By Barbara Haga, January 11, 2021

Late last year, OPM issued new regulations on the process for determining retention standing in a reduction-in-force (85 FR 81839). The comment period ends Jan. 19.

These regs implement a requirement from EO 13839, “Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles.”  Section 2 of the EO entitled “Principles for Accountability in the Federal Workforce,” sets a list of requirements that we are all familiar with such as eliminating the requirement for progressive discipline and the directive to issue decisions in 15 business days.  The last item on that list was that agencies should prioritize performance over length of service when determining which employees would be retained after a RIF. That item indicated that regulations would have to be issued under Sec 7 of the order for this to occur. Sec 7(a) stated:

Implementation. (a) Within 45 days of the date of this order, the OPM Director shall examine whether existing regulations effectuate the principles set forth in section 2 of this order and the requirements of sections 3, 4, 5, and 6 of this order. To the extent necessary or appropriate, the OPM Director shall, as soon as practicable, propose for notice and public comment appropriate regulations to effectuate the principles set forth in section 2 of this order and the requirements of sections 3, 4, 5, and 6 of this order.

As a result, OPM determined to change retention order. Currently, employees are listed by tenure, veterans’ preference, then length of service that includes augmentation based on the average of the last three appraisals assigned in the prior four-year period. The order under the proposed regulations would be tenure, the total value of the last three ratings assigned in the prior four-year period, veterans’ preference, and length of service.

What OPM Didn’t Adopt

OPM’s proposed regs change the determination of retention within 5 USC 3502. The regs are not as drastic as what was done several years ago at the Department of Defense. Section 1101 of the NDAA for Fiscal Year 2016 granted DoD authority to establish procedures which provide that the order of retention would be based primarily on performance. In any DoD RIFs occurring on or after Jan. 19, 2017, employees are placed in retention order by performance first. Their retention order is 1) rating of record; 2) tenure group; 3) average score; 4) veterans’ preference; and 5) DoD service computation date-RIF. Within the performance category, the DoD system also categorizes those who have periods of assessed performance of 12 months or more over those who have less than 12 months of assessed performance.

What Will it Mean?

I spent my career working for two agencies (NASA, DoD), that have populations with higher average ages than many other agencies. How does that impact RIF? The vast majority of employees would have more than three years of service as a civilian employee, so virtually everyone is Tenure Group I. While we had some temporary and term employees and new Federal employees from time to time, when you looked at the overall population basically all our employees were in the same Tenure Group. If there is not a lot of differentiation with tenure, then under the proposed regulations, the factor that will have the greatest impact will be performance.

I don’t have a problem with performance being the determining factor in principle. It makes sense. At the end of the RIF, you would hope to have your best people still working for you carrying out whatever functions remain. My issue is whether the appraisals are good enough to have that kind of impact.

Are the Appraisals Sturdy Enough?

I spend a lot of time training on performance topics and working with HR practitioners and managers on how to use the system effectively. I was responsible for the operation of  the performance management programs at various times during my career.  I’ve seen things that make me question whether annual assessments legitimately capture the level the employee achieved.

Are the elements designated as critical really critical? I spend a considerable amount of time reviewing performance plans. I see scary things. It’s not as bad as seeing dead people (nod to The Sixth Sense), but it’s enough to make me cringe. Sometimes, the thing identified as critical is fine, but the measures are off. Even if those things are correct, I worry whether the assessment reached when applying the measures to that critical thing is legitimate. What about the manager who gives a higher rating than what the employee deserves because he knows that there is going to be a grievance or EEO complaint if the employee doesn’t end up with the summary rating desired? Or the manager who rates everyone the same because it’s easier than explaining distinctions among the employees?

Or the upper-level manager who violates 5 CFR 430.208(c) by instructing subordinate managers that they may only have a certain percentage of employees at the top rating level?  Or the manager who would have initiated removal of an unacceptable performer, but upper management directs her to give a Level 3 rating instead?

I’m not the only person concerned. Dr. Howard Risher is a consultant in the areas of compensation and performance management.  He has been involved in studies of Federal employee performance and compensation over many years. He was part of a group that was involved in the study that led to the Federal Employees Pay Comparability Act in 1990, and he was also part of the group that recommended performance-based pay for Federal employees in 2004. Dr. Risher writes frequently for Government Executive. In December, he wrote: “An Office of Personnel Management proposal to link layoffs to performance ratings was unexpected. If the ratings were valid, it would make sense but ratings have little credibility.” Ouch.

Given that these regulations are tied to EO 13839, which is likely to die very soon perhaps we will never see final regulations that incorporate this change; but the prospect worries me. Haga@FELTG.com

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