Legal Insider: OPM issues new rules affecting federal employees

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

Pursuant to the Biden Administration’s changes to personnel law for federal employees, the Office of Personnel Management (OPM) has just issued new proposed regulations to rescind many of the prior Administration’s federal employee rule changes. The changes by OPM were those put into motion earlier this year when the President revoked Executive Order 13839 by signing Executive Order 14003. The President, in Executive Order 14003 directed OPM to suspend, revise, or rescind actions implementing Executive Order 13839.

OPM’s new rules will affect federal employees in a few ways and will likely be fully implemented as soon as the short comment period is over. The changes will eliminate the clean record settlement ban, alter performance-based actions, revise probationary period notices, and change a few other personnel issues for federal employees. By far, the most important change is the ability for federal agencies to enter into clear record settlements with federal employees in cases.

Major Changes for Federal Employees

OPM’s proposed rules will rescind several parts of the former Administration changes to civil service rules, including the following:

• Clean Record Settlements: This is the change that everyone has been waiting for. The prior Administration banned federal agencies from resolving federal employment litigation involving clean record settlements, where a person would be able to obtain a fresh start as part of settlement. Both federal employees and agencies disliked the ban because it interfered with their ability to resolve cases. The proposed changes will eliminate this ban and allow federal agencies the discretion to resolve complaints and settle cases in a fair manner.
• Performance-Based Actions Against Federal Employees: The former Administration’s prior rule added language that basically left struggling employees without the ability to obtain assistance in successfully passing performance improvement plans. OPM’s change in the proposed rule would revert back to prior language that provided that as “the agency shall offer assistance to the employee in improving unacceptable performance” during the performance improvement plan process.
• Probationary Notices: Next, OPM’s former rules required federal agencies to notify supervisors at least 3 months before an employee’s probationary period ended (with an additional reminder 30 days before it ended). The rules also required supervisors to make an affirmative decision about whether the employee should stay on the job. The rule had the unintended effect of causing many unjustified terminations and confusion. OPM’s new rules will remove this requirement because it believes that the frequency and timing of notifications should be left up to the discretion of each agency.
• Disciplinary Penalty Determinations: The proposed rule removes many of the former Administration’s new criteria for disciplinary penalty evaluations, restating that a belief that the Douglas factors govern penalties for federal employees, leaving significant discretion to federal agencies.
• National Guard Technician Changes: The proposed rules also would implement new requirements for procedural and appeal rights for dual status National Guard technicians for certain types of adverse actions.

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