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By: FEDweek StaffPresident Trump has issued three related executive orders including one reflecting his administration’s often-stated view that civil service protections in disciplinary matters are weighted too heavily against management and in favor of employees.
That order addresses a long-standing theme of the administration and many other conservatives, that federal employees are not sufficiently held accountable for poor performance or misconduct. It says that “failure to address unacceptable performance and misconduct undermines morale, burdens good performers with subpar colleagues, and inhibits the ability of executive agencies . . . to accomplish their missions . . . Removing unacceptable performers should be a straightforward process that minimizes the burden on supervisors.”
Key provisions of that order are: “the penalty for an instance of misconduct should be tailored to the facts and circumstances” and supervisors and deciding officials will not be required to use progressive discipline; while employees should be treated “equitably,” conduct that “ justifies discipline of one employee at one time does not necessarily justify similar discipline of a different employee at a different time”; agencies generally “should not require suspension of an employee before proposing to remove that employee”; and agencies should “take into account an employee’s disciplinary record and past work record, including all past misconduct — not only similar past misconduct.”
Agencies also are to generally limit to 30 days “performance improvement periods,” the chance to improve before disciplinary action is taken on performance grounds (there has been no specific standard, but many run up to 120 days). Agencies also are to make a final decision on discipline on misconduct grounds within 15 days of receiving the employee’s response to the notice of proposed discipline (there has been no specific timetable for the final decision although agencies are not to delay extensively).
OPM is to issue any needed regulations to carry out those policies government-wide within 45 days; in that same time agencies are to revise their own policies and begin to renegotiate any contracts that are inconsistent with the new requirements. The order further urges agencies to exclude performance and conduct-related removals from negotiated grievance procedures, effectively making the MSPB the only appeals channel for them. It also instructs agencies not to bargain over numerous matters related to performance evaluations.
It also instructs OPM to issue regulations putting more priority on performance than on length of service in RIFs—a policy that already applies at DoD—and to publish annual government-wide reports on employee discipline.
