OPM Finalizes Rule on Trump Executive Order to Ease Firing and Discipline of Feds

The Office of Personnel Management on Friday published regulations implementing several key provisions of President Trump’s controversial executive order making it easier to fire and discipline federal workers.

A final rule published in the Federal Register, set to go into effect on Nov. 16, puts in place the provisions of Trump’s 2018 order streamlining the discipline and firing of federal employees. The rule does not implement elements of the order that were blocked by a federal judge in August 2018, like the removal of adverse personnel actions from union grievance procedures and standardizing the length of performance improvement plans at 30 days.

Although the August 2018 decision was overturned by a federal appellate court last year on jurisdictional grounds, it was still in place when OPM published proposed regulations on the matter in September 2019. Over the course of the public comment period agencies encouraged OPM to implement the formerly blocked provisions in this set of regulations, but officials said that would violate the process for developing regulations and instead, the agency will propose additional regulations in the future to adopt the outstanding provisions.

The rules set to go into effect next month will insert a new step into the process by which new hires become full fledged federal employees with due process rights by reminding managers of when the end of an employee’s one-year probationary period is three months and one month away. They also streamline the process by which agencies can demote or fire workers for “unacceptable” performance, clarifying that agencies are not required to help employees improve or provide an improvement period longer than the law requires.

The regulations also shorten the timeframe by which employees have an opportunity to respond to allegations of misconduct or poor performance before adverse personnel actions are formally proposed, and they bar agencies from agreeing to settlements with employees, where the workers agree to resign in exchange for having adverse personnel actions stripped from their employment records.

Also going into effect next month is a provision standardizing the process by which supervisors may be disciplined for retaliating against whistleblowers.

OPM said in its filing that it received nearly 1,200 comments on its proposed rule. Although some comments from agencies, advocacy groups and associations representing federal managers were supportive of the changes, the agency received a deluge of opposition from federal employees and unions.

Much of the 199-page document published on Friday is devoted to beating back criticism of the regulations over concerns that the provisions could erode federal employees’ due process protections, “cripple” unions or otherwise undermine the merit systems principles and the intent of the 1978 Civil Service Reform Act.

“National unions, organizations and many other commenters urged OPM to withdraw the proposed rule and consider what they believe to be more reasoned and equitable approaches to addressing employee probation, and employee performance and conduct concerns,” the regulations state. “[We] disagree with the commenters’ contention that the proposed rule does not streamline and clarify procedures and requirements to better support managers in addressing unacceptable performance and pursuing adverse actions. We decline to make changes based on these comments because the proposed rule effectuates changes that, in fact, make procedures more efficient and effective.”