By William Wiley, February 22, 2021
Well, it didn’t take long, did it? In his first three days on the job (not bad for a probationer), President Biden recognized what most every reader of this newsletter already knows: “Career civil servants are the backbone of the federal workforce.” Take THAT, you crummy old political appointees. You just got slammed by The Man in the White House.
On Jan. 22, 2021, the White House issued the “Executive Order on Protecting the Federal Workplace,” developed in large part to set aside several EOs issued by the previous White House. Those Trump EOs, in the eyes of many, undermined or had the potential to undermine a number of core statutory protections for career federal employees.
It’s our job here at FELTG, among other things, to try to explain to normal people what actions like this really mean out there on the front lines where most of you in the FELTG Nation spend your time trying to do the work of government. So here we go with our insightful and occasionally scintillating analysis. (Editor’s note: For more detailed analysis, join Ann Boehm and Deborah Hopkins for an encore presentation on Changing Course: Understanding Biden Executive Order on Labor Relations, Performance, Discipline, and Schedule F on Thursday at 2:30 pm.)
First things first: DO NOT BE MISLED BY WHAT YOU HEAR OR READ IN THE MEDIA. Whenever you read a newspaper article about these EOs or see a talking head “expert” on CNN or Fox, keep in mind that those (usually) well-intend folks are there to grab your eyes, not necessarily to provide detailed guidance to exactly what is happening. “If it bleeds, it leads” is a decent motto for a reporter, but that doesn’t always fit with the bottom line to what’s really going on. For example, from the very first that the previous EOs hit the ground in the summer of 2018, articles in the media often read as if it was the End of the World for Federal employees. Our friends on the union side were horrified and appalled at what was happening to their rights. Lawyers who represent employees in appeals and grievances were beside themselves with the restrictions being imposed by the White House on the Federal workforce protection processes. Even Federal judges, when called upon to rule on related cases before them, did not always take the time to parse out exactly what the Trump EOs were doing, and not doing, to the civil service.
Our job here a FELTG is to inform and provide guidance related to civil service law. Whether it bleeds or not, makes little difference in our analysis of these issues. Neither should yours. Read those articles and watch MSNBC or Newsmax every chance you get. Just keep in mind that you need a more balanced analysis to decide what you have to do to implement this new Biden EO. So here we go with our view of balance:
Executive Order on Protecting the Federal Workplace
There are a number of issues addressed in the Biden-EO that are important, but beyond the scope of this limited article:
- The dreaded Schedule F is revoked (❤).
- Centralized OPM control of labor relations is revoked.
- The direction that management representatives negotiate to restrict union time, deny unpaid union access to government facilities, and limit the scope of grievance procedures is revoked.
- The prohibition on negotiating the “permissive” subjects of bargaining, 5 USC section 7106(b)(1), is revoked.
These issues arose because of the issuance of EOs 13836, 13837, and 13957. As a practical matter, these three EOs (of the four being rescinded) were the most controversial from a legal standpoint and were challenged in Federal court immediately upon issuance.
That leaves EO 13839, “Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles.” Unlike the other Trump EOs being set aside by the Biden EO, there were no big legal issues being put into play. Rather, EO 13839 simply directed agencies to exercise their existing legal discretion, defined by 40 years of MSPB case law, in a particular manner. A number of articles written at the time of issuance described this Trump EO as taking away existing employee rights. Well, as we wrote in this newsletter at the time, there were NOT any employee rights being violated. Yes, the EO directed that managers exercise their existing flexibilities in a narrow manner disliked by a number of employee representatives in our field, but that didn’t make the EO mandates illegal.
Here’s what the Biden EO says about this particular “accountability” EO:
Sec. 3 (c) Executive Order 13839 of May 25, 2018 (Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles), is hereby revoked.
Sec. 3 (e) The heads of agencies whose practices were covered by Executive Order … 13839 shall review and identify existing agency actions related to or arising from those orders. Such actions include:
Sec. 3 (e)(v) Revisions to discipline and unacceptable performance policies, including ones codified in bargaining agreements, issued pursuant to section 7(b) of Executive Order 13839;
Sec. 3 (f) The heads of affected agencies shall, as soon as practicable, suspend, revise, or rescind, or publish for notice and comment proposed rules suspending, revising, or rescinding, the actions identified in the review described in subsection [above].
Carefully notice what this EO requires you to do (and, conversely, what it does NOT require you to do):
- Read section 7(b) of Trump Executive Order 13839, which says, “The head of each agency shall take steps to conform internal agency discipline and unacceptable performance policies to the principles and requirements of this order,”
- Determine which agency discipline and performance policies were modified because of EO 13839, and then
- Rescind those policies.
These are the requirements that EO 13839 mandated you to include in your agency’s policies:
- Limit opportunity periods to demonstrate acceptable performance (DPs/PIPs), generally, to 30 days.
- Do not prohibit removing an employee simply because a different employee was not removed for comparable conduct.
- Do not require suspension of an employee before proposing to remove that employee.
- When selecting a penalty, consider the employee’s disciplinary record and past work record, including all past misconduct — not only similar past misconduct.
- Issue decisions on proposed misconduct removals within 15 business days of the end of the employee reply period.
- Limit the written notice of adverse action to 30 days.
- Use the adverse action (misconduct) removal procedures in appropriate cases to address instances of unacceptable performance.
- Prioritize performance over length of service when determining which employees will be retained following a reduction in force.
- Do not, in general, modify an employee’s official personnel records as part of the resolution of an employee’s complaint, grievance, or appeal.
- Provide detailed reports periodically to OPM relative to removals, settlements, and disciplinary actions.
Steps 2 and 3, require agencies to rescind any of the above requirements in agency policies IF AND ONLY IF those policies were implemented because of the mandates of Trump EO 13839. Remember, there is nothing inherently illegal in these policies. In fact, they closely track well-established MSPB case law, Board decisions that acknowledge that agency managers have significant flexibility when disciplining and removing non-productive civil servants. If you had any of these policies in place before EO 13839 was issued, or developed these policies independently of EO 13839, then the Biden-EO does not require you to rescind them.
For example, if your agency independently decided to issue a policy that a DP generally should not exceed 30 days, you may keep it in place. President Biden isn’t saying that there’s anything wrong with a 30-day DP, just that a decision to implement a 30-day DP is not something that he thinks should be mandated by a Presidential order. He has said he does not believe in an “imperial Presidency.” The abolition of EO 13839 (and, in many ways, the parallel revocation of EOs 13836 and 13837) is a reflection of that style of management, allowing these decisions to be made by lower-level managers, not by mandate from the Big Kahuna himself.
Bottom Line: Saying that the Biden EO has restored “employee rights” to the civil service is a limited characterization. At least relative to EO 13839, President Biden has restored “management flexibilities” relative to decisions being made by agencies when dealing with poor performers and misbehaving employees. For example, under the Trump EO, an agency could not offer an employee a clean record in exchange for the employee withdrawing an appeal. Under the Biden EO, an agency can now offer a clean record in resolution of a complaint. It doesn’t HAVE to offer a clean record, but it can. Greater management flexibility can be a good thing.
On the other side, however, increased management flexibility can result in inexperienced managers exercising their flexibilities in ways that do not necessarily lead to an efficient and effective federal workforce. For example, we have it on good authority that one of the reasons that the Trump EO limited DPs to 30 days was because records show that some federal supervisors were initiating 90, 120, even 6-month DPs. President Biden has now restored the ability of agencies to return to such extended demonstration periods if agency policy-makers so choose.
Now that you have your flexibilities restored, you might want to consider coming to an FELTG seminar or two for help in deciding how to exercise those flexibilities legally. Based on the many years of experience possessed by just about every one of our instructors and speakers, we can show you what the law and case law is relative to all of these civil service management issues, guide you through the decision-making process while weighing risks and benefits, and even assist you in exercising the options that you were denied under the previous EOs.
We’ve never claimed that we should make agency decisions for you, but we do claim to know the legal parameters in which you can act. It’s a new day in the civil service. Take advantage of it while you can. Wiley@FELTG.com