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Proposed OPM Rule on Federal Workforce Policies is Available for Public Comments

January 20, 2022

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The Office of Personnel Management (OPM) has published proposed rules that would seek to repeal multiple Trump-era workforce policies (EO 13839) which revised the procedural and disciplinary processes for federal workers. These proposed regulations are enacted pursuant to an Executive Order intended to “empower agencies to rebuild the career Federal workforce and protect the civil service rights of their employees, while preserving appropriate mechanisms for pursuing personnel actions where warranted.”

One of the most notable policies OPM seeks to repeal is the policy related to “clean record” agreements, which prevents an agency from altering or removing information in an employee’s official personnel record as part of a settlement agreement. OPM acknowledges that while agencies may benefit from having access to unaltered personnel records, greater focus should be placed on granting more flexibility when it comes to resolving individual workplace disputes.

Even though there are arguments for this prohibition on clean records, in that this practice ostensibly disadvantages future employers by keeping information adverse to the employee out of their official personnel file, the result of the No-Clean-Record rule was that federal employees had no mechanism through which to remove files that were placed in their records due to a supervisor’s discriminatory and/or retaliatory animus.

Moreover, as a practical matter, hiring managers seldom review an applicant’s entire official personnel file, making the Trump-era rule of limited utility to agencies vis-à-vis the difficulties caused by such a rigid prohibition on clean record agreements. A repeal of the prohibition against clean record agreements would result in more flexibility for agencies navigating employee complaints of discrimination, harassment and/or retaliation and greater recourse for employees seeking to remove unjust and unwarranted documents from their personnel records.

OPM is also proposing to repeal regulations that shortened the timeframe for demonstration opportunity periods and provided less time for federal employees to respond to allegations of misconduct or deficient performance. Should this regulation be repealed, federal employees will once again enjoy more robust protections from unfair allegations of misconduct or performance issues, as agencies will be required to extend the timeframe in which the affected employees can dispute those allegations.

Regulations governing probation on initial appointments to competitive positions is also addressed by OPM. Agencies are currently required to notify supervisors both three months and one month prior to the expiration of an employee’s probationary period, as well as advise supervisors to make an affirmative decision regarding the employees continued employment or otherwise take the appropriate adverse action.

While OPM acknowledges that agencies are encouraged to remind supervisors that an employee’s probationary period is ending, they state that the timing and frequency should be left to the discretion of each individual agency. Then, as a matter of good administration, agencies will use the probationary periods to assess an employee’s qualifications for continued employment on the job and leave them the ability to terminate an employee without chapter 75 procedures should they fail to perform their position to the acceptable standards.

OPM is accepting public comments on its proposed rules until February 3, 2022. These changes have the chance to have a drastic impact on federal employees and their due process. If you are a federal employee that may have questions about how these new rules might impact your career, our team of attorneys are available to assist you today.

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