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The Office of Personnel Management is looking to expand the reasons federal employees can be found unfit for their jobs, while also heightening its own authority in deciding whether federal employees should be fired based on suitability standards.
Draft proposed regulations obtained by Federal News Network detail the Trump administration’s plans to revise current suitability requirements. If finalized, the draft proposal would also limit federal employees’ ability to appeal their terminations to the Merit Systems Protection Board when deemed unfit for a role.
Notably, OPM already has authorities to make suitability and fitness determinations and take actions as needed. But if finalized, the planned regulatory changes would impact the government’s suitability and fitness standards in several significant ways.
According to the draft regulations, OPM is planning to give itself the final say in firing a federal employee based on suitability determinations. If the OPM director decides a federal employee should be removed from their job, the employee’s agency would have five days to terminate them, the draft states.
“These proposed regulations would expand OPM’s existing authority to take suitability actions against employees for conduct falling under specific suitability criteria … so that OPM may take suitability actions against employees,” OPM wrote.
The proposed regulations are currently under review and are expected to soon be published to the Federal Register. It’s possible changes could occur during the review process — between the current draft version of the regulations, and the proposed regulations once finalized. But based on the draft proposal, OPM is expected to apply suitability determinations to all current federal employees in the same way the regulations already apply to federal job applicants.
“Current federal employees, no less than applicants, must remain suitable for federal employment,” OPM wrote in its draft. “Employees who engage in serious misconduct while in the federal service are equally as unfit for federal employment as applicants who engaged in serious misconduct before applying for federal employment.”
The OPM regulations come after a White House memo last week directed the agency to issue new regulations for suitability and fitness, with the end goal of providing more authority to OPM over suitability decisions, as well as placing more emphasis on current federal employees’ suitability, on top of job applicants.
OPM spokesperson McLaurine Pinover pointed to the White House memo as the driving force for entering the rulemaking process, which she said will “implement appropriate procedures for taking suitability-based removals based on post-appointment conduct.”
“That rulemaking is underway, and we expect a notice of proposed rulemaking to be published in the next few weeks,” Pinover said by email.
The White House did not respond to Federal News Network’s request for comment.
OPM wrote in its draft that applying suitability standards to current feds would correct an “irrational gap.”
“Illogically, the government has far greater ability to bar someone from federal employment who has committed a serious crime or misconduct in the past than it does to remove someone who engages in the exact same behavior as a federal employee,” OPM wrote.
Current federal employees would also see more reasons they can be fired based on suitability and fitness, according to OPM’s draft proposal. Specifically, OPM is planning to add three new reasons that current employees can be found unfit for their jobs:
- Theft or misuse of government resources and equipment or negligent loss of government resources and equipment
- Refusal to certify compliance with, and/or adhere to, applicable non-disclosure obligations
- Refusal to furnish testimony
“Because employees who engage in serious misconduct while in the federal service should not remain in federal service, OPM should not limit its ability to take action to a limited subset of factors,” OPM wrote. “For over 30 years across multiple administrations, it has been the express policy of each president to ensure that employees remain suitable or fit for federal employment. However, the suitability regulations limited the ability of OPM to take suitability actions against employees by restricting the factors OPM could use to take a suitability action.”
The additional suitability determinations would be included along with the nine existing factors agencies are required to consider when assessing an employee’s fit for a job. The existing regulations cover factors such as criminal or violent conduct, excessive alcohol use, and deception or fraud, that agencies must consider when filling a federal role.
The new reasons OPM said employees may be found unsuitable for their jobs, in part, stem from President Donald Trump’s Feb. 11 executive order on the Department of Government Efficiency’s “workforce optimization initiative.” That executive order directed agency heads to prepare for reductions in force (RIFs) and submit reorganization plans, which are expected to take place over the coming weeks and months.
Federal employees could also be fired for “refusing to furnish testimony,” according to OPM’s draft regulations. In other words, agencies would have grounds to fire an employee for not providing information during an investigation into another federal employee.
Additionally, any federal employee who is terminated based on the new suitability requirements will not be able to appeal their termination to the MSPB, the draft proposal states.
OPM said it is removing MSPB appeal rights to be able to streamline and expedite the firing process of federal employees. The agency argued that MSPB appeals based on suitability are “not a statutory entitlement but rather exist because OPM has regulatorily permitted them.”
OPM said it’s making the changes in part because it’s “prohibitively difficult” to terminate employees.
“OPM believes that granting appeal rights from suitability determinations will create unnecessary delay and expense,” the draft states.
Federal employment attorneys expressed concerns that changes to expand the suitability and fitness standards could be a step toward politicizing the career federal workforce, which already has been targeted by the Trump administration.
The forthcoming proposed regulations come as the Trump administration faces multiple legal battles on the recent governmentwide terminations of probationary federal employees. Tens of thousands of employees who were previously fired are now being reinstated, following two federal judges’ rulings that OPM does not have the authority to direct agencies to fire their employees.
Once the review process is complete, OPM is expected to publish the finalized version of the proposed regulations on suitability and fitness in the Federal Register. The proposed regulations will be open to public comment for 30 days once the document is published.
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