John,
OPM is at it again.
This time, they’ve proposed changes to the regulations that will remove any pretext of fairness when federal employees are subject to adverse actions. Instead, it will open the door to arbitrary and discriminatory discipline against employees who will have little recourse to challenge poor or politically corrupt management. This rule appears to be designed to foster an adversarial relationship between workers and the agency, rather than foster an atmosphere of cooperative problem solving.
The rule is only open for public comment for 7 more days, but there is still time to make your voice heard! Click the link below to go to the public comment form online, copy and paste the draft comment text below into the text box, and then submit! It’s that easy.
It’s critical that you make your voice heard by acting now! Click here to tell OPM why changing this rule would be so harmful.
Copy and paste the draft comment text below:
Dear Mr. Curry:
I am a member of the American Federation of Government Employees, AFL-CIO (AFGE). I appreciate the opportunity to submit these comments in my personal capacity on the Office of Personnel Management’s (OPM’s) proposed amendments to 5 CFR parts 315, 432 and 752, entitled “Probation on Initial Appointment to a Competitive Position, Performance-Based Reductions in Grade and Removal Actions and Adverse Actions." 84 Fed Reg. 48794 (Sept. 17, 2019).
As a federal employee, I am outraged and appalled by the proposed changes to the regulations in 5 CFR. This proposed rule would seriously disrupt and remove all notions of fairness when federal employees are subject to adverse actions. The proposed rule would foster disparate standards for application to both performance and conduct-based actions. Parts of the rule are confusing, while other parts appear to be designed to foster contentious labor relations, rather than resolving these issues in a cooperative and constructive manner.
I have numerous problems with the proposed rule, four of which are explained below.
1. The affirmative supervisory determination for ending the probationary period is deceptive, as it seems to require an employee to receive an affirmative supervisory determination in order to complete the probationary period. Probationary periods are controlled by statute. There is no requirement of separate, affirmative supervisory approval before an employee may be found to have completed his or her probation period nor is there any obligation on the part of an employee to seek such approval. The proposed rule should be corrected to eliminate this confusion. A probationary employee who meets the statutory requirements needed to become non-probationary does not remain probationary in the absence of any affirmative approval. The rule needs to make this very clear. Further, if the rule is going to require notification of supervisors in advance of the expiration of an employee’s probationary period, it should also require an agency to provide the same notice to the employee.
2. Progressive discipline is abolished and use of tables of penalties for discipline is discouraged. The abolition of progressive discipline and discouraging use of penalty tables will lead to widely varying and incoherent disciplinary treatment for similarly situated employees, regardless of whether the same or different supervisors are involved. This will result is workplaces where favoritism, including racial, ethnic, gender or other non-relevant employee attributes will be tolerated as the basis for potential discipline. As a federal employee, I strongly believe that penalties should be the same for similar offenses, and any idea that identical or similar offenses could lead to disparate discipline is inherently inequitable.
3. The proposed revisions to performance-based actions are nothing more than an “end run” around employee rights and a chance to improve during the so-called “opportunity period.” As a federal employee, I agree that position standards and attainment of critical performance elements are extremely important. But the proposed rule gives no consideration to assisting an employee to attain fully successful performance or to the fact that the opportunity period must be genuine and meaningful.
The requirement of a reasonable opportunity to improve is an important statutory requirement. OPM may not eliminate or modify this requirement by regulation. Yet, the proposed rule makes a mockery of the “opportunity period” by jettisoning well-established practices and essentially discouraging the use of objective standards and improvement plans. The result will be the granting of almost unfettered discretion to supervisors in determining what constitutes an adequate “opportunity period” once the 30-day notice has been issued. OPM must acknowledge, clearly, that a reasonable opportunity to improve is a substantive, statutory right that may not be diminished by regulation.
4. The prohibition on use of settlement agreements (“clean record agreements”) will only lead to bitter and contentious disputes. Unless some provision for settlement or informal resolution of disputes is provided, members of my bargaining unit will have little choice but to pursue arbitration or litigation. I strongly urge the proposed rule be amended to provide for cancellation of a proposed action as part of a settlement agreement, so long as no final agency action has been taken. This will help resolve 90% of disputes without resorting to more legal processes.
For all the reason stated above, I urge OPM to withdraw the proposed rule and consider more reasoned approaches to addressing employee probation, performance and disciplinary issues.
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