What Federal Employees Should Know About “Schedule F”

President-elect Donald Trump has long campaigned on a promise to reign in what he sees as overreach by unelected federal employees. In October 2020, then-President Trump signed an executive order known as “Schedule F” that would have made it easier to terminate government employees by stripping them of certain protections. While the original order didn’t go anywhere due to President Biden winning that year’s election, Trump has promised to re-issue the Schedule F executive order on day one when he returns to office. Federal employees who may be affected by the proposed Schedule F should consider speaking to a Norfolk federal employment attorney. 

Legal Grounds for Terminating Federal Employees

Presently, it is much more difficult to terminate federal employees than private sector employees because federal employees are not at-will employees. Other than reductions in force, federal employees generally may be terminated only for “cause,” which includes both misconduct and poor performance. 5 U.S.C. Chapter 43 applies to performance-based terminations, while 5 U.S.C. Chapter 75 applies to both performance-based terminations and misconduct-based terminations. Poor performance under Chapter 43 means performance that fails to meet the established performance standards for the job at issue — in other words, situations where an employee isn’t meeting the bar. Misconduct under Chapter 75 includes, but is not limited to: 

• Failure to follow instructions
• Misuse of government property 
• Absence without leave
• Insubordination 
• Falsification 
• Lack of candor 
• Sexual harassment 
• Violations of laws or regulations
• Conflicts of interest
• Violations of security protocols

If you’re a federal employee facing either a Chapter 43 or Chapter 75 action, you should consider speaking to a Norfolk federal employment attorney. 

Due Process Rights for Federal Employees

Even if a federal agency thinks an employee has engaged in misconduct or is not performing the way they should be, that does not mean the agency can automatically terminate the employee or take another adverse action. The employee is still entitled to due process, which generally proceeds as follows (depending on the nature of the infraction): 

1. Informal notification and opportunity to improve: For performance-based actions under Chapter 43, the agency must notify the employee of unacceptable performance and give them an opportunity to bring their performance up to an acceptable level. 
2. Notice of proposed action: The agency must provide a notice of the proposed action and the specific grounds upon which it is based. 
3. Opportunity to respond: The agency must give the employee a reasonable time in which to respond to the proposed action orally and in writing. 
4. Final decision: The agency will then issue its decision on the proposed action. In some cases, the official who makes the decision must be in a higher position than the official who proposed the action. 
5. Appeal: An employee against whom an action is taken may appeal the agency’s decision to the Merit Systems Protection Board (MSPB). 

Federal employees facing disciplinary actions are entitled to representation by an attorney at all phases of the disciplinary process. Our Norfolk federal employment attorneys have extensive experience representing federal employees before the MSPB and can provide further guidance if you’re considering appealing an adverse employment action. 

What Schedule F Would Do

President-elect Trump’s 2020 Schedule F executive order would create a new classification of federal employees known as “Schedule F.” This schedule would include employees in “positions of a confidential, policy-determining, policy-making, or policy-advocating character not normally subject to change as a result of a Presidential transition.” When determining whether an employee is engaged in a “confidential, policy-determining, policy-making, or policy-advocating” position, the order directs agency heads to consider the following characteristics: 

• Substantive participation in the advocacy for or development or formulation of policy 
• Supervision of attorneys 
• Substantial discretion to determine the manner in which the agency exercises functions committed to it by law 
• Viewing, circulating, or otherwise working with proposed regulations, guidance, executive orders, or other non-public policy proposals or deliberations
• Conducting certain collective bargaining negotiations on the agency’s behalf 

Once an employee was determined to be a Schedule F employee, they would lose the due process rights they currently enjoy. As such, Schedule F would make it significantly easier to terminate many federal employees. 

President Biden rescinded the Schedule F executive order with his own executive order in January 2021, which also ordered agency heads who had already begun to implement Schedule F to cease those operations. The Office of Personnel Management (OPM) subsequently issued a final rule to reinforce federal employees’ current due process rights; define “confidential, policy determining, policymaking, or policy-advocating” positions as political appointments; and establish procedural requirements for moving positions from the competitive service to the excepted service. Senator Tim Kaine (D-Va.) introduced the Saving the Civil Service Act, which would have required the president to obtain Congressional approval before creating new job categories; however, that bill was blocked.

Is Schedule F a Sure Thing? 

Schedule F is merely a campaign promise at this time, so it remains to be seen whether President-elect Trump will reissue the order or how stringently agency heads will implement it. While campaign promises should ordinarily be taken with a grain of salt, this one carries more weight given that President-elect Trump previously made good on the same campaign promise during his first term. As it stands, there have been two successful efforts to block Schedule F — President Biden’s executive order and OPM’s final rule — but executive orders are easy to rescind and replace, and agency rules may be rescinded and reissued as presidential administrations come and go. We can also expect a potential second Schedule F executive order to face legal challenges, which could delay its implementation. At the end of the day, federal employees should start preparing now for a future in which they are considered at-will employees. 

Discuss Your Concerns With a Norfolk Federal Employment Attorney 

For more information about how Schedule F could affect you (or any other federal employment law issue), please contact a Norfolk federal employment attorney at Pierce / Jewett by calling 757-624-9323 or using our online contact form.