OPM is undoing rules it issued in late 2020 to carry out executive orders that formed the backbone of the Trump White House’s approach to federal personnel.
While President Biden revoked those orders within days of taking office – and OPM later barred agencies from carrying out those policies, OPM is now taking the formal step of proposing to take them off the books entirely.
OPM had issued those rules under a set of three 2018 executive orders that were designed to give management greater discretion in carrying out disciplinary actions by discouraging them from providing employees with anything more than the minimum protections guaranteed by law.
Among other provisions, the 2020 rules: told agencies they need not follow principles of progressive discipline and need not take the same action in a given case that they took in a prior similar case; discouraged the use of tables of penalties; stressed that a penalty decision should take into account all past misconduct; said that a suspension “should not be a substitute for removal in circumstances in which removal would be appropriate”; limited the period for an employee to respond to a notice of proposed discipline to the 30 days minimum in the law; required agencies to remind supervisors several times of the impending end of an employee’s probationary period; and barred agencies from entering settlements that would require agencies to remove certain information from an employees official personnel folder.
The rules also told agencies they need not take any steps beyond the minimum requirement that they assist employees in improving performance deemed unacceptable before they are subject to disciplinary action, and that assistance provided before a formal notice of unacceptable performance can count toward that obligation.
In proposing to remove those rules, OPM said the Trump-era policies “are inconsistent with the current policy of the United States to protect, empower and rebuild the career federal workforce as well as its current policy to encourage employee organizing and collective bargaining.”
It said that the 2020 rules actually would decrease the discretion agencies have in disciplinary cases by limiting their options. “Each action stands on its own footing and demands careful consideration of facts, circumstances, context and nuance,” it said, adding that standards for judging the reasonableness of a penalty are “already embedded deeply in federal civil-service law.”
It further said the policies regarding performance improvement opportunities “placed unnecessary restrictions and limitations on agencies regarding decisions on when performance assistance is provided to employees” and “removed previous flexibilities enjoyed by agencies in how to address performance issues with their employees.”
Similarly, the “the prohibition of clean record agreements hampers agencies’ ability to resolve informal and formal complaints at an early stage and with minimal costs to the agency,” it said.