The Fine Print of Trump’s Executive Order on Firing

President Trump made waves in the federal community last week when he signed a series of executive orders that aim to speed up the disciplinary and firing process and significantly curb the influence of federal employee unions.

In announcing the order streamlining the firing process to reporters during a briefing Friday, administration officials highlighted how it instructs agencies to reduce the length of formal performance improvement plans to 30 days governmentwide. The order also encourages agencies to fire rather than suspend malfeasant employees, if their conduct warrants it.

Also noted by officials Friday were provisions encouraging agencies to consider performance over seniority when processing reductions in force and requirements that agencies not withhold information related to an employee’s misconduct or poor performance from other departments.

But the executive order outlines a number of other changes to how agencies handle the disciplinary process, as well as federal employee unions’ role in it. Going forward, agencies must, when possible, make decisions on proposed firings within 15 business days of the end of the employee’s window to respond to such proposals, and they should limit written notice of adverse personnel actions to 30 days, the order said.

Additionally, the order seeks to significantly curtail the types of agency actions that can be appealed through the administrative grievance or arbitration process. The White House instructed agencies to renegotiate collective bargaining agreements with federal unions, and in doing so, exclude a number of agency decisions from appeals.

“Whenever reasonable in view of particular circumstances, agency heads shall endeavor to exclude from the application of any grievance procedures negotiated under [Title 5 of the U.S. Code] any dispute concerning decisions to remove any employee from federal service for misconduct or unacceptable performance,” Trump wrote.

In addition, agencies were ordered to remove performance ratings and incentive pay, including cash awards; step increases; and retention, recruitment and relocation incentives, from the list of subjects that are open to grievances and arbitration proceedings in union CBAs. Officials also were instructed not to allow CBAs to include any provision that limits managers’ discretion to employ adverse personnel actions or other performance improvement methods.

The order instructed the Office of Personnel Management to collect data from agencies about the number of various personnel actions they take each fiscal year, including the number of employees removed during their probationary period, employees reprimanded in writing, adverse personnel actions, performance improvement plans authorized and removal decisions. Agencies also will be required to delineate the number of performance improvement plans that are authorized for more than 30 days, and the number of removal decisions that took more than 15 business days.

The executive order will take time for the administration to implement. OPM has 60 days to issue guidance on how to implement the reporting provisions, and within 45 days, OPM Director Jeff Pon will, if necessary, propose new regulations to change agencies’ performance management policies. In addition, each agency will need time to renegotiate any collective bargaining agreements currently in place with federal unions. Further complicating matters is the fact that last week, the American Federation of Government Employees suggested it would likely initiate legal action to prevent the president’s executive orders from taking effect.

In a statement Friday, Pon praised the order for helping to improve federal employee accountability.

“These executive orders are about protecting taxpayers’ dollars, including those of our dedicated federal employees, and putting those resources to use in the most efficient and effective way possible,” Pon said. “[The] vast majority of our employees are dedicated public servants who are dedicated to their missions and service to the American people. It is essential that we honor their commitment, and these measures reflect just that.”

But Sen. Chris Van Hollen, D-Md., said the executive orders, including the one expediting discipline and firing, erode federal employees’ due process protections.

“Rather than improving government efficiency, these executive orders will make it harder to resolve workplace disputes; report waste, fraud and abuse; and ensure a fair and safe workplace for federal employees,” he said. “Instead of trying to erode the rights of federal employees and whistleblowers, the administration should focus on the abuses of Cabinet officials taking charter and first class flights and buying $31,000 dining sets and $43,000 soundproof booths.”