The Office of Personnel Management on Monday proposed new regulations seeking to implement portions of an executive order streamlining the firing of federal workers, including providing managers with a reminder of when new hires reach the end of their one-year probationary period and limiting the use of supplemental opportunities for poor performers to right the ship.
In a set of proposed rules slated for publication on the Federal Register Tuesday, OPM said the changes are needed to conform with the priorities of President Trump’s management agenda, as well as to bring federal personnel practices into the 21st century.
“The federal personnel system needs to keep pace with changing workplace needs and return to its root principles,” the agency wrote. “Notably, as demonstrated in the Federal Employee Viewpoint Survey, a majority of both employees and managers agree that the performance management system fails to reward the best and address unacceptable performance. Finally, the PMA calls for agencies to establish processes that help agencies retain top employees and efficiently remove those who fail to perform or to uphold the public’s trust.”
The rules seek to implement portions of President Trump’s executive order streamlining federal firing that have not been struck down, at least temporarily, by a federal injunction. In August 2018, U.S. District Judge Ketanji Brown Jackson blocked provisions of the order—along with parts of two others—that would have removed adverse personnel actions from grievance procedures and standardized the length of performance improvement plans at 30 days.
A federal appeals court in July overturned that ruling on jurisdictional grounds, but the injunction will remain in place until the court decides whether to rehear the case.
In its filing, OPM acknowledged that portions of the order remain blocked, but offered assurances that it would not attempt to impose those changes in regulations until the case is resolved. Unions have accused OPM and agencies of trying to circumvent the court order through collective bargaining negotiations.
“OPM is aware of the judicially-imposed limitations on implementing other portions of Executive Order 13839,” the agency wrote. “OPM has and will continue to comply fully with the injunction, and will not issue regulations implementing the invalidated parts of the executive order as long as the judicial injunction is in place.”
The proposed regulation would insert a new step into the process by which new hires graduate to become full federal employees: reminding managers of when the end of an employee’s one-year probationary period is 90 days and 30 days away.
“To achieve the objective of maximizing the effectiveness of this probationary period, OPM believes that timely notifications to supervisors regarding probationary periods can be a useful tool for agencies and should be used,” the agency wrote. “OPM is proposing . . . to require agencies to notify supervisors that an employee’s probationary period is ending . . . and advise a supervisor to make an affirmative decision regarding the employee’s fitness for continued employment or otherwise take appropriate action.”
Additionally, OPM proposed streamlining 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 federal law requires.
“The proposed rule . . . clarifies that, other than those requirements listed, there is no specific requirement regarding the nature of any assistance provided during an opportunity period, and is not determinative of the ultimate outcome with respect to reduction in grade or pay, or a removal,” OPM wrote. “The proposed rule also states that no additional performance improvement period or similar informal period to demonstrate acceptable performance to meet the required performance standards shall be provided prior to or in addition to the opportunity period.”
The rules also would shorten the timeframes by which employees have an opportunity to respond to allegations of misconduct or poor performance before adverse personnel actions are formally proposed, and bar agencies from agreeing to settlements with employees, by which workers resign from their post in exchange for having adverse personnel actions stripped from their employment records.
The proposed regulations also reiterate July 2018 OPM guidance outlining how agencies should collect data regarding adverse personnel actions and removals on an annual basis and submit this information to the HR agency for eventual publication.
“To enhance public accountability of agencies, OPM will collect and, consistent with applicable law, publish the information received from agencies aggregated at a level necessary to protect personal privacy,” OPM wrote. “[In] lieu of outlining the data collection requirements in OPM regulations, OPM will issue reminders of this requirement annually and provide periodic guidance consistent with the requirements of [the executive order].”
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