Fedweek

OPM has told agencies that they must bring their internal disciplinary policies into compliance with recently-finalized government-wide rules by the end of this month.

Those general policies include limiting agency obligations to employees before disciplining them for alleged poor performance; having management make full use of its discretion in discipline for alleged misconduct; requiring them to take disciplinary actions against officials who retaliate against whistleblowers; and more.

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A memo reminds agencies that under the 2018 executive order that was the basis for those rules, agencies must come into compliance within 45 days after the rules took effect, which was November 16. OPM said it will work with agency HR offices “to educate federal supervisors about holding employees accountable for unacceptable performance or misconduct under these regulations.”

That order was one of three issued at the same time—one involving general bargaining policies and practices and the other specifically on official time—that are widely expected to be repealed promptly by the Biden administration. However, while the other two remain only in the form of easily overridden executive orders, new rule making likely will be required to repeal the disciplinary policies—a longer and more difficult process.

OPM highlighted provisions including that the rules:

* Require agencies to remind supervisors three months in advance, and again one month in advance, of the upcoming end of a subordinate’s probationary period—after which an employee gains standard appeal rights—and that supervisors must an affirmative decision whether to keep the employee.

* Stress that before taking disciplinary action on performance grounds, agencies need not take any steps beyond a basic requirement in law that they first give them an opportunity to improve.

* Stress that a penalty decision in a misconduct case is at management’s “sole and exclusive discretion” and not to be limited by practices such as progressive discipline, tables of penalties or prior similar cases.

* Generally limit the period for an employee to respond to a notice of proposed discipline to the 30 days minimum required by law and generally require agencies to issue a final decision within 15 days of that.

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* Require disciplinary actions against management officials who are found—by the agency head or by an outside authority—to be guilty of whistleblower reprisal. For a first offense penalties can range from a suspension of as little as three days to firing; for a second, firing is required.

The last of those provisions reflects legislation enacted before the orders were issued. It is less controversial than the others and repealing it would require a change in law.

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