OPM finalizes removal of several Trump-era federal workforce policies

New regulations from the Office of Personnel Management will officially repeal several workforce policies that the Trump administration finalized in 2020.

The Office of Personnel Management finalized several changes to federal workforce policies from the end of the Trump administration.

Many of the Trump-era policies, made official in late 2020, centered on making it easier and quicker to discipline or fire poor-performing federal employees. The policies came out of three different executive orders that former President Donald Trump signed in May 2018, focused on the federal workforce.

President Joe Biden rescinded many of the policies in an executive order on protecting the federal workforce, which he signed just days after taking office. Shortly after, OPM gave agencies guidance on how to start working to repeal the orders from the Trump administration.

Now OPM has announced final regulations to officially remove several of the Trump-era policies. The final rule followed OPM’s initial plan to repeal the policies, which the agency published in January, then allowing time for public comments. The comments ranged from “enthusiastic support” to “categorical rejection.”

“Many of those in support of the regulatory changes cited the benefit of returning more discretion to agencies to allow them to best manage the federal workforce with efficiency and effectiveness,” OPM said in its final rule from Nov. 10.

The Trump-era regulations were only in place for a brief time, before Biden overturned them, meaning agencies had a limited opportunity to actually take action.

“This rule will relieve agencies of the administrative burden of implementing the November 2020 regulatory amendments to the extent that agencies did not already have such policies and practices in place,” OPM said.

The workforce policies from the Trump administration were “inconsistent with the current policy of the United States to protect, empower and rebuild the career federal workforce, as well as its current policy to encourage employee organizing and collective bargaining,” OPM added.

Under the now-rescinded 2020 final rule, for instance, agencies had no specific requirement to help employees show improvement following poor performance. Additionally, the rule shortened the time that employees could respond to allegations of poor performance or misconduct.

“The November 2020 amendments placed restrictions and limitations on agencies regarding decisions on when performance assistance is provided to employees that, upon further consideration, were unhelpful. These constraints removed previous flexibilities enjoyed by agencies in addressing performance issues with their employees,” OPM said.

One of the policies in particular prevented agencies from revising or removing information on a federal employee’s personnel record in a settlement agreement. OPM’s rule to reinstate so-called “clean-record” agreements gained support from employees, employee representatives and unions.

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 prohibition on clean-record agreements since 2020 made it extremely difficult, if not impossible, to resolve many cases.

“It’s an effective tool for employees, employee advocates and agency attorneys, for resolving employee disputes. Not having that tool has meant that a lot of cases that didn’t need to get litigated, had to be litigated,” Eisenmann said in an interview with Federal News Network. “Without that prohibition, many cases could have resolved without the need for litigation. Clean-record agreements allow the parties to come to an easier resolution.”

Clean-record agreements can also have significant impact on an employees’ ability to get hired in the future, Eisenmann said.

“Any form of discipline, from a one-day suspension to a removal, remains on that employee’s permanent federal record forever,” he said. “Secondly, if the person engages in similar misconduct in the future, the agency may take a greater action, like firing them.”

Some commenters on OPM’s initial proposed rules disagreed with the agency’s decision to restore clean-record agreements. Those against the regulation said that clean-record agreements were wasteful of taxpayer dollars, or unlawful. But OPM disagreed with these comments.

“Rather than adverse consequences for taxpayers, the numerous benefits of clean-record settlements have been detailed by agencies and stakeholders as providing greater efficiency and effectiveness,” OPM said. “These significant advantages include minimizing the burden of the substantial cost of litigation in relation to the issues at stake and achieving a result that benefits agencies and taxpayers. Further, this rule is not unlawful or arbitrary.”

In another part of the final rule, OPM removed a regulation that previously discouraged the use of progressive discipline. The practice is intended to let agencies consider lesser repercussions before immediately moving to fire an employee.

“If someone engages in some form of minor misconduct, maybe they’ll receive a short suspension. But if they do something like that again, then there will be more serious discipline imposed, including possible removal,” Eisenmann said.

Additionally, the regulations will lift the 15-day time limit for an agency to make final decision on a proposed employee removal, after receiving the employee’s response. Agencies will now be able to adopt their own timeframes.

Federal employees will also now get an opportunity to improve their performance following discipline, and agencies will be required to help them do so. But OPM left the length of time for that opportunity to improve up to individual agencies. Agencies should take into consideration the type of job and what the performance issues are to decide how much time to provide. It could be anywhere from 30 to 90 days, or more, depending on the individual situation.

“There are some jobs where you can gauge someone’s performance on a daily basis, but there are other jobs that require a lot of preparation and a lot of involvement from other people, that may require more time,” Eisenmann said.

OPM also repealed the requirement that an employee suspension should not substitute for a removal, and lifted another requirement that agencies must consider an employee’s entire disciplinary record when taking an adverse action. Additionally, the final rules confirmed that dual status National Guard technicians have appeal rights with the MSPB.

The policy changes will help agencies better address unacceptable performance or employee misconduct, with more flexible options for repercussions, OPM said. The regulations will go into effect on Dec. 12.

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