EEO Overhaul
The EEOC has proposed a significant overhaul to the decades-long process for resolving federal EEO complaints. This update breaks down the proposed changes and tells federal employees what to expect next.
The Equal Employment Opportunity Commission (EEOC) plans to revise the decades-old process for resolving federal EEO complaints.
In August, the EEOC issued a proposed rule to overhaul the EEO complaint process and invited public comment. (EEOC’s August 28, 2026 Proposed Rule) The comment period closed on September 28, 2026 with 2,324 comments. We can expect a final decision in the coming months.
What does the proposal say?
Most significantly, the proposal would:
(1) eliminate pre-complaint EEO counseling, and
(2) eliminate employees’ option to request a hearing before an administrative judge after filing an EEO complaint.
Without pre-complaint EEO counseling, the federal government would move to a direct filing system, and employees would simply have 60 days from the date of the alleged discriminatory act to file an EEO complaint with their agency. There would be no informal process to attempt resolution.
Without a hearing option, employees would no longer have a choice between a hearing or a final agency decision after filing an EEO complaint - it means a final agency decision for everyone. If an employee is unsatisfied with their final agency decision, they could appeal it to the EEOC and request a hearing at that time, but a hearing is not guaranteed. The EEOC would have the discretion to say no.
The EEOC states that these changes are proposed to “streamline processing” and “improve effectiveness.” For example, they claim that pre-complaint EEO counseling is ineffective and not proven to resolve cases, and the current EEOC hearing process takes too long.
This proposal has the potential to completely change the EEO game, and it is definitely one to watch.
Want to learn more?
A more in-depth look at the current, federal EEO complaint process can be found here.
Acing the Test
The Office of Personnel Management (OPM) has revised the essay questions required by their May 2025 Merit Hiring Plan. This update explains why they made the change and what you can expect going forward.
The Office of Personnel Management (OPM) has updated its required essay questions for job applicants.
As a refresher, OPM’s Merit Hiring Plan, which was published on May 29, 2025, directed federal agencies to ask job applicants four essay questions, which included a question about the applicant’s favorite executive order or policy initiative - it was question #3.
In mid-September, a federal judge blocked agencies from asking applicants this question. The ruling came after three unions sued the government, arguing that the essay question could be used to determine an applicant’s political views which could then potentially be used to make hiring decisions. Discrimination based on political affiliation is a prohibited personnel practice under the Civil Service Reform Act of 1978.
OPM has now issued a revised question 3 and directed agencies to include it in job announcements that close September 26, 2026 or later. It reads as follows.
In this role, you will be expected to professionally and efficiently implement executive direction. Provide an example where you implemented leadership direction on a strategy or policy decision that differed from your own recommendation.
OPM also directed agencies to develop a new fifth question and included the following sample text.
This position supports [agency]’s mission and current priorities, including [insert 1–3 current agency-wide priorities]. Describe how your skills and experience would help the agency advance those priorities in this role.
Keep in mind that these questions are only required in competitive service job announcements for positions at the GS-05 level or above. They are optional (not mandatory) for “merit promotion” announcements, which are announcements typically aimed at current and former federal employees, eligible veterans, and those with non-competitive appointment eligibility.
Want to learn more?
You can find more information regarding prohibited personnel practices here.
Farewell, Douglas Factors
The MSPB has officially ousted the Douglas Factors. This update provides insight on how federal agencies will handle future disciplinary cases in light of this change.
The Douglas Factors are officially out.
The Merit Systems Protection Board (MSPB) has amended its regulations, and federal agencies are no longer required to consider the Douglas factors. The Douglas factors are a 12-factor test that has been used for decades to determine the reasonableness of an agency’s penalty in disciplinary cases. Instead, federal agencies will only be required to explain why their chosen penalty is reasonable given the “totality of the circumstances.” MSPB’s new regulations were published on September 3, 2026, and they will go into effect next Monday, October 5, 2026.
Does this mean that federal agencies will no longer consider the Douglas factors? Not necessarily. This new rule only says that agencies are no longer required to consider the Douglas factors in every case. Bottomline: You can’t catch them on a technicality if they forget to include all 12 factors in your decision letter. However, it is likely that agencies will still consider some of the Douglas factors in future disciplinary cases. For example, it is hard to imagine a deciding official would not consider the first Douglas factor (nature and seriousness of the misconduct) in most situations.
Regardless of whether an agency continues to consider the Douglas factors, remember that they must still prove that their action promotes the efficiency of the federal service and prove the reasonableness of their penalty. Plus, they must also still comply with the procedural requirements of 5 U.S.C. Chapter 75 (including advance notice, required timelines, right to reply, etc.), if applicable.
Want to learn more?
A more in-depth look at the Douglas factors can be found here.
You can also find more information on disciplinary and adverse actions here and information on MSPB appeals here.
Shifting MSPB Appeals
Appeals of reduction in force (RIF) actions, probationary and trial period terminations, and suitability actions have shifted from the MSPB to OPM. This update provides employees with the status of the transition and key resources to ensure their appeals are filed with the proper agency.
The move to shift appeals of reduction in force (RIF) actions, probationary and trial period terminations, and suitability actions from the Merit Systems Protection Board (MSPB) to the Office of Personnel Management (OPM) is nearly complete.
Both OPM and MSPB issued final regulations to shift these three categories of appeals late this summer and the change took effect this month. All probationary and trial period terminations and RIF actions that are effective on September 2, 2026 or later must be appealed to OPM, and all suitability appeals filed after September 2, 2026 must be routed to OPM. The MSPB will only hear appeals of terminations and RIF actions that occurred prior to September 2, 2026 and suitability appeals that were filed prior to September 2, 2026.
Employees should also be aware that neither the MSPB’s website nor the MSPB appeal form have been fully updated yet. You may still see references to RIF, probationary, trial, and suitability appeals throughout. The MSPB has begun the process to update its appeal form with these changes, but the process will not be complete until later this year. (MSPB’s Proposed Appeal Form)
However, employees can visit OPM’s website and find instructions for each type of appeal (Probationary and Trial Period Appeals, RIF Appeals, and Suitability Appeals), and OPM is directing federal employees to file all new appeals through the OPM eFile system.
Employees should pay careful attention to ensure they do not mistakenly file an appeal with the wrong agency. Given these significant changes and evolving guidance, federal employees should consider contacting an experienced federal employment law attorney for assistance when filing these types of appeals.
Want to learn more?
A more in-depth look at suitability determinations that may give rise to suitability appeals can be found here.
You can also find more information regarding reductions in force here and information regarding probationary and trial periods here.