On November 10, 2022, the Office of Personnel Management (OPM) issued a Final Rule in the Federal Register (87 Fed.Reg. 67765-67783). This Final Rule ended long-running restrictions on clean record settlements for federal employees dating back to the Trump administration.
As previously analyzed in this blog, the clean record settlement restrictions date back to Executive Order 13,839 (May 25, 2018), and were formally moved into the Code of Federal Regulations (CFR) in the waning days of the Trump administration. In addition to restricting clean record settlements, E.O. 13,839 also shortened response timeframes to proposed discipline, shortened and fixed timeframes for performance improvement periods, and directed other anti-employee policies. Within one week of taking office in January 2021, President Biden issued Executive Order 14,003, which rescinded Executive Order 13,839. However, an Executive Order cannot by itself modify the CFR, which instead requires a new rulemaking process and so E.O. 14,003 instead contained an order directing OPM to initiate a new rulemaking process to rescind the E.O. 13,839 provisions in the CFR. OPM issued its proposed rulemaking in January 2021, which solicited public comments, including comments from Gilbert Employment Law, as noted in this blog.
In response to comments from the National Employment Lawyers Association (NELA) and Gilbert Employment Law, OPM clarified that agencies should not use permissions to disclose information to background investigators to only give skewed one-sided management-centric information to future employers of former employees, and should also include information provided by the employee in that situation (which would include, for example, employee allegations that a prior negative action against them was discriminatory or a form of EEO or whistleblower reprisal).
OPM’s final rule rescinds restrictions on clean record settlements in federal sector employment matters, and restores agencies’ discretion on timeframes for performance improvement periods and for responses to proposed disciplinary actions. OPM’s original proposed rule also states its disagreement with the Federal Circuit’s decision in Santos v. NASA concerning the prerequisites for Chapter 43 performance-based adverse actions. After vehement objections to OPM’s statements concerning Santos in the proposed rule from commenters such as Gilbert Employment Law, NELA and Mr. Santos himself, OPM backpedaled in its final rule, noting that the Federal Circuit’s Santos holding on the correct interpretation of 5 U.S.C. § 4302(c)(6) controls, and characterizing its comments in the proposed rule as “inclusion of supplementary information”.
The final rule also contains implementing regulations extending civil service protections to National Guard technicians under PUB.L. 114-328. The new rules take effect on December 12, 2022.
If you are a federal civil service employee and wish to discuss your rights and obligations under federal civil service law, please consider contacting Gilbert Employment Law, P.C. to request an initial consultation.
