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OPM Finalizes Protections for Career Civil Servants—But What Does the Future Hold?

The Office of Personnel Management (OPM) issued a final rule in April that protects federal employees from the possibility of future Executive Orders classifying them as at-will workers.

The rule clarifies and reinforces defined protections for 2.2 million civil servants. The rule had broad-based support across the federal community and was praised by the Senior Executives Association (SEA) in its proposed state. 

Contextual Classifications
 
In October 2020, an Executive Order by the Trump White House created Schedule F, a new job classification exempting many federal employees from civil service protections, making them easier to remove. Agencies were directed to identify members of their workforce that could be rescheduled as Schedule F, and therefore stripped of civil service protection. The number of employees designated could be quite high—for example, the Office of Management and Budget (OMB) received approval to move 68% of its workforce to Schedule F. 
 
"The order empowered partisan agency heads to take control over what is meant to be an apolitical workforce,” said Marcus Hill, SEA President. "Overall, the order resulted in confusion and mismanagement at the expense of the merit system and government efficiency.”
 
The Schedule F Executive Order was rescinded in the first days of the Biden Administration, but fear of a similar Schedule F-type Executive Order in the future remained—a fear OPM’s rule is intended to alleviate.
 
Protections & Expectations
 
The final rule states that an employee’s civil service protections cannot be taken away by an involuntary move from the competitive service to the excepted service. The rule also clarifies that the "employees in confidential, policy-determining, policy-making or policy-advocating positions” terminology used to define Schedule F employees explicitly means noncareer, political appointments and won’t be applied to career civil servants. Additionally, the rule sets up an appeals process with the Merit Systems Protection Board for any employees involuntarily transferred from the competitive service to the excepted service and within the excepted service.

In doing so, future administrations that disagree with this process would have to justify how a different rule would ensure decisions in the hiring and termination of federal employees were based on how well those employees served the American people, which is also required by merit system principles. 
FEDS Protection for Senior Executives.

While the OPM rule takes important steps to protect career federal employees, senior executives still have exposures that can put their career in danger.  Allegations and claims can lead to agency disciplinary actions, criminal investigations, and even civil lawsuits. As a proud partner of the Senior Executives Association for nearly two decades, FEDS Protection is dedicated to providing peace of mind to federal executives. 

FEDS offers federal employee PLI policies with $1 million, $2 million, or $3 million in civil liability protection for attorney’s fees and indemnity costs in the event you are sued in your civil capacity.  The FEDS policy also includes $200,000 of legal representation coverage per incident for administrative actions and $100,000 of coverage for criminal defense costs.  Annual premiums for FEDS Protection PLI start at just $290.  SEA members can use the code SEA for a discount on their annual premium. Additionally, federal managers are eligible for reimbursement of up to 50% the cost of their PLI policy through their agency. To learn more about how a FEDS PLI policy can protect you and your career, visit www.fedsprotection.com or call (866) 955-FEDS, M-F 8:30am-6pm.

*This article is provided for informational purposes only and does not constitute legal advice.

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