Although many of the disciplinary-related provisions in the three Trump administration executive orders that have been under legal challenge since their issuance in May 2018 were never subject to the court injunction that has now been lifted, most still are not in effect.
However, that could change relatively quickly in light of the lifting of the injunction against other provisions and the administration’s push to carry them out to what an OPM memo calls their “full force and effect.” Those provisions might be in place well ahead of those that must work their way through the negotiations / FLRA / court appeal process.
OPM recently issued proposed rules to carry out most of those provisions, and could move at any time to finalize those rules once the comment period ends October 17. In a further sign, the OPM recently set a deadline of next April for agencies to comply with a 2017 OMB memo telling them to streamline their disciplinary procedures and eliminate any “that are not required by statute or federal regulation.”
General disciplinary guidance in the orders included that agencies should:
– make full use of the probationary period during which employees have fewer appeal rights;
– no longer agree, as part of settlements with employees, to remove information about their performance or conduct from their personnel files;
– speed up the notice and decision process;
– collect and publish information on disciplinary actions;
– better educate supervisors and managers on how to carry out discipline; and
– require OPM to issue rules elevating performance over longevity in RIF retention.
Regarding disciplinary action on conduct grounds, the orders say that agencies: should consider all of an employee’s past misconduct, not just similar misconduct; need not use progressive discipline—ever-more-serious penalties for more serious infractions or repetition of the same one; need not suspend an employee first if the infraction merits removal; and need not apply the same penalty that was used in a previous similar case involving another employee, although they should “consider” what was done previously.
Regarding actions on performance grounds, agencies are to: consider using disciplinary procedures that don’t require giving the employee a chance to improve first; and limit “performance improvement periods” to the minimum 30 days required by law and not commit, in bargaining or otherwise, to any form of assistance to under-performing employees beyond that requirement.
The recent OPM rules proposal covered virtually all of those topics with the notable exception of the one involving RIF retention.