Schedule F to Return as 'Schedule/Policy' Classification of Federal Employees
The U.S. Office of Personnel Management has kicked off a rulemaking to bring back Schedule F under a new name and reclassify some federal employees to make them easier to fire, according to a fact sheet issued Friday by the White House. The change will allow agencies to “swiftly remove employees in policy-influencing roles for poor performance, misconduct, corruption, or subversion of Presidential directives, without lengthy procedural hurdles,” the fact sheet said. The National Treasury Employees Union -- which represents FCC staff -- didn’t comment Monday but filed a lawsuit in January over the executive order reviving Schedule F (see 2501220080).
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
OPM is expected to issue an NPRM this week on creating the new “Schedule/Policy” classification. According to the fact sheet, the proposal would allow the reclassification of employees with “policy-determining, policy-making, policy-advocating, or confidential duties” as at-will employees, meaning they can be fired at any time, with or without cause. The reclassified employees won’t have “access to cumbersome adverse action procedures or appeals.”
The fact sheet doesn’t give specifics about which federal employees would be affected, and it's not yet possible to know how it would apply at the FCC, administrative law professors told us. “OPM estimates 50,000 positions will ultimately be moved into Schedule Policy/Career, approximately 2% of the Federal workforce,” the fact sheet said. “The proposed rule does not directly move positions into Schedule Policy/Career. That will be done by a subsequent executive order after a final rule issues.”
Roger Nober, director of George Washington University's Regulatory Studies Center, said he expects the reclassification to be directed at “branch chiefs and office heads,” and possibly their deputies. Because the reclassification is an OPM rulemaking, it’s likely to take a round of comments and several months before a rule is issued.
Under former President Joe Biden, OPM created a rule intended to prevent Schedule F’s return, which clarified that a federal employee who earned civil service protections against termination would retain them until the worker voluntarily waives them. The OPM Schedule/Policy rulemaking will likely reverse or change that, academics told us. OPM will have to explain the rationale for reversing the existing rule roughly a year after approving it, said American University administrative law professor Jeffrey Lubbers.
Nober said the process to reclassify employees is likely as much about sending a message to federal workers as it is about actually arriving at a final rule. The effort is “a clear message to government workers” that their job is “to go along with the duly elected administration,” and “not to be exercising your own independent judgment.”
A lack of accountability “allows corruption to fester in agencies,” the White House fact sheet said. “Some bureaucrats also use the protections the system gives them to oppose presidential policies and impose their own preferences.”
Since the text of the proposed OPM rule hasn’t been released, it isn’t clear how an eventual reclassification would fare against legal challenges, said University of Cincinnati labor law professor Anne Lofaso. If the reclassification is too broad, it may be more vulnerable, she said, adding that labor unions looking to challenge reclassification are also likely to argue that the rule goes against Congress’ intent when it passed the laws creating the civil service.
The American Federation of Government Employees condemned the reclassification Friday (see 2504180032). “This is another in a series of deliberate moves by this administration to corrupt the federal government and replace qualified public servants with political cronies,” said AFGE National President Everett Kelley.