NTEU Blasts ‘Nonsensical’ Proposed OPM Rule Easing Firing of Feds

One of the nation’s largest federal employee unions on Wednesday accused the Trump administration of a “nonsensical” effort to gut civil service protections and misrepresenting federal employee survey results. The accusations were detailed in the union's comments submitted in opposition to the Office of Personnel Management’s proposed regulations to implement portions of an executive order that would streamline the process for firing federal workers. 

Last month, OPM filed proposed rules that would require agencies to remind managers when new hires reach the end of their one-year probationary periods and limit the use of supplemental opportunities for poor performers to right the ship. The deadline to submit comments on the proposed regulations was Wednesday.

In a 12-page submission to OPM, the National Treasury Employees Union objected strongly to nearly every element of OPM’s proposal, down to the agency’s “Case for Action” preamble that argues that federal workers believe it is too hard for managers to deal with poor performers.

In the proposed rules, OPM cited 2018 Federal Employee Viewpoint Survey data that suggests a “majority” of feds believe the current performance management system fails to reward good performance and “address unacceptable performance.” But NTEU noted that only 39% of FEVS respondents disagreed with statement, “In my work unit, steps are taken to deal with a poor performer who cannot or will not improve,” and only 29% disagreed with the notion that awards are based on performance.

“In general, respondents see themselves and others in their work units as being held accountable and performing well, while perceiving that others are not,” NTEU wrote. “As OPM cautioned when publishing the FEVS data in the page titled ‘Understanding Results,’ survey results don’t explain why employees respond to questions as they do and that is why survey data should be used with other data to assess the state of human capital management. By simplistically citing FEVS data to justify relaxing employees’ civil service protections, OPM fails to follow its own advice.”

In response to the proposal to send reminders to managers about the nearing deadlines of new hires’ probationary periods, the union argued such requirements would encourage managers to fire workers, rather than affirmatively green light their continued service.

“The requirement is unnecessary and sends the wrong message that it is more important to terminate probationers than assist them with successfully completing their probationary period,” NTEU wrote. “Good supervisors know where their subordinates are at in their probationary periods, assessing their progress daily. Micromanaging agencies’ managerial practices through governmentwide regulations is an overreach.”

NTEU argued that OPM’s proposals removing requirements that agencies must try to help failing employees improve during a performance improvement period conflicts with federal law and established court precedent.

“The plain language of [the statute] requires assistance to improve unacceptable performance and an opportunity to demonstrate acceptable performance if the poor performance continues, all before taking a performance-based action,” the union wrote. “[Agencies’] performance appraisal systems must provide for ongoing appraisal feedback, including one or more progress reviews each appraisal period and assistance ‘whenever’ performance falls below fully acceptable but is above unacceptable or ‘at any time’ performance is unacceptable in one or more critical job elements.”

The union’s harshest critique came for OPM’s proposal to allow “any other measures taken during the appraisal period . . . before or during the opportunity period” to count toward an agency’s requirement to provide employees an opportunity to improve performance before they are fired.

“Allowing the assistance requirement to be satisfied before the opportunity period is nonsensical and is contrary to case law,” NTEU wrote. “[To] be sure, an agency may rely on pre- and post-PIP performance deficiencies, after successful completion of a PIP, to remove or downgrade an employee, provided the deficiencies occurred within one year preceding the notice or the action or one year after the beginning of a PIP, respectively. But in [multiple Merit Systems Protections Board cases], the board emphasized the critical, statutory requirement that employees be notified of the critical job elements which they are failing and be provided with a ‘meaningful opportunity to demonstrate acceptable performance in those elements.’”

OPM now must consider all comments submitted on the proposed rule, before it can issue final regulations.