OPM finalizes new policies intended to more quickly discipline poor performers

The Trump administration has finalized changes to federal employee disciplinary procedures, clearing the way for agencies to fully implement the president’s 2018 executive order designed to more quickly fire poor performers.

The Office of Personnel Management will issue final regulations Friday, which will describe a wide variety of changes to the way agencies attempt to improve poor performance, discipline employees and give them an opportunity to appeal those actions.

They also set brand new penalties for supervisors who retaliate against whistleblowers.

The new regulations, which will be official in mid-November, will:

  • Shorten the time and formal opportunities employees have to improve their performance before an agency can recommend a disciplinary action
  • Clarify that agencies have no specific requirement to help their employees improve
  • Set shorter times for employees to respond to potential allegations of poor performance or misconduct
  • Require agencies to remind supervisors of an employee’s expiring probationary period
  • Restrict agencies from removing or changing information in an employee’s official personnel record as part of a settlement agreement
  • Set mandatory procedures to discipline supervisors who retaliate against whistleblowers

These regulations build on the executive order President Donald Trump issued more than two years ago, as well as the administration’s priorities in the Presidential Management Agenda, OPM said.

“The federal personnel system needs to keep pace with changing workplace needs and carry out its core functions in a manner that more effectively upholds the public trust,” OPM said.

OPM first issued these proposals in the form of draft regulations last fall, when portions of the president’s 2018 executive orders were still enjoined in federal district court. The U.S. appeals court lifted the injunction on the EOs a few weeks later, leaving agencies free to implement all provisions.

Now, OPM is fully implementing the order, though more changes may come later.

“As the previously enjoined portions of the executive order are now fully effective and binding on executive agencies, OPM anticipates proposing additional revisions to regulations, pursuant to the Administrative Procedures Act’s notice-and-comment process, consistent with the president’s expressed policy goals,” the agency said.

Since OPM first published draft regulations a year ago, it received 1,198 comments from federal employees, managers, unions and other organizations.

Union members submitted many comments, with many of them using some sort of pre-written template to express their opposition, OPM said.

“Commenters, including labor organizations, generally expressed concern that these changes, separately and together, would weaken or vitiate the procedural rights or protections of federal employees,” OPM said. “One commenter asserted that, at a time when protections for federal workers should be strengthened, this proposed rule weakens protections. Many national unions, organizations and individual commenters expressed a desire to remain under the current system with its existing protections, citing too much power being given to managers and supervisors with no corresponding accountability, at the cost of destroying a properly functioning workforce.”

OPM dismissed the vast majority of the concerns. But the comments, as summarized by OPM, seem to illustrate the current divide between agencies — many of whom described the current disciplinary procedures as overly burdensome and onerous — and federal unions who said the proposed changes were “unfair” and “unnecessary.”

Those in favor of the upcoming disciplinary changes “noted that progressive discipline has grown within most agencies to the point of being a roadblock in many instances to removals or suspensions that would promote the efficiency of the service because there was no prior discipline,” according to OPM.

Unions, however, said the disciplinary changes eliminate a “meaningful opportunity period for federal workers to improve performance and save agency resources.”

One union said the limit on performance improvement periods was “arbitrarily harsh” and questioned whether federal employees would be penalized for not making progress as quickly as the agency wanted.

Reminding supervisors of an expiring probationary period, some management associations said, could help agencies better assess whether new employees are well-suited and able to contribute to their organizations.

The group pointed to a recent study from the Merit Systems Protection Board, which found agency supervisors rarely use the probationary period to weed out poor performing new employees.

In contrast, unions said the new rule was “deceptive” and questioned whether it would lead to more managers questioning their hires.

According to OPM, many applauded the new penalties for supervisors who retaliate against whistleblowers.

Under OPM’s new regulations, agencies must at least impose a three-day suspension for a first offense of whistleblower retaliation. After the first offense, agencies can propose firing the supervisor.

“We believe that the regulations reinforce the responsibility of agencies to protect all whistleblowers from retaliation,” OPM said. “These regulations help to undergird and support agencies in meeting their requirements to take action against ‘any’ supervisor who retaliates against whistleblowers. Accordingly, different levels of the workforce are subject to the increased accountability and protections.”

Management organizations also encouraged OPM to ensure agency supervisors and executives receive training on these disciplinary changes. OPM agreed, citing the president’s original 2018 executive order, which requires the director and the Chief Human Capital Officers Council to engage in a governmentwide training initiative to “educate federal supervisors about holding employees accountable for unacceptable performance or misconduct,” the regulations read.

The American Federation of Government Employees denounced OPM’s final regulations Friday afternoon, adding that it plans to review its legal options.

“It’s worth noting that none of the concerns raised by our comments were addressed in the final rule,” Everett Kelley, national AFGE president, said in a statement. “In the meantime, we expect the Trump administration to make more desperate attempts to corrupt the civil service. Assuming Vice President Biden wins the November election, we will be calling on him to immediately reverse these and other anti-worker decisions.”

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