Fedweek

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OPM has told agencies to comply with a court ruling invalidating portions of all three of President Trump’s executive orders on disciplinary and union-related matters; it also told them to continue carrying out the parts that were not affected and indicated that the administration is actively considering an appeal.

In a memo to agencies, OPM listed the provisions the court blocked and said that prior guidance on carrying them out “should be considered rescinded.” Those provisions mainly involve matters that the court found to interfere with the rights of unions to negotiate over amounts and allowable uses of official time and what can be challenged through the negotiated grievance process.

Also enjoined were provisions imposing agency positions as final policy if negotiations are not finished within certain time frames; barring bargaining over matters that are negotiable at management’s discretion; barring agencies from providing unions with free use of office space and equipment; and limiting performance improvement periods to 30 days while disallowing bargaining over their length as well as over several other performance-related matters.

Several major departments and agencies had acted aggressively to carry out at least some of those provisions before the court intervened. In those cases, unions are pressing for quick compliance on matters ranging from a return to their former office space and a reversal of restrictions on telework and alternative work schedules. OPM encouraged agencies “to consult with their offices of human resources and general counsel to determine proper compliance measures based on the order.” The unions say that in the days after OPM’s memo, agencies have been more responsive but overall compliance remains mixed.

OPM stressed in its memo that “all other provisions of the executive orders not enjoined remain in effect.” These include several provisions designed to speed up the agency decision-making process in disciplinary cases and giving agencies greater leeway in deciding what penalty to impose. There has been little noticeable impact of those provisions, since the effect would be mainly seen only if employees would formally challenge decisions made under those standards, a process that would take months.

Further, OPM said it “will work with the U.S. Department of Justice to evaluate next steps in this litigation and will provide additional guidance to agencies as appropriate.”