New bills hit federal employees with shorter disciplinary appeals process, fees for submitting to MSPB

Federal employees may see more significant changes to the current disciplinary appeals process they have before their agencies and the Merit Systems Protection Board.

The House Oversight and Government Reform Committee cleared two new pieces of legislation Tuesday afternoon. In a sense, both bills build off the executive orders on employee removals and labor-management relations the president signed in late May.

The Modern Employment Reform, Improvement and Transformation (MERIT) Act, would shorten the disciplinary appeals process for most federal employees. It allows agency heads to propose an adverse action and give employees a chance to respond within seven-to-21-days. Employees can appeal a firing to the MSPB, but only within the first seven days.

MSPB has 30 days to issue a decision. If MSPB can’t meet the 30-day deadline, the decision from the employee’s agency stands, according to the bill.

The MERIT Act would also extend probationary periods for most newly hired federal employees and senior executives from one year to two. The House has already passed a standalone bill that would extend the probationary period for most employees.

“Extending the probationary period gives employees the time they need to demonstrate proficiency in their roles before supervisors have to make a decision about whether or not they’re qualified to become permanent employees,” Rep.  James Comer (R-Ky.)

In addition, the legislation would:

  • Prohibit employees from using the negotiated grievance process to appeal a disciplinary action or reduction-in-force (RIF).
  • Change the procedures for notifying and appealing a furlough.
  • Reduce the annuity for a federal employee ultimately convicted of a felony and fired from the civil service.
  • Authorize agencies to recoup bonuses or performance awards paid to employees and executives.

The committee also passed the MSPB Reauthorization Act. Though the bill does, as its name describes, reauthorize the agency for the first time in more than a decade, it would also have a significant impact on employees who file appeals before the MSPB.

The bill would let MSPB collect fees from employees who choose to appeal an adverse action with the agency.

The legislation doesn’t name a specific price but said fees shouldn’t “exceed the amount that is 50 percent of the fee required for filing a civil action in a United States district court.” MSPB has some leeway to adjust the price from time to time, and the fee can be waived if the board believes it would cause “undue hardship.”

In addition, the reauthorization act would change MSPB’s existing adjudication process. The legislation gives MSPB summary judgment authority and changes the evidentiary burden of proof that agencies must show the board in a disciplinary appeal case. It also limits the MPSB’s ability to mitigate disciplinary actions.

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The bill would also amend a provision in the VA Accountability and Whistleblower Protection Act. The change would allow VA employees in Title 38, typically medical professionals, to appeal directly to MSPB’s board, rather than an administrative judge.

Democrats on the oversight committee had harsh words for both bills. Ranking Member Elijah Cummings (D-Md.) called the MERIT Act a “compilation of all the anti-federal workforce bills that have been introduced in this Congress.”

And though Democrats say MSPB should be reauthorized, they took issue with the other provisions that members packaged in with the authorization act.

“This bill raises the hurdles of a federal employee in terms of an appeal and in terms of merit protection,” Rep. Gerry Connolly (D-Va.) said. “I suppose it has to do with a philosophy or an ethos of presumption. Heretofore, the ethos of presumption has been that a federal employee has a legitimate grievance that needs to be heard and protected. If we adopt this bill this way, we are radically shifting that ethos of presumption, to one in which we believe you’re gaming the system.”

Both pieces of legislation will likely face a difficult future in the Senate. The House has passed similar measures in previous sessions of Congress, but few have made it to the Senate floor.

Sen. David Perdue (R-Ga.) has introduced a companion bill to the MERIT Act.