WASHINGTON, D.C. (Federal News Network) — The rules governing discipline and removal procedures for federal employees are on track for a major overhaul.
A slew of proposed regulations and executive orders from the Trump administration — along with recent court decisions and upcoming hearings — are reshaping how agencies handle adverse action processes for the federal workforce.
On the whole, Trump administration officials say the changes aim to boost employee accountability across government, while rooting out poor performers and anyone unwilling to carry out lawful presidential orders.
“In order to affect the policy priorities of the administration, we need to have people willing to and capable of carrying out those directives,” Office of Personnel Management Director Scott Kupor said in June, speaking about the new Schedule Policy/Career classification.
But others in the federal community say the administration’s personnel policy revisions would undermine merit system principles, employees’ due process and other critical aspects of federal workforce integrity. Dan Meyer, a national security lawyer at Tully Rinckey PLLC, sees a clear pattern across the recent changes.
“All these decisions are of a whole cloth: Restoration of a strong executive branch, reversing the congressionally forced reforms following Watergate and the abuses by the FBI during the Civil Rights Movement and the war in Southeast Asia,” Meyer told Federal News Network. “The presidency was weakened in the last third of the 20th century; now the Justice Department and the director of OPM are using new and existing authorities to crack down on the president’s own employees and appointees. And the Congress seems perfectly happy to leave the changes unchallenged.”
Ditching the Douglas factors
In one key proposal, OPM and the Merit Systems Protection Board are seeking to overhaul the procedures agencies use when firing employees, as well as the adverse action review process at MSPB.
Proposed regulations earlier this month look to change MSPB’s longstanding appeals process by forgoing the “Douglas factors” — 12 considerations, dating back to 1981, that agencies use to justify adverse actions against employees.
MSPB and OPM argued that the Douglas factors have made employee discipline policies too rigid. Instead, they proposed making determinations about whether an agency’s adverse action is reasonable on a case-by-case basis, with no specific factors that must be considered.
“Accountability and high performance go hand in hand,” Kupor said last week. “This proposed rule gives federal managers better tools to address performance issues efficiently while ensuring employees are evaluated under a fair, consistent process. These reforms will help agencies better recognize excellence, address poor performance and ultimately deliver better results for the American people.”
Some critics of the proposed regulations, however, said the changes would open the door to bias, inconsistency and politically motivated actions against federal employees.
“What we are seeing is the methodical implementation of a system where nonpolitical career employees can be fired for doing their job correctly but inconveniently, and where they will have nowhere to go for a fair, independent second look,” Tim Whitehouse, executive director of Public Employees for Environmental Responsibility, told Federal News Network. “Historically, that’s why Congress created and built up the merit system of federal service over the past 150 years — to prevent political patronage, loyalty tests and retaliation against people who catch waste, fraud or abuse or who won’t rubber-stamp something of questionable legality.”
Reshaping ‘suitability’ rules
A separate final rule from OPM this month means federal employees now face the possibility of being disciplined or fired for misconduct based on the government’s “suitability and fitness” standards.
The rule change allows for expedited firings of federal employees if they are deemed to no longer meet the government’s suitability and fitness standards, which historically applied only to federal job applicants.
“For too long, the federal government has had stronger tools to prevent someone with serious misconduct from entering public service than to address the same misconduct once that individual is already employed,” OPM Director Scott Kupor said Monday. “This rule closes that gap.”
The final rule also expands the factors agencies must consider to determine if federal employees should keep their jobs, such as timely tax filing, citizenship requirements and compliance with “any applicable nondisclosure obligations.”
