OPM Proposes Changes to Allow Clear Record Agreements and Other Civil Service Issues

Significant Changes for Federal Employees

OPM’s proposed rules will rescind several parts of the former Administration changes to civil service rules, including the following:

Clean Record Settlements. This is the major change that everyone has been waiting for. The prior Administration banned federal agencies from resolving federal employment litigation involving clean record settlements, where a person could obtain a fresh start as part of a settlement. Both federal employees and agencies disliked the ban because it interfered with resolving cases. The proposed changes will eliminate this ban and allow federal agencies the discretion to resolve complaints and fairly settle cases. Most federal agencies have moved forward already in again negotiating clean record agreements.

Performance-Based Actions Taken Against Federal Employees. The former Administration’s prior rule added language that left struggling employees unable to obtain assistance in successfully passing performance improvement plans. OPM’s change in the proposed rule would revert to prior language that “the agency shall offer assistance to the employee in improving unacceptable performance” during the performance improvement plan process.  This has been a cornerstone of the performance improvement plan process for many years.

Probationary Employee Notices. Next, OPM’s former rules required federal agencies to notify supervisors at least three months before an employee’s probationary period ended (with an additional reminder 30 days before it ended). The rules also required supervisors to make an affirmative decision about whether the employee should stay on the job. The rule had the unintended effect of causing many unjustified terminations and confusion. OPM’s new regulations will remove this requirement because it believes that the frequency and timing of notifications should be left up to the discretion of each agency.  

Disciplinary Penalty Evaluations. The proposed rule rescinds many of the former Administration’s new criteria for disciplinary penalty evaluations, restating that a belief that the Douglas factors govern penalties for federal employees, leaving significant discretion to federal agencies.  

National Guard Technician Changes. The proposed rules also would implement new requirements for procedural and appeal rights for dual-status National Guard technicians for certain types of adverse actions. Among other issues, OPM proposed that certain performance-based actions against dual-status National Guard technicians are
no longer excluded from the Merit Systems Protection Board (MSPB).

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