Attorneys for Federal Employees — Nationwide

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Today at a Glance

• Performance Rating Overhaul: OPM told agencies this week which parts of the new forced-distribution performance system are “non-negotiable” with unions, days before the underlying rule takes effect Thursday, August 6.

• Government Funding Deadline: The Senate advanced its own stopgap funding bill Monday on an 89-4 vote, aiming for a December 11 cutoff instead of the House’s December 4, with the funding clock still running out September 30.

• Off-Duty Speech and Discipline: A GSA program director was placed on administrative leave after criticizing veterans’ preference on his personal LinkedIn — a reminder that off-duty social media posts about agency policy can carry real professional consequences.

Top Stories:

1. OPM Tells Agencies Which Parts of the New Performance Overhaul Are “Non-Negotiable” With Your Union

Source: Federal News Network, August 3, 2026

TL;DR: OPM issued guidance this week telling agencies which parts of the government’s new performance-review overhaul are “non-negotiable” with federal employee unions, and which parts remain open to bargaining. The guidance implements the final rule OPM issued in early July, which takes effect Thursday, August 6, and requires agencies to sort employees into a forced distribution of performance ratings. According to OPM, any collective bargaining provision that lets employees grieve a performance rating, or that would stop an agency from using the new forced-distribution system, is now off the table for negotiation. Provisions that remain negotiable include informal requests to reconsider a rating, awards and recognition programs, and feedback procedures between supervisors and employees. OPM told agencies that where an existing union contract conflicts with the new rule, the contract provision controls only until that contract’s term expires — after which agencies should treat any related grievance as “no longer arbitrable.” AFGE has already objected in public comments that narrowing grievance rights this way conflicts with federal labor law.

For federal employees, this means:

• Whether you can still grieve a performance rating depends on your union contract’s status: OPM says the bar applies in full once your contract’s current term expires, but until then, an existing contract’s broader grievance rights may continue to apply.
• If your formal grievance route is closed, an informal request that your agency reconsider the rating is still available and still negotiable — ask your union representative which procedure applies to your agency.
• Awards, recognition programs, and supervisor-employee feedback conversations are unaffected — those remain open to negotiation and are not swept into the “non-negotiable” category.

Legal Insight

The Federal Service Labor-Management Relations Statute generally requires agencies to bargain over conditions of employment, but 5 U.S.C. § 7117(a)(1) exempts agencies from bargaining over matters governed by a government-wide rule — the hook OPM is relying on here. The final rule itself, at 5 C.F.R. § 430.208(k), bars challenging a rating of record through the negotiated grievance procedure under 5 U.S.C. § 7121, subject to 5 U.S.C. § 7116(a)(7). If your rating affects your pay, a within-grade increase, or exposes you to a performance-based action under 5 U.S.C. § 4302 or § 4303, talk to a federal employment attorney about what avenues remain open under your specific contract and its expiration date.

2. The Senate Moves Its Own Government-Funding Bill — Dec. 11, Not Dec. 4, and a Grants Rule on Ice

Source: Federal News Network, August 3, 2026

TL;DR: The Senate advanced its own version of a stopgap funding bill Monday, August 3, on an 89-4 test vote, moving toward passage before the August recess. The Senate’s continuing resolution would fund the government at current levels from the start of fiscal year 2027 on October 1 through December 11 — a week later than the December 4 date in the “clean” CR House Republicans passed on a party-line vote July 21. Unlike the House bill, the Senate version would extend the Technology Modernization Fund and key cyber information-sharing authorities, and would block the Office of Management and Budget from implementing its rewrite of the federal grants regulations until at least December 11. Senate Appropriations Chair Susan Collins said the bill avoids “poison pills” that could trigger a shutdown, and Republicans and Democrats on the Appropriations Committee agreed to the text. The bill still needs to pass the full Senate, then be reconciled with the House, which is on recess until August 31; the government’s current funding runs out September 30.

For federal employees, this means:

• The government funding deadline is September 30 — a lapse would trigger unpaid furloughs for many employees and unpaid work for those in excepted positions, as in past shutdowns.
• The Senate and House bills disagree on the end date (Dec. 11 vs. Dec. 4) and on whether to extend the Technology Modernization Fund and certain cyber information-sharing authorities — those differences must be resolved before any bill reaches the President’s desk.
• If a shutdown does happen, back pay for furloughed and excepted employees is guaranteed by statute regardless of how long the lapse lasts, though the timing of that pay depends on when Congress acts.

Legal Insight.

A funding lapse triggers the Antideficiency Act, 31 U.S.C. §§ 1341–1342, which bars agencies from incurring obligations without appropriated funds and generally requires furloughing non-excepted employees. The Government Employee Fair Treatment Act of 2019, codified at 31 U.S.C. § 1341(c), guarantees back pay to furloughed and excepted employees “at the earliest date possible” after a lapse ends, regardless of how long it lasts.

3. A GSA Director Criticized Veterans’ Preference on LinkedIn — GSA Put Him on Administrative Leave

Source: Government Executive, July 30, 2026 (updated July 31, 2026)

TL;DR: Pete Waterman, director of the FedRAMP cloud-security program at the General Services Administration, posted on his personal LinkedIn in late July that veterans’ preference in federal hiring, “taken to the extreme of blocking any consideration of non-veterans,” was hurting his ability to hire tech talent, and that the administration’s Tech Force hiring initiative would not let his office consider non-veteran applicants until every veteran applicant had been given an offer. The post drew both support and public criticism, including from a Treasury Department recruiter and a veteran commenter. GSA Administrator Edward Forst responded in a statement to Government Executive that Waterman “has been placed on administrative leave, effective immediately, until further notice,” saying GSA has “zero tolerance for comments that disparage or disrespect America’s veterans.” Waterman’s post did not name any individual veteran or GSA employee; it criticized the hiring rule itself. A workforce policy expert at the nonprofit Partnership for Public Service told Government Executive that veterans’ preference and other hiring rules have become “procedural hurdles” that have not been updated since they were created after World War II, though agencies retain some flexibility in how they sequence preference against skills assessments.

For federal employees, this means:

• Off-duty social media posts criticizing agency policy — even posted on a personal account, about a matter of public concern — can still trigger administrative leave or a conduct inquiry; posting under your own name carries real professional risk regardless of whether the post names any coworker.
• Administrative leave itself is not a disciplinary finding, but it is frequently the first step before an agency decides whether to pursue formal discipline.
• If formal discipline follows, a career federal employee generally has the right to advance written notice, an opportunity to respond, and representation before any adverse action becomes final.

Legal Insight

Agencies may place an employee on ordinary administrative leave under 5 U.S.C. § 6329a, but that authority is capped at 10 workdays per calendar year unless the agency instead invokes investigative leave under 5 U.S.C. § 6329b for a conduct inquiry that could lead to discipline. Because Waterman’s statement was made as a private citizen on a matter of public concern rather than as part of his official duties, the public-employee speech framework from Pickering v. Board of Education, 391 U.S. 563 (1968), and Garcetti v. Ceballos, 547 U.S. 410 (2006), is likely to govern any First Amendment challenge to discipline based on the post. A federal employee facing potential discipline over protected speech should consult a federal employment attorney promptly, since deadlines to respond to a proposed adverse action are typically short.

Mindful Moment of the Day

The Meeting Room Exhale

Walking into a conference room for a briefing, investigation meeting, performance discussion, or tense staff meeting can make your body feel like it is preparing for impact. Your breath may get shallow, and your mind may start rehearsing every possible thing that could go wrong. Before the meeting begins, place both feet firmly under the table and take a slow exhale that is longer than your inhale. Let your hands rest on your notes. Remind yourself, “I can listen before I respond.” This gives you a little more room to stay present and choose your next words carefully. 

In Case You Missed It

A few quick hits from our recent posts:

VA Union Contract and August 8: What the Master Agreement Actually Says

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Ninety Seconds Before the Rules Change Again: A Monday Practice