Promoting Employee Accountability

This joint proposed rule, issued by the Office of Personnel Management (OPM) and the Merit Systems Protection Board (MSPB), would make sweeping changes to the procedures governing performance-based removals, adverse actions, and MSPB appellate review of those actions. It proposes changes to performance management, how adverse actions are handled, how agencies can settle personnel matters, how the MSPB will assess whether an agency's chose penalty is reasonable, and requires supervisor training. It also clarifies that official time can't be used for union representation of employees in adverse action proceedings. The changes to managing performance and adverse action are significant. Progressive discipline is formally eliminated as a requirement. Employees would have less time to respond to a notice of adverse action — from 30 days to 7-10 days. The regulation would also shorten the Performance Improvement Period (PIP) for an employee to improve their performance after an agency has determined that the employee's level of performance is unacceptable. The regulation would impose a 30-day maximum for evaluating performance improvement.

One of the most significant proposed changes is that the regulation would reverse a nearly half-century old policy of considering a set of 12 mitigating and aggravating factors when evaluating the agency's choice of a penalty in cases of alleged misconduct. The MSPB has long called these the Douglas Factors based on a decision it issued in 1981, not long after Congress created the MSPB by passing the Civil Service Reform Act of 1978.