On May 2, 2025, the Office of Personnel Management (OPM) issued a proposed rule in the Federal Register, 90 Fed.Reg. 18820-18826 (available at Federal Register, Volume 90 Issue 84 (Friday, May 2, 2025) and at 2025-07575.pdf). This proposed rule modifies performance rating standards for SES employees, to (a) allow agencies to cap the number of employees who receive the highest rating levels by permitting use of a ‘forced distribution,’ and (b) eliminate alleged DEI policies in performance evaluation standards and in staffing rules for the Performance Review Boards who issue SES performance evaluations. This rulemaking is part of implementation of an executive order and revision on SES performance standard, which were analyzed in greater detail previously in this blog.
The deadline for comments is June 2, 2025. Comments may be submitted online at https://www.regulations.gov/commenton/OPM-2025-0006-0001.
OPM has separately proposed extending the ‘forced distribution’ to Senior Level (SL) and Scientific and Professional (ST) employees, as previously discussed in this blog, in a fashion that could also affect General Schedule (GS) employees as well. However, the specific changes in this proposed rulemaking do not affect the specific regulation that would apply to SL, ST and GS employees.
The legal validity of the proposed rulemaking and related changes to the SES appraisal system have not yet been tested in court, leaving open questions as to whether these revisions comply with the underlying statutes for the SES performance evaluation system, 5 U.S.C. §§ 4311-4314. For example, it is unclear whether a ‘forced distribution’ that limits higher-level ratings absent presidential approval would be consistent with the accuracy of evaluation requirement under 5 U.S.C. § 4312(a)(1), whether allowing presidential discretion over ‘4’ or ‘5’ level ratings cap exceptions in the ‘forced distribution’ system would violate 5 U.S.C. § 4314(c) (which places discretion for rating SES employees with supervising official and the Performance Review Boards at the SES employee’s employing agency rather than the White House), or whether the abolition of DEI standards in individual performance evaluations would conflict with the requirement under 5 U.S.C. § 4313(5) that SES employees be rated in part on their “meeting affirmative action goals” and “achievement of equal employment opportunity requirements.”
If you are an SES employee and wish to seek advice regarding your rights based on these changes to the SES performance evaluation system, consider contacting Gilbert Employment Law, P.C. to request an initial consultation.