President Biden has revoked an executive order issued by former President Trump, which allows federal agencies to once again settle employee disputes by adjusting personnel files instead of resorting to lengthy and costly litigation.
This article by TELG principal Michael Vogelsang was published by Government Executive on February 3, 2021. The full article is available at Government Executive.
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By Michael L. Vogelsang, Jr.
One of the more insidious ways in which former President Trump undermined the career security of federal employees was via a little-noted provision of a 2018 executive order: Amid a wider assault on union activity and job protections, it forbade agencies from settling individual workplace disputes by agreeing to adjust an employee’s personnel file — for example, by rescinding an unfair reprimand.
Without the option of this simple and cost-effective resolution, sometimes known as a “clean record agreement,” employees who wanted to challenge career-damaging disciplinary actions were pushed into drawn-out, expensive, and often fruitless spirals of litigation.
Now an end is in sight.
On his second full day in office, President Biden revoked the offending measure as part of a broad restoration of federal employee rights, directing the Office of Personnel Management to publish proposed rules “suspending, revising, or rescinding” the rule that resulted from Trump’s 2018 order, which became final just a few months ago at 5 C.F.R. § 432.108.
The undoing may take a while, but the path ahead is clear: Federal agencies will once again be free to settle disputes with their employees by amending a flawed performance evaluation, for example, or by changing a removal to a resignation so that the employee’s career remains intact. This will save everyone — including taxpayers — the time and expense of protracted litigation, which had become increasingly common under Trump.
Trump’s original action came as part of a flurry of executive orders he issued on May 25, 2018, on the eve of a long Memorial Day weekend, in a push to marginalize unions and strip away many of the principles enshrined in the Civil Service Reform Act of 1978: Proper notice, opportunity to succeed, progressive discipline, and more.
In the name of ensuring the “integrity” of personnel files, Section 5 of Executive Order 13839 removed federal agencies’ discretion to alter “any information about a civilian employee’s performance or conduct in that employee’s official personnel records … as part of … resolving a formal or informal complaint by the employee or settling an administrative challenge to an adverse personnel action.”
Historically, such mutually agreed changes — modifying an unfair record of discipline, for example — were a primary tool by which claims of discrimination or retaliation could be resolved without long, costly battles before administrative judges, appeals tribunals, and even federal courts. These quick, no-cost agreements weren’t always possible, but they often cleared the way for employees to resume a productive career inside or outside the federal government.
The practice mostly ground to a halt at the start of summer in 2018, however. An agency’s Equal Employment Opportunity officers no longer could mediate discrimination complaints by urging supervisors to remove performance comments that employees saw as unfairly motivated. Department attorneys lost their latitude to offer, say, the deletion of a minor, years-ago suspension that was preventing an employee from transferring to a different agency.
The prohibition on changing records was never absolute. Although the final rule adopted the exact text of Trump’s executive order, it added a provision allowing agencies to remove “inaccurate information or the record of an erroneous or illegal action,” a needed exception. Agencies also could decide to cancel a proposed action based on “persuasive evidence … casting doubt on the validity of the [proposed] action or the ability of the agency to sustain the action in litigation.”
Such exceptions were policed by Trump’s Office of Personnel Management, however. For agencies, the safer option was simply to push employees into litigation if they wanted to change personnel records. Starting in mid-2018, cases that could have been settled in a couple of months instead took as long as two years to reach an administrative hearing. Many federal employees gritted their teeth and lawyered up: The alternative was a permanent black mark that could derail their careers.
Now, with Biden’s January 22 revocation, litigation can again be reserved for cases that aren’t easily resolved. Even while the Trump-era rule is being reversed, exceptions are likely to flourish. Federal employees won’t live in fear of managers with the power to etch an indelible penalty into their personnel record — and all parties, along with adjudicators and taxpayers, can welcome the return of fast, common-sense resolutions.
For agencies entering the Biden era with hollowed-out staffs and nerves still jangling, that’s a balm. And even for federal employee lawyers like me, who will see shorter engagements as a result, it’s reason to celebrate: Justice for our clients will be surer and less arduous to obtain.
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Michael L. Vogelsang, Jr. is a principal at The Employment Law Group, P.C.
