Unions Sue to Stop OPM’s New Federal Employee Rating, Suitability Rules

A coalition of federal employee unions filed a lawsuit to stop implementation of two major rule changes from the Trump administration that affect how federal employees are disciplined and rated.

The coalition says rules changing federal suitability standards and the performance management rating system “scrap decades of legal precedent and run counter to the laws that Congress passed to strengthen a nonpartisan, merit-based civil service.”

The unions say the changes will make it easier for OPM and agencies to fire federal employees, while limiting opportunity for employees to challenge their removals or other adverse actions. 

“Congress built the civil service on a simple principle — that public servants are hired, judged and fired on merit, not on politics,” said American Federation of Government Employees (AFGE) National President Everett Kelley. “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.”

Suitability

Under changes to the Suitability Rule, OPM has the power to judge whether a current federal employee remains "suitable" for federal service– a test that has mostly applied to job applicants. In addition, OPM can direct an employing agency to remove an employee over suitability concerns, taking the final decision away from the agency.

The coalition argued that the standards are broad, subjective, and essentially “an invitation to fire public servants who speak out.”

OPM said the rule is needed to address misconduct and ensure federal employees meet high standards.

“For too long, the federal government has had stronger tools to prevent someone with serious misconduct from entering public service than to address the same misconduct once that individual is already employed,” said OPM Director Scott Kupor.

Performance Management 

The second rule being challenged overhauls federal performance management and ends the longstanding prohibition on forced distribution of performance ratings. It also removes a federal employees’ ability to challenge their rating through grievance and arbitration proceedings. 

OPM insists the new ratings system is necessary to end “ratings inflation” and hold the workforce accountable.

But unions say it will unlawfully force agencies to evaluate employees against one another, rather than against “objective criteria” -- effectively violating the Civil Service Reform Act (CSRA).

Lawsuit Details

The lawsuit was filed in U.S. District Court for the Northern District of California.

Joining AFGE as plaintiffs 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), with assistance from Democracy Forward.

In addition to violating employee protections under CSRA, the unions say the rules violate the Administrative Procedure Act, arguing that OPM acted arbitrarily and capriciously, exceeded its statutory authority, and violated federal civil service laws.