What You Need to Know About the New EOs

By William Wiley, May 29, 2018

Wow, what a news dump Friday late. On Saturday, it was above the fold on page 1 of the Washington Post; it was above the fold, page 1 of the New York Times; and the PBS News Hour called it the most significant change to our civil service in over a generation. Who knew that President Trump’s three new Executive Orders issued last week would cause such a stir in the media? “Unprecedented changes by which the White House has made it easier to fire bad federal workers by curbing their protections.”

And they are all wrong.

Yes, the President issued three new Executive Orders related to the civil service last week. And, yes, they are significant. But they do not – repeat, do not – curb existing civil service protections or really create very much that is new at all.

However, what they do for you and to you is mandate the government-wide exercise of existing flexibilities in the civil service laws that have always been there and which some forward-looking agencies have been doing for decades. You have to read the Executive Orders themselves to get the full feel of what is being ordered for the Executive Branch by the President. However, until you get a chance to do that, here’s a summary of what you need to start doing now to be in compliance with the orders:

Unacceptable Performance

The White House has concluded that a number of agencies have not been acting fast enough to deal with non-performers. In our FELTG opinion, the White House is right. If you are a management official in human resources or legal in a federal agency, you are to immediately change your practice to conform with the following:

• The Executive Order drops the concept of an “improvement” period and instead has begun to use the legally-correct term of “demonstration” period. It takes much less time for an employee to demonstrate whether he can do his job than to see if he can improve in doing his job. This movement in concept corrects the error that OPM made back in the early 80s when it created the acronym “PIP” (first, Performance Improvement Period, then Performance Improvement Plan) in reference to the period mandated by law for a demonstration of acceptable performance. Forward-looking agencies such as HHS have already moved in this direction by dropping the acronym “PIP” and describing the period as an “Opportunity to Demonstrate Acceptable Performance.”
• In understanding that the period is to “demonstrate,” not necessarily “improve,” the EO requires agencies to limit these periods to 30 days. That change will be a great relief to federal supervisors who often are told that the performance period should be 60, 90, or even 120 days in length. One participant in a FELTG seminar earlier this year told us that his HR advisor advised him that the period had to be six months long. Woof. No wonder so many supervisors think it is hard to fire poor performers.

This mandate for a government-wide approach to poor performance is not a curbing of employee protections. The protections are the same as they have been since 1979. It is simply a recognition that some agencies have strayed from the concept of the efficient handling of a performance problem and directing that they focus on getting the job done more quickly while simultaneously honoring the statutory protections of most all federal employees.

Adverse Actions

We use the Unacceptable Performance procedures for holding employees accountable for meeting their performance standards. We use the Adverse Action procedures for holding employees accountable for adhering to workplace rules. The EOs require that agencies change their procedures for firing employees who engage in misconduct in the following manner:

• Make it clear that while progressive discipline is a factor to be considered in whether an employee should be fired on the occasion of new misconduct, it is not a mandatory requirement to engage in progressive discipline prior to removing someone. Although this has always been the law, some in the media have misunderstood the concept and have claimed that civil servants cannot be fired without progressive discipline.
• Clarified that past disciple is an aggravating factor in selecting a penalty for current misconduct even if it is for a different type of misconduct. For example, a prior Reprimand for disrespectful conduct would be just as aggravating when selecting discipline for the subsequent misconduct of AWOL as would be a prior Reprimand for AWOL. Recent MSPB decisions issued by Board members appointed by the previous administration have discounted prior discipline if it was different from the current misconduct. The EO corrects that unwarranted drift in our case law.
• As many of you readers know, the majority of Board members serving in the previous administration came up with a concept that drove us all crazy: The Terrible Trilogy. Those three cases issued in 2010 abandoned decades of case law that held otherwise and ordered that agencies discipline all employees at the same level for the same misconduct throughout the agency. Given that this is a physical impossibility and not helpful at all in holding employees accountable, we all suffered mightily. Goodness knows this newsletter whined long and loud about the damage being caused by the Trilogy. The EO makes it clear that this is not to be the rule in the future. Deciding officials will be able once again to discipline employees independently, not restricted by the discipline meted out to other employees by other deciding officials.
• When a supervisor decides that an employee should be fired for misconduct or performance, she has to give the employee notice that she is proposing the removal. The employee then has at least seven days to defend himself by responding to the notice. The deciding official can issue a decision any time after the employee responds. Unfortunately, some agencies have been waiting weeks, months, and occasionally years to issue these decisions. Now these decisions must be issued within 15 business days.
• The 7-day notice period, above, can be extended to no more than 30 days under the EO.

Labor Relations

Two of the three EOs deal specifically with employees in a collective bargaining unit. We’ll address those significant changes in a later article.

For those of you who have been regular readers of our FELTG newsletter and have attended our FELTG seminars over the years, these changes will look very familiar. We have routinely cajoled, begged, and lectured agency HR and legal officials to approach accountability in this manner. We have strongly criticized MSPB when it has varied from these core concepts. Have the President’s advisors been reading the FELTG newsletter? Have they consumed our textbook UnCivil Servant? Have they sat in our seminars, hiding their identities, and soaking up all this good stuff as we dished it out? Or, maybe they actually contacted us and asked for our opinion as to how things could be improved within the current system without the need for new laws?

Well, aren’t you the inquisitive one, My Pretty. Unfortunately, some things have to remain private, for national security reasons. However it happened, you’d better start coming to our seminars and tuning into our webinars if you want to be on the cutting edge of the evolution of federal employment law. Whether we are steering it or just guessing where its going, there’s nobody else out there who can get you this close to the future of our business. Wiley@FELTG.com.

Read the full text of the EO here.

Join FELTG for a webinar on the new EOs on June 13. Register here.