OPM Encourages Leaders to Question Progressive Discipline Model

In a memo to agencies and a guidance posted last week, the Office of Personnel Management is encouraging agencies to step away from progressive penalties and tables of penalties in deciding what disciplinary action to take against employees. The guidance was issued to assist in the implementation of White House Executive Order 13839, which pushed agencies to promote greater accountability in their offices.

According to the OPM memo to agencies from Director Dale Cabaniss, progressive discipline is the use of the least serious disciplinary or adverse action possible when correcting misconduct. Penalties then escalate with additional offenses. Many agencies have also implemented a table of penalties which provides a list of common infractions along with a suggested range of penalties for each infraction. The memo also notes that collective bargaining proposals further impose the use of progressive discipline and tables of penalties.

The memo continues to highlight that neither the use of progressive discipline nor the adoption of a table of penalties is required by statute, case law, or OPM regulations. The memo also notes that Congress has given individual managers maximum flexibility in pursuing adverse actions.

The guidance issued to agencies explains, “Agency policy should not require or permit supervisors and deciding officials to use progressive discipline as a default rule or benchmark when determining the appropriate penalty. Rather, each employee’s work performance and disciplinary history is unique, and disciplinary action should be tailored to the specific facts and circumstances of each individual employee’s situation.”

The guidance notes, as an example, that suspension should not be given to an employee if their conduct warrants a removal simply because a suspension follows the progressive model.

The guidance encourages supervisors to weigh any relevant aggravating and mitigating factors when making disciplinary decisions.

The guidance also calls upon agencies to clarify that tables of penalties are mere guidance and not an exclusive or exhaustive source of such guidance. Instead, the guidance calls upon supervisors to use the Douglas factors to propose and effectuate appropriate penalties.

“A table of penalties does not and should not replace supervisory judgment nor should supervisors rely on this tool instead of using their best judgment, given the totality of the circumstances,” the guidance explains. “It is vital that supervisors use independent judgment, take appropriate steps in gathering facts, and conduct a thorough analysis to decide the appropriate penalty. There is no substitute for management judgment.”

OPM made similar calls to agencies in a proposed rule on the implementation of executive order 13839 which can be reviewed and commented on before 11:59pm, October 17 by clicking here.