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New EO will likely increase agency caseload, prolong litigation, experts say

Written by: Federal Practice Group
Written by: Federal Practice Group

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New EO will likely increase agency caseload, prolong litigation, experts say

By Anjali Patel, Esq.,cyberFEDS®egal Editor Washington Bureau

Key points:

  • Employees are likely to endure prolonged litigation without clean record option
  • AWOL and attendance cases may be affected when medical condition is revealed
  • Chapter 75 performance actions have higher standard of proof

IN FOCUS: Although some believe President Trump's new executive order on Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles is the biggest change to civil service policies in a generation, "the changes are not as drastic as people may think," Kevin Owen, a partner at Gilbert Employment Law, told cyberFEDS®.

"The EO essentially restates a number of principles of law and policy that are already out there," Owen said. Even so, his two biggest concerns are provisions in the EO that would prevent clean
record settlement agreements and limit performance improvement plans to 30 days.

Debra D'Agostino from The Federal Practice Group agreed, saying "nothing seems flat out contrary to case law," but noting that agencies will be unable to resolve cases quickly and efficiently without the option to offer clean records.

Clean record agreements
Owen said the settlement provisions "will probably have the biggest impact on how cases get resolved, making litigation more protracted -- not less" -- because clean record agreements in which the agency agrees to a resignation and a clean file in exchange for settlement are commonly used.

However, the EO states that agencies "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" to resolve formal or informal complaints or settle administrative challenges to adverse personnel actions. This includes not changing the employee's official personnel folder or employee performance file, Owen explained.

D'Agostino said "taking away this authority is going to be tricky because these are common agreements and usually not that big a concern." Even with a clean record, when applying for another federal position, the individual would need to be upfront about the removal and clean record agreement when filling out a new SF 86, she added.

D'Agostino warned agencies that "their caseload is likely to increase because employees will keep fighting," while Owen said that "if the agency does not offer clean records, employees demand much more money."

Owen noted that agencies "have been very responsible in how they utilize this option" and generally do not offer clean records for serious misconduct. For performance issues, the clean record agreement usually involves a term saying the employee won't apply to the agency again, in which case allowing resignation is a good option because the employee can move on.

Another concern involves removals for attendance or leave issues -- such as AWOL or failure to follow leave instructions -- which are eventually connected to a medical condition, Owen noted.

Oftentimes, these cases are resolved quickly by changing the removal to medical inability to perform, which is a nondisciplinary action, unlike AWOL or failure to follow leave instructions which are disciplinary, he added. Since many employees do not want these records in their files, they have been more inclined to settle. Now that agencies are directed not to change personnel files to resolve cases, the official personnel folder will include the initial disciplinary action, he said.

30-day PIP
The EO also reminds agencies that they may remove employees, under Chapter 75, for poor
performance without going through the PIP process and instead going straight to removal -- but
D'Agostino said this has been the case for years under existing law.

For Chapter 43 removals, the EO says agencies should limit PIPs to 30 days, which the agency must demonstrate is a reasonable period for improvement on appeal, she said.

However, Owen said the administration's focus on using Chapter 75 for performance-based removals is odd because agencies have to meet a higher standard of proof by preponderant evidence under Chapter 75 as opposed to the lower burden of substantial evidence under Chapter 43.

So even if the agency chooses to remove individuals under Chapter 75 for poor performance, there must be sufficient documentation proving the reasons for removal, Owen warned.

Educate managers on available options
Although the EO does not institute major systemic changes that require drastic revisions to current agency operations, agency leadership should confer first with general counsel and employee relations officials as they develop updated guidance to management, human resources, and legal staff.

The administration seems to be underscoring the ability to fire employees more efficiently, but the EO simply focuses on certain options for removal more than others in trying to make removals more efficient, D'Agostino said. However, the law already encompasses these avenues, so agencies may just need to spend more time educating managers on how to efficiently remove employees, which is not as difficult as the public perceives, she added.

Reprinted with permission from: cyberFEDS®. © 2018 LRP Publications, 360 Hiatt Drive, Palm Beach Gardens, FL 33418. All rights reserved. For more information on this or other products published by LRP Publications, please call 1-800-341-7874 or visit our website at:

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