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Hello. I m Mike Rigas, Acting Director of the U.S. Office of Personnel Management, and I m pleased to welcome you to this important event. This discussion will focus on Executive Order 13839, Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles, which President Trump signed on May 25, 2018. This Order reinforced the idea that Federal employees should be rewarded for good conduct and held accountable for poor performance. As a result, it set a new direction for promoting efficient and effective use of the Federal workforce. As you ll hear today, this Order requires executive agencies to advance and assist Federal supervisors ability to promote civil servant accountability while providing each employee with the appropriate procedural rights and protections. Over the past few years, OPM has taken several steps to achieve this vision. To begin, our team examined existing regulations to determine which, if any, helped advance the goals outlined in the Order. For instance, the Order discusses using Title 5 chapter 75 removal procedures to address instances of unacceptable performance and issue swift decisions on proposed removals when appropriate. After reviewing existing regulations, in September 2019 OPM proposed regulatory changes for probationary period notifications, actions taken for unacceptable performance and misconduct, and discipline for supervisors based on retaliation against whistleblowers. These proposed rule changes were finalized on October 16, 2020 and took effect on November 16, 2020. Over the next hour, you will learn how both the Executive Order and OPM s regulatory revisions can help Federal agencies foster high standards of integrity and make more effective and efficient use of the Federal workforce. Retaining top employees and helping them succeed are crucial steps toward building teams that deliver on an agency s mission. But managers also need tools to correct poor performance, and efficiently remove those who fail to perform or to uphold the public s trust. We firmly believe that the Executive Order and the regulation amendments will increase efficiency throughout the Federal Government, and help Federal employees better serve the American taxpayer. I hope this training helps you understand these changes and gives you a glimpse into how Federal agencies can use performance management tools to support their missions. Thank you for your time, and for your commitment to building a more effective Federal workforce. Enjoy the presentation. Hello. I m Tim Curry. I m the Deputy Associate Director for Accountability and Workforce Relations at the U.S. Office of Personnel Management. I m pleased to welcome you to this important discussion. With the issuance of Executive Order 13839 and some changes to law, OPM recently published regulatory changes concerning: probationary period notifications, actions taken for unacceptable performance and misconduct, and discipline for supervisors based on retaliation against whistleblowers. These rule changes were finalized on October 16, 2020, and effective on November 16, 2020. OPM has received a number of questions from agencies about the regulatory changes. Today, I will highlight the most frequently asked questions and provide you some information in response to these questions. I hope today s discussion helps you understand these changes and gives you the necessary information to implement these regulatory changes. Let s start with the regulation changes to 5 CFR Part 315. Most federal employees serve a one-year probationary period on initial appointment to a position in the competitive service, under part 315 of title 5 of the Code of Federal Regulations. This probationary period is the final step in the hiring process of a new employee. It should be used to assess the individual s overall fitness and qualifications for the job. If a supervisor determines that a probationer s performance or conduct does not meet acceptable standards, the agency can terminate the probationer without using chapter 75 procedures. The first question asks how have the OPM regulations changed to assist supervisors in better utilizing the probationary period? Under the revised regulations, agencies are now required to notify supervisors three months and one month prior to the expiration of an employee s probationary period and to advise the supervisor to consider whether the employee should be retained beyond the one-year probationary period. Supervisors who fail to make timely decisions regarding their probationary employees may create the potential for retention of an employee unfit to perform the duties of the position and the imposition of additional burden if the agency attempts to remove the employee through a performance-based or adverse action after the probationary period is over. We believe the regulation provides a useful tool for supervisors. Timely notifications will help supervisors take full advantage of the probationary period in order to make informed decisions about whether to retain an individual in the agency s permanent workforce. One common question we ve received is whether an agency may terminate a probationer if the agency failed to notify the supervisor of the employee s probationary period expiration date? And the answer is yes. An agency may terminate a probationer even if the agency failed to notify the supervisor of the employee s probationary period expiration date as long as the termination action is taken before the expiration of the probationary period and is based on reasons such as the employee s inability to perform the duties of his or her position, lack of cooperativeness or other unacceptable or poor performance or misconduct, and complies with the provisions of title 5 of the Code of Federal Regulations, part 315. Next, let s address questions we ve received concerning OPM s regulatory changes related to performance-based reduction in grade and removal actions taken under chapter 43 of title 5 of the United States Code. Chapter 43 provides a simple, dedicated, though not exclusive, process for agencies to address unacceptable performance. The revised regulations at title 5 of the Code of Federal Regulations, part 432, clarify the requirements of the opportunity period that agencies must provide before reducing in grade or removing an employee who has unacceptable performance. We ve been asked by some agencies whether agencies are still required to provide assistance to an employee who has performance issues. And the answer is yes, if the agency is contemplating a performance-based action under chapter 43 and part 432, agencies are still required to provide assistance to an employee who has performance issues. OPM also encourages managers to engage in continuous performance feedback and early correction of performance concerns, thereby supporting the principles in Executive Order 13839 for promoting employee accountability. If an employee exhibits unacceptable performance, he or she must be given an opportunity to demonstrate acceptable performance, under title 5 of the Code of Federal Regulations, part 432. Although an agency may provide assistance at any time during the rating cycle, an agency is required to offer or provide assistance to the employee during a formal opportunity period, also informally known as a performance improvement plan or performance improvement period (PIP). The assistance offered to the employee during the PIP need not take any particular form to satisfy the statutory requirement. For example, the assistance need not be training. Another question we ve received asks whether an agency may use an informal or additional assistance period to help an employee with performance problems. No. Additional performance assistance periods are not required by law and prohibited by the regulations. The revised regulations provide that no additional performance assistance period or similar informal period shall be provided prior to or in addition to the opportunity period provided under the revised regulations. Prohibiting agency use of additional informal opportunity periods is intended to encourage efficient use of chapter 43 procedures for addressing unacceptable performance and ensures performance problems are addressed in a timely manner. OPM believes the opportunity period, or PIP, afforded a poor performer under the current statutory framework is a sufficient opportunity to demonstrate acceptable performance. However, this does not preclude an agency from providing continuous feedback to allow for early correction of any performance issues. Another question we ve received asks how long may a formal opportunity period last? Executive Order 13839 generally limits an opportunity period to no more than a 30-day period to demonstrate acceptable performance, except when the agency determines that a longer period is necessary to provide sufficient time to evaluate an employee s performance. For example, the supervisor should consider the duties and responsibilities of the employee s position. Moving on, as many of you know, chapter 43 is not the exclusive process for addressing poor performance. We ve been asked what other formal process is available to agencies to address an employee s unacceptable performance? As an alternative to chapter 43 procedures, supervisors are authorized to use adverse actions procedures under chapter 75 of title 5, US Code. In fact, the Executive Order encourages the use of Chapter 75 and the corresponding regulations in part 752 of the Code of Federal Regulations to be used in appropriate cases to address instances of unacceptable performance. Note that under part 752, an agency is not required to use a PIP. The specific facts and circumstances, along with the weight of available evidence, will be determining factors in deciding which authority is more appropriate. The new regulations also incorporate the changes created by law regarding how to deal with retaliation by supervisors for whistleblowing. The regulations reinforce the responsibility of agencies to protect whistleblowers from retaliation. Prohibited personnel actions are not consistent with the notion of a system based on merit and failure to observe these prohibitions must be addressed promptly. The regulations ensure that agencies understand how to meet the additional statutory requirements in connection with prohibited personnel actions. One question we ve received related to these new requirements asks what disciplinary actions must an agency take if a supervisor is found to have retaliated against a whistleblower? As a preliminary caution, during any investigation initiated for alleged retaliation against a whistleblower or any related activity, no disciplinary action may be taken against an employee without the approval of the U.S. Office of Special Counsel. For the first incident of a prohibited personnel action, an agency is required to propose a suspension of at least three days. For the second incident of a prohibited personnel action, an agency is required to propose that the supervisor be removed. These proposed mandatory penalties are statutory requirements and not within the agency s discretion. Also, under the law it is the agency s responsibility to carry out these mandatory penalties as proposed if the supervisor cannot provide an answer and evidence sufficient to clear himself or herself. I previously stated that a proposed penalty of at least three days is required for a first-time offense. Some agencies have asked whether this means that an agency may impose a suspension of longer than three days for a supervisor s first-time offense of whistleblower retaliation? Yes. For the first incident of a prohibited personnel practice, an agency is required to propose the penalty at a level no less than a three-day suspension so a longer suspension may be proposed. Further, an agency may propose an additional action, such as a reduction in grade or pay. Agencies should propose a penalty suited to the facts and circumstances of the alleged whistleblower retaliation, including severity of the offense. We ve also been asked whether it is permissible for an agency to notify the whistleblower of the penalty imposed upon the supervisor who retaliated against the whistleblower? No. An agency may only share discipline-related information about an employee from an individual s personnel records with those who have a need to know, such as human resources staff involved in advising management and any management official responsible for approving the action. Next, an excellent question we ve received asks whether the procedures for retaliation against whistleblowers are different from procedures for other adverse actions? In fact, the procedures for discipline against supervisors who retaliate against whistleblowers are nearly the same as those for other adverse actions. However, there are some key exceptions, namely the provisions concerning how long the supervisor has to reply to the proposed penalty and how much advance notice the supervisor has before the adverse action may be taken. Under the new regulations that govern adverse actions against supervisors based upon retaliation, no more than 14 days is provided for supervisors to give an answer after receipt of the proposal notice. The related procedures also give a shortened time period for issuing the final decision. The agency must carry out the proposed action at the conclusion of the 14-day advance notice period if the supervisor fails to provide evidence to rebut the charge or provides evidence that the head of the agency deems insufficient. In addition, no extension of the 14-day reply period is allowed under the statute. Next, let s turn to a different subject regarding disciplinary actions. A common question we ve received asks whether an agency may use progressive discipline, which is a practice of imposing the least serious disciplinary or adverse action applicable to correct misconduct. The regulation makes clear that an agency is not required to use progressive discipline. In fact, progressive discipline has never been required by law or OPM regulations. If the facts and circumstances of a case warrant removal, an agency should not substitute a suspension, even if the employee has not been previously suspended or demoted. An agency must choose a penalty that is tailored to the facts and circumstances of the case and within the bounds of tolerable reasonableness. Furthermore, Section 4 of Executive Order 13839 prohibits agencies from making any agreement, including a collective bargaining agreement, that limits the agency s discretion to remove an employee from Federal service without first engaging in progressive discipline. On a related topic, many agencies have a table of penalties that provides a list of common infractions along with a suggested range of penalties for each infraction. A common question that we receive asks whether an agency is required to use a table of penalties. Creation and use of a table of penalties is not required by statute, case law or OPM regulation. Penalty consideration requires an individual assessment of all relevant facts and circumstances rather than a rigid application of a penalty table. Employees should be treated equitably, and an agency should consider appropriate comparators as the agency evaluates a potential disciplinary action, as well as other relevant factors including an employee s disciplinary record and past work record, including all applicable prior misconduct. Supervisors must use independent judgement, take appropriate steps in gathering facts, and conduct a thorough analysis to decide the appropriate penalty in individual cases. Next, I would like to highlight that the revised regulations include new requirements for agencies to provide appeal rights information at the proposal notice stage of an adverse action. You may be wondering why has this been added as a requirement? The requirement to provide the appeal rights information at the proposal notice stage of a disciplinary action was added because of a statutory requirement which mandates that information on whistleblower appeal rights be included in any notice provided to an employee under the adverse action procedures of OPM regulations. A notice of proposed action under these procedures must include detailed information about any right to appeal any action upheld, the forum in which the employee may file an appeal, and any limitations on the rights of the employee that would apply because of the forum in which the employee decides to file. It is important to note that this regulatory change does not confer on an employee a right to seek redress at the proposal stage of an adverse action that an employee did not have previously. This information may assist employees with regard to decisions such as whether he or she may want to seek representation. An employee would generally not have a colorable claim under venues such as the Merit Systems Protection Board unless and until a decision was issued by the agency that conferred such rights on the employee. I previously mentioned that the proposal notice under these procedures must include detailed information about the forum for appeal. One question we ve received from a number of agencies asks what forums are covered by this notice requirement? The appeal rights language included at the adverse action proposal stage relating to choice of forum and limitations will vary depending on circumstances, the nature of a claim and the type of employee. Appeal rights may include, but are not be limited to, filing an Equal Employment Opportunity complaint with the Equal Employment Opportunity Commission; a prohibited personnel practice complaint with the U.S. Office of Special Counsel a grievance under a negotiated grievance procedure; or an appeal with the Merit Systems Protection Board. Each process has different requirements and standards that must be satisfied. Given this, as well as the divergent circumstances and individualized nature of any particular adverse action, supervisors and managers are encouraged and advised to consult closely with their human resources office and agency counsel to develop the best course of action for implementation of this notice requirement. Next, I d like to discuss the adverse action advance notice period. A common question we ve heard is whether an agency is required to limit the advance notice period of an appealable adverse action to 30 days? OPM has not changed the regulatory provision that an employee against whom an adverse action is proposed is entitled to at least 30 days advance written notice unless the crime provision is invoked. However, to the extent practicable and in its sole and exclusive discretion, agencies should limit advance notice of an adverse action to no more than 30 days. This leads to a related question - what is required if an agency s advance notice period exceeds 30 days? Agencies must report advance notice periods of greater than 30 days to OPM. As required by the Data Collection section 6 of Executive Order 13839, agencies should submit this information as part of their annual report to the OPM Director. Now that we have addressed the advance written notice, let s address when an agency must issue a decision on a proposed removal taken under chapter 75. To the extent practicable, an agency should issue the decision on a proposed removal under this subpart within 15 business days of the conclusion of the employee s opportunity to respond. Another topic in the regulations which has received many questions concerns settlement agreements. Whether an agency takes a reduction in grade or removal under chapter 43 or chapter 75, the employee will be entitled to contest the agency s action through an informal and formal process. Agencies sometimes find it appropriate to resolve such complaints by negotiating a settlement with the employee or former employee. In doing so, agencies must not agree to any terms that would remove or otherwise modify information contained in the employee s personnel file as a means of resolving an informal or formal complaint. Such agreements are traditionally referred to as clean record agreements, and they are prohibited. A common question we receive is what is the purpose of prohibiting clean record agreements? Executive Order 13839 and the subsequent regulatory changes that prohibit clean record agreements are intended to promote high standards of integrity and accountability across the Federal government. Requiring agencies to preserve accurate records allows for appropriate and informed decisions regarding the individual s qualification, fitness and suitability if he or she is considered for future employment in another Federal position. I would note that while Section 5 of Executive Order 13839 places restrictions on agency management regarding certain matters within settlement agreements, it does not prevent agencies from generally pursuing settlement agreements and other forms of alternative dispute resolution to resolve formal or informal complaints. Agencies are only prohibited from agreeing to erase, remove, alter or withhold from another agency any information about an employee s performance or conduct in the employee s official personnel records in order to resolve a formal or informal complaint or settle an administrative challenge to an adverse personnel action. In contrast, an agency may agree to withhold negative information from prospective future non-Federal employers. Another question we ve received asks whether there are any exceptions to the prohibition on modifying personnel records to resolve a complaint? Yes. An agency is permitted, unilaterally or by agreement, to modify an employee s personnel file to remove inaccurate information or the record of an erroneous or illegal action. The agency must ensure that it removes only information that the agency itself has determined to be inaccurate or to reflect an action taken illegally or in error. In addition, an agency may cancel or vacate a proposed action if persuasive evidence comes to light prior to issuance of a final agency decision on an adverse personnel action that casts doubt on the validity of the action or the ability of the agency to sustain the action in ligation. If a proposed action is subsequently canceled, the agency may modify the employee s personnel files. Finally, it is important to note there were Executive Order requirements not covered in the OPM regulation updates -- Sections 3, 4(a) and 4(c) --since those matters were enjoined by a federal court when the regulations were originally proposed. However, the previously enjoined Executive Order sections are now fully effective and binding on executive agencies. One common question we receive asks us what is the standard for negotiating grievance procedures with regard to removal from Federal service based on misconduct or unacceptable performance? Section 3 of Executive Order13839 requires an agency head, whenever reasonable in view of the particular circumstances, to endeavor to exclude from the application of any grievance procedures negotiated under the statutory requirements of section 7121 of title 5, any dispute concerning decisions to remove an employee from Federal service for misconduct or unacceptable performance. Each agency must commit the time and resources necessary to achieve this goal and to fulfill its obligation to bargain in good faith. If an agreement cannot be reached, the agency will, to the extent permitted by law, promptly request the assistance of the Federal Mediation and Conciliation Service and, as necessary, the Federal Service Impasses Panel in the resolution of the disagreement. Within 30 days after the adoption of any collective bargaining agreement that fails to achieve this goal, the agency head must provide an explanation to the President, through the Director of OPM. Such an explanation is not required if the agreement was adopted pursuant to a Federal Service Impasses Panel order or an arbitrator engaging in interest arbitration, provided that the agency had proposed excluding from the negotiated grievance procedure the decision to remove an employee from the Federal service for misconduct or unacceptable performance. Finally, you may be aware that Executive Order 13839 requires agencies to exclude certain matters from negotiated grievance procedures. To the extent consistent with law, an agency s negotiated grievance and binding arbitration procedures must exclude coverage of disputes over the assignment of ratings of record and awards of any form of incentive pay, including cash awards; quality step increases; or recruitment, retention or relocation payments. Such matters may still be covered by internal agency administrative grievance procedures. On that note, I ve covered the most frequently asked questions we ve received on the regulations. Thank you for watching this video. We hope that the information provided has been helpful to you. If you are a federal employee and have questions, please consult with your agency human resources office. Human Resources Offices may reach out to OPM at employeeaccountability@opm.gov. Once again, thank you for watching this video.