Follow up about the Executive Order that issued May 25, 2018 concerning Federal Employees.

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/.

 

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