Sunday May 27, 2018, we discussed the Executive Order (EO) Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles (May 25, 2018). Between Memorial Day and today, Section 5 of the EO already is impacting some of my cases, and has become issue in one case in particular.
Section 5 provides: Ensuring Integrity of Personnel Files. Agencies shall not agree to erase, remove, alter, or withhold from another agency any information about a civilian employee’s performance or conduct in that employee’s official personnel records, including an employee’s Official Personnel Folder and Employee Performance File, as part of, or as a condition to, resolving a formal or informal complaint by the employee or settling an administrative challenge to an adverse personnel action.
Agency heads have 45-days from the date of the Order to implement provisions. I am hearing in my case that after 45-days agencies cannot resolve discrimination cases by removing alleged discriminatory performance appraisals and related documents from an employee’s file. We await Equal Employment Opportunity Commission (EEOC) guidance because the cases I am referencing already are before an Administrative Judge at the EEOC who wants to see settlements. We expect other developments under this section in the future. A take home for now is resolve cases soon, if possible, if a “clean record” is your goal.
You can read the Executive Order at: https://www.whitehouse.gov/presidential-actions/executive-order-promoting-accountability-streamlining-removal-procedures-consistent-merit-system-principles/.
William Aramony, Law Offices 