On February 11, 2025, the Administration issued a new executive order initiating a government reorganization and reduction in force (RIF), and updating requirements of a hiring freeze imposed under a prior executive order with related Office of Personnel Management (OPM) guidance. The executive order also directed OPM to initiate rulemaking proceedings modifying the government’s suitability regulations.
Concerning the hiring freeze, the executive order directed the Office of Management and Budget to draft plans for reduction of the federal workforce through attrition. Those plans contemplated that agencies would be restricted to a ratio of only hiring one new employee per four employees who departed, unless an exception applied; exceptions include positions in “public safety, immigration enforcement, or law enforcement.” Under the hiring plan, agencies would be required to confer with Department of Government Efficiency (DOGE) staffers embedded at each agency regarding any career hiring. The DOGE team lead at each agency would be permitted to block hiring on career positions at their discretion, unless the head of the agency personally overrules the DOGE team lead. The executive order kept the full hiring freeze at the Internal Revenue Service in place.
Agency heads were directed, without a specific timeline, to prepare plans for implementing “large-scale” RIFs and reorganizations (although not setting any fixed targets for how large the RIFs must be). Agencies were directed to separate temporary employees and reemployed annuitants in areas targeted for RIFs. Probationary employees were not specifically mentioned in the executive order, and press accounts report that the Administration may be backing off from rumored plans to remove all probationers, instead focusing on those probationers with lower performance ratings. Particular focuses for the RIF would be DEI offices (previously analyzed in this blog), any other agency program that the Administration had opted to suspend or close, and those components or employees “performing functions not mandated by statute or other law who are not typically designated as essential during a lapse in appropriations.” The issue of essential employees and lapses in appropriations was analyzed previously in this blog. The executive order also excepted “functions related to public safety, immigration enforcement, or law enforcement” from the RIFs. Agencies were directed to submit a report (which may or may not be the full RIF and reorganization plan) within 30 days of the executive order; this report must outline which units of the agency are required to exist by statute, and identify whether the whole agency or its subcomponents be “eliminated or consolidated.”
The executive order also directs OPM to initiate rulemaking proceedings to revise the current suitability regulations, which were previously discussed in this blog. Suitability determinations are an adjunct to the hiring process, which permit OPM or an agency to remove a new employee if certain disqualifying factors are found to occur. Individuals subject to a suitability action can potentially not only be removed or lose a given job opportunity—they can also be debarred from many categories of federal employment for up to three years. Such decisions are appealable in certain circumstances to the Merit Systems Protection Board. The preexisting standards in present suitability regulations involve matters such as, for example, negligence or misconduct in employment, criminal or dishonest conduct, falsification in job applications, substance abuse, or acts taken to overthrow the government. The executive order now directs OPM to add four new grounds for unsuitability determinations:
(i) failure to comply with generally applicable legal obligations, including timely filing of tax returns;
(ii) failure to comply with any provision that would preclude regular Federal service, including citizenship requirements;
(iii) refusal to certify compliance with any applicable nondisclosure obligations, consistent with 5 U.S.C. 2302(b)(13), and failure to adhere to those compliance obligations in the course of Federal employment;
and
(iv) theft or misuse of Government resources and equipment, or negligent loss of material Government resources and equipment.
Items (i) and (iv) convert preexisting grounds for possible discipline of some employees into suitability criteria which can be enforced by both the employing agency and by OPM. Item (ii) appears somewhat duplicative of an existing suitability criterion (“Any statutory or regulatory bar which prevents the lawful employment of the person involved in the position in question.”). Item (iii) appears to now require new federal employees to now certify that they will obey any agency non-disclosure policies and then follow those policies; the only cited exception is a statutory requirement that agencies permit whistleblowing through certain lawful channels and not attempt to impose unlawful ‘gag orders.’ OPM was directed to initiate the rulemaking process within 30 calendar days of the executive order, although the overall rulemaking process takes longer.
Excepted generally from the executive order are military personnel, positions an agency head identifies as involved in “national security, homeland security, or public safety responsibilities” or positions exempted by the OPM director.
Clarification guidance will likely be needed on this executive order, especially as there are certain apparent inconsistencies in its text. For example, the executive order’s definition of “temporary employee” cites 5 C.F.R. Part 316, which includes several categories of appointees in addition to ‘temporary limited appointees,’ including but not limited to one authority for term appointments as well as several other appointment authorities.
If you are a federal employee facing an RIF and wish to discuss your rights and options, consider contacting Gilbert Employment Law, to request an initial consultation.