Labor & Employment Law Daily Wrap Up, FEDERAL REGULATIONS—OPM proposing forced distribution of performance rating levels for senior executives, claims rating inflation, (May 1, 2025)

By Brandi O. Brown, J.D.

The proposed rulemaking would also eliminate diversity, equity, and inclusion language within SES performance management regulations.

OPM is publishing a notice of proposed rulemaking that would make changes to how performance is appraised for employees within the Senior Executive Service (SES). Currently, agencies are prohibited from establishing quotas or limits on the number or proportion of rating levels assigned. “However,” OPM contends, “governmentwide SES ratings data have consistently shown that virtually all SES receive the highest rating levels (i.e., levels 4 and 5) despite documented reports of SES failings.”

“Inflated” ratings. OPM calculated that, for the fiscal year 2023 performance cycle, approximately 96 percent of executives received an “Outstanding” or “Exceeds Fully Successful” rating and less than a half of a percent of executives were rated below “Fully Successful.” These results, according to the new administration, indicate that the ratings may be inflated and that putatively poor-performing executives are not being held accountable through a rigorous appraisal process. OPM contends that there “continues to be a pervasive pattern of misalignment between poor agency performance and executive performance ratings.”

“Vague” DEI language. Additionally, citing Executive Order 14151, “Ending Radical and Wasteful Government DEI Programs and Preferencing,” which “directs the termination of all DEI policies, programs, and preferences in the Federal Government, under whatever name they appear,” the proposed rulemaking would make changes to the “Appraising performance” regulation, which it claims has “vague language that is not set forth by the text of 5 U.S.C. 7201 as the current rule suggests.”

The proposed rulemaking would:

• Amend 5 C.F.R. § 430.305(a)(5) by removing the prohibition on the use of a forced distribution of ratings;

• Remove the language in 5 C.F.R. § 430.308(d) to eliminate the assertedly non-statutory performance factor of “promoting diversity, inclusion, and engagement;”

• Revise the language in 5 C.F.R. § 430.311(a) by removing text that encourages agencies to consider diversity and inclusion when appointing PRB members; and

• Add text that encourages agencies to consider individuals committed to applying the SES performance appraisal system and performance plans.

Comments must be received on or before the date that is 30 days after the date of publication in the Federal Register, which is scheduled for May 2, 2025.

News: FederalRegulations AgencyNews Discrimination WhiteHouseNews ESGNews