New Opm Rulemaking Protects Civil Service Appeal Rights For Employees

On September 18, 2023, the Office of Personnel Management issued a proposed rule in the Federal Register, 88 Fed.Reg. 63862-63885 (available at Federal Register, Volume 88 Issue 179 (Monday, September 18, 2023) (govinfo.gov)). The proposed rule is in response to attempts in the last Administration to convert large portions of the civil service into at-will “Schedule F” employees and strip them of their adverse action appeal rights. To prevent future attempts to create a “Schedule F”, the proposed rule formally provides for civil employees who have accrued adverse action appeal rights to retain those rights even if moving into a new position that would otherwise fall into a different appeal rights category (for example, moving from a competitive service position to an excepted service position) unless the employee is given advance notice of the change in status and voluntarily chooses to waive the rights. The proposed rule provides a mechanism for certain employees involuntarily moved into a position with lesser civil service protections to appeal to the Merit Systems Protection Board to reinstate their prior protections. Further, the proposed rule provides clearer definitions for the preexisting exception to appeal rights for employees whose positions are of a “confidential, policy-determining, policy-making, or policy-advocating” nature. To prevent possible future attempts to improperly expand this exception, the new definitions in the proposed rule delimit the exception to a more discrete group of employees. OPM accompanied the proposed rule with an extensive review of the history of civil service protections, in order to highlight the importance of these protections in preventing a return to the corrupt “spoils system” era of government.
Comments on the proposed rule are due by November 17, 2023.
If you are a federal civil service employee and wish to discuss your rights and obligations under federal civil service law, please consider contacting Gilbert Employment Law, P.C.to request an initial consultation.