On October 11, 2019, the Office of Personnel Management (OPM), the chief human resources agency and personnel policy manager for the Federal Government, issued a memorandum encouraging federal agencies to discard progressive discipline policies and tables of penalties when dealing with employee performance and behavior. Under the guise of assisting agencies in “retain[ing] top employees,” OPM’s true goal is clear—to tip the balance of power further to management, and ultimately whittle away at the concept of a non-partisan, professional federal workforce.
OPM’s October 11 memorandum stems from the President’s Executive Order (EO) 13839, titled “Executive Order Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles,” which the President signed on May 25, 2018. This EO, along with two other EOs signed by the President having to do with collective bargaining and union time use, encourage the abandonment of long-standing protections for federal workers. While the EOs were on hold after a district court issued an injunction preventing the EOs, including EO 13839, from going into effect, that injunction was just lifted. As a result, the EOs are now in full effect and OPM has wasted no time issuing its October 11 memorandum, which furthers the Trump Administration’sagenda of downsizing the federal workforce.
The question now is what impact EO 13839 and the October 11 memorandum will have on federal workers. Certainly, these directives seek to make it easier for agencies to terminate federal workers. The OPM Director not only encourages agencies to essentially abandon performance management practices, she specifically tells agencies they “should not be required to use progressive discipline.” Progressive discipline “is the imposition of the least serious disciplinary or adverse action applicable to correct misconduct with penalties imposed at an escalating level of subsequent offenses.”
Why is progressive discipline important? Progressive discipline requires management officials to work to remedy poor performance or misconduct through the use of increasingly formal efforts and continued feedback, so employees can correct such problems if they are able. For example, if an employee is late to work on one occasion, or takes leave without first notifying his supervisor, it is difficult to argue that immediate termination is the appropriate remedy. Instead, a lesser penalty, such as a warning, would be appropriate. If the behavior continues, the discipline may escalate, but the goal is for management to continue to work with — rather than punish — the employee to address (and hopefully resolve) the root cause of the employee’s behavior. Without a policy requiring progressive discipline, agencies are free to craft any remedy they wish, for example simply terminating an employee for a single instance of tardiness, without having to consider a less severe penalty.
Along with progressive discipline, most federal agencies also use a table of penalties, which a) places employees on notice of the range of penalties for certain offenses; and b) is used by agency officials to objectively determine the appropriate penalty for any particular offense. However, OPM is strongly reminding agencies that these tables are not required; instead, OPM tells agencies they shouldnow “calibrate penalties to the specific facts of the particular situation.” While such a proposition may sound reasonable on its face, the reality is much different. If a supervisor doesn’t like a particular subordinate and is simply looking for an opportunity to get rid of that employee, regardless of her stellar performance reviews and 20 years of experience within the agency, without progressive discipline and a table of penalties, that supervisor could simply propose terminating that employee for a minor infraction—such as tardiness. Without the benefit of the table of penalties, which also allows the Merit System Protection Board (MSPB) on appeal to determine whether the penalty imposed is reasonable, the agency is freer to impose any discipline, including removing federal employees from civil service, for what is now a minor infraction. That result appears to be the goal of this recent guidance from OPM and EO 13839.
All is not lost, however. It is important for federal employees to know that if they are the victim of unfair discipline, they still have options to hold management officials accountable. For five types of personnel actions (removal, demotion, suspensions over 14 days, WIGI denials and furloughs), employees can appeal to the MSPB within 30 days. The MSPB has independent authority to ensure that discipline within its jurisdiction is reasonable. Moreover, while OPM’s guidance may encourage unfair and arbitrary action against federal employees, employees retain the ability to challenge such actions by requesting EEO counseling within 45 days of any personnel action they believe is discriminatory.
Federal employees can also file complaints about whistleblower retaliation and other prohibited personnel practices with the Office of Special Counsel (OSC). OSC’s time limit for these complaints is 3 years. If federal agencies do away with progressive discipline and their tables of penalties, their discretion may be less credible when their actions are challenged.
OPM’s attempt to undermine the independence of the civil service makes it all the more important for federal employees to know their rights. For over 40 years, KCNF has represented federal employees as they have sought to vindicate their rights.