President Trump’s recent set of three executive orders on federal employee disciplinary processes and labor-management issues includes a series of deadlines for carrying out some portions. However, for some matters that will involve starting a formal rule-making process including a public notice period, consideration of comments, and issuance of final rules addressing those comments—a sequence that can take many months to complete. Others will be subject to a potentially lengthy negotiation process with unions, and hanging over all of them are possible court action to block them.
Rule-making is not required for agencies to carry out new disciplinary policies that: progressive discipline is not required; discipline does not have to be the same from one employee to the next for similar infractions; suspension is not required before removal; and agencies should take into account all of an employee’s past misconduct, not just past similar misconduct.
Within 45 days, OPM is to issue rules putting more priority on performance than on length of service in RIFs. In that same time it is to review current regulations to determine whether rules revisions are needed to:
* renegotiate out of existing contracts any provisions applying a grievance/arbitration process to firing for performance or misconduct, or to various aspects of performance evaluations;
* require that agencies not agree to contracts that limit their discretion to apply discipline for misconduct, that require use of a performance improvement period before removing an employee for unacceptable performance, or that limit an agency’s discretion to remove an employee without first engaging in progressive discipline;
* limit performance improvement periods to 30 days except when a longer period is in the agency’s interest; and
* require that agencies not agree in settlements with employees to remove or alter information about an employee’s performance or conduct from the employee’s personnel files.
If OPM determines that rule-making is needed, it is to begin that process “as soon as practicable.” During those same 45 days, agencies are to revise their own policies to meet those standards in areas where new authority from OPM rules would not be needed. Where OPM rule-making is needed, agencies would have to comply within 45 days of those rules being finalized.
