President Donald Trump already has signed legislation expediting and streamlining rights of employees at the Department of Veteran Affairs. He now has passed Executive Orders (EO) that will impact other federal employees. The EOs are: Executive Order Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining (May 25, 2018); Executive Order Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles (May 25, 2018), and; Executive Order Ensuring Transparency, Accountability, and Efficiency in Taxpayer Funded Union Time Use (May 25, 2018). Here, I give a few random thoughts on the merit system principles, or civil servant, Executive Order (EO).
If in trouble, get an experienced attorney immediately. Here are few reasons why:
The EO asks for reports of disciplinary actions not decided within specified time periods. You will not have a lot of time before you get a decision on a proposal to discipline. In addition, agencies are encouraged to limit the notice period to 30-days. Information on discipline will be shared with other federal agencies which could impact getting another job. If reprimanded or getting any other notice that recurrence of the alleged behavior or performance could results in future discipline, get some legal advice and consider a plan for the future. Agency’s discretion to employ Chapter 75 procedures to address unacceptable performance of an employee is limited; I think this means performance improvement periods in many cases and a bad faith-issued PIP can be difficult to beat. Suspension instead of removal is not encouraged. A separate EO provision is that progressive discipline need not be used if an offense justifies removal.
That is, you will not have a lot of time if proposed for discipline but also need to get ahead the curve early, not wait for the proposal to discipline or performance improvement period. Again, an experienced attorney please or at least someone willing to do the necessary work without too many billable hours, and not the person with the best web page or advertisements nor even the nicest person.
In a specific case concerning stay focused on the underlying statutes and collective bargaining agreements because the EO must be implemented consistent with applicable law and does not abrogate an existing collective bargaining agreement.
Tread carefully with supervisors on performance plans and achieve performance objectives. Also, watch for the Office of Management Budget (OMB) reports because within 15 months of the adoption of OPM rules implementing the EO, the OPM Director report, through OMB, the effect of those rules, including their effect on the ability of Federal supervisors to hold employees accountable for their performance.
The head of each agency shall take steps to conform internal agency discipline and unacceptable performance policies to the principles and requirements of the EO but, as said before , underlying statutes mandate mitigation of discipline, discrimination, whistle blower, and other protections. But, know whether these statutes apply early because mitigation most always is done (or not done) at the agency level, not during an appeal of an adverse action and for multiple other reasons.
Those are but a few thoughts. A future President can reverse these EOs. For now, the Director of the Office of Personnel Management (OPM) is directed to issue guidance on implementation of the civil service order, so stay tuned. You can read these Executive Orders yourself by visiting White House.gov and search for them.
William Aramony, Law Offices 