern is how this increases risk of bias or selective application of the rules — which could mean political bias, bias against certain work or simply personal bias.”

Protect Democracy and PEER are two of several organizations suing the Trump administration over the implementation of Schedule Policy/Career.

Expanding presidential firing powers

Recent court decisions are also reshaping presidential authority across the executive branch. A landmark Supreme Court decision last month paved the way for dramatically expanded presidential power to fire the heads of independent agencies.

The 6-3 ruling involves the case of former Federal Trade Commission member Rebecca Slaughter, whom Trump fired without cause despite a provision of federal law that requires a reason. The court held that presidents have free rein to fire agency heads at-will, despite laws requiring a cause for such dismissals and a 91-year-old decision, called Humphrey’s Executor, that had limited executive authority for decades.

The decision extends to other independent agencies, including the MSPB, National Labor Relations Board and Consumer Product Safety Commission, where the president has also fired board members.

Separately, the U.S. Court of Appeals for the Federal Circuit is expected to hold a rare “en banc” hearing this fall, in a case involving two immigration judges whom the Department of Justice fired last year. DOJ cited constitutional authority in the termination decisions, which the employees argue is unlawful and in violation of their civil service protections.

The upcoming appeals court hearing comes after MSPB in March upheld the DOJ firings, reversing an administrative judge’s initial ruling last August. The outcome of the case could determine presidential firing authority of career federal employees more broadly.

Appeals processes headed for an overhaul

Even more changes involving federal employee removal procedures are still coming down the pipeline. Over the last several months, OPM has proposed various regulations to overhaul appeals processes for employee removals due to a suitability action, a probationary period firing and a reduction in force (RIF).

Currently, MSPB is the deciding entity for employee appeals in all three categories. But if implemented, OPM would give itself the exclusive authority to decide employee appeals in all three types of adverse actions. The three separate proposals, all currently pending finalization, are meant to speed up adverse actions, reduce costs and ease the burden on agencies.

But federal employment attorneys have said the anticipated changes would turn federal employee appeals into a “rubber stamp” mechanism, rather than having a full and independent adjudication process.

“If this overhaul succeeds, federal for-cause removal protections will be a Swiss cheese layer of protection,” Torti said. “They will nominally be there, but there are so many holes that federal employees may not feel as confident doing their jobs neutrally and professionally without fear of politically motivated reprisal.”

The Associated Press contributed reporting.

If you would like to contact this reporter about recent changes in the federal government, please email drew.friedman@federalnewsnetwork.com or reach out on Signal at drewfriedman.11

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