The three executive orders issued last week by President Trump on disciplinary and union-related matters represent one of the most substantial changes in civil service policies since the 1978 Civil Service Reform Act—and leave questions about whether Congress will undertake, at least this year, to rewrite that law as the administration has advocated.
The orders address many arguments of that law that the administration and many Republicans in Congress have raised for years. They have asserted that it ties management’s hands in holding employees accountable for misconduct or poor performance, that it allows for union involvement in agency operation decisions that should be only in management’s realm and that agencies are subsidizing unions by proving working space and on-the-clock time for some employees to perform union-related duties.
However, while the orders tell agencies to speed up the disciplinary process, they do not shorten deadlines for employees to appeal discipline to the MSPB or lower the standard of proof the agency must present there, as did a 2017 law applying only to the VA that the administration has cited as a model. Also, the orders do not address the administration’s benefits-related proposals including higher employee contributions to retirement, cuts to the value of those benefits, combining sick and annual leave into one category, and strengthening the linkage between pay and performance. All of those would require changes in law.
But by addressing many Republican priorities administratively, the orders may have undercut what little enthusiasm that GOP leaders on the Hill had shown for undertaking a major reform this year. A recent House hearing showed that any effort to fundamentally revamp federal employee due process rights and benefits would face deep divisions between the parties. Such an effort could consume much of a legislative working year shortened by planned long recesses in advance of the November elections. While Republicans have a sufficient majority in the House to pass bills without Democratic support, the same is not true of the Senate. Results of the elections meanwhile could change the calculus for the new Congress starting in January.
In a statement following the orders, OPM director Jeff Pon turned his attention to administrative matters that would not require approval of Congress. He said that “Looking ahead, our focus will be on continuing to leverage technology to digitize our federal human resources infrastructure, build modern public human resources systems for the 21st century, and celebrate the hardworking federal employees who serve our great nation each and every day.”
