Fedweek

WASHINGTON, DC - DECEMBER 29, 2018: Flags at headquarters building of the United States Office of Personnel Management. Image: SmartPhotoLab/Shutterstock.com

In deleting rules it had issued under Trump administration orders on discipline of federal employees – orders that President Biden revoked early in 2021 – OPM made a series of statements that set the Biden administration’s tone for agencies to follow in both performance and conduct-related actions.

OPM made those statements in responding to comments it received after proposing early this year to delete the late-2020 rules, which in sum sought to limit employee protections to the legal minimums.

For example, while the rules issued under the Trump orders had specified that agencies need not follow the policy of “progressive discipline” – taking ever-more serious penalties for misconduct – OPM said it disagreed with a commenter who argued that the practice makes it too difficult for management to take action.

OPM said that “each action stands on its own footing and demands careful consideration of facts, circumstances, context, and nuance. OPM reminds agencies to calibrate discipline to the unique facts and circumstances of each case, which is consistent with the flexibility afforded agencies under the “efficiency of the service” standard for imposing discipline,” under the Civil Service Reform Act.

Similarly, in removing language in the prior rules specifying that suspension should not be a substitute for removal if it is warranted, OPM said that “is a straightforward principle that OPM believes agencies can apply without regulation. If a penalty is disproportionate to the alleged violation or is unreasonable, it is subject to being reduced or reversed even when the charges are sustained.”

“OPM reminds agencies that supervisors are responsible for ensuring that a disciplinary penalty is fair, reasonable, and appropriate to the facts and circumstances. In doing so, supervisors will address misconduct in a manner that has the greatest potential to avert harm to the efficiency of the service,” it said.

OPM used similar language when dropping limits in the prior rules on management’s duties to help employees improve their performance before taking disciplinary actions on those grounds. It said the prior rules “placed restrictions and limitations on agencies regarding decisions on when performance assistance is provided to employees that, upon further consideration, were unhelpful.

“These constraints removed previous flexibilities enjoyed by agencies in addressing performance issues with their employees” under the portion of law dealing with performance-based discipline, it said. “By placing these restrictions on agencies, OPM believes it was not supporting agencies and supervisors in determining the most effective assistance for struggling employees.”

For example, it said that the employee’s supervisor “is in the best position to determine the length of the opportunity to demonstrate acceptable performance. OPM believes the duration of the opportunity period should be left to the discretion of each agency, to include consultation with human resources staff and any applicable provision of a collective-bargaining agreement.”

It added that agencies should “remain mindful that third parties (for example, arbitrators and judges) place a strong emphasis on a supervisor’s effort to assist the employee in improving the employee’s performance. Evidence that the supervisor engaged an employee in discussion, counseling, training, or the like prior to the opportunity period may assist the agency in developing a stronger case before a third party that the employee was given a reasonable opportunity to demonstrate acceptable performance before a performance-based action is taken.”

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