The Office of Personnel Management’s newest regulation will make it even more difficult to terminate incompetent and poorly performing federal workers.

On September 18, 2023, the Office of Personnel Management (OPM) proposed new regulations: Upholding Civil Service Protections and Merit System Principles. Landmark filed a regulatory comment on November 15 challenging these regulations.

Although worker protections exist to protect civil servants from politically motivated firings, these protections make it almost impossible for agencies to terminate employees for misconduct or poor performance. After a year of employment, federal employees gain civil service protection. If an employee with these protections is underperforming, the agency must provide the employee with an opportunity to improve his or her work. If the employee does not meet the standards for improvement, the agency can choose to fire them. The employee then has a right to appeal the termination to the Merit Service Protection Board or through the agency’s grievance procedure. Appeals are burdensome and time-consuming tasks that can take years to resolve.

These proposed regulations are in response to a now-nullified Executive Order from President Trump that would have made it easier to fire underperforming employees by directing agencies to move a portion of their workers to a newly created pay schedule (Schedule F) in the Excepted Service. The bureaucracy composes the Competitive Service, where employees face competitive hiring, and the Excepted Service, typically appointed employees selected on merit. After moving to Expected Service, employees would lose the worker protections previously accrued, meaning they could be terminated without the long appeal process. Under OPM’s proposed rule, when a federal employee moves between the Competitive and Excepted services, they retain previously accrued protections.

This will make it difficult for agencies to terminate underperforming employees. In the Excepted Service, a worker reports to new supervisors and has new responsibilities. It makes little sense that they should retain the same protections they originally earned. If an employee cannot meet the standards required by a new position, the agency must have tools available to promote the efficiency of the agency.

This proposal is also burdensome for agencies and may even go beyond the scope of OPM’s regulatory authority. Under 5 U.S.C. 1302(d), OPM is empowered to prescribe “reasonable” regulations for agencies to follow. The proposal creates a maze of new regulations for agencies to follow when an employee moves to the Excepted Service. These regulations are not reasonable as it is not clear how this will improve the effectiveness of the federal bureaucracy. Likely, they will only further complicate and slow down the federal government.

OPM is needlessly complicating an already overwrought employee termination process. OPM claims that in clarifying civil service protections for employees moving to the Excepted Service they are following the longstanding interpretation and intent of the law. However, the regulations say nothing about this particular matter. Furthermore, this question has not been litigated at any level.

Landmark believes Congress should clarify civil service protections, not OPM.

Given the regulatory burden and legal problems presented with this regulation, Landmark has requested the proposed rule be rescinded.

Read the comment here.