By Dan Gephart, November 6, 2023
As his term wound down three years ago, then-President Donald Trump signed an Executive Order that created a new category of Federal employees called Schedule F, much to the dismay of numerous Federal employees, unions, good government groups, and academic experts.
In his first days in office, President Biden signed an Executive Order to abolish Schedule F. Yet, the concept lives on. Several presidential candidates and elected officials have expressed support for Schedule F and other similar plans to make large swaths of the Federal workforce at-will employees. That’s why the Office of Personnel Management proposed a rule last month that could make it very difficult for future administrations to revive Schedule F
OPM Deputy Director Rob Shriver (pictured above) took time to talk with FELTG this month about the proposed rule and other issues. Shriver is serving his second stint with the agency. He was Deputy General Counsel for Policy from 2009-2012.
DG: How has OPM changed since you last worked for the agency?
RS: The agency has been through a lot, including an effort by the prior administration to eliminate it. A lot of people moved on to other opportunities due to the uncertainty, and it took some time to rebuild the agency. We were doing that during the pandemic. It was quite a challenge.
As we were working to rebuild the agency, we had the report that NAPA (the National Academy of Public Administration) did about OPM, which came out in the spring of ’21. We were able to take NAPA recommendations and build that into our strategic plan and focus on strengthening our role as the Federal government’s strategic human capital advisor.
Our compliance function remained critical, upholding the merit system principles. But we wanted to also prove to agencies that working with OPM is a good thing that will help them meet their objectives. We have led a lot of hiring initiatives. We were proactive on resetting labor relations. We’d done some unprecedented cross-OPM collaboration with IRS [Internal Revenue Service] and BOP [Bureau of Prisons] on acute hiring challenges.
What remained constant throughout were the commitment of employees. They care deeply about the mission.
The agency went through a painful period, but it does present an opportunity to take a fresh look at what we think OPM’s role should be for the Federal government as we build back.
DG: Why now for the proposed rule on civil service protections and merit system principles, and why this process as opposed to an Executive Order?
RS: I’ll say this upfront: A professional, merit-based, nonpartisan civil service is critical to our democracy. It’s important that career civil servants are able to carry out their duties without fear of reprisal for not shaping their analysis and opinions based on the political agenda of the party in power. We can’t allow the American public to think that civil servants are valued for loyalty to the party in charge rather than for their subject matter expertise. That will not only hurt service delivery to the American public, but it will make it very hard to recruit people who are experts in their field, as well as early career talent who care most about agency mission over politics. If we can’t compete for the best talent, it’s the American public who will suffer.
The previous administration attempted through “Schedule F” to upend the longstanding system that ensures decisions to hire and fire career civil servants are based on merit and not loyalty to the President. That was a stark departure form 140 years of merit system principles.
What we’re trying to do is clarify and reinforce those longstanding laws. President Biden already issued an EO that revoked the prior administration’s EO to set up Schedule F and we’ve issued this proposed regulation to clarify some of the issues that Schedule F created. It’s frankly the latest in a round of issues OPM has taken to strengthen the Federal workplace:
- Increase pay for 67,000 Federal employees, many of whom were on the frontlines of our fight during the COVID-19 pandemic.
- Lead in pay equity by issuing a proposed rule to prohibit use of previous salary history in setting pay for employment offers.
- Shift to a skill-based approach to help agencies hire the talent they need and expand opportunities for positions that do not require certain degrees.
- Expand opportunities for early career professionals and support federal agencies with more avenues to recruit talent for their teams.
- Advance DEIA [Diversity, Equity, Inclusion and Accessibility] in the federal government to ensure our workforce reflects the variety of talent and lived experiences across the nation.
We want a transparent process that involves the public in voicing its views on this important policy. The rulemaking process is important and the right way to go about creating a policy like this. It gives the public and stakeholders the opportunity to offer input. We’ll evaluate what we hear from them and ultimately codify our final regulations.
When you do it this way, if a subsequent administration wants to change the policy, they’ll have to go through the same transparent process. And then they’re going to have to justify the basis for change. We think that our regulation is very strong and grounded in the law. Anybody who wants to change it by going through the same regulation process will have their work cut out for them.
DG: How does this rule change the process of moving employees into excepted service?
RS: The proposed regulation does three things:
- First, the proposed rule would clarify that the status and civil service protections an employee has accrued cannot be taken away unless the employee gives up these rights voluntarily. Basically, once you earn civil service protections as a federal employee, you keep them.
- Second, the proposed rule would clarify the definition of positions that are “confidential, policy determining, policymaking, or policy-advocating” to mean noncareer, political appointments. These positions do not have civil service protections, and this change would prevent that exception to those protections, which is aimed at political appointments, from being misapplied to career civil servants.
- Finally, the proposed rule establishes procedural requirements for moving positions from the competitive service to the excepted service and within the excepted service. This change creates transparency and an appeals process for federal employees when any such movement purports to strip them of their civil service protections.
DG: How would this rule impact Federal supervisors’ ability to hold employees accountable for poor performance or misconduct?
RS: Nothing would impact that. There are already tools and processes in place to address unacceptable performance and misconduct. And this rule doesn’t change any of those rules or processes. Agencies still have the ability to address unacceptable performance or misconduct the way they already have.
Schedule F would’ve made categories of employees at will and terminations would not be based on performance. Instead, agencies could hire and fire people without following the merit process.
One more point I’d like to make on this: I think the Federal workforce is the most accountable and scrutinized workforce in the nation because of offices of IG, public audits, public budget processes, professional oversight, FOIA, investigation journalists, and strong whistleblower protections. So, I think it’s important when we talk performance management to put all of that into context.
DG: You are currently going through a process of bringing remote workers back to the physical office. How is that process going, and what is the final goal?
RS: There is a very technical distinction between remote workers and teleworkers. Remote workers work from their home all the time, and don’t regularly report into the office. Teleworkers have a hybrid arrangement — sometimes from home, sometimes from the office.
Our focus now is primarily on teleworkers, and how much time they spend in the office. This is very much a natural progression of the work we’ve been doing since the beginning of the pandemic. It started with everybody going on maximum telework, as we lived through the pandemic. Then we had the vaccine, treatments were available, and we could begin a reentry process.
As we went through the reentry process — we started evaluating what was accomplished during maximum telework and using lessons learned.
It’s not enough to just require people to come into the office for a particular amount of time, but that time should be meaningful. How do we make that in-person time meaningful?
Bringing people in to sit on screens and Zoom calls all day isn’t it. We need a core group of people working together to build those relationships. So that’s been the emphasis. How do we make that work more meaningful? Agencies are increasing in-person time in the office, figuring out what works best for them. It always needs to be driven by serving the American public.
DG: Supervisors in our training classes are always asking us what they can do to improve employee morale and retention. What do you think is a good place to start?
RS: Many employees in the Federal government would probably like to get paid more, but given the way our pay system works, there is only so much an individual supervisor can do about that. There are retention bonuses. They can make use of the awards and incentives. So it is important to make full use of those tools.
But every supervisor can focus on employee engagement. Make sure employees feel empowered. Set up channels of communication so they can be heard, and that expertise can be used.
Dogged determination to deliver on the agency’s mission can motivate folks when they can feel like they’re having that impact. They come to government because they care, they can feel like they’re effective doing that, that they’re given authority, and have the ability to use their expertise.
We also talked a little about performance and tools already in place. Using those tools to reward excellent performance and hold employees accountable for results creates a culture of excellence that is important for employee morale.
[Editor’s note: FELTG’s flagship UnCivil Servant: Holding Employees Accountable for Performance and Conduct, which discusses some of the accountability tools mentioned above, will be held again on Feb.14-15. Register here. Or to find out how to bring this training directly to your agency, email info@FELTG.com]. Gephart@FELTG.com