Three proposed changes to the process to remove federal employees

The Office of Personnel Management wants to make it easier to remove federal employees for performance or misconduct reasons.

In a new 81-page proposed rule set to come out tomorrow, OPM and the Merit Systems Protection Board (MSPB) are jointly seeking to change the administrative procedures used to fire employees and the review process for such actions before the board.

“There are a lot of reasons – and solutions – but simply put, we have made the disciplinary and removal process too complicated and inefficient such that it’s easier for managers to ignore under-performance than to address. No manager wants to spend 6, 12 or even sometimes 18 months trying to manage out an under-performing employee. That changes now,” wrote OPM Director Scott Kupor in a blog post on the proposal. “[E]ven for those employees who truly are under-performing, the federal government does not do a good job at managing out (or successfully rehabilitating) these employees. Instead, too often, managers either ignore performance issues or … transfer under-performing employees to other groups or agencies. This does not serve the American people well, nor does it create a high-performance culture in which the many great federal employees we have can do their best work. In general, I have found that employees want to be in an environment where they can perform at their best, be rewarded and recognized for their performance, have a manager who cares about their career development and work alongside other smart, diligent, dedicated and accountable colleagues. When we don’t create that kind of environment for federal employees, we risk losing and de-motivating our best performers; that serves nobody well.”

The draft regulations make three significant changes.

First, OPM is requiring new and more training for managers and supervisors for how to deal with employee performance or misconduct issues. “The proposed rule also reduces the interval for training to supervisory, managerial and executive positions from once every three years to annually, to ensure such personnel are well-versed in the use of actions, options and strategies to oversee and manage the productivity of their workforces. The proposed rule modifies four existing subjects and adds eight new ones agencies must incorporate into their annual trainings for supervisors, managers, and executives under 5 CFR 412.202(b),” the draft regulations state.

The new topics include the effective use of probationary and trial periods, awards, bonuses and other forms of employee recognition; and addressing reports of hostile work environment, retaliation, or harassment.

Second, OPM wants to limit performance improvement plans (PIPs) to 30 calendar days and no longer allow for pre-PIPs. OPM says current regulations do not put a time limit for an employee to demonstrate acceptable performance, which results in lengthy opportunity periods because managers are risk adverse, which leads to a longer process and dissuades managers from initiating removal procedures.

“The proposed changes will also preclude agencies and employees from engaging in settlement agreements that obscure, modify and remove from an employee’s personnel files documented poor performance or misconduct,” the draft regulation state. “The proposed regulations also require, to the extent practicable, that leaders, supervisors, and managers render decisions on a proposed removal within 30 calendar days and, therefore, require them to devote more time to such decision making. Relatedly, agencies whose personnel are subject to these proposed changes will be required to update their internal disciplinary policies and procedures.”

Douglas factors too rigid?

Third, MSPB is proposing to change its appeal process by no longer following what is commonly referred to as the “Douglas factors,” which are 12 considerations agencies should use in every adverse action case.

OPM says the Douglas factors, which came from a 1981 Department of Veterans Affairs case and have been upheld by the circuit court over the last 45 years, are not statutorily required and the “rigid application” of them doesn’t necessarily uphold merit principles.

Kupor said in his blog post that the review of these factors is often very mechanical and can create “foot-fault” decisions against the manager for failing to properly document each of them in sufficient detail.

“Instead of this checkbox process, the MSPB would now apply a ‘totality of the circumstances’ test to review the reasonableness of the proposed adverse action. We think this will be much more efficient and sensible review that protects the rights of employees without elevating form over function,” he said.

In the proposed rule, MSPB stated, “MSPB therefore proposes to amend its regulations at 5 CFR part 1201 regarding its review of the agency’s choice of penalty to make clear that it will no longer apply the 12 Douglas factors but, instead, will consider the penalty in each case under the totality of the circumstances.”

MSPB is proposing to “replace [the Douglas factors] with a new test for assessing whether an agency’s chosen penalty under chapter 75 is reasonable. Under the proposed 5 CFR 1201.56(b)(3), MSPB will evaluate whether an agency’s penalty is within the tolerable limits of reasonableness in light of the totality of the circumstances. MSPB will make this determination on a case-by-case basis; no particular set of factors must be considered in every case.”

OPM and MSPB will be accepting comment on the proposed changes for 30 days.

Concerns over the draft regs

Former MSPB officials and the American Federation of Government Employees (AFGE) expressed concerns about the proposed changes.

AFGE National President Everett Kelley said in a statement that the proposed rule would unravel nearly 50 years of established precedent.

“Our current rules are designed to ensure that all workers are treated fairly and that all agencies act lawfully, impartially, and consistently when proposing to discipline employees,” Kelley said. “The administration’s proposed rules would do the opposite – opening the door to politically or personally motivated actions that will undermine the integrity of our nonpartisan civil service.”

Raymond Limon, a former MSPB vice chairman and appointee during the administration of President Joe Biden, who retired in 2025, said the fact that OPM and MSPB issued the rule jointly calls into question the independence of the board.

“That’s a fundamental shift in the balance Congress struck between agency management and independent review,” Limon said. “Congress created the MSPB to provide independent appellate review of personnel actions. When the adjudicative body jointly develops regulations with the executive agency whose policies it’s supposed to review, observers will naturally ask whether that separation of roles is still functioning — both in fact and in appearance.”

He said this may be the first time ever that OPM and MSPB issued a joint rule.

Limon pointed to a similar situation during the Biden administration where the two organizations remained distinct and separate in their rulemaking.

“OPM was concerned about reappearance of Schedule F and issued regulations to say if any future administration moves people into an excepted service schedule, they could go to MSPB for review. OPM basically granted MSPB jurisdiction in their regulations,” he said. “A few weeks later, the board says to be consistent with OPM’s regulations, they issued their own rules for how to process those appeals. Each organization put their own spin on it and didn’t issue it together.”

Proposed limits on PIPs

A former federal human resources executive, who requested anonymity because they didn’t get permission to speak to the press from their current employer, said improving the process to remove employees for performance or misconduct is admirable, and certain aspects like requiring more training are important changes.

But, the former official said, the limit of the 30-day PIP, which is a carryover requirement from the first Trump administration, seems to be an attempt to exclude this from future collective bargaining with unions. They said negotiating longer PIP terms was a common factor in negotiations.

Related to the 30-day PIP limit, the official said eliminating the use of progressive discipline measures also stood out. OPM says agencies should determine the appropriate discipline for each instance of misconduct and not base it on some sort of pre-conceived factors.

“The tables of penalties was never required by law or OPM regulations, but served as a guide for proposing and deciding officials. Additionally, third parties often have held it against the agency if they deviated from table of penalties,” the former executive said. “OPM also says suspension is not substitute for removal when appropriate. This is another revival from first term and it seems to me that they are seeking maximum penalties for misconduct as much as possible.”

Both Limon and the former official raised concerns about the decision by OPM and MSPB to abandon the Douglas factors.

“On the merits, I don’t think the record supports abandoning the Douglas factors. They’ve been the common language of federal employment law for 45 years, shared by agencies, the board, the Federal Circuit and practitioners. Notably, the NPRM itself quotes Douglas cautioning against a ‘mechanistic’ or ‘formulaic’ application of the factors — which means the very decision being discarded already warned against the problem the agencies are citing to justify discarding it. That’s a reason to clarify how Douglas should be applied, not a reason to abandon it,” Limon said. “This isn’t a new observation on my part — it’s what the board itself has said, repeatedly, since 1981. Douglas explicitly described the factors as illustrative, not a mandatory checklist to be mechanically applied in every case. The Federal Circuit reinforced that same understanding in Nagel v. Department of Health and Human Services, rejecting the notion that Douglas requires factors to be considered and addressed one by one in every case. The board has had over four decades of opportunities to correct rigid or checklist-driven application of Douglas through its own case law. That it hasn’t fully succeeded in changing that practice is a criticism of implementation and enforcement — not evidence that the framework Congress and the board built is itself broken.”

The former official added they expect the removal of the requirement to use the Douglas factors is one area where legal challenges are likely, should the rule be finalized without significant changes.

“It’s not like agencies were losing a lot of cases before MSPB as a reason to do away with Douglas factors,” the former official said. “I’d be surprised to hear if there were many managers unhappy with these factors.”

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