Outten & Golden: Empowering Employees in the Workplace

News from the Courts: Executive Orders Partially Struck Down

September 7th, 2018 | The Attorneys of Passman and Kaplan

News from the Courts: On August 25, 2018, Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia issued a 122-page memorandum opinion in American Federation of Government Employees et al. v. Trump, No. 1:18-cv-1261. The Court struck down significant portions of the three May 25, 2018 executive orders concerning federal employees.

As previously analyzed in this blog, Executive Orders 13,837-13,839 announced a number of new policies relating to federal employees, both as to the rights of individual employees and the rights of federal sector unions who represent federal employees. After the executive orders were issued, a number of federal sector unions all sued to block implementation; their various lawsuits were then consolidated into the single lawsuit in front of Judge Jackson, which then proceeded to expedited cross-motions for summary judgment. The unions focused their attack on provisions chiefly dealing with the union issues; certain other provisions whose effect was not limited to unions were not included in the lawsuit.

Judge Jackson ultimately found that a number of provisions in the three executive orders violated federal statutes governing collective bargaining, chiefly by pre-deciding major issues which Congress had intended to be decided between unions and agencies through bargaining. Included in the list of provisions which the court struck down were restrictions on the amount of official time and the availability of below-market office space to unions. Concerning individual employees, the court also struck down Section 4c of Executive Order 13,839, which limited Performance Improvement Plan (PIP) periods to 30 days unless the agency in its sole discretion opted for a longer period.

However, several other provisions which impact federal employees remain in effect. Section 5 of Executive Order 13,839, which limits the ability to modify disciplinary or performance records in settlement, was not challenged in the lawsuit and fell outside the scope of Judge Jackson’s Memorandum Order. Sections 2f-2g of Executive Order 13,839, which set time limits for processing of disciplinary actions, also fell outside the scope of the lawsuit. These provisions potentially remain on the books, although outstanding issues remain open (for example, the Office of Personnel Management (OPM) has not yet completed its review of the need for possible implementing regulations).

This blog was originally published by Passman & Kaplan, P.C., Attorneys at Law on September 4, 2018. Reprinted with permission.

About the Author: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness. The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

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