Civil Service Update: October 2019

By Dan Gephart, September 18, 2019

Welcome to FY 2020. Didn’t it feel like we spent most of the previous fiscal year waiting? Waiting for new Merit Systems Protection Board members to be confirmed. Waiting for some type of resolution on the portion of President Trump’s Executive Orders that were under injunction. Waiting for guidance from OPM.

But we’re waiting no more, at least when it comes to the Executive Orders. In case you missed it, here’s a quick recap. President Trump issued three Executive Orders in May 2018 aimed at curtailing union activity and increasing supervisors’ ability to hold employees accountable for misconduct and poor performance. Three months later, several provisions of those Executive Orders were set aside as illegal, per a D.C. District Court decision. Several weeks ago, an Appeals Court overturned the District Court decision. The unions sought an en banc re-hearing, which the Appeals Court has refused.

What does that all mean? Well, the Executive Orders are now fully in play. OPM Director Dale Cabannis was quick to alert agencies, writing in an October 4 memo: “Accordingly, all provisions of these executive orders, including previously enjoined provisions, are in full force and effect and should be implemented consistent with the requirements and guidance contained in the EOs.”

Agencies are now expected to set time limits on bargaining, severely restrict official time, and are allowed to charge unions rent for office space, and that’s just the Labor Relations portions of the Executive Orders, and the president issued a memo to that effect last week. If you deal with federal unions, it’s a good time to register for FELTG’s FLRA Law Week, which takes place next week – October 21-25, 2019 in Washington, DC.

Speaking of the FLRA, the agency recently started posting quarterly case digest with summaries of its decisions. These digests contain summaries of full-length merit decisions issued by the authority. This is part of the FLRA’s strategic to plan to make those decisions more easily accessible. The digests are available on the FLRA website.

That October 4 memo wasn’t the only one the OPM Director sent to agencies. The previous week, Cabaniss issued  Maximization of Employee Performance Management and Engagement by Streamlining Agency Performance and Dismissal Policies and Procedures. Among the items discussed are streamlining performance and misconduct procedures and eliminating unnecessary barriers to holding employees accountable.

If those topics sound familiar to you in FELTG Nation, it might be because that’s what we’ve been teaching for the past 19-plus years. Those of you who have been to MSPB Law Week or Developing & Defending Discipline have a nice head start on what OPM wants. You might equate unnecessary barriers to what we at FELTG call “yellow donut” items. The yellow donut is full of things that are perfectly legal to do, but are legally useless in developing your performance- or misconduct-based actions. They waste your time and misdirect your efforts. As Deb puts it, the yellow donut is full of empty calories.

And hey, how about those MSPB appointments? Just kidding. I’m afraid we’re still waiting for those. In the meantime, be sure check out to last month’s And Now A Word With … Tristan Leavitt, where the MSPB General explained to FELTG readers what the agency is still doing while it waits for the return of a quorum. Lots going on, and lots more to come. We’ll keep you posted. Gephart@FELTG.com