OPM offers more guidance on Trump’s employee removal EO

The Office of Personnel Management on Wednesday offered up more specific guidance on a small piece of the president’s May 25 executive order on employee removals.

In a new memo, OPM clarified that agencies should not “erase, remove, alter or withhold from another agency” information about an employee’s performance or conduct from his or her official personnel folder or employee performance file. In addition, agencies shouldn’t explicitly agree to leave out information about a personnel action as a condition to resolving or settling an employee’s appeal or complaint about that action.

It’s the first piece of public guidance that agencies have received from new acting OPM Director Margaret Weichert, who took on the OPM job Friday afternoon after President Donald Trump replaced his prior personnel director, Jeff Pon.

The provision was designed to “promote the highest standards of integrity and accountability in the federal workforce,” Weichert said in OPM’s “interpretive guidance.”

“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,” the memo reads. “It is for this reason that agencies are directed not to remove or otherwise modify information contained in a personnel file as a means of resolving an employee-initiated action.”

The guidance makes sense, considering the Trump administration also instructed agencies in the same executive order to consider past performance over employee tenure when making reductions-in-force.

OPM encouraged agencies to be slightly more lenient in two specific situations.

Agencies should, for example, remove information from an employee’s file that is inaccurate — even if an employee has filed an appeal or complaint related to the details in question. They should also report any agreements that a department has made with an employee to remove certain information, OPM said.

In addition, agencies also have the authority to remove record of a proposed personnel action from an employee’s file if the organization decides to cancel the disciplinary action. This may happen as agencies receive more information and evidence about a specific personnel situation.

Human capital experts have said agencies often used this as an incentive or a bargaining chip to persuade employees to voluntarily drop an appeal of a personnel action or simply quit altogether. Removing information from an employee’s official personnel file is a tool that agencies and employees have used to avoid a lengthy legal process.

Weichert’s new memo isn’t the first piece of guidance that agencies have received about implementing these executive orders, but it is the first memo that addresses a provision that hasn’t yet been explicitly struck down in federal district court.

The District Court for the District of Columbia in August invalidated nine provisions of the president’s executive orders on employee removals, official time and collective bargaining. Most of the provisions that were invalidated deal with collective bargaining procedures and certain limitations on official time.

The Trump administration earlier this month requested an expedited appeal of the federal district court’s ruling. Government attorneys filed their motion within the U.S. Court of Appeals for the District Columbia Circuit.

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