AFGE led a coalition of unions last week in filing a new lawsuit challenging two rules issued by the Trump administration that overhaul how federal employees are disciplined and how their performance is judged.
Both rules issued by the Office of Personnel Management scrap decades of legal precedent and run counter to the laws that Congress passed to strengthen a nonpartisan, merit-based civil service.
The first rule being challenged in the lawsuit, the Suitability Rule, lets OPM decide on its own that a civil service employee is “unsuitable” for their position and order them fired – taking that decision away from the agency that actually employs them. The standards by which OPM will make these decisions are so broad and subjective that it will allow the administration to target employees who speak out about waste, fraud, and abuse at their agencies.
Even worse, OPM also has declared itself the sole avenue for employees to appeal these suitability decisions. By the agency’s own estimate, half of all federal firings will run through this system.
The second rule being challenged in the lawsuit upends decades of how performance is evaluated and opens the door to rating employees against each other based on a curve. Instead of measuring workers against objective standards, as the law requires, this rule will arbitrarily result in large numbers of high performers being rated lower for no other reason than the curve.
The rule also cancels an employee’s right to challenge an unfair rating once current labor contracts expire, and it drops the requirement that a manager’s boss sign off before an employee is branded a poor performer.
“Congress built the civil service on a simple principle – that public servants are hired, judged, and fired on merit, not on politics. OPM does not have the authority to write those protections out of the law, and no statute gives it the sweeping power it has claimed here,” AFGE National President Everett Kelley said in a press release announcing the lawsuit.
“OPM wants to fire people itself and then review its own decision. That is not accountability, and it is not what Congress wrote.”
Joining AFGE in the lawsuit are the American Federation of State, County and Municipal Employees (AFSCME), the National Federation of Federal Employees (NFFE), and the International Federation of Professional and Technical Engineers (IFPTE). Together, the four unions represent nearly one million federal employees.
The lawsuit challenges both rules under the Administrative Procedure Act as arbitrary, capricious, contrary to law, and beyond the authority Congress gave OPM. The complaint shows these rules were put together haphazardly and are contrary to the Civil Service Reform Act. OPM told the public it was making no changes to employees’ appeal rights, when it had already proposed months earlier to take those appeals away from the Merit Systems Protection Board and hand them to itself.
The unions are represented by Altshuler Berzon LLP, Jonathan Weissglass, and Democracy Forward.
Click here for a summary of AFGE’s lawsuits against the Trump administration.
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