News from the Whitehouse: On May 25, 2018, hours before the start of Memorial Day weekend, President Trump issues three executive orders with potentially far-reaching negative consequences for federal employees.
Executive Order 13839 contains some provisions covering the entire civil service, making several changes which make it more difficult to challenge or correct disciplinary actions against federal employees. Section 2 makes a number of changes:
- Section 2b and 2d specify that agencies are no longer required to use progressive discipline
- Section 2c downgrades consideration of disparate penalties issues
- Section 2f requires agencies to issue decisions with 15 business days of the end of the employee’s response period, preventing agencies from letting proposed discipline remain undecided for extended periods (which some agencies have done at times)
- Section 2g directs that the advance notice period for major adverse actions under Chapter 75 should be the statutory 30 day minimum period
- Section 2h encourages agencies to use Chapter 75 adverse action procedures in performance cases
- Section 2j calls for agencies to give priority to performance over tenure in reductions in force (RIFs)
Sections 3-4 call for renegotiation for collective bargaining agreements to make removals non-grievable, to exclude provisions on progressive discipline and requiring Chapter 43 procedures in performance cases. Section 4c further limits Chapter 43 performance improvement periods to 30 days.
Perhaps the most damaging provision is Section 5, which prohibits agencies from settling appeals or complaints (including MSPB appeals, whistleblower reprisal complaints or EEO complaints) if doing so would modify or expunge discipline or negative performance evaluations. This provision, if fully implemented, will impair if not outright prohibit many common forms of settlement agreement. According to the most recent public data, roughly 28% of EEO complaints, 23% of MSPB appeals (33% of adverse actions and whistleblower reprisal complaints), and 7.5% of OSC whistleblower complaints settled–in many cases for remedies now barred by Section 5. Indeed, all of OSC’s non-stay favorable actions in whistleblower reprisal complaints in FY15, FY16 and FY 17 were by settlement, as discussed in this blog. As a result, potentially well over 10,000 additional cases per year that could otherwise have settled potentially now must be litigated through merits hearing for the employee to receive a remedy.
Section 7 calls for OPM to review the possible need for implementing regulations within 45 calendar days.
Executive Orders 13836 and 13837 target federal sector unions. E.O. 13836 calls for agencies to coordinate negotiating strategies and common language for renegotiating collective bargaining agreements. E.O. 13837 limits unions’ access to official time and to agency office space (if procured below market rates).
Portions of these executive orders have already been challenged in court and in Congress. Further, the ability of these executive orders to bind MSPB adjudication of appeals has been questioned.
If you are a federal employee in need of legal representation in matters before the MSPB, the EEOC or the OSC, and need assistance, you might want to request an initial consultation with one of Passman & Kaplan‘s attorneys.
