OPM Urges Agencies to Abandon Disciplinary Guidelines for Poor Performers

The Office of Personnel Management on Thursday urged agencies to abandon the common practices of using progressive discipline and tables of penalties when dealing with poor performers or employees accused of misconduct.

In the latest of a string of memos aimed at implementing the provisions of three controversial executive orders taking aim at federal unions, OPM Director Dale Cabaniss stressed that federal law does not require that agencies employ the two performance management practices and instructed agencies to cease their use, provided doing so would not conflict with existing collective bargaining agreements.

Progressive discipline involves management imposing the least serious adverse personnel action to correct misconduct, using penalties that escalate upon subsequent offenses. Tables of penalties tie a suggested range of penalties to a variety of common infractions.

Last May, President Trump issued three workforce executive orders, one of which was focused on making it easier to fire federal workers. Although the key provisions of all three orders were blocked by a U.S. District Court decision last August, the U.S. Court of Appeals for the D.C. Circuit reversed that decision on jurisdictional grounds in July, and the injunction against implementing the executive order provisions was lifted last week.

In the guidance, Cabaniss said managers must tailor decisions on misconduct and poor performance to the “facts” of a situation.

“In enacting current law, Congress provided managers with maximum flexibility to pursue adverse actions, whether the underlying impetus is a conduct issue, a failure to perform, or any other reasons related to federal employment, as needed for the efficiency of the service,” Cabaniss wrote. “Moreover, [the executive order] itself . . . provides that supervisors and deciding officials should not be required to use progressive discipline and should calibrate penalties to the specific facts of the particular situation.”

In an accompanying guidance document, OPM said agencies should seek to eliminate the use of progressive discipline and tables of penalties at the earliest legal opportunity. Generally, that would mean that agencies should seek to strip union contract provisions on the practices during collective bargaining negotiations, although OPM hinted at another possible route.

“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,” document stated. “Agencies should also avoid adopting any contract provisions in future collective bargaining that interfere with the exercise of management’s statutory rights.”

In bargaining, OPM suggested that management negotiators argue that the use of practices like progressive discipline is non-negotiable. This argument could lead to challenges before the Federal Labor Relations Authority.

“Unsupported, bare assertions of negotiability are not sufficient to establish negotiability in the context of negotiability proceedings,” OPM wrote. “Additionally, as stated above, agency negotiators should examine whether or not the proposal impermissibly interferes with the exercise of a statutory management right. Or to avoid these knotty labor-law questions, an agency may elect in its sole discretion not to resort to progressive discipline or tables of penalties at all.”