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OFFICE OF PERSONNEL Management Agenda relating to the and, if necessary, removing poor MANAGEMENT Workforce for the 21st Century. performers and employees who commit At the time revisions to these misconduct. Notably, M–17–22 directed 5 CFR Parts 315, 432 and 752 regulations were proposed, there were agencies to ensure that managers have RIN 3206–AN60 judicially imposed limitations on the tools and support they need to implementing certain other portions of manage performance and conduct Probation on Initial Appointment to a Executive Order 13839. These revised effectively to achieve high-quality Competitive Position, Performance- regulations were not intended to results for the American people. Based Reduction in Grade and implement portions of the Executive Agencies were recently reminded of Removal Actions and Adverse Actions Order that were previously enjoined these important requirements in OPM when OPM initially proposed them. As guidance issued on September 25, 2019 AGENCY: Office of Personnel the previously enjoined portions of the and entitled: Maximization of Employee Management. Executive Order are now fully effective Performance Management and ACTION: Final rule. and binding on executive agencies, Engagement by Streamlining Agency OPM anticipates proposing additional Performance and Dismissal Policies and SUMMARY: The Office of Personnel revisions to regulations, pursuant to the Procedures. Management (OPM) is issuing final Administrative Procedures Act’s notice- E.O. 13839’s purpose is based on the regulations governing probation on and-comment process, consistent with merit system principles’ call for holding initial appointment to a competitive the President’s expressed policy goals. Federal employees accountable for position, performance-based reduction performance and conduct. The The Case for Action in grade and removal actions, and applicable merit system principles state adverse actions. The final rule will With the issuance of Executive Order that employees should maintain high effect a revision of OPM’s regulations to (E.O.) 13839 on May 25, 2018, President standards of integrity, conduct, and make procedures relating to these Trump set a new direction for concern for the public interest, and that subjects more efficient and effective. promoting efficient and effective use of the Federal workforce should be used The final rule also amends the the Federal workforce—reinforcing that efficiently and effectively. 5 U.S.C. regulations to incorporate statutory Federal employees should be both 2301(b)(4)—(b)(6). The merit system changes and technical revisions. rewarded and held accountable for principles further state that employees DATES: Effective November 16, 2020. performance and conduct. Merit system should be retained based on the principles provide a framework for FOR FURTHER INFORMATION CONTACT: adequacy of their performance, employee conduct that is aligned with Timothy Curry by email at employee inadequate performance should be the broader responsibility Federal corrected, and employees should be [email protected] or by government employees assume when telephone at (202) 606–2930. separated who cannot or will not they take the oath to preserve and improve their performance to meet SUPPLEMENTARY INFORMATION: The Office defend the Constitution and accept the required standards. Id. E.O. 13839 states of Personnel Management (OPM) is duties and obligations of their positions. that implementation of America’s civil issuing revised regulations governing In keeping with merit system principles, service laws has fallen far short of these probation on initial appointment to a the President’s Management Agenda ideals. It cited the Federal Employee competitive position; performance- (PMA) recognizes that Federal Viewpoint Survey which has based reduction in grade and removal employees underpin nearly all the consistently found that less than one- actions; and adverse actions under operations of the Government, ensuring third of Federal employees believe that statutory authority vested in it by the smooth functioning of our the Government deals with poor Congress in 5 U.S.C. 3321, 4305, 4315, democracy. The Federal personnel performers effectively. E.O. 13839 also 7504, 7514 and 7543. The regulations system needs to keep pace with finds that failure to address assist agencies in carrying out, changing workplace needs and carry out unacceptable performance and consistent with law, certain of the its core functions in a manner that more misconduct undermines morale, President’s directives to the Executive effectively upholds the public trust. burdens good performers with subpar Branch pursuant to Executive Order Finally, the PMA calls for agencies to colleagues, and inhibits the ability of 13839 that were not subject to establish processes that help agencies executive agencies to accomplish their judicially-imposed limitations at the retain top employees and efficiently missions. time of the proposed rule, and update terminate or remove those who fail to On September 17, 2019, OPM issued current procedures to make them more perform or to uphold the public’s trust. proposed regulations governing efficient and effective. The revised Prior to establishment of the current probation on initial appointment to a regulations update current regulatory PMA, the Office of Management and competitive position, performance- language, commensurate with statutory Budget (OMB) issued a memorandum to based reduction in grade and removal changes. They also clarify procedures agencies on April 12, 2017 entitled ‘‘M– actions, and adverse actions (84 FR and requirements to support managers 17–22—Comprehensive Plan for 48794, September 17, 2019). The in addressing unacceptable performance Reforming the Federal Government and proposed regulations were revising and promoting employee accountability Reducing the Federal Civilian OPM’s regulations to make procedures for performance-based reduction-in- Workforce.’’ M–17–22 called on relating to these subjects more efficient grade, removal actions and adverse agencies to take near-term actions to and effective. The proposed regulations actions while recognizing employee ensure that the workforce they hire and were also amending the regulations to rights and protections. The revised retain is as effective as possible. OMB incorporate other statutory changes and regulations support agencies in called on agencies to determine whether technical revisions. After consideration implementing their plans to maximize aspects of their current policies and of public comments on the proposed employee performance, as required by practices present barriers to hiring and regulations, OPM is now issuing these Office of Management and Budget retaining the workforce necessary to revised regulations to implement certain (OMB) M–17–22 (April 12, 2017), and to execute their missions as well as requirements of E.O. 13839 as well as to fulfill elements of the President’s appropriately managing the workforce fulfill the vision of the PMA and the

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objectives of M–17–22. These revisions their components and compile one expressed support for providing not only will support agency efforts in consolidated report for submission to notifications to supervisors about implementing E.O. 13839 and M–17–22, OPM using the form attached to the probationary periods ending but and pursuing the PMA, but also will guidance memo. Forms must be requested clarification on how the facilitate the ability of agencies to submitted electronically to OPM via process should be implemented. deliver on their mission and provide email at employeeaccountability@ Additionally, included among the good service to the American people. opm.gov generally no later than 60 days comments of Federal agencies were Ultimately, these changes support following the conclusion of each fiscal concerns regarding: The consequence of President Trump’s goal of effective year. In lieu of outlining the data supervisors not taking affirmative steps stewardship of taxpayers’ money by our collection requirements in OPM to retain employees before the end of a government. regulations, OPM will issue reminders probation period; the non-delegation of this requirement annually and Data Collection of Adverse Actions from the head of the agency to provide periodic guidance consistent adjudicate retaliation claims, as well as Section 6 of E.O. 13839 outlines with the requirements of E.O. 13839. whether such ‘‘decisions could be certain types of data for agencies to Public Comments perceived to be politically motivated collect and report to OPM as of fiscal resulting in claims of whistleblower year 2018. To enhance public In response to the proposed rule, retaliation’’; and whether agencies may accountability of agencies, OPM will OPM received 1,198 comments during satisfy the requirement to provide collect and, consistent with applicable the 30-day public comment period from assistance before or during the law, publish the information received a wide variety of individuals, including opportunity period without placing from agencies aggregated at a level current and retired Federal employees, agencies at risk of acting contrary to necessary to protect personal privacy. labor organizations, Federal agencies, statute or other OPM regulations. OPM may withhold particular management associations, law firms, Many of the comments were from information if publication would and the general public. At the national labor organizations and their unduly risk disclosing information conclusion of the public comment members, including many which were protected by law, including personally period, OPM reviewed and analyzed the seemingly submitted using text from a identifiable information. Section 6 comments. In general, the comments template. This widely utilized letter requires annual reporting of various ranged from categorical rejection of the expressed general opposition to the categories of data, including: (1) The proposed regulations to enthusiastic number of civilian employees in a support. Many comments focused on proposed regulations. Specific concerns probationary period or otherwise issues relating to fairness, the expressed included: Commenters’ employed for a specific term whose opportunity to demonstrate acceptable confusion about probationary period employment was terminated during that performance, and the protection of notifications, the lack of required period or term; (2) the number of employee rights. utilization of progressive discipline and civilian employees reprimanded in Several Federal agencies, the discouraged use of tables of writing by the agency; (3) the number of organizations, and commenters agreed penalties, the existence of adequate civilian employees afforded an with many aspects of the proposed assistance for employees with opportunity period by the agency under regulations. Those in support of the unacceptable performance to section 4302(c)(6) of title 5, United regulatory changes cited the benefit of demonstrate improvement, and the loss States Code, breaking out the number of streamlined processes and the benefits of ability to modify personnel records such employees receiving an to management of the Federal workforce through settlement agreements. Other opportunity period longer than 30 days; associated with increases in efficiency commenters had similar concerns in (4) the number of adverse actions taken and accountability. An agency addition to concerns regarding whether against civilian employees by the commented that the use of progressive the revised regulations were consistent agency, broken down by type of adverse discipline has led to many delays in with existing statutes, other regulations, action, including reduction in grade or removal and hardship for supervisors. case law, and merit principles. OPM pay (or equivalent), suspension, and The agency highlighted that this rule reviewed and carefully considered all removal; (5) the number of decisions on will give more discretion to supervisors comments and arguments made in proposed removals by the agency taken to remove problematic employees and support of and in opposition to the under chapter 75 of title 5, United States shorten the years-long process for proposed changes. The comments are Code, not issued within 15 business getting rid of poor performers and those summarized below, together with a days of the end of the employee reply with misconduct issues, thus increasing discussion of the changes made as a period; (6) the number of adverse the efficiency of the service. In addition, result of the comments. Also actions by the agency for which some organizations commended OPM summarized are the suggestions for employees received written notice in for reiterating that progressive revisions that we considered and did excess of the 30 days prescribed in discipline is not a requirement. One of not adopt. In addition to substantive section 7513(b)(1) of title 5, United these organizations further noted that comments, we received several editorial States Code; (7) the number and key progressive discipline has grown within suggestions, one of which was adopted. terms of settlements reached by the most agencies to the point of being a Finally, we received a number of agency with civilian employees in cases roadblock in many instances to comments that were not addressed arising out of adverse actions; and (8) removals or suspensions that would below because they were beyond the the resolutions or outcomes of litigation promote the efficiency of the service scope of the proposed changes to about adverse actions involving civilian because there was no prior discipline. regulations or were vague or employees reached by the agency. Also, with reference to tables of incomplete. On July 5, 2018, OPM issued guidance penalties, this organization stated that In the first section below, we address for implementation of E.O. 13839. This the rule is ‘‘right on point’’ in its general or overarching comments. In the guidance included instructions for each reference to tables of penalties as sections that follow, we address department or agency head to contrary to the efficiency of the service. comments related to specific portions of coordinate the collection of data from Some agencies and organizations the regulations.

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General Comments Two management associations, while and others stated that they are Federal agencies, management offering their support of the rule, unnecessary. One national union and a associations, some Federal employees emphasized the importance of training. commenter voiced opposition to all and some members of the public One management association urged proposed changes except the expressed strong support for the OPM to act with all haste to process the whistleblower provisions. In expressing changes. An agency concurred with the comments it receives, issue a final rule, their opposition, other commenters proposed rule as written and other and ensure managers are educated and remarked that the rule purports to individual commenters and trained about the changes. This accomplish the goal of ‘‘assist[ing] management associations asserted that management association asserted that agencies in streamlining and clarifying the rule changes are prudent and long ultimately, OPM proposes much needed procedures and requirements to better overdue. Some commenters stated that and reasonable reforms that give support managers in addressing they had observed Federal employees management clearer control over their unacceptable performance and who do not perform their jobs workforce from the initial hiring process promoting employee accountability for acceptably, expressed the belief that the through the individual’s tenure in the performance-based reduction in grade burden on managers in handling under- Federal service. However, the and removal actions as well as adverse performing employees is too onerous, management association stated that the actions,’’ but does not actually do so. A and welcomed the regulation changes as most important determinant of these national union stated that contrary to a means of addressing these issues. rules’ success will be not how they are what the proposed rule states, these Commenters stated that the current written but how the managers and regulations will not reward good rules protect ‘‘bad’’ employees and this supervisors are trained on their workers or promote public trust in the change would make it easier for implementation. The management Federal government. A commenter employers to remove ‘‘bad’’ employees association stated that managers and asserted that because civil servants are and focus more time on the ‘‘stellar’’ supervisors must be given the tools and dedicated to Government service and employees including rewarding them. support to institute these reforms within work with pride regardless of the Another commenter referred to these their offices. Further, the management conditions, the performance association stated that performance management system should reciprocate changes as common-sense reforms that appraisals for managers should be tied the same tolerance and adaptability will aid in holding all Federal to their adherence to these rules. This when agencies are administering employees more accountable. Another management association asserted that, disciplinary action against Federal commenter stated that it is time to hold in order to create a culture that values employees, which, the commenter all Federal employees accountable, accountability and efficiency, leaders in observes, would not be the case if these including management. One the Federal government must be changes are adopted. commenter, who did not identify efficient and accountable in One commenter stated that, on its whether he or she is a member of a inaugurating the changes. Another face, the proposed changes seem union, stated that although the national management association stated that reasonable. The commenter asserted, union may encourage its members to when finalized and implemented, the however, that it appears as though the voice disagreement, the commenter rule will provide much needed goal is to reduce Government rules, agrees with the rule. This commenter simplicity and clarity for federal leaders regulations, agencies and employees. also asserted that for far too long Federal who are responsible for managing an The commenter disagreed with these government unions have protected poor accountable workforce. reductions as agencies and employees performers. Some commenters asserted OPM acknowledges the support for keep our country moving forward and that Federal employees should not the rule received from commenters. In serving people. Another commenter expect to be treated differently than regard to tools and support to assist asserted that adoption of the proposed private sector workers and voiced their managers and supervisors, one of the rule would demonstrate poor judgement support of the rule changes. A requirements of E.O. 13839 is that the and a blatant disregard for the Federal commenter fully supported the rule and OPM Director and the Chief Human government’s most valuable asset, its believed it is long overdue for the Capital Officers Council undertake a employees. Federal government to get in sync with Government-wide initiative to educate OPM disagrees with those the private sector when addressing both Federal supervisors about holding commenters who challenge the employee performance and conduct. employees accountable for unacceptable underlying validity of and necessity for The commenter added that the proposed performance or misconduct under those these regulations. Congress has changes will assist in retaining rules, and that this undertaking begins conferred upon OPM general authority appropriate employee safeguards while within a reasonable time after the to regulate in these areas; see, e.g., 5 promoting the public trust in adoption of any final rule issued to U.S.C. 3321, 4305, 7504, 7514 and 7543. government. Another commenter effectuate the principles of OPM is also promulgating these rule supported the proposed rule because accountability in the Federal workforce changes to implement the requirements high performing employees will now be in Section 2 of E.O. 13839. of E.O. 13839 and M–17–22, as well as able to be rewarded and subpar Other commenters expressed to fulfill administration policy priorities employees removed from an agency. A numerous other concerns about the laid out in the PMA. Furthermore, these commenter also expressed full support proposed rule. National unions, rules are being promulgated under the and stated that supervisors should be organizations and many other President’s authority provided in 5 held equally responsible as rank and file commenters urged OPM to withdraw U.S.C. 3301, 3302 and 3303 and which employees. A management association the proposed rule and consider what he delegated to OPM. These changes not expressed that overall it was in favor of they believe to be more reasoned and only support agency efforts to the proposed rule, although some equitable approaches to addressing implement E.O. 13839 and M–17–22, members of this management employee probation, and employee and to pursue PMA goals, but also will association ‘‘expressed concern in the performance and conduct concerns. facilitate the ability of agencies to area of subjectivity if someone has a Some commenters stated that the deliver on their missions and provide boss that is ‘out to get them.’ ’’ changes to the regulations are invalid, service to the American people. To carry

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out E.O. 13839, the rule facilitates a regulations as written or substantially affecting their working conditions.’’ Federal supervisor’s ability to promote revise them to conform to due process, This national union further noted that civil servant accountability while fundamental fairness, Federal statute ‘‘while OPM has the authority to issue simultaneously preserving employee’s and Federal court precedent. regulations in the area of federal labor rights and protections. We also disagree We disagree with the general relations, it may not dilute the value of with the commenters’ contention that assertions contesting OPM’s authority employees’ statutory right to the proposed rule does not streamline and challenging the legality and collectively bargain.’’ They further state and clarify procedures and requirements constitutionality of the revised ‘‘OPM does not consider how its to better support managers in addressing regulations. OPM is promulgating these proposed regulations will severely unacceptable performance and pursuing regulations under its congressionally impede the right to collectively bargain. adverse actions. We decline to make granted authority to regulate. Not all The regulations should not be changes based on these comments existing provisions were implemented because they would because the proposed rule effectuates constitutionally or statutorily mandated, diminish the core elements of collective changes that, in fact, make procedures and to the extent they were not, OPM bargaining by reducing negotiations more efficient and effective. The has authority to revise them to make the over primary conditions of employment proposed rule was published to process work more effectively. In so including discipline, improvement facilitate the ability of agencies to doing, OPM has been mindful of the opportunities, and settlements.’’ deliver on their mission and on President’s expressed policy direction. In response to these comments, OPM providing service to the American Further, this rule will not eliminate any notes that there are numerous ways in people. For example, the requirement of employee rights provided under statute. which the proposed rule does not the proposed rule for timely Federal employees will continue to impact collective bargaining at all. notifications to supervisors regarding enjoy all core civil service protections Generally, in fact, the regulations probationary periods will assist agencies provided by statute, including merit simply provide direction to agency in making more effective use of the system principles, procedural rights, officials exercising the discretion probationary period. Additionally, the and appeal rights. afforded to them by law, including the proposed rule establishes limits on the An agency pointed out that when the right to discipline employees and the opportunity to demonstrate acceptable proposed regulations were drafted, there right to hire. Legally negotiated performance by precluding additional were judicially imposed limitations on agreements, for instance, could not force opportunity periods beyond what is implementing portions of E.O. 13839 agency officials to select a specific required by law, which encourages precluding inclusion of these subjects in penalty based on employee misconduct, efficient use of the procedures under the proposed regulation. The agency require them to enter into settlement recommended that, due to the court chapter 43. As another illustration of agreements that provide employees injunction being lifted, any matter that streamlining and clarifying clean records, or preclude them from would have been included in the performance-related procedures and utilizing probationary periods when regulation, but for the injunction, be requirements, the proposed rule makes making decisions regarding the nature added so that agencies can benefit from clear that an agency is not required to of an appointment. These decisions those matters as well. remain at the discretion of the agency’s use progressive discipline under subpart The agency is correct that various 752.202. Specifically, the proposed rule authority as to discipline, settlement, sections of E.O. 13839 were subject to and hiring and employment. In other adopts the requirement to propose and judicially imposed limitations when cases, the proposed rule provides only impose a penalty that is within the these regulations were proposed and aspirational goals that constitute guides bounds of tolerable reasonableness. that the proposed regulations did not for agency officials rather than absolute Further, the proposed amendments seek to incorporate enjoined sections of mandates that would preclude emphasize that the penalty for an the E.O. For the same reason, however, bargaining over these subjects. An instance of misconduct should be these sections were not subject to example is the provision providing that tailored to the facts and circumstances, notice-and-comment rulemaking agencies should limit to the required 30 in lieu of the type of formulaic and rigid requirements. As a result, such changes days the advance notice of adverse penalty determination that frequently will not be included in the final rule action when practicable. Similarly, the results from agency publication of tables with respect to the current rule-making provision explaining that agencies are of penalties. Thus, OPM believes the process. not required to use progressive rule does make procedures more As the previously enjoined portions of discipline is a guide, not a mandate. efficient and effective and is consistent the Executive Order are now fully Although the proposed revisions to with E.O. 13839’s policy goals and effective and binding on executive these Government-wide regulations may requirements. agencies, OPM anticipates proposing result in limiting collective bargaining Many commenters and organizations additional revisions to regulations, on certain topics, we disagree with the asserted that OPM did not have the pursuant to the Administrative view that these changes are contrary to authority to promulgate this rule Procedures Act’s notice-and-comment the vision and spirit of the Statute (5 because employee procedural rights are process, consistent with the President’s U.S.C. chapter 71). They are in accord governed by statute and should be expressed policy goals, at a future date. not only with both of these concepts but modified only through congressional One national union noted that ‘‘the also, and most importantly, with the action. Some commenters said the rule proposed regulations will diminish letter of the law, including 5 U.S.C. would be unconstitutional if effected. employees’ right to collectively bargain 7117. Further, 5 U.S.C. 7101(b) states in An organization stated that the by limiting the topics that are its entirety that ‘‘[i]t is the purpose of proposed regulations are contrary to negotiable. They noted the regulations this chapter to prescribe certain rights statutory authority and established case are contrary to the vision and spirit of and obligations of the employees of the law, and directly undermine the due the Federal Service Labor-Management Federal Government and to establish process protections afforded to Federal Relations Statute (the Statute), which procedures which are designed to meet employees. Another organization stated allows Federal employees to collectively the special requirements of Government. that OPM should dispense with these bargain and participate in decisions The provisions of this chapter should be

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interpreted in a manner consistent with administration efforts to circumvent of services to the American people. This the requirement of an effective and Congress on Federal agency organization posited that if the goal is to efficient Government.’’ These provisions appropriations and authorizations, dismantle the civil service, reduce the include significant limitations on cripple unions, remove Federal number of Federal employees by collective bargaining relating to matters employees via proposing drastic agency violating due process rights, and that are the subject of Federal law or budget cuts, and impose ‘‘absurd’’ new increase discrimination, harassment, Government-wide rule or regulation; see Federal workplace policies such as and retaliation in the workplace, these 5 U.S.C. 7117(a)(1). And while restricting telework. changes will have the desired effect. A commenters may disagree, as a matter of The proposed regulations simply commenter remarked that OPM should policy, with the subjects the President implement the requirements of E.O. not forget that procedures were set in has determined are sufficiently 13839, along with the PMA and the place to protect an employee from important for inclusion in an Executive objectives of M–17–22. There is no retaliation or from being removed for Order and federal regulation, it is well correlation between the timing of the arbitrary reasons. established that the President has the notice and any budget or other Citing specifically the Civil Service authority to make this determination administrative process. Reform Act of 1978 (CSRA), a national and that OPM regulations issued Some commenters stated that reform union intimated that the proposed rule pursuant to this authority constitute to the civil service system has long been would permit agencies to act without Government-wide rules under section necessary, but that this proposed meaningful review and that Federal 7117(a)(1) for the purpose of foreclosing rulemaking is the wrong approach. A employees would receive only lip- bargaining. See NTEU v. FLRA, 30 F.3d commenter stated while reform is service to due process and stated that it 1510, 1514–16 (D.C. Cir. 1994). needed, the approach must be fair. was not the purpose of the CSRA to We would also note that certain Further, an organization asserted that bring about such results. This national exceptions to collective bargaining are loosening adverse action standards, as union asserted that instead the heart of set forth in the Statute itself, including demonstrated by a recent non-title 5 the CSRA was the desire to balance the a prohibition on substantively statute for Federal employees and needs of an efficient government with bargaining over management rights as ‘‘simply making it procedurally easier to due process and fundamental fairness outlined in 5 U.S.C. 7106(a). This fire employees does not in practice for Federal employees. The national includes management’s statutory rights improve the overall efficiency of the union stated that the proposed to suspend, remove, reduce in grade or Federal service.’’ regulations upset this balance and stated pay, or otherwise discipline employees. Commenters including labor that they should therefore be Bargaining proposals that would, for organizations generally expressed abandoned. A commenter also stated instance, mandate a particular penalty concern that these changes, separately that the proposed regulations seem determination, and mandate the use of and together, would weaken or vitiate ‘‘anti-union’’ and ‘‘just unfair’’ and that progressive discipline and/or tables of the procedural rights or protections of the proposal ‘‘is an attack on Federal penalties would impermissibly interfere Federal employees. One commenter Employees.’’ Another commenter with the exercise of a statutory asserted that, at a time when protections endorsed the importance of unions and management right to discipline for Federal workers should be stated that these regulations are another employees and thereby not strengthened, this proposed rule attempt to take union rights away. appropriately be subject to bargaining. weakens protections. Many national An organization declared that one of One commenter also suggested that unions, organizations and individual the fundamental principles of this civil the ‘‘article’’ should be open for commenters expressed a desire to service system is due process for dialogue from the union. Because this remain under the current system with Federal employees and the ‘‘for cause’’ comment is not clear, we are unable to its existing protections, citing too much standard for termination. This respond to it. We note, however, that power being given to managers and organization further observed that due what we published is not a proposed supervisors with no corresponding process protections in the civil service article intended for inclusion in accountability, at the cost of destroying system are the most significant collective bargaining agreements a properly functioning workforce. They difference between most non-unionized between agencies and labor argued that the changes would private employees, who are at will, and organizations. These provisions are substantially make the Federal most Federal employees, who can only proposed revisions to Government-wide government an ‘‘at will’’ employer. be removed for cause. The organization regulations issued by OPM. We Another commenter observed that additionally stated that the basic provided a copy of the proposed rule to checks and balances are at the core of principle of due process is derived from labor organizations which have been a functioning democracy and requested hundreds of years of our nation’s civil granted consultation rights with OPM that we not tear down those attributes service experience, which has shown on Government-wide rules or by implementing this ‘‘archaic’’ rule. that the best way to avoid nepotism, regulations effecting any substantive Moreover, an organization stated that discrimination, and prohibited change in any condition of employment removing protections that ensure that personnel practices is to ensure that in accordance with 5 U.S.C. 7117(d) and such actions are warranted does not Federal employees can be removed only provided an opportunity to make promote an efficient, professional and for cause. National unions and comments and recommendations. productive Federal workforce. It commenters further stated that Congress Additionally, all unions were able to instead, they argue, takes the Federal created a comprehensive scheme to submit comments and recommendations civil service steps closer back to the rectify past issues of arbitrary and through the rulemaking process and we spoils system, and thus is a ‘‘big step in discriminatory punishments against have considered and responded to all the wrong direction.’’ Further, an Federal workers and asserted that the comments that were within the scope of organization opined that this proposed regulations weaken those the rule. administration’s approach of protections. The organization further Some commenters asserted that the undermining due process protections is stated that preserving the rights of timing of this notice is suspicious, and the wrong path to reforming government Federal employees is essential to appears to coincide with alleged if the goal is to improve the performance furthering the principles of the civil

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service, merits system and continuous achieve an effective and efficient whistleblower activity. OPM is service, and it does not believe that the workplace when making decisions. The prohibited from waiving or modifying proposed regulations accomplish the rule is intended to clarify the any provision relating to prohibited goals of a fair and merit-based civil requirements in chapter 43 and chapter personnel practices or merit system service. 75 of title 5 of the United States Code principles, including continuing Another commenter stated that OPM and to make sure that employee conduct prohibitions of reprisal for should understand that there is a and performance that are inconsistent whistleblowing or unlawful foundation for the appeals process and with a well-functioning merit-based discrimination. The regulations requested that OPM not create a system are addressed promptly and therefore do not modify these different problem by solely focusing on resolutely. Therefore, the proposed rule protections in any way. The what could be summarized as opening will not ‘‘upset’’ the balance between commenters’ apprehensions about the up punishment without the process, efficient Government and employee rule diminishing or removing review, or oversight that is due. One protection as one commenter stated; it protections against retaliatory action are commenter stated that it is important for will restore it. not supported by the language of the OPM to understand that anything that We also disagree that the proposed rule itself. In fact, the rule reinforces the limits due process for employees is ‘‘a regulations take away union rights. responsibility of agencies to protect dangerous, slippery slope.’’ The Although the proposed regulations may whistleblowers from retaliation. These commenter stated that it is imperative result in limiting collective bargaining requirements are significant because of that we have a strong due process on certain matters of elevated the essential protections they provide. system for Federal employees and a importance to the President and OPM, OPM’s rule incorporates new check-and-balances system so that similar to the impact any other requirements pursuant to 5 U.S.C. 7515 supervisors with perverse incentives Government-wide rule may have under and assists agencies in understanding cannot act unilaterally. Another 5 U.S.C. 7117, the regulations do not how to meet the additional commenter expressed that the proposed change the rights and duties afforded to requirements in connection with rule was poorly drafted and an affront labor organizations in 5 U.S.C. chapter whistleblower protections. The rule to the Federal workforce, citing that it 71. The President has determined that helps to undergird and support agencies does not meet the standards of due these limitations are necessary to make in meeting their requirements to take process. procedures relating to performance- action against any supervisor who We disagree with commenters’ based actions and adverse actions more retaliates against whistleblowers. assertions that the regulation is not efficient and effective and has directed An organization asserted that current consistent with the rights and duties OPM to issue a Government-wide rule statutes and regulations, if appropriately that the CSRA prescribes and removes consistent with this imperative. applied by agencies, provide more than procedural rights. Consistent with E.O. Additional commenters contended adequate means to regulate the civil 13839, the rule streamlines adverse the rule removes protections against service in meritorious cases where actions and appeal procedures, but retaliation. National unions and other disciplinary or performance action is without compromising constitutional commenters voiced concerns that the warranted. This organization stated that Due Process rights. The remaining proposed rule can have the impact of the revisions in the proposed rule are statutory and regulatory procedures for employees being disciplined or removed based on the erroneous stereotype that the Federal workforce meet and exceed for whistleblower activity. A national it is difficult to fire Federal employees constitutional requirements. Employees union stated that Federal employment is and asserted that this is not the case. will still receive notice of a proposed deeply engrained with policies that The organization pointed to the adverse action, the right to reply, a final promote efficiency and high-quality Government Accountability Office decision and a post-decision review of performance, while also protecting report, ‘‘GAO–18–48, FEDERAL any appealable action, that is, what the employees from arbitrary and EMPLOYEE MISCONDUCT: Actions Constitution requires. But further, they discriminatory actions by supervisory Needed to Ensure Agencies Have Tools retain their right to a full-blown and managerial personnel. The national to Effectively Address Misconduct and evidentiary post-action hearing as well union, citing a Merit Systems Protection noted that (based on OPM’s statistics) as judicial review. In fact, they retain a Board (Board) study, stated that almost 1% of the Federal workforce is host of choices of avenues of redress. Congress has implemented safeguards to subject to adverse actions every year. Further, we disagree with the many ensure Federal employees are Arguments against the proposed national unions, organizations and ‘‘protect[ed] from the harmful effects of changes based on alleged erroneous individual commenters who expressed management acting for improper stereotypes concerning the challenges of that the regulation changes would reasons such as discrimination or removing employees disregard the substantially make the Federal retaliation for whistleblowing.’’ This objectives of E.O. 13839. OPM proposed government an ‘‘at will’’ employer. As union stated that the proposed these revised regulations, as required by discussed above, the rule does not regulations will weaken protections for E.O. 13839, in order to promote more remove constitutional Due Process Federal employees and create a system effective and efficient functioning of the rights or statutory or regulatory that gives wide discretion to agencies to Executive Branch and to provide a more procedures. Thus, Federal employees take punitive action against employees, straightforward process to address are not deemed at will as a result of the regardless of whether that action is misconduct and unacceptable rule. Further, the rule promotes fair and inequitable or discriminatory. Another performance, which will serve to equitable treatment of employees commenter asked what the recourse is minimize the burden on supervisors. through its provisions. The proposed for someone who is harassed or Potential misconceptions regarding regulations encourage managers to think mistreated and cannot report it to removal of Federal employees do not carefully about when and how to someone. eliminate OPM’s need to implement the impose discipline and to consider all We disagree with the commenters’ Executive Order by proposing changes relevant circumstances including the suggestions that the proposed regulation that support the Order’s goals. best interests of all employees, the will have the impact of employees being Commenters, including a national agency’s mission, and how best to disciplined or removed for union, stated that the proposed changes

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will allow for unchecked supervisory removals can be beneficial, the rule abuse their authority as a result of the conduct and favoritism. A national gives management more power to rule is unfounded. While commenters union asserted that it is unacceptable for remove someone without just cause. advocated for remaining with the OPM to put forth proposed regulations Moreover, another commenter observed current system, the proposed rule that, in the union’s view, prioritize such that any change to the current regulation carries out the requirements of E.O. arbitrary conduct under ‘‘the phony will only foster the negative feelings 13839. guise of government efficiency and that the commenter believes already Importantly, agencies continue to be effectiveness to eviscerate the protected exists between management and responsible for holding managers rights of employees.’’ Commenters and employees. This commenter expressed accountable for proper use of their national unions voiced concerns that the viewpoint that these matters are authority. Regarding the comments that the regulations will likely cause compounded if one is a person of color the proposed rule impacts employees’ significant harm to employees. A and that ‘‘inclusion of all should be the rights and the role of unions, we believe commenter also stated that employees goal not exclusion due to a difference no the changes appropriately protect would have a constant fear of being matter how perceived [which] is, in my employee statutory rights while removed over minor infractions. In opinion, another form of providing for efficient government another instance, a commenter observed discrimination.’’ Further, another operations. E.O. 13839 requires that creating a ‘‘nebulous employee commenter voiced concern that it will executive agencies (as defined in section concern by threatening discipline and be easier to remove Federal employees 105 of title 5, U.S. Code, excluding the salary decreases,’’ as the commenter and that procedures that provide fair Government Accountability Office) to asserts this proposal does, has a and equitable treatment will be stripped facilitate a Federal supervisor’s ability negative impact on good employees. away, which will sow further distrust to promote civil servant accountability Further, the national union argued that between employees and management while simultaneously recognizing the proposed changes will not achieve and will unnecessarily create employees’ procedural rights and any of the supposed benefits for the unforeseen problems. protections. In response to the comment Government; instead, these regulations In response to commenters that that the proposed rule changes are based will allow good employees to be expressed concern about negative on an Executive Order issued by this terminated and create a high turnover impact on good employees, OPM notes administration which has openly stated rate among Federal employees and will that addressing misconduct or poor its anti-union animus and disregard for cost the Government extra money as performance in this fashion will the laws which govern and protect Federal employees are exposed to the enhance the experience of well- federal workers, we reiterate that the arbitrary whims of supervisory performing employees, because poor policy goals of E.O. 13839 are to personnel. performing employees place a resource promote civil servant accountability strain on more productive employees consistent with merit system principles Other commenters stated that the and damage morale generally. OPM while simultaneously recognizing proposed streamlining effort places the further believes that the positive impact employees’ procedural rights and power in the hands of agencies and associated with more effectively and protections. These are the policy goals leaves employees to be at the will of expeditiously addressing poorly underlying the rule. Notwithstanding their agencies or at the very least opens performing employees outweighs any the commenter’s speculations regarding the door to abuse of power, authority negative impacts. the intent of the rule, the rule changes and the threat of coercion in the Further, national unions and other adhere to legal requirements. workplace. These commenters commenters voiced concern that the A national union stated that the need expressed the view that, currently, rule would give rise to nepotism. for employee protections has been put inherent checks and balances through National unions and other commenters into ‘‘sharp relief’’ by actions of this established practices, peer review, and stated that the proposed rule changes administration which appear to target multistage discipline expose decisions are based on an Executive Order issued Federal employees. Commenters voiced to ‘‘ridicule’’ if improper. Furthermore, by an administration that, in the view of opposition to the proposed rule because commenters asserted that, given what these commenters, has openly stated its it allows employees to be fired for they believe to be the vagueness of this anti-union animus and disregard for the political reasons or other non-work- rule, there is not enough limitation on laws that govern and protect Federal related facets of an employee. A the power of supervisors, and dedicated workers. The commenters asserted that commenter noted that ‘‘people died for public servants can be removed for any these laws were designed to put a halt union rights’’ and OPM should not take reason, including politics. Commenters to nepotism, discrimination and them away. Another commenter stated stated that the proposed rule ‘‘skews the unfairness at all levels of Federal that the rule changes are ‘‘punitive’’ for rights towards management and away employment. This proposed rule, they employees and enable management to from employees who will have little conclude, conflicts with the letter and continue ‘‘bad behavior’’ that is recourse.’’ Asserting that unions were spirit of those laws. arbitrary and without employee created to ensure employees are treated Notwithstanding these assertions, the recourse. This commenter posited that if fairly and management follows the regulation does not permit unchecked these issues were not a reality, unions rules, a commenter questioned what supervisory behavior and favoritism, would have no need to exist. will prevent the abuse of the new rule remove employee protections, or permit Commenters stated that scientists and and who the new rule will protect. The nepotism. The final regulation civil servants most likely to face censure commenter stated that because of the streamlines and simplifies performance- under this administration are those who rule changes, unfairness will perpetuate, based actions and adverse actions render their professional opinions or if not increase, alleged management without compromising employees’ follow scholarly findings and evidence- ineptness. The results, they argue, will statutory rights and protections. The based reasoning and thus the expanded be that employees will leave Federal statutory protections for Federal powers of the proposed rule in no way service or be removed without due employees remain in force and are not benefits the public. process. One commenter stated that affected by the rule. Thus, the concern OPM does not agree that the proposed while changes to discipline and of many commenters that managers will regulations target employees in any

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manner. The final regulations employee’s opinion or viewpoint. All rights is an important element of fair streamline and simplify performance- avenues of redress for employees remain treatment in the Federal workforce. The based actions and adverse actions unchanged by this regulation, and, rule observes and is consistent with the without compromising employees’ should an employee believe that he or merit system principles which state that statutory rights and protections. The she is the subject of a prohibited employees should maintain high statutory protections for Federal personnel action, reprisal, etc., the standards of integrity, conduct, and employees remain in force and are not employee remains able to exercise rights concern for the public interest, and that affected by the rule. to appeal to the Merit Systems the Federal workforce should be used The regulations also do not change Protection Board (MSPB or Board), to efficiently and effectively. The rule and the rights and duties afforded to labor seek relief from the Office of Special the procedures contained therein apply organizations and agencies pursuant to Counsel (OSC), etc. to all employees equally. 5 U.S.C. chapter 71. OPM believes that A significant issue raised in the All employees, including those who these changes are necessary to make public comments concerns the proposed served in the military, and labor procedures relating to performance- rule’s fairness. Many commenters stated organizations continue to have the right based actions and adverse actions more that the rule is unfair, fosters a toxic to challenge or seek review of key efficient and effective. work environment, or weakens decisions. Although we have made Some commenters voiced confusion employee protections. One commenter changes to the proposed regulations, and believe that the rule is another stated that when there is ‘‘no equal procedural rights and other legal action by the administration to fairness,’’ work productivity will suffer protections are preserved. Mirroring arbitrarily punish and dispense with and that OPM ‘‘should tread softly’’ statutory requirements, the regulations Federal employees and union regarding the proposed rule. Another continue to provide employees with representatives in the name of commenter further stated that he has notice, a right to reply, a final written ‘‘efficiency.’’ Many commenters stated seen the workplace be degraded and decision, and a post-decision review of that the proposed rule will make it morale reduced because of vindictive any appealable action. Bargaining unit easier to remove employees who do not approaches to employee relations and employees continue to have the option comply with the administration’s views. questionable policy changes at the to use negotiated grievance procedures In particular, one commenter stated the expense of workplace engagement, over subjects otherwise not excluded proposal was politically motivated and performance incentives, and public while other employees continue to have that the ability of elected officials with health and welfare. the ability to utilize administrative political motives to quickly terminate Additional commenters were of the grievance procedures. These regulations Federal employees leads to excessive view that the proposed rule is senseless do not change the rights and duties influence and poor decision making. and wrong, while another commenter afforded to labor organizations in 5 The commenter observed that it needs stated that the rule is ‘‘morally U.S.C. chapter 71. We believe these to be ‘‘hard’’ to remove a Federal questionable.’’ Many commenters stated changes are necessary to make employee so that they can ‘‘operate that the proposed rule would seriously procedures relating to performance- independently.’’ Another observed that disrupt and remove all notions of based actions and adverse actions more competent people do not deserve to lose fairness when Federal employees are efficient and effective. It is not clear their jobs ‘‘based on who’s in power.’’ subject to adverse actions or that the what the concern is regarding the A commenter stated that one of the rule is ‘‘abhorrent.’’ Multiple comment about ‘‘fostering disparate hallmarks of our current system is its commenters asserted that the proposed standards for application to both freedom from political influence which rule would foster disparate standards for performance and conduct-based could change under this proposed rule. application to both performance and actions.’’ The statutory scheme in 5 One commenter proposed adding conduct-based actions. They expressed U.S.C. chapter 43, Actions Based on protections for those employees who do a view that parts of the rule are merely Unacceptable Performance, and 5 U.S.C. not comply with the administration and confusing, while other parts appear to chapter 75, Adverse Actions, are opined that the protections will prevent be designed to foster contentious labor different and each establishes a distinct employees from inadvertently breaking relations, rather than resolving these procedural process. The proposed Federal laws, help the American public, issues in a cooperative and constructive regulations are consistent with the and prevent costly wrongful termination manner. Commenters voiced concerns statutes that govern these actions. lawsuits. This commenter asserted that regarding fairness for those civil service Regarding those commenters who the rule creates openings for managers employees who are veterans. Without expressed a view that parts of the rule to wield political influence in the providing specifics, a commenter stated are confusing, while other parts appear Federal workplace and to change the this rule is very unfair to those to be designed to foster contentious workforce to meet a personal or political individuals who served in the military labor relations, rather than resolving agenda, rather than fulfilling the and those who work as Federal issues in a cooperative and constructive mission of the organization. Finally, the employees. Still another commenter, manner, we are not able to provide a commenter stated that Americans again without giving a basis for the response without specific reference to deserve a politically neutral Federal comment, voiced concerns regarding the parts of the proposed rule about workforce. stripping away rights of those Federal which they are commenting. In response to these concerns, please employees who have served this nation National unions and other see our earlier discussion regarding and continue to serve and stated that commenters asserted that the approval protections. The statutory protections those rights should be left alone. of the proposed rule will set the for Federal employees remain in force As previously explained, we disagree efficiency of the Federal service back and are not affected by the rule. In that the proposed regulations take several decades and contribute to what addition, the current and revised employee rights away or are unfair. they assert are current issues concerning procedures are content-neutral; there is Although we have made changes to the retention of stellar employees and nothing in the changes that further proposed regulations, statutes that guard recruitment in key agencies. Many permits or encourages the initiation of a against arbitrary actions remain intact. national unions and commenters personnel action based on an Additionally, protection of employee expressed considerable apprehension

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about the rule’s impact on retention and One commenter asserted that, with what from wanting to serve their country in recruitment of employees in the Federal the commenter described as ‘‘the hiring Federal civil service. Another government with an already dwindling restrictions,’’ the proposed rule will commenter asserted that it was hard to workforce. Some commenters pointed result in reducing the efficiency and believe that the proposed rule would out that the rule changes will strength of the Federal workforce as have a positive impact on the Federal undermine integrity and morale as well there will be mass attrition and mass government and that ‘‘adding a ‘lifetime as hamper the recruitment and retention migration away from Federal jobs to the at will’ line to the contract after the first of a quality Federal workforce. Some severe detriment of all U.S. citizens who year will not attract the best and commenters requested that OPM need Federal employees. brightest’’. Further, a commenter stated reconsider given the long-term A commenter stated that the rule that it is deeply troubling that it will be ramifications that this rule would cause serves as additional evidence that the easier to remove Federal employees and and the dire effects these commenters rights of thousands of Federal that procedures that provide fair and believe it would have on employee employees no longer mattered or are equitable treatment will be stripped morale, retention, and recruitment. valued. Another commenter asserted away, which would result in attracting Other commenters stressed that the that these changes are a direct attack on a less qualified pool of applicants. proposed rule would ‘‘wreak havoc’’ on Federal workers and their livelihoods as Additionally, with respect to the stability of the civilian workforce, these rule amendments only make it recruitment, another commenter lower morale, and create a hostile easier for management to punish stressed that the role of a government employee/employer relationship during arbitrarily and fire at will; the changes employee is unique and the individuals a time when many agencies already thus constitute a major blow to the occupying these roles hold specialized suffer from personnel shortages. prospect of the Government becoming a and institutional knowledge not We disagree that the rule will desirable place to work again. Further, common in private enterprise. This unfavorably impact the retention and one national union stated that the commenter went on to state that if the recruitment of employees in the Federal proposed regulations will allow good basic protections of Federal government or undermine morale. The employees to be terminated and create employment are removed, so will be any rule is not a plan for reducing a high turnover rate in the Federal incentive for individuals to seek and recruitment or interfering with the government. apply for government jobs, an impact retention of staff performing at an A commenter also wrote that the that may be hard to overcome or reverse. acceptable level. Rather, the rule carries commenter felt disrespected by efforts Another commenter asked what skilled out E.O. 13839 which notes that merit to remove existing benefits for Federal persons would work for the Government system principles call for holding employees and that this rule may result if they knew they could be disciplined Federal employees accountable for in employees deciding that the private or fired abruptly for very little or no performance and conduct. E.O. 13839 sector is a better option. A commenter reason at all, and the commenter further finds that the failure to address remarked that bad treatment of stated that we need those who are unacceptable performance or employees will ensure the inevitable skilled to perform the functions of the misconduct undermines morale, failure of our government. Federal government. burdens good performers with subpar The assertions that the proposed rule OPM disagrees that the rule will have colleagues and inhibits the ability of would adversely impact retention of an adverse effect on recruitment of executive agencies to accomplish their Federal employees are incorrect and not talented individuals to the Federal missions. Accordingly, the rule is supported by any data. The rule does government. Maintaining high standards intended to have a positive impact on not remove statutory procedural rights of integrity, conduct, and concern for the Federal government’s ability to afforded to Federal employees and does the public interest, as enumerated by accomplish its mission for the American not turn Federal employees into at-will the merit system principles, and taxpayers. employees. The rule does not change furthered by the rule, only serves to More specifically, with respect to the protections of notice, an opportunity help agencies to deliver on their mission retention, commenters asserted that to reply, the right to representation, and and on providing service to American many talented individuals will not the right to appeal to a third-party entity people. It is thus reasonable to conclude consider the Federal government as an (and, eventually, the entity’s Federal that adherence to these standards will employer and those individuals reviewing courts). The rule clearly contribute to successful recruitment currently in the Federal government acknowledges the ongoing obligation of efforts for the Federal workforce. will look elsewhere for employment. Federal employers to provide statutory Referring to the probationary period Some commenters stated that many safeguards to their workforce. It in relation to recruitment, a national agencies have recently executed poorly therefore should be evident from the union stated that in certain regions, the planned office moves and other rule that the Federal government Government experiences challenges in reorganizations which have resulted in remains committed to practices of fair recruiting and retaining first responders. employees leaving in disgust and a loss treatment for employees. In fact, the rule The national union added that the of institutional knowledge, accelerating promotes processes that help agencies Government provides initial training employee losses from attrition. These retain employees who are performing and certification to new employees to commenters stated that poorly planned acceptably and efficiently remove those help fill much needed positions. The changes to Federal employee who fail to perform or to uphold the national union further stated that under performance management such as those public’s trust. the proposed regulations, employees in the proposed rule will ensure similar Commenters also raised concerns who must complete a two-year results. One commenter further reflected about recruitment of talented probationary period upon appointment that imposing damaging rules will make individuals into the Federal workforce. could be terminated based on their employee retention more difficult than A commenter stated that, although the supervisors’ assessment that they cannot in the private sector and that it will existing system may have been overly adequately perform the job duties. The make serving Federal customers generous to employees, the proposed national union asserted that the ‘‘challenging’’ because it is a known fact changes are so ‘‘draconian’’ as to proposed regulations will result in the that ‘‘happy employees work harder.’’ discourage ‘‘our best young people’’ Government losing their investment in

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highly skilled workers and continuing performance and that those actions are out E.O. 13839 to facilitate a Federal to struggle to fill essential first almost always upheld. The national supervisor’s ability to promote civil responder positions, leaving union stated that when cases are not servant accountability while government personnel and property upheld by the Board, this small number simultaneously recognizing employees’ more vulnerable to emergencies. of cases is not a failure of the system but statutory procedural rights and The rule does not change the rather an example of the system working protections. They clarify procedures and procedures for terminating a effectively in a manner that fosters merit requirements to support managers in probationer’s appointment; it merely system principles. The national union addressing unacceptable performance requires that agencies notify supervisors also pointed out that given the reasons and promoting employee accountability to make an assessment of the on which each reversal was based, the for performance-based reduction in probationer’s overall fitness and proposed regulations will not avoid or grade, removal actions and adverse qualifications for continued eliminate similar outcomes in the actions. employment at prescribed timeframes future. The national union asserted that Another national union also before the conclusion of the OPM’s contention that ‘‘interpretations discussed The Case for Action, arguing probationary period. Current regulation, of chapter 43 have made it difficult for that the rule weakens civil service as reinforced by E.O. 13839 and agencies to take actions against protections and that it relies upon a previous OPM guidance, already unacceptable performers and to have premise, as its central argument, that it provides that an agency shall utilize the those actions upheld’’ is thus is too hard to fire Federal employees. probationary period as fully as possible demonstrably untrue. The national The union, without evidence, opined to determine the fitness of the employee union argues, therefore, that changes that underlying that premise is the and shall terminate his services during proposed by OPM to 5 CFR part 432 are belief that more employees need to be this period if he fails to demonstrate unwarranted. It further stated that the fired. It also noted that while OPM fully his qualifications for continued above-referenced case outcomes are relies upon the FEVS, where a majority employment. See 5 CFR 315.803(a). neither anomalous nor confined to of both employees and managers agree In response to the comment regarding performance-based actions. The national that the performance management expenditure of agency resources union further expounded on its point system fails to reward the best and associated with terminations in year two and stated that, going back to fiscal year address unacceptable performance, of a probationary period, OPM believes 2016, the Board’s Annual Report for OPM does not cite responses to specific that while a termination in the second Fiscal Year 2016 statistics continue to FEVS questions that support this year of a probationary term represents a demonstrate that agencies are, in fact, statement. The union goes on to cite loss of value from significant agency overwhelmingly successful in taking responses in 2018 to two FEVS expenses, it would be more wasteful to actions based on misconduct or questions: Question 23—‘‘In my work retain the individual past the performance. Consequently, this unit, steps are taken to deal with a poor probationary period, allow him or her to national union stated that The Case for performer who cannot or will not acquire career status (and adverse action Action that OPM purports to make is improve’’ and Question 25—‘‘Awards in rights), and then be forced to pursue a illusory. my work unit depend on how well formal performance-based action or OPM disagrees with the union’s employees perform their job.’’ The adverse action to remove an employee discounting of OPM’s reliance upon union gave the percentages of the total who had proven to be unable to perform FEVS statistics. E.O. 13839 asserted that respondents who either disagreed or the duties of the position in an the FEVS has consistently found that strongly disagreed with these statements acceptable manner even before those less than one-third of Federal employees and noted that this did not constitute a rights accrued. believe that the Government deals with majority of responders. They also noted One national union stated that the poor performers effectively. OPM that a large percentage of respondents proposed changes are unsupported by believes that this statistic is particularly strongly agreed or agreed that they were the facts and are likely to have an relevant to the intent of E.O. 13839 and held accountable for achieving results overall negative effect on government thus to the changes proposed in these and felt that the overall quality of their operations by reducing due process for regulations. Merit system principles unit’s work was good to very good. Federal employees and increasing state that employees should maintain According to the union, in general, arbitrary and capricious agency high standards of integrity, conduct, and respondents see themselves and others conduct. This national union stated that concern for the public interest, and that in their work units as being held what they described as ‘‘the so-called’’ the Federal workforce should be used accountable and performing well, while Case for Action that OPM sets forth at efficiently and effectively. They further perceiving that others are not. the beginning of the proposed state that employees should be retained Additionally, the national union regulations is not grounded in fact. The based on the adequacy of their asserted that OPM has ‘‘simplistically’’ national union further stated that OPM performance, that inadequate cited FEVS data and not followed looks to the Federal Employee performance should be corrected, and OPM’s own advice, which cautions, on Viewpoint Survey (FEVS), which is a that employees should be separated who the page titled ‘‘Understanding Results,’’ subjective survey of employee cannot or will not improve their that the survey results do not explain perceptions. That union further claims performance to meet required standards. why employees respond to questions as that, although ‘‘a majority of both With respect to the frequency with they do and that survey data should be employees and managers agree that the which agencies prevail at the Board, we used with other data to assess the state performance management system fails do not believe any such success makes of human capital management. to reward the best and address the rule changes unnecessary. As OPM believes that the union’s unacceptable performance,’’ the previously discussed, even if this reliance and characterization of the evidence actually shows that, far from phenomenon is real, statistics FEVS data for 2018 is inadequate to failing to adequately address poor surrounding rate of actions being dismiss The Case for Action. While the performance, Federal agencies routinely sustained does not obviate the need to national union asserts that OPM is take actions against employees based on improve the effectiveness and efficiency ‘‘simplistically’’ citing FEVS data, it allegations of misconduct or poor of the process. These regulations carry appears the national union may be

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doing this to support its own position. are actually appealed to the Board is not FedScope data for Sept. 2018 (most As explained in E.O. 13839, the FEVS relevant to why OPM proposed these recent available data) .... For has consistently found that less than changes. example, IRS employees have an one-third of Federal employees believe One commenter asserted that OPM average return on investment of at least that the Government deals with poor does not state that it has done a Federal $2 in revenue collection per $1 on performers effectively. As noted in workplace root cause analysis to justify enforcement staff costs, according to OPM’s FEVS Governmentwide the proposed rule, and that, instead, GAO–13–151. SSA employees Management Report for 2019, this OPM cites a non-scientific FEVS based performing certain eligibility reviews continued a five-year trend of reporting on subjective opinions. The commenter have an estimated return on investment concerns about the manner in which cautioned OPM that implementing the of $15 in savings per $1 on staff costs, poor performance is addressed. From rule without such analysis can end up as noted in GAO–16–250. Similarly, 2015 to 2019, as few as 28% and as costing Federal agencies, although the productivity changes could result from many as 34% of employees believed commenter did not specify in what way other federal employees, including that steps are taken to deal with poor there could be a cost to Federal auditors, investigators, and inspectors performers in their work unit. agencies. Another commenter criticized general with returns on investment for Additionally, the FEVS is only one of OPM’s use of FEVS results to justify the taxpayers and effects on the economy. the several foundations presented in need to support drastic changes to However, the rule does not assess costs The Case for Action. Merit system regulations. Other commenters stated and benefits and does not present or principles are referred to in The Case for that E.O. 13563 cited within the analyze alternatives.’’ The commenters Action as the basis for holding Federal proposed rule emphasizes the asserted that the rule is likely to have employees accountable for performance importance of quantifying both costs ‘‘an annual effect’’ of at least $100 and conduct. Merit system principles and benefits, of reducing costs, of million in terms of direct and indirect state that employees should maintain harmonizing rules and of promoting costs. In the view of the commenters, high standards of integrity, conduct, and flexibility and that the proposed rule direct costs include appeals and litigation among other costs and indirect concern for the public interest, and that appears to do none of these things. costs include productivity changes and the Federal workforce should be used Some commenters criticized the secondary effects such as economic efficiently and effectively. They further proposed rule because it does not multiplier effects. The commenter did state that employees should be retained include an assessment. Two not further explain what is meant by based on the adequacy of their commenters further asserted that OPM ‘‘economic multiplier effects.’’ performance, inadequate performance should have provided an analysis of the We disagree that the proposed rule should be corrected, and employees costs and benefits anticipated from the does not assess costs or reflect benefits who cannot or will not improve their regulatory action as well as an analysis that will be conferred, that there is a performance to meet required standards of alternatives. The commenters stated requirement for the proposed rule to should be separated. Also, the PMA is that this omission is especially present or analyze alternatives and that a key component of The Case for Action. problematic in light of the Preamble on there is a requirement to conduct a root The PMA recognizes that Federal page 48794 of the Federal Register cause analysis. In The Case for Action, employees underpin nearly all the notice of the proposed rule, which the proposed rule presents the costs and operations of the Government, ensuring ‘‘recognizes that federal employees benefits in numerous instances. We the smooth functioning of our underpin nearly all the operations of the discuss that in the FEVS, a majority of democracy. Further, The Case for Action Government, ensuring the smooth both employees and managers agree that sets forth that prior to establishment of functioning of our democracy.’’ The the performance management system the PMA, the memorandum M–17–22 commenters stated that, because the fails to reward the best and address called on agencies to take near-term proposed rule is a ‘‘significant unacceptable performance. We refer to actions to ensure that the workforce regulatory action’’ under E.O. 12866, the PMA and its call for agencies to they hire and retain is as effective as OPM must assess the potential costs and establish processes that help agencies possible. More recently, E.O. 13839 benefits of the regulatory action. In retain top employees and efficiently notes that merit system principles call addition, the commenters opined that, remove those who fail to perform or to for holding Federal employees in addition to this status as a uphold the public’s trust. The Case for accountable for performance and ‘‘significant regulatory action,’’ the Action considers, as well, M–17–22 conduct and found that failure to proposed rule should also be considered which notably directed agencies to address unacceptable performance and ‘‘economically significant.’’ In the ensure that managers have the tools and misconduct undermines morale, commenters’ view, it is likely to have an support they need to manage burdens good performers with subpar annual effect on the economy of $100 performance and conduct effectively to colleagues and inhibits the ability of million or more unless OPM can certify achieve high-quality results for the executive agencies to accomplish their that Federal departments and agencies American people. As explained in The missions. Finally, the union’s reliance will use the rule to expedite adverse Case for Action, the changes to the on how often agencies prevail in actions of fewer than 1,000 full time regulations are proposed to implement employee appeals before the Board is equivalents (FTEs) Government-wide. requirements of E.O. 13839, the vision undermined by the FEVS data which As the basis for this estimate, the of the PMA and the objectives of M–17– shows that a majority of both employees commenters stated, ‘‘For example, the 22. These proposed changes not only and managers agree that the Proposed Rule would have an effect of support agency efforts in implementing performance management system fails $100 million, such as cost savings, if it E.O. 13839, the PMA and M–17–22, but to reward the best and address would lead to job losses of at least 1,000 also will facilitate the ability of agencies unacceptable performance. In fact, OPM full-time equivalent employees earning to deliver on their mission and on did not state that these regulatory approximately $100,000 per employee providing service to American people. changes are related to how often in salary and benefits. The average Noting that merit system principles agencies win or lose before the Board. salary for federal employees, excluding call for holding Federal employees How often agencies prevail on cases that benefits, was $84,558, according to OPM accountable for performance and

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conduct, OPM also observed that the an agency and that coordinating these performance levels of their workforce, merit system principles require that moving pieces is often a large part of such as the number of employees who employees should maintain high why actions take so long. The successfully completed their standards of integrity, conduct and commenter asked, ‘‘Is it really only the probationary periods and the number of concern for the public trust, and that the case that when there’s a deviation from employees who successfully completed Federal workforce should be used the timeframes, the agency reports it to a performance improvement period. efficiently and effectively. Similarly, OPM and moves on? What are the This union highlighted that much is OPM explained that the merit system consequences?’’ This commenter also invested in recruiting and training principles provide that employees requested that we clarify the extent to employees, and if the government wants should be retained based on the which the proposed rule applies to non- to portray itself as a welcoming adequacy of their performance, executive agencies and employees. workplace, it should place the emphasis inadequate performance should be Although the commenter did not refer on securing a return on that investment. corrected, and employees should be to a particular section, we surmised that The data collection requirement in the separated who cannot or will not the commenter is referring to rule’s preamble carries out E.O. 13839 to improve their performance to meet § 752.404(b) of the rule which provides enhance public accountability of required standards. Ultimately, as that, to the extent an agency, in its sole agencies. It is not a signal to prospective covered in The Case for Action, these and exclusive discretion deems candidates for employment to refrain changes support both the merit system practicable, agencies should limit from joining the Federal workforce. principles and the President’s goal of written notice of adverse actions taken Also, private employers do not have the effective stewardship of taxpayers’ under subpart D to the 30 days responsibility to be accountable to the money by our government. Thus, costs prescribed in 5 U.S.C. 7513(b)(1). Any public in the same way as the Federal and benefits associated with the notice period greater than 30 days must government. proposed rule are assessed in The Case be reported to OPM. Regarding whether Some commenters stated that in for Action. the timeframe is realistic, the provision addition to the issues concerning the We disagree with the commenters’ stipulates that it is required only ‘‘to the legal and technical substance of the assertion that the proposed rule should extent an agency . . . deems rule, there appear to be procedural be considered ‘‘economically practicable.’’ As to what consequences issues as well. These commenters took significant’’ because it is likely to have will ensue for departure from the time objection to the preamble to the rule an annual effect on the economy of $100 period prescribed, the rule provides stating that the rule will not include million or more, unless OPM certifies only for a report to OPM. Finally, in new regulations to codify the ‘‘Data that Federal departments and agencies response to the commenter’s question as Collection of Adverse Actions’’ section use the proposed rule to expedite to the extent to which the proposed rule of the guidance issued by OPM on July adverse actions of fewer than 1,000 full applies to non-executive agencies and 5, 2018, and instead, OPM will issue time equivalents (FTEs) Government- employees, those agencies covered by reminders each year. The commenters wide. The commenters assume title 5 are enumerated in 5 U.S.C. asserted that this is a circumvention of incorrectly that the Federal government chapter 1. requirements for transparent will remove a certain number of FTE A national union critiqued the government, and that they believed positions in one year without any basis requirement for agencies to collect data OPM must issue rules for Federal for arriving at that figure. Furthermore, about disciplinary, performance and agencies to comply with, rather than in response to the commenters’ adverse actions taken against ‘‘conducting business and issuing discussion of direct costs in the form of probationers and employees as directives behind closed doors, eroding appeals and litigation, there is nothing burdensome because it appeared to the the public’s trust rather than building to indicate that the changes pursuant to national union to be intended to serve on it.’’ the regulations will in any way increase no purpose other than to encourage We disagree with the argument that the number of formal disputes generated agencies to take such actions. The union OPM must outline data requirements in rather than make the process more averred that adverse personnel actions this rule and that not doing so is a efficient which will actually save the should be a last resort, not a primary circumvention of requirements for government money. The indirect costs tool for human resource management transparent government. The data put forward by the commenters include and that the rule will only discourage collection requirements are transparent ‘‘productivity changes and secondary the public from pursuing government because they are outlined in the effects such as economic multiplier careers. Yet the overall, unfounded publicly available E.O., and OPM’s effects.’’ To reiterate, the supposition theme of these regulations, according to guidance documents to agencies are that the proposed rule would have an the union is that more Federal typically posted on a public annual effect on the economy of $100 employees need to be fired more Government website. million or more unless OPM certifies quickly. The union stated that OPM 5 CFR Part 315, Subpart H—Probation that the proposed rule would be used to cites no authoritative data or studies to on Initial Appointment to a Competitive ‘‘expedite adverse actions’’ of fewer support this notion and that no Position than 1,000 FTEs is not based on any reputable private sector employer reasonable, objective criteria. OPM is publishes attrition or termination data Section 2(i) of E.O. 13839 providesa unable to fully respond to these for the obvious reason that it would probationary period should be used as comments since the commenter did not send the message to prospective the final step in the hiring process of a explain the basis for their assertions. applicants: ‘‘You don’t want to work new employee. Supervisors should use Another individual commenter wrote here.’’ The union surmises that perhaps that period to assess how well an that the proposed rule is a good idea but that is the point of the data collection employee can perform the duties of a questioned whether the timeframes requirement. job. A probationary period can be a were realistic for management to meet, The union recommended that instead highly effective tool to evaluate a noting that adverse actions and of collecting data on punitive measures, candidate’s potential to be an asset to an performance-based actions require data should be collected on agency agency before the candidate’s review and input from several offices in efforts to improve the skills and appointment becomes final.

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OPM proposed an amendment to 5 the three-month notification would notification methods may be CFR part 315.803(a), which would occur on March 19, 2020, and the one- problematic across agencies. This require agencies to notify supervisors month notification on May 19, 2020. agency suggested OPM clarify that an that an employee’s probationary period OPM has updated the final rule agency’s failure to notify supervisors at is ending, at least three months or 90 accordingly. Agencies have the the proposed intervals does not give the days prior to expiration of the discretion to determine the method for employee any additional appeal rights probationary period, and then again one making supervisory notifications, but with respect to probation. month or 30 days prior to expiration of OPM encourages agencies to use OPM believes such an amendment to the probationary period, and advise a existing automated tools, to the extent the regulation is unnecessary. The one- supervisor to make an affirmative practicable, to comply with the and three-month notification represents decision regarding the employee’s notification requirement. an administrative tool to be utilized fitness for continued employment or Two management associations internally by agencies to promote otherwise take appropriate action. supported the proposed rule, citing efficiency and accountability; it is not Pursuant to current OPM regulations, reports issued by the MSPB and the intended to, and does not, expand or supervisors are currently required to Government Accountability Office otherwise impact procedural rights of utilize the probationary period as fully (GAO) that highlight Government’s probationary employees. An agency’s as possible to determine the fitness of inconsistent and poor use of the non-compliance with these employees and further required to probationary period for new hires and requirements does not give the terminate the services of a probationary for new supervisors. These employee any additional appeal rights employee if they fail to fully organizations also emphasized the beyond those an employee may already demonstrate qualifications for importance of the effective use of have. The procedures for terminating continued employment. Supervisors probationary periods for both new probationers for unsatisfactory choosing to terminate a probationary supervisors and executives. performance or conduct are described in employee under the procedures With regard to the assertion that § 315.804 and those procedures are outlined in Part 315 must do so probationary periods are handled poorly unaltered by the changes here. affirmatively prior to the conclusion of or inconsistently, these concerns are Despite some support for the the probationary period, while an addressed in the current language of the proposed rule, OPM received comments employee is permitted to continue regulation, in part, by encouraging full from many who expressed opposition employment following probation merely utilization of probationary periods and concern. One individual opposed on the basis of the supervisor’s not which allows for effective review of the rule because it does not specify a taking action. Nevertheless, and at the employee fitness for a position and timeframe within which a supervisor heart of this proposed regulation is the through the 90- and 30-day reminders in must respond to the employing agency fact that supervisors actions or the amended regulation which serve with a decision on whether a omissions determine whether a both to promote consistency in this probationer should be permanently probationary employee is retained or process and promote accountability by employed. This individual also terminated in each and every instance. requiring that agencies affirmatively commented that the proposed rule The proposed rule simply reminds determine employee fitness rather than change did not provide an avenue for an supervisors of their responsibility to making such decisions through inaction. employee to address an untimely make an affirmative decision and not Also, the proposed rule does not impact notification from his or her supervisor allow a probationer to become a career supervisory or executive probationary as to his or her continued employment. employ merely by default; it does not periods, which are regulated at subpart Finally, the commenter noted that the alter the decision-making process nor I of 5 CFR 315 and subpart E of 5 CFR proposed rule does not specify any does it in any way alter the regulatory 317, respectively. consequences for a supervisor who fails structure currently in place that governs A management association supported to make a timely notification to the the decision-making process. the proposed rule and commented that employing agency. An agency suggested that OPM amend some agencies have cumbersome and The proposed rule implements the proposed rule to change the 90-day time-consuming review processes which Section 2(i) of E.O. 13839. This section and 30-day notification periods to make the 90-day notification period provides that a probationary period calendar days for clarity. The same ineffective. This organization suggested should be used as the final step in the agency suggested that agencies may OPM add a 180-day notification period hiring process of a new employee. This need to develop stand-alone technology with 90- and 30-day follow up periods. is consistent with OPM’s longstanding solutions for making supervisory OPM is not adopting this suggestion. approach, is supported by judicial notifications because of the lack of OPM believes the proposed intervals decisions, and is also in accord with Government-wide or even department- (three months and one month) before MSPB’s oft-stated guidance urging wide technology solutions and expiration are sufficient. Agencies may supervisors to use the probationary capabilities. This agency recommends adopt more frequent reminder periods if period to the fullest possible extent. See, that OPM account for the time it may they choose to do so. for example, ‘‘The Probationary Period: take for agencies to develop such One agency supported the proposed A Critical Assessment Opportunity’’ automated solutions into any rule noting that it may make managers (2005) and ‘‘Navigating the Probationary implementation timeframes. and supervisors more aware of Period after Van Wersch and OPM agrees that further clarification probationary deadlines, thus preventing McCormick’’ (2007). E.O. 13839 also with respect to the notification periods them from waiting until the last minute encourages supervisors to use that would be helpful. We have modified the to decide whether an employee is fit for period to assess how well an employee proposed language to require agencies to service beyond the probationary period, can perform the duties of a job. E.O. notify supervisors three months and one and requiring them to better utilize the 13839 does not discuss when a month in advance of an employee’s probationary period. The agency also supervisor should notify his or her expiring probationary period. For noted the proposed rule creates a new employee of the supervisor’s decision example, if an employee’s probationary procedural technicality for agencies to pertaining to the employee’s continued period is due to expire on June 19, 2020, overlook, and noted that inconsistent employment. OPM defers to the

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employing agencies as to the frequency, or to otherwise bestow any additional one-year probationary period is timing, and method of supervisor- rights upon probationary employees. insufficient to assess employee employee communications. OPM also Should an agency decide to issue a effectiveness. These commenters defers to agencies in terms of how to termination of an employee during the recommended that instead of extending address supervisors who fail to make probationary period, the agency will the probationary period, OPM should timely decisions regarding their still rely upon the same assessment leave the current probationary period in probationary employees, thus creating pursuant to 5 CFR 315.804 regarding place and encourage management to the potential for the retention, at least in adequacy of employee performance and make better use of this period. the short run, of an employee unfit to conduct. OPM disagrees with these comments, perform the duties of the position and The same agency commented that an because the commenters have the imposition of additional burden if assessment of the capability of existing misunderstood the proposed rule. The the agency determines to attempt to automated tools, or some other method rule does not seek to modify the length remove the employee through a for notification to supervisors that of the probationary period on initial performance-based or adverse action. probationary periods are ending is appointment to a competitive position Another individual was concerned required to ensure consistent and (currently established as one year in that the 90-day and 30-day period efficient compliance with this § 315.801). The rule seeks to encourage reminders would cause managers to regulation. Agencies have the discretion agencies to fully utilize the current second guess their hires. The to determine the method for making the probationary period by requiring commenter believes that a manager notifications to supervisors. OPM agencies to notify their supervisors three should know what the options are if encourages agencies to use existing months and one month prior to the there are issues within the first year of automated tools to facilitate timely and expiration of an employee’s the employee’s appointment and should consistent notification and understands probationary period of their obligations not need a reminder. OPM disagrees that, for agencies that do not have this to make an assessment as to whether the with this comment. The purpose of the current technical capacity, there will be employee should be retained beyond the proposed rule is to encourage a need to take steps to implement a one-year probationary period. supervisors to make more effective use reliable system in a timely manner. The Seven national unions opposed the of the probationary period. The proposed rule does not, however, proposed rule, commenting that it probationary period is the final, require the use of automated tools. requires supervisors to make a decision evaluative stage in the examining One individual commented that the prior to the end of an employee’s process, not a period to ‘‘second guess’’ proposed rule places probationers in probationary period, thereby depriving new hires. The three-month and one- limbo by requiring a supervisor to an employee of the full probationary month notification reminders are provide an affirmative determination for period during which the employee can designed to help supervisors take full continued employment beyond the demonstrate his or her fitness for advantage of the probationary period in probationary period. In addition, this continued employment. These unions order to make informed decisions about commenter noted the proposed rule stated that probationary periods are set whether to retain an individual in the does not address situations (or in statute, and that there is no agency’s permanent workforce. The penalties) for supervisors who fail to requirement or obligation on the part of requirement also promotes make a determination either positively an employee to seek a determination at accountability amongst supervisors by or negatively with respect to the the end of his or her probationary reminding them of their very important determination and noted a lack of period. These organizations accurately responsibility to assess employee fitness fairness because of this. note that the proposed rule does not during the probationary period to OPM disagrees with these comments. address the status of an employee whose ensure that public resources in the form The proposed rule does not require supervisor fails to make a determination of FTEs are being utilized smartly and supervisory determination for continued for continued employment before the efficiently. employment. The proposed regulation probationary period ends. For these An agency asked whether OPM requires agencies to remind supervisors reasons, these entities believe this foresees any negative impact related to of their obligation to make an requirement is deceptive and will the ability of an agency to terminate affirmative decision regarding the worsen the Federal Government’s hiring probationary employees if the agency employee’s fitness for continued and retention issues. Several members fails to notify supervisors both at the 90- employment or otherwise take of one of the unions echoed the same day and 30-day mark that an employee’s appropriate action. Supervisors who let concerns and added that it is improper probationary period is ending, and the the probationary period lapse without for OPM to substitute its reasoning for supervisor fails to make an affirmative consideration of the probationary that of Congress. decision regarding the employee’s employee for continued employment As a point of clarification, the length fitness for continued employment or run the risk, in the short run, of having of a probationary period on initial otherwise take appropriate action. to retain poor performers or employees appointment to a competitive position is OPM does not foresee non- otherwise inadequately suited to currently established as one year in compliance with this notification perform the duties of a job. This failure § 315.801, not statute. Nevertheless, the requirement having this unintended to act will also have the effect of amended regulation does not mandate effect. As explained previously, the increasing the burden on the agency if that a supervisory determination for proposed language is an internal it later seeks to remove the employee continued employment take place at any administrative requirement intended as through performance-based or adverse particular time nor does it establish the a reminder to supervisors to make action procedures. However, as 90- or 30-day benchmarks as the timely determinations regarding explained earlier, it is within the conclusion of a supervisor’s assessment probationary employees. It is not discretion of each agency how they period. Rather, the rule merely requires intended, however, to modify the choose to address any such non- agencies to remind a supervisor to make current performance assessment compliance. an affirmative decision regarding the process, change the manner in which a Two individuals commented that employee’s fitness for continued supervisor makes such a determination, OPM has not addressed why the current employment and take appropriate

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action. The supervisor may use this the expiration of an employee’s disagrees with the union’s comment that reminder to begin gathering materials or probationary period. In addition, the the proposed rule encourages agencies collecting his or her thoughts while still proposed regulation requires an agency to terminate employees simply because deferring the actual decision to the end to advise a supervisor to make an the probationary period is ending. The of the probationary period. Thus, the affirmative decision regarding the purpose of the proposed rule is to assist rule does not prevent an employee from employee’s fitness for continued supervisors in using the probationary completing the entire one-year employment and take appropriate action period properly (i.e., as a period to probationary period. OPM believes the in a timely manner to avoid additional determine whether an individual is fit proposed measures will improve the burden. The proposed rule does not for continued employment). Federal Government’s ability to hire and prevent an employee from completing Another national union opposed the retain individuals more effectively than the one-year probationary period. rule stating that it is unnecessary and is currently the case. The intent is to Further, after completing a that it sends the message that it is more avoid situations in which a probationer probationary period, with or without an important to terminate probationers who is not fit for continued employment affirmative supervisory determination, than assist them with successfully is retained because a supervisor was not the individual becomes a non- completing their probationary period. aware of the probationary period probationary employee and attains The same union also commented that expiration date. OPM trusts that appeal rights in accordance with 5 OPM should address the consequences commenters share the goal of providing U.S.C. 7511. As noted above the of when an agency fails to notify the the most comprehensive information proposed rule does not require an supervisor at the 90- and 30-day marks, possible to supervisors to enable them employee to receive an affirmative and whether this situation creates a to make an informed decision that will supervisory determination in order to potential defense for a manager faced ultimately best serve the public. complete the probationary period. with a disciplinary or performance- A national union commented that the Rather, the proposed rule requires based action for being a poor manager. revised regulation requires a supervisor agencies to advise a supervisor to make OPM disagrees with the assertion that to make an affirmative decision and an affirmative decision regarding the supervisory notification is unnecessary thus for an employee to receive an employee’s fitness for continued and the suggestion that this rule sends affirmative decision for continued employment or otherwise take a message that supervisors should employment beyond the probationary appropriate action, so that the terminate probationers rather than assist period. This union suggested OPM individual does not gain a career them in improving their performance. clarify that the affirmative supervisory position solely by default. The message this change sends is that decision contemplated by the proposed OPM is not adopting the suggestion to supervisors should fulfill their rule has no effect on whether an require a supervisor to notify his or her responsibilities by affirmatively making employee’s probationary period has employee of an expiring probationary a determination as to the fitness of a been completed, and also clarify that an period. The purpose of these rules is to probationary employee. It does not employee is under no obligation to seek improve communications between encourage supervisors to make any or obtain such an affirmative agencies and their supervisors with the particular determination including to supervisory decision. Lastly, the union aim of better utilizing the probationary terminate an employee. Instead, it stated that if OPM is requiring agencies period. This rule is not intended to prevents instances where a supervisor to notify supervisors in advance of the modify or otherwise impact may make a decision by default, where end of an employee’s probationary mechanisms for assessment of employee the probationary period lapses due to a period, OPM should also require performance pursuant to part 432 and lack of awareness of the end of the supervisors to notify their employees. applicable agency policies. period. Supervisors who allow the Similarly, a local union commented that Another national union strongly probationary period to lapse without there is no reason for a supervisor to objected to the proposed rule, consideration of the fitness of the provide an affirmative decision commenting that it is contrary to the probationary employee to perform the regarding an employee’s fitness at the goal of promoting public trust in the duties of the position create a risk of end of the probationary period. The Federal workforce. The union went on retaining poor performers or employees union commented that employees will to say that instead of using the otherwise inadequately suited for their be harmed if a supervisor forgets to probationary period to assess an position. This outcome benefits neither make an affirmative decision, and the employee’s ability to perform the job, the agency, the employee nor the public. proposed rule does not address the supervisors are encouraged to terminate Several individuals who identified consequences of such an omission. The probationers for any reason, simply themselves as members of one of the union also stated the proposed rule because the probationary period is national unions commented that the shortens the probationary period on ending. The union also stated these proposed rule is deceptive and/or their belief that supervisors must make rules facilitate agencies’ ability to confusing in that it requires an an affirmative decision for continued terminate probationers as well as employee to receive an affirmative employment 30 days before the end of permanent employees without supervisory determination in order to the probationary period. providing them with an adequate complete the probationary period, OPM disagrees with these comments. opportunity to improve their despite no statutory requirement for The rule does not require that a performance. such a determination. The commenters supervisor notify an employee or make OPM disagrees that the rule makes it suggested the proposed rule be an affirmative decision regarding an easier for agencies to terminate eliminated or corrected to avoid employee’s fitness for continued probationary employees. Termination confusion. They disagreed with the service, nor does it require an employee actions during the probationary period need to require a separate, affirmative to receive such a decision. The must be taken in accordance with supervisory approval before an proposed rule requires agencies to § 315.804 and the criteria for employee is found to have completed notify their supervisors of the need to termination established pursuant to his or her probationary period and consider whether to retain probationers these regulations remains unchanged by noted there is no obligation on the part three months and one month prior to the revised regulation. OPM also of the employee to seek supervisory

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approval. One of the individuals added, the expiration date. Supervisors who let An organization opposed the ‘‘The confusion between this rule and the probationary period lapse without proposed rule for four reasons: the statute will do nothing but create consideration of the probationer for First, the organization commented problems.’’ Another added, ‘‘The end of continued employment run the risk of that the 30-day supervisory notification a time period is the end.’’ One of the having to retain poor performers or undermines § 315.805, which provides union members stated that since employees otherwise inadequately an employee a reasonable amount of probationary periods are controlled by suited to perform the duties of a job in time to respond in writing to a statute, it is confusing to require the short run and imposing additional termination action for conditions arising supervisory determination. burden on the agency if the agency before appointment. OPM disagrees the OPM disagrees with any notion that wishes to remove the employee later by proposed rule could impact an the proposed rule is deceptive and notes a performance-based or adverse action. employee’s right to respond to a that the probationary period for initial This outcome benefits neither the proposed termination action based on appointment to a competitive position is agency nor the employee. By reminding conditions arising before appointment established in regulation at § 315.801. supervisors to diligently and promptly pursuant to § 315.805. Under The amended regulation does not make required fitness determinations § 315.805(a) an employee is entitled to require an employee to receive an regarding probationary employees and advanced written notice, and affirmative supervisory determination in by issuing these reminders at the same § 315.805(c) states the employee is to be order to complete the probationary point in time during the probationary notified of the agency’s decision at the period nor does it require a supervisor period, OPM believes that this earliest practicable date. The proposed to take any action that they are not requirement promotes procedural rule does not alter this regulatory already required to take. The rule consistency and works to the benefit of structure and instead only requires an requires agencies to notify supervisors supervisors and probationers alike. agency to remind supervisors three three months and one month prior to An agency suggested OPM amend the months and one month ahead of the end the expiration of an employee’s proposed rule to require only one of an employee’s probationary period. probationary period, and to advise a supervisory notification 90 days prior to These provisions do not impact supervisor to make an affirmative the expiration of an employee’s § 315.805. Secondly, this organization decision regarding the employee’s probationary period. The agency also commented that the proposed rule does fitness for continued employment or asked OPM to address what the not require a supervisor to in fact make otherwise take appropriate action. The consequences will be for an agency a decision or to provide any notice to an purpose of this language is to serve as which does not provide the supervisory employee with sufficient time to allow a reminder to supervisors that an notification. employee’s probationary period will be the employee to respond. The OPM is not adopting the suggestion to ending soon, and of the need to consider procedures for making determinations require only one notification to whether the employee is fit for concerning employees serving in a supervisors 90 days before the end of an continued employment beyond the end probationary period, including criteria employee’s probationary period. We of the probationary period. Thus, the for termination, are covered under OPM believe the proposed notification communication is between the agency regulations §§ 315.803—315.805. The periods are best designed to meet the and the supervisor, not the supervisor commentator’s assessment is accurate aim of the Executive Order. We note and employee. It is an internal that no ‘‘notice’’ is required when management matter that is not intended that agencies may choose to provide issuing a termination under this to, and does not, confer rights on more frequent notifications. A authority, nor is there an opportunity to probationary employees if a supervisor probationary period can be a highly respond. Again, the changes proposed fails to heed this reminder. OPM is not effective tool to evaluate a candidate’s in this regulation do nothing to alter this adopting the suggestion to eliminate or potential to be an asset to an agency regulatory structure. amend the proposed rule because it before the candidate’s appointment Next, the organization stated that the does not conflict with or otherwise alter becomes final. The procedures for proposed rule undermines due process the statutory or regulatory authority terminating probationers for because it provides no guidance or pertaining to probationary periods. OPM unsatisfactory performance or conduct requirement that the agency notify the is also not adopting the suggestion to are contained in § 315.804 and are not employee prior to their termination for require a supervisor to notify his or her impacted by the revised regulation. performance or conduct deficiencies. employee of an expiring probationary The same agency suggested that OPM Due process of law under the period. The purpose of these rules is to amend the proposed rule to require Constitution turns on the possession of improve communications between supervisory notification during a set a pre-existing property or liberty agencies and their supervisors with the period of time, or window, rather than interest. The courts have held, therefore, aim of better utilizing the probationary on the three-month and one-month that constitutional Due Process applies period. marks. This commenter suggested OPM only to tenured public employees—not One individual commented that there amend the rule to allow for supervisory probationers, who are terminable at is little need to require agencies to notification ‘‘and then again at least one will. OPM’s regulations govern the notify supervisors of the impending month or thirty days prior to the procedures applicable to probationers. expiration of probationary periods expiration of the probationary period.’’ Agency termination procedures because supervisors closely track these OPM is not adopting this suggestion. applicable to probationers, including dates. We believe agency notification to its notification to an employee of a OPM disagrees with the notion that supervisors is more effective when it termination action, are addressed in there is little need for the proposed occurs on a specific date, rather than §§ 315.804 and 315.805. supervisory notification of an during a window of dates, because the Lastly, this organization stated that employee’s probationary period supervisor will know precisely how the proposed rule ignores what it expiration date. In some instances, much time is left in the employee’s considers to be the real issue which is supervisors let the probationary period probationary period. This approach also constructive performance management. lapse because they are not mindful of promotes uniformity. The organization commented that the

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proposed rule merely proposes a days and 60 days prior to expiration of 5 CFR part 432—Performance-Based reminder system to notify supervisors of an employee’s probationary period. We Reduction In Grade And Removal the need to terminate employees prior to believe the proposed notification Actions the completion of their probationary periods of three months and one month Section 432.101 Statutory Authority period, without ever addressing an before expiration provide sufficient employee’s performance or conduct reminders to supervisors. Part 432 applies to reduction in grade until their termination. The organization and removal of covered employees OPM is also not adopting the based on performance at the noted that a supervisory determination suggestion to amend § 315.803(a) to of poor performance made for the first unacceptable level. In the proposed require agencies to take appropriate time 30 days before the probationary rule, OPM restated Congress’ intent in action with respect to determining period ends does not allow an employee enacting chapter 43, in part, to create a whether an employee is entitled to Due to improve his or her performance. simple, dedicated, though not exclusive, The organization accurately notes the Process and appeal rights under 5 U.S.C. process for agencies to use in taking proposed rule creates a reminder system 7511. OPM would again clarify that the actions based on unacceptable to aid supervisors in determining the purpose of the proposed rule is to performance. fitness of their employees for continued implement Section 2(i) of E.O. 13839 An organization concurred with service. However, the commenter and support OPM’s consistent position OPM’s explanation of its statutory misinterprets the regulation by stating (supported as well by reports of the authority in § 432.101 in the that it constitutes a reminder to MSPB) that agencies should make SUPPLEMENTARY INFORMATION. OPM will terminate a probationary employee efficient use of the probationary period not adopt any revisions based on this rather than what this provision will by requiring agencies to notify comment as no revisions were actually serve to do, which will be to supervisors of the date an employee’s requested. probationary period ends. The proposed simply remind a supervisor of the need Section 432.104 Addressing rule represents an internal to prepare to make a timely Unacceptable Performance determination regarding the future administrative tool to be utilized by employment status of probationary agencies to assist supervisors; it is not This section clarifies that, other than employees. The point is to remind intended nor does it modify or impact those requirements listed, there is no supervisors of the impending end of the any procedural processes or rights specific requirement regarding any probationary period, to enable them to afforded by statute or regulation. The assistance offered or provided during an make thoughtful decisions, not to point procedures for terminating probationers opportunity period. In addition, the the supervisors toward one direction or for unsatisfactory performance or proposed rule stated that the nature of the other Again, the intent of these conduct are contained in § 315.804 and assistance is not determinative of the provisions is to remind supervisors of employee appeal rights are described in ultimate outcome with respect to the importance of considering a § 315.806. These provisions are not reduction in grade or pay, or removal. probationer’s performance, good or bad, impacted by the proposed rule. The Some commenters, including an agency in determining whether the employee proposed rule does not impact appeal and two national unions, voiced should be retained beyond the rights for employees covered by 5 U.S.C concerns that the proposed change probationary period. As current 7511 nor does it preclude agencies from minimized the importance of providing regulations require supervisors to fully informing an employee covered by 5 assistance or relieved agencies of the utilize the probationary period to assess U.S.C. 7511 (or the employee’s obligation to provide meaningful employee fitness, OPM would supervisor) of any procedural rights to assistance. In response, as discussed in contemplate that agencies would not which he or she may be entitled under greater detail below, OPM has revised want supervisors to wait until the final section 7511. § 432.104 to remove the statement that the nature of assistance is not month of the probationary period to An organization commented that the determinative of the outcome with begin making any such assessment. proposed rule encourages agencies to respect to a reduction in grade or pay or OPM further notes that the proposed terminate an employee before chapter removal. However, it is still the case rule, by helping supervisors avoid ‘‘last 75 procedures are required. This that assistance need not take any minute’’ determinations, may improve organization believes the supervisory particular form. To that end, the final the quality of such decisions, which is notification periods were proposed to regulation will state that the nature of to everyone’s benefit. remind supervisors to terminate any An agency recommended that assistance provided is in the sole and such employees before the end of the supervisory notifications occur 120 days exclusive discretion of the agency.’’ probationary period. before the end of an employee’s The section also states that no probationary period, rather than the As discussed, OPM disagrees with the additional performance improvement proposed 90- and 30-day notifications. contention that the purpose of the period or similar informal period to This agency expressed concern that the proposed rule is to encourage agencies demonstrate acceptable performance to proposed notification intervals may to terminate probationers before chapter meet the required performance mitigate or conflict with employee due 75 procedures are required. The purpose standards shall be provided prior to or process and adverse action appeal is to encourage supervisors to make a in addition to the opportunity period rights. The agency recommended that timely determination as to whether to under this part. OPM amend the proposed language in retain an employee beyond the Three management associations § 315.803(a) to state that appropriate probationary period, whatever that commended OPM for streamlining action will be taken to determine determination may be. The regulation is methods for addressing unacceptable whether the employee meets the neutral in terms of what determination performance through chapter 43 definition of employee in 5 U.S.C. 7511 a supervisor ultimately makes as it does procedures. The organizations lamented and is entitled to due process and not steer supervisors in either direction. the status quo in agencies with respect appeal rights. It simply reminds them of the need to to such actions as burdensome, OPM is not adopting the suggestion to make a determination which is already cumbersome and slow. They expressed require supervisory notification 120 their responsibility. support for clarifying agency

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requirements with respect to the impact the regulatory requirements that commenter stated that the proposal number and duration of opportunity currently exist for agencies to notify would remove important protections periods, types of assistance offered to employees performing at an from employees and deny them the employees with unacceptable unacceptable level ‘‘of the critical ability to either counter the agency’s performance and the impact of such element(s) for which performance is assessment or correct through a assistance on a final personnel decision. unacceptable and inform the employee mandated improvement process. One of the organizations expressed the of the performance requirement(s) or OPM disagrees with these comments. view that there should be no lengthy or standard(s) that must be attained in Nothing in the proposed regulations extensive requirements beyond what the order to demonstrate acceptable should be construed to relieve agencies law requires to improve performance. performance in his or her position.’’ See of their obligations under Federal law. The organizations did not recommend § 432.104. Concerning recommendations Additionally, 5 U.S.C. 2301(b)(2) any changes to § 432.104. Indeed, OPM surrounding the extension of an provides that employees should receive agrees with the commenters that the opportunity period, OPM notes that fair and equitable treatment. Finally, as amended regulation promotes a current and proposed § 432.104 both Government officials are entitled to a straightforward and efficient process for require that agencies afford a reasonable presumption of good faith, OPM does addressing unacceptable performance. opportunity to demonstrate acceptable not accept that changes to the governing Two agencies concurred with the performance, commensurate with the regulation intended to improve amendment to § 432.104 because it duties and responsibilities of the efficiency will lead to abuse. dispels the misconception in some employee’s position. (Emphasis added.) Accordingly, OPM does not believe that agencies that a pre-Performance The factors and considerations that the proposed rule would lead to the Improvement Plan (pre-PIP) or similar establish what constitutes a reasonable removal of employees without factual informal assistance period is required or opportunity period are also delineated evidence or interfere with important advisable for chapter 43 procedures. in OPM guidance and case law. For protections for employees, including the One of the agencies stated that it these reasons, OPM believes it is ability to provide a response to an believes the amended regulation will unnecessary to amend the regulation as accusation or receive the required result in a shorter, less burdensome, less the agency suggests. opportunity to demonstrate acceptable discouraging, more efficient process for The other agency that concurred with performance. The amended rule does addressing poor performance, but the amendment at § 432.104 stated that not relieve agencies of the responsibility nevertheless made further the changes lessen the likelihood that a to demonstrate that an employee was recommendations. The agency ‘‘ ‘failure to provide adequate performing unacceptably—which per recommended that the decision to assistance’ ’’ argument would be statute covers the period both prior to extend an employee’s performance persuasive at the Merit Systems and during a formal opportunity period should be at the discretion of the Protection Board (MSPB). The agency period—before initiating an adverse employee’s immediate supervisor if an recommended adding a reference to action under chapter 43. employee needs more time to improve agencies’ requirement to comply with Many commenters objected to the his or her performance. The agency their collective bargaining agreements. proposed rule at § 432.104 on the bases stated that an employee with OPM agrees but would somewhat that the amendment conflicts with performance issues should be notified qualify the comment. The regulation certain Executive Orders, statutes, case formally and given clear direction on should preclude employees from raising law, and/or the merit system principles; how to correct the issues, or else the failure to provide assistance during the sets bad management policy; opens the agency will have difficulty defending a opportunity period as a defense against door to supervisors taking a decision to remove the employee. a chapter 43 action to the extent that performance-based action hastily Finally, the agency recommended that agencies are required to provide without offering or providing assistance OPM provide further guidance in the assistance during the opportunity to an employee who has rendered final rule regarding the types of period, though the assistance may take unacceptable performance; may result situations where extending or limiting whatever form the supervisor deems in agencies employing a one-size-fits-all an opportunity period would be necessary to help the employee succeed approach to addressing unacceptable appropriate. in his or her position. performance; weakens or violates In response, OPM confirms that OPM will not adopt the agency’s protections for Federal employees; and addressing poor performance should be recommendation as collective may cause harm to or confusion among a straightforward process that bargaining obligations are preserved as Federal employees and or the civil minimizes the burden on managers and required by law under 5 U.S.C. chapter service. supervisors and makes the best use of 71. Further, as stated in E.O. 13839, One agency stated that there is a resources, including time spent by agencies must consult with their conflict between the current regulation, agency officials. There is nothing in the employee labor representatives about which requires that an employee be proposed rule that prevents or prohibits the implementation of the Executive given an opportunity to demonstrate a supervisor from considering specific Order. acceptable performance, and E.O. 13839 facts and circumstances that may impact National unions and commenters provisions that (1) promote the use of an employee’s job performance and expressed concerns regarding the rule’s chapter 75 procedures for addressing developing a reasonable approach to impact on performance-based actions, unacceptable performance; and (2) helping the employee achieve and an employee’s opportunity to require Executive Branch agencies to acceptable performance. With regard to improve performance. A commenter ensure that no collective bargaining formal notice of unacceptable stated that, although poor performers agreements include a provision performance, OPM notes that should be removed from the Federal requiring the use of chapter 43 requirements concerning performance government, the proposed rule may give procedures to address unacceptable evaluation and notification already exist some managers the ability to remove performance. To address this concern, within the law (see 5 U.S.C. 4302 and employees without factual evidence to the agency suggests rewriting this 4303) and that the proposed back up the removal action. In a similar requirement to make it clearer that it amendments to the regulations do not observation, a national union and applies under chapter 43 (i.e., if an

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employee’s removal or demotion if period. Thus, § 4302 (c)(5) assistance ‘in that the regulation will work in concert proposed under chapter 43), rather than improving unacceptable performance’ is with the law. OPM understands further at ‘‘any time’’ an employee’s assistance that occurs during the that the statute requires agencies to performance is unacceptable. opportunity period.’’ The union assist employees in improving OPM will not adopt revisions based recommended retention of the ‘‘correct, unacceptable performance and in on this comment because the regulation clear, and simple’’ language in the accordance with 5 U.S.C. 4302(c)(6), already makes it clear that the current regulation at § 432.104. agencies may take a performance-based requirement in question relates to Two of the national unions cited action only after affording an employee procedures pursuant to chapter 43. Sandland v. General Services an opportunity to improve. Because the requirement is only found Administration, 23 M.S.P.R. 583, 589 The amended regulation does not lead under chapter 43, it will only apply if (1984) to support their point that the agencies away from providing an agency opts to use that particular set procedural requirements of chapter 43, employees who face performance issues of procedures to address an instance of including provision of a reasonable with meaningful or genuine unacceptable performance. If an agency opportunity to improve, are substantive opportunities to improve, and nor is it opts to use chapter 75 procedures to guarantees and may not be diminished contrary to the language and intent of address unacceptable performance, the by regulation. One stated that the the CSRA, as one of the unions opportunity period, pursuant to chapter amended regulation will lead agencies contends. For further clarification 43 would not be applicable. Finally, away from providing employees who regarding concerns that OPM is OPM disagrees that the requirements of face performance issues with genuine eliminating statutory requirements for 5 U.S.C. chapter 43 or any of the opportunities to improve, contrary to opportunity periods or minimizing the revisions to 5 CFR part 432 conflict with the language and intent of the Civil importance of the assistance provided the direction provided to Executive Service Reform Act (CSRA). The other during the opportunity period, OPM has Branch agencies in E.O. 13839. Rather, union characterized the proposed rule decided to further amend the regulation. E.O. 13839 states that chapter 75 should as eliminating required assistance Specifically, the language originally be utilized in appropriate cases and during the opportunity period, contrary proposed for § 432.104 will be replaced prohibits agencies from agreeing to to section 4302(c)(6), and minimizing with, ‘‘The requirement described in 5 incorporate into collective bargaining the importance of the assistance U.S.C. 4302(c)(5) refers only to that agreements provisions that would provided during the opportunity period formal assistance provided during the preclude use of chapter 75 to address by stating that the nature of such period wherein an employee is provided unacceptable performance. The assistance is not determinative of a with an opportunity to demonstrate Executive Order also directs agencies to performance-based action, contrary to acceptable performance, as referenced streamline the process of addressing MSPB case law. in 5 U.S.C. 4302(c)(6). The nature of unacceptable job performance by more Several national unions and many of assistance provided is in the sole and strategically using the legal authorities their members (via what appeared to be exclusive discretion of the agency. No that already exist. The revisions to 5 a template letter) expressed concern that additional performance assistance CFR part 432 support the objectives the proposed rule eliminates a period or similar informal period shall described in the Executive Order by meaningful opportunity period for be provided prior to or in addition to revising regulatory provisions that flow Federal workers to improve the opportunity period provided under from long-standing and established performance and save agency resources. this section.’’ statutory requirements. The commenters stated that the Some commenters believe that OPM Three national unions emphasized amendments will eliminate and change has not demonstrated that the current that an agency must meet all the elements of statutory requirements for management tools are insufficient. The requirements set forth in 5 U.S.C. opportunity periods. They stated also commenters argued that the tools exist 4302(c)(5) before taking an action based that the proposed rule ‘‘discourages the today through performance assistance on unacceptable performance, a use of simple, easy-to-follow, objective plans and performance improvement substantive right intended by Congress. standards which (when used correctly plans and OPM is removing these tools. One of the unions reasoned that, ‘‘The by supervisors and managers) create The commenters further stated that assistance required by § 4302(c)(5) is consistency across the federal changes in performance assessment assistance during the opportunity workforce.’’ Finally, the commenters could have a chilling effect on period because (a) by definition, asserted that supervisors will be granted employees and allow for removals that assistance ‘in improving unacceptable power in a way that was not cannot be suitably challenged. Also, the performance’ occurs after the agency has contemplated by Congress and that commenters expressed concern that found performance to be unacceptable; conflicts with substantive statutory these changes will undermine integrity (b) under 5 CFR 432.104 the agency rights. and morale as well as hamper the must notify an employee ‘[a]t any time In response to the union that recruitment and retention of a quality . . . that an employee’s performance is recommended retention of § 432.104 as Federal workforce. One commenter in determined to be unacceptable’; and (c) currently written, OPM disagrees. OPM particular asserted that prohibiting an the opportunity period begins when the notes that both the current and amended informal assistance period is excessively employee is so notified. Because a regulations flesh out the statutory restrictive and is not mandated by E.O. determination of unacceptable requirements of 5 U.S.C. 4302 and 4303 13839. The commenter recommended performance triggers the obligation to concerning the baseline requirements that OPM allow agencies maximum notify, and notification starts the that all agencies must meet in flexibility in managing their workforce opportunity period, these three events— addressing instances of unacceptable job by permitting use of informal assistance the determination, the notification, and performance. The proposed rule periods besides the period mandated by the start of the period—are essentially, specifically acknowledges and 5 U.S.C. 4302(c)(5). The commenter simultaneous. Upon making the incorporates the statutory requirement stated, ‘‘Retaining experienced determination, the agency must provide, to provide assistance that is set forth in employees who demonstrate not delay, the notification; and the 5 U.S.C. 4302(c)(5). The reference to the temporarily unacceptable performance notification starts the opportunity relevant statute is intended to convey rather than moving swiftly toward

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removal increases stability and opportunity to demonstrate acceptable on collective bargaining. In other words, improves the efficiency of the Federal performance, commensurate with the by precluding the use of informal service.’’ The commenter recommended duties and responsibilities of the periods, any bargaining proposal that that OPM revise the proposed rule to employee’s position.’’ OPM does not sought to establish an informal process state that no additional assistance seek to eliminate or modify the statutory beyond what is required by law would period or similar informal period ‘‘is opportunity period as asserted; be considered nonnegotiable, pursuant required’’ rather than ‘‘shall be however, OPM does have the authority to 5 U.S.C. 7117. For example, offering provided.’’ pursuant to its statutory delegation (see an additional opportunity period OPM disagrees and will not make any 5 U.S.C 4305) to elaborate on beyond what is required by 5 U.S.C. revisions based on these comments. procedures for addressing unacceptable 4302(b)(6) would be nonnegotiable by Establishing limits on the opportunity to performance to the extent that those these regulations. It should be demonstrate acceptable performance by procedures are not already delineated in emphasized that the regulation does not precluding additional opportunity chapter 43. It is unclear what specific prevent agencies from making periods beyond what is required by law practices the commenters believe are appropriate determinations when encourages efficient use of chapter 43 being jettisoned and why the offering assistance required by law. procedures and furthers effective commenters believe that the proposed Specifically, agencies are provided sole delivery of agency mission while still rule discourages the use of objective and exclusive discretion by Section 4(c) providing employees sufficient standards and improvement plans. of E.O. 13839 to offer longer opportunity opportunity to demonstrate acceptable Nonetheless, OPM disagrees with these periods under 5 U.S.C. 4302(b)(6) to performance as required by law. It characterizations. provide sufficient time to evaluate an should also be noted that there is One commenter recommended that employee’s performance. OPM believes nothing in this new requirement that the prohibition on additional this discretion to provide for longer precludes routine performance performance assistance periods be periods provides agencies sufficient management practices such as close deleted from the proposed rule and discretion to address an employee’s supervision and training for employees suggested new language providing an performance based on the that encounter performance challenges agency with ‘‘sole and exclusive’’ circumstances. prior to their reaching the point at discretion to informally assist an A national union commented that the which they are determined to be employee in demonstrating acceptable proposed change to § 432.104 would performing at an unacceptable level and performance. The commenter noted that OPM anticipates that such efforts will ‘‘sole and exclusive’’ discretion would generally limit opportunity periods to often take place prior to reaching this place such assistance outside the duty 30 days, a period of time it deemed point. to bargain and otherwise provide often insufficient to determine if an Several commenters, also via a agencies the ability to determine their employee can improve his or her template letter, stated that the proposed own policies on such matters. The performance. Similarly, an organization revisions to performance-based actions commenter found it ironic that the expressed opposition to E.O. 13839 ‘‘end-run,’’ or ‘‘violate,’’ employee rights regulation would prevent agencies from Sections 2 and 6(iii), which it perceives and a chance to improve during the determining their own policies while as pressuring agencies to limit opportunity period. The commenters the Supplementary Information section opportunity periods to a period (30 believe that the proposed rule gives no in support of the proposed rule ‘‘quite calendar days) that would be consideration to assisting an employee plainly attacks disciplinary solutions insufficient for the purpose of to attain acceptable performance or ‘imposed from above’ ’’ with regard to demonstrating improvement in many making the opportunity period genuine tables of penalties. occupations of the Federal workforce. and meaningful. The commenters went The commenter is correct that OPM is The organization also opposes amended on to say that the opportunity period is taking different approaches regarding §§ 432.104 and 432.105 to the extent a statutory requirement that OPM may the prohibition of additional that they excuse agencies from what it not eliminate or modify by regulation. performance assistance periods and the described as routine procedures, such as They stated that OPM is making a use of tables of penalties. However, we regular supervisor meetings and mockery of the opportunity period by believe different approaches are guidance, that support the opportunity jettisoning well-established practices appropriate. The Supplementary period. The organization cites Pine v. and essentially discouraging the use of discussion on tables of penalties only Department. of the Air Force, 28 objective standards and improvement informs agencies that the use of tables M.S.P.R 453 (1985), and Sandland in plans, which will result in granting of penalties is not required by law or support of its position that an virtually unfettered discretion to OPM regulations and reminds them that opportunity to improve is not merely a supervisors in determining what it may limit the scope of management’s procedural right but rather a substantive constitutes an adequate opportunity discretion to tailor the penalty to the condition precedent to a chapter 43 period. The commenters urged OPM to facts and circumstances of a particular action, and that counseling is a part of acknowledge that a reasonable case by excluding certain penalties the opportunity period. The opportunity to improve is a substantive, along the continuum. These two issues organization expressed concern that the statutory right that may not be do converge, however, in the sense that proposed rule would allow supervisors diminished by regulation. additional performance assistance to declare that an employee’s Again, OPM notes that the amended periods are also not required by law or performance is unsatisfactory without § 432.104 does not alter the statutory OPM regulations and can negatively contextualizing the specific ways that requirement concerning agency impact efficient use of the procedures an employee needs to substantively obligations to address instances of under chapter 43. While providing ‘‘sole improve. An individual commenter unacceptable job performance, and exclusive’’ discretion would limit weighed in with the observation that the providing that ‘‘[f]or each critical collective bargaining on the use of proposed rule would ‘‘detrimentally element in which the employee’s informal assistance as the commenter push federal departments and agencies performance is unacceptable, the agency suggests, the proposed regulatory to limit the length of an opportunity shall afford the employee a reasonable language would have a similar impact period to 30 days,’’ and that the existing

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regulations present a more reasonable avoided unnecessary costs associated have different performance needs and approach and better comport with with turnover, litigation, training and types of jobs and may require different statutory requirements. rehiring. types of assistance and different periods Although Section 4(c) of E.0. 13839 With respect to the concern that of time to demonstrate improvement. addresses the length of performance supervisors may take abrupt actions Commenters noted that various improvement periods and is in full force without offering or providing assistance professional and personal challenges, and effect, the proposed rule at to an employee performing at an poor management, lack of training by § 432.104 does not limit the opportunity unacceptable level, OPM would supervisory staff, and other factors may period to 30 days, as the national union emphasize that the amended regulation underlie or contribute to unacceptable contends. The regulation preserves does not infringe upon an employee’s performance. One commenter included statutory and regulatory requirements right to a reasonable opportunity to man-made or natural disasters, cyber that agencies afford a reasonable improve, and it does not excuse Federal security incidents, or continuing opportunity to demonstrate acceptable agencies from effective performance resolutions as events that may interrupt performance, commensurate with the management or the merit system or impact an opportunity period. The duties and responsibilities of the principles, including with regard to same commenter compared the employee’s position, and offer or education and training. The amended proposed rule to other laws, such as the provide assistance during the regulation instead excludes additional Family and Medical Leave Act, that opportunity period. There is also assistance requirements outside of that contain protections and provisions for nothing in the regulation that would described in 5 U.S.C. 4302(c)(5). OPM employees to take more than 30 days in discourage supervisors from performing neither promotes nor encourages order to address employment, medical, routine performance management duties agencies to engage in prohibited and other factors. The commenter such as providing guidance and meeting personnel practices nor does it believe asserted that the proposed rule would with employees and it is anticipated the changes to the regulation encourage run counter to the Americans with that supervisors would continue to give prohibited personnel practices. (Indeed, Disabilities Act and the Rehabilitation full consideration to the specific facts OPM has an affirmative obligation to Act. Another commenter raised a and circumstances impacting an enforce the law governing the civil concern that the amendment to employee’s job performance and service. See 5 U.S.C. 1103(a)(5).) With § 432.104 will restrict management’s develop a reasonable approach to help regard to comments relating to potential ability to interact creatively and the employee achieve acceptable cost savings associated with proactively to address workplace performance. performance assistance, OPM believes performance issues collaboratively with Some commenters expressed concern that the procedures will make this employees. Collectively, the that supervisors will deny assistance to process more efficient, which represents commenters cautioned against a one- employees who are performing a cost savings. Many employees size-fits-all approach to addressing unacceptably and hastily remove receiving performance assistance will unacceptable performance and employees. An organization stated that improve their performance to an advocated for granting supervisors the proposed rule reduces the acceptable level; for those that do not, maximum flexibility and empowering requirements for an agency, including taking an action such as a removal or a them to determine the best course of making no specific requirement demotion to a position and grade where action for managing their workforce and regarding the nature of any assistance an the employee can perform duties at an improving employee performance, agency should provide to an employee acceptable level significantly reduces including with respect to the duration of during an opportunity period. One the public expenditure associated with an opportunity period, the number of individual asserted that amended low productivity. § 432.104 is not aligned with the merit One national union asserted that the opportunity periods and the degree to system principle at 5 U.S.C. 2301(b)(7), proposed rule changes make it easier for which an employee has improved. Some which states that employees should be agencies to terminate both probationary believe that the existing regulation provided effective education and and permanent employees, without provides just that. training when such education and providing them an adequate opportunity As noted above, the amended training would result in better to improve their performance. Another regulation does not prevent organizational and individual commenter observed that the proposed management from evaluating the facts performance. The commenter added regulations limit the opportunities that and circumstances underlying any that it would be a prohibited personnel employees have to improve their individual case of unacceptable practice against an employee, via 5 performance thereby actually creating a performance and collaborating with the U.S.C. 2302(a)(2)(A)(ix), which more inequitable environment for employee to determine the best course encompasses decisions concerning pay, Federal employees. of action for performance improvement. benefits, or awards, or concerning Regarding specific protections Under the current and amended education or training, for an agency to provided, OPM would reiterate that regulation, in fact, the opportunity withhold such education or training if permanent employees continue to have period must be commensurate with the the education or training may the same protections as required by duties and responsibilities of the reasonably be expected to lead to an statute, including a reasonable employee’s position. In addition, appointment, promotion, performance opportunity to demonstrate acceptable agencies must continue to abide by the evaluation, or other action described in performance. Individuals who are requirements of the Family and Medical subparagraph (a)(2)(A). One individual excluded from coverage under chapter Leave Act and the Rehabilitation Act for observed that providing assistance with 43 are not covered under part 432 of the eligible employees and the amended regard to performance issues is cost- regulations and are thus unaffected by regulation does nothing to curtail the effective given the significant amounts the changes to this regulation. exercise of employee rights under these of money agencies invest in hiring, Two national unions, one laws. Neither does the amended onboarding, and training. An agency organization and several individuals regulation curtail a manager’s authority wrote about cases in which appropriate voiced concerns that the proposed rule to determine whether an employee has assistance proved successful and ignores the possibility that employees improved during a formal opportunity

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period. Rather, it merely clarifies the managers and supervisors failing to period or similar informal period shall procedures and requirements to support provide any assistance to employees be provided prior to or in addition to managers in addressing unacceptable who were having problems doing a the opportunity period provided under performance and promoting employee portion of their job. The commenter this section’’ as ‘‘unclear’’ and ‘‘absurd accountability. The commenter’s believes that many managers considered or silly.’’ Instead, the union assertion that the performance this to be a waste of their time and not recommended: ‘‘Employees who assistance provided during the worth the effort, though it is an essential properly are notified by the agency that opportunity period is not and should part of the managers’ duties to provide their performance is unacceptable are not be a one-size-fits-all approach is leadership and direction to their entitled only to one period of time well taken. Indeed, OPM views this employees. One individual expressed affording reasonable opportunity to comment as actually supporting the support for changes to address poor demonstrate acceptable performance.’’ provision of the regulation that prevents performance but believes that the A different national union expressed agencies from being tied to any changes proposed for the opportunity concern that the reference to an particular type of performance period go too far. In a different informal assistance period will cause assistance. With respect to the concern commenter’s view, the proposed confusion because, in the union’s view, over deficits in supervisory management revisions are an ‘‘injustice to the it is unclear whether assistance to skills and training and the potential employee, whose opportunity and improve marginal or unacceptable impact on employee performance, OPM improvement will be at the discretion of performance prior to an opportunity does not discount this possibility. There the supervisor.’’ The commenter period would constitute an informal is nothing, however, in the amended expressed concern that employees will assistance period. The union added that regulations that increases the likelihood be open to discriminatory and biased such assistance should not be of this circumstance, and OPM believes decisions that are based on feeling, not prohibited if the law does not require it. that the regulatory changes provide on accomplishment or facts. Finally, a An agency described the same sentence supervisors with the flexibility to rely commenter stated that her agency has as confusing and unnecessary, adding upon the skills and expertise they invested a great deal of training and that the terms ‘‘informal period’’ and possess to provide the most effective money into its workforce, and retraining ‘‘additional performance assistance assistance. and retaining should be equally period’’ are not defined and are vague. Several national unions, organizations practiced for employees and An individual commenter offered the and individuals raised concerns about management. following revision: ‘‘Prior to initiating potential harm to employees and the OPM does not agree that the amended the reasonable opportunity to civil service system as a whole. For regulation is arbitrary, harsh, or demonstrate acceptable performance, example, one union described the limit punitive, nor does OPM believe that it the agency has sole and exclusive on additional opportunity periods as weakens or violates employee rights. discretion to informally assist the ‘‘arbitrarily harsh’’ and believes that OPM is not seeking to limit or prevent employee in demonstrating acceptable employees will be penalized for not achievement, success or cooperation. performance.’’ making progress as quickly as the The amended regulation continues to OPM will not adopt the suggested agency desires, contrary to the purpose require, per statute and regulation, that changes as the recommendations are of the opportunity period. One supervisors of employees performing unnecessary. The amended regulation commenter described the proposed rule unacceptably provide them with clarifies that agencies are precluded as punitive and mean-spirited, believing performance assistance and provide from allowing additional opportunity that it will weaken protections for them with an opportunity to improve in periods beyond what is required by law. Federal workers and make it easier for each and every case. The regulation OPM is effectuating the prohibition on management to fire honest civil servants does this while also supporting the additional opportunity periods—beyond for ideological, partisan, extralegal or principles and requirements for what the underlying statute requires—in even illegal reasons. The commenter efficiency and accountability in the response to the direction in E.O. 13839. contends that OPM does not justify the Federal workforce as outlined in E.O. Some agencies have utilized additional, proposed rule, other than citing the 13839 and including a straightforward less formal opportunity periods, in ‘‘non-scientific’’ Federal Employee process for addressing unacceptable response to unacceptable performance, Viewpoint Survey. Another commenter performance. Establishing limits on the that precede formal opportunity claimed not to have seen any incentives opportunity to demonstrate acceptable periods, and OPM does not believe that for positive performance, adding that performance, by precluding additional this practice constitutes an efficient use there appear to be many approaches opportunity periods beyond what is of resources. Moreover, it is not required designed to limit achievement and required by law, encourages efficient by statute. For clarification purposes, prevent success. In the commenter’s use of chapter 43 procedures and OPM would distinguish between view, no actual performance furthers effective delivery of agency routine performance management management is required, and this will mission while still providing employees measures such as training and coaching, destroy Federal agencies. The sufficient opportunity to demonstrate which may be utilized when employees commenter shared a personal acceptable performance as required by encounter challenges in the course of experience of having been told by a law. Federal employees will continue to their duties, and informal opportunity supervisor that the supervisor wanted to enjoy all core civil service protections periods. The first scenario is not fire her because the supervisor disliked under the law, including the merit impacted by the changes to the her, not due to her work. The system principles, procedural rights and regulation; the second is impacted. commenter wrote that had the proposed appeal rights. One individual commented that the rule been in place, she could have been Some commenters objected to the Supplementary Information section of fired, to the detriment of the mission. proposed rule at § 432.104 on the basis the proposed rule, in its discussion of Still another commenter stated that that OPM, in their view, added language § 432.104, refers to the 5 U.S.C. the proposed rule at § 432.104 will that was unclear and confusing. A 2301(b)(2) requirement that employees damage the civil service system. The national union critiqued the sentence: should receive fair and equitable commenter described having seen ‘‘No additional performance assistance treatment without regard to political

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affiliation, race, color, religion, national associations. The vast majority of Brown v. Department of Veterans origin, sex, marital status, age and commenters who opposed the proposed Affairs, 44 MSPR 635 (1990), and handicapping condition. However, the rule presented arguments that the Sullivan v. Department of the Navy, 44 commenter stated that the language proposed rule, as written, could result MSPR at 646 (1990), in which ‘‘the needs to be revised to note that in circumstances where an agency relies Board emphasized the critical, statutory Executive Order 11478, as amended by upon assistance provided prior to requirement that employees be notified Executive Order 13672, extends equal determining that an employee has of the critical job elements which they employment opportunity protections to unacceptable performance to fulfill the are failing and be provided a include sexual orientation or identity as agency’s obligation under 5 U.S.C. ‘meaningful opportunity to demonstrate protected categories. 4302(c)(5), which explicitly calls for acceptable performance’ in those OPM agrees that Executive Order assistance to an employee who has elements.’’ 13672 expands the categories described ‘‘unacceptable performance.’’ A different national union objected to in the equal employment opportunity One commenter interpreted the the proposed added language to policy originally articulated at proposed rule to suggest that an agency § 432.105(a)(1) with the rationale that Executive Order 11478. Executive Order can satisfy a formal opportunity period ‘‘the second sentence contradicts the 13672, however, did not (and could not) before an opportunity to correct first and is contrary to law.’’ The union amend section 2301, the provision that inadequate performance has begun, stated that assisting an employee before OPM referenced in the Supplementary which the commenter described as determining that the employee has Information. And, in any event, case law unreasonable, unrealistic and out of unacceptable performance and notifying precedents under the Civil Rights Act alignment with the merit system the employee of such is not ‘‘for the determine this issue, from a legal principles at 5 U.S.C. 2301(b)(6). A self- purpose of assisting employees pursuant perspective. For this reason, the described employee relations to 5 U.S.C. 4302(c)(5),’’ which requires comment is inapt. Finally, the edit practitioner claiming more than 30 years ‘‘assisting employees in improving suggested by the commenter does not of experience opposed the proposed unacceptable performance’’ at any time relate to any language in the proposed rule and questioned whether it would the determination is made. The union rule. Instead it relates solely to language be consistent with the law. The recommended that instead of the found only in the Supplementary commenter noted 5 U.S.C. 4302(c)(5) proposed passage, OPM state, ‘‘For the Information section of the notice, in states that ‘‘each agency’s performance purposes of this section, reasonable which OPM explained its rationale for appraisal system shall provide for opportunity to demonstrate acceptable related changes to the regulations. ‘assisting employees in improving performance includes reasonable Accordingly, there are no substantive unacceptable performance.’ (emphasis assistance in improving unacceptable changes that can be made to the added).’’ The commenter went on to performance that the agency provides regulations in response to this comment. say, ‘‘If OPM means any kind of during the appraisal period, either assistance offered at any performance during the opportunity period or after Section 432.105 Proposing and Taking level during the rating period, this is not the opportunity period, and before the Action Based on Unacceptable what the statutory requirement in agency proposes a reduction-in-grade or Performance 4302(c)(5) addresses.’’ The commenter removal action.’’ This section specifies the procedures described being ‘‘confident’’ in saying An agency recommended that OPM’s for proposing and taking action based that an employee who learns that he or proposed amendments to § 432.105(a)(1) on unacceptable performance once an she is performing at an unacceptable not be added or applied to the final employee has been afforded an level and is placed on an improvement version of the regulation and raised a opportunity to demonstrate acceptable plan during the opportunity period is concern that, as written, the proposed performance. 5 U.S.C. 4302(c)(5) often surprised and in disbelief. The rule will create situations where an provides for ‘‘assisting employees in commenter’s concern is that, in such a employee may not get any management improving unacceptable performance;’’ scenario, the agency may say that it help, thereby putting agencies at risk for and 5 U.S.C. 4302(c)(6) provides for offered the employee assistance six appeals and litigation. ‘‘reassigning, reducing in grade, or months prior to this time and does not One commenter recommended that removing employees who continue to need to offer any further assistance OPM remove the sentence: ‘‘For the have unacceptable performance but only during ‘‘this one and only opportunity purposes of this section, the opportunity after an opportunity to demonstrate period.’’ The commenter believes that to demonstrate acceptable performance acceptable performance.’’ The intent of most employees will not know what includes measures taken during the the proposed rule was to clarify the steps to take to improve their opportunity period as well as any other distinction between the statutory performance unless management measures taken during the appraisal requirements found in 5 U.S.C. provides them assistance in doing so. In period for the purpose of assisting 4302(c)(5) and (6) by explaining, in the commenter’s view, OPM is violating employees pursuant to 5 U.S.C. § 432.105, that the opportunity to the spirit and intent of chapter 43 4302(c)(5),’’ The commenter described demonstrate acceptable performance statutory requirements concerning the sentence as factually inaccurate, required prior to initiating an action assistance and an opportunity to contrary to the plain language of the pursuant to 5 U.S.C. 4303 may include improve. The commenter recommended statute, and not mandated by E.O. any and all performance assistance that OPM reconsider and continue to 13839. measures taken during the performance require assistance during the One individual asserted that the appraisal period to assist employees opportunity period to alleviate potential proposed rule is illogical because the pursuant to 5 U.S.C. 4302(c)(5), not just for abuse and misuse by some agencies. statute requires that agencies assist those taken during the formal A national union objected to the employees who have unacceptable opportunity period. The effort to proposed amendment at § 432.105(a)(1), performance, and since employees who distinguish these provisions was met calling it ‘‘nonsensical’’ and contrary to have unacceptable performance should with significant opposition and case law to allow the assistance be placed on a Performance concerns from commenters, with the requirement to be satisfied before the Improvement Plan (PIP), there should exception of three management opportunity period. The union cited not be a time other than the period

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during which the employee is on the encourages managers to engage in should not be expunged as a function of PIP when an employee with continuous performance feedback and a clean record agreement, as doing so unacceptable performance is receiving early correction of performance deprives agencies of vital information assistance that would meet the statutory concerns, thereby supporting the necessary to fulfill their obligation to requirement. The commenter expressed principles espoused in the Executive hire the best candidate within reach. concern that performance assistance Order for promoting accountability. Section 5 requirements should not be could devolve into a ‘‘check-the-box’’ A commenter stated that the intended construed to prevent agencies from exercise if the agency can demonstrate purpose of the proposed amendment to taking corrective action should it come that it provided the employee with § 432.105 could be achieved ‘‘by to light, including during or after the assistance at any point during the rating writing: There is no mechanical issuance of an adverse personnel action, cycle. requirement regarding the form that that the information contained in a One organization, an agency, and assistance to an employee should take. personnel record is not accurate or some individual commenters went so Agencies shall satisfy the requirement to records an action taken by the agency far as to say that the proposed rule gave assist the employee by providing illegally or in error. Agencies have the the impression that an agency might adequate instructions regarding the authority, unilaterally or by agreement, take an action for unacceptable manner in which the employee is to modify an employee’s personnel file performance prior to an impacted expected to perform the duties of his to remove inaccurate information or the employee’s completion of an position.’’ The commenter added that record of an erroneous or illegal action. opportunity period. The organization this change ‘‘would establish that An agency may take such action even if objected to distinguishing between 5 assistance is not an onerous burden an appeal/complaint has been filed U.S.C. 4302(c)(5) and (c)(6). It stated without engaging in a misbegotten relating to the information that the that the proposed rule contradicts 5 attempt to ‘delink’ the assistance from agency determines to be inaccurate or to U.S.C. 4302(c)(6) and is inconsistent the opportunity period.’’ It is unclear reflect an action taken illegally or in with established case law interpreting where the commenter is proposing to error. In all events, however, the agency that statute, including cases that have insert the recommended language or must ensure that it removes only held a meaningful opportunity to what language it would replace. OPM information that the agency itself has improve to be a substantive right. In the will not adopt the commenter’s determined to be inaccurate or to reflect organization’s interpretation, the recommendation. an action taken illegally or in error. And proposed rule could allow an agency to Section 432.108 Settlement an agency should report any agreements remove an employee for performance Agreements relating to the removal of such prior to an opportunity period, even if This section effectuates Section 5 of information as part of its annual report the employee has successful to the OPM Director required by Section performance during the opportunity E.O. 13839. Section 5 establishes a new 6 of E.O. 13839. Documents subject to period. The organization stated that the requirement that an agency shall not withdrawal or modification could proposed rule ‘‘purports to allow an agree to erase, remove, alter or withhold include, for example, an SF–50 issuing agency to use assistance measures even from another agency any information a disciplinary or performance-based if the employee has not been notified of about a civilian employee’s performance action, a decision memorandum the subpar performance,’’ which would or conduct in that employee’s official accompanying such action, or an be ‘‘fundamentally unfair’’ and personnel records, including an employee performance appraisal. ‘‘dissuade supervisors from offering employee’s Official Personnel Folder adequate training, counseling, and and Employee Performance File, as part Further, when persuasive evidence assistance’’ during an opportunity of, or as a condition to, resolving a comes to light prior to the issuance of period. formal or informal complaint by the a final agency decision on an adverse Three management associations employee or settling an administrative personnel action casting doubt on the expressed support for the proposal to challenge to an adverse personnel validity of the action or the ability of the distinguish 5 U.S.C. 4302(c)(5) and action. Such agreements have agency to sustain the action in litigation, 4302(c)(6), describing it as a valuable traditionally been referred to as ‘‘clean an agency may decide to cancel or clarification of agency obligations and a record’’ agreements. vacate the proposed action. Additional modernization of the Federal This new requirement is intended to information may come to light at any performance review process that better promote the high standards of integrity stage of the process prior to final agency matches the needs of agencies working and accountability within the Federal decision including during an employee to achieve mission success. workforce by requiring agencies to response period. To the extent an However, OPM finds greater merit in maintain personnel records that reflect employee’s personnel file or other the objectors’ arguments. Accordingly, complete information and not to alter agency records contain a proposed the proposed amendment to the the information contained in those action that is subsequently cancelled, an regulations at 5 CFR 432.105(a)(1), records in connection with a formal or agency would have the authority to which adds the language ‘‘Agencies may informal complaint or adverse remove that action from the employee’s satisfy the requirement to provide personnel action. This regulation, personnel file or other agency files. assistance before or during the derived from a corresponding provision Section 5’s requirements would opportunity period’’ will not be in E.O. 13839, is further intended to continue to apply to any accurate adopted. We will retain the provision equip Federal agencies with full information about the employee’s that the obligation to assist can be met information needed to assess candidate conduct leading up to that proposed through measures taken during the qualifications and suitability or fitness action or separation from Federal appraisal period as well as measures for Federal employment and make service. taken during the opportunity period. informed hiring decisions. In Section 5 requirements apply to Permitting an agency to include furtherance of this important goal, actions taken under parts 432 and 752. measures taken during the appraisal instances of employee misconduct and All comments related to settlement period for the purpose of assisting unacceptable performance that may be agreements are addressed here in the employees pursuant to U.S.C. 4302(c)(5) determinative in these assessments Supplementary Information for the

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change at § 432.108, where the change law governing the civil service), and (7) concerns are unsubstantiated and, in appears first. (stating that functions vested with the many respects, addressed in the Three management associations OPM Director include ‘‘aiding the regulation itself. The proposed expressed support for preventing President, as the President may request, regulation effectuates E.O. 13839 agencies from erasing, removing, in preparing such civil service rules as requirements. While Section 5 of the altering or withholding information the President prescribes, and otherwise E.O. 13839 places restrictions on agency about a civilian employee’s performance advising the President on actions which management with regard to certain in their official personnel record. Two may be taken to promote an efficient matters within settlement agreements, it of the organizations, however, noted civil service and a systematic neither prevents settlement agreements that some agencies’ practice of offering application of the merit system nor discourages other forms of clean record settlement agreements has principles, including recommending alternative dispute resolution utilized historically facilitated employee policies relating to the selection, by agencies seeking to resolve a formal departures in a manner that minimizes promotion, transfer, performance, pay, or informal complaint and avoid litigation and results in a mutually conditions of service, tenure, and litigation. The regulation has agreeable outcome for agencies and separation of employees’’); see also 5 protections built in that address taxpayers. An individual expressed U.S.C. 3301 (establishing the President’s commenters’ concerns. To the extent support for the proposed amendment to authority to ascertain fitness of that an employee’s personnel file or § 432.108, describing it as ‘‘very helpful applicants for employment sought). other agency records contain a proposed to hiring managers who should have OPM would also emphasize that other action that is subsequently cancelled, this information’’ before bringing on a than those issues pertaining to areas for the action can be removed from the potential ‘‘problem employee.’’ OPM which OPM has the authority to employee’s personnel file or other will not make any revisions based on regulate, agencies are free to handle agency files. As explained in the these comments. settlement agreements as they choose, regulation, agencies are permitted to An agency discussed potential subject to other appropriate authorities. correct errors, either unilaterally or benefits and drawbacks of the proposed Several individuals, via a template pursuant to a settlement agreement, rule, including that it would assist letter, commented that the proposed based on discovery of agency error or management in making better hiring rule at §§ 432.108, 752.104, 752.203(h), illegality. The regulation further permits decisions and discourage employees 752.407 and 752.607 will ‘‘only lead to agencies to cancel or vacate a proposed from using the Equal Employment bitter and contentious disputes.’’ The action when persuasive evidence comes Opportunity (EEO) process as a way to commenters stated that unless there is to light casting doubt on the validity of have records expunged while perhaps at ‘‘some provision for settlement or the action or the ability of the agency to the same time making it difficult and informal resolution of disputes,’’ sustain the action in litigation. The final costly for agencies to settle cases. The employees will have little choice but to rule promotes integrity and agency recommended further pursue arbitration or litigation. The accountability and facilitates the sharing clarification on the parameters of the commenters urged for an amendment to of records between Federal agencies in rule. As the commenter did not pose the proposed rule that would allow a manner that permits the agencies to specific questions about parameters, we cancellation of a proposed action as part make appropriate and informed are unable to respond. of a settlement agreement, so long as no Despite some showing of support for decisions regarding a prospective final agency action has been taken. The employee’s qualification, fitness and the proposed rule, many commenters commenters believe this would ‘‘help suitability as applicable to future objected for a variety of reasons. One resolve 90% of disputes without employment. commenter asserted that an agency resorting to more legal processes.’’ cannot issue a rule unless granted A group of several national unions Two organizations and several authority to do so by law and believes and their members disagreed with the individuals objected to restrictions on that OPM has exceeded the scope of its proposed rule at §§ 432.108, 752.104, settlement agreements that limit regulatory authorities. Specifically, the 752.203(h), 752.407 and 752.607 and resolution options or reduce the commenter questioned whether OPM requested that the changes be likelihood of the parties reaching a has the authority to regulate settlement withdrawn on the basis that agency mutually agreeable resolution of agreements. OPM does not agree that it managers and Federal workers informal or formal complaints. One of has exceeded its authority. E.O. 13839 represented by unions disfavor the the organizations opined that employees directs OPM to propose appropriate prohibition on settlement agreements. who seek such relief will be more regulations to effectuate the principles The commenters stated that the inclined to litigate, which will increase set forth in Section 2 and the proposed change removes a tool that the burden on the administrative bodies requirements of Sections 3, 4, 5 and 6 allows unions and managers to settle that hear such cases and cause of the order. This final rule effectuates disputes efficiently and effectively and ‘‘unnecessary cost and distraction in the the requirements of E.O. 13839. forces them to arbitration or litigation workplace.’’ The other organization With respect to the question of OPM’s instead of encouraging the use of early strongly opposed the proposed rule at authority raised by commenters, OPM alternative dispute resolution (ADR). §§ 432.108, 752.104, 752.203(h), 752.407 would emphasize that OPM’s regulation The commenters asserted that OPM and 752.607 on the basis that its pertains to the integrity of personnel presumes that agency supervisors are members’ experience demonstrates that files which are maintained by OPM and infallible and their decisions not subject Section 5 has ‘‘eliminated the which OPM has the authority and to review, which violates the spirit of possibility of settlement agreements in responsibility to maintain; see 5 U.S.C. the law and creates a Federal workforce cases involving disciplinary or 2951. OPM also has authority to regulate which is corruptible, subject to undue performance actions, especially once the personnel management functions, hiring influence, and puts the burden of a personnel action occurs.’’ The appointments, and to oversee the merit supervisor’s mistake on an employee for organization claimed that the limiting system principles; see e.g. 5. U.S.C. the rest of their career. effect of Section 5 has followed on the 1103(a)(5) (stating that OPM’s Director OPM has not made changes based on heels of agencies implementing new and executes, administers, and enforces the these comments and believes that the stringent limits on ‘‘non-record

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modification settlements,’’ which we an agency to take corrective action organization expressed concern that the understood to mean settlements that do should it come to light, including proposed rule will do the opposite of not involve modification of records and during or after the issuance of an increasing the efficiency of management pointed to a particular Federal agency as adverse personnel action, that the decisions because it undermines the an example. From the organization’s information contained in a personnel ability of agencies to settle cases. In the perspective, agencies have been ‘‘highly record is not accurate or records an organization’s views, the proposed rule deterred’’ from agreeing to post- action taken by the agency illegally or is ‘‘simply inoperable in practice,’’ even personnel action settlements involving in error. OPM believes that it is allowing for corrective action to a record modification because they are understood that the scope of this personnel record based on discovery of ‘‘loath’’ to acknowledge a personnel provision would include actions taken agency error or discovery of material action as illegal, inaccurate or the that were out of compliance with the information prior to final agency action. product of agency error. The Privacy Act. The organization stated that agencies organization stated that this forces cases OPM also disagrees with the will be unwilling or unlikely to admit into costly merits litigation, which has organization on the question of error, unless ordered to do so by a court, risks for all parties involved. economic issues for employees and not least because of potential further The organization raised a concern that agencies and potential crowding of liability. the proposed rule gives too much MSPB, OSC, and/or EEOC dockets. OPM disagrees with the organization’s discretion to ‘‘low level supervisors’’ by While the regulation implementing assessment. It is not unusual for rendering their decisions in personnel Section 5 of E.O. 13839 places dispositive information to come to light actions far harder to reverse later restrictions on agency management with after an adverse action is proposed, such through settlement. The commenter regard to certain matters within as during the employee’s reply period or stated that, previously, settlement settlement agreements, it does not in the submission of the employee’s mechanisms provided a means for prevent all settlement agreements from supporting material. Such dispositive higher-level management to review the occurring or being pursued by an agency information could very well lead to an actions of subordinates and make involved in a dispute process. agency cancelling or vacating a changes to their discretionary decisions With regard to comments expressing proposed action during settlement through settlement agreements. concerns over potential impact on the negotiations. The proposed rule OPM will not make any revisions practice of higher-level settlement facilitates a Federal supervisor’s ability based on these comments. The amended review, this comment presumes that all to promote civil servant accountability regulation effectuates the requirements but the highest level management and simultaneously recognize of E.O. 13839 and thereby facilitates a officials are equipped to use their employee’s procedural rights and Federal supervisor’s ability to promote discretion soundly and accurately, a protections. Moreover, the proposed civil servant accountability and presumption with which OPM does not rule does not ‘‘bar’’ the EEOC, MSPB, transparency across the Executive agree. Further, as discussed elsewhere, arbitrators and courts from requiring Branch. all procedural protections built into the modification of a personnel record as an An organization commented that the adverse action process, including a appropriate remedy for a matter before proposed rule at § 432.108 notice and opportunity for reply remain them based on an agency’s adverse ‘‘fundamentally contradicts existing intact. personnel action. federal law in several respects’’ by (1) Additionally, the organization One national union asserted that creating ‘‘an absolute bar’’ to potential objected to §§ 752.104(a)-(c) and § 432.108 will diminish the right to mitigation of a final agency decision 752.203(h) for the reasons cited above collective bargaining, contrary to the when persuasive evidence of an error or and because the organization believes spirit of the Federal Service Labor- mistake is discovered after the final that the proposed amendments are Management Relations Statute agency decision is issued (such as ‘‘blatantly prejudicial to employees and (FSLMRS), by prohibiting agencies from ‘‘during an appeal period or during an contrary to an agency’s duty to apply agreeing to clean record terms during appeal’’) [emphasis in original]; (2) not mitigating circumstances developed in collective bargaining negotiations and mandating that an agency correct an Douglas v. Veterans Administration.’’ settlement discussions. In the union’s employee’s personnel record (before a The organization stated that the view, Congress did not intend for decision) despite the agency obligation proposed rule would provide agencies agencies and employees to negotiate an to correct an employee’s record when it with an opportunity to impose appropriate resolution to a matter only determines there has been an error disproportionate penalties. to be precluded from implementation by under the Privacy Act; and (3) causing OPM disagrees and notes that an ‘‘unnecessary regulation.’’ The union unnecessary economic issues, such as §§ 752.104(c), 752.203(h)(3), 752.407(c) believes that the clean record litigating costs and lost salary and leave, and 752.607(c) permit an agency to agreements are used by employees in for both employees and agencies and cancel or vacate a proposed action when many cases to remove ‘‘unfair, baseless crowding the dockets of the Merit persuasive evidence comes to light, charges’’ from their files and the Systems Protection Board (MSPB), the prior to a final agency decision, that amended regulations unfairly closes this Office of Special Counsel (OSC), and/or casts doubt on the validity of the action avenue for employees. Equal Employment Opportunity or the ability of the agency to sustain the OPM does not agree that the amended Commission (EEOC). action in litigation. The proposed rule regulation impacts collective bargaining In response, OPM notes that it is does not prevent the agency from in the manner asserted by commenters. incorrect to interpret the proposed rule mitigating a proposed penalty in such Initially, management’s rights pursuant at § 432.108 as ‘‘an absolute bar’’ to instances as long as the agency adheres to 5 U.S.C. 7106, including the right to potential mitigation of a final agency to penalty determination provisions in discipline, cannot be diminished decision when persuasive evidence of §§ 752.102, 752.202, 752.403 and through bargaining. Each and every an error or mistake is discovered after 752.603 as applicable. decision as to whether to settle a case the decision is issued (such as during an The organization restated similar and what penalty is appropriate falls appeal period or during an appeal). In objections to § 752.407 and added more within the discretion of agency fact, the change at § 432.108(b) permits details to support its position. The management and is outside the scope of

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bargaining. Further, to the extent that decisions exercised in the context of accountability within the Federal there are any narrow areas of settlement agreements are not subject to workforce by requiring agencies to negotiability relating to the use of collective bargaining and cannot be maintain personnel records that reflect settlement agreements, the regulation diminished through the collective complete and accurate information, and does not preclude bargaining in this bargaining process. OPM does not agree not to alter the information contained in area. Rather, consistent with the that a link exists between settlement those records in connection with a Executive Order, it directs agencies in agreements of discrete, individual formal or informal complaint or adverse terms of how to proceed when making personnel actions and the collective personnel action. Agencies may decisions, pursuant to the President’s bargaining process over broad experience fewer matters that give rise authority to issue such directives and conditions of employment which occurs to arbitration and litigation because the pursuant to management’s discretion in under 5 U.S.C. chapter 71. Also, the prohibition on clean record agreements disciplinary context. These changes President has broad authority to manage facilitates the sharing of records appropriately balance employee rights the conduct of the Federal workforce. between Federal agencies. Agencies will with efficient government operations. This includes issuing directives to be better able to make appropriate and A national union commented that agency supervisors regarding how to informed decisions regarding a damage to agencies’ and employees’ exercise their discretion in the context prospective employee’s qualification, abilities to resolve disputes will of making decisions on disciplinary fitness and suitability as applicable to outweigh whatever transparency may actions, including settlement future employment. derive from the proposed rule. The agreements. It is also worth noting that A commenter stated that the union asserted that litigation will the now vacated preliminary injunction Supplementary Information references a increase exponentially and added that by the DC District Court left intact ‘‘partial clean record,’’ and the proposed allowing an agency to amend or rescind Section 5 of E.O. 13839 regarding rule itself omitted any reference to a a record unilaterally is ‘‘hardly a matters related to settlement ‘‘partial clean record.’’ The commenter savings’’ because parties are ‘‘loath’’ to agreements. Finally, OPM has the suggested that prohibition on expunging admit fault. The union believes that the authority to require agencies to maintain personnel records as part of a settlement proposed restrictions on amending specific information in personnel may force aggrieved former employees personnel records ignore realities. The records. The prohibition on the use of to file suit under the Privacy Act to union also accused OPM of clean record agreements by agencies enjoin the disclosure of false derogatory impermissibly inserting itself into the would not prevent parties from entering information to another agency or to collective bargaining relationship by into other types of settlement another prospective employer. The taking clean record terms off the table, agreements or other forms of alternative commenter stated that the proposed rule to the extent such clauses are not dispute resolution. It would only provided no recourse for an employee to otherwise prohibited by law. In the preclude agencies from entering into challenge the accuracy of the record, or union’s estimation, because grievance agreements that could serve to to expunge information about an settlements are an extension of the circumvent necessary transparency. underlying incident if the employee and collective bargaining process, OPM’s With respect to the concern that the agency disagree about the accuracy or regulation would unilaterally constrict proposed rule could violate the Privacy legality of the reported action. The the scope of collective bargaining by Act, OPM notes that there is nothing in commenter added that the ‘‘current law provides a workable procedure for bona precluding a commonly negotiated the rule that relieves agencies of their remedy. Another national union fide allegations of misconduct or obligation to maintain accurate commented that by preventing clean unsatisfactory performance.’’ As an personnel records in accordance with record agreements, OPM ‘‘stymies’’ alternative to the proposed rule, the the Privacy Act. efficient and effective resolution of commenter recommended improved disputes. The union added that by A commenter objected to the guidance to supervisors and human giving agencies ‘‘unfettered power to proposed rule change for §§ 432.108, resources staff and improved quality of unilaterally modify an employee’s 752.203, 752.407 and 752.607 data on misconduct. personnel record,’’ the proposed rule concerning settlement agreements, and OPM will not adopt any changes opens the door to arbitrary and stated that ‘‘prohibiting clean record based on this comment. Partial clean capricious agency action and potential settlements is a horrible waste of record settlements are those in which Privacy Act violations. The union taxpayer money.’’ The commenter the agency agrees to withhold negative stated, ‘‘These regulations should be asserted that allowing such settlements information from any prospective future withdrawn.’’ provides maximum flexibility to non-Federal employers but, in As discussed in the proposed rule, agencies and promotes quick settlement conformance with E.O. 13839, does not this new requirement is intended to of cases at low or no cost to the agree to withhold any negative promote the high standards of integrity Government. The commenter stated also information from other Federal and accountability within the Federal that prohibiting agencies from agreeing agencies. Although the language in workforce by requiring agencies to to alter, erase or withhold information §§ 432.108, 752.104, 752.203(h), 752.407 maintain personnel records that reflect in personnel records would force and 752.607, does not include the complete and accurate information, and agencies to engage in lengthy, resource- phrase ‘‘partial clean record,’’ the rule not to alter the information contained in intensive legal battles, ‘‘contrary to the does in fact state that an agency may not those records in connection with a effectiveness and efficiency of the erase, remove, alter or withhold from formal or informal complaint or adverse government.’’ Another commenter another agency any information about a personnel action. We disagree that OPM shared a similar concern that civilian employee’s performance or is impermissibly interfering in the restrictions on clean record agreements conduct in that employee’s official collective bargaining relationship will lead to unnecessary, expensive personnel records. (Emphasis added.) between the agency and the exclusive results that are wasteful of time, money Thus, there was no contradiction or representative by prohibiting agencies and resources. OPM disagrees. As stated inconsistency between the from entering into clean record above, this new requirement promotes Supplementary Information and the agreements. Individual supervisory the high standards of integrity and proposed rule.

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Some commenters erroneously workplace flexibility. The union The individual added that government interpreted E.O. 13839 and the proposed asserted that a prohibition on clean employees need the same protections as rule to mean that settlement agreements record agreements ‘‘ensure[s] federal private sector employees with regard to are eliminated or characterized the workers are seen in the worst possible sharing employment history. The proposed amendments as having an light.’’ A local union commented that commenter did not identify what intent to cause harm to Federal the proposed rule can only be ‘‘protections’’ private sector employees employees. One commenter stated that interpreted as an attempt to ‘‘stack the have with respect to sharing E.O. 13839 and the proposed regulations deck’’ against an employee under employment history. OPM notes that eliminate settlement agreements and fail consideration for punishment. The public sector employment is different to recognize that there are ‘‘many union asserted that under the proposed from private sector employment in a incompetent managers whose motives rule, performance issues from years ago number of key ways, including the fact do not align with public service.’’ The would be used as justification for severe that Federal employees enjoy additional commenter stated that additional punishment, while letters of job protections above and beyond what safeguards are warranted. The admonishment and reprimand are is codified and afforded to private sector commenter asserted that a hardworking, currently removed from an employee’s employees (See e.g., 5 U.S.C. chapter capable employee who loses his or her file after a set period of time. The union 23—Merit System Principles). OPM will job should not be further harmed by stated that clean record settlement not adopt changes based on this untruthful allegations that could impede agreements are a valuable tool to resolve comment. his or her job search. The commenter labor-management disputes, since both An agency recommended removing expressed concern that probationary parties prefer to settle disputes through the references to the OPM report in employees are often afforded no settlement rather than through § 752.104(b) because it is the only time opportunity to contest or submit litigation. a specific section of the OPM report is evidence to support continuation of OPM will not adopt any revisions to discussed. The agency went on to say employment, resulting in personnel files the proposed rule based on these that it is not clear why there is a that may not have an accurate picture. comments. Section 5 of the E.O. 13839 ‘‘discrete reference’’ to one part of a A retiree who relies on OPM ‘‘for does not prevent parties from entering larger OPM report ‘‘when the report is everything’’ expressed concern for OPM into settlement agreements to resolve not otherwise discussed in the text of employees and a wish for OPM workplace disputes. OPM is not seeking the regulations.’’ The agency further employees to be treated with respect to harm employees, cast them in the recommended either adding a new and fairness. One individual described worst possible light, ‘‘stack the deck’’ separate section in the regulations clean record agreements as a long- against them, eliminate employee rights, discussing the report and its standing practice that, if removed, ‘‘will or impede job searches. Further, the components, or having the report be only hurt . . . employees.’’ The amended regulations will not convert covered by E.O. 13839 and OPM policy. commenter asked, ‘‘please stop seeking time-limited personnel records such as OPM notes that §§ 432.108(b), to eliminate federal employee rights.’’ letters of admonishment and reprimand 752.203(h)(2), 752.407(b) and 752.607(b) Other commenters likened the into permanent documents. As also refer to the reporting requirements proposed rule to ‘‘prohibition on finding previously discussed, Federal in Section 6 of E.O. 13839. OPM will someone innocent’’ and called it ‘‘sadly employees will continue to enjoy all not adopt the agency’s disconcerting.’’ Yet another stated, core civil service protections under the recommendations because OPM ‘‘Basically any wrong can never be law, be protected by the merit system believes that the reference to reporting righted, regardless of time or principles and possess procedural rights requirements, in addition to the improvement in performance.’’ An and appeal rights. All procedural instructions provided in E.O. 13839, individual commented that removing protections afforded employees who are OPM’s guidance memoranda of July 3, the ability for a record to be ‘‘cleaned’’ subject to an adverse action remain 2018, and October 10, 2018, and any is an unfair practice. Believing that unaltered, including the right to contest instructions OPM will provide in the everyone has a ‘‘bad day,’’ the a proposed adverse action if an data call process constitute useful commenter asked if this is ‘‘a just reason employee believes the agency has acted guidance. to have a black mark on their record?’’ impermissibly or relied upon an error A commenter expressed the view that A commenter stated that eliminating and through submission of a reply and eliminating clean record agreements ‘‘clean record’’ agreements would mean supporting materials. Also, agencies are would mean that any negative mark, that any negative mark on an permitted to correct errors based on such as letters of admonishment and employee’s record would be permanent, discovery of agency error or illegality. reprimand, on an employee’s record and that employee rights ‘‘should not be The regulation further permits agencies would be permanent and could be used eliminated through Executive Order.’’ to cancel or vacate a proposed action as justification for proposing a The commenter went on to say that when persuasive evidence comes to subsequent more severe form of employee rights are given via light casting doubt on the validity of the punishment. OPM does not fully agree ‘‘congressional approval and the rule of action or the ability of the agency to with this assertion. OPM notes that, for law,’’ and should be changed in those sustain the action in litigation. OPM is employees that engage in repeated venues. A commenter opposed the simply effectuating the requirements of misconduct, increasing the severity of proposed changes that ‘‘abolish clean E.O. 13839 and thereby facilitating a disciplinary measures is likely to be record settlements’’ on the basis that Federal supervisor’s ability to promote appropriate, and, to the extent that OPM ‘‘wants to make it harder to civil servant accountability and preserving the integrity and accuracy of amicably settle employment disputes simultaneously recognize employee’s an employee’s personnel file facilitates and instead make their resolution less procedural rights and protections. an agency’s ability to take such effective and efficient and more A commenter reacted to the proposed appropriate measures, this is beneficial contentious.’’ rule at §§ 432.108, 752.104, 752.203(h), to the agency and to the public. OPM A national union commented that 752.407 and 752.607 by stating that it also notes that the questions of when, eliminating the opportunity to reach subjects government employees to a how, and for how long an agency may clean record agreements reduces standard unseen in the private sector. rely on prior incidents of misconduct is

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governed by a legal framework that is discovery of agency error and discovery agency would have the authority to independent from and unaffected by of material information prior to final remove that action from the employee’s this rule. Finally, OPM would note that agency action, respectively, before any personnel file or other agency files. the regulatory amendments also do not adjudicator is involved. Further, the However, the requirements described in impact guidelines surrounding union’s revision gives the impression Section 5 would continue to apply to disciplinary instruments such as letters that the reporting requirement applies to any accurate information about the of reprimand or admonishment, the actions that are cancelled or vacated employee’s performance or conduct preservation of which is also governed based on discovery of material which comes to light prior to issuance by procedures that are independent of information prior to final agency action, of a final agency decision on an adverse and unaffected by this rule. which is not the case. Finally, in action. Based on the foregoing, the final A national union recommended that response to suggestions regarding post- rule at § 432.108 reflects E.O. 13839’s OPM rewrite § 432.108 to make it ‘‘clear, adjudication action, such a change to comprehensive, and less wordy’’ and the rule would be unnecessary to the restrictions on settlement agreements offered the following revision: ‘‘(a) extent that OPM would be compelled to arising from chapter 43 actions. Agreements to alter personnel records. initiate any changes to personnel Technical Amendments Except as provided in subsection (b), an records required to conform to a judicial agency shall not agree to erase, remove, order. For the foregoing reasons, OPM The final rule corrects the spelling of alter, or withhold from another agency will not adopt the union’s the word ‘‘incumbents’’ within any information about a civilian recommended revision. § 432.103(g) and the word ‘‘extension’’ employee’s performance or conduct in In sum, the amended regulation at at § 432.105(a)(4)(i)(B)(3). OPM replaces that employee’s official personnel § 432.108 effectuates Section 5 of E.O. the term ‘‘handicapping condition’’ with records, including an employee’s 13839, and thereby promotes integrity ‘‘disability’’ at § 432.105(a)(4)(i)(B)(4) to Official Personal Folder and Employee and accountability and facilitates the bring the definition into conformance Performance File, as part of, or as a sharing of records between Federal with 29 U.S.C. 705. In this rule, OPM condition to, resolving a formal or employers in a manner that permits also revises § 432.105(a)(4)(i)(C) to informal complaint by the employee or agencies to make appropriate and correctly identify the office that an settling an administrative challenge to informed decisions regarding a agency shall contact if it believes that an an adverse action. (b) Corrective action. prospective employee’s qualification, An agency unilaterally or as part of, or fitness, and suitability as applicable to extension of the advance notice period as a condition to, resolving by future employment. However, Section 5 is necessary for a reason other than agreement a formal or informal requirements should not be construed to those listed in § 432.105(a)(4)(i)(B). complaint by the employee, or settling prevent agencies from correcting records OPM revises § 432.106(b)(1) to replace an administrative challenge to an should it come to light, including ‘‘i.g.’’ with ‘‘i.e.’’ within the adverse action, may at any time erase, during or after the issuance of an parenthetical concerning non-exclusion remove, alter, or withhold from another adverse personnel action, that the by the parties to a collective bargaining agency any information about a civilian information contained in a personnel agreement. Finally, OPM corrects the employee’s performance or conduct in record is not accurate or records an use of the word ‘‘affected’’ versus that employee’s official personnel action taken by the agency illegally or ‘‘effected’’ within § 432.107(b). records, including an employee’s in error. An agency may take such An agency recommended reviewing Official Personnel Folder and Employee action even if an appeal/complaint has and correcting the use of ‘‘affect’’ and Performance File if the agency has been filed relating to the information ‘‘effect’’ throughout the proposed rule. reason to believe that: (1) The complaint that the agency determines to be The final rule corrects the use of the or administrative challenge is, or might inaccurate or to reflect an action taken reasonably be found by an adjudicator illegally or in error. In all events, word ‘‘affected’’ versus ‘‘effected’’ to be, valid; (2) the information is, or however, the agency must ensure that it within § 432.107(b). There were no might reasonably be found by an removes only information that the other misuses of ‘‘affect’’ and ‘‘effect’’ in adjudicator to be, inaccurate; (3) the agency itself has determined to be the proposed rule. Therefore, no adverse action was, or might reasonably inaccurate or to reflect an action taken additional changes are necessary based be found by an adjudicator to have been, illegally or in error. Section 5 on this comment. proposed or taken illegally or in error; requirements should also not be Another commenter recommended or (4) the information records, or might construed to prevent agencies from that agencies expunge records ‘‘after 90 reasonably be found by an adjudicator entering into partial clean record days or until the next formal to record, an adverse action or other settlements with regard to information performance rating, whichever is agency action that was proposed or provided to non-Federal employers. shorter’’ if, because of performance Finally, when persuasive evidence taken illegally or in error. (c) Reporting. improvement during the notice period, An agency should report any comes to light prior to the issuance of the employee is not reduced in grade or agreements relating to the removal of a final agency decision on an adverse removed. OPM will not adopt any Information under subsection (b) as part personnel action casting doubt on the of its annual report to the OPM Director validity of the action or the ability of the revisions based on this comment. The required by Section 6 of E.O. 13839.’’ agency to sustain the action in litigation, proposed rule is simply a technical OPM believes that the proposed an agency may decide to cancel or amendment intended to make a changes would not make these vacate the proposed action. Additional grammatical correction (i.e., it changes provisions clearer while they would information may come to light at any the word ‘‘affected’’ to ‘‘effected’’). The substantially change the meaning and stage of the process prior to final agency rest of the language in this section intent of the proposed rule and would decision including during an employee reflects requirements that exist today be inconsistent with the requirements of response period. To the extent an and predate this proposed regulatory E.O. 13839. Also, as currently written, employee’s personnel file or other revision. § 432.108(b) and (c) permit agencies to agency records contain a proposed take corrective action based on action that is subsequently cancelled, an

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5 CFR part 752—Adverse Actions employees equally accountable for follows: ‘‘Insufficient Sufficient evidence Subpart A — Discipline of Supervisors retaliation. While another organization means evidence that fails to meet meets Based on Retaliation Against voiced its support for whistleblower the substantial evidence standard Whistleblowers protection, the organization emphasized described in 5 CFR 1201.4(p).’’ The that supervisors, managers, and commenter argued that the rule Recent changes enacted by Congress executives can be whistleblowers, and introduces the substantial evidence modifying 5 U.S.C. 7515 establish changes to the system cannot embed an standard into chapter 75 adverse action mandatory procedures for addressing us-versus-them mentality between procedures. He believes his retaliation by supervisors for different levels of the workforce. recommendation will ensure that the whistleblowing. The regulations, issued OPM agrees with these commenters. agency retains the preponderance of the pursuant to this Statute, reinforce the We understand that under the relevant evidence burden of proof while still responsibility of agencies to protect statute (i.e., 5 U.S.C. 7515(b)), the claims maintaining the substantial evidence whistleblowers from retaliation. These of retaliation must be substantiated and burden of proof for the employee requirements are significant because of proven and that mere allegations may refuting an allegation of a prohibited the essential protections they provide. not be the basis for the dismissal of personnel action. OPM will not adopt Prohibited personnel actions are not management. Further, we believe that any revisions based on this comment consistent with the notion of a system the regulations reinforce the because the recommended changes are based on merit, and failure to observe responsibility of agencies to protect all unnecessary. First, the term these prohibitions must be addressed whistleblowers from retaliation. These ‘‘insufficient evidence’’ mirrors the promptly and resolutely. regulations help to undergird and content of 5 U.S.C. 7515, which OPM OPM has revised our regulations to support agencies in meeting their has no authority to change. Further, the incorporate these statutory changes and requirements to take action against to ensure that agencies understand how employee’s burden of proof of ‘‘any’’ supervisor who retaliates against substantial evidence in the proposed to meet the additional requirements in whistleblowers. Accordingly, different connection with prohibited personnel regulations applies only to the evidence levels of the workforce are subject to the furnished prior to any agency action. If actions. This new rule falls under increased accountability and subpart A of 5 CFR part 752 as an action is taken and the employee protections. appeals to the MSPB, the agency bears ‘‘Discipline of supervisors based on In response to these comments, OPM retaliation against whistleblowers.’’ the burden of proof. The agency’s action also provides the following clarification: must be sustained by a preponderance An agency suggested that OPM The initiation of a removal action remove portions of the newly created of the evidence if the action is brought pursuant to 7515(b)(1)(B) should be under chapter 75, as it is here. subpart A on the rationale that the understood to be required under this Office of Special Counsel (OSC) should statute only if a disciplinary action, Also, with respect to coverage, a issue regulations pertaining to initiated pursuant to 7515(b)(1)(A)— commenter expressed concern that 5 discipline of supervisors based on based on an agency finding of retaliation U.S.C. 7515 fails to hold political retaliation against whistleblowers if it made pursuant to procedures outlined appointees accountable for retaliation desires to do so. This agency stated also in 7515(b)(2)(B)—is either uncontested against whistleblowers and observed that the regulations should be in chapter or if contested, is upheld by a third that the proposed rule weakens Federal VIII, of title 5, Code of Federal party. As a corollary to this observation, workforce protections at a time when Regulations. We will not make any OPM notes that, should a disciplinary they should be strengthened. OPM did revisions to the final rule as a result of action initiated pursuant to not adopt any revisions based on this this comment. Congress granted OPM 7515(b)(1)(A) be contested and not comment. An agency head need not authority to regulate adverse actions. sustained, a subsequent and separate follow the procedures outlined in The final language implements the determination by the agency that a section 7515 in order to separate a statutory authority and procedures of 5 supervisor engaged in a prohibited political appointee who engaged in U.S.C. 7515 and reinforces the principle personnel practice (again after following whistleblower retaliation. Political that increased accountability is procedures in 7515(b)(2)(B)), would appointees serve at will and can be warranted in situations where a trigger a proposal under 7515(b)(1)(A), separated at the pleasure of the agency supervisor commits a prohibited not 7515(b)(1)(B). head at any time, including for violating personnel action against an employee of whistleblower rights. Therefore, an agency in violation of paragraph (8), Section 752.101 Coverage political appointees can be held (9), or (14) of 5 U.S.C. 2302(b). The final rule describes the adverse accountable for retaliation against Two organizations and one individual actions covered and defines key terms whistleblowers. As to the broader expressed broad support for subpart A. used throughout the subchapter. An assertion that the proposed rule One of the organizations fully organization suggested, without any weakens Federal workplace protections, commended OPM, while reminding us additional information or specific OPM emphasizes that Federal that claims of retaliation must be recommendations, that clarification of employees will continue to enjoy all substantiated and proven and definitions in this section is needed and core civil service protections under the cautioning against mere allegations would be helpful. Due to the lack of law, be protected by the merit system resulting in the dismissal of specifics, OPM did not consider any principles, and possess procedural management. In addition, the revisions based on this comment. rights and appeal rights. The final rule organization reminded OPM that The final rule also includes a does not remove the procedural managers and supervisors can be definition for ‘‘insufficient evidence.’’ protections afforded employees who are whistleblowers as well, but often lack OPM defines this new term as evidence subject to an adverse action, including protections equal to those applicable to that fails to meet the substantial the right to contest a proposed adverse other employees in making evidence standard described in 5 CFR action if an employee believes the whistleblower disclosures. Lastly, the 1201.4(p). One commenter objected to agency has acted impermissibly or organization encouraged OPM to protect this definition and recommended that relied upon an error and the right to whistleblowers at all levels and hold all OPM either remove it or change it as submit a reply and supporting materials.

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Section 752.102 Standard for Action We will not make any revisions to the evidence as provided in 5 U.S.C. and Penalty Determination regulation based on these comments. 7515(b)(2)(B) in the instance of, for The mandatory proposed penalties as example illness, extenuating 5 U.S.C. 7515 incorporates many of listed in § 752.102(b)(1) track the circumstances, or in response to a the procedural elements of 5 U.S.C. relevant statute, 5 U.S.C. 7515. request for extension from the employee 7503, 7513 and 7543, to include the Specifically, for the first incident of a or the employee’s legal representative. standards of action applied to each type prohibited personnel practice, an One of the agencies recommended of adverse action. For supervisors not agency is required to propose the specifically that OPM clarify this matter covered under subchapter V of title 5, penalty at a level no less than a 3-day as to circumstances which may justify the proposed rule applies the efficiency suspension. (Emphasis added.) Further, extension of this 14-day answer period, of the service standard. For supervisors the agency may propose an additional if any. With respect to § 752.103(d)(2), who are members of the Senior action, including a reduction in grade or the organization characterized the Executive Service (SES), the proposed pay. We believe the regulation as proposed regulation as contrary to rule defines the standard of action as written is sufficiently broad to give statute, stating that OPM cannot waive misconduct, neglect of duty, agencies the flexibility and guidance the statutory requirements for advance malfeasance, or failure to accept a needed to propose a penalty suited to notice of proposed adverse actions by directed reassignment, or to accompany the facts and circumstances of the regulation, and so cannot set up a a position in a transfer of function. instant whistleblower retaliation, scheme whereby the effective date of an 5 U.S.C. 7515 enhances statutory including severity of the offense. adverse action is less than the absolute protection for whistleblowers through One commenter stated that any rule statutory minimum. Similarly, an the creation of proposed mandatory change should include notifying individual commenter asserted that it penalties. In accordance with the employees of what action has been contradicts 5 U.S.C. 7513(b)(1) and 5 statute, the final rule at § 752.102 taken to correct a supervisor’s ‘‘future U.S.C 7543(b)(1) with respect to an outlines the penalty structure. behavior,’’ which we understood to agency’s requirement to give 30-day Specifically, for the first incident of a mean notifying employees of what advance notice of a proposed adverse prohibited personnel action, an agency action was taken to correct a action. The commenter argued that a is required to propose the penalty at a supervisor’s behavior to prevent any statutory amendment is required to level no less than a 3-day suspension. future wrongdoing. We will not adopt exclude disciplinary actions for Further, the agency may propose an this proposed change based on the need prohibited personnel practices from the additional action, including a reduction to protect employees’ personal privacy. statutorily prescribed notice and in grade or pay. For the second incident An agency may only share information response times. of a prohibited personnel action, an from an individual’s personnel records The national union also raised agency is required to propose that the with those who have a need to know, objections to the amount of time supervisor be removed. such as human resources staff involved allowed for an employee to defend a In one agency’s view, the required in advising management and any proposed adverse action under penalties under § 752.102 seem to management official responsible for § 752.103, claiming that the proposed conflict with language regarding approving the action. rule does not consider the time it may take an employee to gather evidence or progressive discipline and the penalty Section 752.103 Procedures obtain capable representation. The determination in the remaining sections The final rule establishes the union added that agencies must then of 5 CFR part 752. The agency’s procedures to be utilized for actions evaluate evidence and render a decision commenter stated that it is possible a taken under this subpart. The within 15 days after the response period third-party would see the lower-tiered procedures in the subpart are the same closes. The union called this a disciplinary level (suspension) and as those described in 5 U.S.C. 7503, ‘‘hurried’’ approach that places argue that it should have been taken 7513 and 7543. However, the final rule unreasonable time constraints on first (absent any prior disciplinary also includes some key exceptions, employees and agencies and favors action). For the first prohibited namely the provisions concerning the expediency over accuracy. Another personnel action committed by the reply period and advance notice. Under agency recommended clarifying that the supervisor, the agency recommended this subpart, supervisors against whom 15-business day limit does not apply to modifying § 752.102(b)(1)(i) to state, an action is proposed are entitled to no suspensions, reductions in grade or pay, ‘Shall propose a penalty up to and more than 14 days to answer after or lesser penalties. including removal.’’ receipt of the proposal notice. At the OPM will not adopt any revisions Another commenter who was conclusion of the 14-day reply period, based on these comments. The response concerned about the penalty structure the agency shall carry out the proposed period and advance notice period in stated that a suspension of a minimum action if the supervisor fails to provide § 752.103 do not represent guidelines of three days for retaliation against a evidence or provides evidence that the originating from OPM regulations, as whistleblower is not sufficient given the head of the agency deems insufficient. indicated by these commenters but severity of the offense and opined that To the extent practicable, an agency rather effectuate the statutory a suspension should be a minimum of should issue the decision on a proposed requirements in 5 U.S.C. 7515, and the 30 days or more depending on the removal under this subpart within 15 principle outlined in Section 2(f) of E.O. severity of the offense. This commenter business days of the conclusion of the 13839 that provides, to the extent further stated that if the offending employee’s opportunity to respond. practicable, agencies should issue supervisor is retained, then he or she Several commenters, including three decisions on proposed removals taken should be retrained for a minimum of 5 agencies, an organization and a national under chapter 75. The requirement days in addition to the suspension. union, expressed concern about the regarding the 14 days to submit an Finally, the commenter stated that if the procedures promulgated in § 752.103(d). answer and furnish evidence in support whistleblower was terminated, the The agencies inquired about any of that answer is derived from an supervisor’s penalty should also be exceptions to the required timeframe of explicit statutory limitation (See 5 termination. not more than 14 days to furnish U.S.C. 7515(b)(2)). The statute further

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states that if after the end of the 14-day proposal notices under section 7515. action. The organization stated that period a supervisor does not furnish any Also, the commenter went on to observe larger agencies such as the Department evidence, the head of the agency ‘‘shall’’ that 5 U.S.C. 7515 specifically states of Defense have traditionally delegated carry out the action proposed. The clear that its provisions are not subject to 5 authorities to Components who may language of the statute specifically U.S.C. 7503(b)(1), 7513(b)(1) and further delegate within their command directing that the head of the agency 7543(b)(1). structure. The commenters asked for carry out the action at the conclusion of Upon further review and careful clarity on when an agency head would 14 days reflects a mandatory process consideration of this comment, OPM be responsible for determining whether that provides no discretion for OPM to has determined that it will not a supervisor committed a prohibited make exceptions through regulation nor incorporate the requirement to provide personnel action. One of the agencies information on appeal rights in any does it offer discretion for agencies to commented that the meaning of this notice to an employee for an action diverge from the statutory requirements provision is unclear specifically as to by permitting extensions. taken under section 7515. Additionally, a commenting An agency and one individual whether the head of the agency is organization expressed concern that, commenter also raised concerns about responsible for determining, without although the 15 business days to issue including appeal rights information in delegation permitted, whether a decisions is ‘‘doable’’ and will speed up the notice of proposed action. The supervisor committed a prohibited the process, these types of actions agency commented that this seems to personnel action or if an agency has sometimes do not receive attention in a imply that an employee obtains a right decided internally via its disciplinary timely manner at senior level. The to appeal an action under Public Law procedures that the head of the agency organization stated that some of their 115–91 section 1097(b)(2)(A) while the must make this determination, then it members have reported removal statute only requires that the agency cannot be delegated. The agency decisions that are pending for months provide notice of detailed information suggested that OPM should exercise its with the employee in limbo and the with respect to any right to appeal the authority to provide more guidance office scrambling to accomplish work. action. The agency suggested that OPM regarding the meaning of 5 U.S.C. The commenter recommended that the revise § 752.103(c)(3) to read ‘‘. . . 7515(b)(3). A second agency stated that reporting requirement should provides, pursuant to section as a political appointee, the head of an emphasize the importance of meeting 1097(b)(2)(A) of Public Law 115–91, agency may be perceived as making the time period of 15 business days to notice of any right to appeal. . . .’’ The politically motivated decisions, issue decisions. individual commenter stated that parts resulting in claims of whistleblower OPM will not adopt the 315, 432, and 752 require that a notice retaliation. Another of the agency’s recommendation that the reporting of proposed action include the concerns is that a limitation on requirement should emphasize the employee’s appeal rights and time delegation could be inconsistent with importance of adhering to the time limits, which is inappropriate at the the statute. This agency, along with a period of 15 business days to issue proposal stage. The commenter’s third agency, recommended agency decisions. By emphasizing the non- concern is that employees would file discretion to determine delegation level. discretionary nature of this reporting appeals before an action is final and requirement in the Data Collection create a bottleneck downstream. Some clarification in response to section above.,, OPM believes that it is As noted above, the amended these comments may be useful. The conveying the importance of meeting regulation will not require that agencies requirement regarding non-delegation is this deadline. That said, OPM agrees include appeals rights information in a an explicit statutory limitation under 5 that adhering to the time period of 15 notice of proposed action taken under U.S.C. 7515(b)(3) contingent upon business days to issue adverse action section 7515. Notwithstanding, it is whether the head of any agency is decisions is important and would important that the commenters responsible for determining whether a further emphasize that this requirement understand that current and amended supervisor has committed a prohibited supports the objective to make parts 315 and 432 do not require that personnel practice. The statute states disciplinary procedures more efficient agencies provide advance notice of that if the head of the agency and effective. appeal rights. (It is unclear if by ‘‘time responsible for making the OPM received comments as well on limits’’ the commenter is referring to determination of whether a supervisor other requirements established in time in which to file an appeal or time committed a prohibited personnel § 752.103. An agency raised a concern to respond to notice of a proposed action in retaliation against a regarding written notice about the right action.) Further, it is well-established in whistleblower, the responsibility may of the supervisor to review the material statute, regulation, and case law that an not be delegated. However, if that relied on, as provided for at employee cannot appeal a proposed responsibility rests at a lower level 752.103(c)(2); and written notice of any action. right to appeal the action pursuant to Finally, the regulation at § 752.103 within the agency, then decision- section 1097(b)(2)(A), as provided for at also includes the requirement that, if the making authority as it relates to these 752.103(c)(3). The agency highlighted head of an agency is responsible for types of actions would be similarly re- specifically that according to the determining whether a supervisor has delegated. Consistent with this wording National Defense Authorization Act committed a prohibited personnel and with the general authority granted (NDAA) for Fiscal Year 2018, Pubic Law action, that responsibility may not be to agencies pursuant to 5 U.S.C. 302, 115–91, Sec. 1097(b)(2)(A) requirements delegated. This non-delegation OPM interprets this language to provide only apply to proposal notices under 5 provision generated a significant agencies with the discretion to U.S.C. 7503(b)(1), 7513(b)(1), and number of comments. One organization, internally re-delegate this function to an 7543(b)(1) as stated in the law. The three agencies, and one individual appropriate level resulting in these commenter stated that Public Law 115– questioned how it would work to have responsibilities then resting at that level 91 Sec. 1097(b)(2)(A) requirements do the head of an agency responsible for for the purpose of making these not apply to 5 U.S.C. 7515 actions and determining whether a supervisor has determinations regarding supervisory therefore should not be applicable to committed a prohibited personnel conduct.

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Section 752.104 Settlement defined and clarified. OPM will not added that agencies will impose Agreements make any revisions based on these penalties ‘‘within the bounds of The language in this section comments as the commenters did not tolerable reasonableness’’ in a manner establishes the same requirement that is identify any specific phrases or terms that leads to subjective discipline. detailed in the rule changes at for consideration and the regulations are Another national union argued that § 432.108, Settlement agreements. based on statutory requirements. progressive discipline helps to foster a Please see discussion in § 432.108. An agency expressed support for successful workplace by giving OPM’s clarification that agencies are not employees an opportunity to learn from Subpart B—Regulatory Requirements required to use progressive discipline, their mistakes and ensuring that for Suspension for 14 Days or Less adding that use of progressive discipline discipline is proportionate to mistakes. This subpart addresses the procedural has led to many delays in removal as The union went on to say that the rule requirements for suspensions of 14 days well as hardship for supervisors. The weakens workplace flexibility and or less for covered employees. agency noted that the rule will give eliminates the ability of Federal more discretion to supervisors to managers and employees to come Section 752.201 Coverage remove ‘‘problematic’’ employees, thus together to develop fair disciplinary Pursuant to the creation of subpart A increasing the efficiency of the service. procedures. Yet another national union within the final rule, § 752.201(c) However, the agency added that described progressive discipline as an reflects an exclusion for actions taken progressive discipline is often useful to important tool that agencies should use under 5 U.S.C. 7515. justify an agency’s action; defeat claims in order to avoid ‘‘arbitrary and of favoritism, preferential treatment, and capricious’’ penalty determinations. The Section 752.202 Standard for Action discrimination; and provide more and Penalty Determination union expressed concern that a critical consistency between managers. The safeguard against arbitrary and While the standard for action under agency recommended that OPM provide capricious agency action is being taken this subpart remains unchanged, the further guidance on when and to what away in favor of ‘‘inconsistent and ad- final rule makes clear that an agency is extent progressive discipline should be hoc decision-making.’’ Pointing to the not required to use progressive used as well as clarification on the CSRA, the union said, ‘‘Put simply, discipline under this subpart. The final extent to which agencies should rely jettisoning progressive discipline, rule supports Section 2(b) of E.O. 13839, upon tables of penalties in making confusing the use of comparator which states that supervisors and disciplinary decisions. In fact, OPM evidence, and discouraging tables of deciding officials should not be required recently provided such information in a penalties, creates an improper bias to use progressive discipline. Three memorandum, ‘‘Guidance on toward the most drastic penalty an management associations endorsed this Progressive Discipline and Tables of agency thinks it can get away with.’’ clarification. Two of the associations Penalties,’’ issued on October 10, 2019. This national union asserted such a recognized explicitly that supervisors, An individual commenter also ‘‘rule of severity’’ is not only managers and executives encounter expressed support for the clarifications counterproductive and likely to lead to unique circumstances whereby they as they relate to progressive discipline, a greater number of penalty reversals, it must apply their judgment, tables of penalties and selection of a is also contrary to the text, structure, understanding of context and penalty appropriate to the facts and and purpose of the CSRA. The national knowledge of their workforce and circumstances, including removal, even union stated that the proposed organization in a manner that if the employee has not been previously regulations upset this balance and collectively informs personnel subject to an adverse action. Another asserted that OPM’s claim that decisions. One of the groups added that commenter found the clarification at managers who have greater autonomy § 752.202 to be helpful, with the caveat ‘‘[p]rogressive discipline and tables of over personnel actions can better work that implementation will be difficult as penalties are inimical to good with their employees to determine labor and employee relations staff seem management principles’’ is nothing which personnel actions will foster to have it ingrained that progressive more than a cheap soundbite. This success for the agency in the long term. discipline is the ‘‘safest way to go’’ to national union insisted that it is not One association stated that the avoid litigation. The commenter based on sound analysis or solid amended regulation ‘‘takes the penalty observed that without support from evidence and stated that the proposed out of the bargaining arena,’’ and added labor and employee relations staff, front- regulations should therefore be that it ‘‘never belonged there in the first line supervisors are often constrained by abandoned. place.’’ As reflected in the language of senior managers. OPM will not make The fourth national union stated that the rule, specifically that a penalty any revisions based on these comments the rule will have the ‘‘perverse effect’’ decision is in the sole and exclusive as no revision was requested. of encouraging agencies to terminate an discretion of the deciding official, Many commenters objected to the employee even where there are no prior bargaining proposals involving penalty regulatory amendments regarding disciplinary issues and regardless of the determinations such as mandatory use standard for action and penalty seriousness of the infraction at issue. of progressive discipline and tables of determination. Some, including four The union went on to say that such penalties impermissibly interfere with national unions, characterized the results would erode the public trust in the exercise of a statutory management amendments as eliminating, attacking, Federal agencies and devalue the right to discipline employees, and are or discarding progressive discipline, contributions of hard-working Federal thus contrary to law. and argued strongly for withdrawal of employees. This national union stated Two of the associations recommended the proposed rule. One of the unions that the Federal government invests that OPM use ‘‘plain English’’ as much commented that ‘‘eliminating’’ considerable time and money in training as feasible when updating the progressive discipline places an Federal employees, and the notion that regulations. The organization noted that inordinate amount of power in the a supervisor could decide to fire an there are many legal phrases used in the hands of deciding officials, who are employee over a minor transgression Federal employment context which can being directed to impose the most and give a written reprimand for the be highly confusing if not properly severe penalty possible. The union same transgression to another employee

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is antithetical to the principles of an An organization disagreed with the contained in Section 2 of E.O. 13839, unbiased and fair civil service system. rule because in their view it flies in the emphasize that penalties for misconduct In addition to the comments face of proportionate discipline, due should be tailored to specific facts and discussed above that were submitted process and fairness. The organization circumstances, that a more stringent individually by labor organizations, we commented that the regulation is penalty may be appropriate if warranted received a letter signed by seven contrary to statutory authority in 5 based on those facts and circumstances, national unions as well as comments via U.S.C. 7513 and established case law. and that a singular focus on whether an a template letter from members of one They stated that eliminating progressive agency had followed progressive of the undersigned unions. They discipline and the consideration of discipline to the detriment of a more discussed that progressive discipline is mitigating factors would essentially comprehensive fact-based, contextual the ‘‘law of the land’’ and deemed it eliminate the ‘‘for cause’’ standard and assessment does not serve to promote weakened by the proposed rule. The turn Federal employees into ‘‘at will’’ accountability nor an effective or commenters further stated that the employees. The organization observed efficient government. The regulatory proposed rule does nothing but weaken that this is the type of drastic action that changes emphasize principles and protections for Federal employees in an would undo, impermissibly, the dictates policies contained in E.O. 13839 but are effort to circumvent the ‘‘efficiency of of title 5 and interpretive case law, and also supported by well-established legal the service’’ standard. Also, the is the type of action that can only be authority: That the penalty for an commenters opined that the proposed taken by Congress. instance of misconduct should be changes cannot change an agency’s An organization opposed the tailored to the facts and circumstances; obligation to determine an appropriate proposed rule to the extent that it an agency shall adhere to the standard penalty in accordance with Douglas v. ‘‘undercuts’’ progressive discipline. The of proposing and imposing a penalty Veterans Administration, 5 MSPR 280 organization stated that progressive that is within the bounds of tolerable (MSPB 1981). The commenters stated discipline is a wise approach and reasonableness; employees should be the proposed change will lead to asserted that a supervisor can deviate treated equitably; and conduct that confusion and the unjustified from the guidelines of progressive justifies discipline of one employee at punishment of Federal workers, not to discipline in certain situations if they one time does not necessarily justify mention disparate treatment. One of the have a reasoned explanation for doing similar discipline of a different union members added that progressive so. employee at a different time. Concerns Additional commenters expressed discipline is fair and allows employees expressed by commenters that the concern about potential negative a chance to improve their performance ‘‘bounds of tolerable reasonableness’’ is consequences of discouraging without fear of losing their livelihood. insufficiently clear appear to take issue progressive discipline, calling it a poor The commenter went on to say that with the state of the law, not OPM’s rule stewardship of tax dollars, contrary to progressive discipline prevents which simply incorporates the the public interest and a lead up to appropriate legal standard. The rule is favoritism, nepotism and the ‘‘good ole disparate treatment and retaliation. also consistent with the efficiency of the boy’’ networks from forming and Some commenters worry that agencies service standard for imposing discipline flourishing in Federal agencies. The will impose discipline arbitrarily, up to contained in the CSRA notwithstanding commenter is concerned that rules such and including removal, for any offense assertions that it circumvents this as this will deter ‘‘young and new with no obligation to first correct standard. While commenters argued that talent’’ from applying for Federal jobs employee behavior. Commenters the changes weaken agency flexibility, and drive existing workers to the private advocated that agencies give employees reliance upon the efficiency of the sector. an opportunity to be made aware of and Via a different template letter, several correct behavior before being suspended service standard, like reliance upon the members of another national union also or terminated, including calling it bounds of tolerable reasonableness in interpreted the proposed rule to mean improper to do otherwise. Even a the context of penalty selection in fact that progressive discipline is abolished. commenter who acknowledged that the provides necessary flexibility to The commenters expressed concern that rule changes could be beneficial encompass the range of facts and the regulatory changes will lead to expressed concern that managers are circumstances associated with each widely varying, incoherent, and being given ‘‘more power’’ to remove individual adverse action. Agencies discriminatory discipline for similarly employees without just cause. One remained constrained by law to select situated employees. One of the asserted that this is a clear violation of penalties that conform to these legal commenters self-identified as a union the CSRA. requirements and any such penalty steward and asked that their workload We will not make changes to the final remains subject to challenge based on is lightened, not increased. rule based on these comments. The final alleged failure to do so. This is In addition, a national union objected rule does not eliminate progressive undisturbed by the revised rule. to the proposed rule regarding discipline. Rather, the regulatory Whether or not agencies choose to adopt progressive discipline on the basis that language makes clear that an agency ‘‘is further, internal constraints beyond a standard of ‘‘tolerable limits of not required’’ to use progressive these legal standards is purely reasonableness’’ is less clear and may discipline under this subpart. In fact, discretionary, and OPM reminding result in various interpretations by progressive discipline has never been agencies of this fact does not direct supervisory personnel even within the required by law or OPM regulations. It agencies to issue nor otherwise same department of an agency. The is not the ‘‘law of the land’’ as asserted encourage more stringent penalties than union expressed concern that by one commenter. Notwithstanding a are warranted given specific facts and ‘‘mandating’’ that the threshold for number of comments submitted, the circumstances. review be at a less clear standard invites clarifying language in the amended Federal employees will continue to workplace chaos in which inconsistent regulations does not set aside or discard enjoy the protections enshrined in law, penalties and unfair discipline is progressive discipline but it does, including notice, a right to reply, a final administered without the opportunity consistent with the Principles for written decision, and a post-decision for it to be corrected. Accountability in the Federal Workforce review when an agency proposes to

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deprive them of constitutionally assessment of penalty that should not be a penalty that is within the bounds of protected interests in their employment. superseded by singular reliance on tolerable reasonableness. An Although we have made changes to the progressive discipline which may organization discussed that while OPM regulations, due process and other legal artificially constrain a more may issue regulations regarding the protections are preserved as required by comprehensive analysis. procedures to be followed in adverse Congress. One union noted that the proposed actions, an action against any employee Regarding a commenter’s criticism regulations will prevent agencies from may only be taken ‘‘for such cause as that there is a need to look at engaging in any collective bargaining will promote the efficiency of the disciplinary actions before they are negotiations that allow for progressive service,’’ 5 U.S.C. 7513(a). Citing taken, the rule does not change the discipline. They asserted that the Douglas itself and other case law, the requirement for disciplinary actions to regulations are contrary to the intent organization described as a basic be reviewed under the current and purpose of the Federal Service principle of civil service disciplinary regulatory requirements. The existing Labor-Management Relations Statute action that the penalty must be regulations at §§ 752.203 and 752.404 (the Statute). The union stated an reasonable in light of the charges and require that the employee must be agency’s policy on disciplinary that the penalty not be grossly provided an opportunity to provide an structure directly affects an employee’s disproportionate to the offense. The answer orally and in writing. The conditions of employment and is the commenter noted that ‘‘efficiency of the agency must consider any answer exact condition that Congress intended service’’ is colloquially referred to as the provided by the employee in making its to be collectively bargained. While ‘‘nexus’’ requirement which requires the decision. Moreover, for appealable recognizing OPM’s authority to issue agency to establish a ‘‘clear and direct adverse actions, § 752.404 provides that regulations in the area of Federal labor relationship demonstrated between the the agency must designate a deciding relations, the union added that OPM articulated grounds for an adverse official to hear the oral answer who has may not ‘‘dilute the value of employees’ personnel action and either the authority to make or recommend a final statutory right to collectively bargain.’’ employee’s ability to accomplish his or decision on the proposed adverse The union further stated the regulations her duties satisfactorily or some other action. Thus, further review of an should not be implemented because legitimate government interest agency proposed action is required they would ‘‘diminish the core elements promoting the efficiency of the service.’’ before a decision to take any of collective bargaining by reducing The organization objected also to the administrative action. negotiations over primary conditions of consideration of ‘‘all prior misconduct.’’ Regarding the assertion that the employment,’’ including discipline. The organization argued that existing regulations cannot be used to We agree that Federal employees have case law allows the deciding official to circumvent required assessment of the a statutory right to collectively bargain evaluate whether or not prior Douglas factors, OPM would emphasize over their conditions of employment. misconduct should be used as an that there is no effort to evade any such However, there are certain exceptions aggravating or mitigating factor, whereas legal requirement. Douglas itself states outlined in the Statute, including a the regulatory change appears to that the Board will not mitigate a prohibition on substantively bargaining ‘‘require’’ the deciding official to use the penalty unless it is beyond the bounds over management rights as outlined in prior discipline as an aggravating factor of tolerable reasonableness. This 5 U.S.C. 7106(a). This includes against the employee. They stated that permits, but does not require, agencies management’s statutory right to it would be ‘‘patently illogical’’ for to impose the maximum reasonable suspend, remove, reduce in grade or potentially unrelated misconduct from penalty. OPM’s regulations on pay, or otherwise discipline employees. years or decades ago to be considered progressive discipline are manifestly in Accordingly, bargaining proposals that when determining a penalty for a accord with longstanding decisional would mandate a specific penalty under current instance of misconduct. law. Moreover, the analysis pursuant to certain circumstances or which mandate OPM notes that the amended Douglas that each deciding official must the use of progressive discipline and regulation is intended to ensure that the make provides a means of promoting tables of penalties impermissibly deciding official has the discretion to fairness and discouraging the type of interfere with the exercise of a statutory consider any past incident of subjectivity and disproportionality management right to discipline misconduct that is relevant and which some commenters allege the new employees. In clarifying that a proposed applicable while making a penalty rule promotes. Meanwhile, the Douglas penalty is at the sole and exclusive determination, consistent with law. To factors ensure consideration of all discretion of the proposing official, and that end, OPM will amend the relevant factors that may impact a the penalty decision is at the sole and regulation to clarify that agencies penalty determination, consistent with exclusive discretion of the deciding should consider all applicable prior the language of E.O. 13839 and this rule. official (subject to appellate or other misconduct when taking an action This includes consideration of whether review procedures prescribed by law), under this subpart. an employee engaged in previous the rule further elaborates on what is A national union declared that OPM misconduct or did not engage in already established by law, is not empowered to ‘‘regulate away’’ previous misconduct. While again, OPM management’s inherent and non- the Douglas factors. The union stated is not seeking to prevent agencies from negotiable right to utilize its discretion that the proposed rule would imposing less than the maximum in this area, it does not enhance those improperly result in an override of reasonable penalty with this rule, and rights nor diminish bargaining rights in MSPB’s longstanding determination of the exercise of sole and exclusive this area. what should be considered in assessing discretion is reposed in agencies, not Some commenters focused especially potential employee discipline. In OPM, considerations such as this, on OPM’s adoption by regulation of the particular, the union believes the carefully weighed alongside numerous standard applied by MSPB in Douglas to proposed rule is at odds with other relevant considerations such as removals, suspensions and demotions, progressive discipline considerations in the severity of the misconduct and any including suspensions of fewer than 15 Douglas factors 1, 3, 9 and 12, and potential mitigating circumstances days. Specifically, the final rule adopts penalty consistency considerations in provide a carefully calibrated the requirement to propose and impose Douglas factors 6 and 7.

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In addition, an agency commented consider all applicable prior discipline aligned with merit principles by making that OPM only explicitly discussed but gives agencies the discretion to do the process more transparent, reduce certain Douglas factors, thereby giving so. With regard to the consistency of arbitrary or capricious penalties and the impression that agencies should penalty with other employees who have provide guidance to supervisors. The only prioritize consideration of these engaged in the same or similar conduct, union claimed that OPM’s citation to factors over those not mentioned. The while the rule incorporates the current Nazelrod v. Department of Justice, 43 agency added that ‘‘relevant factors’’ is legal standard, which informs this F.3d 663 (Fed. Cir. 1994) is undefined and vague. The agency analysis, it does nothing to alter the ‘‘nonsensical’’ and added that this will recommends that OPM clarify its Douglas factor itself. Similarly, the not change the requirement that an intention, so agencies and adjudicators Douglas factor addressing the adequacy agency must prove all the elements of a have a clear understanding of what of alternative sanctions to deter conduct charged offense. The union goes on to standards to apply by either including remains unaltered, and in fact, this cite Cleveland Board of Education v. explicit references to all the factors or consideration provides a further Loudermill, 470 U.S. 532, 542 (1985) to making a reference to Douglas itself. safeguard against the subjective and make its point that an employee against OPM disagrees with the commenters disproportionate penalties some whom an action has been proposed is and will not make any revisions based commenters allege will result from the entitled to notice and an opportunity to on these comments. As explicitly changes to the regulation. If a penalty is be heard before the action may become described in the proposed rule, the disproportionate to the misconduct or final. standard for action under this subpart unreasonable, the agency risks having Another national union commented remains unchanged. Specifically, the the penalty mitigated or reversed. For that the regulatory changes weaken final rule at §§ 752.202, 752.403, and these reasons, we urge managers to rules that forbid disparate treatment for 752.603 adopts the requirement to exercise thoughtful and careful similarly situated employees. In the propose and impose a penalty that is judgment in applying the broad union’s view, tables of penalties help within the bounds of tolerable flexibility and discretion they are ensure equitable treatment and guard reasonableness and make it clear that granted in addressing misconduct and against discrimination, retribution and this standard applies not only to those making penalty determinations. favoritism. Two unions asserted that actions taken under 5 U.S.C. 7513 and We received many submissions that agencies with whom they work typically 7543 but apply as well to those taken included significant objections to OPM’s allow supervisors to assess the situation under 5 U.S.C. 7503. As to the criticism discussion of the risks of tables of and use their discretion in determining that the proposed rule does not observe penalties in the Supplementary what action is appropriate rather than the efficiency of the service standard Information section of the proposed using penalty tables blindly or rigidly. and the nexus requirement, §§ 752.202, rule. Again, as with progressive The unions urged OPM to withdraw or 752.403, and 752.603 includes: the discipline, many commenters, including reject the proposed rule and consider penalty for an instance of misconduct three national unions, had the mistaken alternative approaches. should be tailored to the facts and impression that the rule somehow Via a template letter, several members circumstances; an agency shall adhere eliminated tables of penalties. They of a national union observed that the to the standard of proposing and expressed concern that the amended proposed rule discourages tables of imposing a penalty that is within the regulations will remove transparency penalties. The commenters expressed bounds of tolerable reasonableness; and accountability; create an concern that the regulatory changes will employees should be treated equitably; environment of fear, distrust, and lead to widely varying, incoherent, and and conduct that justifies discipline of resentment; and empower deciding discriminatory discipline for similarly one employee at one time does not officials to mete out discipline situated employees, regardless of necessarily justify similar discipline of arbitrarily, disparately, and inequitably. whether the same or different a different employee at a different time. The unions advocated for use of tables supervisors are involved. They OPM understands and reiterates that of penalties, believing that they ensure expressed a strong belief that penalties agencies continue to be responsible for that discipline is dispensed fairly and should be the same or similar for similar ensuring that discipline is fair and employees are treated equitably; provide offenses and dispensed of any idea that reasonable, including applying the support to employees by helping them identical or similar offenses could lead Douglas factors. It is unnecessary to list recognize if a penalty is to disparate discipline as inherently all the Douglas factors in the disproportionate to an infraction; and inequitable or invalid. One of the regulations, but this should not be support supervisors by providing commenters added that in the absence interpreted to place focus on some more readily available and clear guidance. of set penalties, sanctions for like than others. The proposed rule is not at One of the unions claimed to see in violations will be unequal and invite odds with the Douglas factors. Factors the proposed rule a bias toward removal litigation and tie up agency resources. such as the seriousness of the that is ‘‘inconsistent with due process Others added that the changes are misconduct and the clarity of notice and unjustified.’’ In support of its unnecessary and put employees at the remain unchanged. The consistency of position, the union quoted a 2018 U.S. mercy of supervisors. Another self- penalty with a table of penalties would Government Accountability Office identified as a retiree and called the only be applicable if an agency has (GAO) report as saying that ‘‘tables of regulatory changes ‘‘unAmerican.’’ adopted a table of penalties. This penalties—a list of recommended An agency commented, drawing upon Douglas factor, however, does not in disciplinary actions for various types of its own experience, that the benefits of any way require or compel an agency to misconduct—though not required by a table of penalties have outweighed the adopt one (though again, there is statute, case law, or OPM regulations, cons. The agency listed as benefits nothing in the rule that precludes an nor used by all agencies, can help helping supervisors and employees agency from doing so). Regarding an ensure the appropriateness and recognize what constitutes misconduct, employee’s past disciplinary record, the consistency of a penalty in relation to an deterring employees from engaging in rule incorporates the consideration of infraction.’’ The union added that GAO misconduct, and giving all supervisors all applicable prior misconduct. The reported that penalty tables can help and employees a general understanding rule does not require an agency to ensure the disciplinary process is of the type and level of disciplinary

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consequences that can arise from actions, which the commenter described no way to define the infinite committing misconduct. The agency as fair. The person went on to express permutations, combinations and stated that its table has always been that ‘‘[t]his E.O.,’’ which we understood variations of possible misconduct used as advisory guidance, and it to mean E.O. 13839, will allow Federal through preconceived labels. Many requires supervisors to provide an employees to be removed for nearly any types of misconduct or behavior that explanation if they want to exceed the perceived infraction and stated not to must be dealt with to promote the table of penalties. allow the Executive Order to be passed. efficiency of the service fall in the gaps Another agency argued that, when Yet another commenter raised the between offenses listed in tables of tables of penalties are used properly as concern that while it does make sense penalties. And some of these labeled guidance, the unique facts of each case to take disciplinary action for charges require an agency to meet an are taken into consideration. The agency performance reasons or misconduct, elevated standard of proof, such as notes that one of the Douglas factors is there should be ‘‘levels’’ on which intent, whereas behavior warranting the consideration of the agency’s table actions are taken. The commenter also discipline may be merely negligent or of penalties, if any, and thus it is stated that any ‘‘offense should be careless or unintentional. Further, contemplated that such information looked at before taking any action’’ someone charged with a certain type of would be weighed in conjunction with because disgruntled employees could be misconduct not enumerated in the table the other factors outlined in Douglas. that way due to poor management. One of penalties may argue that he was not The agency recommends that OPM person noted that managers actually on notice that what he did was wrong. either delete this discussion from the make more and worse choices than Tables of penalties are rigid, inflexible Supplementary Information or bargaining unit staff but are not held documents that may cause valid adverse significantly revise it to stress, as a best accountable. Another person actions to be overturned. Further, they practice, that tables of penalties, if used, characterized the revised regulations as promote mechanistic decision-making, should serve as a guide for disciplinary demoralizing to the Federal workforce which is contrary to OPM’s policy that penalty determinations, and ‘‘that and expressed concern that they will proposing and deciding officials offenses contained in such a table of produce a Government that is ‘‘fearful, exercise independent judgment in every penalties should be written broadly cautious, and incapable of making bold case according to its particular facts and enough to address unique offenses or decisions’’ rather than the ‘‘resourceful, circumstances in leveling the charge misconduct that may have not been creative, and effective’’ Government that and the appropriate penalty. contemplated in offense.’’ we need. With respect to the GAO report, OPM After expressing general support for Finally, a management association notes that the report does not explain incorporation of the Douglas factor disagreed with OPM that agencies can how having a table of penalties will analysis into the regulations, an address misconduct appropriately help an agency prevent misconduct or organization commented that the without a table of penalties, though the respond to it. The mere existence of a proposed rule is contradictory in that it association did agree that nothing table of penalties does not necessarily states the importance of Douglas, but surpasses a manager’s judgment and serve as a warning to employees or ‘‘undercuts’’ Douglas factor 7, independent thinking when compel supervisors to carry out more ‘‘consistency of the penalty with any determining the best way to handle their disciplinary actions for the conduct applicable agency table of penalties.’’ team. identified in the table. If anything, it is The organization described tables of The Supplementary Information in as likely to de-emphasize constructive penalties as valuable tools that provide the proposed rule identified pitfalls early intervention in favor of a more a measure of uniformity; help avoid real agencies may encounter when basing punitive approach that focuses only on or perceived favoritism, disparate disciplinary decisions on a table of the offenses covered by the table. It may treatment, and discrimination; and penalties. The Supplementary also be read or understood to induce or reduce the risk of litigation. The Information reminded agencies that worse, require, managers in some cases organization is concerned in particular penalty consideration requires an to impose a lesser penalty where a that there will be an increase in individual assessment of all relevant greater penalty is warranted. The GAO disparate treatment complaints before facts and circumstances. To promote report references some of OPM’s the EEOC and MSPB. According to the efficiency and accountability, OPM is concerns about tables of penalties, but organization, its membership has encouraging agencies to afford their there is no serious discussion of the observed that most penalty tables make managers the flexibility to take actions disadvantages of a table of penalties, clear that, in certain situations, a that are proportional to an offense but which we believe are important in supervisor can deviate from the further the mission of the agency and assessing their value. It is vital for guidelines if there is a reasoned promote effective stewardship. The effective workforce management explanation for doing so. This sentiment existence of tables of penalties may consistent with the CSRA and the merit was shared by another organization that create confusion for supervisors who system principles that supervisors use disputed that agencies adhere to tables believe that only the misconduct independent judgement, take of penalties in a formulaic manner, as explicitly identified in the table can be appropriate steps in gathering facts and stated by OPM in the proposed rule. addressed through a chapter 75 process. conduct a thorough analysis to decide One commenter wrote that the Inappropriate reliance on a table of the appropriate penalty in individual proposed rule does not acknowledge penalties or progressive discipline can cases. any advantages or benefits of prevent management from taking an We reiterate that the creation and use progressive discipline or tables of adverse action that would promote the of a table of penalties is not required by penalties. The commenter suggested efficiency of the service and survive statute, case law or OPM regulation. that the final rule should state that an judicial scrutiny. Chapter 75 does not These regulations do not prohibit an agency may choose to but is not only apply to misconduct. It applies to agency from establishing a table of required to use progressive discipline. any action an agency may take to penalties, though OPM strongly advises Another commenter referred to promote the efficiency of the service, against their use. However, once an cumulative infractions as typically including unacceptable performance agency establishes a table of penalties, leading to escalating enforcement and certain furloughs. Further, there is it will have to live with the

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consequences of a document containing of disparate penalties and will lead to discipline facilitates managers’ jobs and mechanistic and perhaps arbitrarily- confusion and an increase in arbitrary helps protect them from perceptions of selected labels, possibly issued years or and capricious agency conduct. An unfairness, favoritism and even decades earlier at a safe remove individual commenter stated that discrimination. from the realities and variety of day-to- incorporating Miskill into the An agency commented that OPM day life in the Federal workplace. For regulations assumes that the case should specify that appropriate that reason, the amendments emphasize overrules Lewis v. Department of comparators have also engaged in the that the penalty for an instance of Veterans Affairs, which it does not. (We same or similar offense. The agency misconduct should be tailored to the interpret this as a citation to 113 stated that this is unclear in the current facts and circumstances, in lieu of any M.S.P.R. 657, 660 (2010).) wording. The agency’s commenter formulaic and rigid penalty Another national union claimed that added that including a definition of determination. The final rule states that there is no legal support for such a appropriate comparators in the employees should be treated equitably narrow assessment of comparators. In regulation is limiting and recommended and that an agency should consider the union’s view, comparators serve as deleting the last sentence. appropriate comparators as the agency a safeguard against unfair and arbitrary After considering the comments on evaluates a potential disciplinary action, discipline. The union is deeply this regulation, OPM provides the as well as other relevant factors concerned that their members will be following assessment and amplification including an employee’s disciplinary improperly disciplined, with minimal of the philosophy and approach record and past work record, including avenue for recourse. The union underlying this regulatory change. all applicable prior misconduct, when advocated for use of comparators in First, as we have previously said taking an action under this subpart. helping supervisors administer regarding progressive discipline and With respect to appropriate penalties that align with the offense, tables of penalties, each action stands comparators, as stated in the proposed with allowances for supervisors to use on its own footing and demands careful rule, conduct that justifies discipline of their discretion to deviate from the consideration of facts, circumstances, one employee at one time by a suggested penalty when necessary. An and, as one commenter wrote, context particular deciding official does not organization asserted that OPM is and nuance. It is the proposing and necessarily justify the same or a similar making a limited, mechanical analysis deciding official who are conferred the disciplinary decision for a different of comparators. The organization’s authority and charged with the employee at a different time. For this commenter stated that this approach responsibility to make these careful reason, we have decided to incorporate ignores significant realities of assessments. Second, no proposing or the Miskill test. The language in the disciplinary actions, agency deciding official should be forced into a proposed rule reflected important organizational structures, and actual decisional straitjacket based on what language in Miskill v. Social Security comparators. As an example, the others in comparable situations have Administration, 863 F.3d 1379 (2017), organization offered a scenario in which that a comparator is an employee that two employees with different done in the past. These prior decisions ‘‘was in the same work unit, with the supervisors are together involved in one are not a binding set of precedent, and same supervisor, and was subjected to instance of misconduct and receive a different assessment is not a deviation the same standards governing different penalties. The organization from settled principle imposing a discipline.’’ As explained in detail asserted that these two individuals burden of explanation. However, the below and in response to many would not qualify as comparators under officials should explain their reasoning, commenters, including national unions, the OPM regulations and would be which implicitly or explicitly will who objected to the definition of unable to challenge their penalties as distinguish their principled reasoning comparator in the proposed rule, OPM disparate, which undermines the basic from that of previous proposals and has modified the final rule to clarify that principles of fairness that undergird the outcomes. If previous proposals and appropriate comparators are primarily merit system principles. The decisions were to serve as a body of individuals in the same work unit, with organization also opined that certain precedent, it logically follows that the same supervisor, who engaged in the charges—‘‘low level charges, AWOL current proposing and deciding officials same or similar misconduct. [absence without leave], failure to would be in many cases constrained or A management association lauded the follow instructions, etc.’’—should impeded from expressing an accurate Government-wide application of Miskill receive the same punishment regardless assessment (or view) on the matter at and clarification of the standard for of the supervisor, whereas more hand. Proposing and deciding officials comparators. However, other egregious conduct may require ‘‘a are not administrative agencies or commenters expressed that the adoption deeper analysis.’’ The organization courts. Rather, they are executive of Miskill narrows the scope of added that the regulatory amendments branch management officials, comparators in a manner that will make will allow two supervisors with responsible for managing their own it difficult for employees to demonstrate differing opinions of discipline to issue workforce. inequitable discipline or abuse of disparate penalties to similarly situated Further, mechanistic subservience to discretion and easy for managers to employees for similar misconduct. what has occurred before could bind a engage in arbitrary and capricious In a similar scenario, one commenter new agency official to penalties that he conduct. Some, including a national posited that narrowing the scope of or she believes to have been too harsh union, went so far as to say that OPM comparators also means that employees as well as, in some cases, too lenient. misinterpreted and misapplied Miskill. in different work units would be Those commenters who have written The union argued that in Miskill, the operating under vastly different sets of that this regulation would in some way court merely applied existing law and conduct rules and expectations, which deprive employees of something of did not make any material change to the does not foster the efficiency and value that they had before overlook that evaluation of agency penalties nor adopt effectiveness of Government. In what occurred before not only might any manner of new test or bright line addition, the commenter stated that a have been of little value to an employee rule. The union stated that the amended consistent set of rules for the workforce against whom an adverse action was regulation is not responsive to the issue and a consistent ‘‘conduct of code’’ and taken, but also might have caused them

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to be disadvantaged or harmed by rote communicates these strategies and Section 752.203 Procedures obedience to what was done earlier. approaches to the Federal community Section 752.203(b) discusses the That said, as the agency endowed through the OPM website and ongoing requirements for a proposal notice with authority conferred by Congress outreach to agencies. As discussed issued under this subpart. This section and the President to make personnel above, on October 10, 2019, OPM issued provides that the notice of proposed policy through notice-and-comment a memorandum to agencies entitled action must state the specific reason(s) regulation, and after having reviewed ‘‘Guidance on Progressive Discipline for the proposed action and inform the and considered the comments and and Tables of Penalties.’’ Regarding data employee of his or her right to review decisional law to date, OPM decided to on misconduct, it is not feasible to the material which is relied on to change the proposed regulatory text. collect instances of misconduct at an support the reasons for action given in The better approach is to change the enterprise level given the array of the notice. The final rule includes proposed regulatory language to potential types of misconduct that may language that the notice must also recognize that the decisions of similarly provide detailed information with situated agency officials might be useful form the basis for management action. respect to any right to appeal the action to a current decisionmaker, though not While common types of misconduct pursuant to Public Law 115–91 section constraining. Accordingly, we are exist, such as time-and-attendance modifying the regulation somewhat to infractions, many unique types of 1097(b)(2)(A); specifically, the forums in read ‘‘Appropriate comparators misconduct cannot be placed into easily which the employee may file an appeal, ‘primarily’ are individuals in the same identifiable categories. Instead, agencies and any limitations on the rights of the work unit . . . .’’ We are also adding should address the unique aspects of employee that would apply because of language to clarify that proposing and each instance of misconduct and tailor the forum in which the employee deciding officials are not bound by discipline to the specific situation. decides to file. This additional language previous decisions, but should consider Moreover, Section 6 of E.O. 13839 implements the requirement within them, as the proposing and deciding requires agencies to report the frequency Public Law 115–91 section officials, in their sole and exclusive or timeliness with which various types 1097(b)(2)(A), which mandates that this discretion. This approach is consistent of penalties for misconduct are imposed information be included in any proposal with current decisional law set forth (e.g., how many written reprimands, notice provided to an employee under 5 recently in Miskill, an outgrowth of how many adverse actions broken down U.S.C. 7503(b)(1), 7513(b)(1), or 7543(b)(1). earlier decisions. OPM does not intend by type, including removals, In relation to this provision of the to and is not upending existing suspensions, and reductions in grade or decisional law but is filling a regulatory proposed rule, OPM received several pay, removals, and how many comments. A national union void in exercise of its policy and legal suspensions). OPM believes that authority. We are placing the focus recommended that OPM revise agencies will find value in collecting § 752.203(b) to add ‘‘and any other where most appropriate. Here, it is such data by providing each agency an management officials who bear the material relevant to the action’’ to the enterprise-wide view of employee end of the sentence requiring that burden of managing their workforce and accountability. who are solely accountable to their agencies inform the employee of his or superiors and agency heads for Moreover, the final rule at § 752.202 her right to review the material relied effectiveness, efficiency, productivity (f) adds language stating that a upon to support the reasons for action and the morale of their work unit. Along suspension should not be a substitute given in the notice. To support its with this responsibility, they must be for removal in circumstances in which recommendation, the union gave an allowed to choose to implement a removal would be appropriate. Agencies example of a scenario wherein there are different approach from predecessors or should not require that an employee conflicting witness statements in an peers to achieve that goal. The rule in have previously been suspended or investigative report and the agency no way detracts from the rights of or demoted before a proposing official may provides only the statements that it harms employees against whom an propose removal, except as may be relied upon to propose action. The adverse action is initiated. appropriate under applicable facts. An union believes that in such a scenario, A commenter discussed the 2018 agency suggested adding ‘‘more’’ before the agency should be obligated to GAO report in reference to guidance for ‘‘appropriate’’ in the first sentence of provide all witness statements, agencies on penalty determination. § 752.202(f). The agency stated that as including those not relied upon to According to the commenter, GAO written, the language could be read as propose the action. The union’s reported that Federal agencies formally requiring removal even if suspension recommended change does not conform discipline approximately 17,000 would be more appropriate. to the statute, which requires only that employees annually. The commenter agencies provide employees with stated that agency officials interviewed OPM disagrees and will not adopt the materials relied upon to support the by GAO reported that they were recommended revision. The language is action upon request. unfamiliar with the disciplinary clear as written. The penalty for an A management association provided process, had inadequate training, or instance of misconduct should be comments explaining that one of their received inadequate support from tailored to the facts and circumstances members agrees with including more human resource offices. GAO of each case. If the facts and detailed information with respect to recommended improved guidance to circumstances of a case warrant appeal rights. The commenting manager supervisors and human relations staff removal, an agency should not cited the benefits to an employee along with improved quality of data on substitute a suspension. We emphasize becoming aware of available options misconduct. again that there is no substitute for before the decision letter thus enabling Note that OPM provides guidance to managers thinking independently and them to seek legal counsel at an early agencies through its accountability carefully about each incident as it stage if necessary. toolkit, which includes some of the key arises, and, as appropriate, proposing or As noted above in § 752.103, an practices and lessons learned discussed deciding the best penalty to fit the agency raised a concern about including in the GAO report. OPM frequently circumstances. appeal rights information in the notice

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of proposed action. The agency regulation to constitute a requirement to this subpart remains unchanged and suggested that OPM revise the second provide substantive legal guidance at incorporates a penalty determination sentence of § 752.203(b) to read ‘‘. . . the proposal stage or to serve as a based on the principles of E.O. 13839. provides, pursuant to section substitute for the advice from an One commenter recommended 1097(b)(2)(A) of Public Law 115–91, employee’s representative. Given this, changing § 752.403(d) to add to the end notice of any right to appeal . . . .’’ as well as the divergent circumstances ‘‘Differences in penalties between OPM will not accept the suggested and individualized nature of any similarly situated employees must change but will offer some clarification. particular adverse action, agencies are depend on specific factual difference The requirement to provide the encouraged and advised to consult between those employees. To the appeal rights information at the closely with their agency counsel to greatest extent practicable, agencies proposal notice stage is a statutory develop the best course of action for must document and explain these requirement under section 1097(b)(2)(A) implementation of this requirement. differences in the record to defend of Public Law 115–91. Part 752 is Employees are encouraged to consult against later allegations of disparate amended in part to effectuate the with their representatives to determine penalties.’’ In support of his position, statute, which requires that a notice of the best options available to them at the the commenter cites Lewis v. proposed action under subparts B, D proposal and/or decision stage if an Department of Veterans Affairs, 111 and F include detailed information employee believes that an agency has M.S.P.R. 388, 391 (2009) and quotes the about any right to appeal any action taken an action which triggers the right decision whereby an agency must prove upheld, the forum in which the to file a complaint, an appeal or a a legitimate reason for the difference in employee may file an appeal, and any grievance. treatment by a preponderance of limitations on the rights of the employee Finally, the language in § 752.203(h) evidence if an employee raises an that would apply because of the forum establishes the same requirement that is allegation of disparate penalties in in which the employee decides to file. detailed in the final rule changes at comparison to specified employees. This regulatory change does not confer § 432.108, Settlement agreements. See OPM will not adopt the recommended on an employee a right to seek redress discussion in § 432.108. change as it is unnecessary. Please see at the proposal stage that an employee Subpart D—Regulatory Requirements discussion in § 752.202 for further did not have previously. As the above- details. referenced commenter notes, this for Removal, Suspension for More Than The final rule at § 752.403 also adds information may assist employees with 14 Days, Reduction in Grade or Pay, or paragraph (f) which states that a regard to decisions such as whether he Furlough for 30 Days or Less suspension or a reduction in pay or or she may want to seek representation. This subpart addresses the procedural grade should not be a substitute for While there are specific circumstances requirements for removals, suspensions removal in circumstances in which where there may be a cause of action at for more than 14 days, including removal would be appropriate. Agencies the proposal stage, such as when an indefinite suspensions, reductions in should not require that an employee employee alleges that a proposed action grade, reductions in pay, and furloughs have previously been suspended or constitutes retaliation for previous of 30 days or less for covered reduced in pay or grade before a whistleblower activity, an employee employees. would generally not have a colorable proposing official may propose removal, claim under any of the venues discussed Section 752.401 Coverage except as may be appropriate under applicable facts. in the appeal rights section unless and Pursuant to the creation of subpart A until a decision was issued that within the final rule, § 752.401(b)(14) A management association concurred conferred such rights on the employee. reflects an exclusion for actions taken with OPM that a demotion or OPM would further clarify that the under 5 U.S.C. 7515. suspension should not be substituted for appeal rights language included at the Section 752.401(c) identifies removal when removal is appropriate. proposal stage specifically relating to employees covered by this subpart. The The association reasoned that such a choice of forum and limitations related final rule at § 752.401(c)(2) updates substitution will not fix the underlying to an employee’s choice of forum will coverage to include an employee in the problem. As the association did not vary depending on circumstances, the competitive service who is not serving recommend any changes, none will be nature of a claim and the type of a probationary or trial period under an made based on this comment. employee. Appeal rights may include initial appointment or, except as An agency suggested adding ‘‘more’’ but are not be limited to filing an Equal provided in section 1599e of title 10, before ‘‘appropriate’’ in the first Employment Opportunity complaint United States Code, who has completed sentence of 752.403(f). The agency with the Equal Employment 1 year of current continuous service stated that as written, the language Opportunity Commission; a prohibited under other than a temporary could be read as requiring removal even personnel practice complaint with the appointment limited to 1 year or less. if suspension would be more U.S. Office of Special Counsel (OSC); a This language has been updated to align appropriate. For the reasons discussed grievance under a negotiated grievance with 5 U.S.C. 7511(a)(1)(A)(ii). in § 752.202, OPM will not adopt the procedure; or an appeal with the Merit revision. Section 752.402 Definitions Systems Protection Board. Each process Section 752.404 Procedures has different requirements and The final rule includes a definition for standards that must be satisfied. the term ‘‘business day.’’ This addition Section 752.404(b) discusses the Meanwhile, the extent to which a choice is necessary to implement the 15- requirements for a notice of proposed of venue may preclude subsequent business day decision period described action issued under this subpart. In pursuit of a claim in a different venue in E.O. 13839. particular, § 752.404(b)(1) provides that, will be determined by a statutory to the extent an agency, in its sole and patchwork that includes 5 U.S.C. 7121 Section 752.403 Standard for Action exclusive discretion deems practicable, and 5 U.S.C. 7702. and Penalty Determination agencies should limit written notice of OPM does not view the addition of As with the rule changes finalized for adverse actions taken under this subpart procedural appeal rights language in the § 752.202, the standard for action under to the 30 days prescribed in 5 U.S.C.

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7513(b)(1). Any notice period greater administrative leave for the duration of meet the deadline. OPM concurs that than 30 days must be reported to OPM. the notice period until notice leave the regulatory changes will discourage In reference to § 752.404(b)(1) regulations are implemented. unreasonable delays. OPM believes the regarding notice periods, a national Until OPM has published the final recommended modification is union stated that ‘‘OPM cannot regulation for 5 U.S.C. 6329b and after unnecessary. The regulatory amendment unilaterally take a negotiable topic off the conclusion of the agency states that agencies are to issue the bargaining table, as this subsection implementation period, in those rare decisions on proposed removals within would do.’’ We disagree. In fact, the circumstances where the agency 15 business days, to the extent Statute recognizes situations where determines that the employee’s practicable. The purpose of the change bargaining would not extend to matters continued presence in the workplace is to facilitate an agency’s ability to that are the subject of Federal law or during the notice period may pose a resolve adverse actions in a timely Government-wide rule or regulation; see threat to the employee or others, result manner. To the extent an agency fails to 5 U.S.C. 7117(a)(1). And while in loss of or damage to Government exercise its authority to act promptly, commenters may disagree, as a matter of property, or otherwise jeopardize the agency risks retaining a subpar or policy, with the subjects the President legitimate Government interests, an unfit employee longer than necessary. has determined are sufficiently agency will continue to have as an Two national unions objected to important for inclusion in an Executive alternative the ability to place an limiting advance notice of an adverse Order and Federal regulation, it is well employee in a paid non-duty status for action to 30 days. One of the unions established that the President has the such time to effect the action. objected further to requiring agencies to authority to make this determination Thereafter, an agency may use the report to OPM the number of adverse and that OPM regulations issued provisions of 5 U.S.C. 6329b as actions for which employees receive pursuant to this authority constitute applicable. written notice in excess of 30 days. Government-wide rules under Section An individual commented that the Claiming that the requirements are 7117(a)(1) for the purpose of foreclosing rule appears to be incorrect in stating unsupported by facts and bargaining. See NTEU v. FLRA, 30 F.3d that an agency may place an employee counterproductive, the union stated that 1510, 1514–16 (D.C. Cir. 1994). in a notice leave status ‘‘after conclusion the regulations will hinder the efficient The final rule also includes the of the agency implementation period.’’ resolution of cases prior to litigation by requirement that the notice must The commenter stated that the subpart curtailing the time in which an agency provide detailed information with needs to be modified to reflect and employee might reach an respect to any right to appeal the action ‘‘investigative leave.’’ We note that the alternative resolution. The union called pursuant to Public Law 115–91 section rule addresses the notice of proposed for the limitation to be withdrawn. The 1097(b)(2)(A); specifically, the forums in action, which would be subsequent to other union asserted that due process which the employee may file an appeal, the investigation. Investigative leave violations could result if agencies rush and any limitations on the rights of the would be an inappropriate status during the time to respond or give an employee employee that would apply because of the notice period. The ‘‘implementation too little time to respond in such the forum in which the employee period’’ refers to the statutory circumstances as voluminous materials decides to file. This additional language requirement that agencies, not later than to review or a personal emergency. The implements the requirement in Public 270 calendar days after the publication union asserted the limited time frame Law 115–91 section 1097(b)(2)(A), date of OPM regulations effectuating 5 for an employee to respond to a which mandates that this information be U.S.C. 6329b, must revise and proposed disciplinary action is contrary included in any proposal notice implement the internal policies of the to the due process protections of the provided to an employee under 5 U.S.C. agency to meet the notice leave Constitution. Citing Loudermill and 7503(b)(1), 7513(b)(1), or 7543(b)(1). requirements. See 5 U.S.C. 6329b(h)(2). Stone v. Federal Deposit Insurance As noted above, an agency voiced Finally, the final rule at § 752.404(g) Corporation, 179 F.3d 1368, 1376 (Fed. concern about including appeal rights discusses the requirements for an Cir. 1999), the union noted that an information in the notice of proposed agency decision issued under this employee must be given a meaningful action. The agency recommended subpart. Specifically, the final rule at opportunity to respond and invoke the modifying § 752.404(b)(1) to read ‘‘The § 752.404(g)(3) includes new language discretion of the deciding official. notice must further include, pursuant to that, to the extent practicable, an agency In addition, an organization discussed section 1097(b)(2)(A) of Public Law should issue the decision on a proposed the various tasks such as securing 155–91, detailed information with removal under this subpart within 15 counsel, drafting affidavits and respect to any right to appeal . . . .’’ business days of the conclusion of the interviewing witnesses that may impact For the reasons discussed above in employee’s opportunity to respond to an employee’s ability or time to respond § 752.203, OPM will not accept the reflect a key principle of E.O. 13839. to a proposed action. The organization suggested change. An agency expressed support for the expressed concern that limiting the The final rule at § 752.404(b)(3)(iv) timely handling of adverse actions and written notice of an adverse action to also discusses the provisions of 5 U.S.C. added that the regulatory amendments the 30 days prescribed in 5 U.S.C. 6329b, the Administrative Leave Act of will discourage unreasonable delays for 7513(b)(1) in turn limits the opportunity 2016, related to placing an employee in both employees and supervisors. The for identification of evidence and rushes a paid non-duty status during the agency cautioned that human resources management into hasty decisions. The advance notice period. An agency stated staffs will need to have sufficient organization objected to a cap on the that the rule is silent on an agency’s resources to assist supervisors in response period or a limit on an authorization to use administrative meeting the 15-business day limit. The agency’s discretion to extend the notice leave for the duration of the notice agency recommended that OPM clarify period or implement the adverse action. period (i.e., 30 days), which would be in in the final rule what will happen in the The organization believes that agencies excess of the 10 days per year limitation event an agency does not comply with should retain discretion to go beyond 30 under 5 U.S.C. 6329a. The agency asked the time limitation set by the rule as days for a decision when requested by for clarification on the authority by well as the consequence for the the employee for good reason. The which agencies may or may not use employee and/or manager that does not organization added that the existing

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system works satisfactorily, and may be appropriate under applicable agency will continue to have as an agencies are not prejudiced given that facts. alternative the ability to place an they are in control of the length of any Please see discussion in §§ 752.202 employee in a paid, nonduty status for extension. and 752.403. such time to effect the action. OPM will not make any revisions Section 752.604 Procedures Thereafter, an agency may use the based on these comments. The provisions of 5 U.S.C. 6329b as regulatory changes effectuate the Section 752.604(b) discusses the applicable. principles and requirements of E.O. requirements for a notice of proposed Finally, the final rule at § 752.604(g) 13839, including swift and appropriate action issued under this subpart. We discusses the requirements for an action when addressing misconduct. have revised the language in this agency decision issued under this These changes facilitate timely subpart to be consistent with the subpart. Specifically, the final rule at resolution of adverse actions while advance notice period for general § 752.604(g)(3) includes new language schedule employees. Specifically, preserving employee rights provided that, to the extent practicable, an agency § 752.604(b)(1) provides that, to the under the law. should issue the decision on a proposed extent an agency, in its sole and removal under this subpart within 15 Section 752.407 Settlement exclusive discretion deems practicable, business days of the conclusion of the Agreements agencies should limit written notice of employee’s opportunity to respond to adverse actions taken under this subpart The language in this section reflect one of the key principles of E.O. to the 30 days prescribed in 5 U.S.C. establishes the same requirement that is 13839. detailed in the final rule changes at 7543(b)(1). Any notice period greater than 30 days must be reported to OPM. Please see also the discussion in § 432.108, Settlement agreements. See §§ 752.203 and 752.404. discussion regarding § 432.108 above. The final rule also includes additional language that the notice must provide Section 752.607 Settlement Subpart F—Regulatory Requirements detailed information with respect to any Agreements for Taking Adverse Actions Under the right to appeal the action pursuant to Senior Executive Service Pub. L. 115–91 section 1097(b)(2)(A); The language in this section establishes the same requirement that is This subpart addresses the procedural specifically, the forums in which the detailed in the final rule changes at requirements for suspensions for more employee may file an appeal, and any §§ 432.108, 752.203 and 752.407. Please than 14 days and removals from the limitations on the rights of the employee see discussion regarding § 432.108 civil service as set forth in 5 U.S.C. that would apply because of the forum above. 7542. in which the employee decides to file. A management association This additional language implements Technical Amendment commented that it does not see much the requirement within Public Law 115– difference between SES and the rest of 91 section 1097(b)(2)(A), which This final rule makes ‘‘forum’’ plural the workforce in this situation. OPM mandates that this information be in § 752.203(b). will not adopt any revisions based on included in any proposal notice Regulatory Flexibility Act this comment as none were requested. provided to an employee under 5 U.S.C. 7503(b)(1), 7513(b)(1), or 7543(b)(1). I certify that this regulation will not Section 752.601 Coverage As previously discussed, an agency have a significant impact on a Pursuant to the creation of subpart A recommended modifying the regulatory substantial number of small entities within the final rule, § 752.601(b)(2) language regarding advance notice of because it applies only to Federal reflects an exclusion for actions taken appeal rights information at the agencies and employees. under 5 U.S.C. 7515. proposal stage. Specifically, the agency E.O. 13563 and E.O. 12866, Regulatory recommended changing § 752.604(b)(1) Review Section 752.602 Definitions to read ‘‘The notice must further The final rule includes a definition for include, pursuant to section Executive Orders 13563 and 12866 the term ‘‘business day.’’ This addition 1097(b)(2)(A) of Public Law 155–91, direct agencies to assess all costs and is necessary to implement the 15- detailed information with respect to any benefits of available regulatory business day decision period described right to appeal . . .’’ For the reasons alternatives and, if regulation is in E.O. 13839. discussed in § 752.203, OPM will not necessary, to select regulatory adopt the recommendation. approaches that maximize net benefits Section 752.603 Standard for Action The final rule at § 752.604(b)(2)(iv) (including potential economic, and Penalty Determination also discusses the provisions of 5 U.S.C. environmental, public health and safety As with the final rule changes for 6329b, the Administrative Leave Act of effects, distributive impacts, and §§ 752.202 and 752.403, the standard for 2016, related to placing an employee in equity). Executive Order 13563 action under this subpart remains a paid non-duty status during the emphasizes the importance of unchanged and incorporates a penalty advance notice period. However, as quantifying both costs and benefits, of determination based on the principles of noted above, until OPM has published reducing costs, of harmonizing rules, E.O. 13839. In addition, the proposed the final regulation for 5 U.S.C. 6329b, and of promoting flexibility. This rule rule at § 752.603 adds paragraph (f) and after conclusion of the agency has not been designated a ‘‘significant which states that a suspension or a implementation period, in those rare regulatory action,’’ under Executive reduction in pay or grade should not be circumstances where the agency Order 12866. a substitute for removal in determines that the employee’s Executive Order 13771, Reducing circumstances in which removal would continued presence in the workplace Regulation and Controlling Regulatory be appropriate. Agencies should not during the notice period may pose a Costs require that an employee have threat to the employee or others, result previously been suspended or reduced in loss of or damage to Government This proposed rule is not expected to in pay or grade before a proposing property, or otherwise jeopardize be subject to the requirements of E.O. official may propose removal, except as legitimate Government interests, an 13771 (82 FR 9339, February 3, 2017)

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because this rule is not significant under E.O. 13162, and E.O. 13839. Secs. 315.601 (g) Similar positions mean positions 12866. and 315.609 also issued under 22 U.S.C. 3651 in which the duties performed are and 3652. Secs. 315.602 and 315.604 also similar in nature and character and E.O. 13132, Federalism issued under 5 U.S.C. 1104. Sec. 315.603 also require substantially the same or similar This regulation will not have issued under 5 U.S.C. 8151. Sec. 315.605 also qualifications, so that the incumbents substantial direct effects on the States, issued under E.O. 12034, 3 CFR, 1978 Comp. p.111. Sec. 315.606 also issued under E.O. could be interchanged without on the relationship between the 11219, 3 CFR, 1964–1965 Comp. p. 303. Sec. significant training or undue National Government and the States, or 315.607 also issued under 22 U.S.C. 2506. interruption to the work. on distribution of power and Sec. 315.608 also issued under E.O. 12721, 3 * * * * * responsibilities among the various CFR, 1990 Comp. p. 293. Sec. 315.610 also ■ 5. Revise § 432.104 to read as follows: levels of government. Therefore, in issued under 5 U.S.C. 3304(c). Sec. 315.611 accordance with Executive Order 13132, also issued under 5 U.S.C. 3304(f). Sec. § 432.104 Addressing unacceptable it is determined that this rule does not 315.612 also issued under E.O. 13473. Sec. performance. have sufficient federalism implications 315.708 also issued under E.O.13318, 3 CFR, At any time during the performance to warrant preparation of a Federalism 2004 Comp. p. 265. Sec. 315.710 also issued appraisal cycle that an employee’s under E.O. 12596, 3 CFR, 1987 Comp. p. 229. Assessment. Subpart I also issued under 5 U.S. C. 3321, performance is determined to be unacceptable in one or more critical E.O. 12988, Civil Justice Reform E.O. 12107, 3 CFR, 1978 Comp. p. 264. elements, the agency shall notify the This regulation meets the applicable Subpart H–Probation on Initial employee of the critical element(s) for standard set forth in Section 3(a) and Appointment to a Competitive Position which performance is unacceptable and (b)(2) of Executive Order 12988. inform the employee of the performance Unfunded Mandates Reform Act of ■ 2. Revise § 315.803(a) to read as requirement(s) or standard(s) that must 1995 follows: be attained in order to demonstrate acceptable performance in his or her This rule will not result in the § 315.803 Agency action during position. The agency should also inform expenditure by State, local or tribal probationary period (general). the employee that unless his or her governments of more than $100 million (a) The agency shall utilize the performance in the critical element(s) annually. Thus, no written assessment probationary period as fully as possible improves to and is sustained at an of unfunded mandates is required. to determine the fitness of the employee acceptable level, the employee may be Congressional Review Act and shall terminate his or her services reduced in grade or removed. For each during this period if the employee fails critical element in which the This action pertains to agency to demonstrate fully his or her employee’s performance is management, personnel and qualifications for continued unacceptable, the agency shall afford organization and does not substantially employment. The agency must notify its the employee a reasonable opportunity affect the rights or obligations of non- supervisors that an employee’s to demonstrate acceptable performance, agency parties and, accordingly, is not probationary period is ending three commensurate with the duties and a ‘rule’ as that term is used by the months prior to the expiration of an responsibilities of the employee’s Congressional Review Act (Subtitle E of employee’s probationary period, and position. The requirement described in the Small Business Regulatory then again one month prior to the 5 U.S.C. 4302(c)(5) refers only to that Enforcement Fairness Act of 1996 expiration of the probationary period, formal assistance provided during the (SBREFA)). Therefore, the reporting and advise a supervisor to make an period wherein an employee is provided requirement of 5 U.S.C. 801 does not affirmative decision regarding an with an opportunity to demonstrate apply. employee’s fitness for continued acceptable performance, as referenced Paperwork Reduction Act of 1995 (44 employment or otherwise take in 5 U.S.C. 4302(c)(6). The nature of U.S.C. Chapter 35) appropriate action. For example, if an assistance provided is in the sole and exclusive discretion of the agency. No This regulatory action will not impose employee’s probationary period ends on additional performance assistance any additional reporting or August 15, 2020, the agency must notify period or similar informal period shall recordkeeping requirements under the the employee’s supervisor on May 15, be provided prior to or in addition to Paperwork Reduction Act. 2020, and then again on July 15, 2020. If the 3-month and 1-month dates fall on the opportunity period provided under List of Subjects in 5 CFR Parts 315, 432 a holiday or weekend, agencies must this section. and 752 provide notification on the last business ■ 6. Amend § 432.105 by revising Government employees. day before the holiday or weekend. paragraphs (a)(1), (a)(4)(i)(B)(3) and (4) and paragraph (a)(4)(i)(C) to read as Office of Personnel Management. * * * * * follows: Alexys Stanley, PART 432—PERFORMANCE BASED Regulatory Affairs Analyst. REDUCTION IN GRADE AND § 432.105 Proposing and taking action based on unacceptable performance. Accordingly, for the reasons stated in REMOVAL ACTIONS the preamble, OPM amends 5 CFR parts (a) * * * 315, 432, and 752 as follows: ■ 3. Revise the authority citation for part (1) Once an employee has been 432 to read as follows: afforded a reasonable opportunity to PART 315–CAREER AND CAREER– demonstrate acceptable performance Authority: 5 U.S.C. 4303, 4305. CONDITIONAL EMPLOYMENT pursuant to § 432.104, an agency may * * * * * propose a reduction-in-grade or removal ■ 1. Revise the authority citation for part ■ 4. Amend § 432.103 by revising action if the employee’s performance 315 to read as follows: paragraph (g) to read as follows: during or following the opportunity to Authority: 5 U.S.C. 1302, 2301, 2302, demonstrate acceptable performance is 3301, and 3302; E.O. 10577, 3 CFR, 1954– § 432.103 Definitions. unacceptable in one or more of the 1958 Comp. p. 218, unless otherwise noted; * * * * * critical elements for which the

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employee was afforded an opportunity performance continues to be acceptable doubt on the validity of the action or the to demonstrate acceptable performance. for one year from the date of the ability of the agency to sustain the For the purposes of this section, the advanced written notice provided in action in litigation, an agency may agency’s obligation to provide accordance with § 432.105(a)(4)(i), any decide to cancel or vacate the proposed assistance, under 5 U.S.C. 4302(c)(5), entry or other notation of the action. Additional information may may be discharged through measures, unacceptable performance for which the come to light at any stage of the process such as supervisory assistance, taken action was proposed shall be removed prior to final agency decision including prior to the beginning of the opportunity from any agency record relating to the during an employee response period. To period in addition to measures taken employee. the extent an employee’s personnel file during the opportunity period. The ■ 9. Add § 432.108 to read as follows: or other agency records contain a agency must take some measures to proposed action that is subsequently provide assistance during the § 432.108 Settlement agreements. cancelled, an agency would have the opportunity period in order to both (a) Agreements to alter personnel authority to remove that action from the comply with section 4302(c)(5) and records. An agency shall not agree to employee’s personnel file or other provide an opportunity to demonstrate erase, remove, alter, or withhold from agency records. The requirements acceptable performance under another agency any information about a described in paragraph (a) of this 4302(c)(6). civilian employee’s performance or section would, however, continue to conduct in that employee’s official * * * * * apply to any accurate information about personnel records, including an (4) * * * the employee’s conduct leading up to (i) * * * employee’s Official Personnel Folder that proposed action or separation from (B) * * * and Employee Performance File, as part Federal service. (3) To consider the employee’s answer of, or as a condition to, resolving a if an extension to the period for an formal or informal complaint by the PART 752—ADVERSE ACTIONS answer has been granted (e.g., because employee or settling an administrative Subpart A—Discipline of Supervisors of the employee’s illness or challenge to an adverse action. (b) Corrective action based on Based on Retaliation Against incapacitation); Whistleblowers (4) To consider reasonable discovery of agency error. The accommodation of a disability; requirements described in paragraph (a) Subpart B—Regulatory Requirements for of this section should not be construed Suspension for 14 Days or Less * * * * * to prevent agencies from taking (C) If an agency believes that an Sec. corrective action should it come to light, 752.201 Coverage. extension of the advance notice period including during or after the issuance of is necessary for another reason, it may 752.202 Standard for action and penalty an adverse personnel action, that the determination. request prior approval for such information contained in a personnel 752.203 Procedures. extension from the Manager, Employee record is not accurate or records an Subpart C [Reserved] Accountability, Accountability and action taken by the agency illegally or Workforce Relations, Employee in error. In such cases, an agency would Subpart D—Regulatory Requirements for Services, Office of Personnel have the authority, unilaterally or by Removal, Suspension for More Than 14 Management, 1900 E Street NW, agreement, to modify an employee’s Days, Reduction in Grade or Pay, or Washington, DC 20415. personnel record(s) to remove Furlough for 30 Days or Less * * * * * inaccurate information or the record of Sec. ■ 7. Revise § 432.106(b)(1) to read as an erroneous or illegal action. An 752.401 Coverage. follows: agency may take such action even if an 752.402 Definitions. appeal/complaint has been filed relating 752.403 Standard for action and penalty § 432.106 Appeal and grievance rights. to the information that the agency determination. * * * * * 752.404 Procedures. determines to be inaccurate or to reflect 752.405 Appeal and grievance rights. (b) Grievance rights. (1) A bargaining an action taken illegally or in error. In unit employee covered under 752.406 Agency records. all events, however, the agency must 752.407 Settlement agreements. § 432.102(e) who has been removed or ensure that it removes only information reduced in grade under this part may that the agency itself has determined to Subpart E [Reserved] file a grievance under an applicable be inaccurate or to reflect an action Subpart F—Regulatory Requirements for negotiated grievance procedure if the taken illegally or in error. And an Taking Adverse Actions Under the Senior removal or reduction in grade action agency should report any agreements Executive Service falls within its coverage (i.e., is not relating to the removal of such Sec. excluded by the parties to the collective information as part of its annual report 752.601 Coverage. bargaining agreement) and the employee to the OPM Director required by section 752.602 Definitions. is: 6 of E.O. 13839. Documents subject to 752.603 Standard for action and penalty * * * * * withdrawal or modification could determination. ■ 8. Revise § 432.107(b) to read as include, for example, an SF–50 issuing 752.604 Procedures. 752.605 Appeal rights. follows: a disciplinary or performance-based action, a decision memorandum 752.606 Agency records. 752.607 Settlement agreements. § 432.107 Agency records. accompanying such action, or an * * * * * employee performance appraisal. ■ 10. Revise the authority citation for (b) When the action is not effected. As (c) Corrective action based on part 752 to read as follows: provided at 5 U.S.C. 4303(d), if, because discovery of material information prior Authority: 5 U.S.C. 7504, 7514, and 7543, of performance improvement by the to final agency action. When persuasive Pub. L. 115–91. employee during the notice period, the evidence comes to light prior to the employee is not reduced in grade or issuance of a final agency decision on ■ 11. Add subpart A to part 752 to read removed, and the employee’s an adverse personnel action casting as follows:

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Subpart A —Discipline of Supervisors supervisor is employed, an (2) If, after the end of the 14-day Based on Retaliation Against administrative law judge, the Merit period described in paragraph (d)(1) of Whistleblowers Systems Protection Board, the Special this section, a supervisor does not Counsel, a judge of the United States, or furnish any evidence as described in Sec. the Inspector General of the agency in that clause, or if the head of the agency 752.101 Coverage. in which the supervisor is employed 752.102 Standard for action and penalty which a supervisor is employed has determination. determined that the supervisor determines that the evidence furnished 752.103 Procedures. committed a prohibited personnel by the supervisor is insufficient, the 752.104 Settlement agreements. action, the head of the agency in which head of the agency shall carry out the the supervisor is employed, consistent action proposed under § 752.102 (b), as § 752.101 Coverage. with the procedures required under this applicable. (a) Adverse actions covered. This subpart— (3) To the extent practicable, an subpart applies to actions taken under 5 (1) For the first prohibited personnel agency should issue the decision on a U.S.C. 7515. action committed by the supervisor— proposed removal under this subpart (b) Definitions. In this subpart— (i) Shall propose suspending the within 15 business days of the Agency— supervisor for a period that is not less conclusion of the employee’s (1) Has the meaning given the term in than 3 days; and opportunity to respond under paragraph 5 U.S.C. 2302(a)(2)(C), without regard to (ii) May propose an additional action (d)(1) of this section. whether any other provision of this determined appropriate by the head of § 752.104 Settlement agreements. chapter is applicable to the entity; and the agency, including a reduction in (2) Does not include any entity that is grade or pay; and (a) Agreements to alter official an element of the intelligence (2) For the second prohibited personnel records. An agency shall not community, as defined in section 3 of personnel action committed by the agree to erase, remove, alter, or the National Security Act of 1947 (50 supervisor, shall propose removing the withhold from another agency any U.S.C. 3003). supervisor. information about a civilian employee’s Business day means any day other performance or conduct in that than a Saturday, Sunday, or legal public § 752.103 Procedures. employee’s official personnel records, holiday under 5 U.S.C. 6103(a). (a) Non-delegation. If the head of an including an employee’s Official Day means a calendar day. agency is responsible for determining Personnel Folder and Employee Grade means a level of classification whether a supervisor has committed a Performance File, as part of, or as a under a position classification system. prohibited personnel action for condition to, resolving a formal or Insufficient evidence means evidence informal complaint by the employee or that fails to meet the substantial purposes of § 752.102(b), the head of the agency may not delegate that settling an administrative challenge to evidence standard described in 5 CFR an adverse action. 1201.4(p). responsibility. (b) Scope. An action carried out under (b) Corrective action based on Pay means the rate of basic pay fixed discovery of agency error. The by law or administrative action for the this subpart— (1) Except as provided in paragraph requirements described in paragraph (a) position held by the employee, that is, of this section should not be construed the rate of pay before any deductions (b)(2) of this section, shall be subject to the same requirements and procedures, to prevent agencies from taking and exclusive of additional pay of any corrective action should it come to light, kind. including those with respect to an appeal, as an action under 5 U.S.C. including during or after the issuance of Prohibited personnel action means an adverse personnel action, that the taking or failing to take an action in 7503, 7513, or 7543; and (2) Shall not be subject to— information contained in a personnel violation of paragraph (8), (9), or (14) of record is not accurate or records an 5 U.S.C. 2302(b) against an employee of (i) Paragraphs (1) and (2) of 5 U.S.C. 7503(b); action taken by the agency illegally or an agency. in error. In such cases, the agency Supervisor means an employee who (ii) Paragraphs (1) and (2) of subsection (b) and subsection (c) of 5 would have the authority, unilaterally would be a supervisor, as defined in 5 or by agreement, to modify an U.S.C. 7103(a)(10), if the entity U.S.C. 7513; and (iii) Paragraphs (1) and (2) of employee’s personnel record(s) to employing the employee was an agency. remove inaccurate information or the Suspension means the placing of an subsection (b) and subsection (c) of 5 record of an erroneous or illegal action. employee, for disciplinary reasons, in a U.S.C. 7543. An agency may take such action even if temporary status without duties and (c) Notice. A supervisor against whom an appeal/complaint has been filed pay. an action is proposed to be taken under this subpart is entitled to written notice relating to the information that the § 752.102 Standard for action and penalty that— agency determines to be inaccurate or to determination. (1) States the specific reasons for the reflect an action taken illegally or in (a) Except for actions taken against proposed action; error. In all events, however, the agency supervisors covered under subchapter V (2) Informs the supervisor about the must ensure that it removes only of title 5, an agency may take an action right of the supervisor to review the information that the agency itself has under this subpart for such cause as will material that is relied on to support the determined to be inaccurate or to reflect promote the efficiency of the service as reasons given in the notice for the an action taken illegally or in error. And described in 5 U.S.C. 7503(a) and proposed action; and an agency should report any agreements 7513(a). For actions taken under this (d) Answer and evidence. (1) A relating to the removal of such subpart against supervisors covered supervisor who receives notice under information as part of its annual report under subchapter V of title 5, an agency paragraph (c) of this section may, not to the OPM Director required by section may take an action based on the later than 14 days after the date on 6 of E.O. 13839. Documents subject to standard described in 5 U.S.C. 7543(a). which the supervisor receives the withdrawal or modification could (b) Subject to 5 U.S.C. 1214(f), if the notice, submit an answer and furnish include, for example, an SF–50 issuing head of the agency in which a evidence in support of that answer. a disciplinary or performance-based

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action, a decision memorandum does not necessarily justify similar any information about a civilian accompanying such action or an discipline of a different employee at a employee’s performance or conduct in employee performance appraisal. different time. An agency should that employee’s official personnel (c) Corrective action based on consider appropriate comparators as the records, including an employee’s discovery of material information prior agency evaluates a potential Official Personnel Folder and Employee to final agency action. When persuasive disciplinary action. Appropriate Performance File, as part of, or as a evidence comes to light prior to the comparators to be considered are condition to, resolving a formal or issuance of a final agency decision on primarily individuals in the same work informal complaint by the employee or an adverse personnel action casting unit, with the same supervisor, who settling an administrative challenge to doubt on the validity of the action or the engaged in the same or similar an adverse action. ability of the agency to sustain the misconduct. Proposing and deciding (2) The requirements described in action in litigation, an agency may officials are not bound by previous paragraph (h)(1) of this section should decide to cancel or vacate the proposed decisions in earlier similar cases, but not be construed to prevent agencies action. Additional information may should, as they deem appropriate, from taking corrective action should it come to light at any stage of the process consider such decisions consonant with come to light, including during or after prior to final agency decision including their own managerial authority and the issuance of an adverse personnel during an employee response period. To responsibilities and independent action that the information contained in the extent an employee’s personnel file judgment. For example, a supervisor is a personnel record is not accurate or or other agency records contain a not bound by his or her predecessor records an action taken by the agency proposed action that is subsequently whenever there is similar conduct. A illegally or in error. In such cases, an cancelled, an agency would have the minor indiscretion for one supervisor agency would have the authority, authority to remove that action from the based on a particular set of facts can unilaterally or by agreement, to modify employee’s personnel file or other amount to a more serious offense under an employee’s personnel record(s) to agency records. The requirements a different supervisor. Nevertheless, remove inaccurate information or the described in paragraph (a) of this they should be able to articulate why a record of an erroneous or illegal action. section would, however, continue to more or less severe penalty is An agency may take such action even if apply to any accurate information about appropriate. an appeal/complaint has been filed the employee’s conduct leading up to (e) Among other relevant factors, relating to the information that the that proposed action or separation from agencies should consider an employee’s agency determines to be inaccurate or to Federal service. disciplinary record and past work reflect an action taken illegally or in ■ 12. In § 752.201, revise paragraphs record, including all applicable prior error. In all events, however, the agency (c)(4) and (5) and add paragraph (c)(6) misconduct, when taking an action must ensure that it removes only to read as follows: under this subpart. information that the agency itself has (f) A suspension should not be a determined to be inaccurate or to reflect § 752.201 Coverage. substitute for removal in circumstances an action taken illegally or in error. And * * * * * in which removal would be appropriate. an agency should report any agreements (c) * * * Agencies should not require that an relating to the removal of such (4) Of a re-employed annuitant; employee have previously been information as part of its annual report (5) Of a National Guard Technician; or suspended or demoted before a to the OPM Director required by Section (6) Taken under 5 U.S.C. 7515. 6 of E.O. 13839. Documents subject to proposing official may propose removal, withdrawal or modification could * * * * * except as may be appropriate under ■ include, for example, an SF–50 issuing 13. In § 752.202, revise the section applicable facts. heading and add paragraphs (c) through a disciplinary or performance-based ■ 14. Amend § 752.203 by revising (f) to read as follows: action, a decision memorandum paragraph (b) and by adding paragraph accompanying such action or an § 752.202 Standard for action and penalty (h) to read as follows: employee performance appraisal. determination. § 752.203 Procedures. (3) Corrective action based on * * * * * discovery of material information prior (c) An agency is not required to use * * * * * to final agency action. When persuasive progressive discipline under this (b) Notice of proposed action. The evidence comes to light prior to the subpart. The penalty for an instance of notice must state the specific reason(s) issuance of a final agency decision on misconduct should be tailored to the for the proposed action, and inform the an adverse personnel action casting facts and circumstances. In making a employee of his or her right to review doubt on the validity of the action or the determination regarding the appropriate the material which is relied on to ability of the agency to sustain the penalty for an instance of misconduct, support the reasons for action given in action in litigation, an agency may an agency shall adhere to the standard the notice. The notice must further decide to cancel or vacate the proposed of proposing and imposing a penalty include detailed information with action. Additional information may that is within the bounds of tolerable respect to any right to appeal the action come to light at any stage of the process reasonableness. Within the agency, a pursuant to section 1097(b)(2)(A) of prior to final agency decision including proposed penalty is in the sole and Public Law 115–91, the forums in which during an employee response period. To exclusive discretion of a proposing the employee may file an appeal, and the extent an employee’s personnel file official, and a penalty decision is in the any limitations on the rights of the or other agency records contain a sole and exclusive discretion of the employee that would apply because of proposed action that is subsequently deciding official. Penalty decisions are the forum in which the employee cancelled, an agency would have the subject to appellate or other review decides to file. authority to remove that action from the procedures prescribed in law. * * * * * employee’s personnel file or other (d) Employees should be treated (h) Settlement agreements. (1) An agency records. The requirements equitably. Conduct that justifies agency shall not agree to erase, remove, described in paragraph (h)(1) of this discipline of one employee at one time alter, or withhold from another agency section would, however, continue to

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apply to any accurate information about reasonableness. Within the agency, a agencies should limit a written notice of the employee’s conduct leading up to proposed penalty is in the sole and an adverse action to the 30 days that proposed action or separation from exclusive discretion of a proposing prescribed in section 7513(b)(1) of title Federal service. official, and a penalty decision is in the 5, United States Code. Advance notices ■ 15. In § 752.401, revise paragraphs sole and exclusive discretion of the of greater than 30 days must be reported (b)(14) and (15), add paragraphs (b)(16) deciding official. Penalty decisions are to the Office of Personnel Management. and revise paragraph (c)(2) to read as subject to appellate or other review The notice must state the specific follows: procedures prescribed in law. reason(s) for the proposed action and (d) Employees should be treated inform the employee of his or her right § 752.401 Coverage. equitably. Conduct that justifies to review the material which is relied on * * * * * discipline of one employee at one time to support the reasons for action given (b) * * * does not necessarily justify similar in the notice. The notice must further (14) Placement of an employee discipline of a different employee at a include detailed information with serving on an intermittent or seasonal different time. An agency should respect to any right to appeal the action basis in a temporary nonduty, nonpay consider appropriate comparators as the pursuant to section 1097(b)(2)(A) of status in accordance with conditions agency evaluates a potential Public Law 115–91, the forums in which established at the time of appointment; disciplinary action. Appropriate the employee may file an appeal, and (15) Reduction of an employee’s rate comparators to be considered are any limitations on the rights of the of basic pay from a rate that is contrary primarily individuals in the same work employee that would apply because of to law or regulation, including a unit, with the same supervisor, who the forum in which the employee reduction necessary to comply with the engaged in the same or similar decides to file. misconduct. Proposing and deciding amendments made by Public Law 108– * * * * * 411, regarding pay-setting under the officials are not bound by previous (3) * * * General Schedule and Federal Wage decisions in earlier similar cases, but (iv) Placing the employee in a paid, System and regulations implementing should, as they deem appropriate, nonduty status for such time as is those amendments; or consider such decisions consonant with necessary to effect the action. After (16) An action taken under 5 U.S.C. their own managerial authority and publication of regulations for 5 U.S.C. 7515. responsibilities and independent 6329b, and the subsequent agency (c) * * * judgment. For example, a supervisor is implementation period in accordance (2) An employee in the competitive not bound by his or her predecessor with 5 U.S.C. 6329b, an agency may service— whenever there is similar conduct. A place the employee in a notice leave (i) Who is not serving a probationary minor indiscretion for one supervisor status when applicable. based on a particular set of facts can or trial period under an initial * * * * * appointment; or amount to a more serious offense under a different supervisor. Nevertheless, (g) * * * (ii) Except as provided in section (3) To the extent practicable, an they should be able to articulate why a 1599e of title 10, United States Code, agency should issue the decision on a more or less severe penalty is who has completed one year of current proposed removal under this subpart continuous service under other than a appropriate. (e) Among other relevant factors, within 15 business days of the temporary appointment limited to one conclusion of the employee’s year or less; agencies should consider an employee’s disciplinary record and past work opportunity to respond under paragraph * * * * * record, including all applicable prior (c) of this section. ■ 16. In § 752.402, add the definition for misconduct, when taking an action * * * * * ‘‘Business day’’ in alphabetical order to under this subpart. ■ 19. Add § 752.407 to read as follows: read as follows: (f) A suspension or a reduction in § 752.407 Settlement agreements. § 752.402 Definitions. grade or pay should not be a substitute for removal in circumstances in which (a) Agreements to alter official * * * * * removal would be appropriate. Agencies personnel records. An agency shall not Business day means any day other should not require that an employee agree to erase, remove, alter, or than a Saturday, Sunday, or legal public have previously been suspended or withhold from another agency any holiday under 5 U.S.C. 6103(a). reduced in pay or grade before a information about a civilian employee’s * * * * * proposing official may propose removal, performance or conduct in that ■ 17. In § 752.403, revise the section except as may be appropriate under employee’s official personnel records, heading and add paragraphs (c) through applicable facts. including an employee’s Official (f) to read as follows: ■ 18. Amend § 752.404 by revising Personnel Folder and Employee paragraphs (b)(1) and (b)(3)(iv), and Performance File, as part of, or as a § 752.403 Standard for action and penalty condition to, resolving a formal or determination. adding paragraph (g)(3) to read as follows: informal complaint by the employee or * * * * * settling an administrative challenge to (c) An agency is not required to use § 752.404 Procedures. an adverse action. progressive discipline under this * * * * * (b) Corrective action based on subpart. The penalty for an instance of (b) * * * discovery of agency error. The misconduct should be tailored to the (1) An employee against whom an requirements described in paragraph (a) facts and circumstances. In making a action is proposed is entitled to at least of this section should not be construed determination regarding the appropriate 30 days’ advance written notice unless to prevent agencies from taking penalty for an instance of misconduct, there is an exception pursuant to corrective action, should it come to an agency shall adhere to the standard paragraph (d) of this section. However, light, including during or after the of proposing and imposing a penalty to the extent an agency in its sole and issuance of an adverse personnel action that is within the bounds of tolerable exclusive discretion deems practicable, that the information contained in a

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personnel record is not accurate or ■ 21. Amend § 752.602 by adding a have previously been suspended or records an action taken by the agency definition for ‘‘Business day’’ in reduced in pay or grade before a illegally or in error. In such cases, an alphabetical order to read as follows: proposing official may propose removal, agency would have the authority, except as may be appropriate under § 752.602 Definitions. unilaterally or by agreement, to modify applicable facts. an employee’s personnel record(s) to * * * * * ■ 23. Amend § 752.604 by revising Business day means any day other remove inaccurate information or the paragraphs (b)(1) and (b)(2)(iv), and than a Saturday, Sunday, or legal public record of an erroneous or illegal action. adding paragraph (g)(3) to read as holiday under 5 U.S.C. 6103(a). An agency may take such action even if follows: an appeal/complaint has been filed * * * * * relating to the information that the ■ 22. In § 752.603, revise the section § 752.604 Procedures. agency determines to be inaccurate or to heading and add paragraphs (c) through * * * * * reflect an action taken illegally or in (f) to read as follows: (b) * * * error. In all events, however, the agency (1) An appointee against whom an § 752.603 Standard for action and penalty action is proposed is entitled to at least must ensure that it removes only determination. 30 days’ advance written notice unless information that the agency itself has * * * * * determined to be inaccurate or to reflect there is an exception pursuant to (c) An agency is not required to use paragraph (d) of this section. However, an action taken illegally or in error. And progressive discipline under this an agency should report any agreements to the extent an agency in its sole and subpart. The penalty for an instance of exclusive discretion deems practicable, relating to the removal of such misconduct should be tailored to the agencies should limit a written notice of information as part of its annual report facts and circumstances. In making a an adverse action to the 30 days to the OPM Director required by section determination regarding the appropriate prescribed in section 7543(b)(1) of title 6 of E.O. 13839. Documents subject to penalty for an instance of misconduct, 5, United States Code. Advance notices withdrawal or modification could an agency shall adhere to the standard of greater than 30 days must be reported include, for example, an SF–50 issuing of proposing and imposing a penalty to the Office of Personnel Management. a disciplinary or performance-based that is within the bounds of tolerable The notice must state the specific action, a decision memorandum reasonableness. accompanying such action or an (d) Employees should be treated reason(s) for the proposed action, and employee performance appraisal. equitably. Conduct that justifies inform the appointee of his or her right to review the material that is relied on (c) Corrective action based on discipline of one employee at one time does not necessarily justify similar to support the reasons for action given discovery of material information prior in the notice. The notice must further to final agency action. When persuasive discipline of a different employee at a different time. An agency should include detailed information with evidence comes to light prior to the respect to any right to appeal the action issuance of a final agency decision on consider appropriate comparators as the agency evaluates a potential pursuant to section 1097(b) (2) (A) of an adverse personnel action casting Public Law 115–91, the forums in which doubt on the validity of the action or the disciplinary action. Appropriate comparators to be considered are the employee may file an appeal, and ability of the agency to sustain the any limitations on the rights of the action in litigation, an agency may primarily individuals in the same work unit, with the same supervisor, who employee that would apply because of decide to cancel or vacate the proposed the forum in which the employee action. Additional information may engaged in the same or similar misconduct. Proposing and deciding decides to file. come to light at any stage of the process (2) * * * officials are not bound by previous prior to final agency decision including (iv) Placing the appointee in a paid, decisions in earlier similar cases, but during an employee response period. To no duty status for such time as is should, as they deem appropriate, the extent an employee’s personnel file necessary to effect the action. After consider such decisions consonant with or other agency records contain a publication of regulations for 5 U.S.C. their own managerial authority and proposed action that is subsequently 6329b, and the subsequent agency responsibilities and independent cancelled, an agency would have the implementation period in accordance judgment. For example, a supervisor is authority to remove that action from the with 5 U.S.C. 6329b, an agency may not bound by his or her predecessor employee’s personnel file or other place the employee in a notice leave whenever there is similar conduct. A agency records. The requirements status when applicable. minor indiscretion for one supervisor described in paragraph (a) of this * * * * * section would, however, continue to based on a particular set of facts can amount to a more serious offense under (g) * * * apply to any accurate information about (3) To the extent practicable, an the employee’s conduct leading up to a different supervisor. Nevertheless, they should be able to articulate why a agency should issue the decision on a that proposed action or separation from proposed removal under this subpart Federal service. more or less severe penalty is appropriate. within 15 business days of the ■ 20. Revise § 752.601(b)(2) to read as (e) Among other relevant factors, conclusion of the employee’s follows: agencies should consider an employee’s opportunity to respond under paragraph disciplinary record and past work (c) of this section. § 752.601 Coverage. record, including all applicable prior * * * * * * * * * * misconduct, when taking an action ■ 24. Add § 752.607 to read as follows: (b) * * * under this subpart. (f) A suspension or reduction in grade § 752.607 Settlement agreements. (2) This subpart does not apply to or pay should not be a substitute for (a) Agreements to alter official actions taken under 5 U.S.C. 1215, 3592, removal in circumstances in which personnel records. An agency shall not 3595, 7532, or 7515. removal would be appropriate. Agencies agree to erase, remove, alter, or * * * * * should not require that an employee withhold from another agency any

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information about a civilian employee’s record of an erroneous or illegal action. issuance of a final agency decision on performance or conduct in that An agency may take such action even if an adverse personnel action casting employee’s official personnel records, an appeal/complaint has been filed doubt on the validity of the action or the including an employee’s Official relating to the information that the ability of the agency to sustain the Personnel Folder and Employee agency determines to be inaccurate or to action in litigation, an agency may Performance File, as part of, or as a reflect an action taken illegally or in decide to cancel or vacate the proposed condition to, resolving a formal or error. In all events, however, the agency action. Additional information may informal complaint by the employee or must ensure that it removes only come to light at any stage of the process settling an administrative challenge to information that the agency itself has prior to final agency decision including an adverse action. determined to be inaccurate or to reflect during an employee response period. To (b) Corrective action based on an action taken illegally or in error. And the extent an employee’s personnel file discovery of agency error. The an agency should report any agreements or other agency records contain a requirements described in paragraph (a) relating to the removal of such proposed action that is subsequently of this section should not be construed information as part of its annual report cancelled, an agency would have the to prevent agencies from taking to the OPM Director required by Section authority to remove that action from the corrective action, should it come to 6 of E.O. 13839. Documents subject to employee’s personnel file or other light, including during or after the withdrawal or modification could agency records. The requirements issuance of an adverse personnel action include, for example, an SF–50 issuing described in paragraph (a) of this that the information contained in a a disciplinary or performance-based section would, however, continue to personnel record is not accurate or action, a decision memorandum apply to any accurate information about records an action taken by the agency accompanying such action or an the employee’s conduct leading up to illegally or in error. In such cases, an employee performance appraisal. agency would have the authority, (c) Corrective action based on that proposed action or separation from unilaterally or by agreement, to modify discovery of material information prior Federal service. an employee’s personnel record(s) to to final agency action. When persuasive [FR Doc. 2020–20427 Filed 10–15–20; 8:45 am] remove inaccurate information or the evidence comes to light prior to the BILLING CODE 6325–39–P

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