The second Trump administration has begun with a flurry of executive orders. Many will have far-reaching effects on the federal workplace if they hold up against inevitable court challenges.
We spoke with a DC-area employment lawyer whose firm specializes in representing federal government workers. Alan Lescht, of Alan Lescht and Associates, says the steps the administration has taken fall into these main categories.
Schedule F
The administration has restarted an effort it undertook in the waning days of Trump’s first term.
The workers in this group, known as Schedule F workers, are now being referred to as Policy/Career workers, Lescht says. It’s not just a new name. These workers — the highest-paid in the GS14 and GS15 tiers — would lose their protections against at-will employment.
“We’re talking about the most experienced people in the government,” Lescht says. “These are the people that know how to get things done, that have institutional knowledge, and that don’t need to be trained. They’re actually the people that typically train the incoming people.”
He adds that, “Many of the 14s and 15s that they want to lump into this category have nothing to do with making policy. They follow instructions.”
However, he adds, the Biden administration added a rule — which cannot be overturned by executive order — that the affected workers are able to challenge their reclassification. “We fully expect to be litigating these issues,” Lescht says.
Senior Executive Service
Trump has also issued an executive order affecting workers in the Senior Executive Service (SES). Lescht likens these to “the chief operating officers” of their agencies. “These are the people that make sure the lights are on, everyone’s working, and they’re managing the businesses,” he says.
The executive order says “something to the effect that we’ve got to watch them very closely to make sure that they follow instructions properly. And that they’re following the policy,” Lescht says — “suggesting, of course, that a political affiliation is important in the SES.”
He adds that these provisions are based on “a myth.” “Following instructions in the federal workforce, and failing to follow instructions, are very important under the existing due process system. … The notion that a federal employee can’t be fired — it’s just a myth, and it’s just false.” He says thousands of federal workers file appeals of dismissals every year. “This notion that you need to have executive orders stating that federal employees need to follow directions is just false. It’s already there.”
“The federal government spends a lot of time vetting people, training people. And once they’re experienced, you don’t want to just jettison people who know what they’re doing if the reason for their removal is untrue. And the whole idea is that The Civil Service should support Democrats and Republicans alike,” Lescht says.
Plus, Lescht says that, “The existing system works.” For example, if a manager says “’We have 20 people; we can do the job with 18.’ All they (have to) do is put it in writing, explain it, and hit send. That’s it,” he explains. “You don’t have to obliterate the system that we have in place.”
Lescht says that this isn’t the first time a broad appeal has been made to slash the federal workforce. But they don’t tend to work. “Even if they do try to reduce headcount, they find that in order to achieve what they want to get done, in order to just get things done, you need people who know what they’re doing.”
DEI
Federal employees have been getting memoranda that their agencies are closing all DEI offices and programs. The memos are telling workers that they have to report any DEI-related activities, on the notion that DEI programs are hiding under deceptive names. Workers have 10 days to report on these supposedly nefarious programs or face unspecified adverse consequences.
Lescht says it’s not just DEI office employees who are affected. He’s gotten calls from other federal workers who have been put on administrative leave “pending a decision, and I suppose it’s going to be pending a proposed removal.” He says that many of the workers staffing DEI offices have been transferred from other departments. And that “DEI may only be a small portion of what they’re doing.”
“The idea that you’re asking people to call about their colleagues and report on them … is just creating a very toxic workplace,” Lescht says.
Probationary Workers
Most federal workers have a two-year probationary period before they get the due process protections against firings. Lescht says the administration has asked for a list of all such employees.
“I can’t imagine what they’re going to do with that list of people, other than think about who’s going to be let go,” Lescht says. “They’ve already canceled all job offers that have been made to people that haven’t started. They’ve even canceled summer internships at the DOJ.”
That puts workers in a double bind: “The federal government has had the hardest time hiring young people,” Lescht says. And the focus on new probationary workers isn’t going to help.
“(And) if you stay in the government for X number of years, and you reach the highest rank you possibly can, well, the reward you’re going to get is: ‘We’re going to take away your due process rights.’ I mean, who’s going to want to sign up for this?”
What Can Workers Do?
Lescht says the most important thing any federal worker can do right now seems simple. But generally it isn’t as easy as it sounds.
“Document the work that you do on a daily basis,” he says. This process could help if you’re a Schedule F worker who is erroneously called a policymaker. Or if you are someone who is being let go because of DEI activities. “I think it’s going to be very important for people to sit down and have a handy list of what they do in their job,” he says.
Lescht says that when he asks people what they do, they often respond with a job title. “And you know, these job titles in the government, they can be a mouthful, right? Then the question is, well, ‘What do you actually do?’ And it’s sometimes it’s hard for people to explain,” he says. “I think people need to sit down and have a very clear statement of what they do. And then after they do that, to extrapolate what percentage of your time is spent on this and that. And that’ll be a good thing to be able to have handy to use if you have to defend against a proposal that contains facts that are inaccurate.”
Trump has also ordered federal workers working remotely to head back to the office. Lescht says that, while most of those who work remotely requested disability accommodations through their doctors, some have been approved for remote work by their supervisors without going through the formal process. “That group of people needs to contact lawyers like me (and) get their request for reasonable accommodations in.”
Feature image, stock.adobe.com
