Last week, President Donald Trump signed Executive Order 13957, creating a new class of federal employees within the civil service. This executive order could make it easier to retaliate against and eventually fire individuals who have been critical of the president.
The executive order claims the executive order is designed to help give federal agencies the flexibility they need to quickly hire necessary policy staff, as well as to fire underperforming employees without going through the normal appeals process. However, the executive order appears to be just another attack by this administration on federal employees and unions, and a means of installing loyalists within the government, undermining the merit-based civil service and whistleblower protections for many. The result may be a less effective federal government and more corruption.
In protest of the executive order, Ronald Sanders, a Trump appointee who also served under Presidents George W. Bush and Barack Obama, resigned on Monday as chair of the Federal Salary Council, the panel that advises the government on employee compensation.
Sanders, after seeing the president’s order wrote, “I have concluded that as a matter of conscience, I can no longer serve him or his Administration.” He added that, while the order will hold federal employees accountable, it “is nothing more than a smokescreen for what is clearly an attempt to require the political loyalty of those who advise the President, or failing that, to enable their removal with little if any due process.”
That same day, the National Treasury Employees Union filed a lawsuit seeking to block implementation of the executive order, arguing that Trump overreached his authority. Richard Loeb, senior policy counsel for the American Federation of Government Employees, the largest union representing federal workers, has called the executive order “a declaration of war on the civil service.”
Background on Federal Employees
According to the Office of Personnel Management, the federal government’s human resource agency, there are more than 2.1 million federal employees in the United States. There are federal employees in every state, and they carry out a wide array of jobs involving national security, food and drug inspections, air traffic control, Social Security, veterans’ health and benefits, and much more.
The modern civil service system was created in 1883 with the passage of the Pendleton Civil Service Act. The law marked the end of the spoils system, which had given federal jobs to close supporters of the president, and replaced it with an employment system that hired federal employees based on the individual’s qualifications and level of performance and experience. In short, the law helped to make the federal workforce apolitical and to better serve the American people rather than the president’s narrow personal or political interests.
Because those hiring on behalf of the federal government want to ensure they are hiring the best applicant for a job and are fairly considering all applicants in accordance with the law, such as granting veterans’ preference in federal employment, it can often take a while before a job offer is made. For some jobs the timeline can be as little as six to eight weeks, but if a security clearance is needed the timeline can average anywhere from 33 weeks to up to 83 weeks. While the timeline can be quite long, it’s essential that government employees—who may hold positions with significant responsibility and with access to sensitive or classified information—are well qualified and appropriate for the job. Despite security clearance determinations taking up the lion’s share of the time between hiring and on-boarding a new federal employee, this executive order does nothing to address those delays.
Just as the timeline can be long for hiring employees, terminating a federal employee can also be a long process. This is meant to ensure that employees have access to appropriate due process. Generally, most federal employees must receive a notice of an adverse personnel action—such as being demoted, transferred, or even fired—and they have a right to appeal the decision. The Merit Systems Protection Board, an independent and quasi-judicial agency, reviews those appeals. Review by the board helps ensure that the employee was fired for cause rather than out of retaliation or for other unjustified reasons. The first step at the Merit Systems Protection Board is a review by an administrative law judge who can rule on cases. Such reviews are usually completed within 12 weeks. If either the employee or the agency doesn’t agree with the judge’s decision, they can appeal to the full board. However, since the early days of the Trump administration, the board has lacked a quorum of members, and has had no members since March 2019. Cases that have been appealed to the full board have therefore been funneled into a massive and growing backlog, with employees’ professional careers in limbo.
The lack of quorum has also hobbled the ability of the Office of Special Counsel to temporarily block allegedly retaliatory actions against whistleblowers. The Office of Special Counsel, which prosecutes cases before the board, can negotiate stays with agencies to temporarily block an adverse employment action while it investigates a whistleblower retaliation complaint. But if an agency doesn’t want to negotiate, the Office of Special Counsel can normally request a stay from the Merit Systems Protection Board—and, if the board grants the stay request, the board can compel an agency to block its proposed employment action. Without a quorum or even a single member there’s no way to compel agencies to grant stays. The Office of Special Counsel can still negotiate with the agency, but it has no leverage if the agency says no.
There are three groups of federal employees: the competitive service, the excepted service, and the senior executive service.
Federal employees who apply for jobs and are chosen based on their merits belong to the competitive service. Depending on the job, applicants are sometimes required to take a test to prove their qualifications. The majority of federal employees are in this group.
About a third of federal employees belong to the excepted service. Jobs in this service group tend to be more profession oriented—such as chaplains, policy analysts, medical professionals, and scientists—and are organized in categories, known as “schedules.” Applicants for these jobs go through a different screening process than do applicants for competitive-service jobs. For instance, excepted-service job applicants don’t have to take a test to prove knowledge or qualifications because they are often already professionally licensed to perform the job. While they don’t go through the same hiring process as employees in the competitive service, excepted-service employees generally have the same notice and appeal rights.
Finally, senior executive service employees are high-level employees who serve in management positions, often directly under presidentially appointed individuals. Approximately 91% of senior executive service employees are career officials; the remainder are political appointees. Career senior executives have due process protections (a law that was passed by President Barack Obama streamlined the due process rights of career executives at the Department of Veterans Affairs).
What is Schedule F?
The new executive order would create a new schedule of federal employees within the excepted service, called Schedule F. Most federal employees in the competitive and excepted services who are in “confidential, policy-determining, policymaking, or policy-advocating” positions that are “not normally subject to change as a result of a presidential transition,” are subject to reclassification. The executive order is designed to give federal agencies more flexibility to quickly hire policy staff to meet their needs, and to quickly fire underperforming employees without having to show cause. It does this by essentially making them an at-will employee, eliminating the thorough hiring selection process and the protections that prevent agencies from firing personnel without cause. The new authority to quickly fire staff is particularly concerning because it essentially strips the employees of their civil service protections, including the ability to appeal adverse personnel actions.
Although the executive order appears to provide protections for these reclassified employees, including whistleblowers, the language is merely paying lip service to effective protections. According to the White House, the executive order “prohibits certain personnel actions against ‘Schedule F’ employees, including actions on the basis of the employee’s partisan affiliation, other protected characteristics, or because of the employee’s status as a whistleblower.” At the same time, however, it severely limits the employees’ right to appeal adverse personnel actions. While it gives the employing agency broad authority to create a new administrative appeals process, there is no guidance on how this appeals process would work. As a result, should a Schedule F employee be subject to an adverse personnel action, they will likely not have the same protections as other federal employees. These employees couldn’t be fired for blowing the whistle or for partisan affiliation, for instance, but there is nothing to stop an agency from firing said employee and just attributing a different reason to that action.
Furthermore, the executive order would empower agencies to prevent these employees from participating in unions and collective bargaining.
Who Would Be Affected by the Executive Order?
Under the president’s new executive order, agency heads must review all positions in the competitive and excepted services and determine which positions would be categorized under the newly created Schedule F. Employees who are reclassified would not be able to appeal the decision. The administration could not release how many positions it estimates might be subject to the newly created schedule because it has left the reclassification up to the discretion of each individual agency head. It’s worth noting that the executive order specifically states the senior executive service—which had just over 8,000 employees as of 2016—will not be affected. With only 8,000 employees exempted from reclassification, there could hundreds of thousands of employees subject to this executive order.
Most concerning is that the new Schedule F could be used to target specific employees. Given that agency heads have nearly complete control over which positions get reclassified within their agency, an agency head could reclassify a specific position based on who currently holds it. Agency heads actually have an incentive to do this as they work at the pleasure of the president and in theory would make decisions that meant getting on the president’s good side or that would mitigate the risk of being fired themselves.
For example, agency heads could reclassify positions held by individuals who testified in congressional impeachment hearings last year. This may seem far-fetched—but it isn’t. After the Senate acquitted Trump earlier this year, impeachment witnesses Ambassador Gordon Sondland and Lieutenant Colonel Alexander Vindman were relieved of their duties after providing damaging testimony just months earlier. (Vindman’s twin brother Yevgeny, who served as a senior lawyer on the National Security Council at the time but wasn’t an impeachment witness, was also relieved of duty.) Although Sondland was a political appointee and the Vindman brothers were in the military and so wouldn’t qualify under the new schedule, it’s not unreasonable to envision other federal employees who spoke unfavorably about the president facing the same fate if they are recategorized as Schedule F, eliminating their civil service protections.
While the executive order could potentially be used to fire federal employees who are viewed as critical of the administration, the administration could also use the new schedule to quickly install individuals who are viewed as loyal to the administration. As the executive order states, these employees would “not normally [be] subject to change as a result of a Presidential transition”; as a result, these individuals would carry over into a new administration. This could make it difficult to fire these loyalists given the optics of appearing to fire officials just because they were appointed by the previous administration.
Undermining the merit system’s principles, as this change would do, not only exposes the civil service to cronyism but also presents a risk to the diversity of our civil service. Since senior executive service members are exempt, it is those who are not in management positions that are more likely to be reclassified and have fewer protections as a result. Government data, obtained by the American Federation of Government Employees in response to a Freedom of Information Act request, showed that “White staffers were promoted to management at almost twice the rate of their Black colleagues in fiscal 2019 and through mid-July of fiscal 2020.”
Installing loyalists throughout government or arbitrarily firing Schedule F federal employees for speaking truth to power is exactly what the current civil service system was designed to prevent. Federal employees and the country’s civil service system are supposed to be apolitical.
Attack on Federal Employees and Their Unions
Previous presidential administrations have been hostile toward unions and their causes. According to Steven Greenhouse, who covered labor and workplace issues for the New York Times for 19 years, Trump has constantly attacked federal employees, and “his administration has also maneuvered in myriad ways to weaken federal employee unions.” This new executive order is just the most recent example of the current administration’s hostility toward federal employee unions. In May 2018, Trump issued executive orders aimed at reducing collective bargaining, limiting employee representation rights, and making it easier to remove federal employees. Federal employee unions sued the administration to halt the orders, asserting that the rules violated federal law protecting federal employee’s rights. In August 2018, a federal judge blocked the executive orders from moving forward, finding that they would “eviscerate” federal workers’ collective bargaining rights. However, a federal appeals court judge ruled in July 2019 that the administration could move forward with the executive orders. Earlier this month, the Office of Personnel Management finally issued new rules implementing the executive orders.
The 2018 executive orders negatively impact the ways whistleblowers can obtain relief. Now, even at agencies with union representation, an employee who is terminated cannot challenge their termination through the union arbitration process, where a higher percentage of employees are successful compared to appealing through the Merit Systems Protection Board. One of those executive orders bars agencies from cleaning an employee’s personnel records of negative information when resolving a complaint except in certain circumstances. This has created a hurdle in settlement negotiations involving whistleblower retaliation, discrimination, and other kinds of employment complaints because a key request from many employees is to have their personnel record expunged of false negative information that could haunt them over the course of their career.
The new executive order seems to build off the 2018 executive orders and further diminishes the role of federal employee unions. Under the newest order, “each agency head shall, as necessary and appropriate, expeditiously petition the Federal Labor Relations Authority to determine whether any Schedule F position must be excluded from a collective bargaining unit … paying particular attention to the question of whether incumbents in such positions are required or authorized to formulate, determine, or influence the policies of the agency.” The administration argues that these policymaking positions are so critical to the government that agencies need the ability to remove poorly performing employees and that participating in a union would slow down that process.
The Federal Labor Relations Authority is an independent administrative federal agency established in 1979 that administers the labor-management relations program for the nation’s more than 2.1 million federal employees. The agency, which is led by a three-member panel, establishes policies and guidance related to federal sector labor-management relations and resolves disputes between federal agencies and bargaining units.
There’s no reason to believe that the Federal Labor Relations Authority, which is currently comprised of a Trump-appointed majority, won’t approve agency requests for approval to remove a reclassified Schedule F job from a bargaining unit, especially since it has been hostile to federal employee unions in recent years. Earlier this month, the panel issued a trio of blows to federal employee unions, undoing decades of precedent. In the first case, the panel changed the standard for when an agency must trigger bargaining after a policy change is issued—the result was a reduction in bargaining. In the second case, the panel removed the unions’ right to midterm bargaining. The third case made it clear that when an expiring bargaining agreement is extended while negotiations continue for a new contract, the incumbent contract is subject to the agency head’s approval. All three cases were approved 2-1 on a party line vote.
Given these recent losses by federal employee unions before the Federal Labor Relations Authority, it’s unlikely unions would prevail on blocking this executive order. This means that a federal employee who is currently represented by a federal employee union could be removed from representation if their position is transitioned to Schedule F and if the Federal Labor Relations Authority rules in the agency’s favor. The effect could be devastating for federal employees. Potentially hundreds of thousands of federal employees could have their membership in unions revoked, which could dramatically harm the unions’ ability to advocate on behalf of federal employees.
Federal employee unions aren’t the only target of the administration’s hostility. Trump and other senior administration officials have also long embraced, or at the very least seemed to support, the idea of a “deep state” of federal employees working against him. The deep state is a far-right conspiracy theory that partisan federal employees are working against Trump and his administration from within the federal workforce. In February 2020, then-acting White House chief of staff Mick Mulvaney gave a speech in which he said the “deep state” was “absolutely 100% true.” And more recently, Trump tweeted, “The deep state, or whoever, over at the FDA is making it very difficult for drug companies to get people in order to test the vaccines and therapeutics. Obviously, they are hoping to delay the answer until after November 3rd. Must focus on speed, and saving lives!” There is no evidence that federal employees at the Food and Drug Administration are slowing the process of a vaccine in order to wait until after the presidential elections in November.
For more than 130 years, Congress has worked to ensure the civil service is apolitical. Recent actions would undermine this and subject federal employees to unjustified hiring and firing based on who is in the White House. Executive Order 13957, an ill-advised policy that will politicize the federal workforce, is a prime example, and Trump should rescind it.
If the administration doesn’t rescind the order, Congress should exert its oversight authority and pass legislation to prevent the executive order from moving forward. The fastest way to do this would be to include a policy rider in an upcoming appropriations bill to block federal funds from being used to implement the executive order.
Safeguarding federal employees from a misguided executive order should not just be a bipartisan issue but a nonpartisan one. Millions of hardworking men and women who strive every day on behalf of all American people need protection. The executive order threatens to undermine our federal workforce and should not go into effect.