The Office of Personnel Management (OPM) is proposing a new rule that would make federal employee performance – not seniority – the key factor in determining who stays or goes during future layoffs.
The proposal, set to publish in the Federal Register on Thursday, comes a week after OPM outlined an overhaul to the way that employees are evaluated – placing a cap on how many employees can receive top performance marks.
“The United States deserves a federal workforce that is high quality, efficient, and dedicated to the public interest. By elevating performance in the order of retention, the employees who are best contributing to the mission will be more likely to be retained during restructuring,” OPM wrote in its unpublished rule proposal.
Under the proposal, federal agencies would build reduction-in-force (RIF) retention lists by first sorting employees into two categories – competitive service and excepted service – and then ranking workers primarily by performance while adding veterans’ preference points.
If two employees end up with the same score, the tiebreakers would favor those in the higher subcategory – subcategory one over two – and, only after that, the employee with more time in service.
Employees are assigned subgroups based on how permanent their position is. Fully career, unrestricted employees would fall into subgroup one, and other eligible but less permanent employees would be placed into subgroup two, according to the document.
OPM explained that performance would be quantified using up to three ratings of record from the past four years. It would then convert those ratings into “retention service credit” that boosts an employee’s standing: 20 years for each Level 5 rating (outstanding), 16 years for each Level 4, and 12 years for each Level 3. Those would be added to their service time when determining where they fall on the retention register.
Notably, OPM said not all federal employees would need to compete with their scores on the retention register. Generally, only permanent competitive- and certain excepted-service employees would compete.
Other federal workers – such as temporary hires, appointments of one year or less, and those in probationary or trial periods – would be excluded from RIF competitions, according to OPM.
OPM explained that an agency can retain or fire an excepted employee “at its discretion when the agency has determined that a lack of work, shortage of funds, insufficient personnel ceiling, reorganization, or reclassification of the employee’s position exists which would otherwise require the agency to invoke reduction in force procedures.”
OPM said doing so will give agencies more flexibility when deciding to retain or terminate those excepted employees and streamline the RIF process.
For those who would still need to compete for their tenure with the federal government, OPM said it would implement several technical changes to make RIFs faster.
That includes dropping a requirement to run full RIF procedures when reclassifying a job because duties have eroded shortly before an announced RIF, while adding a ban on using those reclassifications to worsen an employee’s retention standing once a RIF is underway.
The proposal would also exclude shutdown furloughs caused by funding lapses from RIF-style furlough rules and redefine “transfer of function” to apply only to work moved between agencies, not internal reshuffles.
OPM said those changes will update outdated rules that “no longer address the needs of agencies in the twenty first century.”
“Agency missions and the workers they employ to carry out these missions have become more complex since the mid-twentieth century when the current rules were developed,” OPM said.
In response to the proposal, American Federation for Government Employees (AFGE) National President Everett Kelley warned that the federal worker union would be filing public comments and “reviewing all legal options” if enacted.
“By gutting seniority protections and handing agencies sweeping new discretion over who stays and who goes, OPM is making it easier to conduct politically motivated layoffs dressed up as ‘performance-based’ decisions,” Kelley said in a statement.
Pointing to the proposal last week from OPM that would change the way employees are scored, Kelley said it would ensure “that ‘performance’ reflects not actual merit but management’s subjective preferences.”
“This rule would weaponize those ratings, making performance the dominant RIF factor, letting agencies use subjective awards to sort employees, and stripping many workers out of RIF protections entirely,” Kelley said.
Last year, President Donald Trump signed numerous executive orders aimed at large-scale RIFs across the federal workforce. While many RIFs were challenged in court for their legality – with mixed success – the administration said the reductions resulted in 317,000 employees departing from federal service.
While most of those were through RIF-related voluntary resignation programs – such as the Deferred Resignation Program and Voluntary Early Retirement Authority – OPM said in November that the administration exceeded its goals.