Administration Moves to Expand OPM’s Authority to Fire Federal Employees

Action: A Presidential memorandum issued on March 20 directs that regulations should be amended to grant the Office of Personnel Management (OPM) the authority to make final suitability decisions for Federal employees. It also directs OPM to amend the existing regulations governing suitability determinations and actions based on the post-appointment conduct of federal employees.

Key Insights

• Suitability decisions for most federal employees are governed by 5 CFR Part 731, which specifies factors that OPM or the employing agency consider when determining federal employee suitability, including engaging in misconduct, making intentionally false statements, illegal drug use, excessive alcohol use, or attempting to overthrow the government. The regulation also delegates most suitability decisions from OPM to the employing agencies.
• OPM’s involvement in suitability determinations has come under scrutiny in recent lawsuits tied to the Administration’s attempts to shrink the Federal workforce. Some employee terminations were overturned after a court ruled that OPM lacks the authority to dictate hiring or firing decisions of other Federal agencies.
• Rewriting the existing regulations as directed by the memorandum will significantly expand OPM’s role in making Federal employment decisions some observers see this as a response to recent court rulings.
• It is unclear whether OPM will also seek to amend the factors considered when making suitability determinations, though expanding such factors could be used to justify dismissing additional Federal employees.
• A previous Executive Order directed the development of a hiring plan that would prevent the hiring of individuals unwilling to “faithfully serve the executive branch,” a provision that some criticized as a “loyalty test to both the administration and to its values.”