In furtherance of Executive Order 14170, issued by President Trump on January 20, 2025, the U.S. Office of Personnel Management (OPM) recently released a sweeping Merit Hiring Plan that will significantly alter how the federal government hires and evaluates candidates for employment. If you’re a federal employee, HR specialist, or contractor working with government agencies in Virginia, the OPM’s plan—and the legal questions it raises—should be on your radar.

At Bean, Kinney & Korman, we are closely monitoring the potential legal and policy implications of this plan for public-sector clients and workforce professionals alike. Below is a breakdown of the key provisions of the Merit Hiring Plan, the legal risks it presents, and steps federal employees and unions should consider as this policy unfolds.

Key Features of the 2025 Merit Hiring Plan

The Merit Hiring Plan outlines several major changes to the federal hiring process:

1. Merit-Based Assessments
   Federal job applicants must now be evaluated solely based on skills and qualifications, with no consideration of race, sex, ethnicity, or national origin. This policy also halts the collection of demographic data that agencies previously used to track and evaluate workforce diversity.
2. New Essay Requirements
   All applicants for GS-5 roles and above must now submit four essays as part of the application process addressing: (1) commitment to the Constitution, (2) government efficiency, (3) alignment with presidential policies, and (4) personal work ethic. Each essay response is scored on a scale of 1 to 5, and low scores may disqualify a candidate.
3. Hiring Timeline Reduction
   The Merit Hiring Plan sets an ambitious target to shorten the federal hiring process to under 80 days, reducing bureaucratic delay but potentially sacrificing due process protections for job applicants.
4. Elimination of DEI Initiatives
   Agencies must cease all diversity, equity, and inclusion (DEI) programs, including data tracking, outreach, and internal training focused on diversity goals.
5. Shift in Recruitment Focus
   The Merit Hiring Plan directs federal agencies to prioritize recruitment of candidates from religious institutions, homeschooling networks, veterans’ organizations, and STEM programs—shifting focus away from traditionally underrepresented groups.
6. Monthly Compliance Reporting
   Federal agencies are required to submit regular reports to OPM detailing hiring trends, adherence to the new merit-only framework, and elimination of DEI efforts.

Legal and Policy Concerns for Federal Employees

While OPM characterizes this plan as a “restoration of merit-based hiring,” it raises substantial legal and constitutional issues because of the subjective criteria it interjects into the hiring process.

1. Potential First Amendment Violations

The required essay questions—particularly those that demand alignment with “presidential policies” and demonstrate “commitment to the Constitution”—raise legal concerns about compelled political speech in violation of the First Amendment. Conditioning federal employment on an applicant’s compelled support for current executive branch priorities could run afoul of free speech protections and the Hatch Act.

2. Equal Employment Opportunity Concerns

By prohibiting federal agencies from collecting demographic data and dismantling DEI programs, the Merit Hiring Plan may significantly impede efforts to monitor and prevent discriminatory practices. Without demographic tracking, it becomes far more difficult to identify and address racial, gender, or age discrimination, possibly putting agencies at odds with Title VII of the Civil Rights Act.

3. Disparate Impact Risk

Shifting federal sector recruitment toward religious and homeschool communities may in application disadvantage applicants from diverse socioeconomic and racial backgrounds. If these enhanced recruitment pipelines result in hiring patterns that disproportionately affect underrepresented groups, federal agencies could be vulnerable to disparate impact claims.

4. Due Process and Subjective Evaluation

The essay component of OPM’s Merit Hiring Plan introduces a new layer of subjectivity into the federal sector hiring process. Unlike structured interviews or technical evaluations, essays may reflect an applicant’s rhetorical style or subjective ideological leanings more than their qualifications. The use of ideological metrics in federal sector hiring could open the door to legal challenges over objective fairness and transparency in those decisions.

Recommendations for Federal Employees and Unions

If you’re a federal employee, manager, or union representative, consider the following steps:

• Seek Legal Review: Request an independent legal analysis to evaluate whether the plan violates constitutional or employment laws.
• File EEOC Complaints: If you believe that hiring practices under the new plan disadvantage protected groups, consider submitting complaints to the Equal Employment Opportunity Commission (EEOC).
• Monitor Hiring Data: Unions and oversight bodies should gather data to assess whether the OPM’s elimination of agency DEI efforts is leading to skewed hiring outcomes.
• Support Affected Employees: Agencies should be prepared to assist federal workers navigating fast-track removals or hiring appeals, particularly before the Merit Systems Protection Board (MSPB).
• Engage Policymakers: Advocacy groups and federal employee unions should urge lawmakers to review and revise elements of the plan that may infringe on workers’ rights.

What Employers and Contractors Should Do Now

Federal contractors and agencies operating in Virginia should take proactive steps to ensure they remain compliant with evolving federal employment policies while also mitigating legal risk. These include:

• Updating internal hiring procedures to reflect the new requirements.
• Training HR personnel to apply essay scoring fairly and consistently.
• Reviewing recruitment strategies to avoid practices that could appear exclusionary.
• Consulting employment counsel before implementing any hiring decisions influenced by the new policy.

Conclusion

The 2025 Merit Hiring Plan represents a fundamental shift in federal employment practices—one that may have far-reaching consequences for federal job applicants, government workers, and agencies alike. While OPM’s stated goal is to restore fairness and efficiency to the hiring process, the Merit Hiring Plan introduces significant legal and ethical questions around equity, free speech, and transparency.

Need help navigating federal hiring changes? Contact Doug Taylor at (703) 525-4000 or rdougtaylor@beankinney.com.

This article is for informational purposes only and does not contain or convey legal advice. Consult an attorney. Any views or opinions expressed herein are those of the author and are not necessarily the views of the firm or any client of the firm.