Discipline rules changed for federal workers
The Trump administration has told federal agencies to make the fullest use of their discretion allowed by lawto order disciplinary actions against their employees for reasons such as poor performance or misconduct.
Final rules published Friday and effective Nov. 15 either strongly discourage or ban practices that many agencies have adopted, repeatedly stressing management’s “sole and exclusive” authority to choose a penalty.
In cases of alleged misconduct, for example, the rules says that agencies need not followthe common practice of “progressive discipline” — increasing penalties for repeat or more serious violations — but instead must “adhere to the standard of proposing and imposing a penalty that is within the bounds of tolerable reasonableness.”
Agencies further are to consider “all applicable prior misconduct” and are not to substitute lesser penalties when removal would be appropriate, the rules say. Also, officials “are not bound by previous decisions in earlier similar cases” but should apply “their own managerial authority and responsibilities and independent judgment.”
Everett Kelley, president of the American Federation of Government Employees, said his union will review the new rules and weigh its legal options. “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,” he said in a statement.
Rep. Gerry Connolly, D-Va., chairman of the House subcommittee on government opera-tions, called the Trump administration’s action “another unwarranted attack on the federal civil servants working tirelessly” during the coronavirus pandemic. “The newrule is a blatant attempt to cloak political retaliation in legitimacy,” Connolly said in a statement.
The rules carry out one of three executive orders President Donald Trump issued in May 2018 about federal workers. A federal judge soon afterward agreed with federal unions that the rules overreached into protections guaranteed to federal employees by law and issued an injunction against many of the provisions of all three.
However, a year later an appeals court lifted that injunction, saying the dispute must go through internal government channels first.
The changes have been advocated by Republicans who have sought to rein in the size and reach of the federal bureaucracy.
In comments published in the Federal Register on Friday, the Office of Personnel Management said that disciplining misbehaving or under-performing employees “will enhance the experience of well-performing employees, because poor performing employees place a resource strain on more productive employees and damage morale generally.” It cited an annual government-wide employee survey inwhich only about a third of employees say their agencies deal with poor performers effectively.
The new rules stress that while agencies must provide an employee deemed to be underperforming a chance to improve before taking disciplinary action — known in the government as performance improvement plans -the law does not require the additional help that some agencies offer beyond that period.
“No additional performance assistance period or similar informal period shall be provided prior to or in addition to the opportunity period provided under this section,” they say.
Also, agencies are to use the probationary period for newly hired employees “as fully as possible to determine the fitness of the employee and shall terminate his or her services during this period if the employee fails to demonstrate fully his or her qualifications for continued employment.” During that period, typically one or two years, employees lack the full range of civil service appeal rights.
The rules do not revoke employee appeal rights after any discipline is taken. However, they tell agencies to limit the period for an employee to respondto a notice of proposed discipline to the 30 days the law requires, and to issue a final decision within 15 business days afterward.
Other provisions include that agenciesmust not consent in a settlement to erase information from the employee’s official files unless itwas put there in error; must take disciplinary action against management officials who retaliate against whistleblowers, including mandatory firing for a second offense; and must annually report detailed information on discipline they have taken.
The notice consumes 49 pages of small type in Friday’s Federal Register, only five of which cover the rules themselves; the rest reflect OPM’s responses to nearly 1,200 comments it received after proposing the rules last September. By OPM’s own recounting, that response was largely negative, with commenters using terms including “senseless and wrong,” “morally questionable,” “abhorrent” and “toxic.”