H. Rept. 115-415 - ENSURING A QUALIFIED CIVIL SERVICE ACT OF 2017115th Congress (2017-2018)
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115th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 115-415
======================================================================
ENSURING A QUALIFIED CIVIL SERVICE ACT OF 2017
_______
November 16, 2017.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Gowdy, from the Committee on Oversight and Government Reform,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 4182]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Government Reform, to whom
was referred the bill (H.R. 4182) to amend title 5, United
States Code, to modify probationary periods with respect to
positions within the competitive service and the Senior
Executive Service, and for other purposes, having considered
the same, report favorably thereon without amendment and
recommend that the bill do pass.
CONTENTS
Page
Committee Statement and Views.................................... 2
Section-by-Section............................................... 4
Explanation of Amendments........................................ 5
Committee Consideration.......................................... 5
Roll Call Votes.................................................. 5
Application of Law to the Legislative Branch..................... 7
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 7
Statement of General Performance Goals and Objectives............ 7
Duplication of Federal Programs.................................. 7
Disclosure of Directed Rule Makings.............................. 7
Federal Advisory Committee Act................................... 7
Unfunded Mandates Statement...................................... 7
Earmark Identification........................................... 8
Committee Estimate............................................... 8
Budget Authority and Congressional Budget Office Cost Estimate... 8
Changes in Existing Law Made by the Bill, as Reported............ 9
Minority Views................................................... 17
Committee Statement and Views
PURPOSE AND SUMMARY
H.R. 4182, the Ensuring a Qualified Civil Service Act of
2017, or the EQUALS Act of 2017, extends the probationary
period for appointments to the competitive service and initial
appointments as supervisors and managers to two years after the
conclusion of formal training or upon receipt of any applicable
formal license. The bill also requires a certification by
agencies at the completion of the probationary period to
confirm the appointment should be final, extends the
probationary period for Senior Executive Service members to two
years, and makes changes to eligibility for employee appeal
rights to conform to the longer probationary period.
BACKGROUND AND NEED FOR LEGISLATION
Under current law, most new hires in the competitive
service and initial appointments of managers require a
probationary period before such appointments become final.\1\
Probationary periods normally last for one year after
appointment.\2\ This time provides probationary employees with
an opportunity to understand the requirements of the position
for which they have been conditionally selected and undergo
proper assessment before becoming a career employee. The
probationary period also provides the government with an
opportunity to evaluate an employee's job performance to
determine if an appointment to the civil service should become
final.
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\1\5 U.S.C. Sec. 3321.
\2\5 C.F.R. Sec. 315.802.
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During the probationary period, probationers may be removed
for unsatisfactory performance or conduct via a more expedient
process. In general, all that is required for an employing
agency to remove a probationer is a written notice of
termination, including an explanation as to why the agency
deems the employee's performance or conduct to be
inadequate.\3\ Agencies do not have to follow the complex and
time-consuming removal procedures as they would for non-
probationary employees, and generally probationers may not
appeal a removal action.\4\
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\3\5 C.F.R. Sec. 315.804.
\4\There are limited circumstances in which a probationer can
appeal a removal action. See 5 C.F.R. Sec. 315.806(b), (d); 29 C.F.R.
pt. 1617; and 5 U.S.C. Sec. Sec. 1214(a)(3), 1221(b).
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Once an appointment becomes final, an employee is covered
by significant legal protections under the merit system,
including full appeal rights for removal to the Merit Systems
Protection Board.\5\ A 2015 Government Accountability Office
(GAO) report found that under this formal process, removal
actions for poorly performing employees can take six months to
a year.\6\ Thus, it is important for agencies to remove
individuals not suited to Federal service during the
probationary period. GAO found that in each year from 2004 to
2013, most employee dismissals for performance took place
during the probationary period.\7\
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\5\5 U.S.C. Sec. Sec. 7513, 7701.
\6\Gov't Accountability Office, GAO-15-191, Improved Supervision
and Better Use of Probationary Periods are Needed to Address
Substandard Employee Performance Cover Page (2015) [hereinafter ``GAO
Probationary Period Report''].
\7\Id., at 22.
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The probationary period can be a powerful tool for Federal
managers to ensure qualified individuals are being appointed to
Federal service. However, one year is not sufficient for
employees to demonstrate, and for supervisors to observe and
assess, all critical aspects of increasingly complex Federal
positions. GAO found three specific instances in which the one-
year probationary period was insufficient, including:
1. Complex occupations where individuals on a
probationary period spend much of the first year in
training before beginning work in their assigned areas;
2. Occupations that are project-based and where
individuals on a probationary period may not have an
opportunity to demonstrate all of the skills associated
with the position; and
3. Instances in which individuals on a probationary
period often rotate through various offices in the
agency and supervisors have only a limited opportunity
to assess their performance.\8\
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\8\Id., at 12.
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GAO's findings have been supported by other groups. In a
congressional hearing earlier this year, the president of the
Federal Managers Association testified, ``[n]ew employees must
often master broad and complex policies and procedures to meet
their agencies' missions, necessitating several months of
formal training followed by long periods of on-the-job
instruction. . . . In occupations where training takes
substantial time, supervisors may only have a few months of
work to judge employees' performance.''\9\
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\9\Empowering Managers--Ideas for a More Effective Federal
Workforce: Hearing Before the S. Comm. on Homeland Sec. and
Governmental Affairs, 115th Cong. 9 (2017) (written statement of Renee
Johnson, Nat'l President, Fed. Managers Ass'n).
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In addition, GAO's internal human capital officer has
increased the length of the probationary period for new
analysts hired to the agency. This allows new hires to show
their work skills on different jobs and at different phases of
each job, which include designing an audit, conducting an
audit, and writing the report after the audit is complete.\10\
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\10\Email from Tim Minelli, Assistant Dir. for Cong. Relations,
Gov't Accountability Office, to Majority staff, H. Comm. on Oversight
and Gov't Reform (July 12, 2017, 9:07 a.m.) (on file with the
Committee).
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The bill also addresses the concern that the current
probationary period is not being used for its intended purpose.
Federal regulations provide, ``The agency shall utilize the
probationary period as fully as possible to determine the
fitness of the employee and shall terminate his services during
this period if he fails to demonstrate fully his qualifications
for continued employment.''\11\ GAO found, however, that
supervisors are often not making performance-related decisions
about an individual's future likelihood of success with the
agency during the probationary period. This is in part due to
supervisors being unaware that an employee's probationary
period is expiring.\12\
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\11\5 C.F.R. Sec. 315.803(a).
\12\GAO Probationary Period Report, supra note 6, at 11.
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The EQUALS Act addresses both of these problems. It extends
the probationary period for competitive service appointments
and supervisors to two years after any required formal training
or licensure process is complete. This ensures that agencies
have enough time to assess the performance of new employees and
managers before making their appointments final. It also allows
new hires more time to show improvement based on performance
feedback.
The bill helps improve agency use of the probationary
period by requiring supervisors to be notified 30 days in
advance of the scheduled completion of a probationary period.
Agencies are also required to certify that an employee
successfully completes the probationary period. Together, these
provisions will help supervisors make better use of the
probationary period to remove individuals not fit for Federal
service.
Finally, H.R. 4182 also extends the probationary period
from one year to two years for career appointees to the Senior
Executive Service. The Senior Executive Service leads the
Federal workforce. As leaders, the nature of the work required
of the Senior Executive Service can take longer to assess in
order to ensure adequate job performance.
LEGISLATIVE HISTORY
On October 31, 2017, Representative James Comer (R-KY)
introduced H.R. 4182, the Ensuring a Qualified Civil Service
Act of 2017, with Representative Mark Meadows (R-NC) and
Representative Jody Hice (R-GA). H.R. 4182 was referred to the
Committee on Oversight and Government Reform. The Committee
considered H.R. 4182 at a business meeting on November 2, 2017,
and ordered the bill favorably reported by a recorded vote of
19 to 17.
In the 114th Congress, Representative Ken Buck (R-CO)
introduced a similar bill, H.R. 3023. On January 12, 2016, the
Committee ordered H.R. 3023 favorably reported by a recorded
vote of 20 to 16. The text of H.R. 3023 was subsequently added
as Title III of H.R. 4361, the Government Reform and
Improvement Act of 2016, which passed the House by a recorded
vote of 241 to 181 on July 7, 2016.
Also in the 114th Congress, S. 1118, the National Defense
Authorization Act for Fiscal Year 2016, contained a provision
extending the probationary period for new hires in the
Department of Defense to two years. On November 25, 2015, then-
President Barack Obama signed S. 1118 into law.\13\
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\13\Pub. L. No. 114-92 (2015), 129 Stat. 1023, Sec. 1105.
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Section-by-Section
Section 1. Short title
Section 1 establishes the short title of the bill.
Section 2. Extension of probationary period for positions within the
competitive service
Section 2 amends section 3321 of title 5, United States
Code, to extend the probationary period for appointments in the
competitive service and initial appointments as a manager or
supervisor to two years after the completion of required
training and licensing.
In addition, changes made to title 5 under this section
require agencies to: (1) clearly explain the probationary
period in any job posting or offer of employment; (2) tell
employees in probationary positions the expectations in order
to be retained after the probationary period; (3) notify
supervisors 30 days before the end of a probationary period;
and (4) certify satisfactory completion of probationary periods
for employees agencies retain after the end of the period.
The section takes effect one year after enactment and
applies only to appointments made after the provision takes
effect.
Section 3. Extension of probationary period for positions within the
Senior Executive Service
Section 3 amends section 3393(d) of title 5, United States
Code, to extend the probationary period for initial Senior
Executive Service career appointments to two years. As with
Section 2, the section takes effect one year after enactment
and applies only to appointments made after the provision takes
effect.
Section 4. Adverse actions
Section 4 amends section 7501(1) and 7511(a)(1) of title 5,
United States Code, to clarify an individual in the competitive
service must both (1) complete a probationary or trial period,
and (2) complete two years of current continuous employment in
the same position or similar positions, except a temporary
appointment of one year or less, to be covered by adverse
action procedures for misconduct. In the excepted service, a
preference eligible must complete two years of current
continuous employment in the same or similar positions. A non-
preference eligible must complete a probationary period and
complete two years of current continuous service in the same or
similar positions, except a temporary appointment limited to
two years or less. Section 4 also amends section 4303(f) of
title 5, United States Code, to clarify individuals are not
entitled to appeal a removal or reduction in grade based on
unacceptable performance to the Merit Systems Protection Board
until they have completed those requirements. The section takes
effect one year after enactment and applies only to individuals
whose periods of continuous service commence after the section
takes effect.
Section 5. Regulations required
Section 5 requires the Director of the Office of Personnel
Management to issue regulations to implement the requirements
of the bill.
Explanation of Amendments
During Committee consideration of the bill, Representative
Gerald Connolly (D-VA) offered an amendment in the nature of a
substitute to require the Comptroller General of the United
States to conduct a study on extended probationary periods. The
Connolly amendment was rejected by voice vote.
Committee Consideration
On November 2, 2017, the Committee met in open session and,
with a quorum being present, ordered the bill favorably
reported by a record vote of 19 to 17.
Roll Call Votes
There was one roll call vote conducted during Committee
consideration of H.R. 4182.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to the terms and conditions of
employment or access to public services and accommodations.
This bill amends title 5, United States Code, to modify
probationary periods within the competitive service and the
Senior Executive Service. As such, this bill does not relate to
employment or access to public services and accommodations in
the legislative branch.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goal or objective of this bill is to amend title 5, United
States Code, to modify probationary periods with respect to
positions within the competitive service and the Senior
Executive Service.
Duplication of Federal Programs
In accordance with clause 2(c)(5) of rule XIII no provision
of this bill establishes or reauthorizes a program of the
Federal Government known to be duplicative of another Federal
program, a program that was included in any report from the
Government Accountability Office to Congress pursuant to
section 21 of Public Law 111-139, or a program related to a
program identified in the most recent Catalog of Federal
Domestic Assistance.
Disclosure of Directed Rule Makings
Section 5 bill directs the Director of the Office of
Personnel Management to issue such regulations as are necessary
to carry out the requirements of the bill.
Federal Advisory Committee Act
The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of Section 5(b) of the appendix to title 5,
United States Code.
Unfunded Mandates Statement
Pursuant to section 423 of the Congressional Budget and
Impoundment Control Act of 1974 (Pub. L. 113-67) the Committee
has included a letter received from the Congressional Budget
Office below.
Earmark Identification
This bill does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI of the House of Representatives.
Committee Estimate
Pursuant to clause 3(d)(2)(B) of rule XIII of the Rules of
the House of Representatives, the Committee includes below a
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
New Budget Authority and Congressional Budget Office Cost Estimate
Pursuant to clause 3(c)(3) of rule XIII of the House of
Representatives, the cost estimate prepared by the
Congressional Budget Office and submitted pursuant to section
402 of the Congressional Budget Act of 1974 is as follows:
U.S. Congress,
Congressional Budget Office,
Washington, DC, November 13, 2017.
Hon. Trey Gowdy,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 4182, the Ensuring
a Qualified Civil Service Act of 2017.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Dan Ready.
Sincerely,
Keith Hall,
Director.
Enclosure.
H.R. 4182--Ensuring a Qualified Civil Service Act of 2017
H.R. 4182 would extend the probationary period for members
of the senior executive service from one year to two years and
would require a probationary period of at least two years for
most members of the civil service. The bill also would increase
to two years the amount of time civil servants must be employed
before being afforded certain prerogatives when being
disciplined, including advance notice of the following actions:
suspensions, pay reductions, furloughs, or removals. In
addition, agencies would be required to provide certain
notifications regarding the terms of probationary periods to
job postings, employees in their probationary period, and their
supervisor.
Enacting the bill would not generally change the number of
employees in the federal government. Furthermore, the necessary
tracking and administrative procedures regarding probationary
periods are already in place. Therefore, CBO estimates that
implementing the legislation would have no significant
budgetary effect.
Enacting H.R. 4182 would not affect direct spending or
revenues; therefore pay-as-you-go procedures do not apply.
CBO estimates that, enacting H.R. 4182 would not increase
net direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
H.R. 4182 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
The CBO staff contact for this estimate is Dan Ready. The
estimate was approved by H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
TITLE 5, UNITED STATES CODE
* * * * * * *
PART III--EMPLOYEES
* * * * * * *
SUBPART B--EMPLOYMENT AND RETENTION
* * * * * * *
CHAPTER 33--EXAMINATION, SELECTION, AND PLACEMENT
* * * * * * *
SUBCHAPTER I--EXAMINATION, CERTIFICATION, AND APPOINTMENT
* * * * * * *
Sec. 3321. Competitive service; probationary period
(a) [The President] Subject to subsections (c) and (d), the
President may take such action, including the issuance of
rules, regulations, and directives, as shall provide as nearly
as conditions of good administration warrant for a period of
probation--
(1) before an appointment in the competitive service
becomes final; and
(2) before initial appointment as a supervisor or
manager becomes final.
(b) An individual--
(1) who has been transferred, assigned, or promoted
from a position to a supervisory or managerial
position, and
(2) who does not satisfactorily complete the
probationary period under subsection (a)(2) of this
section,
shall be returned to a position of no lower grade and pay than
the position from which the individual was transferred,
assigned, or promoted. Nothing in this section prohibits an
agency from taking an action against an individual serving a
probationary period under subsection (a)(2) of this section for
cause unrelated to supervisory or managerial performance.
(c)(1) The length of a probationary period established under
paragraph (1) or (2) of subsection (a) shall--
(A) with respect to any position that requires formal
training, begin on the date of appointment to the
position and end on the date that is 2 years after the
date on which such formal training is completed;
(B) with respect to any position that requires a
license, begin on the date of appointment to the
position and end on the date that is 2 years after the
date on which such license is granted; and
(C) with respect to any position not covered by
subparagraph (A) or (B), be a period of 2 years
beginning on the date of the appointment to the
position.
(2) In paragraph (1)--
(A) the term ``formal training'' means, with respect
to any position, a training program required by law,
rule, or regulation, or otherwise required by the
employing agency, to be completed by the employee
before the employee is able to successfully execute the
duties of the applicable position; and
(B) the term ``license'' means a license,
certification, or other grant of permission to engage
in a particular activity.
(d) The head of each agency shall, in the administration of
this section, take appropriate measures to ensure that--
(1) any announcement of a vacant position within the
agency and any offer of appointment made to any
individual with respect to any such position clearly
states the terms and conditions of any applicable
probationary period, including any formal training
period and any license requirement;
(2) any individual who is required to complete a
probationary period under this section receives timely
notice of any requirements, including performance
requirements, that must be met in order to
satisfactorily complete such period;
(3) any supervisor or manager of an individual who is
required to complete a probationary period under this
section receives notification of the end date of such
period not less than 30 days before such date; and
(4) if the head decides to retain an individual after
the completion of a probationary period under this
section, the head submits a certification to that
effect, supported by a brief statement of the basis for
the certification, in such form and manner as the
President may by regulation prescribe.
[(c) Subsections (a) and (b)] (e) Subsections (a) through (d)
of this section shall not apply with respect to appointments in
the Senior Executive Service or the Federal Bureau of
Investigation and Drug Enforcement Administration Senior
Executive Service, or any individual covered by section 1599e
of title 10.
* * * * * * *
SUBCHAPTER VIII--APPOINTMENT, REASSIGNMENT, TRANSFER, AND DEVELOPMENT
IN THE SENIOR EXECUTIVE SERVICE
* * * * * * *
Sec. 3393. Career appointments
(a) Each agency shall establish a recruitment program, in
accordance with guidelines which shall be issued by the Office
of Personnel Management, which provides for recruitment of
career appointees from--
(1) all groups of qualified individuals within the
civil service; or
(2) all groups of qualified individuals whether or
not within the civil service.
(b) Each agency shall establish one or more executive
resources boards, as appropriate, the members of which shall be
appointed by the head of the agency from among employees of the
agency or commissioned officers of the uniformed services
serving on active duty in such agency. The boards shall, in
accordance with merit staffing requirements established by the
Office, conduct the merit staffing process for career
appointees, including--
(1) reviewing the executive qualifications of each
candidate for a position to be filled by a career
appointee; and
(2) making written recommendations to the appropriate
appointing authority concerning such candidates.
(c)(1) The Office shall establish one or more qualifications
review boards, as appropriate. It is the function of the boards
to certify the executive qualifications of candidates for
initial appointment as career appointees in accordance with
regulations prescribed by the Office. Of the members of each
board more than one-half shall be appointed from among career
appointees. Appointments to such boards shall be made on a non-
partisan basis, the sole selection criterion being the
professional knowledge of public management and knowledge of
the appropriate occupational fields of the intended appointee.
(2) The Office shall, in consultation with the various
qualification review boards, prescribe criteria for
establishing executive qualifications for appointment of career
appointees. The criteria shall provide for--
(A) consideration of demonstrated executive
experience;
(B) consideration of successful participation in a
career executive development program which is approved
by the Office; and
(C) sufficient flexibility to allow for the
appointment of individuals who have special or unique
qualities which indicate a likelihood of executive
success and who would not otherwise be eligible for
appointment.
(d) An individual's initial appointment as a career appointee
shall become final only after the individual has served a [1-
year] 2-year probationary period as a career appointee. The
preceding sentence shall not apply to any individual covered by
section 1599e of title 10.
(e) Each career appointee shall meet the executive
qualifications of the position to which appointed, as
determined in writing by the appointing authority.
(f) The title of each career reserved position shall be
published in the Federal Register.
(g) A career appointee may not be removed from the Senior
Executive Service or civil service except in accordance with
the applicable provisions of sections 1215,, 3592, 3595, 7532,
or 7543 of this title.
* * * * * * *
CHAPTER 35--RETENTION PREFERENCE, VOLUNTARY SEPARATION INCENTIVE
PAYMENTS, RESTORATION, AND REEMPLOYMENT
* * * * * * *
SUBCHAPTER V--REMOVAL, REINSTATEMENT, AND GUARANTEED PLACEMENT IN THE
SENIOR EXECUTIVE SERVICE
* * * * * * *
Sec. 3592. Removal from the Senior Executive Service
(a) Except as provided in subsection (b) of this section, a
career appointee may be removed from the Senior Executive
Service to a civil service position outside of the Senior
Executive Service--
(1) during the [1-year] 2-year period of probation
under section 3393(d) of this title, or
(2) at any time for less than fully successful
executive performance as determined under subchapter II
of chapter 43 of this title,
except that in the case of a removal under paragraph (2) of
this subsection the career appointee shall, at least 15 days
before the removal, be entitled, upon request, to an informal
hearing before an official designated by the Merit Systems
Protection Board at which the career appointee may appear and
present arguments, but such hearing shall not give the career
appointee the right to initiate an action with the Board under
section 7701 of this title, nor need the removal action be
delayed as a result of the granting of such hearing.
(b)(1) Except as provided in paragraph (2) of this
subsection, a career appointee in an agency may not be
involuntarily removed--
(A) within 120 days after an appointment of the head
of the agency; or
(B) within 120 days after the appointment in the
agency of the career appointee's most immediate
supervisor who--
(i) is a noncareer appointee; and
(ii) has the authority to remove the career
appointee.
(2) Paragraph (1) of this subsection does not apply with
respect to--
(A) any removal under section 4314(b)(3) of this
title; or
(B) any disciplinary action initiated before an
appointment referred to in paragraph (1) of this
subsection.
(c) A limited emergency appointee, limited term appointee, or
noncareer appointee may be removed from the service at any
time.
* * * * * * *
SUBPART C--EMPLOYEE PERFORMANCE
* * * * * * *
CHAPTER 43--PERFORMANCE APPRAISAL
* * * * * * *
SUBCHAPTER I--GENERAL PROVISIONS
* * * * * * *
Sec. 4303. Actions based on unacceptable performance
(a) Subject to the provisions of this section, an agency may
reduce in grade or remove an employee for unacceptable
performance.
(b)(1) An employee whose reduction in grade or removal is
proposed under this section is entitled to--
(A) 30 days' advance written notice of the proposed
action which identifies--
(i) specific instances of unacceptable
performance by the employee on which the
proposed action is based; and
(ii) the critical elements of the employee's
position involved in each instance of
unacceptable performance;
(B) be represented by an attorney or other
representative;
(C) a reasonable time to answer orally and in
writing; and
(D) a written decision which--
(i) in the case of a reduction in grade or
removal under this section, specifies the
instances of unacceptable performance by the
employee on which the reduction in grade or
removal is based, and
(ii) unless proposed by the head of the
agency, has been concurred in by an employee
who is in a higher position than the employee
who proposed the action.
(2) An agency may, under regulations prescribed by the head
of such agency, extend the notice period under subsection
(b)(1)(A) of this section for not more than 30 days. An agency
may extend the notice period for more than 30 days only in
accordance with regulations issued by the Office of Personnel
Management.
(c) The decision to retain, reduce in grade, or remove an
employee--
(1) shall be made within 30 days after the date of
expiration of the notice period, and
(2) in the case of a reduction in grade or removal,
may be based only on those instances of unacceptable
performance by the employee--
(A) which occurred during the 1-year period
ending on the date of the notice under
subsection (b)(1)(A) of this section in
connection with the decision; and
(B) for which the notice and other
requirements of this section are complied with.
(d) If, because of performance improvement by the employee
during the notice period, the employee is not reduced in grade
or removed, and the employee's performance continues to be
acceptable for 1 year from the date of the advance written
notice provided under subsection (b)(1)(A) of this section, any
entry or other notation of the unacceptable performance for
which the action was proposed under this section shall be
removed from any agency record relating to the employee.
(e) Any employee who is--
(1) a preference eligible;
(2) in the competitive service; or
(3) in the excepted service and covered by subchapter
II of chapter 75,
and who has been reduced in grade or removed under this section
is entitled to appeal the action to the Merit Systems
Protection Board under section 7701.
(f) This section does not apply to--
(1) the reduction to the grade previously held of a
supervisor or manager who has not completed the
probationary period under section 3321(a)(2) of this
title,
(2) the reduction in grade or removal of an employee
in the competitive service who is serving a
probationary or trial period under an initial
appointment or who has not completed [1 year of
current] 2 years of current continuous employment under
other than a temporary appointment limited to 1 year or
less,
(3) the reduction in grade or removal of an employee
in the excepted service who has not completed [1 year]
2 years of current continuous employment in the same or
similar positions, or
(4) any removal or demotion under section 714 of
title 38.
* * * * * * *
SUBPART F--LABOR-MANAGEMENT AND EMPLOYEE RELATIONS
* * * * * * *
CHAPTER 75--ADVERSE ACTIONS
* * * * * * *
SUBCHAPTER I--SUSPENSION FOR 14 DAYS OR LESS
Sec. 7501. Definitions
For the purpose of this subchapter--
(1) ``employee'' means an individual in the
competitive service who is not serving a probationary
or trial period under an initial appointment [or,
except] and, except as provided in section 1599e of
title 10, who has completed [1 year of current] 2 years
of current continuous employment in the same or similar
positions under other than a temporary appointment
limited to 1 year or less; and
(2) ``suspension'' means the placing of an employee,
for disciplinary reasons, in a temporary status without
duties and pay.
* * * * * * *
SUBCHAPTER II--REMOVAL, SUSPENSION FOR MORE THAN 14 DAYS, REDUCTION IN
GRADE OR PAY, OR FURLOUGH FOR 30 DAYS OR LESS
Sec. 7511. Definitions; application
(a) For the purpose of this subchapter--
(1) ``employee'' means--
(A) an individual in the competitive
service--
(i) who is not serving a probationary
or trial period under an initial
appointment[; or]; and
(ii) except as provided in section
1599e of title 10, who has completed [1
year] 2 years of current continuous
service under other than a temporary
appointment limited to 1 year or less;
(B) a preference eligible in the excepted
service who has completed [1 year] 2 years of
current continuous service in the same or
similar positions--
(i) in an Executive agency; or
(ii) in the United States Postal
Service or Postal Regulatory
Commission; and
(C) an individual in the excepted service
(other than a preference eligible)--
(i) who is not serving a probationary
or trial period under an initial
appointment pending conversion to the
competitive service[; or]; and
(ii) who has completed 2 years of
current continuous service in the same
or similar positions in an Executive
agency under other than a temporary
appointment limited to 2 years or less;
(2) ``suspension'' has the same meaning as set forth
in section 7501(2) of this title;
(3) ``grade'' means a level of classification under a
position classification system;
(4) ``pay'' means the rate of basic pay fixed by law
or administrative action for the position held by an
employee; and
(5) ``furlough'' means the placing of an employee in
a temporary status without duties and pay because of
lack of work or funds or other nondisciplinary reasons.
(b) This subchapter does not apply to an employee--
(1) whose appointment is made by and with the advice
and consent of the Senate;
(2) whose position has been determined to be of a
confidential, policy-determining, policy-making or
policy-advocating character by--
(A) the President for a position that the
President has excepted from the competitive
service;
(B) the Office of Personnel Management for a
position that the Office has excepted from the
competitive service; or
(C) the President or the head of an agency
for a position excepted from the competitive
service by statute;
(3) whose appointment is made by the President;
(4) who is receiving an annuity from the Civil
Service Retirement and Disability Fund, or the Foreign
Service Retirement and Disability Fund, based on the
service of such employee;
(6) who is a member of the Foreign Service, as
described in section 103 of the Foreign Service Act of
1980;
(7) whose position is within the Central Intelligence
Agency or the Government Accountability Office;
(8) whose position is within the United States Postal
Service, the Postal Regulatory Commission, the Panama
Canal Commission, the Tennessee Valley Authority, the
Federal Bureau of Investigation, an intelligence
component of the Department of Defense (as defined in
section 1614 of title 10), or an intelligence activity
of a military department covered under subchapter I of
chapter 83 of title 10, unless subsection (a)(1)(B) of
this section or section 1005(a) of title 39 is the
basis for this subchapter's applicability;
(9) who is described in section 5102(c)(11) of this
title; or
(10) who holds a position within the Veterans Health
Administration which has been excluded from the
competitive service by or under a provision of title
38, unless such employee was appointed to such position
under section 7401(3) of such title.
(c) The Office may provide for the application of this
subchapter to any position or group of positions excepted from
the competitive service by regulation of the Office which is
not otherwise covered by this subchapter.
* * * * * * *
MINORITY VIEWS
Democrats strongly oppose H.R. 4182, which would extend the
probationary period from one year to two years for federal
employees in the competitive service and the Senior Executive
Service.
During the probationary period, federal employees
essentially have no due process or appeal rights if
disciplinary action is taken against them. They may be fired
without notice, they have limited rights to an attorney or
representative, and they generally may not appeal their
removals.
The bill would double the amount of time during which
federal employees are essentially at-will employees. Due
process protections are critical to ensuring the integrity of
the federal civil service by preventing its politicization and
protecting whistleblowers from retaliation.
The Majority would take the drastic step of doubling the
probationary period with no evidence that there is a problem
that needs to be addressed. The Committee has held no hearings
on whether federal agencies need a blanket one-year extension
of the probationary period for every federal job in the
competitive and senior executive service. This legislation
appears to be a solution in search of a problem.
A two-year probationary period for Department of Defense
civilian employees was recently enacted in the National Defense
Authorization Act for fiscal year 2016. However, the Defense
Department did not indicate a need for this change or request
it in its fiscal year 2016 legislative proposal. Democratic
Members sent a letter to the House and Senate Committees on
Armed Services raising concerns that such an extension would
undermine due process rights, harm whistleblower protections,
and degrade recruitment and retention.
Even after the existing probationary period ends, agencies
may still dismiss poor performers after providing employees a
chance to improve and ensuring appropriate due process,
including 30 days' notice, an opportunity to respond, and
appeal rights.
These due process protections are necessary to protect
against arbitrary agency actions, including retaliation against
whistleblowers, which the Committee has documented as a very
real danger in the past.
Before damaging due process and whistleblower rights, the
Committee should determine whether an extension of the
probationary period is needed and, if so, whether it is
appropriate for all federal service occupations or only certain
occupations.
During Committee consideration of the bill, Rep. Connolly
offered an amendment in the nature of a substitute that would
have required the Government Accountability Office to conduct a
study of federal agencies that have lengthened the employee
probationary period from one to two years for certain
occupations. It also would have required GAO to analyze the
impact of an increased probationary period on each agency's
ability to deal with poor performers, improve employee
productivity, promote recruitment and retention, and accomplish
its mission.
Since Congress recently increased the Defense Department's
probationary period for civilian employees from one to two
years, the amendment would have required GAO to examine the
Defense Department as one case study. Gathering this data is a
necessary first step before deciding to change the law,
especially since such changes could have damaging effects on
civil service protections, whistleblower disclosures, and lead
to the potential politicization of the federal workforce.
Elijah E. Cummings,
Ranking Member.
[all]