On February 3, 2022, NTEU submitted comments supporting the Office of Personnel Management’s (OPM’s) proposed rescission of multiple harmful, anti-federal employee regulations that went into effect on November 16, 2020. Those regulations implemented Executive Order (EO) 13839 (May 25, 2018) and undercut federal employees’ rights in numerous ways. For example, they discouraged the use of progressive discipline, limited adverse action notice periods, and barred settlement agreements involving amendment of personnel records.

In January 2021, EO 13839 was rescinded and agencies were directed to rescind any actions taken to implement it. OPM’s proposed rule would do just that. In its comments, NTEU strongly supports swift issuance of a final rule rescinding the November 2020 regulations, which have among other things stifled the ability of our chapters to reach favorable settlements for our members. 

NTEU’s comments, however, objected to OPM’s negative commentary regarding a pro-employee decision by the U.S. Court of Appeals for the Federal Circuit, Santos v. NASA, 990 F.3d 1355 (Fed. Cir. 2021). Santos held that an agency must establish that an employee facing discipline had unacceptable performance prior to as well as during the performance improvement period (PIP), meaning that an agency cannot solely rely on unacceptable performance during the PIP. OPM’s commentary notes its disagreement with the court — but its view, which is unlinked to any regulatory language, is immaterial. Santos’s holding is the law. 

NTEU will be monitoring how OPM responds to NTEU’s and others’ comments in its final rule.