The Office of Personnel Management released a final rule Oct. 16 that pairs down the process of dealing with underperforming federal employees while encouraging the use of probationary periods for employees just entering government service.

The rule change was first proposed in September 2019 and restricts employees determined to be exhibiting poor performance to only the initial 30-day period to demonstrate acceptable performance, rather than having access to extensions for that period, as were previously available.

The rule also encourages agencies to do away with progressive discipline tables — which mandate that lower-severity corrective actions be taken prior to other disciplines like removal — and instead evaluate the appropriate discipline for employee behavior on a case-by-case basis.

Federal employee groups and some commenters on the rule took issue with this change, as they believe that it opens the way for discrimination and enables managers that are out to get a particular employee to enact corrective actions that are beyond what the situation merits.

“These rule changes erode key protections for civil servants that will make it easier for federal agencies to discriminate against federal employees and fire them for political reasons. Unfortunately, they are just the latest in a series of attacks by this administration on the apolitical government employees who serve our country with honor and distinction,” American Federation of Government Employees National President Everett Kelley said in a statement.

The rule also makes it impossible to remove parts of an employee’s official record as part of a formal or informal personnel complaint, unless parts of those records are incorrect or part of an illegal action against the employee.

The rule would also impose stricter penalties for managers that are found to have engaged in prohibited personnel actions or retaliated against whistleblowers, and some commenters on the proposed rule noted that such managers should be receiving extensive training on the new rule changes to avoid chances that they would misuse them.

“Further, the management association stated that performance appraisals for managers should be tied to their adherence to these rules,” the final rule said.

“This management association asserted that, in order to create a culture that values accountability and efficiency, leaders in the federal government must be efficient and accountable in inaugurating the changes.”

Some commenters questioned whether OPM had the authority to issue such rule changes, noting that legal protections for collective bargaining agreements stand counter to the agency’s enforcement of stricter disciplinary practices.

“We disagree with the general assertions contesting OPM’s authority and challenging the legality and constitutionality of the revised regulations. OPM is promulgating these regulations under its congressionally granted authority to regulate. Not all existing provisions were constitutionally or statutorily mandated, and to the extent they were not, OPM has authority to revise them to make the process work more effectively,” the rule said.

“Although the proposed revisions to these governmentwide regulations may result in limiting collective bargaining on certain topics, we disagree with the view that these changes are contrary to the vision and spirit of the statute”

The rule change stems from an executive order signed by President Donald Trump in May 2018, one of three that targeted federal employee management and collective bargaining.

Those orders have received significant outcry from federal employee groups, who were briefly able to get significant portions of those orders enjoined in federal court, before an appeals court turned over the ruling.

“Some commenters asserted that the timing of this notice is suspicious, and appears to coincide with alleged administration efforts to circumvent Congress on federal agency appropriations and authorizations, cripple unions, remove federal employees via proposing drastic agency budget cuts, and impose ‘absurd’ new federal workplace policies such as restricting telework,” the rule said. “There is no correlation between the timing of the notice and any budget or other administrative process.”

The rule becomes effective Nov. 16, though AFGE noted that it plans to weigh its legal options and encourage former Vice President Joe Biden to remove the rule should he win the presidential election.

About Jessie Bur

Jessie Bur covers federal IT and management.

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