OPM Director Issues Guidance for Implementation of Executive Order 13839
On July 5, 2018, Dr. Jeff T.H. Pon, Director of the U.S. Office of Personnel. Management, issued a Guidance for Implementation of Executive Order 13839 Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles. Executive Order 13839 (EO 13839) was issued by the President on May 25, 2018, with the aim of streamlining the removal procedures and performance management for federal employees.
In a major departure from how federal agencies currently handle disciplinary penalties, EO 13839 states that agencies should not be required to use progressive discipline but should instead tailor the penalty to the facts of the situation. EO 13839 also suggests that removal can be appropriate for first offenses, stating that agencies should not be required to suspend employees prior to removing them. EO 13839 also dictates that to the extent practicable, agencies should issue a decision on proposed removals under Chapter 75 within 15 days of the end of the employee reply period.
In an effort to streamline performance management, EO 13839 also reduces the time period that federal employees are given to demonstrate acceptable performance, currently different depending on the agency, to only 30-days, except where an agency determines that a longer period would be necessary.
Finally, in what could impact the resolution of cases brought by federal employees, EO 13839 prohibits agencies from agreeing to erase, remove, alter or withhold any information from another agency regarding an employee’s performance or conduct as a term of an agreement to resolve a formal or informal complaint or to settle an administrative challenge to a personnel action. In other words, EO 13839 would prevent “clean record” settlement agreements, which are often used to resolve pending EEOC or MSPB cases.
EO 13839 requires OPM to examine whether existing regulations effectuate the principles in the executive order and if not, OPM is directed to propose and make available for public comment, new regulations that effectuate EO 13839. OPM’s guidance indicates that it has undertaken this process and will propose new regulations as appropriate. In the meantime, the OPM guidance reminds agencies that to the extent allowed by law (and current Collective Bargaining Agreements), agencies are tasked with conforming internal discipline and performance management policies to the principles enunciated in EO 13839.
I would strongly encourage federal employees who are bargaining unit eligible to join and support their union, as EO 13839 will make the next round of collective bargaining even more important. Additionally, federal sector unions, as well as other federal employee groups, are likely to provide strong comments regarding any newly proposed regulations. To locate and support your union, employees need to determine to which union they are eligible. Most bargaining-unit eligible federal employees are covered by the American Federation of Government Employees, the National Treasury Employee Union, or the National Federation of Federal Employees.
For federal employees the changes listed in EO 13839 will result in a much quicker process, making it even more important that employees who want legal representation obtain representation as soon as possible in the disciplinary or performance management process. If you are a federal government employee who would like assistance with disciplinary or performance related issues, please contact our office online or via telephone at (301) 869-8774 to schedule a consultation.
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