OPM urges agencies to rethink employee discipline

The Office of Personnel Management is advising federal agencies that they have wide discretion in setting up policies for disciplining employees for infractions and don't need to rely on "progressive discipline" and "tables of penalties" as management tools.

In an Oct. 10 guidance, OPM Director Dale Cabaniss cautioned government agencies about the processes they are using to discipline and remove underperforming and troublesome employees. The memo noted that "progressive discipline" -- the practice of instituting the least dire consequence for a first action and escalating punishment for subsequent infractions -- is not required by law. Cabaniss also said that use of "tables of penalties" that set out adverse consequences for infractions are similarly not required.

In an accompanying seven-page document, OPM stated: "Each employee's work performance and disciplinary history is unique, and disciplinary action should be calibrated to the specific facts and circumstances of each individual employee’s situation." According to the document, this approach is backed up by legal precedent in the federal courts and at the Merit Systems Protection Board.

The guidance tracks closely with a Sept. 17 proposal from OPM that encourages agencies to stop using tables of penalties. The proposed rule also eliminates the practice of removing adverse action information from employee personnel files as a condition of settlement agreements and looks to introduce new speedbumps into each new employee's probationary period (usually one year) to obtain more managerial input on performance and suitability.

The proposed end of progressive discipline drew fire from union members in comments.

"The abolition of progressive discipline and discouraging use of penalty tables will lead to widely varying and incoherent disciplinary treatment for similarly situated employees, regardless of whether the same or different supervisors are involved," multiple union members stated in language supplied by the Association of Federal Government Employees. "This will result [in] workplaces where favoritism, including racial, ethnic, gender or other non-relevant employee attributes will be tolerated as the basis for potential discipline."

Comments on the proposed new rule are due Oct. 17.