By Deborah Hopkins, March 8, 2021
Over the past several weeks, we’ve been anticipating guidance from OPM on Executive Order 14003, and last Friday afternoon, we finally received it. (Who would have ever thought 6 weeks could feel like such a long time!) After an initial read, we’ve highlighted a few items on how EO 14003 impacts the rescinded EOs — items that will answer a number of questions that have been lingering since January 22.
On Executive Order 13950 (Schedule F):
- OPM approvals of agency petitions to move positions to Schedule F are revoked. Any agency that received such an approval must cancel any actions taken based on OPM approval of the agency’s petition.
On Executive Orders 13836 (Rules for Bargaining) and 13837 (Union Time)
- Reopen those contracts, folks. Agencies are directed to reopen any union contract that contains any provision implementing President Trump’s workforce EOs. Not only that, if agencies are currently in the process of negotiations, or even at the stage where an impasse has been taken to the Federal Service Impasses Panel, they are now required to revisit the issue and suspend, revise or rescind any changes that were made or proposed as a result of the Trump EOs.
- Agencies should “take a hard look” to see if EO 13836 influenced the strategies that were used in bargaining with unions. EO 14003 neither requires nor prohibits affected agencies from reopening CBAs on other matters not related to subjects covered by EO 13836.
- Also on 13836, agencies are no longer required to submit CBAs and arbitration decisions to the OPM CBA public database. Interestingly, “OPM, under its own statutory and regulatory authority, is still requiring that agencies submit to OPM, within 10 days of issuance,” any arbitration awards involving performance and misconduct-based actions under chapter 43 and 75.
- On 13837, if agencies negotiated their contracts to limit union official time to no more than 25 percent for any union official, or limited the amount of official time to one hour per bargaining unit employee, agencies must “engage impacted unions, as soon as practicable, to suspend, revise or rescind the actions covered in these CBA provisions.”
An interesting footnote to that: “To the extent agencies were complying with the terms of an expired CBA immediately prior to implementing any EO 13837 requirements, agencies must revert to prior practices until a new agreement is negotiated with the union.” (emphasis mine)
On Executive Order 13839 (Discipline and Performance Accountability)
- “[A]gencies should not delay in implementing the requirements of Section 3(e) of EO 14003 as it relates to any changes to agency policies made as a result of OPM’s regulations.”
OPM will also be amending its recently issued regulations on EO 13839, to comply with 14003. There will be at least a few weeks, if not several months, between now and when OPM’s amended regulations are posted for comment and ultimately become final, where agency actions might be in conflict with the existing OPM regulations that incorporated EO 13839. This OPM guidance lets agencies know they are free to make policy changes to comply with EO 14003 before OPM’s regulations are amended, and agency leadership will not need to be concerned that their policies and subsequent actions are in violation of OPM regulations. In other words, OPM won’t be enforcing those regulations.
For example, agencies would now be permitted to implement a clean record agreement with an employee, even though current regulations prohibit such an action. Eventually the regulations will incorporate the directives found in 14003.
This is just a selection of takeaways, and isn’t comprehensive, so be sure to read the memo for yourself then join me and Ann Boehm on April 8 as we entertain a discussion on what this all means for Federal agencies, as well as how this guidance interplays with Executive Orders 13985 and 13988, in the webinar Biden Executive Orders, OPM Guidance, and an Update on the Status of the Civil Service.
We’re also preparing a list of follow-up questions for OPM, and will have answers in time for the training. We would be happy to include your questions as well, if you’ll send them along. Hopkins@FELTG.com