Everything But the Kitchen Sink
OPM Proposes Overhaul to Poor Performance and Discipline Procedures
The changes keep coming. Since January 2025, the Office of Personnel Management (OPM) has proposed approximately 20 new rules and regulations. Topics include probationary and trial period termination appeals, suitability and fitness procedures, suitability action appeals, reduction in force procedures, reduction in force appeals, elimination of time and grade requirements, use of administrative leave for workforce realignment, performance appraisal processes, schedule policy/career, and more.
Today, I am focusing on a recent joint proposal from OPM and the Merit Systems Protection Board (MSPB) to overhaul poor performance and discipline procedures. (OPM and MSPB’s Proposed Rule on Promoting Employee Accountability) Most buzz about these regulations focuses on the proposed elimination of the Douglas factors, which are a set of 12 factors that federal agencies use to determine the appropriate disciplinary action for employee misconduct. However, the proposed regulations go far beyond just the Douglas factors. These regulations touch nearly every aspect of the procedures governing performance-based, disciplinary, and adverse actions.
Feeling overwhelmed yet? Let's hop in, because there is a lot to unpack and there is something for everyone.
The Fast Track
One persistent theme in the proposed regulations is speed. OPM is pushing agencies to act quicker and cutting employee response time.
On the performance front, OPM has proposed a maximum 30-day opportunity period on performance improvement plans (PIP). The proposal notes that agencies have the discretion to extend the opportunity period if necessary; however, if finalized, the vast majority of federal employees would only have 30 days to demonstrate acceptable performance before their removal could be proposed.
Additionally, the proposal directs agencies to implement performance-based adverse actions (reduction-in-grade or removal) no less than 30 days from the day the employee receives a notice of the proposed action. They are also limiting the reply period for employees who have received a proposed removal to 7-10 calendar days.
There are similar changes on the misconduct front. For suspensions of 14 days or less, agencies are strongly encouraged to issue decisions within five business days of the end of the employee’s reply period. For adverse actions (suspensions over 14 days, reduction-in-grade, and removal), agencies are directed to implement the actions no more than 30 days from the notice date, and any notice periods over 30 days must be reported to OPM. This is an interesting requirement, because 5 U.S.C. 7513(b) requires that employees have “at least 30 days’ advance written notice” of an adverse action under 5 U.S.C. Chapter 75 “unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed.” (5 U.S.C. 7513(b) (emphasis added)). Given this limited exception, the result is that agencies essentially have one day to implement an adverse action in order to comply with the law and avoid OPM’s reporting requirements.
Reply periods have also been limited for misconduct actions. For suspensions 14 days or less, the proposed regulations state that a reasonable reply period is “not less than one business day and no more than five business days.” For adverse actions, the reply period is 7-10 calendar days with limited discretion for extensions. (And, yes, the regulations do use business days for short suspensions and calendar days for adverse actions).
Free Rein
The next theme is autonomy. OPM and MSPB continue to loosen (or even eliminate) guidelines traditionally used by agencies to determine the appropriate disciplinary or adverse action. They are giving supervisors more power with less rules.
The buzziest change is the proposed elimination of the Douglas factors, which, as I mentioned previously, are 12 factors that agencies use to determine if a penalty is reasonable based on the employee’s misconduct. The Douglas factors originated in a 1981 MSPB case, Douglas v. Veterans Administration. These factors include:
The nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated;
The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position;
The employee’s past disciplinary record;
The employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability;
The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s ability to perform assigned duties;
Consistency of the penalty with those imposed upon other employees for the same or similar offenses;
Consistency of the penalty with any applicable agency table of penalties;
The notoriety of the offense or its impact upon the reputation of the agency;
The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question;
Potential for the employee’s rehabilitation;
Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter; and
The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.
Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981).
Not every factor applies in every case. These factors were intended to provide a framework for supervisors to determine an appropriate penalty. The MSPB also considers these factors when evaluating whether the agency’s selected penalty is reasonable during an appeal. If you were the subject of an adverse action, you likely argued (either in your reply or on appeal to the MSPB) that the penalty was excessive based on some (or many) of the factors listed above.
The MSPB has proposed eliminating these factors because they believe they have become a “checklist” and are “overly formalistic and rigid.” They propose to replace the Douglas factors with a more amorphous “totality of the circumstances” test, stating that penalties should be considered on a case-by-case basis. What works for one case, does not work for all cases.
Another significant proposal is prohibiting the use of tables of penalties. Tables of penalties are agency guidelines that recommend a range of disciplinary actions based on the type of misconduct and whether the offense is repeated. For example, a recommended penalty for unprofessional conduct may be as follows:
First Offense: Reprimand to removal.
Second Offense: 5-day suspension to removal.
Third Offense: 14-day suspension to removal.
Most federal agencies use these tables to ensure consistency across work units; however, OPM calls these tables a “paint-by-number” approach.
OPM also proposes to eliminate progressive discipline, which is the practice of addressing misconduct through increasingly severe penalties.
Finally, OPM’s proposed regulations tell agencies that the use of comparators is not required. Comparators are similarly situated employees, and supervisors will often consider the penalties imposed on those similarly situated employees to determine whether their proposed penalty is reasonable. OPM’s proposal states this practice is not required, but if a supervisor chooses to consider comparators, they must be in the same work unit, under the same supervisor, and subject to the same disciplinary standards.
No Clean Slate
Last, but not least, is the theme of visibility.
OPM’s proposal prohibits agencies from removing documentation of poor performance or misconduct from an employee’s official personnel file (OPF). Specifically, they prohibit agencies from entering into settlement agreements in which the agency agrees to remove documentation from the OPF in exchange for an employee dropping an appeal and/or complaint. OPM’s intent is to ensure future federal employers are fully informed of an employee’s past transgressions. OPM’s commentary on the proposed regulations refers to the “Dance of the Lemons,” a phrase used to describe employees that are moved around from job to job without accountability.
The Bottom Line
If OPM’s changes are adopted, it means less time for you to defend yourself against a performance-based, disciplinary, or adverse action, less guidance for your supervisor, and high probability of lasting, career impact.
First, OPM’s shortened reply period (with limited opportunity for an extension) leaves you little time to seek and secure counsel should you be the subject of a performance-based, disciplinary, or adverse action. It is critical that you act fast if you find yourself in this situation.
Second, less guidance for supervisors means higher probability of inconsistent actions. In my past role as a management advisor, I found most supervisors crave guidelines and structure. First-time supervisors in particular want to know that their inexperience and emotions are not leading them astray, and they want a method to organize their thoughts. The absence of Douglas factors, tables of penalties, and comparators cuts down on the information they have available and places their decision making in a vacuum. To be fair, OPM’s proposed regulations do mandate more supervisory training – requiring agencies to train supervisors annually on subjects such as probationary and trial periods, awards, hostile work environment, retaliation, harassment, and more. This is a good thing. However, I am concerned that generic classroom or computer-based training will not be an adequate substitute for case-specific information and analysis.
Finally, the inability to negotiate a clean record settlement agreement significantly increases the risk that any performance-based, disciplinary, or adverse actions taken will stay in your file permanently. This means your reply period is more critical than ever, because once the final decision is made, it will be quite hard, if not impossible, to get it out of your file. This will likely lead to an increase in MSPB appeals and Equal Employment Opportunity (EEO) complaints. (OPM even estimated increased MSPB and EEO workload in their projected costs for these regulations).
What next? We wait. OPM and MSPB’s proposed regulations were issued on July 2, 2026, and the public comment period closes on August 3, 2026 (today!) OPM and MSPB will still need to adjudicate public comments and issue final regulations before these changes are put into practice. Even after final regulations are issued, it is still unclear how the new standards will be applied. Will the "totality of the circumstances" test apply retroactively to actions that have already been taken but are pending before the MSPB? What about disciplinary actions that are in progress? What happens to PIPs over 30 days that are in progress? We have a lot of questions and few answers. As always, staying informed and seeking help (quickly) is your best defense in this ever-changing environment.
