Federal Manager's Daily Report

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The Senior Executives Association has voiced concerns about OPM’s recent proposal to revoke rules it issued late in 2020, saying the repeal would result in uncertain policies in areas including performance management and disciplinary actions.

The SEA was commenting on proposed rules to erase rules that had been issued to carry out 2018 Trump administration executive orders that in sum told agencies to cut back protections for employees to the minimum required by law in those and several other areas. President Biden revoked those orders soon after taking office and OPM then told agencies not to carry out the policies pending a formal move to take the 2020 rules off the books, which the recent notice would accomplish.

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For example, one element of the Trump-era orders and rules was to stress the use of the probationary policy in evaluating new employees and taking actions up to firing if necessary before they gain full appeal rights, including regular reminders to supervisors when such a period is about to end. The SEA pointed to studies by the MSPB and others concluding that agencies are not making the best use of the probationary period for reasons including that supervisors sometimes aren’t aware of the ending date for an employee.

“When the probationary period is wasted, employees are not set up for success and may be entrenched in roles they cannot perform . . . This issue is too important to leave up to agencies, who have proven themselves incapable of self-regulation and proper use of the probationary period,” it said.

The SEA further argued for leaving in place 2020 rules stressing to agencies that the law requires agencies to take only certain steps before taking disciplinary action on grounds of poor performance. “OPM’s proposed regulation would return performance management to allow for additional processes not provided for in the plain language reading of the statute,” it said.

It similarly argued for leaving in place provisions of the 2020 rules barring agencies from agreeing to so-called “clean record” settlements of disputes over discipline, in which they would remove references to the proposed action from the employee’s official records. “When an agency is correct about an action, the employee record should honestly reflect that as well. The proposed regulations do not create balance, they would revoke the existing balance,” it said.

The SEA added that it is “extremely concerned” about eliminating provisions in the 2020 rules that stressed agency discretion in choosing disciplinary penalties and that strongly discouraged using practices that have built up since passage of the Civil Service Reform Act such as tables of penalties and progressive disciplinary schedules.

Said the SEA, “OPM is responsible for providing government-wide guidance on a robust statutory scheme which Congress has amended repeatedly over 40 years, with thousands of pages of accompanying regulations, and 40 years of accompanying case law. Absent additional, specific guidance by OPM, the system is not clear at all and will continue to provoke confusion in the employing agencies.”

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