Proposed Bill Aims to Protect Federal Workers from Schedule F

In October 2020, then-President Donald Trump signed an executive order that established a new Schedule F employment category for federal employees.

Under the controversial order, as many as 50,000 public sector employees serving in roles deemed to have some influence over policy would be reassigned as at-will, Schedule F employees, which would effectively strip them of their employment and union protections and make them much easier to terminate.

President Biden rescinded the order three days after taking office in January 2021, but Trump has said he would reissue the order should he win the 2024 presidential election.

The U.S. Office of Personnel Management (OPM) recently issued a proposed rule that would prevent Trump or any future president from resurrecting a Schedule F order for federal workers.

The proposed rule would clarify and reinforce longstanding civil service protections and merit system principles, according to OPM, which notes that it will accept public comments on the proposed rule via the Federal Register for 60 days, beginning Sept. 18.

“The proposed rule honors our 2.2 million career civil servants, helping to ensure they can carry out their duties without fear of political reprisal,” said OPM Director Kiran Ahuja, in a statement.

“Career federal employees deliver critical services for Americans in every community. Prior attempts to needlessly politicize their work risked harming the American people. The Biden-Harris administration is deeply committed to federal workers who serve the American people every day,” Ahuja continued. “These professionals are vital to our national security, our public health, our economic prosperity and much more.”

Setting Up a Legal Fight? 

With its Sept. 15 announcement, OPM proposed a number of regulatory amendments. First, the proposed rule would clarify that the status and civil service protections an employee has accrued by law cannot be taken away unless the employee gives us these rights voluntarily.

In addition, the proposed rule would clarify the definition of positions that are “confidential, policy determining, policymaking or policy advocating” to mean non-career, political appointments, according to OPM. These positions do not have civil service protections, and this proposed rule would prevent that exception to those protections, which is aimed at political appointments, from being misapplied to career civil servants.

Finally, the rule would establish procedural requirements for moving positions from the competitive service to the excepted service and within the excepted service, according to OPM, which says this change would create transparency and an appeals process for federal employees when any such movement purports to strip them of their civil service protections.

The nation relies on nonpartisan government employees “to make sure our food is safe and our water is clean, to protect us from national security threats, to care for veterans and to support seniors,” said OPM Deputy Director Rob Shriver, in a statement, adding that the proposed regulation builds on the Biden administration’s efforts to “strengthen federal agencies and the federal workforce to better deliver for the American people.”

The recently proposed rule reaffirms the administration’s efforts on this front, added Jason Miller, White House Office of Management and Budget deputy director, in a statement.

“From day one, the Biden-Harris administration has been committed to strengthening, empowering and rebuilding the federal workforce,” said Miller. “A strong and capable federal workforce is critical for the federal government to deliver for the American people.”

Some have lauded the proposed regulations. For example, Everett Kelley, national president of the American Federation of Government Employees, issued a statement praising the Biden administration for “taking concrete steps to protect the integrity of the civil service against those who seek to politicize routine government work and undermine our democracy.”

Others have wondered how much the rule would ultimately do to stop a future president from reviving Schedule F if they so desired.

“At this point, they have 16 months to be able to prepare a draft of a new executive order or a new set of regulations that can be put in place pretty quickly,” Don Kettl, professor emeritus at the University of Maryland, told Government Executive.

“They don’t need to do this on Jan. 20; if it takes two months, it’s still a victory because they’re in it for the long game, for sure. One big question is how much of a speed bump it would create for a Republican administration, and I think it’s probably a speed bump, but not more than what you’d find in a parking lot,” said Kettl, who formerly served as former dean of the University of Maryland’s School of Public Policy.

What the proposal could do is set up a legal fight that could break out in the middle of the 2024 presidential race, Kettl concluded.

“The proposal directly challenges what it is Schedule F was seeking to do, given the fact that so many conservative organizations are rallying around the effort to reimpose it,” he said. “It brings to a head in a sharp and powerful way a debate that was certain to happen anyway, but it speeds it up and puts it right in the middle of the presidential campaign. That’s a very big deal.”