Biden administration finalizes rule to prevent return of Schedule F

The Biden administration is going on the offensive to keep employment protections for federal workers.

Knowing Republican presidential challenger Donald Trump has built a platform on remaking the 2.2 million-large workforce that supports the executive branch, the White House issued a final regulation on Thursday that makes good on a three-year promise to prevent widespread firings from taking effect.

“The Biden-Harris Administration knows that career civil servants are the backbone of the federal workforce and should be able to provide the expertise and experience necessary for the critical functioning of the federal government,” said Jason Miller, the White House’s Office of Management and Budget deputy director for management. “As part of the President’s Management Agenda, it is a clear policy of the United States government to protect, empower, and rebuild the career federal workforce, and this final rule does just that.”

The rule does three things in an attempt to prevent a return of Schedule F — the ultimately unfulfilled attempt by Trump to reclassify tens of thousands of federal employees into at-will status, thereby making them easier to dismiss and more akin to political appointees.

First, the regulation guarantees employment protections unless a worker voluntarily waives them. It also ensures that any future administration cannot apply broad descriptions of positions, like those of a “confidential” or “policymaking” nature, to career civil servants for the purpose of converting them. Under Trump, those descriptors proved to include not just high-level officials, but FOIA officers, clerical workers and office managers, previous reports show.

Finally, the rule sets up hoops an administration would have to jump through anytime it wants to move positions out of the protected competitive service. And in the event that an employee is reclassified against those safeguards, it guarantees an appeal process.

“This rule is about making sure the American public can continue to count on federal workers to apply their skills and expertise in carrying out their jobs no matter their personal political beliefs,” said Rob Shriver, deputy director of OPM, in a phone call.

The rule by the Office of Personnel Management has been highly anticipated by good government groups, federal unions and employees themselves, who saw firsthand how former President Trump attempted to rewrite the rules of the merit system. The draft rule, published in September last year, received more than 4,000 comments and has been in the works for the last 18 months.

Skye Perryman, president and CEO of Democracy Forward, said in a statement the long process that led to this final rule produced “an extraordinarily strong rule.”

“It is important to note that the process this rule went through not only makes it strong because it reflects the input of the people who rely on the essential services federal employees provide, but also because it means the rule cannot simply be undone by an executive order,” she said.

Administration officials, who spoke on the condition of anonymity to discuss the rule ahead of publication, said they are confident this law can stand up on its own, with or without supplemental legislation currently pending in Congress.

But experts said having legislation to further safeguard any attempts to override the rule would bolster its viability.

“While Congress still needs to legislate to prevent a partisan takeover of the civil service, this final rule is an important roadblock against such an extreme agenda,” said Joe Spielberger from the Project On Government Oversight, in a statement. “This administration has taken a strong step to reinforce merit system principles, and while it will now be more arduous to reverse this policy change, the threat that a future administration could inflict Schedule F on the people still remains.”

Should a future administration seek to circumvent the rule via presidential order or another rulemaking, they’ll have to go through the same, long, public process that OPM had to go through to get this rule approved, they said.

“If another administration were to disagree with the policies that are reflected in this regulation, first, they would have to follow that full rulemaking process themselves,” an official told Federal Times. “Then in that rulemaking, among other things, they would have to explain how a different rule would be better than the carefully crafted balance that OPM has struck here, and how their interpretation would be consistent with over 140 years of statutory language and congressional intent. Needless to say, that is no small task.”

In addition, the final rule explains that members of the Senior Executive Service have separate adverse action protections.

There are existing laws that establish a cap on the number of SES employees who can be “non-career,” so that’s a built-in protection already, officials said.

“It will now be much harder for any president to arbitrarily remove the nonpartisan professionals who staff our federal agencies just to make room for hand-picked partisan loyalists,” said Doreen Greenwald, president of the National Treasury Employees Union.

Editor’s note: This story was updated at 6:36 p.m. on April 4 to clarify that there are separate protections for adverse actions against members of the Senior Executive Service.

About Molly Weisner

Molly Weisner is a staff reporter for Federal Times where she covers labor, policy and contracting pertaining to the government workforce. She made previous stops at USA Today and McClatchy as a digital producer, and worked at The New York Times as a copy editor. Molly majored in journalism at the University of North Carolina at Chapel Hill.