How Do We Fight Schedule F and Protect Workers and Labor?

Since Trump briefly enacted Schedule F in 2020, labor unions have mobilized to push for an end to its threat to federal workers, while legal scholars debate the legal arguments to stop its implementation. The Biden administration is raising the issue, pushing for Congress to deliver a bill that President Biden promises to sign. But efforts to push draft legislation through Congress are stalled and are unlikely to be taken up before November, say pundits. (See below).

Others put more hope in a policy initiative by the Office of Personnel Management (OPM) to strengthen rules and processes for removing someone in a merit-based position, including strengthening the appeals process for permanent federal employees in the excepted services. (See main story). Federal unions are pushing Congress to act before the November election, and are calling on civil society to back that call. See sidebar for a list of actions you can take to help.

Here are leading efforts to stop Schedule F’s return (as of March 2024):

• President Biden has repeatedly suggested codifying protections in statute as provided in his Executive Order 14003, but Congress has yet to do that. Biden’s new Budget calls for Congress to change existing law to prevent Schedule F’s return. It states, “Americans deserve a Federal workforce selected and retained for its merit, skill, and experience, not favoritism or political loyalties.” The budget will be debated and revised before any vote.

• The Office of Personnel Management is finalizing new OPM rules proposed last September to strengthen merit-based principles and civil service protections, and to shield apolitical career professionals from being reclassified as at-will workers and let go. It seeks to protect them against arbitrary dismissals, and protect departments against political influence in staffing hires, while assuring they are led by experienced professionals committed to the role beyond any political affiliation. The new rule would:

~Ensure employees retain accrued job protections even when relocated or rescheduled to a different service classification/position/agency (unless they voluntarily move to a position that results in a different status).

~Establish new criteria and steps for moving employees from the competitive service, or between excepted service categories (including political appointees).

~Establish a process for career civil service employees to appeal any job transfers to the Merit Systems Protection Board if their job status or benefits change.

~Clarify that the category of “excepted” service for “confidential, policy-determining, policy-making, policy-advocating” is restricted to political appointments, not apolitical career civil service positions.

Source: OPM and CREW

The OPM created a ‘comments’ period for public feedback on its proposed rule. Among them, the watchdog group CREW suggested extending its new rule protections to the Senior Executive Service (see box). It applauded the OPM’s action, as have federal union leaders and Democratic Congressional officials. Meanwhile, Project 2025 advisory groups have written to the OPM to protest the pending rule.

1. The Saving Civil Service Act: In February 2024, Senators Tim Kaine (D-VA) and Representatives Gary Connolly (D-VA) and Brian Fitzpatrick (R-PA) reintroduced the Saving the Civil Service Act (S. 399; H.R 1002)), a bicameral (supported by both the House and Senate) bill to prevent any future presidential use of Schedule F by executive action. It follows an earlier proposed bill by the House in September 2022, the bicameral Preventing a Patronage System Act, as part of National Defense Authorization Act (NDAA). It was cosponsored by Rep. Abigail Spanberger (D-VA). While bipartisan Congressional support for S. 399 is growing, union officials and others are pushing for a floor vote before the November election. As of March, H.R. 1002 had 27 Democratic cosponsors and four Republican cosponsors; S. 399 had 16 Democratic cosponsors and one Independent cosponsor.

2. Federal Union efforts:  NFFE Executive Director Steve Lenkart recently testified at a Congressional hearing on the merit system, warning against Schedule F. His office is developing a proposal to prevent executive branch overreach and corruption and strengthen the checks and balances system, while preventing against the potential harms of Project 2025 reforms to the federal civil service. The draft proposal seeks to, among key goals: codify the employment of apolitical professional civil service employees; prevent forced conversion into political appointee equivalents who could be immediately terminated; prohibit private loyalty oaths; prohibit personal or private nondisclosure agreements (PNDAs); and prohibit non-FACA advisory groups to prevent undisclosed backdoor lobbying.

It would also preserve transparency, effectiveness, and veracity in the Executive Branch and independent agencies by ensuring open accountability and oversight by elected officials and the public, so that laws and regulations are enforced equally by and for all members of society. The NFFE proposal is in internal development, unpublished, and not yet for public review or comment. It represents one of several union-led initiatives to strengthen the federal workforce and employee protections, as well as our system of federal governance against corruption. NTEU, NFFE, and AFL-CIO officials are among union leaders mobilizing to inform the public and Congress about Project 2025’s threats.

— ACD