Fedweek

Since issuing the proposed rules, OPM has issued several sets of guidance telling agencies to comply with the orders as soon as possible and to use their discretion over discipline up to the limits in law.

OPM has projected finalizing in March proposed rules to give management greater discretion and control over disciplinary policies while giving employees accused of poor performance less of an opportunity to improve before being disciplined.

The rules, which OPM proposed in September—and whose comment period expired in October—would carry out many of the provisions of three executive orders on disciplinary and union related matters that are now in effect following the lifting of a court injunction against some parts of all three. OPM projected the March date in a notice of ongoing and planned rule-making activities.

Many of the disciplinary-related aspects of those orders had not been subject to the injunction imposed last year by a lower court but the proposed rules were not issued until after an appeals court had said it would lift the ban.

Among other things, the rules would:

-Tell agencies to choose up to the maximum penalty regardless of the employee’s disciplinary record or what was done in prior similar situations;

-Strongly discourage them from committing to using progressive discipline or tables of penalties on grounds that they hinder management’s discretion;

-Refuse to agree in negotiations to limits on their discretion;

-Require that managers be notified when a probationary period is about to expire and give the employee stronger appeal rights;

-Bar agencies from removing certain information from employees’ personnel files as part of settlement agreements; and

-Generally limit the period for an employee to respond to a disciplinary notice to the 30 days guaranteed by law, after which agencies would make a final decision within 15 days.

Further, any measures taken during a yearly performance appraisal cycle to assist an employee, not just those taken during a formal performance improvement opportunity period, would meet an agency’s obligation under law to give the employee a chance to improve.

Once an agency has met that obligation, it could order discipline up to firing if the employee’s performance continued to be unacceptable in one or more critical elements of the job.

The rules also would carry out a 2017 law requiring disciplinary action against a management official found to have retaliated against a whistleblower—at least a three-day suspension and up to firing for a first offense, and mandatory firing for a second.

In formal comments, unions have raised numerous objections to both the letter and the spirit of the proposed rules, which they characterized as pushing agencies to take more, and more severe, disciplinary actions than currently.

Since issuing the proposed rules, OPM has issued several sets of guidance telling agencies to comply with the orders as soon as possible and to use their discretion over discipline up to the limits in law. That essentially put many of those policies in effect pending finalization of the rules.