Executive Order Creates New Class of Federal Employees

President Trump signed an executive order on October 21, 2020 creating a new classification for federal employees. Per the order, employees that are in confidential, policy making positions would be categorized as Schedule F employees and would not be subject to traditional Title 5 workplace protections. These employees would also be barred from organizing against or appealing the administration. The order grants agency leaders broad discretion to hire and fire individuals in this schedule. 

The executive order reads, “Appointments of individuals to positions of a confidential, policy-determining, policy-making, or policy-advocating character that are not normally subject to change as a result of a Presidential transition shall be made under Schedule F of the excepted service.”

Under this order, there is no appeals process for employment decisions made in the Schedule F category. Due to the large scope of the executive order, many career federal employees could be converted to partisan, policy making positions. This new measure will effectively prevent public servants from enacting policies that go against the wishes of the administration; however, these positions are also not term appointments, meaning employees can remain in place despite changes in administration.

Subsequent guidance from OPM calls upon agency leaders to review positions within their agency and identify potential Schedule F positions. Agency leaders are then directed to petition OPM to have those positions converted.

OPM explains, “Agencies have 90 days to conduct a preliminary review of positions and submit petitions, with an additional 120 days to finalize that review and submit any remaining petitions. 

Several federal employee groups have expressed concern that the order would diminish the non-partisan, merit-based nature of the career civil service.

“Taxpayers already fund thousands of political appointees in the executive branch, through Presidential Appointments, requiring the advice and consent of the Senate and Schedule C political appointments. These positions already cost the public hundreds of millions and provide the public no transparency or visibility into those who are not confirmed by the Senate. Deliberate actions by Congress and the Supreme Court have differentiated these partisan positions from the career federal workforce which serves not based on political allegiance, but based on merit,” Senior Executives Association Interim President Bob Corsi explained in a statement. “Civil servants do not consider partisan politics when executing their continuously vital missions, including conducting vital health research, overseeing economic relief packages, protecting our national security and elected leaders, and delivering essential emergency aid. These missions require a merit-based test, not a loyalty test.”

Federal Salary Council Chair Ron Sanders, a Trump appointee, resigned after news of the order was shared, stating, “It is clear that its stated purpose notwithstanding, the Executive Order is nothing more than a smokescreen for what is clearly an attempt to require the political loyalty of those who advise the President, or failing that, to enable their removal with little if any due process.”

The National Treasury Employees Union (NTEU) filed a lawsuit suing President Trump and Michael Rigas, the Acting Director of the Office of Personnel Management (OPM) citing that “The order provides no details, data, or explanation for why competitive service selection procedures have impeded hiring of needed federal positions."