Report Calling for At-Will Federal Employment Suggests Trump Workforce Policy Isn’t Going Anywhere

A Trump-aligned think tank issued a report last month defending the former president’s workforce policies and advocating for the federal government to convert to at-will employment, leading experts to warn about the potential for a return of policies like Schedule F in future Republican administrations.

The America First Policy Institute, founded by a group of Trump administration alumni and chaired by former Small Business Administrator Linda McMahon, published a report entitled Increasing Accountability in the Civil Service on May 26. The document is written by former Domestic Policy Council member and White House advisor James Sherk, who shaped many of Trump’s federal workforce and labor policies.

The 19-page report argues that converting the federal workforce to at-will employment—where employees can be fired without cause—is necessary to solve longstanding complaints about the difficulty in dealing with poor performers, and that fears among employee groups, good government organizations and public administration experts that such a move would invite a return of the 19th century spoils system are based on a misunderstanding of the 1883 Pendleton Act.

“Federal job protections are not necessary to run a professional, apolitical civil service,” Sherk wrote. “The federal civil service system operated for six decades with minimal restrictions on firing. More recently, several states have adopted at-will employment. These states continue to operate effective and professional civil services at-will.”

In an interview with Government Executive, Sherk acknowledged that stripping federal workers of most of their current removal protections could make it harder for them to challenge unwarranted personnel actions, be they motivated by politics, discrimination or personal favoritism. But he argued dealing with poor performers is more important.

“Basically the dial has gone haywire, and that’s evidenced by the fact that feds themselves think it’s way too hard to fire people,” he said. “[The original] civil service reformers said, ‘Sure, you’ll have some removals based on animus and passion, but there's no law that can stop a grudge, and it’s not worth sealing up incompetence and insubordination.”

Although experts conceded that the report is among the most thoroughly researched efforts to justify returning to at-will employment in the federal government, they said it is still misguided. Don Kettl, who recently retired as the Sid Richard Professor at the University of Texas at Austin’s Lyndon B. Johnson School of Public Affairs, said Sherk’s contention that the reforms of the Pendleton Act are divorced from the removal protections developed during the 20th century glosses over nearly half a century of history.

“To cast an interpretation of today’s events solely in terms of the originating act is to make a huge mistake,” Kettl said. “It’s one thing to go back and talk about the Pendleton Act itself, but so much of what happened after that happened gradually and steadily . . . The paper seems to suggest that the original piece of civil service reform was the Pendleton Act, and then fast forwards to veterans protection measures [after World War II], but there was a lot that happened in between. What happened had to do a lot with providing stronger protections to civil servants, to make it more difficult to fire people, in large part because the progressive movement focused increasingly on protecting the roles of individuals and federal officials from political interference and pressure.”

Robert Tobias, a distinguished practitioner in residence at American University’s Key Leadership Program and former president of the National Treasury Employees Union, noted that studies of Georgia found that the removal of poor performers did not increase following the state’s transition to at-will employment in the 1990s.

“The reason for this is because the issue of discharge is very personal between the supervisor and the employee,” Tobias said. “If I’m not skilled at setting standards or at having difficult conversations and dealing with a poor performer, it doesn’t matter if it’s at-will or for cause. I’m not going to issue a discharge action. That, I believe, is the central issue in performance management. Do managers have the skill to set the standards, to have conversations when the standards are not being upheld, and then take action if someone doesn’t conform? That’s hard and, for most people, uncomfortable work. It’s not statute-limiting, it’s personal-limiting.”

Sherk had a simple response to the nearly unanimous opposition to the Trump administration’s limited effort to move toward at-will employment in the form of Schedule F. That initiative, which was aborted before it could be implemented when President Biden entered office, sought to strip the civil service protections of potentially thousands of federal employees in “confidential, policy-determining, policy-making and policy-advocating positions.”

“My reaction is that people are resistant to change or doing anything different,” he said. “People get comfortable in the systems they’re in, so the notion of change can be scary for people.”

Kettl said Sherk’s report should serve as a warning to policymakers who may have been inclined to believe efforts like Schedule F died when Trump lost reelection last year.

“This certainly means that the debate over Schedule F is far from over,” Kettl said. “There are two important hints there. There are references to firing at-will in state and local governments, even as Democrats have control over [the Office of Personnel Management] and the White House now, and since Republicans have a stronger base in some states, you’ll see more efforts in state and local governments to move to at-will employment. That, in turn, will provide an impetus for changes at the federal level . . . The case for Schedule F and resuscitating it in the future is being laid here on the foundation that Mr. Sherk is setting, and it’s clear that if Republicans take control of the White House again they’ll be back with a new version.”