Last Updated: August 9, 2026 Reading Time: 8 min

OPM has now told agencies exactly which parts of the new performance rating system unions can bargain over, and which parts they cannot touch. If your performance rating has ever been protected by contract language, this memo redraws that protection. The guidance, a July 24, 2026 memo from OPM Director Scott Kupor, draws the line straight through the middle of most federal union contracts. Here's what's off the table, what's still negotiable, and the contract-expiration clock that decides when it hits you.

What OPM Put Beyond Bargaining on Performance Ratings

The memo implements the performance appraisal overhaul finalized in July (FR 2026-13715, effective August 6, 2026, compliance due January 1, 2027, covering about 1.2 million non-SES employees). Per the memo and confirming coverage, these items are outside the duty to bargain:

  • Grievances over performance ratings through negotiated procedures. This is the change with the widest reach, since the negotiated grievance has been the main tool employees use to contest a rating, and it comes out of contracts as they renew.
  • Provisions preventing forced distribution. Contract language that stopped agencies from capping the number of high ratings can no longer be bargained.
  • Rating patterns that include a Level 2 between Unacceptable and Fully Successful. The new structure eliminates the Level 2, so patterns preserving it are off the table.

Union and trade-press reporting adds that pass/fail patterns for most permanent employees and employee-comparison ranking schemes also fall on the non-negotiable side, though those items rest on thinner sourcing than the three above.

Worth knowing for context: Level 2 ratings were rare anyway. OPM's own data shows only 0.3 percent of covered employees received one between FY2022 and FY2024. The grievance change is what will touch actual careers.

What Your Union Can Still Bargain

The memo leaves six lanes open:

Still negotiable What it covers
Informal reconsideration procedures How you request a second look at a rating without a grievance
Administrative grievance procedures Where the agency voluntarily authorizes them
Feedback and communication How and when supervisors must communicate expectations
PIP procedures and assistance Support and process during a performance improvement period
Awards and recognition programs How performance awards get distributed
General program administration Implementation details consistent with the rule

Unions keep a voice in process and support while losing their voice in structure and outcomes. Reconsideration procedures are about to become the main negotiated protection around ratings, which makes the quality of that contract language matter far more than it used to.

The Grievance Door Is Closing on Both Sides

Most coverage of this memo mentions the negotiated grievance. The part that has gotten far less attention, confirmed by NAGE's member alert and FedSmith's reporting: the agency administrative grievance route over ratings is closing too. An employee outside a bargaining unit, or one whose contract has rolled over, would be left with informal reconsideration as the primary path to contest a rating.

That matters because ratings now carry more weight, not less. Under the companion RIF rule effective September 2, performance factors into retention standing ahead of seniority. A rating you cannot meaningfully contest now influences whether you keep your job in a reduction. If you want the full picture of that interaction, our performance-rating RIF standing analysis walks through it.

Your Contract Expiration Is Now a Performance-Rating Rights Deadline

Nothing in the memo voids an existing contract. Provisions in force today, grievance rights over ratings, forced-distribution bans, Level 2 patterns, remain enforceable until your CBA expires or rolls over. At that point, conflicting provisions must come out.

That makes one date worth looking up this week: when does your contract expire? A unit mid-contract through 2028 keeps its current protections for two more rating cycles. A unit whose agreement rolls over this fall loses them at renewal. If you have a pending or contemplated grievance over a rating, the window to use the negotiated procedure is your contract's remaining term.

What Unions Are Doing About It

AFGE has formally opposed the rule, arguing it conflicts with the Civil Service Reform Act, and its president has called forced distribution "a popularity contest, not a meritocratic evaluation system." An Administrative Procedure Act court challenge is the signaled route, though none was confirmed filed as of this writing. The FLRA path is largely closed: negotiability appeals cannot override a binding governmentwide OPM regulation.

One more pressure point sits in the rule itself: agencies face biennial certification of their appraisal systems, and an unfavorable certification can trigger an OMB recommendation to cut the agency's award budget. Agencies have a financial reason to implement aggressively.

How to Use Informal Reconsideration Well

Since informal reconsideration is about to carry the weight grievances used to, it's worth knowing how to make one land. A reconsideration request is a written case to a reviewing official that your performance rating doesn't match your documented results. The requests that succeed share three traits: they cite the performance plan's own critical elements verbatim, they attach contemporaneous evidence (emails, deliverables, mid-year feedback) rather than end-of-year recollection, and they name the specific level the evidence supports instead of asking generally for "a higher rating." If your unit still has bargaining rights on reconsideration procedures, push your union to negotiate deadlines measured in weeks, a named deciding official, and a written-decision requirement. Those three terms are the difference between a real process and a suggestion box.

What to Do Before Your Contract Renews

  • Find your CBA expiration date. It now defines how long your current grievance rights last.
  • Use the procedure you still have. If a contestable rating is sitting on your record and your contract's grievance article is alive, the clock on that option is your contract term.
  • Watch the reconsideration language. When your unit renegotiates, the reconsideration article becomes the main protection. Vague language there is a real loss.
  • Document performance continuously. With ratings feeding RIF standing and awards, contemporaneous records of your accomplishments are the strongest input you control.

If a Rating Ever Turns Into a Removal

Performance-based actions have their own math. If you're weighing what a worst case looks like, the free Severance Calculator shows what an involuntary separation would pay, and the FERS Retirement Calculator tells you whether early retirement eligibility changes your options.

Frequently Asked Questions

Can I still grieve my performance rating?

While your current CBA is in force, yes, through its negotiated procedure. After expiration or rollover, grievances over ratings come out of the contract, and reporting confirms the administrative grievance route over ratings is closing as well. Informal reconsideration becomes the main path.

What can my union still negotiate?

Reconsideration procedures, feedback practices, PIP assistance, awards programs, and general administration. Structure, forced distribution, rating levels, and grievances over ratings are out.

Is there a cap on forced distribution?

No percentage appears in the rule text. OPM references the SES model's 30% cap on the top two levels as a benchmark, applied at agency level.

When does this take effect?

The rule took effect August 6, 2026; most structural compliance is due January 1, 2027. Existing CBA terms hold until expiration or rollover.

Can unions fight this?

The CBA window and an APA lawsuit are the realistic tools. AFGE opposes the rule and has signaled litigation; the FLRA cannot override a governmentwide regulation.

Sources: OPM CHCOC memo, July 24, 2026, Federal News Network, FedWeek, FR 2026-13715.