DoD strips job protections from civilian employees, directs managers to fire with ‘speed and conviction’

The Defense Department is stripping away job protections from its civilian employees and directing managers to “act with speed and conviction” to fire employees performing “unsuccessfully.”

A new Sept. 30 memo titled “Separation of Employees with Unacceptable Performance,” which became public Tuesday, also warned that managers will be held accountable if they fail to remove poor performers.

Pentagon’s Under Secretary of Defense for Personnel and Readiness Anthony Tata, who signed the memo, suspended the department’s requirement that managers attempt to rehabilitate underperforming employees — clearing the way for supervisors to fire workers whose performance is deemed “unacceptable” more quickly.

“They are trying to cloak it in legalistic language and make it sound legitimate, but the reality is they’re stripping due process significantly and making it easier for arbitrary terminations, similar and functional to private sector employment,” Sean Timmons, managing partner at Tully Rinckey PLLC, told Federal News Network. 

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Ron Sanders, a former career human capital leader in government, said that the law already requires a lot of due process, including third-party review by the Merit Systems Protection Board. On top of that, there are additional requirements from the Office of Personnel Management and the Defense Department. Given that each of those procedural layers can serve as grounds for a challenge, the Defense Department’s decision to eliminate some of its requirements, he said, is a good thing.

“As somebody who was in charge of that DoD personnel policy at one time, we felt obliged to add our own procedural requirements to OPM’s and the laws because this is the way we’re going to do things in the Defense Department. What this memo does is essentially wind the clock back and say, ‘No, we’re not going to do that. We’re just going to follow the law, and even in the case of the law, we’re going to impose very stringent time limits to ensure that more performance-based adverse actions are taken, Sanders told Federal News Network.

Legal experts and analysts warn that the new policy could be used to remove anyone who does not align with the Trump administration’s priorities. 

The memo comes amid Defense Secretary Pete Hegseth’s broader push to shrink and reshape the Pentagon’s civilian workforce — Hegseth described the effort as “clearing out the debris” during his highly unusual meeting with admirals and generals last month.

“I look at this memo within the broader context of Pete Hegseth’s actions as defense secretary up to this point. We have seen from him an increasing politicization of the military. If you look at every step they’ve taken within the Department of Defense since January — this is just another piece of political maneuvering that they’re using to enable their abilities to shape the department in the image that they back and to remove people who don’t align with their vision and their political ends, and give them an ability to fire those who don’t work well with them,” Virginia Burger, senior defense policy analyst at Project on Government Oversight, told Federal News Network.

Sanders said while the concern is valid, it’s critical to separate political rhetoric from “practical reality.”

“If there is any danger that the memo is going to be used to provide a political loyalty test, if it were me, I would find a way around the memo. But I don’t read the memo that way. I read the memo as simply holding employees accountable. If you’re performing poorly, you’re going to be fired,” Sanders said.

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“In contrast to the recent past, for whatever reason, agencies overprotected employees, and as a consequence, there are many poor performers. I think the American people want to hold those employees accountable. They don’t want to see them fired willy-nilly. They don’t want to see them fired for political reasons, but they do want to see them fired for poor performance. And I think that’s the ultimate objective of this memo,” he added.

Timmons said that previously, there needed to be substantial deviations from meeting objective job-specific criteria to justify termination. Under the new memo, the criteria have become more subjective — and that subjectivity gives managers greater discretion for potentially arbitrary termination.

“If they want to give you flexibility because they like you, they can certainly bend the rules and say, ‘We’ll give you another chance.’ If they don’t like you, and you’re not with the program, you’re done,” Timmons said.

The memo advises supervisors to follow the 12 Douglas Factors that agencies are required to consider when deciding on disciplinary action against a federal employee, but then it adds language that makes it easier to justify termination. Under the nature and seriousness of the offense factor, for instance, the memo says that “even small lapses can accumulate to justify removal if they hinder DoD’s efficiency.”

“They are saying, ‘Look, we’re following Douglas, we’re following neutral criteria, we’re not making it specific to any permissible category.’ But in reality, they are — they’re just trying to navigate around it. Which is what private employers do all the time when they want to fire women. They just make the criteria impossible to comply with. They just don’t target women specifically, or target people who are pregnant specifically, or target Black people specifically — they just make the criteria impossible to fill and then it gets rid everybody,” Timmons said.

The memo also allows the department to use the deferred resignation program, voluntary separation incentive payments and voluntary early retirement authority to “facilitate efficient employee removals.”

According to the memo, employees now have just seven days to respond to a notice of proposed removal. The deciding official — who must be no more than two levels above the employee’s supervisor — then has 30 days to issue a final decision. If a deciding official doesn’t provide a final decision within that window, the case file will be sent directly to the Under Secretary of Defense for Personnel and Readiness. 

While these timelines are very stringent, Sanders said they force supervisors and legal staff to take action since lawyers’ risk-averse behavior has made it nearly impossible to discipline poor performers as they are focused on winning cases.

“When a manager proposes a performance-based adverse action against an employee that typically goes before the agency’s legal staff, and it may gather dust there for weeks, if not months. This is anecdotal, but I will tell you that agency managers are very frustrated by that, and they tend to look for alternative legal but alternative ways of dealing with poor performers, like reassigning them out of their units. I think the net result of these time limits is that agency managers will have more freedom to propose performance-based adverse actions. The time limits will require agency lawyers to review them more quickly, if at all, and get them off their desks,” Sanders said.

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“I think this memo basically gives managers the benefit of the doubt. Don’t second guess them through legal review if they’ve got a performance-based adverse action, let them take it, and we’ll take our chances before a third party,” he added.

In addition, the memo directs the deputy assistant secretary of defense for civilian personnel policy to examine the feasibility and potential impacts of centralizing human resources functions related to disciplinary and adverse actions.

“This raises a couple flags. The first two being they want oversight of any misconduct, probably because they either want to make sure that those who are potentially being held accountable for things Hegseth and his team think they should be held accountable for aren’t fired. The other side of the coin is that, potentially, they want oversight of people who they do think should be fired for other reasons that may otherwise be flagged, and they ensure that they’re fired,” Burger said.

Sanders said that during his time as director of civilian personnel at the Defense Department, the agency considered centralizing how it handled adverse actions but ultimately concluded that front-line managers needed to initiate those actions themselves.

“You could centralize review of those actions, and this memo, in practical effect, does that. But centralizing all of those actions, I think, is problematic. Frankly, I think the memo centralizes most of those things that can be centralized,” Sanders said.

If you would like to contact this reporter about recent changes in the federal government, please email anastasia.obis@federalnewsnetwork.com or reach out on Signal at (301) 830-2747.

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