By: Mathew B. Tully, Esq.
President Joe Biden’s recent Executive Order (EO) on Protecting the Federal Workforce reverses the limitations on employee due process implemented during the prior administration, particularly as regarded the creation of a Schedule F—which undid nearly all employment protections for employees at the high end of the scale. Not only did the Biden EO highlight which policies of the Trump administration were revoked, but it also included other federal employee benefits such as promoting the progress of a living wage for those employees, as well as ensuring the right to engage in collective bargaining. These efforts are intended to empower, protect, and rebuild the federal workforce, as in Mr. Biden’s words, “[t]he federal government should serve as a model employer.”
Since Schedule F’s inception back in 2020 during the last two weeks of the Trump administration, it has been widely criticized and contested. Schedule F served as a new classification of excepted service federal employees. Those who fell under this category would not be covered by the Civil Service Rules and Regulations. This meant that they could not engage in collective bargaining and were not entitled to any sort of due process in the event they were proposed for termination. The establishment of Schedule F, as a practical matter, gave agency heads the unfettered ability to hire and fire those employees at will. It gave agency heads 90 days to review all of their current positions and consider whether or not they should be moved to Schedule F, with another four months afterwards to finalize those decisions.
Many unions and current career federal employees were worried that if former President Trump won re-election, it would allow for his administration to quickly take control of who works for numerous different Federal agencies. Furthermore, it would have shifted the selection criterion for those positions to be the preference of the agency/presidential administration, rather than the qualifications of the candidate. It was estimated that the number of federal employees this would have effected would range in the tens-to-hundreds of thousands.
With the acceleration of the termination process and removal of due process protections, many federal employees felt unsafe speaking about concerns they saw within their agencies. Without the protections afforded by these rights, such as notice and a timeframe in which to reply to any proposed adverse action, these employees lost one of the most important checks they had on the power their agencies have over their careers.
However, on January 22, 2021, President Biden revoked Schedule F as well as some of the other regulatory actions Mr. Trump enacted when it came to protecting the due process rights of federal employees. As mentioned, the removal of Schedule F was the first thing accomplished by Mr. Biden. He stated in the EO that Schedule F was not only, “unnecessary to the conditions of a good administration, but also undermined the foundations of the civil service and its merit system.” Along with its discontinuance came the suspension of any agency head activity with regard to processing or granting petitions to convert or create new positions in Schedule F.
Furthermore, the EO revoked some of Mr. Trump’s other EO’s that threatened federal employees’ due process rights such as:
• “Executive Order 13836 of May 25,2018 (Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining)”
• “Executive Order 13837 of May 25,2018 (Ensuring Transparency, Accountability, and Efficiency in Taxpayer Funded Union Time Use)”
• “Executive Order 13839 of May 25,2018 (Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principals)”
Along with these revocations, President Biden also ordered for the heads of those agencies who were affected by the former President’s EO’s to suspend, review, and revise any actions taken in compliance with those EO’s.
These changes are a huge win for federal employees and unions as they restore many of the workplace rights and protections that were once standard with these positions. This is especially so in the case of the removal of EO 13839, which greatly hindered settlement actions involving federal employees (e.g. an agency could not change anything contained within the personnel file for an employee as part of a settlement). The revocation of this EO allows agencies and employees better opportunities to come to amicable resolutions in EEOC or MSPB matters. Mr. Biden’s EO seeks to restore the confidence of federal employees to remain apolitical and stand up for workers’ rights without the fear of being fired or replaced.
The Biden administration has made clear that it wants to revoke many of the Trump-era policies in hopes that this would bring back many of the previously guaranteed protections workers enjoyed when it came to due process. The swift action taken by the Biden administration, coupled with proposals such as the $15 minimum wage for all federal employees, indicates a step in the right direction in many federal employees’ eyes, as with it they hope power will be restored to the hard-working employees, rather than be in the hands of their agency heads.
Mathew Tully, Esq is the founding partner of Tully Rinckey PLLC
*The views and opinions expressed in this article are those of the authors and do not necessarily reflect the views, policy or position of this publication.