OPM aims to ‘clarify, reinforce’ protections against Schedule F, but some experts say it won’t be enough

This story was updated Sept. 15 at 3:27 p.m. with comments from OPM Deputy Director Rob Shriver.

With concerns growing around a possible return of Schedule F, the Biden administration is taking a step to try to safeguard career federal employees against its potential effects.

The Office of Personnel Management issued a proposed rule Friday that seeks to clarify and reinforce merit system principles and other worker protections for career, non-political feds.

The rule comes in direct response to the now-revoked Schedule F executive order from the Trump administration. The order sought to move about 50,000 career federal employees in policy-determining, policy-making or policy-advocating positions to a new job classification outside merit system principles. If implemented, the order would have made these workers at-will and easier to fire.

The Trump administration touted the order as a way to give agencies flexibility and hold federal employees accountable for poor performance. But it quickly gained massive pushback from federal unions and other organizations who said it would politicize the workforce and strip critical protections from federal employees. President Joe Biden rescinded the order in his first few days in office before agencies were able to implement it.

But with several Republican presidential candidates vowing to cut down the federal workforce and reinstate a similar policy to Schedule F, the Biden administration is aiming to hedge against these efforts in the future.

What is OPM planning to change?

Under OPM’s proposed rule, federal employees who may in the future be moved into a Schedule F-type excepted service would still receive notice of an adverse action and be given an opportunity to respond. Additionally, the rule states that employees’ civil service protections cannot be removed unless the individual gives them up voluntarily.

In a move to specifically enforce protections for career civil servants, the proposed rule also clarifies that the definition of “policy-determining, policy-making or policy-advocating” positions is specifically referring to non-career, political appointments.

“These positions do not have civil service protections, and this proposed rule would prevent that exception to those protections, which is aimed at political appointments, from being misapplied to career civil servants,” OPM said in a press statement.

Additionally, the proposal aims to establish a process in the case that agencies do look to move positions from the competitive service to the excepted service. In this process, agency officials would have to review each request and employees would have the opportunity to respond.

“This change would create transparency and an appeals process for federal employees when any such movement purports to strip them of their civil service protections,” OPM said.

A proposed rule can be “easily undone”

Still, many of those who are against Schedule F said they are concerned that a proposed rule won’t be enough to prevent its return. A future presidential administration could still issue another executive order or its own proposed rule to drive forward on reclassifying employees outside merit system principles.

“The good news is they’re trying. The bad news is, this can be just as easily undone as it would be to establish,” former Federal Salary Council Chairman Ron Sanders said in an interview.

But others said the government’s rulemaking process is more robust than, for example, an executive order. Proposed rules have to go through comment and adjudication processes, which can often take months. OPM Deputy Director Rob Shriver said the new proposed regulation is based in law and has strong rationale.

“We will go through the public comment period and will address comments and make any adjustments we need. But we are confident in the strength of our proposed regulation,” Shriver told Federal News Network. “Anyone who wants to explore a change in policy would have work to do. They’d have to go through the same administrative rulemaking process and make sure that their policy is grounded in the law.”

In Congress, Democratic lawmakers are making efforts to codify anti-Schedule F legislation, a path that could also provide greater reinforcements. Sen. Tim Kaine (D-Va.) and Rep. Gerry Connolly (D-Va.) reintroduced a bicameral bill earlier this year, the Saving the Civil Service Act, aiming to prevent future presidential administrations from enacting any Schedule F-type policy. But beyond its introduction, the bill has so far not had any action from either chamber.

Kaine and Connolly said OPM’s proposed rule serves as an “important first step” to protect merit-based principles and prevent politicization of the federal workforce.

“I’m glad to see the administration is taking action to safeguard our merit-based hiring system,” Kaine said in a press statement. “I’ll continue pushing for my Saving the Civil Service Act to codify these protections into law.”

“There are those who would stop at nothing to denigrate federal employees and exert untoward influence over what should be purely apolitical functions of the federal government,” Connolly said in a statement. “For the sake of our democracy and the dedicated public servants who make it work, they must not prevail.”

But since the bill is largely supported by Democrats, “chances are very slim now with a Republican House that it’s going to be successful,” said Sanders, a longtime federal workforce expert.

Sanders added that he’s concerned about lawmakers potentially taking action on the Congressional Review Act (CRA). In certain circumstances, the law lets members of Congress review and potentially overturn administrative rules that the executive branch issues.

Still, the CRA requires approval from both congressional chambers and a sign-off from the president, so the possibility of action is slim.

“OPM deserves credit for trying to do what it’s trying to do. But at the end of the day, I think it’s just not going to be successful,” Sanders said.

The National Treasury Employees Union said the proposed rule came after the union filed a petition in December 2022 to request that OPM address the established rule in the wake of the Schedule F saga.

“We never want another attempt at Schedule F but just in case, this rule establishes some important guardrails to ensure that whatever is done is consistent with civil service laws and regulations,” NTEU National President Doreen Greenwald said in a statement. “The merit-based civil service is a critical part of our democracy, and no one should be able to undo that by executive order.”

Other federal unions were quick to respond to the announcement from OPM and the Biden administration.

“We applaud President Biden’s administration for taking concrete steps to protect the integrity of the civil service against those who seek to politicize routine government work and undermine our democracy,” American Federation of Government Employees National President Everett Kelley said in a statement.

“The proposed amendments to the federal regulations are critical to preserving accountability and transparency within government as a foundational pillar of our open democracy,” National Federation of Federal Employees National President Randy Erwin said.

The proposed rule from OPM will be published to the Federal Register and will remain open to public comments for the next 60 days.

“The proposed rule honors our 2.2 million career civil servants, helping to ensure they can carry out their duties without fear of political reprisal,” OPM Director Kiran Ahuja said in a statement. “Career federal employees deliver critical services for Americans in every community. Prior attempts to needlessly politicize their work risked harming the American people. These professionals are vital to our national security, our public health, our economic prosperity and much more.”

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