Federal workers nervously anticipate massive changes in President-elect Donald Trump’s second term. In October 2020, Trump signed an executive order creating Schedule F. Schedule F is an “excepted service” category of federal employment that would eliminate job protections for scores of government workers and transform them into “at will” employees.
During his first month in office, President Biden signed his own executive order nullifying Trump’s Schedule F plan. The order explicitly recognized that the government needs civil servants to carry out its most basic and necessary functions, including disaster relief, public education, healthcare access, infrastructure maintenance, and federal law enforcement. In April 2024, the Biden Administration issued a Final Rule that will make it harder for Trump to use Schedule F to carry out mass lay-offs and firings during his second term. The final rule, which was the product of the years-long federal rulemaking process, clarified that career employees do not hold the kind of “confidential, policy-determining, policy-making or policy-advocating” positions that Trump is keen on excluding from federal civil service protections.
President-elect Trump has vowed to reintroduce Schedule F —likely through another executive order— placing countless civil service positions in jeopardy. Trump enlisted Elon Musk (SpaceX and Tesla CEO) and Vivek Ramaswamy (Roviant Sciences founder) to lead the Department of Government Efficiency (DOGE). DOGE is a presidential advisory committee with the purported goals of “regulatory rescissions, administrative reductions and cost savings.”[1] In an opinion piece in The Wall Street Journal, Musk and Ramaswamy targeted the federal workforce for reductions. In addition to firings and reductions in force (RIFs), the billionaire businessmen recommended relocating federal agencies out of Washington, DC, and revoking telework to cause federal employees to resign.
Read on to learn what a renewed Schedule F and other changes will mean for federal employees, and what protections are available to civil servants facing uncertain employment prospects in a second Trump Administration.
What is Schedule F?
The legal basis for Schedule F is the Civil Service Reform Act of 1978, which exempts certain federal employees from job protections. This exemption applies to federal employees who hold positions “of a confidential, policy-determining, policy-making or policy-advocating character.”
Historically, only high-level political appointees requiring Senate confirmation, such as Presidential Cabinet members, have been considered exempt. Breaking from this tradition, the first The Trump Administration signaled that the exemption could apply to the majority of civil service positions. Said another way, their view was that most civil service positions are of a “confidential, policy-determining, policy-making or policy-advocating” nature.
This is not a difficult argument to make, if you ignore history. Most civil service positions, by their very nature, involve some form of policy work or policy implementation. However, Trump’s approach is a massive departure from what Congress, courts, and federal agencies have always understood the Civil Service Reform Act to mean. Under Trump’s interpretation, the government could could eliminate job protections by reclassifying legions of career federal employees to Schedule F. Scientists, attorneys, regulators, ethicists, researchers, developers, labor union representatives, public health experts, and nearly any senior-level employee could be at risk for reclassification.
What rights do federal employees have?
Currently, the majority of career federal employees have important due process protections. For example, the government must give them advanced written notice of proposed removal and an opportunity to respond. Before firing an employee for poor performance, the government must provide them with an opportunity to demonstrate successful performance.
On the other hand, Schedule F employees are exempt from those protections. Like most private-sector workers, Schedule F employees are employed “at-will.” An employer can fire at-will employees for any lawful reason or no reason at all. Employers don’t have to give at-will employees advanced notice of termination or even an explanation for being fired. Of course, the law prohibits firing Schedule F and other at-will employees for discrimination, whistleblower retaliation, and other unlawful reasons. However, this usually means that employees can only challenge their terminations after-the-fact.
Can the government reclassify me under Schedule F?
The short answer is yes. The federal government may, in certain circumstances, reclassify an existing position. However, federal employees are not at risk of Schedule F reclassification for the remainder of Biden’s Presidential term.
Biden’s Final Rule gives federal employees the right to appeal involuntary reclassification to the United States Merit System Protection Board (MSPB). MSPB is an agency tasked with protecting and upholding civil service protections. This provision will make it harder for Trump to carry out his Schedule F plans. The reason for this is the intricate and lengthy federal rule making process.
To eliminate any of the rights established by Biden’s Final Rule, Trump must complete all 22 steps of the federal rulemaking process. Unlike issuing an executive order, suspending and replacing a final rule takes two or three years, on average, and can be further delayed by legal challenges. This would likely be the case for Trump. Labor organizations are already gearing up to challenge his anticipated employment practices in court. Additionally, certain presidential acts may be subject to scrutiny under then Administrative Procedure Act (APA).
How can an employment attorney help me?
If you are a federal employee facing changes at work, it may be helpful to consult a lawyer. An experienced employment attorney can explain your rights and determine if there is a violation. Alan Lescht and Associates, P.C., represents federal government employees around the world. We handle cases involving due process rights, performance improvement plans, discipline, discrimination, retaliation, and other employment matters. Please contact us to speak to an attorney.
[1] Elon Musk and Vivek Ramaswamy, Elon Musk and Vivek Ramaswamy: The DOGE Plan to Reform Government, The Wall Street Journal (Nov. 20, 2024, 12:33 PM, ET), https://www.wsj.com/opinion/musk-and-ramaswamy-the-doge-plan-to-reform-government-supreme-court-guidance-end-executive-power-grab-fa51c020.
