The Office of Personnel Management warned agencies Oct. 10 against setting policy that requires supervisors to use progressive discipline or predetermined tables of appropriate discipline for each infraction when addressing employee misconduct, rather than choosing the adverse action that best applies to the situation.

“A number of agencies have established policies that require progressive discipline when determining penalties for employee misconduct. Progressive discipline is the imposition of the least serious disciplinary or adverse action applicable to correct misconduct with penalties imposed at an escalating level of subsequent offenses,” OPM Director Dale Cabaniss wrote in a memo to agency heads.

“Agencies should be mindful that neither the use of progressive discipline nor the adoption of a table of penalties is required by statute, case law or U.S. Office of Personnel Management regulations. Further, the use of these approaches presents challenges that agencies should consider prior to adoption.”

Federal agencies have the discretion to determine their own discipline policies for dealing with employees that underperform or misbehave, and some have instituted policies that instruct managers to use the least serious adverse action for a first offense or match their adverse actions to a preset table that determines what is appropriate for what action.

Some of these policies are based on provisions in collective bargaining agreements, in which federal unions have negotiated for a more concrete policy on how to deal with such employees.

But according to OPM leadership, those agreements may not be valid in the first place.

“The Federal Service Labor-Management Relations Statute establishes management rights, i.e., matters over which agencies are prohibited from substantively negotiating with labor unions. Management’s statutory rights to suspend, remove, reduce in grade or pay, or otherwise discipline employees are included in these prohibited subjects of bargaining. OPM strongly encourages agencies to review existing collective bargaining agreements to identify any provisions which conflict with these statutory rights and, whenever practical and appropriate, take steps to eliminate any conflicting provisions,” OPM guidance on the use of progressive discipline states.

“Federal Labor Relations Authority precedent has consistently and, in our view, correctly ruled that proposals that require the adoption of progressive discipline restricting management’s decision as to the appropriate disciplinary penalty to impose under the circumstances of each case are non-negotiable because they directly interfere with management’s statutory right to discipline and limit an agency’s right to choose disciplinary penalties.”

According to the guidance, agencies adhering to a table of penalties may also face a tougher time defending their adverse actions during employee appeals, as the court may see a failure to adhere to the table or a weak classification of an employee’s infraction as a reason to overturn the punishment.

The Trump administration has made it a priority to make it easier for agencies to deal with poor performers, a position that has received ample criticism from employee groups that argue the goal is simply to reduce the federal workforce and enable leadership to remove an employee for political reasons.

The administration, on the other hand, has pointed to results of the Federal Employee Viewpoint Survey which indicate federal employee dissatisfaction with performance recognition, as motivation to alter employee management policy.

Jessie Bur covers federal IT and management.

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