Probation on Initial Appointment to a Competitive Position, Performance-Based Reduction in Grade and Removal Actions and Adverse Actions
| Published date | 17 September 2019 |
| Citation | 84 FR 48794 |
| Record Number | 2019-19636 |
| Section | Proposed rules |
| Court | Personnel Management Office |
Federal Register, Volume 84 Issue 180 (Tuesday, September 17, 2019)
[Federal Register Volume 84, Number 180 (Tuesday, September 17, 2019)]
[Proposed Rules]
[Pages 48794-48806]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-19636]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 84, No. 180 / Tuesday, September 17, 2019 /
Proposed Rules
[[Page 48794]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR parts 315, 432 and 752
RIN 3206-AN60
Probation on Initial Appointment to a Competitive Position,
Performance-Based Reduction in Grade and Removal Actions and Adverse
Actions
AGENCY: Office of Personnel Management.
ACTION: Proposed rule.
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SUMMARY: The Office of Personnel Management (OPM) is issuing proposed
regulations governing probation on initial appointment to a competitive
position, performance-based reduction in grade and removal actions, and
adverse actions. The proposed rule will effect a revision of OPM's
regulations to make procedures relating to these subjects more
efficient and effective. The proposed rule also amends the regulations
to incorporate other statutory changes and technical revisions.
DATES: Comments must be received on or before October 17, 2019.
ADDRESSES: You may submit comments, identified by the docket number or
Regulation Identifier Number (RIN) for this proposed rulemaking, by any
of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for sending comments.
Instructions: All submissions must include the agency name and
docket number or RIN for this rulemaking. Please arrange and identify
your comments on the regulatory text by subpart and section number; if
your comments relate to the supplementary information, please refer to
the heading and page number. All comments received will be posted
without change, including any personal information provided. Please
ensure your comments are submitted within the specified open comment
period. Comments received after the close of the comment period will be
marked ``late,'' and OPM is not required to consider them in
formulating a final decision. Before acting on this proposal, OPM will
consider and respond to all comments within the scope of the
regulations that we receive on or before the closing date for comments.
Changes to this proposal may be made in light of the comments we
receive.
FOR FURTHER INFORMATION CONTACT: Timothy Curry by email at
[email protected] or by telephone at (202) 606-2930.
SUPPLEMENTARY INFORMATION: The Office of Personnel Management (OPM) is
proposing revisions to regulations governing probation on initial
appointment to a competitive position; performance-based reduction in
grade and removal actions; and adverse actions under statutory
authority vested in it by Congress in 5 U.S.C. 3321, 4305, 4315, 7504,
7514 and 7543. The regulations will assist agencies in carrying out,
consistent with law, certain of the President's directives to the
Executive Branch in Executive Order 13839 that are not currently
enjoined, and update current procedures to make them more efficient and
effective. The proposed regulations also will update references and
language due to statutory changes; and clarify procedures and
requirements to support managers in addressing unacceptable performance
and promoting employee accountability for performance-based reduction-
in-grade, removal actions and adverse actions. The proposed regulations
support agencies in implementing their plans to maximize employee
performance as required by Office of Management and Budget (OMB) M-17-
22 (April 12, 2017) and elements of the President's Management Agenda
relating to the Workforce for the 21st Century.
OPM is aware of the judicially-imposed limitations on implementing
other portions of Executive Order 13839. OPM has and will continue to
comply fully with the injunction, and will not issue regulations
implementing the invalidated parts of the Executive Order as long as
the judicial injunction is in place. OPM will heed the court's
reaffirmation that ``Congress has clearly vested OPM with the authority
to `execut[e], administer [ ], and enforc[e] the civil service rules
and regulations of the President and the Office and the laws governing
the civil service . . .'' and with the authority to `aid [ ] the
President, as the President may request, in preparing such civil
service rules as the President prescribes.' '' OPM further relies upon
the court's statement that, ``given the wellsprings of authority that
OPM enjoys in this area, OPM can surely receive directions from the
President to promulgate regulations that are consistent with the rights
and duties that the FSLMRS or CSRA prescribe, and setting aside the
invalidity of some of the underlying substantive mandates.'' American
Federation of Government Employees, AFL-CIO v. Trump, 318 F. Supp. 3d
370, 438 (D.D.C. 2018). OPM is proposing these regulations under its
congressionally-granted authority to regulate the Parts that it
proposes to revise subject to the notice-and-comment process set forth
in the Administrative Procedure Act, and mindful of the President's
expressed policy direction.
The Case for Action
``* * * I call on Congress to empower every Cabinet Secretary with the
authority to reward good workers and to remove Federal employees who
undermine the public trust or fail the American people.''
With that statement on January 29, 2018, President Trump set a new
direction for promoting efficient and effective use of the Federal
workforce--reinforcing Federal employees should be both rewarded and
held accountable for performance and conduct. Merit system principles
provide a framework for responsible behavior that is aligned with the
broader responsibility Federal government employees agree to when they
take the oath to preserve and defend the Constitution. In keeping with
merit system principles, the President's Management Agenda (PMA)
recognizes that Federal employees underpin nearly all the operations of
the Government, ensuring the smooth functioning of our democracy. The
Federal personnel system needs to keep pace with changing workplace
needs and return to its root principles. Notably, as demonstrated in
the Federal Employee Viewpoint Survey, a majority of both employees and
managers agree that the performance management system fails to reward
the best and address unacceptable performance. Finally, the PMA calls
for agencies to establish
[[Page 48795]]
processes that help agencies retain top employees and efficiently
remove those who fail to perform or to uphold the public's trust.
Prior to establishment of the PMA, the Office of Management and
Budget (OMB) issued a memorandum to agencies on April 12, 2017 entitled
``M-17-22--Comprehensive Plan for Reforming the Federal Government and
Reducing the Federal Civilian Workforce.'' M-17-22 called on agencies
to take near-term actions to ensure that the workforce they hire and
retain is as effective as possible. OMB called on agencies to determine
whether aspects of their current policies and practices present
barriers to hiring and retaining the workforce necessary to execute
their missions as well as appropriately managing it and, if necessary,
removing poor performers and employees who commit misconduct. Notably,
M-17-22 directed agencies to ensure that managers have the tools and
support they need to manage performance and conduct effectively to
achieve high-quality results for the American people.
More recently, E.O. 13839 notes that merit system principles call
for holding Federal employees accountable for performance and conduct.
The merit system principles state that employees should maintain high
standards of integrity, conduct, and concern for the public interest,
and that the Federal workforce should be used efficiently and
effectively. They further state that employees should be retained based
on the adequacy of their performance, inadequate performance should be
corrected, and employees should be separated who cannot or will not
improve their performance to meet required standards. E.O. 13839
further notes that implementation of America's civil service laws has
fallen far short of these ideals. It acknowledged that the Federal
Employee Viewpoint Survey has consistently found that less than one-
third of Federal employees believe that the Government deals with poor
performers effectively. E.O. 13839 finds that failure to address
unacceptable performance and misconduct undermines morale, burdens good
performers with subpar colleagues, and inhibits the ability of
executive agencies to accomplish their missions.
E.O. 13839 requires executive agencies (as defined in section 105
of title 5, U.S. Code, excluding the Government Accountability Office)
to facilitate a Federal supervisor's ability to promote civil servant
accountability while simultaneously recognizing employee's procedural
rights and protections. Agencies should recognize and reward good
performers, while unacceptable performers should be separated if they
do not improve their performance to meet the required standards. A
probationary period is one effective tool to evaluate a candidate's
potential to be an asset to an agency before the candidate's
appointment becomes final. Therefore, probationary periods, as the
final step in the hiring process of new employees, should be used to
the greatest extent possible to assess how well they are performing the
duties of their jobs; and instances of poor performance and misconduct
should be dealt with promptly.
OPM is proposing changes to regulations to implement those
requirements of E.O. 13839 not judicially enjoined as well as to
implement the vision of the PMA and the objectives of M-17-22. These
proposed changes not only support agency efforts in implementing E.O.
13839, the PMA, and M-17-22, but also will facilitate the ability of
agencies to deliver on their mission and on providing service to
American people. Ultimately, these changes support President Trump's
goal of effective stewardship of taxpayers' money by our government.
Data Collection of Adverse Actions
Section 6 of E.O. 13839 outlines certain types of data for agencies
to collect and report to OPM as of fiscal year 2018. To enhance public
accountability of agencies, OPM will collect and, consistent with
applicable law, publish the information received from agencies
aggregated at a level necessary to protect personal privacy. OPM may
withhold particular information if publication would unduly risk
disclosing information protected by law, including personally
identifiable information. Section 6 requires annual reporting of
various categories of data, including: (1) The number of civilian
employees in a probationary period or otherwise employed for a specific
term who were removed by the agency; (2) the number of civilian
employees reprimanded in writing by the agency; (3) the number of
civilian employees afforded an opportunity period by the agency under
section 4302(c)(6) of title 5, United States Code, breaking out the
number of such employees receiving an opportunity period longer than 30
days; (4) the number of adverse actions taken against civilian
employees by the agency, broken down by type of adverse action,
including reduction in grade or pay (or equivalent), suspension, and
removal; (5) the number of decisions on proposed removals by the agency
taken under chapter 75 of title 5, United States Code, not issued
within 15 business days of the end of the employee reply period; (6)
the number of adverse actions by the agency for which employees
received written notice in excess of the 30 days prescribed in section
7513(b)(1) of title 5, United States Code; (7) the number and key terms
of settlements reached by the agency with civilian employees in cases
arising out of adverse actions; and (8) the resolutions or outcomes of
litigation about adverse actions involving civilian employees reached
by the agency.
On July 5, 2018, OPM issued guidance for implementation of E.O.
13839. This guidance included instructions for each department or
agency head to coordinate the collection of data from their components
and compile one consolidated report for submission to OPM using the
form attached to the guidance memo. Forms must be submitted
electronically to OPM via email at [email protected]
generally no later than 60 days following the conclusion of each fiscal
year. In lieu of outlining the data collection requirements in OPM
regulations, OPM will issue reminders of this requirement annually and
provide periodic guidance consistent with the requirements of E.O.
13839.
5 CFR PART 315, SUBPART H--PROBATION ON INITIAL APPOINTMENT TO A
COMPETITIVE POSITION
Section 2(i) of E.O. 13839 provides that a probationary period
should be used as the final step in the hiring process of a new
employee. The E.O. further notes that supervisors should use that
period to assess how well an employee can perform the duties of a job.
OPM guidance has stated previously that the probationary period is the
last and crucial step in the examination process. The probationary
period is intended to give the agency an opportunity to assess, on the
job, an employee's overall fitness and qualifications for continued
employment and permit the termination, without Chapter 75 procedures,
of an employee whose performance or conduct does not meet acceptable
standards to deliver on the mission. Thus it provides an opportunity
for supervisors to address problems in an expeditious manner and avoid
long-term problems inhibiting effective service to the American people.
Employees may be terminated from employment during the probationary
period for reasons including demonstrated inability to perform the
duties of the position, lack
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of cooperativeness, or other unacceptable conduct or poor performance.
To achieve the objective of maximizing the effectiveness of this
probationary period, OPM believes that timely notifications to
supervisors regarding probationary periods can be a useful tool for
agencies and should be used. OPM is proposing amendments to regulations
at Subpart H of 5 CFR part 315 to require agencies to notify
supervisors that an employee's probationary period is ending, at least
three months or 90 days prior to expiration of the probationary period,
and then again one month or 30 days prior to expiration of the
probationary period, and advise a supervisor to make an affirmative
decision regarding the employee's fitness for continued employment or
otherwise take appropriate action. OPM believes this requirement will
assist agencies in making more effective use of the probationary
period. Agencies have discretion to determine the method for making
this communication, but are encouraged to make use of existing
automated tools to facilitate timely notifications.
5 CFR part 432--Performance-Based Reduction in Grade and Removal
Actions
Section 432.101 Statutory Authority
Part 432 applies to reduction in grade and removal of covered
employees based on performance at the unacceptable level. Congress
enacted chapter 43, in part, to create a simple, dedicated, though not
exclusive, process for agencies to use in taking adverse actions based
on unacceptable performance. Since that time however, chapter 43 has
not worked as well as Congress intended. In particular, interpretations
of chapter 43 have made it difficult for agencies to take actions
against unacceptable performers and to have those actions upheld.
Section 432.104 Addressing Unacceptable Performance
The proposed rule at Sec. 432.104 clarifies that, other than those
requirements listed, there is no specific requirement regarding the
nature of any assistance provided during an opportunity period, and is
not determinative of the ultimate outcome with respect to reduction in
grade or pay, or a removal.
The proposed rule also states that no additional performance
improvement period or similar informal period to demonstrate acceptable
performance to meet the required performance standards shall be
provided prior to or in addition to the opportunity period under this
part. This change supports the stated principles of E.O. 13839 which
provide that removing unacceptable performers should be a
straightforward process furthering effective stewardship of taxpayer
money. Establishing limits on the opportunity to demonstrate acceptable
performance by precluding additional opportunity periods beyond what is
required by law encourages efficient use of the procedures under
chapter 43 and furthers effective delivery of agency mission while
still providing employees sufficient opportunity to demonstrate
acceptable performance as required by law.
The proposed rule is intended to clarify the requirements in
chapter 43 of title 5 of the United States Code. The goal of these
amendments, consistent with E.O. 13839, is to streamline civil service
removal procedures related to unacceptable performance. Nothing in the
proposed amendments to 5 CFR part 432 should be construed to relieve
agencies of their continuing obligations under Federal law, e.g., 5
U.S.C. 6384 and 29 U.S.C. 791(g). Finally, we note that 5 U.S.C.
2301(b)(2) provides that employees should receive fair and equitable
treatment without regard to political affiliation, race, color,
religion, national origin, sex, marital status, age, and handicapping
condition, and with proper regard for their privacy and rights. All
personnel actions must meet this statutory requirement.
Section 432.105 Proposing and Taking Action Based on Unacceptable
Performance
5 U.S.C. 4302(c)(5) provides for ``assisting employees in improving
unacceptable performance;'' and 5 U.S.C. 4302(c)(6) provides for
``reassigning, reducing in grade, or removing employees who continue to
have unacceptable performance but only after an opportunity to
demonstrate acceptable performance.'' The proposed rule de-links 5
U.S.C. 4302(c)(5) and (6) by clarifying in Sec. 432.105 that the
opportunity to demonstrate acceptable performance required prior to
initiating an action pursuant to 5 U.S.C. 4303 may include any and all
performance assistance measures taken during the performance appraisal
period to assist employees pursuant to 5 U.S.C. 4302(c)(5), not just
those taken during the formal opportunity period.
Section 432.108 Settlement Agreements
Section 5 of E.O. 13839 establishes a new requirement that an
agency shall not agree to erase, remove, alter, or withhold from
another agency any information about a civilian employee's performance
or conduct in that employee's official personnel records, including an
employee's Official Personnel Folder and Employee Performance File, as
part of, or as a condition to, resolving a formal or informal complaint
by the employee or settling an administrative challenge to an adverse
action. Such agreements have traditionally been referred to as ``clean
record'' agreements. This new requirement is intended to promote the
high standards of integrity and accountability within the Federal
workforce by requiring agencies to maintain personnel records that
reflect complete information, and not to alter the information
contained in those records in connection with a formal or informal
complaint or adverse action. It is further intended to ensure that
those records are preserved so that agencies can make appropriate and
informed decisions regarding an employee's qualification, fitness, and
suitability as applicable to future employment.
Section 5 requirements should not be construed to prevent agencies
from correcting records of an action taken by the agency illegally or
in error. In such cases, an agency has the authority--unilaterally or
by agreement--to modify an employee's personnel file to remove
inaccurate information or the record of an erroneous or illegal action.
Specifically, the proposed rule states that the Section 5 requirements
of E.O. 13839 should not be construed to prevent agencies from taking
corrective action should it come to light, including during or after
the issuance of an adverse personnel action, that the information
contained in a personnel record is not accurate or records an action
taken by the agency illegally or in error. In such cases, an agency
would have the authority, unilaterally or by agreement, to modify an
employee's personnel file to remove inaccurate information or the
record of an erroneous or illegal action. An agency may take such
action even if an appeal/complaint has been filed relating to the
information that the agency determines to be inaccurate or to reflect
an action taken illegally or in error. In all events, however, 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. An agency should report any agreements relating
to removal of such information as part of its annual report to the OPM
Director, as required by Section 6 of E.O. 13839. Documents subject to
withdrawal or
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modification could include, for example, an SF-50 issuing a
disciplinary or performance-based action, a decision memorandum
accompanying such action, or an employee performance appraisal. See
discussion above concerning ``Data Collection of Adverse Actions.''
Section 5 requirements should also not be construed to prevent agencies
from entering into partial clean record settlements with regard to
information provided to non-Federal employers. Finally, to the extent
that an employee's personnel file or other agency records contain a
proposed action that is subsequently cancelled, an agency would have
the authority to remove that action from the employee's personnel file
or other agency files. The proposed rule states that when persuasive
evidence comes to light prior to the issuance of a final agency
decision on an adverse personnel action casting doubt on the validity
of the action or the ability of the agency to sustain the action in
litigation, an agency may decide to cancel or vacate the proposed
action. Additional information may come to light at any stage of the
process prior to final agency decision including during an employee
response period. To the extent an employee's personnel file or other
agency records contain a proposed action that is subsequently
cancelled, an agency would have the authority to remove that action
from the employee's personnel file or other agency files. However, the
requirements described in Section 5 would continue to apply to any
accurate information about the employee's performance or conduct which
comes to light prior to issuance of a final agency decision on an
adverse action. Based on the foregoing, the proposed rule at Sec.
432.108 reflects E.O. 13839's restrictions on settlement agreements
arising from chapter 43 actions.
Technical Amendments
The proposed rule corrects the spelling of the word ``incumbents''
within Sec. 432.103(g) and the word ``extension'' at Sec.
432.105(a)(4)(i)(B)(3). OPM proposes to replace the term ``handicapping
condition'' with ``disability'' at Sec. 432.105(a)(4)(i)(B)(4) to
bring the definition into conformance with 29 U.S.C. 705. In this rule,
OPM also revises Sec. 432.105(a)(4)(i)(C) to correctly identify the
office that an agency shall contact if it believes that an extension of
the advance notice period is necessary for a reason other than those
listed in Sec. 432.105(a)(4)(i)(B). OPM proposes to revise Sec.
432.106(b)(1) to replace ``i.g.'' with ``i.e.'' within the
parenthetical concerning non-exclusion by the parties to a collective
bargaining agreement. Finally, OPM corrects the use of the word
``affected'' versus ``effected'' within Sec. 432.107(b).
5 CFR Part 752--Adverse Actions
Subpart A--Discipline of Supervisors Based on Retaliation Against
Whistleblowers
5 U.S.C. 7515 provides agencies the ability to deal with
retaliation by supervisors for whistleblowing. The regulations
reinforce the responsibility of agencies to protect whistleblowers from
retaliation. These requirements are significant because of the
essential protections they provide. 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 and
resolutely.
Based on this need, OPM is proposing a new addition to the current
adverse action system. We are revising our regulations to incorporate
the changes created by the statute and ensure that agencies understand
how to meet the additional requirements in connection with prohibited
personnel actions. This new proposed rule falls under subpart A of 5
CFR part 752 as ``Discipline of supervisors based on retaliation
against whistleblowers.'' The proposed language implements the
statutory authority and procedures of 5 U.S.C. 7515 which require that
certain actions be taken against a supervisor who retaliates against a
whistleblower. These provisions reinforce the principle that increased
accountability is warranted in situations where a supervisor commits a
prohibited personnel action against an employee of an agency, in
violation of paragraph (8), (9), or (14) of 5 U.S.C. 2302(b). The
proposed rule subjects an action taken under subpart A to many of the
same procedural requirements as an action taken under subparts B, D,
and F of this chapter. For example, Subpart A incorporates the standard
for action from each of the related subparts in this chapter. However,
the proposed rule also includes some key exceptions. These proposed
regulations help to undergird and support agencies in meeting their
requirements to take action against any supervisor who retaliates
against whistleblowers. The following section identifies the major
additions proposed by this subpart and briefly describes the purpose of
each addition.
Section 752.101 Coverage
The proposed rule describes the adverse actions covered and defines
key terms used throughout the subchapter. The proposed rule includes a
definition for the term ``business day.'' This addition is necessary to
implement the 15 business day decision period described in E.O. 13839.
The proposed rule also includes a definition for ``insufficient
evidence.'' OPM defines this new term as evidence that fails to meet
the substantial evidence standard described in 5 CFR 1201.4(p).
Section 752.102 Standard for Action and Penalty Determination
5 U.S.C. 7515 incorporates many of the procedural elements of 5
U.S.C. 7503, 7513 and 7543, to include the standards of action applied
to each type of adverse action. For supervisors not covered under
subchapter V of title 5, the proposed rule applies the efficiency of
the service standard. For supervisors who are members of the Senior
Executive Service, the proposed rule defines the standard of action as
misconduct, neglect of duty, malfeasance, or failure to accept a
directed reassignment, or to accompany a position in a transfer of
function.
5 U.S.C. 7515 enhances statutory protection for whistleblowers
through the creation of proposed mandatory penalties. Specifically, for
the first incident of a prohibited personnel action, an agency is
required to propose the penalty at a level no less than a 3-day
suspension. Further, the agency may propose an additional action,
including a reduction in grade or pay. For the second incident of a
prohibited personnel action, an agency is required to propose that the
supervisor be removed.
Section 752.103 Procedures
The proposed rule establishes the procedures to be utilized for
actions taken under this subpart. The procedures in the subpart are the
same as those described in 5 U.S.C. 7503, 7513 and 7543, with the
exception of provisions concerning advance notice and the reply period.
Agencies must implement the related procedures on taking action, which
have a shortened time period and require agencies to issue a final
decision on a proposed action against a supervisor after the end of the
14-day advance notice period. Under this subpart, supervisors against
whom an action is proposed are entitled to no more than 14 days to
answer after receipt of the proposal notice. At the conclusion of the
14-day reply period, the agency shall carry out the proposed action if
the supervisor fails to provide evidence or provides evidence that the
head of the agency deems insufficient. Notably, the proposed rule also
includes the requirement that, if the head of an
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agency is responsible for determining whether a supervisor has
committed a prohibited personnel action, that responsibility may not be
delegated.
Finally, the proposed rule at Sec. 752.103 (d) includes language
that, 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.
Section 752.104 Settlement Agreements
The proposed language in this section establishes the same
requirement that is detailed in the proposed rule changes at Sec.
432.108, Settlement agreements. Please see discussion in Sec. 432.108.
Subpart B--Regulatory Requirements for Suspension for 14 Days or Less
This subpart addresses the procedural requirements for suspensions
of 14 days or less for covered employees.
Section 752.201 Coverage
Pursuant to the creation of subpart A within the proposed rule,
Sec. 752.201(c) reflects an exclusion for actions taken under 5 U.S.C.
7515.
Section 752.202 Standard for Action and Penalty Determination
While the standard for action under this subpart remains unchanged,
the proposed rule makes clear that an agency is not required to use
progressive discipline under this subpart. Further, OPM has decided to
adopt formally by regulation in this section the standard applied by
MSPB in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981) to
removals, suspensions and demotions, including suspensions of fewer
than 15 days. Specifically, the proposed rule adopts the requirement to
propose and impose a penalty that is within the bounds of tolerable
reasonableness. This is a principle that is embedded deeply in Federal
civil-service law. Arbitrators are required to defer to an agency
decision, and may not mitigate a penalty unless it is beyond the bounds
of tolerable reasonableness. We now make it clear that this standard
applies not only to those actions taken under 5 U.S.C. 7513, but apply
as well to those taken under 5 U.S.C. 7503. Any collective-bargaining
proposal in conflict with this government-wide regulation will be
contrary to law and non-negotiable. There is no legal principle in the
Federal Government that requires agencies to impose the least penalty
to rehabilitate an employee. A proposed penalty is in the sole and
exclusive discretion of the proposing official, and the penalty
decision is in the sole and exclusive discretion of the deciding
official, subject to appellate or other review procedures prescribed in
law and cannot be the subject of collective bargaining.
The penalty for an instance of misconduct should be tailored to the
facts and circumstances of each case. Further, employees should be
treated equitably. Nevertheless, conduct that justifies discipline of
one employee at one time by a particular deciding official does not
necessarily justify the same or similar disciplinary decision for a
different employee at a different time. So agencies should consider
appropriate comparators when evaluating a potential disciplinary
action. The Court of Appeals for the Federal Circuit has held that an
agency need only provide ``proof that the proffered comparator was in
the same work unit, with the same supervisor, and was subjected to the
same standards governing discipline.'' Miskill v. Social Security
Administration, 863 F.3d 1379 (Fed. Cir. 2017). It should not tie the
hands of a different deciding official at a different time or in a
different context, or under different circumstances. We are proposing
adoption of the Miskill test. This reinforces the key principle that
each case stands on its own factual and contextual footing. Finally,
among other relevant factors, an agency should consider an employee's
disciplinary record and past work record, including all prior
misconduct, when taking an action under this subpart. These guidelines
reflect established principles, but stress management discretion to
promote efficient Government while protecting the interests of all
involved.
With respect to penalty determination, it is also noteworthy that
some agencies develop and use tables of penalties to assist supervisors
in identifying the level of discipline that may be appropriate to an
individual case. The creation and use of a table of penalties is not
required by statute, case law or OPM regulation, and OPM does not
provide written guidance on this topic. The applicable standard, ``to
promote the efficiency of the service,'' is broad and supple enough to
encompass all occurrences that may occasion an adverse action. Thus,
agencies have the ability to address misconduct appropriately without a
table of penalties, and with sufficient flexibility to determine the
appropriate penalty for each instance of misconduct. Tables of
penalties may create significant drawbacks to the viability of a
particular action and to effective management. Specifically, tables of
penalties, by creating a range of penalties for an offense, limit the
scope of management's discretion to tailor the penalty to the facts and
circumstances of a particular case by excluding certain penalties along
the continuum. Agencies that specify a range of penalties should expect
that adjudicators may be, and have been, impervious to agency pleas
that someone who holds a particular position may not be restored to the
workplace. Although the law permits the agency to impose the maximum
reasonable penalty, some adjudicators have responded that the existence
of an agency promulgated range of penalties belies this claim. Although
such adjudications are contrary to and undermine settled legal
principles, they resist further administrative or judicial review of
penalty decisions.
Further, OPM encourages managers to think carefully and coherently
about when and how to impose discipline in a way that fosters an
effective and efficient workplace, in the best interests of all
employees and the agency's mission. By contrast, tables of penalties
can foster a ``by-the-numbers'' approach in which managers may hide
behind a chart imposed from above rather than take direct
responsibility for their workplace.
A further risk of having an agency table of penalties is that a
supervisor may apply it so inflexibly as to impair consideration of
other factors relevant to an individual case. This type of rigid
application of a table of penalties runs counter to the overall
directive of Douglas to consider all of the criteria that may apply to
an individual set of factual circumstances. A table of penalties does
not, and should not, replace supervisory judgment. It is vital that
supervisors use independent judgment, take appropriate steps in
gathering facts, and conduct a thorough analysis to decide the
appropriate penalty. However, once an agency establishes a table of
penalties, it will be held accountable for striking a balance between
ensuring that supervisors use their best judgment in applying the full
spectrum of Douglas factors, with accountability for ensuring a level
of consistency with the range of penalties described for a particular
charge within the agency's table. For that reason, the proposed
amendments to this section emphasize that an agency is not required to
use progressive discipline and that the penalty for an instance of
misconduct should be tailored to the facts and the circumstances, in
lieu of the type of formulaic and rigid penalty determination that
frequently results from agency publication of tables of penalties.
[[Page 48799]]
Finally, there is a significant body of decisional law concerning
elucidating required manners of labelling and charging misconduct with
attendant proof of an employee's state of mind. See for example,
Nazelrod v. Department of Justice, 43 F.3d 663 (Fed. Cir. 1994). This
type of common-law pleading is unusual in American law and is
burdensome on agencies, spawning reams of costly training material and
charging guides. It also slows the charging and decision making
process. A table of penalties can exacerbate these problems further by
implying that if an employee acts in a way that does not appear in a
table of penalties' list of ``offenses,'' the behavior is beyond the
agency's capacity to charge and penalize.
In short, there is no substitute for managers thinking
independently and carefully about each incident as it arises, and, as
appropriate, proposing or deciding the best penalty to fit the
circumstances. Progressive discipline and table of penalties are
inimical to good management principles. Finally, the proposed rule at
Sec. 752.202(f) adds language stating that a suspension should not be
a substitute for removal in circumstances in which removal would be
appropriate. Agencies should not require that an employee have
previously been suspended or demoted before a proposing official may
propose removal, except as may be appropriate under applicable facts.
Section 752.203 Procedures
Section 752.203(b) discusses the requirements for a proposal notice
issued under this subpart. This section provides that the notice of
proposed action must state the specific reason(s) for the proposed
action, and inform the employee of his or her right to review the
material which is relied on to support the reasons for action given in
the notice. The proposed rule includes language that the notice must
also provide detailed information with respect to any right to appeal
the action pursuant to Public Law 115-91 section 1097(b)(2)(A);
specifically, 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. This additional
language implements the requirement within Public Law 115-91 section
1097(b)(2)(A), which mandates that information on whistleblower appeal
rights be included in any notice provided to an employee under 5 U.S.C.
7503(b)(1), 7513(b)(1), or 7543(b)(1).
Finally, the proposed language in Sec. 752.203(h) establishes the
same requirement that is detailed in the proposed rule changes at Sec.
432.108, Settlement agreements. See discussion in Sec. 432.108.
Subpart D--Regulatory Requirements for Removal, Suspension for More
Than 14 Days, Reduction in Grade or Pay, or Furlough for 30 Days or
Less
This subpart addresses the procedural requirements for removals,
suspensions for more than 14 days, including indefinite suspensions,
reductions in grade, reductions in pay, and furloughs of 30 days or
less for covered employees.
Section 752.401 Coverage
Pursuant to the creation of subpart A within the proposed rule,
Sec. 752.401(b)(14) reflects an exclusion for actions taken under 5
U.S.C. 7515.
Section 752.401(c) identifies employees covered by this subpart.
The proposed rule at Sec. 752.401(c)(2) updates coverage to include an
employee in the competitive service who is not serving a probationary
or trial period under an initial appointment or, except as provided in
section 1599e of title 10, United States Code, who has completed 1 year
of current continuous service under other than a temporary appointment
limited to 1 year or less. This language has been updated to align with
5 U.S.C. 7511(a)(1)(A)(ii).
Section 752.402 Definitions
The proposed rule includes a definition for the term ``business
day.'' This addition is necessary to implement the 15 business day
decision period described in E.O. 13839.
Section 752.403 Standard for Action and Penalty Determination
As with the rule changes proposed for Sec. 752.202, the standard
for action under this subpart remains unchanged and incorporates a
penalty determination based on the principles of E.O. 13839. Please see
discussion in Sec. 752.202. In addition, the proposed rule at Sec.
752.403 adds paragraph (f) which states that a suspension or a
reduction in pay or grade should not be a substitute for removal in
circumstances in which removal would be appropriate. Agencies should
not require that an employee have previously been suspended or reduced
in pay or grade before a proposing official may propose removal, except
as may be appropriate under applicable facts.
Section 752.404 Procedures
Section 752.404(b) discusses the requirements for a notice of
proposed action issued under this subpart. Specifically, Sec.
752.404(b)(1) provides that, to the extent an agency, in its sole and
exclusive discretion deems practicable, agencies should limit written
notice of adverse actions taken under this subpart to the 30 days
prescribed in 5 U.S.C. 7513(b)(1). Any notice period greater than 30
days must be reported to OPM. The proposed rule also includes the
requirement that the notice must provide detailed information with
respect to any right to appeal the action pursuant to Public Law 115-91
section 1097(b)(2)(A); specifically, 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. This additional language implements the requirement in Public Law
115-91 section 1097(b)(2)(A), which mandates that information on
whistleblower appeal rights be included in any notice provided to an
employee under 5 U.S.C. 7503(b)(1), 7513(b)(1), or 7543(b)(1).
The proposed rule at Sec. 752.404(b)(3)(iv) also incorporates by
reference the provisions of 5 U.S.C. 6329b, the Administrative Leave
Act of 2016, related to placing an employee in a paid non-duty status
during the advance notice period. Until OPM has published the final
regulation for 5 U.S.C. 6329b, and after conclusion of the agency
implementation period, in those rare circumstances where the agency
determines that the employee's continued presence in the workplace
during the notice period may pose a threat to the employee or others,
result in loss of or damage to Government property, or otherwise
jeopardize legitimate Government interests, an agency will continue to
have as an alternative the ability to place an employee in a paid,
nonduty status for such time to effect the action. Thereafter, an
agency may use the provisions of 5 U.S.C. 6329b as applicable.
Finally, the proposed rule at Sec. 752.404(g) discusses the
requirements for an agency decision issued under this subpart.
Specifically, the proposed rule at Sec. 752.404(g)(3) includes new
language that, 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 to
reflect a key principle of E.O. 13839. These proposed changes
facilitate timely resolution of adverse actions while preserving
employee rights.
[[Page 48800]]
Section 752.407 Settlement Agreements
The proposed language in this section establishes the same
requirement that is detailed in the proposed rule changes at Sec.
432.108, Settlement Agreements. See discussion regarding Sec. 432.108
above.
Subpart F--Regulatory Requirements for Taking Adverse Actions Under the
Senior Executive Service
This subpart addresses the procedural requirements for suspensions
for more than 14 days and removals from the civil service as set forth
in 5 U.S.C. 7542.
Section 752.601 Coverage
Pursuant to the creation of subpart A within the proposed rule,
Sec. 752.601(b)(2) reflects an exclusion for actions taken under 5
U.S.C. 7515.
Section 752.602 Definitions
The proposed rule includes a definition for the term ``business
day.'' This addition is necessary to implement the 15 business day
decision period described in E.O. 13839.
Section 752.603 Standard for Action and Penalty Determination
As with the rule changes proposed for Sec. Sec. 752.202 and
752.403, the standard for action under this subpart remains unchanged
and incorporates a penalty determination based on the principles of
E.O. 13839. Please see discussion in Sec. 752.202. In addition, the
proposed rule at Sec. 752.603 adds paragraph (f) which states that a
suspension or a reduction in pay or grade should not be a substitute
for removal in circumstances in which removal would be appropriate.
Agencies should not require that an employee have previously been
suspended or reduced in pay or grade before a proposing official may
propose removal, except as may be appropriate under applicable facts.
Section 752.604 Procedures
Section 752.604(b) discusses the requirements for a notice of
proposed action issued under this subpart. We have revised the language
in this subpart to be consistent with the advance notice period for
general schedule employees. Specifically, Sec. 752.604(b)(1) provides
that, to the extent an agency, in its sole and exclusive discretion
deems practicable, agencies should limit written notice of adverse
actions taken under this subpart to the 30 days prescribed in 5 U.S.C.
7543(b)(1). Any notice period greater than 30 days must be reported to
OPM.
The proposed rule also includes additional language that the notice
must provide detailed information with respect to any right to appeal
the action pursuant to Public Law 115-91 section 1097(b)(2)(A);
specifically, 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. This additional
language implements the requirement within Public Law 115-91 section
1097(b)(2)(A), which mandates that information on whistleblower appeal
rights be included in any notice provided to an employee under 5 U.S.C.
7503(b)(1), 7513(b)(1), or 7543(b)(1).
The proposed rule at Sec. 752.604(b)(2)(iv) also incorporates by
reference the provisions of 5 U.S.C. 6329b, The Administrative Leave
Act of 2016, related to placing an employee in a paid non-duty status
during the advance notice period. However, as noted above, until OPM
has published the final regulation for 5 U.S.C. 6329b, and after
conclusion of the agency implementation period, in those rare
circumstances where the agency determines that the employee's continued
presence in the workplace during the notice period may pose a threat to
the employee or others, result in loss of or damage to Government
property, or otherwise jeopardize legitimate Government interests, an
agency will continue to have as an alternative the ability to place an
employee in a paid, nonduty status for such time to effect the action.
Thereafter, an agency may use the provisions of 5 U.S.C. 6329b as
applicable.
Finally, the proposed rule at Sec. 752.604(g) discusses the
requirements for an agency decision issued under this subpart.
Specifically, the proposed rule at Sec. 752.604(g)(3) includes new
language that, 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 to
reflect one of the key principles of E.O. 13839.
Section 752.607 Settlement Agreements
The proposed language in this section establishes the same
requirement that is detailed in the proposed rule changes at Sec. Sec.
432.108, 752.203 and 752.407. Please see discussion regarding Sec.
432.108 above.
Regulatory Flexibility Act
I certify that this regulation will not have a significant impact
on a substantial number of small entities because it applies only to
Federal agencies and employees.
E.O. 13563 and E.O. 12866, Regulatory Review
Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has been designated a ``significant regulatory
action,'' under Executive Order 12866.
Executive Order 13771, Reducing Regulation and Controlling Regulatory
Costs
This proposed rule is not expected to be subject to the
requirements of E.O. 13771 (82 FR 9339, February 3, 2017) because this
proposed rule is expected to be related to agency organization,
management, or personnel.
E.O. 13132, Federalism
This regulation will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this rule does not have sufficient
federalism implications to warrant preparation of a Federalism
Assessment.
E.O. 12988, Civil Justice Reform
This regulation meets the applicable standard set forth in section
3(a) and (b)(2) of Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local or
tribal governments of more than $100 million annually. Thus, no written
assessment of unfunded mandates is required.
Congressional Review Act
This action pertains to agency management, personnel and
organization and does not substantially affect the rights or
obligations of non-agency parties and, accordingly, is not a `rule' as
that term is used by the Congressional Review Act (Subtitle E of the
Small Business Regulatory
[[Page 48801]]
Enforcement Fairness Act of 1996 (SBREFA)). Therefore, the reporting
requirement of 5 U.S.C. 801 does not apply.
Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35)
This regulatory action will not impose any additional reporting or
recordkeeping requirements under the Paperwork Reduction Act.
List of Subjects in Title 5 CFR Parts 351, 430, 432 and 752
5 CFR Part 315
Government employees.
5 CFR Part 432
Government employees.
5 CFR Part 752
Government employees.
Office of Personnel Management.
Stephen Hickman,
Federal Register Liaison.
Accordingly, for the reasons stated in the preamble, OPM proposes
to amend 5 CFR parts 315, 432 and 752 as follows:
PART 315--CAREER AND CAREER-CONDITIONAL EMPLOYMENT
0
1. Revise the authority citation for part 315 to read as follows:
Authority: 5 U.S.C. 1302, 2301, 2302, 3301, and 3302; E.O.
10577, 3 CFR, 1954-1958 Comp. p. 218, unless otherwise noted; E.O.
13162, and E.O. 13839. Secs. 315.601 and 315.609 also issued under
22 U.S.C. 3651 and 3652. Secs. 315.602 and 315.604 also issued under
5 U.S.C. 1104. Sec. 315.603 also issued under 5 U.S.C. 8151. Sec.
315.605 also issued under E.O. 12034, 3 CFR, 1978 Comp. p.111. Sec.
315.606 also issued under E.O. 11219, 3 CFR, 1964-1965 Comp. p. 303.
Sec. 315.607 also issued under 22 U.S.C. 2506. Sec. 315.608 also
issued under E.O. 12721, 3 CFR, 1990 Comp. p. 293. Sec. 315.610 also
issued under 5 U.S.C. 3304(c). Sec. 315.611 also issued under 5
U.S.C. 3304(f). Sec. 315.612 also issued under E.O. 13473. Sec.
315.708 also issued under E.O.13318, 3 CFR, 2004 Comp. p. 265. Sec.
315.710 also issued under E.O. 12596, 3 CFR, 1987 Comp. p. 229.
Subpart I also issued under 5 U.S. C. 3321, E.O. 12107, 3 CFR, 1978
Comp. p. 264.
Subpart H--Probation on Initial Appointment to a Competitive
Position
0
2. Revise Sec. 315.803(a) to read as follows:
Sec. 315.803 Agency action during probationary period (general).
* * * * *
(a) The agency shall utilize the probationary period as fully as
possible to determine the fitness of the employee and shall terminate
his or her services during this period if the employee fails to
demonstrate fully his or her qualifications for continued employment.
The agency must notify its supervisors that an employee's probationary
period is ending at least three months or 90 days prior to the
expiration of an employee's probationary period, and then again one
month or 30 days prior to the expiration of the probationary period,
and advise a supervisor to make an affirmative decision regarding an
employee's fitness for continued employment or otherwise take
appropriate action.
* * * * *
PART 432--PERFORMANCE BASED REDUCTION IN GRADE AND REMOVAL ACTIONS
0
3. Revise the authority citation for part 432 to read as follows:
Authority: 5 U.S.C. 4303, 4305.
* * * * *
0
4. Amend Sec. 432.103 by revising paragraph (g) to read as follows:
* * * * *
(g) Similar positions mean positions in which the duties performed
are similar in nature and character and require substantially the same
or similar qualifications, so that the incumbents could be interchanged
without significant training or undue interruption to the work.
* * * * *
0
5. Revise Sec. 432.104 to read as follows:
Sec. 432.104 Addressing unacceptable performance.
At any time during the performance appraisal cycle that an
employee's performance is determined to be unacceptable in one or more
critical elements, the agency shall notify the employee of the critical
element(s) for which performance is unacceptable and inform the
employee of the performance requirement(s) or standard(s) that must be
attained in order to demonstrate acceptable performance in his or her
position. The agency should also inform the employee that unless his or
her performance in the critical element(s) improves to and is sustained
at an acceptable level, the employee may be reduced in grade or
removed. For each critical element in which the employee's performance
is unacceptable, the agency shall afford the employee a reasonable
opportunity to demonstrate acceptable performance, commensurate with
the duties and responsibilities of the employee's position. Other than
the requirement described in 5 U.S.C. 4302(c)(5), there is no
requirement regarding any assistance to be offered or provided by the
agency during the opportunity period. The nature of such assistance is
not determinative of a reduction in grade or pay, or a removal. No
additional performance assistance period or similar informal period
shall be provided prior to or in addition to the opportunity period
provided under this section.
* * * * *
0
6. Amend Sec. 432.105 by revising paragraphs (a)(1), (a)(4)(i)(B)(3)
through (4) and paragraph (a)(4)(i)(C) to read as follows:
Sec. 432.105 Proposing and taking action based on unacceptable
performance.
(a)* * *
(1) Once an employee has been afforded a reasonable opportunity to
demonstrate acceptable performance pursuant to Sec. 432.104, an agency
may propose a reduction-in-grade or removal action if the employee's
performance during or following the opportunity to demonstrate
acceptable performance is unacceptable in one or more of the critical
elements for which the employee was afforded an opportunity to
demonstrate acceptable performance. For the purposes of this section,
the opportunity to demonstrate acceptable performance includes measures
taken during the opportunity period as well as any other measures taken
during the appraisal period for the purpose of assisting employees
pursuant to 5 U.S.C. 4302(c)(5). Agencies may satisfy the requirement
to provide assistance before or during the opportunity period.
* * * * *
(4)* * *
(i)* * *
(B)* * *
(3) To consider the employee's answer if an extension to the period
for an answer has been granted (e.g., because of the employee's illness
or incapacitation);
(4) To consider reasonable accommodation of a disability;
* * * * *
(C) If an agency believes that an extension of the advance notice
period is necessary for another reason, it may request prior approval
for such extension from the Manager, Employee Accountability,
Accountability and Workforce Relations, Employee Services, Office of
Personnel Management, 1900 E Street NW, Washington, DC 20415.
* * * * *
0
7. Revise Sec. 432.106(b)(1) to read as follows:
Sec. 432.106 Appeal and grievance rights.
* * * * *
(b) Grievance rights. (1) A bargaining unit employee covered under
[[Page 48802]]
Sec. 432.102(e) who has been removed or reduced in grade under this
part may file a grievance under an applicable negotiated grievance
procedure if the removal or reduction in grade action falls within its
coverage (i.e., is not excluded by the parties to the collective
bargaining agreement) and the employee is:
* * * * *
0
8. Revise Sec. 432.107(b) to read as follows:
Sec. 432.107 Agency records.
* * * * *
(b) When the action is not effected. As provided at 5 U.S.C.
4303(d), if, because of performance improvement by the employee during
the notice period, the employee is not reduced in grade or removed, and
the employee's performance continues to be acceptable for one year from
the date of the advanced written notice provided in accordance with
Sec. 432.105(a)(4)(i), any entry or other notation of the unacceptable
performance for which the action was proposed shall be removed from any
agency record relating to the employee.
* * * * *
0
9. Add Sec. 432.108 to read as follows:
Sec. 432.108 Settlement agreements.
(a) Agreements to alter personnel records. An agency shall not
agree to erase, remove, alter, or withhold from another agency any
information about a civilian employee's performance or conduct in that
employee's official personnel records, including an employee's Official
Personnel Folder and Employee Performance File, as part of, or as a
condition to, resolving a formal or informal complaint by the employee
or settling an administrative challenge to an adverse action.
(b) Corrective action based on discovery of agency error. The
requirements described in paragraph (a) should not be construed to
prevent agencies from taking corrective action should it come to light,
including during or after the issuance of an adverse personnel action,
that the information contained in a personnel record is not accurate or
records an action taken by the agency illegally or in error. In such
cases, an agency would have the authority, unilaterally or by
agreement, to modify an employee's personnel record(s) to remove
inaccurate information or the record of an erroneous or illegal action.
An agency may take such action even if an appeal/complaint has been
filed relating to the information that the agency determines to be
inaccurate or to reflect an action taken illegally or in error. In all
events, however, 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. And an agency should
report any agreements relating to the removal of such information as
part of its annual report to the OPM Director required by Section 6 of
E.O. 13839. Documents subject to withdrawal or modification could
include, for example, an SF-50 issuing a disciplinary or performance-
based action, a decision memorandum accompanying such action, or an
employee performance appraisal.
(c) Corrective action based on discovery of material information
prior to final agency action. When persuasive evidence comes to light
prior to the issuance of a final agency decision on an adverse
personnel action casting doubt on the validity of the action or the
ability of the agency to sustain the action in litigation, an agency
may decide to cancel or vacate the proposed action. Additional
information may come to light at any stage of the process prior to
final agency decision including during an employee response period. To
the extent an employee's personnel file or other agency records contain
a proposed action that is subsequently cancelled, an agency would have
the authority to remove that action from the employee's personnel file
or other agency records. The requirements described in paragraph (a)
would, however, continue to apply to any accurate information about the
employee's conduct leading up to that proposed action or separation
from Federal service.
PART 752--ADVERSE ACTIONS
Subpart A--Discipline of Supervisors Based on Retaliation Against
Whistleblowers
Subpart B--Regulatory Requirements for Suspension for 14 Days or Less
Sec.
752.201 Coverage.
752.202 Standard for action and penalty determination.
752.203 Procedures.
Subpart C [Reserved]
Subpart D--Regulatory Requirements for Removal, Suspension for More
Than 14 Days, Reduction in Grade or Pay, or Furlough for 30 Days or
Less
Sec.
752.401 Coverage.
752.402 Definitions.
752.403 Standard for action and penalty determination.
752.404 Procedures.
752.405 Appeal and grievance rights.
752.406 Agency records.
752.407 Settlement agreements.
Subpart E [Reserved]
Subpart F--Regulatory Requirements for Taking Adverse Actions Under the
Senior Executive Service
Sec.
752.601 Coverage.
752.602 Definitions.
752.603 Standard for action and penalty determination.
752.604 Procedures.
752.605 Appeal rights.
752.606 Agency records.
752.607 Settlement agreements.
0
10. Revise the authority citation for part 752 to read as follows:
Authority: 5 U.S.C. 7504, 7514, and 7543, Pub. L. 115-91.
* * * * *
0
11. Add subpart A to part 752 to read as follows:
Subpart A --Discipline of Supervisors Based on Retaliation Against
Whistleblowers
Sec.
752.101 Coverage.
752.102 Standard for action and penalty determination.
752.103 Procedures.
752.104 Settlement agreements.
Sec. 752.101 Coverage.
(a) Adverse actions covered. This subpart applies to actions taken
under 5 U.S.C. 7515.
(b) Definitions. In this subpart--
Agency--
(1) Has the meaning given the term in 5 U.S.C. 2302(a)(2)(C),
without regard to whether any other provision of this chapter is
applicable to the entity; and
(2) Does not include any entity that is an element of the
intelligence community, as defined in section 3 of the National
Security Act of 1947 (50 U.S.C. 3003).
Business day means any day other than a Saturday, Sunday, or legal
public holiday under 5 U.S.C. 6103(a).
Day means a calendar day.
Grade means a level of classification under a position
classification system.
Insufficient evidence means evidence that fails to meet the
substantial evidence standard described in 5 CFR 1201.4(p).
Pay means the rate of basic pay fixed by law or administrative
action for the position held by the employee, that is, the rate of pay
before any deductions and exclusive of additional pay of any kind.
Prohibited personnel action means taking or failing to take an
action in violation of paragraph (8), (9), or (14) of 5 U.S.C. 2302(b)
against an employee of an agency.
[[Page 48803]]
Supervisor means an employee who would be a supervisor, as defined
in 5 U.S.C. 7103(a)(10), if the entity employing the employee was an
agency.
Suspension means the placing of an employee, for disciplinary
reasons, in a temporary status without duties and pay.
Sec. 752.102 Standard for action and penalty determination.
(a) Except for actions taken against supervisors covered under
subchapter V of title 5, an agency may take an action under this
subpart for such cause as will promote the efficiency of the service as
described in 5 U.S.C. 7503(a) and 7513(a). For actions taken under this
subpart against supervisors covered under subchapter V of title 5, an
agency may take an action based on the standard described in 5 U.S.C.
7543(a).
(b) Subject to 5 U.S.C. 1214(f), if the head of the agency in which
a supervisor is employed, an administrative law judge, the Merit
Systems Protection Board, the Special Counsel, a judge of the United
States, or the Inspector General of the agency in which a supervisor is
employed has determined that the supervisor committed a prohibited
personnel action, the head of the agency in which the supervisor is
employed, consistent with the procedures required under this subpart--
(1) For the first prohibited personnel action committed by the
supervisor--
(i) Shall propose suspending the supervisor for a period that is
not less than 3 days; and
(ii) May propose an additional action determined appropriate by the
head of the agency, including a reduction in grade or pay; and
(2) For the second prohibited personnel action committed by the
supervisor, shall propose removing the supervisor.
Sec. 752.103 Procedures.
(a) Non-delegation. If the head of an agency is responsible for
determining whether a supervisor has committed a prohibited personnel
action for purposes of Sec. 752.102(b), the head of the agency may not
delegate that responsibility.
(b) Scope. An action carried out under this subpart--
(1) Except as provided in paragraph (b)(2) of this section, shall
be subject to the same requirements and procedures, including those
with respect to an appeal, as an action under 5 U.S.C. 7503, 7513, or
7543; and
(2) Shall not be subject to--
(i) Paragraphs (1) and (2) of 5 U.S.C. 7503(b);
(ii) Paragraphs (1) and (2) of subsection (b) and subsection (c) of
5 U.S.C. 7513; and
(iii) Paragraphs (1) and (2) of subsection (b) and subsection (c)
of 5 U.S.C. 7543.
(c) Notice. A supervisor against whom an action is proposed to be
taken under this subpart is entitled to written notice that--
(1) States the specific reasons for the proposed action;
(2) Informs the supervisor about the right of the supervisor to
review the material that is relied on to support the reasons given in
the notice for the proposed action;-- and
(3) Provides notice of any right to appeal the action pursuant to
section 1097(b)(2)(A) of Public Law 115-91, the forums 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.
(d) Answer and evidence. (1) A supervisor who receives notice under
paragraph (c) of this section may, not later than 14 days after the
date on which the supervisor receives the notice, submit an answer and
furnish evidence in support of that answer.
(2) If, after the end of the 14-day period described in paragraph
(d)(1) of this section, a supervisor does not furnish any evidence as
described in that clause, or if the head of the agency in which the
supervisor is employed determines that the evidence furnished by the
supervisor is insufficient, the head of the agency shall carry out the
action proposed under Sec. 752.102(b), as applicable.
(3) 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 under paragraph
(d)(1) of this section.
Sec. 752.104 Settlement agreements.
(a) Agreements to alter official personnel records. An agency shall
not agree to erase, remove, alter, or withhold from another agency any
information about a civilian employee's performance or conduct in that
employee's official personnel records, including an employee's Official
Personnel Folder and Employee Performance File, as part of, or as a
condition to, resolving a formal or informal complaint by the employee
or settling an administrative challenge to an adverse action.
(b) Corrective action based on discovery of agency error. The
requirements described in paragraph (a) should not be construed to
prevent agencies from taking corrective action should it come to light,
including during or after the issuance of an adverse personnel action,
that the information contained in a personnel record is not accurate or
records an action taken by the agency illegally or in error. In such
cases, an agency would have the authority, unilaterally or by
agreement, to modify an employee's personnel record(s) to remove
inaccurate information or the record of an erroneous or illegal action.
An agency may take such action even if an appeal/complaint has been
filed relating to the information that the agency determines to be
inaccurate or to reflect an action taken illegally or in error. In all
events, however, 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. And an agency should
report any agreements relating to the removal of such information as
part of its annual report to the OPM Director required by Section 6 of
E.O. 13839. Documents subject to withdrawal or modification could
include, for example, an SF-50 issuing a disciplinary or performance-
based action, a decision memorandum accompanying such action, or an
employee performance appraisal.
(c) Corrective action based on discovery of material information
prior to final agency action. When persuasive evidence comes to light
prior to the issuance of a final agency decision on an adverse
personnel action casting doubt on the validity of the action or the
ability of the agency to sustain the action in litigation, an agency
may decide to cancel or vacate the proposed action. Additional
information may come to light at any stage of the process prior to
final agency decision including during an employee response period. To
the extent an employee's personnel file or other agency records contain
a proposed action that is subsequently cancelled, an agency would have
the authority to remove that action from the employee's personnel file
or other agency records. The requirements described in paragraph (a)
would, however, continue to apply to any accurate information about the
employee's conduct leading up to that proposed action or separation
from Federal service.
0
12. In Sec. 752.201, revise paragraphs (c)(4) and (5) and add
paragraph (c)(6) to read as follows:
Sec. 752.201 Coverage.
* * * * *
(c) * * *
[[Page 48804]]
(4) Of a re-employed annuitant;
(5) Of a National Guard Technician; or
(6) Taken under 5 U.S.C. 7515.
* * * * *
0
13. In Sec. 752.202, revise the section heading and add paragraphs
(copyright) through (f) to read as follows:
Sec. 752.202 Standard for action and penalty determination.
* * * * *
(c) An agency is not required to use progressive discipline under
this subpart. The penalty for an instance of misconduct should be
tailored to the facts and circumstances. In making a determination
regarding the appropriate penalty for an instance of misconduct, an
agency shall adhere to the standard of proposing and imposing a penalty
that is within the bounds of tolerable reasonableness. Within the
agency, a proposed penalty is in the sole and exclusive discretion of a
proposing official, and a penalty decision is in the sole and exclusive
discretion of the deciding official. Penalty decisions are subject to
appellate or other review procedures prescribed in law.
(d) Employees should be treated equitably. Conduct that justifies
discipline of one employee at one time does not necessarily justify
similar discipline of a different employee at a different time. An
agency should consider appropriate comparators as the agency evaluates
a potential disciplinary action. Appropriate comparators are
individuals in the same work unit, with the same supervisor who were
subjected to the same standards governing discipline.
(e) Among other relevant factors, agencies should consider an
employee's disciplinary record and past work record, including all
prior misconduct, when taking an action under this subpart.
(f) A suspension should not be a substitute for removal in
circumstances in which removal would be appropriate. Agencies should
not require that an employee have previously been suspended or demoted
before a proposing official may propose removal, except as may be
appropriate under applicable facts.
* * * * *
0
14. Amend Sec. 752.203 by revising paragraph (b) and by adding
paragraph (h) to read as follows:
Sec. 752.203 Procedures.
* * * * *
(b) Notice of proposed action. The notice must state the specific
reason(s) for the proposed action, and inform the employee of his or
her right to review the material which is relied on to support the
reasons for action given in the notice. The notice must further include
detailed information with respect to any right to appeal the action
pursuant to section 1097(b)(2)(A) of Public Law 115-91, 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.
* * * * *
(h) Settlement agreements. (1) An agency shall not agree to erase,
remove, alter, or withhold from another agency any information about a
civilian employee's performance or conduct in that employee's official
personnel records, including an employee's Official Personnel Folder
and Employee Performance File, as part of, or as a condition to,
resolving a formal or informal complaint by the employee or settling an
administrative challenge to an adverse action.
(2) The requirements described in paragraph (1) should not be
construed to prevent agencies from taking corrective action should it
come to light, including during or after the issuance of an adverse
personnel action that the information contained in a personnel record
is not accurate or records an action taken by the agency illegally or
in error. In such cases, an agency would have the authority,
unilaterally or by agreement, to modify an employee's personnel
record(s) to remove inaccurate information or the record of an
erroneous or illegal action. An agency may take such action even if an
appeal/complaint has been filed relating to the information that the
agency determines to be inaccurate or to reflect an action taken
illegally or in error. In all events, however, 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.
And an agency should report any agreements relating to the removal of
such information as part of its annual report to the OPM Director
required by Section 6 of E.O. 13839. Documents subject to withdrawal or
modification could include, for example, an SF-50 issuing a
disciplinary or performance-based action, a decision memorandum
accompanying such action, or an employee performance appraisal.
(3) Corrective action based on discovery of material information
prior to final agency action. When persuasive evidence comes to light
prior to the issuance of a final agency decision on an adverse
personnel action casting doubt on the validity of the action or the
ability of the agency to sustain the action in litigation, an agency
may decide to cancel or vacate the proposed action. Additional
information may come to light at any stage of the process prior to
final agency decision including during an employee response period. To
the extent an employee's personnel file or other agency records contain
a proposed action that is subsequently cancelled, an agency would have
the authority to remove that action from the employee's personnel file
or other agency records. The requirements described in paragraph (h)(1)
of this section would, however, continue to apply to any accurate
information about the employee's conduct leading up to that proposed
action or separation from Federal service.
0
15. In Sec. 752.401, revise paragraphs (b)(14) and (15), add
paragraphs (b)(16) and revise paragraph (c)(2) to read as follows:
Sec. 752.401 Coverage.
* * * * *
(b) * * *
(14) Placement of an employee serving on an intermittent or
seasonal basis in a temporary nonduty, nonpay status in accordance with
conditions established at the time of appointment;
(15) Reduction of an employee's rate of basic pay from a rate that
is contrary to law or regulation, including a reduction necessary to
comply with the amendments made by Public Law 108-411, regarding pay-
setting under the General Schedule and Federal Wage System and
regulations implementing those amendments; or
(16) An action taken under 5 U.S.C. 7515.
(c) * * *
(2) An employee in the competitive service--
(i) Who is not serving a probationary or trial period under an
initial appointment; or
(ii) Except as provided in section 1599e of title 10, United States
Code, who has completed one year of current continuous service under
other than a temporary appointment limited to one year or less;
* * * * *
0
16. In Sec. 752.402, add the definition for ``Business day'' in
alphabetical order to read as follows:
Sec. 752.402 Definitions.
* * * * *
Business day means any day other than a Saturday, Sunday, or legal
public holiday under 5 U.S.C. 6103(a).
* * * * *
[[Page 48805]]
0
17. In Sec. 752.403, revise the section heading and add paragraphs (c)
through (f) to read as follows:
Sec. 752.403 Standard for action and penalty determination.
* * * * *
(c) An agency is not required to use progressive discipline under
this subpart. The penalty for an instance of misconduct should be
tailored to the facts and circumstances. In making a determination
regarding the appropriate penalty for an instance of misconduct, an
agency shall adhere to the standard of proposing and imposing a penalty
that is within the bounds of tolerable reasonableness. Within the
agency, a proposed penalty is in the sole and exclusive discretion of a
proposing official, and a penalty decision is in the sole and exclusive
discretion of the deciding official. Penalty decisions are subject to
appellate or other review procedures prescribed in law.
(d) Employees should be treated equitably in that conduct that
justifies discipline of one employee at one time does not necessarily
justify similar discipline of a different employee at a different time.
An agency should consider appropriate comparators as the agency
evaluates a potential disciplinary action. Appropriate comparators are
individuals in the same work unit, with the same supervisor who were
subjected to the same standards governing discipline.
(e) Among other relevant factors, agencies should consider an
employee's disciplinary record and past work record, including all
prior misconduct, when taking an action under this subpart.
(f) A suspension or a reduction in grade or pay should not be a
substitute for removal in circumstances in which removal would be
appropriate. Agencies should not require that an employee have
previously been suspended or reduced in pay or grade before a proposing
official may propose removal, except as may be appropriate under
applicable facts.
0
18. Amend Sec. 752.404 by revising paragraphs (b)(1) and (b)(3)(iv),
and adding paragraph (g)(3) to read as follows:
Sec. 752.404 Procedures.
* * * * *
(b) * * *
(1) An employee against whom an action is proposed is entitled to
at least 30 days' advance written notice unless there is an exception
pursuant to paragraph (d) of this section. However, to the extent an
agency in its sole and exclusive discretion deems practicable, agencies
should limit a written notice of an adverse action to the 30 days
prescribed in section 7513(b)(1) of title 5, United States Code.
Advance notices of greater than 30 days must be reported to the Office
of Personnel Management. The notice must state the specific reason(s)
for the proposed action, and inform the employee of his or her right to
review the material which is relied on to support the reasons for
action given in the notice. The notice must further include detailed
information with respect to any right to appeal the action pursuant to
section 1097(b)(2)(A) of Public Law 115-91, the forums 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.
* * * * *
(3) * * *
(iv) Placing the employee in a paid, nonduty status for such time
as is necessary to effect the action. After publication of regulations
for 5 U.S.C. 6329b, and the subsequent agency implementation period in
accordance with 5 U.S.C. 6329b, an agency may place the employee in a
notice leave status when applicable.
* * * * *
(g) * * *
(3) 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 under paragraph (c)
of this section.
* * * * *
0
19. Add Sec. 752.407 to to read as follows:
Sec. 752.407 Settlement agreements.
(a) Agreements to alter official personnel records. An agency shall
not agree to erase, remove, alter, or withhold from another agency any
information about a civilian employee's performance or conduct in that
employee's official personnel records, including an employee's Official
Personnel Folder and Employee Performance File, as part of, or as a
condition to, resolving a formal or informal complaint by the employee
or settling an administrative challenge to an adverse action.
(b) Corrective action based on discovery of agency error. The
requirements described in paragraph (a) of this section should not be
construed to prevent agencies from taking corrective action, should it
come to light, including during or after the issuance of an adverse
personnel action that the information contained in a personnel record
is not accurate or records an action taken by the agency illegally or
in error. In such cases, an agency would have the authority,
unilaterally or by agreement, to modify an employee's personnel
record(s) to remove inaccurate information or the record of an
erroneous or illegal action. An agency may take such action even if an
appeal/complaint has been filed relating to the information that the
agency determines to be inaccurate or to reflect an action taken
illegally or in error. In all events, however, 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.
And an agency should report any agreements relating to the removal of
such information as part of its annual report to the OPM Director
required by Section 6 of E.O. 13839. Documents subject to withdrawal or
modification could include, for example, an SF-50 issuing a
disciplinary or performance-based action, a decision memorandum
accompanying such action, or an employee performance appraisal.
(c) Corrective action based on discovery of material information
prior to final agency action. When persuasive evidence comes to light
prior to the issuance of a final agency decision on an adverse
personnel action casting doubt on the validity of the action or the
ability of the agency to sustain the action in litigation, an agency
may decide to cancel or vacate the proposed action. Additional
information may come to light at any stage of the process prior to
final agency decision including during an employee response period. To
the extent an employee's personnel file or other agency records contain
a proposed action that is subsequently cancelled, an agency would have
the authority to remove that action from the employee's personnel file
or other agency records. The requirements described in paragraph (a)
would, however, continue to apply to any accurate information about the
employee's conduct leading up to that proposed action or separation
from Federal service.
0
20. Revise Sec. 752.601(b)(2) to read as follows:
Sec. 752.601 Coverage.
* * * * *
(b) * * *
(2) This subpart does not apply to actions taken under 5 U.S.C.
1215, 3592, 3595, 7532, or 7515.
* * * * *
[[Page 48806]]
0
21. Amend Sec. 752.602 by adding a definition for ``Business day'' in
alphabetical order to read as follows:
Sec. 752.602 Definitions.
* * * * *
Business day means any day other than a Saturday, Sunday, or legal
public holiday under 5 U.S.C. 6103(a).
* * * * *
0
22. In Sec. 752.603, revise the section heading and add paragraphs (c)
through (f) to read as follows:
Sec. 752.603 Standard for action and penalty determination.
* * * * *
(c) An agency is not required to use progressive discipline under
this subpart. The penalty for an instance of misconduct should be
tailored to the facts and circumstances. In making a determination
regarding the appropriate penalty for an instance of misconduct, an
agency shall adhere to the standard of proposing and imposing a penalty
that is within the bounds of tolerable reasonableness.
(d) Employees should be treated equitably in that conduct that
justifies discipline of one employee at one time does not necessarily
justify similar discipline of a different employee at a different time.
An agency should consider appropriate comparators as the agency
evaluates a potential disciplinary action. Appropriate comparators are
individuals in the same work unit, with the same supervisor who were
subjected to the same standards governing discipline.
(e) Among other relevant factors, agencies should consider an
employee's disciplinary record and past work record, including all
prior misconduct, when taking an action under this subpart.
(f) A suspension or reduction in grade or pay should not be a
substitute for removal in circumstances in which removal would be
appropriate. Agencies should not require that an employee have
previously been suspended or reduced in pay or grade before a proposing
official may propose removal, except as may be appropriate under
applicable facts.
* * * * *
0
23. Amend Sec. 752.604 by revising paragraphs (b)(1) and (b)(2)(iv),
and adding paragraph (g)(3) to read as follows:
Sec. 752.604 Procedures.
* * * * *
(b) * * *
(1) An appointee against whom an action is proposed is entitled to
at least 30 days' advance written notice unless there is an exception
pursuant to paragraph (d) of this section. However, to the extent an
agency in its sole and exclusive discretion deems practicable, agencies
should limit a written notice of an adverse action to the 30 days
prescribed in section 7543(b)(1) of title 5, United States Code.
Advance notices of greater than 30 days must be reported to the Office
of Personnel Management. The notice must state the specific reason(s)
for the proposed action, and inform the appointee of his or her right
to review the material that is relied on to support the reasons for
action given in the notice. The notice must further include detailed
information with respect to any right to appeal the action pursuant to
section 1097(b)(2)(A) of Public Law 115-91, the forums 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.
(2) * * *
(iv) Placing the appointee in a paid, no duty status for such time
as is necessary to effect the action. After publication of regulations
for 5 U.S.C. 6329b, and the subsequent agency implementation period in
accordance with 5 U.S.C. 6329b, an agency may place the employee in a
notice leave status when applicable.
* * * * *
(g) * * *
(3) 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 under paragraph (c)
of this section.
* * * * *
0
24. Add Sec. 752.607 to read as follows:
Sec. 752.607 Settlement agreements.
(a) Agreements to alter official personnel records. An agency shall
not agree to erase, remove, alter, or withhold from another agency any
information about a civilian employee's performance or conduct in that
employee's official personnel records, including an employee's Official
Personnel Folder and Employee Performance File, as part of, or as a
condition to, resolving a formal or informal complaint by the employee
or settling an administrative challenge to an adverse action.
(b) Corrective action based on discovery of agency error. The
requirements described in paragraph (a) of this section should not be
construed to prevent agencies from taking corrective action, should it
come to light, including during or after the issuance of an adverse
personnel action that the information contained in a personnel record
is not accurate or records an action taken by the agency illegally or
in error. In such cases, an agency would have the authority,
unilaterally or by agreement, to modify an employee's personnel
record(s) to remove inaccurate information or the record of an
erroneous or illegal action. An agency may take such action even if an
appeal/complaint has been filed relating to the information that the
agency determines to be inaccurate or to reflect an action taken
illegally or in error. In all events, however, 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.
And an agency should report any agreements relating to the removal of
such information as part of its annual report to the OPM Director
required by Section 6 of E.O. 13839. Documents subject to withdrawal or
modification could include, for example, an SF-50 issuing a
disciplinary or performance-based action, a decision memorandum
accompanying such action, or an employee performance appraisal.
(c) Corrective action based on discovery of material information
prior to final agency action. When persuasive evidence comes to light
prior to the issuance of a final agency decision on an adverse
personnel action casting doubt on the validity of the action or the
ability of the agency to sustain the action in litigation, an agency
may decide to cancel or vacate the proposed action. Additional
information may come to light at any stage of the process prior to
final agency decision including during an employee response period. To
the extent an employee's personnel file or other agency records contain
a proposed action that is subsequently cancelled, an agency would have
the authority to remove that action from the employee's personnel file
or other agency records. The requirements described in paragraph (a)
would, however, continue to apply to any accurate information about the
employee's conduct leading up to that proposed action or separation
from Federal service.
[FR Doc. 2019-19636 Filed 9-16-19; 8:45 am]
BILLING CODE 6325-39-P
