President Trump's Executive Orders Affecting Federal Labor and Employment Law Signify Continued Employer-Friendly Shifts

There have been a lot of changes lately with public sector employment and unions over the last few months.

Of course, first on everyone's minds is the Janus decision at the United State Supreme Court, which held that laws requiring public-sector employees who are not union members to pay union agency fees violate the First Amendment. We previously unpacked this decision in great detail.

Less well known are a series of executive orders that affect federal employees. While these changes do not directly impact private employers or state-level public employees, the executive orders show a considerable paradigm shift in employment law with this administration. As always, these kinds of moves help demonstrate to employers how the environment has changed or may continue to shift.

In May 2018, President Trump issued three executive orders (EOs) covering various issues in federal employment and labor law:

• First up is an executive order that explicitly removes any requirement to utilize "progressive discipline" before termination (in federal parlance, "removal") of an employee. A few quotes stand out, but these will likely not seem radical to those solely involved in private sector labor and employment.

Supervisors are not "required to use progressive discipline" and the "penalty for an instance of misconduct should be tailored to the facts and circumstances." Moreover, "[c]onduct that justifies discipline of one employee at one time does not necessarily justify similar discipline of a different employee at a different time." Finally, "[s]uspension should not be a substitute for removal in circumstances in which removal would be appropriate. Agencies should not require suspension of an employee before proposing to remove that employee, except as may be appropriate under applicable facts."

As background, federal employees who are subjected to suspensions longer than 14 days or who are removed have appeal rights to the Merit Systems Protection Board. Between managers' preference for progressive discipline and occasional risk aversion to the appellate process, many employees face lesser levels of discipline (and thus no appeal rights) for misconduct that would result in termination in the private sector at the first or second offenses. Beyond misconduct, the EO also asserts that there is a perception that poor performers are similarly handled in a lax fashion, and that this "inhibits the ability of executive agencies … to accomplish their missions."

• Another EO addresses employee use of "official time" for federal sector union representation. The EO re-characterizes this time as "taxpayer-funded union time." The EO seeks to interpret law (5 USC §7131) authorizing federal employees to represent labor organizations and perform "non-agency business" in a "manner consistent with the requirements of an effective and efficient government." "Federal employees should spend the clear majority of their duty hours working for the public" and "[a]gencies should eliminate unrestricted grants of taxpayer-funded union time and instead require employees to obtain specific authorization before using such time… [and] monitor use" of that time. The EO limits federal union representatives to no more than 25% of their paid time on union matters, with the possibility for de facto "advances" against future years' time allotments or unpaid leave for time exceeding this threshold.
• Finally, a third EO declares that federal sector collective bargaining agreements (CBAs) "often make it harder for agencies to reward high performers, hold low-performers accountable, or flexibly respond to operational needs. Many agencies and collective bargaining representatives spend years renegotiating CBAs, with taxpayers paying for both sides' negotiators. Agencies must also engage in prolonged negotiations before making even minor operational changes, like relocating office space."

This EO directs agencies to secure CBAs "in a manner consistent with efficient and effective Government." It details various priorities the agency should place in securing renegotiated CBAs, and declares that agencies should not take more than a year to renegotiate CBAs.

Significantly, the EO establishes a Labor Relations Group within the Office of Personnel Management (OPM) to develop "government-wide approaches to bargaining issues"; share information, analysis, and draft bargaining language; develop model ground rules setting limits for good faith negotiations, mediations, and impasse resolution. The Group will also receive information about term CBAs that are expiring soon and will issue renegotiations recommendations that are not subject to disclosure to unions. The EO also places limitations on bargaining over certain topics, and also establishes a public database of all term CBAs which will be maintained by the OPM.