New Rules of the Road

A few months ago, I wrote a post called “Rewriting the Rules of the Road” posing a simple question: “why do we do things the way we do them?” That question applies to a lot of what we do here at OPM, but nowhere more urgently than in two areas that have received a lot of attention recently: suitability and reductions in force.

Understandably, these topics generate strong reactions, so let me try to give you the “why,” not just the what.

What Is Suitability, and Why Does It Need Updating?

Most people think of “suitability” as a pre-employment concept – the background check you go through before you start a federal job. That is basically right. Suitability determinations exist to ensure the people entrusted with carrying out the government’s work on behalf of the American people are, in fact, trustworthy. Makes sense.

But under the old rules, suitability was almost entirely backward-looking. Once you cleared the threshold and accepted a federal job, that was essentially it – subsequent conduct was governed by a completely separate set of burdensome disciplinary procedures that in effect led to inaction: post-employment conduct that would impact whether someone was suited for federal service was largely left unaddressed.

Ask yourself the following question: if a federal employee were found to have repeatedly failed to file their taxes (by the way, this is not a hypothetical, as the IRS Inspector General has in fact documented this), misused government resources for personal benefit, or been convicted of criminal conduct, would you consider that relevant to whether they are suited for federal employment? I think most people would say yes. I certainly do.

Our new rules formalize OPM’s authority to take suitability actions based on exactly these types of post-appointment conduct. Conduct is conduct; whether it occurs before or after day one should not determine whether the government can address it through the most appropriate and efficient means available.

Some have argued that extending suitability actions to post-appointment conduct blurs the line between hiring vetting and employee discipline, and that employees lose procedural protections they would otherwise have under the adverse action process. That is a real tradeoff, and we have not been cavalier about it.

First, the rule is not designed to circumvent legitimate due process and defines a specific set of rules to ensure this does not happen. Rather, the rule is designed to ensure the right process is applied to the right conduct. Second, we are finalizing a separate rule to govern how suitability appeals – which will now be conducted by OPM – are handled, including maintaining decisional independence between the staff who make suitability determinations and those who adjudicate appeals. The goal is speed and accountability, not arbitrary action.

The RIF Rules: Why Performance Should Matter When Jobs Are at Stake

Now for the even thornier topic: reductions in force (RIF).

I have written before about how the federal government’s performance management system produces almost no meaningful differentiation among employees. Not because everyone is performing at an equally high level – they are not – but because the system is designed to generate ratings that are litigation-proof rather than reflective of actual performance.

Here is the problem with that in the context of a RIF: if you run a reduction in force under the old rules, seniority is the dominant factor. The person with the most years of service survives; the newer hire does not, regardless of who is actually better at the job. In a world of genuine grade inflation where almost everyone has the same rating, performance adds essentially nothing to the retention calculation. Seniority is the ball game.

This is exactly backwards. If an agency needs to reduce its workforce, the goal should be to retain the people who are best at the mission, not simply the people who have been around the longest. Merit matters – full stop. That is how every well-run organization approaches this question, and it is how we should approach it in government.

Our RIF rule changes the calculus by giving real weight to recent performance ratings in retention decisions. Under the proposed scoring system, an Outstanding rating is worth 7 points, Exceeds Fully Successful earns 5 points, Fully Successful earns 3 points, and Minimally Successful or Unacceptable earns 0. Seniority is not eliminated; it remains a meaningful tiebreaker. But it no longer trumps performance by default (no pun intended).

Obviously, this only works if performance ratings are honest. If agencies continue to hand out Outstanding ratings like Halloween candy, the new system will produce the same result as the old one. That is why our broader performance reform agenda — redesigning appraisal systems, distributing ratings across a meaningful curve, making ratings connect to actual outcomes like pay and retention — is inseparable from this RIF proposal. You cannot reform one piece of the system in isolation. They are interlocking gears.

On the Appeals Changes

Both the suitability and RIF rules include proposed changes to the appeals process, moving jurisdiction from the Merit Systems Protection Board to OPM. I know this has generated some concern, and I want to address it directly.

The MSPB was designed, in 1978, to provide independent review of federal employment actions. That is a legitimate and important function. The concern we have is about timeliness and efficiency, not about the principle of independent review.

The current MSPB backlog stretches to many months and, in some cases, years. That is not good for employees who deserve timely resolution of their appeals and it is not good for agencies, which are left in management limbo while cases wind through a slow and costly adjudicatory process. Our proposed internal appeal processes are designed to be faster, more efficient, and, critically, structurally independent, with separate staff handling determinations and appeals.

I will say this plainly: if our internal process does not deliver genuine independence and a fair opportunity to be heard, it will fail – and deservedly so. We are committed to building something that works, not just something that is faster.

The Bottom Line

These rules, taken together, reflect a single animating principle: the federal government should be able to manage its workforce the way any high-performing organization does. It should be able to address conduct that is genuinely inconsistent with federal service. It should be able to retain its best performers when it has to make hard choices about funding priorities. And it should be able to do all of this without a multi-year odyssey through an appeals process that often resolves nothing other than to rack up attorneys’ fees at the expense of the American taxpayer.

None of this is about making it easy to fire people arbitrarily. An organization that fires arbitrarily will lose the talent it needs. We are trying to build the opposite of that: a government that is genuinely attractive to excellent people because they can see that excellence matters, that conduct matters, and that the rules are designed to serve the mission rather than avoid it.