It has been a rough four years for the rights of federal employees. From a gutted Merit Systems Protection Board (MSPB), to a Federal Labor Relations Authority (FLRA) that has seemingly gone rogue, to a series of Executive Orders signed by President Trump weakening employee and Union rights, some of us who practice in federal employment law have found ourselves scratching our heads and asking, “Could it get any worse?” more than once during recent years.
For someone who touted as a campaign selling point his lack of experience as a politician, President Trump has been remarkably effective at using the political system to hamper the rights of federal employees. However, the outgoing head of the Executive Branch is soon to be replaced by a much more experienced politician who brings with him decades of knowledge in writing and negotiating law and policy. With this transition of power comes hope for change to level the playing field between employee rights and management discretion within the federal workforce. President-Elect Biden was a young Senator from Delaware when the Civil Service Reform Act of 1978 was passed. He recognizes the vital role that our federal employees and Unions play in making our government work. And, hopefully, his administration will set into motion key actions early on in his presidency to override and overcome the actions taken by the Trump administration to diminish federal employee rights.
The following is not so much a wish list, but a listing of what we expect to see from the Biden administration in the coming months:
• Staffing the Merit Systems Protection Board (MSPB)
Any discussion of expectations for the new administration has to include a discussion of the lengthy lack of quorum experienced by the Merit Systems Protection Board (MSPB). The MSPB was established by the Civil Service Reform Act of 1978, and has stood for decades as a guardian against unwarranted personnel actions suffered by federal employees. For the first time in its history, it has gone more than three years without a quorum under the Trump presidency, disabling it from being able to issue decisions on any appeal or enforcement action that comes before it.
The Board plays an important role in safeguarding federal merit systems. Generally speaking, non-probationary Appropriated Fund federal employees of most Executive Branch agencies are permitted to appeal major adverse employment actions taken against them, such as suspensions greater than 14 days, demotions, and removal actions, to the MSPB. After having their initial appeal heard and receiving an Initial Decision from an MSPB Administrative Judge, a party disagreeing with the Initial Decision is permitted to further appeal to the full Board, comprised of three Members nominated by the President and confirmed by the Senate. Even if the appellant ultimately prevails in her initial appeal, if the Agency refuses to comply with the Administrative Judge’s decision, the full Board ultimately has oversight to ensure and enforce an Agency’s required compliance measures.
With no Members to issue decisions, the MSPB was reported as having a backlog of 3,022 cases as of November 30, 2020. The lack of quorum has resulted in a tremendous backlog of cases and caused federal employees who have been subjected to unwarranted personnel actions to remain in limbo pending decisions on these appeals. We look forward to President-elect Biden nominating new Members to the Board, and the Senate confirming the nominations in the coming administration in order to get the very important functions of the Board back up and running.
• Rescinding or Overriding Numerous Executive Orders (EOs) issued by President Trump
EOs 13836, 13837, and 13839: These three Executive Orders served to weaken organized labor and federal employees’ rights. Issued in 2018 and in effect since that time, the three EOs limit official time for Union stewards, compress collective bargaining timelines, and restrict individual agencies and their advisers in their ability to effectively negotiate and seek resolution to a variety of employment matters. For example, in 2020, OPM issued final rules implementing EO 13839’s provisions, urging agencies to limit notice of proposed adverse actions to 30 days and to issue decisions within 15 business days of the end of the reply period. By focusing on expediency in considering and taking major adverse employment actions against employees, management officials are more prone to rush to judgment on allegations and penalties proposed against federal employees, without being able to fully review and consider the applicable evidence and mitigating factors present in each individual situation. If an employee is then removed from their federal employment based on an improper or insufficient review of the evidence or mitigating factors, and the former employee then appeals the removal to the Merit Systems Protection Board (MSPB), the employing agency is likely to face greater scrutiny and be more vulnerable to reversal of the removal action by the MSPB. It is expected that the Biden administration will rescind these three EOs and work to restore labor-management relations.
EO 13957: This Executive Order created a new category of excepted service employees under a newly created “Schedule F.” The EO seeks to transfer many competitive service positions to the excepted service under the new Schedule, subverting the due process rights those employees would normally have in their competitive service employment. It is expected that the Biden administration will rescind the EO and not move forward with Schedule F conversions.
EO 13950: This Executive Order was issued by President Trump under the guise of “combat[ing] offensive and anti-American race and sex stereotyping and scapegoating” in diversity training. As many federal employees and federal employment practitioners are all-too aware, diversity training is necessary for a properly functioning federal workforce. The sad reality that President Trump refused to acknowledge is that double standards and disparities in treatment along the lines of race, gender, and other protected categories continue to exist in the federal workforce. It is expected that the Biden administration will work towards promotion and protection of diversity and inclusion among federal employees, including through the use of diversity training.
• Making changes within the Federal Labor Relations Authority (FLRA)
The Federal Labor Relations Authority (FLRA) is currently comprised of two President Trump appointees, Chairperson Colleen Duffy Kiko and Member James Abbott, and one Member originally appointed by former President Obama. Chairperson Kiko and Member Abbott were initially sworn in at the end of 2017, with Member Abbott currently serving in a holdover status because he was appointed to serve the remainder of a 5-year term expiring July 1, 2020. After the appointment of Chairperson Kiko and Member Abbott, the FLRA has issued a series of decisions overturning decades of precedent and eroding the rights of Unions, over the scathing dissents of Member DuBester. The recent decisions issued by the FLRA are largely based not on the text of the Federal Service Labor-Management Relations Statute or on longstanding precedent, but rather on ideological interests in dismantling public sector bargaining. President-elect Biden will likely be able to change the composition of the FLRA by elevating Member DuBester to the role of Chairperson and replacing Member Abbott with a third Member who will recognize the importance of federal labor-management relations, the Statute overseeing such relations, and the decades of precedent protecting the balance of rights within such relations.
Lastly, the FLRA has been without a General Counsel for several years. By statute, the FLRA’s General Counsel has the sole authority to investigate Unfair Labor Practice (ULP) charges and issue complaints. Without a General Counsel, ULP proceedings have ground to a halt. It is expected that the new administration will appoint a new General Counsel and get ULP proceedings started again.
