The Trump administration is overhauling how federal employees face discipline and dismissal, proposing to eliminate a 45-year-old framework that has governed misconduct penalties and expanding the grounds for expedited firings across the government workforce.
In proposed regulations published in July 2026, the Office of Personnel Management and Merit Systems Protection Board jointly called for scrapping the Douglas factors, a set of 12 criteria agencies have used since 1981 to justify disciplinary actions. The factors include the severity of an offense, an employee’s past performance and conduct, and their potential for rehabilitation.
OPM and MSPB argued that the Douglas factors had made discipline policies too rigid, with agencies applying them mechanically rather than flexibly. In their place, the agencies propose a vaguer “totality of circumstances” standard that would allow case-by-case determinations without requiring specific factors be considered.
“Accountability and high performance go hand in hand,” OPM Director Scott Kupor said in a statement. “This proposed rule gives federal managers better tools to address performance issues efficiently while ensuring employees are evaluated under a fair, consistent process.”
Expanding Grounds for Dismissal
A separate final rule from OPM this month means federal employees now face the possibility of being disciplined or fired for misconduct based on the government’s “suitability and fitness” standards, which historically applied only to job applicants. The rule change allows for expedited firings if employees are deemed to no longer meet these standards.
The final rule expands the factors agencies must consider, such as timely tax filing, citizenship requirements, and compliance with nondisclosure obligations. OPM said the change closes a gap in federal hiring and employment protections.
“For too long, the federal government has had stronger tools to prevent someone with serious misconduct from entering public service than to address the same misconduct once that individual is already employed,” Kupor said.
These changes follow a June 3 executive order that moved close to 8,000 career federal employees into a new Schedule Policy/Career classification, stripping them of civil service protections and making them at-will employees. Those employees are ineligible for federal adverse action proceedings and cannot appeal their transfers into the new category.
Critics Warn of Political Bias
Federal employment attorneys and advocacy groups have raised alarm about the cumulative effect of these changes. Tim Whitehouse, executive director of Public Employees for Environmental Responsibility, said the administration is implementing “a system where nonpolitical career employees can be fired for doing their job correctly but inconveniently, and where they will have nowhere to go for a fair, independent second look.”
Michael Fallings, managing partner at Tully Rinckey PLLC, a firm specializing in federal employment law, criticized the vagueness of the proposed “totality of circumstances” standard. “‘Totality’ is just a vague way of saying that we’re going to consider factors, but what they’re trying to say is, ‘We don’t have to consider certain factors that may sometimes be in favor of the employee,'” Fallings said.
Jules Torti, counsel at Protect Democracy, told Federal News Network that the personnel changes together represent a “complete revolution” in internal government operations. “One major concern is how this increases risk of bias or selective application of the rules — which could mean political bias, bias against certain work or simply personal bias,” she said.
Protect Democracy and other organizations have filed lawsuits challenging the implementation of Schedule Policy/Career. Raymond Limon, who served as a Democratic appointee on MSPB until February 2025, argued that the administration’s description of how the Douglas factors are applied doesn’t match his experience. Agencies have better than 80% success rate before the board, he noted, suggesting the factors are not as restrictive as the administration claims.
The proposed regulations would also require additional training for managers on performance and misconduct issues, and would reduce performance improvement plans to 30 days, ban settlement agreements that remove misconduct from employee records, and bar the use of union official time to help employees pursue adverse action appeals.
Sources
- Federal News Network — comprehensive coverage of the Douglas factors proposal, suitability rule, Schedule Policy/Career implementation, and quotes from OPM Director Kupor, critics Tim Whitehouse and Jules Torti
- Government Executive — reporting on the proposed elimination of Douglas factors, analysis of the “totality of circumstances” standard, and quotes from federal employment attorney Michael Fallings and former MSPB member Raymond Limon
- NPR — reporting on the June 3, 2026 executive order moving 8,000 federal employees to Schedule Policy/Career
