In order to ensure a merit-based, nonpartisan federal workforce, Congress passed the Civil Service Reform Act of 1978, which guarantees that all non-probationary civil service employees in the competitive service are entitled to due process before they can be terminated or suspended for more than 14 days. Due process rights include 30 days’ advanced notice, an opportunity to review evidence supporting the action and to respond to the proposed action, entitlement to an attorney or other representative, a written decision, and the right to appeal the decision to the Merit System Protection Board (“MSPB”). A vast majority of federal employees are part of the competitive service and thus have robust civil service protections against adverse employment actions.
In October 2020, near the end of his first term, President Trump issued Executive Order 13957, which directed executive branch agencies to convert certain positions in the competitive service into a newly-created category of the excepted service, “Schedule F.” Federal employees reassigned as “Schedule F” could be terminated at-will for any reason without the appeal rights afforded to civil service employees. By claiming that certain positions with civil service protections are “positions of a confidential, policy-determining, policy-making, or policy-advocating character,” the agency could reassign employees to Schedule F, under which it could more easily fire them.
President Biden was quick to rescind Trump’s Schedule F Executive Order upon taking office. However, President Trump and those who have been nominated to serve in his incoming Administration have indicated that implementing Schedule F remains a top priority. Some reports have indicated that the Trump Administration has identified up to 50,000 federal positions it intends to eliminate through the creation of Schedule F.
So, what will happen if President Trump seeks to reinstate Schedule F? Although the exact methods for implementing Schedule F and the actions to follow remain to be seen, there are a number of challenges that could delay the execution of such a large-scale reclassification. In the Spring of 2024, the Office of Personnel Management issued regulations attempting to protect employees reassigned to Schedule F by “[c]larifying that the status and civil service protections an employee has accrued cannot be taken away by an involuntary move from the competitive service to the excepted service, or from one excepted service schedule to another” and limiting the scope of positions that fall into the category of “confidential, policy determining, policymaking, or policy advocating.” While the Trump Administration can repeal these regulatory protections, that process takes time. Meanwhile, legal advocates are likely to challenge Schedule F on a number of grounds.
If you have any questions or concerns about how Schedule F could impact you or your rights as a federal employee, please contact us.
