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Merit or Loyalty? Measuring OPM's Merit Claim Against the Record

merit system principles opm performance ratings probationary employees rif shaun southworth
 

Merit system principles are back in the public conversation. OPM Director Scott Kupor argued in the Washington Post that this administration is reviving merit in the federal workforce, describing merit as hiring "based on performance, not fealty." That is a workable standard. It is also a standard that can be applied to the record.

The Standard, and What the Statute Says

Performance, not fealty. The first merit system principle in the statute says something similar, and somewhat broader. Under 5 U.S.C. § 2301(b)(1), recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a workforce from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition.

Three Points From the Record

Probationary Terminations That Cited Performance

Roughly 25,000 probationary employees were terminated using form letters citing performance. Reviewing the record in litigation over those terminations, a federal judge found that it "does not contain a single mention of any performance deficiency." That ruling is on appeal, and the appeal may change the legal outcome. It does not change what the record contained.

A Policy Essay on Every Announcement

Federal job announcements from GS-5 through GS-15 now include an essay question asking applicants how they would help advance the President's executive orders and policy priorities. Measured against the Director's own standard, that question is worth reading twice.

Recruiters Cut Alongside the Programs

DEIA positions were eliminated, and that included recruiting roles. Outreach is not the opposite of merit. Under § 2301(b)(1), recruiting from all segments of society is part of how the statute defines merit in the first place. A smaller applicant pool does not produce tougher competition. It produces less of it.

The Forty Percent Cap and the New RIF Rule

Separately, above-average performance ratings are now capped at 40 percent of a rating population. Under the new reduction-in-force rule, performance ratings carry substantially more weight in deciding who is retained. Put those two together and a rationing rule for ratings becomes an input into who keeps a job in a layoff.

Whether a forced distribution is accountability or a removal lever is a fair debate. What is not debatable is that it is now a mechanism with consequences, and the new RIF rule takes effect September 2.

What to Do Before September 2

  • Download and save every performance rating you have, including narrative appraisals and interim reviews.
  • Save your current and prior position descriptions.
  • Keep awards, commendation letters, and written feedback that documents your work.
  • Save your SF-50s. Service computation date, tenure group, and veterans' preference all matter in a reduction in force.
  • Store copies somewhere you will still have access to if agency systems are cut off.

The paper you keep today is the case you have tomorrow.

The Practical Takeaway

The right response to a rule change like this is not panic, and it is not resignation. It is organization. Employees who can produce their own ratings history, position descriptions, and personnel actions are in a materially better position if a retention decision has to be challenged — and that advantage is built before the notice arrives, not after.

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Legal Disclaimer: This content is for general informational purposes only and does not constitute legal advice. Federal employment situations are fact-specific and time-sensitive. Please consult a qualified federal employment attorney about your specific situation. You can contact Southworth PC at attorneysforfederalemployees.com.

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