Issue Briefs

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Following are sections of newly proposed rules from OPM regarding discipline of federal employees for performance and other reasons in which OPM explains its reasoning for revoking rules it issued late in the Trump administration.

Proposing and Taking Action Based on Unacceptable Performance

The proposed regulatory change to § 432.105(a)(1) removes the language: “For the purposes of this section, the agency’s obligation to provide assistance, under 5 U.S.C.

4302(c)(5), may be discharged through measures, such as supervisory assistance, taken prior to the beginning of the opportunity period in addition to measures taken during the opportunity period. The agency must take at least some measures to provide assistance during the opportunity period in order to both comply with section 4302(c)(5) and provide an opportunity to demonstrate acceptable performance under 4302(c)(6).” OPM believes that the amendment to the regulations at § 432.105(a)(1) placed too much emphasis on supervisory assistance taken prior to the beginning of the opportunity period and placed too little emphasis on supervisory assistance taken during the opportunity period and could result in some agencies relying too much on supervisory assistance outside of the opportunity period to support any performance-based action taken against an employee.

Agencies are reminded that they must provide assistance during the opportunity period in accordance with section 5 U.S.C. 4302(c)(5). OPM has long encouraged agencies to act promptly to address performance concerns as soon as they arise. Supervisors should continually monitor performance, provide ongoing feedback, and assist employees who exhibit performance issues. Agencies should also 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 his or her 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.

Standard for Action and Penalty Determination

In § 752.202(c), OPM made clear that an agency is not required to use progressive discipline under this subpart. As we have previously said regarding progressive discipline and tables of penalties, 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 contained in the Civil Service Reform Act. Proposing and deciding officials should consult with the agency counsel and the agency’s human resources office to determine the most appropriate penalty.

Further, in § 752.202(d), OPM adopted the test articulated by the Court of Appeals for the Federal Circuit in Miskill v. Social Security Administration, 863 F.3d 1379 (Fed. Cir. 2017).

We clarified that appropriate comparators are primarily individuals in the same work unit, with the same supervisor, who engaged in the same or similar misconduct. The adoption of the Miskill test reinforced the key principle that each case stands on its own factual and contextual footing. However, OPM believes that agencies can be sufficiently guided by Miskill and other applicable case law without a regulatory amendment.

In § 752.202(e), OPM adopted formally by regulation the standard applied by MSPB in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981) to removals, suspensions, and demotions, including suspensions of fewer than 15 days. Specifically, OPM adopted the requirement that agencies should propose and impose a penalty that is within the bounds of tolerable reasonableness. However, OPM believes that it is unnecessary to regulate a principle that is already embedded deeply in Federal civil-service law, thereby allowing greater flexibility for agencies. Douglas provides an adequate and useful template for arriving at reasonable penalty determinations. Douglas requires that, among other relevant factors, an agency should consider an employee’s disciplinary record and past work record, including all prior misconduct, when taking an action under this subpart. Many agencies apply this standard not only to those actions taken under 5 U.S.C. 7513 but also to those taken under 5 U.S.C. 7503 as well.

In § 752.202(f), OPM stated that suspension should not be a substitute for removal in circumstances in which removal would be appropriate. This is a straightforward principle that OPM believes agencies can apply without regulation. It is vital that supervisors use independent judgment, take appropriate steps in gathering facts, and conduct a thorough analysis to decide the appropriate penalty. 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. While OPM proposes to remove § 752.202(f) and defer to agency management in selecting an appropriate penalty, OPM reminds agencies that imposing a suspension when removal is appropriate may adversely impact employee morale and productivity and hamper the agency’s ability to achieve its mission and promote effective stewardship.

Because of the revocation of E.O. 13839, and in light of OPM’s independent regulatory authority under chapter 75, we propose to remove the penalty selection guidelines at §§ 752.202(c) through (f). 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.

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