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OPM Proposes Regulations Repealing Trump-era Firing Policy

President Biden during his first week in office had rescinded the executive order aimed at making it easier to fire federal workers.

The Office of Personnel Management is set to propose regulations that would rescind policies established during the Trump administration aimed at making it easier to fire federal workers.

In May 2018, then-President Trump signed an executive order streamlining the discipline and firing of federal employees. The Trump edict led to OPM issuing regulations in November 2020 that required agencies to inform supervisors when the end of an employee’s one-year probationary period is three months and one month away, and clarified that agencies are not required to help underperforming employees to improve or to provide an improvement period longer than 30 days.

The 2020 regulations also shortened the timeframe by which employees were able to respond to allegations of misconduct or poor performance before adverse personnel actions were formally proposed, and barred agencies from agreeing to settlements with employees, where the workers agree to resign in exchange for having adverse personnel actions stripped from their employment records.

But in January 2021, President Biden signed an executive order rescinding the 2020 directive underpinning those regulations and signed a new one focused on “protecting” the federal workforce and vowing that the federal government should be a “model employer.”

In regulations scheduled to be published in the Federal Register Tuesday, OPM moved to implement Biden’s order, reversing the actions taken in 2020.

“After consideration and review, OPM has concluded that portions of the final rule which became effective on November 16, 2020, and which implemented certain requirements of [Executive Order] 13839, are inconsistent with the current policy of the United States to protect, empower and rebuild the career federal workforce as well as its current policy to encourage employee organizing and collective bargaining,” the proposed regulations state.

In many instances, OPM’s rationale for removing the Trump-era policies, in addition to Biden’s executive order, is that the policies were too prescriptive.

“OPM has concluded that the amendment to the regulations [on probationary periods] placed unnecessary requirements on agencies regarding how agencies addressed probationary period matters,” the agency wrote. “[While] agencies are encouraged to notify supervisors that an employee’s probationary period is ending, OPM believes the frequency and timing of notifications should be left up to the discretion of each agency.”

The agency issued a similar refrain in explaining its removal of language instructing agencies not to provide formal assistance to underperforming employees except where required by law.

“These restrictions and limitations removed previous flexibilities enjoyed by agencies in how to address performance issues with their employees,” OPM wrote. “By replacing these restrictions on agencies, OPM believes it was not supporting agencies and supervisors in determining the most effective assistance for struggling employees.”

One provision that came in for particular criticism was the one barring agencies from engaging in settlement agreements with federal employees, in which the employee agreed to resign in exchange for the agency removing adverse personnel actions from their personnel file. OPM said this rule already has led to a litany of complaints from agencies and employee groups alike.

“Due to continued objections raised since the publication of the Nov. 16, 2020, final rule, OPM believes that the prohibition of clean record agreements hampers agencies’ ability to resolve informal and formal complaints at an early stage and with minimal costs to the agency,” the proposed regulations state. “Notably, stakeholders have stressed that the prohibition of clean record agreements limits resolution options; reduces the likelihood of parties reaching a mutually agreeable resolution of informal or formal complaints; potentially increases costly litigation and arbitration; and crowds the dockets of third-party investigators, mediators and adjudicators such as the Merit Systems Protection Board, Office of Special Counsel, and Equal Employment Opportunity Commission.”

The regulations also implement a provision of the 2017 National Defense Authorization Act granting full Title 5 protections to dual status National Guard technicians, including the ability to appeal adverse personnel actions to the Merit Systems Protections Board.

OPM is accepting public comment on the proposed regulation between now and Feb. 3.