OPM issues guidance for agencies to implement anti-Schedule F regulations

The Office of Personnel Management last week issued new guidance to agencies as they implement regulations finalized earlier this year strengthening guard rails on the conversion of career federal workers out of the competitive service and into or across categories of the excepted service.

Last spring, OPM issued final regulations aimed at safeguarding the nonpartisan civil service from efforts by former President Trump, or any other future administration, to reinstate Schedule F, a controversial effort to convert tens of thousands of career federal employees in “policy-related” jobs into the government’s excepted service, stripping them of their civil service protections and making them effectively at-will employees.

Trump has vowed to revive the initiative if elected president next month, and he has the backing of multiple conservative think tanks and unofficial presidential transition projects. As early as 2022, activists had already compiled a list of 50,000 career employees to target with conversion out of the competitive service and threaten with termination.

OPM’s regulations establish the definition of “policy-related” jobs in the federal government, whittling it down to refer only to noncareer political appointments, and it stipulates that when a federal employee’s position is “involuntarily” converted out of the competitive service, they retain “the status and civil service protections they had already accrued.” And it grants federal workers the right to appeal any job reclassifications that would result in the loss of civil service protections to the Merit Systems Protection Board.

But despite the Biden administration’s efforts to rescind Schedule F and insulate the federal workforce from future efforts to erode the nonpartisan merit system, analysts say that if elected, there may be little opponents can do to stop him. Even the April 2024 rule could easily be rescinded, either after a 90-day notice-and-comment period or immediately with a new interim final rule.

In a memo to agency heads, acting OPM Director Rob Shriver offered guidance to agencies as they implement the new guard rails around conversions and job reclassifications, as well as how to implement a law or executive action to reclassify workers under the new system. Shriver clarified that the new measures do not apply to the Senior Executive Service, which already exists outside of the competitive service, and that the rule does not create any new appeal rights for federal workers.

“No, the final rule does not provide appeal rights for adverse actions or performance-based actions to any group of employees that did not already have this protection,” an attached FAQ states. “The rule amends [federal personnel regulations] to clarify that civil servants in the competitive service or excepted service who qualify as “employees” will retain the rights previously accrued upon an involuntary move from the competitive service to the excepted service, or from one excepted service schedule to another, or any subsequent involuntary move, unless the employee relinquishes such rights or status by voluntarily encumbering a position that explicitly results in the loss of, or different, rights.”

Shriver also included a detailed summary of how agencies should handle reclassifications of federal employees moving forward. If a directive to reclassify employees specifically delineates which positions are covered, agencies are expected to create a list of the positions to be moved and provide the list to OPM for approval.

If instead, the directive establishes criteria for what jobs should be converted, the agency should provide a list of the positions it proposes to move to OPM, and it should be prepared to provide written justification for their inclusion upon request. And finally, if the directive tasks agencies with developing the criteria themselves, they must provide OPM with a list of affected positions, the “objective” criteria used to select those jobs and an explanation of how the criteria are “relevant” and consistent” with the directive’s standards.

In instances when the directive to reclassify workers came from either the president or OPM, the agency should wait to effectuate the change until OPM provides written approval to do so. And in cases when Congress initiated the reclassification effort, such as through a law, agencies should “inform OPM of the positions excepted” by the provision’s effective date, or within 30 days.

Moving forward, agencies must issue written notification of a job’s conversion out of the competitive service to the affected employee at least 30 days before the position is moved. And if that move is involuntary, agencies must notify the employee in writing that they retain any earned competitive status they had accrued prior to the reclassification, as well as their right to appeal the decision.