Proposed Rule Instituting the Cummings Act, an Aid to Federal Whistleblowers
The Office of Personnel Management (OPM) has proposed a rule to implement new regulations governing Federal anti-discrimination and whistleblower protection.
In employing the Elijah E. Cummings Federal Employee Antidiscrimination Act of 2020, OPM will direct agencies to act against federal employees found responsible for discriminatory or retaliatory acts and be more transparent with the public when such incidents are adjudicated. The act became law on January 1, 2021, and honors the late dedicated lawmaker.
Under the proposed rule, agencies must post a notice on their public-facing websites within 90 days of fines imposed for discrimination or retaliation. In addition, agencies are required to notify the public whenever they take adverse personnel action against a federal worker who is found to have intentionally committed discriminatory acts, including retaliatory acts. Moreover, the proposal requires agencies to inform the Equal Employment Opportunity Commission (EEOC) within 120 days following action or receiving a final decision from EEOC.
In a similar vein, OPM instructed agencies to develop a system for tracking discrimination or retaliation claims prior to January 1, 2022.
As part of the change to agency regulations, OPM will require federal agencies provide training programs to employees, including supervisors and managers, on antidiscrimination and whistleblower laws. Organizations that do not already have an orientation program that outlines employees' rights must train new employees within 90 days after hiring. Agencies must also provide refresher training on employee antidiscrimination and retaliation rights every two years.
“It becomes much scarier, and much harder to expect somebody who has knowledge of wrongdoing, to trust the system to protect them,” stated Jeff Neal, Former Chief Human Capital Officer at the Department of Homeland Security (DHS), “It creates huge problems for us as a country that we’re doing more and more that seems to make it harder to expect people to actually do the right thing.”
By implementing statutory changes and amending anti-discrimination regulations, OPM's proposed rule is set to improve efficiency and effectiveness and incorporate technical revisions. Published to the Federal Register, the public can comment on the proposed rule until February 4, 2022.