OPM moving ahead with new instructions designed to more quickly fire, discipline employees

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The Trump administration is moving forward with plans to shorten the time it takes to fire or discipline federal employees for poor performance or misconduct.

The Office of Personnel Management will propose new regulations Tuesday to implement portions of the president’s May 2018 executive order on federal employee firing and discipline. The provisions at issue are ones that haven’t been enjoined in the ongoing court battle with federal employee unions.

“OPM has and will continue to comply fully with the injunction and will not issue regulations implementing the invalidated parts of the executive order as long as the judicial injunction is in place,” the proposed rule reads.

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The Trump administration is still locked in a series of legal battles with federal employee unions, which originally sued over the president’s workforce executive orders on employee firing, collective bargaining and official time last summer. A federal district court invalidated nine key provisions of those executive orders last August.

Legal battles surrounding the federal district court’s August 2018 decision have continued, but the injunction on those nine provisions remains in place.

Yet the courts haven’t touched several other provisions of the president’s three workforce executive orders, leaving OPM room to regulate and advise agencies on the implementation of them, especially the EO on employee firing and discipline.

“In keeping with merit system principles, the President’s Management Agenda recognizes that federal employees underpin nearly all the operations of the government, ensuring the smooth functioning of our democracy,” OPM wrote. “The federal personnel system needs to keep pace with changing workplace needs and return to its root principles.”

Most of the regulations are designed to help agencies more quickly fire or discipline employees for poor performance, OPM said.

For example, the proposed regulations essentially give federal employees one chance to improve their performance before an agency can propose some sort of disciplinary action.

The new OPM regulations instruct agencies to tighten up the opportunities they give to help employees improve their performance.

“There is no specific requirement regarding the nature of any assistance provided during an opportunity period and is not determinative of the ultimate outcome with respect to reduction in grade or pay, or a removal,” the regulations read. “The proposed rule also states that no additional performance improvement period or similar informal period to demonstrate acceptable performance to meet the required performance standards shall be provided prior to or in addition to the opportunity period under this part. This change supports the stated principles of [the executive order], which provide that removing unacceptable performers should be a straightforward process furthering effective stewardship of taxpayer money.”

In addition, the new regulations set a shorter time frame for employees to respond to potential allegations of misconduct or poor performance.

OPM will accept public comment on these proposed regulations through  Oct. 17.

New penalties for supervisors who retaliate against whistleblowers

Notably, the new OPM regulations also create mandatory, specific penalties for supervisors who have been found to have retaliated against whistleblowers. These penalties are brand new.

“These provisions reinforce the principle that increased accountability is warranted in situations where a supervisor commits a prohibited personnel action against an employee of an agency,” the OPM regulations read.

For the first incident of a prohibited personnel action, agencies must at least impose a three-day suspension for the supervisor. They also have the option of reducing a supervisor’s grade or pay, according to OPM.

For the second incident, agencies must propose removing the supervisor.

Agencies have 14 days to issue a final decision about a proposed personnel action against a supervisor in this situation, according to OPM, and supervisors have 14 days to respond.

“At the conclusion of the 14-day reply period, the agency shall carry out the proposed action if the supervisor fails to provide evidence or provides evidence that the head of the agency deems insufficient,” the regulations read.

Again, agencies are not required to use “progressive discipline” when considering some sort of personnel action against supervisors who have retaliated against whistleblowers.

Fewer chances to settle

The regulations also instruct agencies not to erase, remove or change information about an employee’s performance or conduct in that worker’s official personnel records.

Agencies and employees in the past would often agree to remove or exclude these details from an employee’s official file as a way to more quickly and easily settle a dispute over an adverse personnel action — and incentivize an employee to voluntarily leave the agency.

In return, an employee with a clean record could get another job with another agency or organization. Moving forward though, agencies generally can’t remove information about an employee’s performance or conduct, unless the personnel action itself is canceled.

“This new requirement is intended to promote the high standards of integrity and accountability within the federal workforce by requiring agencies to maintain personnel records that reflect complete information and not to alter the information contained in those records in connection with a formal or informal compliant or adverse action,” the regulations read. “It is further intended to ensure that those records are preserved so that agencies can make appropriate and informed decisions regarding an employee’s qualification, fitness and suitability as applicable to future employment.”

Probationary period end date reminders

In addition, agencies should notify supervisors 90 days before and again 30 days before the end of an employee’s probationary period to determine if the employee is fit to continue working at the organization.

“OPM believes this requirement will assist agencies in making more effective use of the probationary period,” the agency wrote. “Agencies have discretion to determine the method for making this communication but are encouraged to make use of existing automated tools to facilitate timely notifications.”

In addition, the regulations instruct agencies to report on the number number of its employees on probationary periods, the number of personnel actions it took and the outcomes of those actions, among other details. OPM will compile and publish agency reports every year.

The National Treasury Employees Union, which is part of the group of unions still engaged in legal battles with the Trump administration over the president’s workforce executive orders, said the OPM regulations sacrifice fairness in the disciplinary process for the “sake of expediency.”

“Just like the executive orders before it, the new rules from OPM are based on the false premise that federal employees are not held accountable for their performance,” NTEU National President said Monday in a statement to Federal News Network. “In fact, existing civil service laws and the General Schedule contain all the tools a manager needs to reward good performers and discipline poor performers. The failure to use those tools effectively is the fault of management, not employees.”

The American Federation of Government Employees said the proposed regulations assume managers can’t work with employees to improve their performance.

“If these rules go into effect, they will green-light arbitrary and discriminatory discipline against employees who will have little recourse to challenge poor or politically corrupt management,” AFGE National President J. David Cox said Tuesday in a statement.

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