Fedweek

fedweek.com Image: Mark Van Scyoc/Shutterstock.com

A new OPM memo on three executive orders issued in May underscores that the provisions of those orders that remain in effect—despite a court ruling against other portions—could have a significant impact on federal employees.

The new memo makes a distinction between sections of the orders that set goals for agencies to achieve in bargaining, which remain in place, versus specific positions for them to take in negotiations that the court invalidated as violating protections for unions under federal labor-management law. Those positions could be imposed as final policies regardless of union opposition.

The judge blocked provisions to:

– set time frames for negotiating ground rules and then for reaching a contract;
– bar agencies from bargaining over matters that are negotiable at management’s;
– limit to 30 days the “performance improvement periods” before taking disciplinary action on performance grounds;
– discontinue the long-standing practice of providing unions with free use of office space and agency equipment;
– limit official time to one hour per bargaining unit employee annually and further restrict its allowable uses;
– exclude from negotiated grievance processes disciplinary actions, the assignment of performance ratings, or the award of any form of monetary incentive.

The court meanwhile left in place instructions on discipline:

– agencies should consider all of an employee’s past misconduct, not just similar misconduct;
– agencies need not use progressive discipline;
– agencies need not suspend an employee first if the infraction merits removal;
– agencies need not apply the same penalty that was used in a previous similar case involving another employee.

Also undisturbed were provisions telling agencies to:

– use their powers to remove employees during the probationary period when employees have fewer appeal rights;
– consider using, in performance-related cases, disciplinary procedures that don’t require giving the employee a chance to improve first;
– 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;
– better educate supervisors and managers on how to carry out discipline; and more.

Of those, OPM has issued implementing guidance only on the provision regarding removing information from personnel files as part of settlement agreements.

OPM further was instructed to make performance the first retention factor in RIFs government-wide, a policy already in effect at DoD.