[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]




                               before the

                              OF COLUMBIA

                                 of the

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES


                             SECOND SESSION


                             JUNE 30, 2010


                           Serial No. 111-95


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                   EDOLPHUS TOWNS, New York, Chairman
PAUL E. KANJORSKI, Pennsylvania      DARRELL E. ISSA, California
CAROLYN B. MALONEY, New York         DAN BURTON, Indiana
ELIJAH E. CUMMINGS, Maryland         JOHN L. MICA, Florida
DENNIS J. KUCINICH, Ohio             JOHN J. DUNCAN, Jr., Tennessee
JOHN F. TIERNEY, Massachusetts       MICHAEL R. TURNER, Ohio
WM. LACY CLAY, Missouri              LYNN A. WESTMORELAND, Georgia
DIANE E. WATSON, California          PATRICK T. McHENRY, North Carolina
STEPHEN F. LYNCH, Massachusetts      BRIAN P. BILBRAY, California
JIM COOPER, Tennessee                JIM JORDAN, Ohio
GERALD E. CONNOLLY, Virginia         JEFF FLAKE, Arizona
MIKE QUIGLEY, Illinois               JEFF FORTENBERRY, Nebraska
MARCY KAPTUR, Ohio                   JASON CHAFFETZ, Utah
    Columbia                         BLAINE LUETKEMEYER, Missouri
PATRICK J. KENNEDY, Rhode Island     ANH ``JOSEPH'' CAO, Louisiana
DANNY K. DAVIS, Illinois             BILL SHUSTER, Pennsylvania
PAUL W. HODES, New Hampshire
JUDY CHU, California

                      Ron Stroman, Staff Director
                Michael McCarthy, Deputy Staff Director
                      Carla Hultberg, Chief Clerk
                  Larry Brady, Minority Staff Director

Subcommittee on Federal Workforce, Postal Service, and the District of 

               STEPHEN F. LYNCH, Massachusetts, Chairman
    Columbia                         BRIAN P. BILBRAY, California
DANNY K. DAVIS, Illinois             ANH ``JOSEPH'' CAO, Louisiana
ELIJAH E. CUMMINGS, Maryland         ------ ------
WM. LACY CLAY, Missouri
                     William Miles, Staff Director

                            C O N T E N T S

Hearing held on June 30, 2010....................................     1
Statement of:
    Dougan, William R., national president, National Federation 
      of Federal Employees; Colleen M. Kelley, national 
      president, National Treasury Employees Union; Philip W. 
      Glover, legislative coordinator, Council of Prison Locals, 
      American Federation of Government Employees, AFL-CIO; 
      Patricia Barts, member, Cherry Hill, New Jersey Chapter, 
      National Active and Retired Federal Employees..............    36
        Barts, Patricia..........................................    74
        Dougan, William R........................................    36
        Glover, Philip W.........................................    60
        Kelley, Colleen M........................................    51
    Simpson, Jerry, Associate Director for Workforce Management, 
      U.S. National Park Service; Hank Kashdan, Associate Chief, 
      U.S. Forest Service; and Angela Bailey, Deputy Associate 
      Director for Recruitment and Diversity, U.S. Office of 
      Personnel Management.......................................     7
        Bailey, Angela...........................................    20
        Kashdan, Hank............................................    13
        Simpson, Jerry...........................................     7
Letters, statements, etc., submitted for the record by:
    Bailey, Angela, Deputy Associate Director for Recruitment and 
      Diversity, U.S. Office of Personnel Management, prepared 
      statement of...............................................    22
    Barts, Patricia, member, Cherry Hill, New Jersey Chapter, 
      National Active and Retired Federal Employees, prepared 
      statement of...............................................    76
    Dougan, William R., national president, National Federation 
      of Federal Employees, prepared statement of................    39
    Glover, Philip W., legislative coordinator, Council of Prison 
      Locals, American Federation of Government Employees, AFL-
      CIO, prepared statement of.................................    62
    Kashdan, Hank, Associate Chief, U.S. Forest Service, prepared 
      statement of...............................................    15
    Kelley, Colleen M., national president, National Treasury 
      Employees Union, prepared statement of.....................    53
    Lynch, Hon. Stephen F., a Representative in Congress from the 
      State of Massachusetts, prepared statement of..............     3
    Simpson, Jerry, Associate Director for Workforce Management, 
      U.S. National Park Service, prepared statement of..........     9



                        WEDNESDAY, JUNE 30, 2010

                  House of Representatives,
Subcommittee on Federal Workforce, Postal Service, 
                      and the District of Columbia,
              Committee on Oversight and Government Reform,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 2:15 p.m., in 
room 2154, Rayburn House Office Building, Hon. Stephen F. Lynch 
(chairman of the subcommittee) presiding.
    Present: Representatives Lynch, Norton, Connolly, Chaffetz, 
and Bilbray.
    Staff present: Jill Crissman, professional staff; Aisha 
Elkheshin, clerk/legislative assistant; William Miles, staff 
director; Rohan Siddhanti and Ian Kapuza, interns; Dan Zeidman, 
deputy clerk/legislative assistant; Justin LoFranco, minority 
press assistant/clerk; Marvin Kaplan, minority counsel; and 
James Robertson, minority professional staff member.
    Mr. Lynch. Good afternoon. And I apologize for the slight 
delay. A little traffic on the way in.
    The Subcommittee on the Federal Workforce, Postal Service, 
and the District of Columbia will come to order.
    I welcome my friend, the ranking member, Mr. Chaffetz of 
Utah, members of the subcommittee, hearing witnesses, and all 
those in attendance.
    The purpose of today's hearing is to review the existing 
temporary hiring authorities and current regulations and the 
resulting impact on temporary employees' status and benefit 
    The chair, the ranking member, and the subcommittee members 
will each have 5 minutes within which to make an opening 
statement. And all Members will have 3 days to submit 
statements for the record.
    Hearing no objection, so ordered.
    Ladies and gentlemen, it is the duty of this subcommittee 
to look after every single Federal employee, no matter the 
level of pay or what type of schedule or seniority they may 
have. I have called today's hearing to discuss issues relating 
to temporary employees, who represent about 9 percent of the 
total Federal work force.
    We know that seasonal temporary employees play a critical 
role in helping an agency accomplish its mission and carry out 
its mandates, yet these employees are operating largely under 
the radar screen.
    Given the fact that in certain Federal entities, namely the 
National Park Service and the Forest Service, seasonal 
temporary employees can comprise approximately 40 percent of 
the work force at any given time, it is important that we take 
time to seriously consider issues and concerns currently 
confronting this particular employee population.
    Oftentimes, seasonal temporary employees have worked in the 
same capacity year after year, decade after decade. However, 
they receive no health care, retirement insurance, or other 
regular benefits accrued by otherwise permanent or term 
employees of the Federal Government.
    While in the early 1990's regulatory changes were made to 
reduce temporary employees' assignment time from 4 years to a 
maximum total of 2, thereby eliminating the possibility of 
temporary employee abuses, it is clear that renewed oversight 
on this issue is needed.
    As we explore existing temporary hiring authorities and 
current regulations, I believe it is important that we consider 
whether a path to permanency can be established for our 
temporary employees, many of whom have worked for multiple 
years and are fully cognizant of the merit principles in our 
hiring. Additionally, we need to look at how we can harness the 
sizable talent and information acquired by these temporary 
    Today's hearing will also provide us the chance to hear 
from the employer as well as the employee side of the temporary 
hiring issue. My intent is for this afternoon's hearing to 
provide all of us with an opportunity to further the dialog on 
various ideas and suggestions on how we can best reach a middle 
ground on some of these issues so that our employees are 
properly taken care of without agency budgets being overly 
    It is my hope that the testimony and feedback we receive 
from today's witnesses will provide the subcommittee with 
precise guidance and direction. Again, I thank each of you for 
being with us this afternoon, and I look forward to your 
    [The prepared statement of Hon. Stephen F. Lynch follows:]

    Mr. Lynch. I now yield to the ranking member, Mr. Chaffetz, 
for 5 minutes for an opening statement.
    Mr. Chaffetz. Thank you, Mr. Chairman.
    And thank you to our witnesses for being here and the 
preparation you put forward. This testimony is important, as we 
dive into this issue.
    Temporary employees provide Federal agencies with 
flexibility needed to handle temporary increases in workload, 
such as seasonal work and short-term projects, or to hire 
people to fill in behind permanent employees during an extended 
leave of absence, such as parental leave.
    These positions are not intended to be used as tryouts or 
as substitutes to buffer the full-time work force. Congress and 
the Office of Personnel Management must continue to work 
diligently to ensure that agencies comply with the statutory 
and regulatory framework and limitations on the use of 
temporary workers. At the same time, any statutory or 
regulatory change must be approached with caution to ensure 
there is an effective work force, while limiting spending and 
maintaining the flexibility the system is intended to provide.
    In 1998, the last time the Office of Personnel Management 
estimated the cost of extending health and pension benefits to 
temporary workers, it estimated the total cost of providing 
these benefits to the 102,000-plus temporary employees would be 
in excess of $784 million.
    Today, there is something like in the ballpark of 183,000 
temporary workers. And, like all Federal employees, their 
salaries have grown significantly since 1998. In a year when 
the Federal deficit is projected to exceed last year's record 
high of $1.4 trillion and unemployment is in the range of 9.7 
percent across the country, a billion-dollar increase in 
spending would be, obviously, irresponsible.
    I look forward to hearing suggestions from today's 
witnesses on how the Office of Personnel Management and 
Congress can work together to ensure agencies use temporary 
workers in accordance with standing regulations and statutes. I 
look forward to the interaction, and, again, I thank you for 
being here.
    I yield back, Mr. Chairman.
    Mr. Lynch. I thank the gentleman.
    The chair now recognizes the gentlelady from the District 
of Columbia, Ms. Eleanor Holmes Norton, for 5 minutes for an 
opening statement.
    Ms. Norton. Thank you very much, Mr. Chairman. And I thank 
you for this hearing and regret that this hearing is necessary, 
because this issue came up not shortly after I came to Congress 
almost 20 years ago, and I wonder if we are seeing progress.
    I note that the number of temporary employees has gone up. 
That doesn't, in and of itself, bother me, because there are 
increasing numbers of temporary employees and it is a very 
satisfactory status to many people. But I think, at this 
hearing, we need to find out whether temporary status is being 
abused or if it simply doesn't work the way we are implementing 
    I am particularly concerned, Mr. Chairman, that, in the 
year in which we have just passed a monumentally historic 
health care reform bill, these workers apparently still cannot 
get access to health care unless they pay for it entirely. I 
cannot understand how anybody working for the Federal 
Government would be put in that position for any period of 
time. And I would be very interested to know whether or not the 
health care bill we just passed makes any difference with 
respect to that status.
    Very concerning, too, is the lack of any retirement 
benefits. Now, a time limit was put on the number of years you 
could serve as a temporary employee, and I don't have 
objections to that. The reason I don't have objections to it, 
at least as it stands now, is that we want to preserve the 
merit system as the way to hire employees.
    On the other hand, I am troubled by reports of temporary 
employees who are working far longer than the 2-year limit 
because that can be waived. And I think the reason probably is 
that their experience is needed. I do join the ranking member 
in understanding the need for flexibility here, but flexibility 
should not come with abuse.
    The case that first led to reforms involved a man from the 
District of Columbia who worked three shifts over July 4th and 
dropped dead from it. He had a wife and five or six children, 
and nothing to show for it.
    I went to the floor with a bill. And a bill for a single 
individual is very rare in this House, but the House and the 
Senate saw this as not only a signal that there was reform 
needed but that something had to be done for this man, and we 
were able to get some funds for him.
    I regret to see now that perhaps too little was done, and 
hope to learn more from this hearing about what more needs to 
be done consistent with maintaining the flexibility of 
temporary employment, which is employment that is not only to 
the benefit of the Federal Government but many others who work 
in part-time positions as well.
    Thank you again, Mr. Chairman.
    Mr. Lynch. I thank the gentlelady.
    The chair now recognizes the gentleman from Virginia, Mr. 
Connolly, for 5 minutes for an opening statement.
    Mr. Connolly. Thank you very much, Mr. Chairman, for 
continuing to tackle one of the more intractable challenges 
facing our Federal work force.
    Widespread agency abuse of temporary employee hiring 
practices is both the symptom of a broken hiring system and an 
ongoing impediment to the long-range recruitment and retention 
of the high-caliber employees we need in the Federal 
Government. The Office of Personnel Management needs to use its 
administrative authority to the maximum extent possible to 
crack down on agencies' abuse of temporary hiring as a logical 
accompaniment to the implementation of the President's recently 
announced hiring reforms, which I, for one, welcome.
    One reform OPM could implement would be to close the 
loophole allowing repeated temporary hires of seasonal 
employees who work less than 6 months in a year. Temporary 
hiring has all too frequently been abused as a de facto means 
of retaining long-term employees to save money in the short 
run, at the expense of both the Federal employee and Federal 
efficiency in the long run.
    It is not surprising that agencies use temporary hiring 
authorities, including the misnamed Federal Career Internship 
Program, to fill employment positions since the current hiring 
process is so inefficient. Fortunately, President Obama and OPM 
Director Berry are taking aggressive steps to reform that 
process by eliminating KSA essay requirements and streamlining 
hiring on USAJobs. These reforms will allow agencies to fill 
job positions more readily with permanent employees hired under 
merit principles.
    For their part, agencies must take advantage of the 
opportunity and begin making progress to reverse the 25,000-
position growth in temporary employment that occurred between 
1992 and 2009.
    I look forward to hearing the Forest Service's plans for 
reforming abuse of temporary hiring authority. An extraordinary 
53 percent of Forest Service employees who responded to a 
National Federation of Federal Employees survey said that they 
had been temporarily hired for five or more seasons, even 
though the Merit Systems Protection Board advised that 
temporary employment policies should be based on the assumption 
that the employment will normally be on a one-time, short-
duration basis.
    Many of these temporary employees are, in fact, long-term, 
dedicated public servants. For example, Forest Service fire 
crews who have served year after year from June to October, or 
longer, may be seasonal but they surely are not temporary.
    Many of these Forest Service positions involve hard, 
dangerous labor. It is morally repugnant to exploit temporary 
hiring authority to avoid providing Forest Service employees 
the benefits that, in fact, they have earned through what is 
frequently long-term service and certainly dangerous.
    This is not principally an issue of workers' rights, 
however, but rather Federal efficiency and productivity. We 
must remain focused on recruiting and retaining the best 
employees in what is frequently a very competitive job market. 
In order to recruit and retain the best employees who will 
serve our constituents, we must ensure that agencies are 
offering basic benefits rather than long-term temporary 
employment that does an injustice to both Federal employees 
and, in the long run, the taxpayers themselves.
    I yield back.
    Mr. Lynch. I thank the gentleman.
    Again, I want to welcome our witnesses.
    It is the custom before this committee that all witnesses 
are sworn in. Could I ask you to please rise and raise your 
right hands?
    [Witnesses sworn.]
    Mr. Lynch. Let the record indicate that all of the 
witnesses have answered in the affirmative.
    What I will do is offer a brief introduction of the 
witnesses, and then each will be afforded 5 minutes for an 
opening statement.
    Just for the beginning, the small boxes in front of you on 
the table will indicate green while your time is proceeding, 
then yellow when it is time to wrap up, and then red when you 
should stop testifying.
    And let me begin.
    Mr. Jerry Simpson began his Federal career with the 
National Aeronautics and Space Administration in 1967. In 2006, 
he left NASA to join the National Park Service. Mr. Simpson 
currently serves as the associate director of work force 
management for the National Park Service, where his duties 
include ensuring effective utilization of Federal employees, 
concession employees, co-operators, contractors, and 
    Mr. Hank Kashdan has served the National Forest Service for 
35 years and is currently the Forest Service's associate chief. 
During his tenure with the Forest Service, Mr. Kashdan has 
served in a variety of roles, including his appointment as 
deputy chief of business operations.
    Ms. Angela Bailey was selected for the Senior Executive 
Service in October 2007 after 26 years of public service. She 
currently serves as deputy associate director for recruitment 
and diversity at the Office of Personnel Management. Prior to 
joining the Office of Personnel Management, Ms. Bailey worked 
for the Social Security Administration and the Department of 
    Mr. Simpson, you are now recognized for 5 minutes for an 
opening statement.

                      PERSONNEL MANAGEMENT


    Mr. Simpson. Mr. Chairman, thank you for the opportunity to 
appear today to discuss issues facing temporary employees. In 
the interest of time, I will summarize my written testimony and 
then answer questions you may have.
    For many years, the Park Service has relied heavily on a 
seasonal work force to augment its permanent staff. Today, we 
hire approximately 10,000 seasonal employees every year to 
provide critical services, especially during peak summer 
visitation. The variety of positions that we hire includes 
maintenance workers; rangers, both law enforcement protection 
and interpretation; fee collectors; biological technicians; 
landscape architects; firefighters; and lifeguards, just to 
name a few.
    Seasonal positions in the Park Service are very 
competitive, and the number of applicants usually far exceeds 
the number of available positions. We use temporary hiring 
authorities to fill many of these positions, often through 
open, competitive examination procedures. However, we may also 
give temporary appointments noncompetitively to certain 
individuals, and we do make use of the Student Educational 
Employment Program to noncompetitively fill positions 
performing seasonal work.
    The Park Service is concerned about the morale and the 
equitable treatment of our seasonal work force. Because the 
Employee Viewpoint Survey conducted by OPM is only distributed 
to permanent employees, we recently completed a comparable 
internal survey distributed to approximately 6,000 of our 
employees who were hired after June 2009, including seasonal 
    According to the survey, our seasonal employees, like their 
permanent coworkers, derive very high satisfaction from their 
belief that the work they do is important and that they like 
the work that they do. Their greatest dissatisfiers, however, 
are with the lack of health and retirement benefits, the lack 
of job security, and the lack of equity with permanent staff, 
particularly where promotions and within-grade pay increases 
are at stake.
    Approximately 43 percent of those survey respondents 
indicated they were considering leaving the Park Service within 
the next year.
    We have formed an internal work group to help address these 
issues, and we will actively be working on those in the coming 
year, within existing regulatory and budgetary constraints.
    Though seasonal employees are not eligible for 
participation in the Federal Employees Health Benefits program, 
we do make available to all of our seasonal employees when they 
first start work, information about private health insurance 
that is available to them through the Association for National 
Park Rangers, which is a nonprofit employee organization.
    We are vigilant in monitoring our use of temporaries. We 
conduct multiple audits annually to ensure compliance with the 
temporary hiring laws, regulations, and the time limits imposed 
on these appointments by OPM guidelines. Over the past 3 years, 
the Park Service has conducted between 15 and 20 of these 
reviews with an OPM staff member as a member of each review 
team, and we have found no major compliance issues in these 
    So, in summary, the use of temporary hiring authorities is 
critical to the Park Service. They play a role in our seasonal 
recruitment efforts, and they allow us to meet our NPS mission. 
We strive to ensure that our use of authorities is in 
compliance with Civil Service laws and regulations, but we 
would welcome the opportunity to work with the committee and 
other agencies and departments to explore potential solutions 
to the issues that will be discussed today.
    So, Mr. Chairman, this concludes my prepared remarks, and I 
would be happy to answer questions.
    [The prepared statement of Mr. Simpson follows:]

    Mr. Lynch. Thank you, Mr. Simpson.
    Mr. Kashdan, welcome. You are now recognized for 5 minutes 
for an opening statement.

                   STATEMENT OF HANK KASHDAN

    Mr. Kashdan. Thank you, Chairman lynch, Mr. Bilbray, Ms. 
Norton, Mr. Connolly. I appreciate the opportunity to be here 
today to talk about a very critical segment of the work force 
that delivers the Forest Service mission, that being the 
temporary seasonal work force.
    In addressing the subcommittee's concerns about temporary 
hiring authorities and benefits, legislative issues, and 
qualification for permanent jobs, I think it is important to 
just lay out an employment profile for the agency.
    At any given time in the Forest Service, we will have up to 
about 30,000 career employees. At this time of the year, the 
end of June, early July, we will increase that number to almost 
45,000, adding 15,000 temporary seasonals to the work force. 
And that typically hits its height right about this time of the 
year. These employees are primarily field employees. They will 
work in wildlife habitat management, watershed restoration, 
recreation management, forest products, and the big employer 
being wildfire suppression.
    Our field seasons vary. In the southern tier of the United 
States, that field season may last all year. In the Northeast 
and the Northwest, as well as Alaska, that field season can be 
fairly short, 3 or 4 months. So, in addressing the question of 
how long does a temporary last, I would like to address it from 
a strictly plain and simple business-model standpoint, as well 
as an empathetic standpoint, trying to put myself in the shoes 
of a temporary employee.
    From the business-model standpoint, I think there are some 
basic attributes that we have to consider. Most of the Forest 
Service field work is, in fact, seasonal. Winter-type or non-
season office work is different than seasonal field work.
    As an executive in the agency that manages the work force, 
I think there is an important aspect of the budget profile that 
necessitates having a reasonable level of discretionary costs 
compared to fixed costs. As an executive, I look at 20 to 30 
percent of our budget profile being discretionary as a 
reasonable level to achieve.
    Seasonal employees are in the discretionary category, along 
with grants, agreements, contracts, and procurement. Permanent 
employees would be in the fixed-cost category, along with 
infrastructure. Now, that is the very plain and simple budget 
    In the work force profile, it is very important for the 
agency's employment profile to represent a variety of sources 
from which employees are derived. This includes veterans, 
interns in college, placements from Job Corps, Presidential 
Management Fellows, returning Peace Corps volunteers, and from 
the ranks of seasonal work force. And let me just add that 
seasonal work force provides about 44 percent of our current 
career work force in the agency. So it is the single largest 
    Now, that is the business model that I think it is 
important to pay attention to.
    From the empathy standpoint, I do identify with seasonal 
employees who want career jobs. I started as a seasonal. The 
chief of the Forest Service, Tom Tidwell, was a seasonal. We 
both moved into the career ranks and achieved the positions we 
have today. Many seasonals desire career positions. We want 
seasonals to fill career jobs.
    But it is also important to note that some seasonal 
employees do not look for a career in the Forest Service. There 
is a good percentage of employees that are attending school; 
they work in the summertime. There are teachers who teach 
during the school year and work in the summertime. And then 
there are others who have other pursuits that is complementary 
to a seasonal work force.
    Now, back to the employees that do want a job, I do have a 
personal empathy. My son is a 5-year seasonal. He is very 
frustrated with the process of trying to become a career 
employee. He told me just last week he is sick of filling out 
job applications. So I can identify with that.
    We have had some tough-love conversations about this very 
issue, and what I tell him are the four things that I tell 
anybody who asks me about getting a career job: You have to go 
where the jobs are. You may have to do a job you don't want in 
order to get your foot in the career employment category. You 
should consider serving your country in the military and 
getting veterans' preference or joining the Peace Corps and 
coming back with a noncompetitive placement authority. Or 
consider going back to school. If you can't do one or more of 
these things, the reality is that you do limit yourself in 
pursuing a career position.
    So, in closing, Mr. Chairman, let me just acknowledge that 
the union, particularly, and I have discussed the issue of a 
pathway to permanence. Right now, we don't have the authority 
to do that. Should the administration and Congress consider 
those types of incentives for long-term seasonals, we are happy 
to provide our input and take part in that dialog.
    So that concludes my remarks, Mr. Chairman. Thank you.
    [The prepared statement of Mr. Kashdan follows:]

    Mr. Lynch. Thank you, Mr. Kashdan.
    Ms. Bailey, you are now recognized for 5 minutes for an 
opening statement.


    Ms. Bailey. Thank you, Mr. Chairman and members of the 
subcommittee, for the opportunity to testify on behalf of the 
Office of Personnel Management regarding temporary employment 
in the Federal Government.
    Federal agencies use temporary appointments when they do 
not need an employee's services permanently. These appointments 
are used in a variety of circumstances, including when an 
office is scheduled to be reorganized or abolished, to complete 
a specific short-term project or to meet peak workload demand.
    Some employees serving under temporary appointments are 
employed seasonally--that is, they work during certain times of 
the year on a reoccurring basis. The term ``seasonal'' refers 
to the employees' work schedules and not their appointment 
type. Some seasonal workers are temporary while others serve 
under permanent appointments. I will elaborate on that in a 
    Temporary appointments are limited to 1 year or less. They 
can be extended for a maximum of 1 additional year. Generally, 
an agency may not fill a position by temporary appointment if 
that position has been filled by temporary appointment for an 
aggregate of 24 months with the preceding 3-year period.
    OPM regulations require that the supervisor of each 
position filled by temporary appointment must certify that the 
need for the position is truly temporary and that the 
appointment meets the regulatory time limits. The certification 
must include the specific reason for using a temporary 
    Let me review why these limitations were imposed. Until 
1985, temporary appointments were much like they are today. 
Appointments were limited to 1 year, with a maximum 1-year 
extension. In 1985, OPM made several policy changes to give 
agencies greater flexibility to meet mission and budgetary 
challenges. From 1985 through 1994, temporary appointments 
could be extended for up to 4 years in 1-year increments. There 
was no limit on the number of times the position could be 
filled using temporary appointments.
    One of the consequences of this situation was that many 
temporary employees developed an expectation of continuing 
employment because agencies could appoint them to successive 
temporary appointments, sometimes for decades.
    One example of this was the tragic case of James Hudson, an 
employee of the National Park Service, who died on the job. 
Because he was a temporary employee, albeit with more than 8 
years of service, his family was not eligible for certain 
benefits they would have received had he been serving under a 
permanent appointment at the time of his death.
    OPM reexamined the use of temporary appointments and, in 
1994, revised the rules governing them. We prescribed the 
limitations I outlined in order to ensure that temporary 
appointments will be used for truly short-term hiring needs and 
to avoid the perception by employees that temporary employment 
could last indefinitely.
    Our regulations provide for limited exceptions from the 
time limits. Agencies can ask OPM for exceptions on a case-by-
case basis only when required by major reorganizations, base 
closings, or other unusual circumstances. OPM requires agencies 
to submit a work-related justification for each request.
    In addition, OPM regulations provide an exception to the 
time limits for work that is expected to last less than 6 
months each year. The reason for this exception is that some 
agencies need to be able to bring back some employees on a 
seasonal basis. In contrast to seasonal employees who work more 
than 6 months in a year, and who therefore must be employed 
under permanent appointments, those who work less than 6 months 
a year may be given temporary appointments that may be renewed 
multiple times. This exception allows agencies to limit the 
number of permanent employees they hire while retaining the 
flexibility to employ seasonal workers whose services are 
needed for less than 6 months each year.
    A concern that is often raised with respect to employees 
serving under temporary appointments is that they are excluded 
from coverage under the retirement programs for Federal 
employees. Retirement coverage is generally not in the interest 
of either these employees or the agencies they work for. This 
is true because of the requirement that an individual must work 
for at least 5 years in the covered employment in order to 
become entitled to an annuity. Most temporary employees never 
fulfill this 5-year requirement, so it does not make sense for 
them to have contributions to the retirement system withheld 
from their pay.
    As is the case with the retirement coverage, the laws 
governing the Federal Employees Health Benefits and Federal 
Employees Group Life Insurance programs authorize OPM to 
exclude certain categories of employees from coverage based on 
the nature and type of their employment. Consequently, 
employees serving under temporary appointments are generally 
excluded from coverage under the health and life insurance 
    Thank you again for the opportunity to discuss with you how 
temporary employment is used in the Federal Government and how 
and why it affects employee benefits. I would be happy to 
respond to any questions you may have.
    [The prepared statement of Ms. Bailey follows:]

    Mr. Lynch. Thank you, Ms. Bailey.
    I want to welcome Mr. Bilbray to this hearing.
    Let me start with you, Mr. Simpson. I understand from your 
testimony that a substantial number of your employees serve on 
a temporary basis. I do have to note the oxymoron, I guess, of 
``career temporary employee.'' You know, you have folks who are 
doing career-related jobs but on a temporary basis. You have a 
general policy that was articulated by Ms. Bailey that says a 
person can work for a year with 1 additional year and that's 
it, except that we allow a waiver, and now it is perpetual, 
apparently, for some of these employees.
    But I am just wondering, the impact on the employees, the 
morale of the employees, productivity, how they approach the 
job, and the impact on their families and the workers, and the 
peace of mind in terms of, you know, the management and the 
work force there, given the fact that a lot of these people are 
in limbo, they are continually reemployed as temporary workers 
without any benefits.
    How is that impacting the work force, and how is that 
impacting the conduct of your responsibilities in the 
    Mr. Simpson. Well, Mr. Chairman, I think it is pretty clear 
that there are employees that are impacted by that. As Mr. 
Kashdan mentioned, similar to the Forest Service, we have a 
wide variety of circumstances represented in our seasonal work 
force, and those issues are not true for all of our seasonals. 
But for those that it is true, it certainly can't be denied, it 
has an impact on morale.
    Mr. Lynch. You mentioned earlier you are oversubscribed for 
these temporary positions. So is it just too bad, if you don't 
like it, we have somebody else who wants that job? Is that how 
we look at it?
    Mr. Simpson. I wouldn't say that we would look at it that 
way, no. Every manager makes their own decisions about who they 
hire. And there are a lot of individuals that are hired back 
because they want to come back and their manager that they 
worked for the previous season wants to have them back. That is 
one of the reasons why we have far more applications than we 
have available slots for the competitively advertised positions 
that we fill.
    Mr. Lynch. Mr. Kashdan, in your closing remarks, you said 
that if the administration were willing to, you know, look at 
this rule again and change its policy, you would be happy to 
participate. Well, this committee is doing just that.
    You know, we have a lot of complaints from workers that, 
you know, they have been in this limbo for a long time. They 
get rehired. They look at other folks that are doing the same 
jobs that they are doing, albeit they are full-time, full-year, 
but these folks are doing it over and over and over again 
multiple years.
    And, at the end of the day, you have the situation that was 
illustrated earlier about an employee who, you know, for all 
intents and purposes, was continually reemployed but was denied 
all these benefits because he fell in a different class.
    How do you feel--I mean, you are saying that 44 percent of 
your career positions are being occupied by temporary 
employees. Is that just a result of the seasonal nature? Or are 
we looking at a strategy employed by management to really try 
to reduce their costs, and so if we can keep 44 percent of the 
people with no benefits, you know, no health insurance, no 
retirement, no annuity, then, you know, we can manage our 
budget a lot better?
    Mr. Kashdan. Mr. Chairman, let me clarify. I guess I didn't 
state that fact very well. What I meant to state was that, of 
our career work force, those who have career status, in other 
words permanent employees, 44 percent of that career work force 
came from the ranks----
    Mr. Lynch. Ah, OK.
    Mr. Kashdan [continuing]. Of employees who previously were 
temporary seasonals.
    Mr. Lynch. OK. So there is a path to----
    Mr. Kashdan. Yes. And it is the largest single segment. I 
do think it is critical to have a variety of employment 
sources. Temporary seasonal employees are a very, very large 
part of the current career profile. That is where they came 
from. It is a very important source.
    Mr. Lynch. And that is not withstanding the fact that, as 
in your testimony, you said earlier, you have veterans groups 
that you give priority to, you have folks coming in from the 
Peace Corps, so they have other, I guess, noncompetitive 
status, you know, right to appointments as well, and you are 
still getting 44 percent from the temporary work force into 
career status?
    Mr. Kashdan. That's correct, Mr. Chairman. In fact, if you 
appreciate that a certain segment of our career work force is 
administrative in nature, say, 5,000 or 6,000 employees that 
don't have seasonal counterparts, those positions that are 
natural-resource-related, actually, their number is up in the 
55 to 56 percent range.
    Mr. Lynch. OK. I have exhausted my time. I am going to 
yield for 5 minutes to Mr. Bilbray.
    Mr. Bilbray. Thank you.
    On the average, how many individuals do we have who apply 
for permanent positions? Anybody know? In your department.
    I would like to see a comparison between the permanent 
applications and the temporary applications. Can you give me 
some kind of reference? Do you have any idea of that?
    Ms. Bailey. Well, each year, we fill approximately 350,000 
positions. Of those, 150,000 are permanent. At any one given 
time, we are averaging around 450 people per job announcement. 
And I know that, on average, we have somewhere around 2 million 
people apply for our jobs each year. That is across the board, 
    Mr. Bilbray. I mean, this discussion, sort of, sparked my 
interest. I spent 6 years as a seasonal worker. Of course, it 
is scary to think that somebody, when I started off in 1970, 
and he was an elderly person, almost 30 years old, was 
lifeguarding, that they are still out--the same people that I 
worked with in 1970, a lot of them are still seasonal workers 
doing the same thing.
    I guess the discussion is, one thing we don't think about, 
many seasonal workers, this is not their only employment--a lot 
of teachers, a lot of different types of seasonal professions--
and they mix and match.
    Do you have any numbers at all of what portion of our 
seasonal work force this is a second income?
    Ms. Bailey. No, I do not.
    Mr. Kashdan. I don't have any specific data.
    From my experience in working in the work force, I would 
estimate that about half or more of our seasonals would 
ultimately desire a career job in the Forest Service. There 
are, certainly, those who don't that I described in my 
testimony. There is even the one or two I run into now and then 
who look forward to working for 6 months and going to Mexico 
for 2 months. And I start to wonder where I went wrong in that.
    But, for the most part, there is a sizable number that 
ultimately want to achieve a career appointment in the Forest 
    Mr. Bilbray. Every time I go down to Latin America, I agree 
with them, OK?
    Yeah, I think there is legitimate concern here, the fact 
that this is not just a situation where people are living off 
of a few months of work. I just know that there are real estate 
agents who do this type of thing, there are people who are 
teaching. There is a whole lot of different professions that 
find that ability. People who are in property management can 
get into this. So I just think that a lot of this discussion is 
somehow focused on a perception that may not be reality.
    But the other issue is, with this 44 percent, you know, I 
am just wondering how much of the complaints are people who 
think that, if they get seasonal and work for a few years, that 
puts them in the pecking order to basically be moved up--which 
should be true if they are employees who we want to 
participate. But seeing that we have--how many applications do 
we have for temporary service in your department? What was the 
number that you gave out?
    Ms. Bailey. Well, I was just saying that, of the 350,000 
that we fill each year, 200,000 of those are temporary or 
    Mr. Bilbray. But you don't know how many applications you 
have for those----
    Ms. Bailey. No. On average, though, today, we get around 
450 applications for every job that we announce.
    Mr. Bilbray. OK. So, in other words, the market out there 
is very large. It is an employer's market, when it comes to 
working for the government, even if it is seasonal, right?
    Ms. Bailey. Correct.
    Mr. Bilbray. OK. So there is enough people on the outside 
of the system who really think this is a really good deal, even 
though there may be those in the system, once they are in, 
feeling that it is not a very good deal.Is that fair to say?
    What is the turnover with our seasonal?
    Mr. Kashdan. Overall, in the Forest Service, in the career 
ranks, we are looking at around a 5 or 6 percent attrition 
    Mr. Bilbray. That is extraordinary.
    Mr. Kashdan. It is fairly small.
    In the seasonal ranks, it is very hard to put your finger 
on because you are bringing in the factor of those who are not 
looking at it as continuous, long-term, season-after-season 
approach. So I don't really have any data on----
    Mr. Bilbray. OK. Just for the record, I find it 
extraordinary that we would want to limit seasonal workers, for 
some reason, to how many years. I'm sorry, I still think the 
old guys that are there, that have been there for 30 years, are 
probably still the best lifeguards on that beach. And, frankly, 
just because they keep coming back indicates that they do enjoy 
it, and that we keep hiring means they are doing a good job.
    And I worry about this attitude that basically says that, 
you know, we don't expect seasonals to be around long. I think 
we wouldn't do that with our full-time employees; I hope we 
never do that with our seasonals.
    Thank you very much, Mr. Chairman.
    Mr. Lynch. Thank you, Mr. Bilbray.
    The chair now recognizes--we have been called for votes, so 
Members will be leaving and coming back in. And I am going to 
ask Ms. Eleanor Holmes Norton to chair in my absence.
    But I now recognize the gentleman from Virginia, Mr. 
Connolly, for 5 minutes.
    Mr. Connolly. I thank the chairman.
    Let me ask Ms. Bailey, is it your testimony today that 
abuses have, in fact, occurred using temporary hires?
    Ms. Bailey. No, it is not my testimony today that----
    Mr. Connolly. So, then, no abuses have occurred?
    Ms. Bailey. No, we do not believe that abuses have occurred 
using this temporary appointment authority. Given our oversight 
and accountability role in this and working with the agencies, 
we do not believe that there have been abuses.
    Mr. Connolly. No abuses?
    Ms. Bailey. Correct.
    Mr. Connolly. OK.
    Let me ask you a hypothetical question. We do the census 
every 10 years. I would ask it of the panel. Now, clearly, 
hiring temporary census workers for a period of a few months to 
undertake the initial data collection and/or to followup on 
that data collection because it was inadequate or incomplete 
somehow goes on every 10 years. And that, I think we would all 
agree, is clearly a temporary position.
    Would you consider it temporary, however, if we did a 
census every year and we hired that person for 6 months every 
year? Is that a temporary hire, as far as you are concerned, 
perfectly legitimate and could go on until that person retires? 
Is that a correct use in the Federal workplace of this 
category, temporary hire?
    Mr. Kashdan.
    Mr. Kashdan. I'm sorry, Mr. Connolly, I thought that was a 
question for Ms. Bailey there.
    Mr. Connolly. I'm sorry, I was just opening it up to any of 
    Mr. Kashdan. OK. We use an appointment, we call it a 1039. 
I think the correct term is a--less than 1,040 hours. It is a 
type of temporary authority we use that is specifically used 
for work that is seasonal and temporary in nature.
    Sometimes I think we overlay the issue of benefits with 
that. We do not use this authority for the purpose of denying 
benefits. If benefits were part of that, we would still use the 
    We use this authority because it is particularly the one 
that is geared for work that is temporary and seasonal in 
nature. And we have quite a few of our seasonal employees that 
do work almost that--right up to that 1,040 hours.
    Mr. Connolly. But----
    Mr. Kashdan. And that's not to say it is not something that 
many of them are frustrated with.
    Mr. Connolly. I am just asking a different question, 
though. I'm glad you told us about the practice, but at what 
point do we have to agree we are sort of doing an end run on 
the system in calling somebody ``temporary?''
    And what is the time limit for somebody to be in that 
status? I thought Federal regulations--you went through, Mr. 
Bailey, in your testimony, you know, changes in the law going 
back to the 1980's. But is the current practice or the current 
law, as you understand it, literally ad infinitum? There is no 
    Ms. Bailey. Actually, if I could address your initial 
question with regard to the census takers and, if we hire them 
back each year, is that really, truly temporary. In that 
particular case, what the current law and what our regulations 
allow for is, an agency could make a decision to hire them 
either as temporary employees or as permanent employees, and 
either one could carry what we would call a seasonal work 
    So, in other words, if something is reoccurring every year, 
we would probably suggest to an agency that, rather than use 
temporary employment, that you would make those permanent 
seasonal employees or permanent because it is reoccurring.
    Mr. Connolly. Does the Forest Service do that?
    Mr. Kashdan. In certain areas. Actually, particularly 
California is an example where we have career seasonals for 
exactly the reason that we are talking about here. The fire 
season could go very long, could go 6 months, it could go 
longer than that. And, also, for other reasons of trying to 
have a work force that we have been able to retain over a 
longer period of time, provide retention incentives. So there 
are areas where we do have career seasonals.
    Now, along those northern-tier States where the work is 
primarily field, you will find less of a profile that are 
career seasonal and more temporary seasonals. So it really 
varies with the work and the fluctuation in the work. You know, 
in the forest products area, that work may fluctuate from year 
to year and we don't know how many seasonals we will need. In 
fire, it is fairly predictable.
    Mr. Connolly. My time is almost up, but, Mr. Simpson, I 
want to give you a chance to respond.
    Mr. Simpson. I would echo what Mr. Kashdan said. We also 
have a mixture of seasonals who are on career appointments as 
well as seasonals who are temporaries, for the same reasons.
    Mr. Connolly. My time is up, Madam Chairman, and I thank 
    I just want to say, I am stunned by Ms. Bailey's testimony 
that they have never found, are not aware of any abuse of the 
use of temporary hires. That is an extraordinary statement for 
a work force as large as the Federal Government. Even a work 
force as normally perfect as ours, there has to be abuse now 
and then. And I think that is a challenge, frankly, for this 
    Thank you.
    Ms. Norton [presiding]. Thank you very much.
    Ms. Bailey, would you like to revise your statement in any 
way? I mean, you have just--my colleague says that you have 
just come up with a perfect system.
    Ms. Bailey. Well, yes. Thank you, ma'am.
    I think it is safe to say that we do have--through our 
oversight role, if we do find a situation where there is an 
abuse that is occurring, we will absolutely go in and work with 
that agency in an informal manner. We can do all kinds of 
things, from training the hiring managers to training the HR 
    Ms. Norton. Do you keep records of where you have found 
    Ms. Bailey. Actually, yes. As part of our oversight and 
accountability, we keep records of all agencies where we have 
found a finding of a violation. And then we make a record of 
that for both the agency and for OPM.
    Ms. Norton. Well, Ms. Bailey, it would be very helpful if 
you would submit to the subcommittee within the last, let's 
say, 2 years to give us some sense of what kinds of----
    Mr. Connolly. Madam Chairwoman.
    Ms. Norton. Yes, Mr. Connolly?
    Mr. Connolly. Would you yield just for one point?
    Ms. Norton. Indeed.
    Mr. Connolly. I thought Ms. Bailey's testimony, in answer 
directly to my question was, we have found no such examples, 
none. And now I am hearing Ms. Bailey say, well, actually, when 
we find them, we do take corrective action.
    And if you wanted to correct your statement, please feel 
free to do so. But I am leaving here with your answer under 
oath to my question that you have found no examples of the 
abuse of the use of temporary positions in the Federal work 
    Ms. Bailey. And that, sir, I do not want to change. That is 
correct. We have not found one instance of an abuse under this 
    Ms. Norton. Apparently, GAO data showed that 11 percent of 
the temporary employees had worked more than 5 years. Would you 
consider that an abuse?
    Ms. Bailey. Well, it really depends on exactly under what 
conditions these folks are working.
    Ms. Norton. Well, they got a waiver. They keep getting a 
waiver. Wouldn't automatic waivers constitute an abuse?
    Ms. Bailey. I am not aware of any instance where an agency 
has abused the automatic waiver situation. They have applied it 
appropriately. Wherever we have actually used our oversight 
authority, they have applied it appropriately in accordance 
with the OPM regulations.
    Ms. Norton. Well, then you are back to Mr. Connolly's 
point, that if they have applied it appropriately, you wouldn't 
have to go in and retrain and otherwise correct the abuse. That 
is the problem we have with your testimony.
    Ms. Bailey. OK----
    Ms. Norton. But I think it will be clarified if you just do 
what I asked you to do. For the last 2 years, would you submit 
for the record--I understand we may have a definitional 
problem, you may regard what an employee has--what a manager 
has done as a mistake. Whatever it is, we are not trying to 
play any ``gotcha'' here. We are just trying to see how the 
system works.
    So if you would provide for the chairman within 30 days a 
record of those instances where you, OPM, have gone in to 
assist managers or employees with respect to temporary hires, 
that would assist our record.
    Now, as I see it, this hearing is really about two things. 
One is benefits, and the other is the merit system.
    We see temporary employees as valuable, in fact, in some 
places, as indispensable, as in the National Park Service, for 
example, or Forest Service.
    I would be interested to know, though, Ms. Bailey, because 
we here have before us managers from more typical temporary 
service agencies, I would like to know what percentage of 
temporary employees are outside of the seasonal area that we 
have just heard about and where we see the critical need in 
order to function.
    Ms. Bailey. I am not sure of the exact percentage, but----
    Ms. Norton. We understand that they are in virtually every 
category, that agencies far from just the National Park Service 
or the Forest Service, the IRS and you name it, all feel free 
to use temporary employees.
    It would benefit our record to know what percentage come 
outside of these seasonal employees and yet are temporary 
employees that are used across the government.
    Within 30 days, would you submit that information to the 
    Mr. Kashdan, I was interested in your testimony. Seems 
reasonable that there were a fair number of people, even 
yourself, who came into the government first as seasonal 
employees and then became full employees.
    Now, our concern, of course, is, how does this key with the 
merit system? Could you tell us, in your case, how you were 
able to become a merit system employee while beginning as a 
temporary seasonal employee? How were you able to compete?
    Mr. Kashdan. Sure, Ms. Norton. Let me just clarify that, 
even in the 6-month seasonal, there is an initial period where 
there is a competition, and you do have to go through a process 
where you consider such things as veterans' preference, that 
kind of thing. But your probability of getting into the 
seasonal work force is much more enhanced. And then, after 
that, you can be recurringly appointed if you are not exceeding 
the 1,040 hours.
    In my particular case, I applied--I don't even know if they 
have these anymore, but back in my time I applied for what we 
called OPM rosters, and I was on a recurring list for civil 
engineering technicians. And, at the point that the forest that 
I had, in fact, moved to in order to enhance my chances of 
getting a career job, they decided to fill the career job, went 
to the roster, and I was available. So I was able to be picked 
up off that roster.
    So the merit process was going through the OPM roster, 
being ranked, and being entered on the roster. And that is how 
I got in. It is the same way that our chief, Tom Tidwell, got 
in too.
    Ms. Norton. So you were competing with people who had no 
    Mr. Kashdan. I was competing----
    Ms. Norton. I shouldn't say who had no experience. Who 
knows? Some of them may have had certain kinds experience 
outside of the government. But you were competing with people 
who would have not had experience in the agency you wished to 
work for.
    Mr. Kashdan. Yes. Ms. Norton, I was competing--at that 
point in time, I believe I was a GS-5, and, in fact, I was on a 
GS-4 roster. So I had some years, it didn't matter where those 
years were, they were experience that credited me and qualified 
me for----
    Ms. Norton. So that's what I want to get at. When you are 
competing on the merit side--and perhaps this is a question 
relevant for Ms. Bailey, as well--to what extent does 
experience received on the seasonal or temporary side count or 
help an employee to obtain permanent employment through the 
merit system?
    Ms. Bailey. Experience is something that counts regardless 
of how it's acquired. So if it's acquired under a seasonal 
appointment or a temporary appointment or if it's acquired 
outside the Federal Government--so let's take a Federal 
firefighter that happens to be working on a seasonal basis. Not 
only would that experience count, if then, in the wintertime, 
they're also a firefighter with the city of New York, that 
experience, combined experience, would count and then give them 
creditable experience toward whatever position that they are 
applying for.
    So we don't make distinctions based on an appointment type 
or a work schedule. Experience is experience, no matter how 
it's gained.
    Ms. Norton. Let me ask you, Ms. Bailey, at the time of the 
death of James Hudson--and the whole city was moved by this 
hardworking man who just kept working, because he obviously 
needed to work, with a family--so far as I can tell, all that 
happened was there was a cap put on the number of years a 
temporary employee could work consecutively. Is that right?
    Ms. Bailey. Yes. As part of our review of that particular 
case and then in consultation with the agencies in discussing 
how best to balance both the mission accomplishment with what 
is in the best interest of the employees, that is correct, that 
we did put in--our temporary employment regulations allow for 1 
year of employment and then a 1-year extension.
    And the whole intent of this was to----
    Ms. Norton. Although I've just quoted you numbers that show 
a healthy number who work 5 years. When they work 5 years, is 
that because there is a shortage? Or is it because these 
employees are regarded as--the workplace usually regards 
employees, they're looking for experienced people, and so they 
keep picking these people up?
    Ms. Bailey. It may depend, ma'am, on which kind of 
appointment that they're actually using. Some of the agencies 
are able to, given the other exception that is in our temporary 
employment rules, is that if they are working 6 months or less, 
which is the 1,040 or less, if they're working that, then we do 
allow for indefinite 1-year extensions at a time. And that's 
how someone could work up to 5 years.
    Ms. Norton. Uh-huh, I see. So you think they may be in that 
    Ms. Bailey. Yes. I mean, given the situation that you 
described, I do.
    Ms. Norton. I think James Hudson's death raised rather 
definitively the notion of benefits, however, so much so that 
Congress, in fact, gave Mr. Hudson's wife and children 
benefits, $34,000--retirement benefits, in effect.
    Ms. Bailey. Uh-huh.
    Ms. Norton. That's one man. There have never been 
retirement benefits given for any other person, has there?
    Ms. Bailey. Not that I'm aware of.
    Ms. Norton. That was a remedy for a man who dropped dead on 
the job.
    Now, let me ask you, in light of the health care 
legislation that just passed, has OPM looked at health care for 
temporary workers? Or are they to be considered outside of the 
penumbra of a bill that claimed to cover 95 percent of the 
American people?
    Ms. Bailey. We have actually discussed this. When President 
Obama's administration first came in, we had the Recovery Act. 
And, at that point in time, we had issued a Schedule A 
authority for agencies to use to hire temporary workers to come 
in and to assist with the Recovery Act. And, at that time, the 
question did come up with regard to health benefits.
    And so we took a very good, close look at both our 
regulations and the law. And the way the law is currently 
written, it is written in such a way that it excludes temporary 
employees from receiving health benefits.
    Ms. Norton. Private and public sector, you're saying?
    Ms. Bailey. Oh, I'm only speaking to Federal sector. I 
cannot speak to private sector.
    Ms. Norton. In testimony before us, one or all of you have 
indicated that, after a while, perhaps a year, you can get 
health insurance if you, the worker, are willing to pay for it. 
You can get in the FEHBP, Federal Employees Health Benefits 
Plan, if you are willing to pay for it. Is that right?
    Ms. Bailey. Yes. After 1 year, even temporary employees are 
eligible to apply for health benefits as long as they pay the 
100 percent contribution of that. So, in other words----
    Ms. Norton. Why would there not be a shared benefit for 
these employees? Why would the Federal Government employ people 
and pick up--well, first, let me ask you, what percentage of 
people in these temporary jobs, which are not your highest-paid 
job in the Federal Government, in fact take on coverage, 100 
percent of the health care cost? How many? What percentage do 
    Ms. Bailey. I don't have the answer to that.
    Ms. Norton. I would think you would want to know after Mr. 
Hudson's death. It may be a quite empty promise.
    What is the policy reason behind the notion of ``coverage 
if you want it, but don't ask us to contribute anything to 
it?'' What's the justification for that?
    Ms. Bailey. In this particular instance, we are not 
unsympathetic to this issue. And we would be more than willing 
to work with the subcommittee with regard to health benefits 
for these Federal employees.
    Ms. Norton. I appreciate that, Ms. Bailey.
    We understand the difficulty raised here. Episodic 
employees will always present issues when it comes to benefits 
of various kinds. One can even understand the retirement 
notions and how difficult that would be, but then there is 
Social Security.
    I understand that seasonals, however, don't receive any 
access to the Federal Employment Health Benefit Plan. Is that 
    Ms. Bailey. If they're a permanent seasonal employee----
    Ms. Norton. What is that?
    Ms. Bailey. Permanent seasonal would be a permanent 
employee who works seasonal, meaning more than 6 months or 
    Ms. Norton. I see. But there are over 1,000 less-than-6-
month seasonal employees, the number we have.
    Mr. Kashdan, Mr. Simpson, those less-than-6-month employees 
have no access to health care?
    Mr. Kashdan. Let me clarify. Again, there are career 
seasonals, and there are temporary seasonals. Career seasonals 
do get health benefits. If they have career status in the 
Federal work force, they do get health benefits, life 
insurance. Those under temporary employment, non-career status, 
as Ms. Bailey mentioned, if they are in an appointment where 
they work less than a year, they don't get health benefits.
    So the large amount of our temporary seasonal work force 
is, in fact, a 6-month-or-less-type category, the 1,040 hours, 
and they do not qualify for benefits under the regulations.
    Ms. Norton. Now, I recognize--I think it was you, Mr. 
Kashdan, who said that you could have teachers who are 
seasonally out of work for themselves and so they pick up 
seasonal work; they may, in fact, have health care.
    We do need to understand, in light of the health care bill, 
how many people we're talking about that simply don't have 
health care that were carried on the rolls of the Federal 
Government. This would be a terrible embarrassment, it would 
seem to be, to have another James Hudson-type incident--I don't 
mean death, I mean someone becomes seriously ill on the job and 
happens to be a Federal employee, a seasonal employee, and has 
no access to health care, despite the fact that we've touted 
the health care bill as covering almost everybody.
    We have to understand that this is a very different work 
force. The work force of pensioners who work full-time--I'm 
sure that may have been the case for the Federal Government at 
some point, or something close to it--that's a work force of 
the past. And I'm not sure, Ms. Bailey, that OPM has looked at 
this new work force in light of benefits and in light of 
    It's going to be important for us to know how many of these 
seasonals, these less-than-6-month seasonals, have health care. 
Now, we know they don't have health care from the Federal 
Government, but they may have health care. So we need to have 
an accurate picture. I don't even know if we have a problem. We 
may. And if we do, it does seem to me that the first work force 
that would have to take account of it would be the Federal work 
force. We probably have this problem throughout the United 
    We have sought, in the health care bill, to correct this 
problem for seasonal workers in some parts of the country, I 
might add. But then if we're sitting on such an issue 
ourselves, it would be an embarrassment and worse for the 
Federal Government.
    I would like to dismiss this panel. Thank you for very 
helpful testimony on an issue that we are confronting anew, and 
you have enriched our record. Thank you very much.
    Thank you, panel two. We want to proceed until the other 
Members get back.
    The panelists are William Dougan, national president of the 
National Federation of Federal Employees, a role which he 
assumed in 2009. Mr. Dougan began his Federal career in 1976 
with the National Park Service as a firefighter and tree 
planter. He is a 30-year member of the National Federation of 
Federal Employees and has served in a variety of positions at 
local council and national levels.
    Colleen Kelley is the president of the National Treasury 
Employees Union, which is the Nation's largest independent 
Federal-sector union and represents employees in 31 different 
government agencies. Ms. Kelley was first elected to the 
union's top post in August 2009.
    Phillip Glover has served as the national legislative 
coordinator for the Council of Prison Locals of the American 
Federation of Government Employees since 2005. Mr. Glover is 
also a senior office specialist for the Bureau of Prisons in 
Laredo, Pennsylvania, where he has served for 20 years. Prior 
to his time at the Bureau of Prisons, Mr. Glover served in the 
U.S. Army.
    Patricia Barts worked for the Internal Revenue Service for 
over 30 years, where she served as a lead examiner in the IRS's 
Correspondence Examination Group. Since retiring from the IRS, 
Ms. Barts now serves as a vocal member of the National Active 
and Retired Federal Employees Association.
    Welcome, panel two. We will begin with Mr. Dougan.
    Oh, I would like to swear in the panel.
    [Witnesses sworn.]
    Ms. Norton. Let the record show that all the witnesses have 
replied in the affirmative.
    Now Mr. Dougan.



    Mr. Dougan. Ms. Norton, on behalf of the National 
Federation of Federal Employees [NFFE], and the 110,000 Federal 
employees that we represent, I thank the subcommittee for 
holding this hearing.
    This critical issue has gone unaddressed since 1994 when 
James Hudson, a veteran and U.S. Park Service employee, died at 
the Lincoln Memorial, leaving his widow and seven children 
destitute. He had no life insurance because of his temporary 
status. After legislation was introduced to remedy this, 
Hudson's widow commented, ``Something good has come out of the 
death of my husband. This legislation means no one else will 
have to go through what this family went through.'' The bill 
subsequently died in committee.
    Since then, we have seen MSPB's 1994 prediction come true, 
that continued use of long-term temporary employment has 
created a permanent underclass in the Federal work force. How 
long does temporary last in the Federal Government? For some 
employees of the U.S. Forest Service, temporary has lasted more 
than 30 years.
    We all would like to think that the Federal Government is a 
model employer, as well it should be, but thousands of 
employees hired into temporary positions receive no health 
insurance benefits, no life insurance benefits, no retirement 
benefits, no step increases, and no competitive standing for 
internal placement into career jobs.
    Federal land management agencies, in particular, overuse 
temporary employment. Even though land management work occurs 
every year, a loophole in the regulations allows agencies to 
use an unlimited number of successive temporary appointments. 
Some agencies are using this loophole to the maximum extent. 
Roughly 35 to 40 percent of the work forces of the Forest 
Service and National Park Service are hired as temps each 
    I brought with me today Joe Katz of Dover, ID, who is 
sitting here. Joe has worked as a temporary employee of the 
Forest Service almost every year since 1975; however, he 
remains a temporary worker to this day. He has been hired and 
terminated each year under a string of temporary appointments. 
Joe is a Marine who served his country honorably in Vietnam. He 
has held his current position in Trails and Recreation for 21 
of the past 22 seasons, yet he still has no career position.
    I've also brought Lisa McKinney from California, who is 
sitting there. She began working for the Forest Service as a 
firefighter in 1978 and has worked for the agency almost every 
season since then. She has performed the same regular and 
recurring work as a certified timber cruiser since 1995, yet 
she, too, has never received a career position.
    Joe and Lisa exemplify the boots on the ground that 
actually get the agency's work done. Temporary employees like 
Joe and Lisa make invaluable contributions to the mission of 
the Forest Service. Many work for years, even decades, and 
never get a career seasonal appointment. Thousands of long-term 
temps work for five or more seasons. This is simply outrageous.
    Long-term temps are only part of the story. Most temps move 
on to other employment within a few years, taking their 
experience and training with them. Because they are 
misclassified as temps, this huge retention problem goes 
unnoticed and unaddressed.
    With high turnover, safety suffers. Recently, a long-term 
temporary employee who serves on a fire crew told me that eight 
of the members on her 11-person crew were rookies. I can tell 
you from my personal experience as a firefighter, that is a 
recipe for disaster.
    This is a tough problem. There is no way under current laws 
and regulations to redesignate jobs held for decades by long-
term temps as the permanent seasonal career jobs they really 
are. A career job with exactly the same duties as the long-term 
temporary job is considered a new job. And as MSPB noted in 
1994, legal and procedural barriers prevent the consideration 
of many temporary employees for career positions regardless of 
how well they have performed.
    To avoid a purge, a pathway to permanence for long-term 
temps must be the first step in reform. It would be unjust and 
unwise to discard these dedicated public servants and their 
knowledge and experience after their many years of service. If 
I only get one point across at this hearing, I hope it will be 
this: to make clear to this subcommittee and Federal agencies 
that a pathway to permanence must be put in place before reform 
can begin.
    In closing, we would propose enactment of legislation to: 
grant competitive standing to long-term temporary employees so 
they can compete for any career job just like other Federal 
employees may do; afford priority consideration to any long-
term temporary employee whose job is converted to career 
status; and give long-term temporary employees creditable 
service time for their temporary service for certain purposes.
    This proposal has no price tag, it has no mandate. It is 
consistent with the 1994 recommendation of OPM and the National 
Partnership Council. It would simply provide agencies with the 
tools to allow reform to begin. With this done, NFFE will 
commit to working with the agencies, OPM, MSPB, and Congress on 
the appropriate use of available employment authorities.
    This concludes my remarks.
    [The prepared statement of Mr. Dougan follows:]

    Ms. Norton. Thank you, Mr. Dougan.
    Ms. Kelley.


    Ms. Kelley. Thank you very much, Chairman Norton.
    On behalf of the 160,000 Federal employees represented by 
NTEU, I want to thank you for this hearing today to talk about 
the important issue, the use of temporary employees by the 
    As you've heard, there are too many stories out there, very 
real stories that are happening today. And while temporary 
employment status we all recognize can be useful to an agency 
when it is properly applied, it is also a status that lends 
itself to abuse, and it can be an unfair working condition for 
an employee.
    Temporary employees do not participate in FERS or in the 
right to family and medical leave or in leave for military 
service. And these policies might be defensible for a true 
temporary employee of 1 year or less, but it becomes a severe 
denial of rights when the status is abused.
    Regulations are very clear that agencies are prohibited 
from using temporary status to avoid the costs of employee 
benefits, to extend the probationary period, or to avoid 
competitive hiring. However, we are concerned that these 
regulations are too often ignored.
    Today, I would like to highlight a particularly unfair 
situation that confronts current and former employees of the 
FDIC who performed temporary service early in their careers. 
But this issue I'm going to describe would impact every 
temporary employee who is currently under that status today.
    The FDIC hired thousands of temporary employees during the 
1980's, and they were known as LG employees, or liquidation 
grade employees. Their duties included managing and liquidating 
the assets of failed banks and savings and loans. However, they 
were excluded from any credit for retirement under FERS. They 
continued to serve in 1-year appointments, with thousands of 
them serving longer than 5 years, and many renewed for over 15 
years in those appointments. These employees were clearly 
temporary only in name.
    The FDIC hired them under special authority it had acquired 
in 1938 and had never surrendered that authority. However, that 
authority had only been used to hire temporary bank-specific 
teams of liquidation personnel. In the early 1980's, the FDIC 
adopted a new policy of establishing regional offices dealing 
with multiple bank liquidations. It is this action that NTEU 
considered an abuse, as such work had historically been viewed 
as permanent.
    In 1993, OPM moved to take away this authority from the 
FDIC. Over the objections of employees and NTEU, OPM agreed to 
a compromise with the FDIC that allowed them to phase it out in 
their misuse of this temporary classification and phase it out 
over 2\1/2\ years, from January 1994 to June 1996, continuing 
the denial of retirement credit during that time.
    With the passage of the FERS Act in 1986, Federal employees 
without retirement credit because they had years as temporary 
employees were able to buy back credit for the years prior to 
1989 by paying for the retirement deductions that were not 
taken. But former LG employees were not allowed to buy back 
their credit for temporary service after 1989. The result is 
that valuable service time from January 1, 1989, until the date 
they actually became eligible to participate in FERS and have 
made deductions was essentially lost or forfeited.
    Now, we understand that the intent of Congress in the 1986 
FERS legislation was to encourage agencies to cease overusing 
temporary employees and abusing the classification. Congress 
allowed a 2-year window as agencies transitioned. But it was 
not expected that the FDIC, a government corporation with 
considerable administrative autonomy, would continue to abuse 
the temporary service early in their careers.
    The NTEU had long argued that Congress needed to act to 
correct this grave injustice that was suffered by LG employees. 
NTEU, along with many Members of Congress and FDIC management, 
have voiced support for legislation to allow LG employees to 
buy back their missed retirement credit.
    We would ask that Congress move to allow former FDIC LG 
employees to get credit for years of service they performed 
between 1989 and when they were given permanent status, so long 
as they are willing to make a payment for these years of credit 
equal to the retirement deductions they would have contributed 
if they had been allowed.
    We propose this credit would only be available to those who 
were victims of the unfair FDIC policy. We are not asking that 
it be extended to those who never accepted or acquired 
permanent Federal positions.
    We believe that allowing these misclassified LG employees 
the opportunity to buy back their lost retirement credit would 
be an equitable and just resolution to the unfairness that they 
faced by being misclassified for so many years as temporary 
    In a few days, we expect the President will be signing the 
Dodd-Frank Wall Street Reform and Consumer Protection Act. And 
I would like to thank you, Chairman Lynch, for your efforts on 
that bill, especially in crafting the aspects dealing with 
Federal personnel policies.
    This groundbreaking consumer protection legislation is 
witness to the importance of the work of the frontline 
employees at the FDIC and other financial regulatory agencies. 
I don't think it is too much to ask that those men and women 
who are working so hard as bank examiners, liquidation 
specialists, and credit union consumer compliance specialists 
be given retirement credit for all of their years of service in 
the Federal Government.
    Thank you again for this hearing, and I would welcome any 
questions you might have.
    [The prepared statement of Ms. Kelley follows:]

    Mr. Lynch [presiding]. Thank you, President Kelley.
    Mr. Glover, you are now recognized for 5 minutes for an 
opening statement.


    Mr. Glover. Chairman Lynch, Congresswoman Norton, members 
of the subcommittee, my name is Phil Glover. I am the national 
legislative coordinator for the Council of Prison Locals, 
American Federation of Government Employees. We represent 
28,000 correctional workers nationwide serving in 114 Federal 
    I have served as a representative of the union since 1991 
and have been involved in many representational and legislative 
issues throughout my service. This issue was brought to us by 
members at our local who, as they started to look at 
retirement, this service credit issue arose.
    I want to thank you for the opportunity to testify today at 
the hearing on existing temporary employee authorities and 
their adverse impact on temporary employee status and benefits.
    Our problem at Bureau of Prisons is the fact that many 
Federal correctional workers who are participants in the 
Federal Employees Retirement System are unable to make a 
service credit deposit into FERS for temporary civilian service 
performed after January 1, 1989.
    Federal correctional workers, as well as other Federal law 
enforcement officers, are covered by special retirement rules. 
Under 5 C.F.R. Section 842.208, an employee working in law 
enforcement can retire after 25 years of service at any age and 
at 50 years of age after 20 years of Federal service.
    We have mandatory retirement at age 57. It has been 
determined that working with violent offenders requires a 
youthful and vigorous work force. This has been in effect for 
correctional officers and Federal correctional workers since 
1956. The mandatory retirement age was changed in 1990 from 55 
to 57 years of age.
    Our members perform dangerous work inside Federal BOP 
correctional institutions. We supervise murderers, gang 
members, terrorists, and other dangerous inmates. Since the 
brutal stabbing murder of a correctional officer in June 2008 
by two prison inmates at USP Atwater, we have had at least 380 
vicious inmate-on-worker assaults in the BOP system.
    After 20 to 25 years working in these facilities under such 
stressful conditions, most people are ready to leave. Once our 
employees attain the retirement age, it is normal, depending on 
their individual circumstances, to retire. This is where the 
problem arises regarding service credit for temporary civilian 
service. 5 C.F.R. Sections 304 and 305 do not allow a deposit 
for temporary civilian service after January 1, 1989.
    Many bargaining unit employees in the BOP have been hired 
using temporary employment rules. This is done for many 
reasons, such as to get a specialist onboard quickly or to hire 
large groups of correctional officers to startup an existing 
prison, a new facility.
    Between 1989 and 1991, the BOP went on a large hiring spree 
due to identified understaffing problems in the systems. As 
many as 6,000 employees were hired, and many of them were hired 
as temporary employees. Records from the Department of Justice 
indicate that, between 1989 and 1993, there were 3,569 
employees initially hired by the Bureau of Prisons as temporary 
employees and then, after short periods of time, were 
transitioned into permanent employee status.
    Similarly, DOJ and the National Finance Center records show 
that, between 1989 and 2010, there were over 6,200 employees 
initially hired by BOP as temporary employees and then again, 
after short periods of time, were transitioned into permanent 
employee status.
    Many of those BOP employees are now approaching retirement 
age. Many of them didn't realize they were hired in a temporary 
employment status. We had a situation recently where one 
employee was hired before the January 1, 1989, date and, thus, 
could make a deposit for service credit, while another employee 
hired 1 month later was informed he could not. This is clearly 
    Another situation that confuses the issue is the employee 
service date for seniority purposes is the date they began 
receiving paychecks in BOP. However, their requirement date 
could be a year to 3 years later, depending on the date they 
gained permanent employment status. It is also unclear why this 
regulation was changed in the first place.
    In the change from the Civil Service Retirement System to 
FERS, which passed in 1986, the ability to make a deposit for 
service credit was maintained. It wasn't until 1989 that 
credible service was denied to employees who were willing to 
make the deposit.
    We have identified employees who have as much as 3 years' 
temporary employment time in the Bureau of Prisons. These 
employees have worked alongside full-time employees who can 
retire at the appropriate age and time-in-service requirements. 
The employee with temporary service time is used in the same 
manner as those with full-time service. They respond to 
emergencies, they handle difficult inmates, and may have been 
on the Voluntary Disturbance Control Team or other emergency 
operations. They must pass a full 15-year background check, 
pass basic correctional training in Glynco, GA, and handle a 
firearm. Temporary employees in the BOP also have arrest 
authority pursuant to 18 U.S.C. 3050.
    If Congress would change the provision back to the 1988 
language, we believe it should include all current employees.
    In closing, all law enforcement officers, including BOP 
correctional workers, should be able to make the service credit 
deposit into FERS for temporary civilian service performed 
after January 1, 1989.
    And I will be happy to answer any questions I can. Thank 
    [The prepared statement of Mr. Glover follows:]

    Mr. Lynch. Thank you very much, Mr. Glover.
    Ms. Barts, you are now recognized for an opening statement 
for 5 minutes.


    Ms. Barts. Chairman Lynch and members of the subcommittee, 
my name is Patricia Barts. I am from Atco, NJ. And I appreciate 
the opportunity to testify on behalf of the National Active and 
Retired Federal Employees Association about my experiences as a 
seasonal-status Federal worker.
    I was employed with the Internal Revenue Service at the 
Philadelphia Service Center from January 1970, retiring on July 
31st, 2001. From 1970 until 1986, I was a seasonal employee. In 
November 1969, I took the Civil Service test for Federal 
employment. Shortly after, I was called to take an 80-hour 
unpaid training course as a data transcriber.
    In early January 1970, I was hired to work transcribing tax 
returns as a seasonal worker. I worked from January to June 
that first year. When I was called back the next filing season, 
I worked a similar period and additional months to work on the 
quarterly returns. Eventually, I was working 10 months each 
    One of those years, during my 14 seasonal years as a data 
transcriber, I worked every day except one, being furloughed on 
a Thursday and brought back on a Monday. This was done to break 
my time. If I had worked the extra day, I would have been made 
a permanent employee and entitled to all the rights and 
benefits that are accrued to that status.
    During my time in data transcription, I was promoted to a 
lead data transcriber. My duties included instructing other 
employees and filling in for the supervisor. I enjoyed my work 
and only left the department because I could not become a 
permanent employee and advance to a higher grade.
    In 1984, I was accepted as a seasonal tax examiner in the 
Correspondence Audit Department. I took this position because 
it offered a higher grade and a chance to become a permanent 
employee. After about a year and a half, I became a permanent 
    During my career in the Examination Department, I was 
selected to be a lead tax examiner and instructor. My duties in 
this department included handling problem cases and telephone 
calls for other tax examiners, acting as a supervisor when the 
supervisor was not in the office, and holding yearly update 
classes in tax law changes each October.
    When the Federal Employees Retirement System was introduced 
to the Federal employees in January 1987, the employees like me 
who were in the older Civil Service Retirement System were 
counseled to remain in CSRS. This turned out to be bad advice. 
At this time, the seasonal employees in FERS were credited with 
a full year's service time if they worked at least 4 months out 
of the year.
    The CSRS employees contacted our bargaining unit, the 
National Treasury Employees Union, about receiving the same 
credit for their years of service before FERS was implemented. 
This request was denied by IRS management at the service 
center. Their decision not only affected our years of service, 
it also affected our time and grade for step raises in the 
General Schedule pay series.
    The FERS employees were receiving a full year's service 
credit to their time and grade and years of service for 
retirement. It is my feeling that we should have been credited 
with our service the same as the FERS employees. If this had 
been the policy, I would have 31 years and 7 months of service 
instead of 26 years and 7 months. This policy greatly affected 
my retirement annuity and that of the other fellow CSRS 
    I enjoyed working for the agency and always felt respected 
by my supervisors. Still, as a matter of equity, I believe I 
have been unfairly denied benefits which I should have been 
able to access.
    I understand the subcommittee is interested in reviewing a 
proposal that would allow temporary employees who have extended 
years of service to qualify for permanent job status, as well 
as a plan to allow such workers to credit their temporary 
status toward retirement. NARFE welcomes this discussion, and 
we would like to participate in the development of these 
reasonable proposals.
    Mr. Chairman, thank you for focusing attention on temporary 
and seasonal hiring authorities and on how such service affects 
our status and benefit offerings. I appreciate your allowing me 
to testify today on behalf of myself and other active and 
retired employees who work part of their public service careers 
as seasonal or temporary workers.
    I would be happy to answer any questions you may have.
    [The prepared statement of Ms. Barts follows:]

    Mr. Lynch. Thank you very much.
    I now yield myself 5 minutes.
    Thank you each for your willingness to come before the 
committee and testify and to help us with our work.
    There are several different points at which temporary 
employees are treated far less favorably in the Federal system, 
especially recognizing that, in many instances, they are 
continuously temporarily employed, year after year. And it 
seems that the underlying basis of treating them differently is 
undermined by this continual employment.
    One of the things that I think is fundamentally unfair here 
is that, in our scheme of preference, we've established a 
preference for veterans that I think is noble and right, we've 
established a preference in some jobs for prior service. The 
Peace Corps I think we talked about earlier with the folks from 
the National Forest Service.
    But, unless I'm missing something, there is no preference 
for a person who has done that job as a temporary worker in 
becoming a career employee. In other words, what I'm saying is 
that they are treated basically the same as a person who comes 
off the street. So they're not getting any advantage. They're 
coming into the process as if they had never worked in their 
current job.
    And I think that is wrong, and I think there has to be some 
way to acknowledge the albeit temporary service for that 
employee so that they aren't at the very back of the line, that 
they get some recognition and some type of preference in terms 
of filling those career positions.
    I believe it was Mr. Simpson, who testified on the first 
panel, that said that, you know, roughly 40 percent, I think, 
of his eventual career employees were chosen from the temporary 
work force; however, when they were chosen, they were not given 
any greater advantage than someone just walking in off the 
    Is that a problem that you see, in terms of recognizing the 
    I know it doesn't address the point that you mention, Ms. 
Barts, about crediting temporary time toward your pension. But 
it might get you in the door faster, so that the ability of a 
temporary employee to get into a career position where they're 
earning pension credits is sooner than what otherwise might be.
    Are there other solutions that you can see that would 
eliminate the difficulty that we are experiencing with these 
temporary employees?
    Ms. Kelley.
    Ms. Kelley. Chairman Lynch, I would say to your specific 
question, that is something that would help, whether--and you 
could define it a number of ways, even if you just started by 
giving them first consideration so that they had to--you know, 
they were on the short list, at least, to be considered. Today, 
they have to literally apply through the outside process as if 
they never worked for the government.
    And we went through this very recently up in your part of 
the country with the Andover Service Center. In that case, I 
would say the IRS had appropriately used some temporary hiring 
authority as they were ramping down the submission processing 
operation. But then when new work was added to Andover and new 
positions were added, permanent positions were added, all of 
those temporary workers, many of whom had been there for 4 
years, had no first-consideration rights to even be considered 
for those permanent jobs. So something like you described would 
be a giant step forward to fix that part of the problem.
    I would suggest, though, that another part of the problem, 
just from things I've heard here today and from some situations 
that we've seen at NTEU, is the question to the agencies of how 
many of these temporary employees or temporary positions are 
really temporary positions. I mean, I don't know how you 
justify, in the FDIC, when we had employees hired year after 
year for 15 years, or how--and Mr. Dougan could speak better to 
this than I on those who have joined him today.
    I mean, if people are doing the same job year after year, 
even if it's only for 6 months, then that is, in my view, a 
permanent seasonal position. It is still seasonal, it's not a 
full-time; it doesn't create work where it doesn't exist. But 
it's a permanent seasonal position, not a temporary seasonal 
    And that alone would change the status of those employees 
and their eligibility to retirement and contributions for 
health insurance and to FMLA and to all of the rights and 
benefits that a permanent career work force has in the Federal 
    So I think that's as big a piece as figuring out how to be 
able to get them first consideration or some priority, is to 
really press hard on these agencies as to how they're 
designating these positions. Are there some that should be 
temporary? Probably. But the numbers that I heard today and the 
real-life examples that I've heard, it just doesn't sound right 
to me.
    Mr. Lynch. Thank you.
    I notice my time has expired. I now yield 5 minutes to Ms. 
Eleanor Holmes Norton, the Congresswoman from the District of 
    Ms. Norton. Thank you, Mr. Chairman.
    I guess I can understand, for example, that in the IRS, Ms. 
Barts, when you might have temporary employees because of the 
tax season and the way that goes. But I must say, with Ms. 
Kelley, I wonder about the use of temporary employees across 
the whole spectrum of the Federal Government, whether there has 
been the kind of oversight to assure us that there is not 
    Ms. Barts, I was drawn to the part of your testimony on 
page 1 where, not only did they break your time in order to 
keep you in the seasonal status, but somehow they managed to 
promote you. And I didn't quite understand that. ``During my 
time at data transcription, I was promoted to lead data 
transcriber.'' You had supervisory duties.
    Were others working under you also temporary employees?
    Ms. Barts. They were all seasonals, yes. The supervisor was 
a permanent employee, and she had what you would call the 
timekeeper for the groups was a permanent employee. Everybody 
else was a seasonal employee.
    Ms. Norton. Now, you say on the next page that, after about 
a year and a half, you became a permanent worker.
    Ms. Barts. Once I was picked up by Correspondence Audit, 
    Ms. Norton. After you were picked up by whom?
    Ms. Barts. The other department, the Correspondence 
Examination Department.
    Ms. Norton. So you got on that permanent registry or on 
that permanent list for that job?
    Ms. Barts. I applied for several jobs when I was in data 
over the 14-year period, and I was accepted for quite a few of 
them. But the department always said that they couldn't release 
me at that time, and that eliminated that job opportunity for 
    Ms. Norton. The department wanted to maintain you for their 
own purposes.
    Ms. Barts. Right.
    Ms. Norton. They could do that even though you had an offer 
for a permanent job?
    Ms. Barts. Yes.
    Ms. Norton. Boy, that sounds like something close to 
slavery here.
    Ms. Barts. That's the way it was done back in the 1970's.
    Ms. Norton. Did your work as a seasonal employee help you 
in the process of applying for the permanent job?
    Ms. Barts. My evaluations that I received over the years 
was a great help to be picked up for the other department.
    And I was on a roster, yes, for a permanent job. I was on a 
roster for a permanent job. But as I said, as the permanent 
jobs would come up and not just myself, other people would 
apply, if it was in the height of their filing season, they 
would not let you go.
    Ms. Norton. All right. I think that is really quite 
    But I'm not sure--the chairman asked about whether or not 
such an employee, essentially, in competition was like anybody 
else coming off the street. It's rather counterintuitive to 
believe that I've gotten myself on a roster for a job like Ms. 
Barts, and I'm able to show that I was in precisely the same 
job, it's hard to believe that wouldn't help me in some way in 
the competition with others who may have indeed been doing 
similar work but not been doing it in the agency.
    So it is just counterintuitive to me to think that person 
who has been doing that work in a Federal agency is precisely 
the same as somebody who may have been doing something in the 
private sector or have other kinds of credentials.
    Don't you think it's helpful, at least, that person has 
been doing work of a very similar nature in the Federal sector 
once you're applying for a permanent job?
    Ms. Kelley. I would sure hope so, if the applications were 
looked at that closely.
    Ms. Norton. Well, perhaps we ought to say so. Perhaps we 
ought to say so when these employees are applying.
    Ms. Kelley. Exactly. If there were some kind of a process 
that said, ``First consideration is given to those employees 
who are doing this work for this Federal agency in a temporary 
    Ms. Norton. Well, it doesn't even say ``consideration 
should be given,'' does it?
    Ms. Kelley. No. No, my words of ``first consideration'' 
would be a giant step forward from where we are today.
    And I'm only using that as an example for those who would 
oppose some kind of a guaranteed selection, you know, to just 
try to, kind of, think of a process that would at least give 
that first consideration.
    Mr. Dougan. I think that there are a couple of things here. 
Really, there is a question of what hiring process is being 
used. Because the agency is certainly free to use their 
internal hiring process, which, under the current regulations, 
a temporary employee is not even eligible to apply under the 
internal process.
    So that avenue they are excluded from from the get-go. So 
they only have the external hiring process that the rest of the 
public has available to them. So they're competing with 
everybody else out on the street for those positions.
    And, you know, I think it's fair to say that, certainly, 
their experience working as a temporary in an agency that 
they're applying for a permanent position in, it certainly 
doesn't hurt them. But it certainly is true that it does not 
give them, necessarily, a leg up on any other person that is 
applying for that job.
    I think there are a couple of things we can do. I think, 
one, if we grant competitive standing to our long-term 
temporary work force, they will have the ability not only to 
apply through the external hiring process but also through the 
merit systems hiring process internally in the agency. So they 
will get a fair shake just like the rest of the permanent work 
force, in terms of applying for permanent jobs in that agency 
and doing that.
    And I think the other thing that we could do would be, as 
you've described and as Colleen has talked about, is afford 
some sort of priority consideration to long-term temporary 
employees, particularly if the agency decides to make their 
current temporary position a permanent position.
    It's my belief that if we have an employee that's been in a 
series of positions doing the same job 5, 6, 7 years, 10 years, 
30 years, essentially those people are incumbents in those 
positions. And the fact of the matter is that the position was 
misclassified by the agency as a temporary position when, in 
fact, when you look at the recurring nature of the work, it's 
really a permanent position in reality.
    And so it's my belief that those folks need to be given 
priority consideration for those positions for which they've 
been doing the work all along, once those positions are made 
permanent positions by the agency.
    Ms. Norton. Mr. Chairman, I see my time is up.
    I was very concerned. I do not believe it was this roster 
of witnesses who testified about firefighters. And we know 
there are parts of the country where these firefighters are 
absolutely essential; you can understand the seasonal nature of 
the work. But here, experience can be lifesaving. And it does 
seem to me we've got to look at various categories of work 
here, as well.
    I'm not sure--I think the testimony was that eight out of 
10 was a rookie. Was that you, Mr. Dougan?
    Mr. Dougan. Yes, ma'am.
    Ms. Norton. Eight out of 10 of these firefighters each year 
is a rookie, which means that you've got to, for one of the 
most dangerous jobs in America--indeed, it is considered the 
most dangerous, usually, in Civil Service work--you've got a 
whole bunch of people who are new. People have reached their 2-
year limit. And there you go retraining or training people for 
one of the most risky jobs in the work force.
    Mr. Dougan, would you like to elaborate on that testimony? 
Because it does seem to me it requires some kind of priority 
attention from the subcommittee.
    Mr. Dougan. Yeah, I mean, the situation with the wildland 
firefighting work force in the Federal Government, there are 
relatively few Federal agencies that have employees that have 
that expertise. There is the Forest Service, Bureau of Land 
Management, National Park Service, Fish and Wildlife Service, 
Bureau of Indian Affairs. Those are the five Federal agencies 
that primarily have a wildland firefighting work force.
    These people are specially trained. The agencies have 
invested a lot of time and resources and money in terms of 
training these people. They have highly specialized training. 
They hold a variety of qualifications. It takes many years of 
training and experience out on these fires for people to work 
their way up into leadership positions in the fire 
    And it is not uncommon to see on wildland fires temporary 
employees that are part of a fire crew that actually have more 
experience than the leaders of those crew or, in many cases, 
some of the other leaders that are in charge of and responsible 
for managing these wildfires.
    And, to me, I mean, the risk that we run as a country and 
in these agencies if we fail to acknowledge the professional 
work, the experience, and the skills that these folks have and 
don't make an honest effort to retain these and we just let 
these people go, we really risk having a brain-drain in the 
area of wildland firefighting, which, as Ms. Norton pointed 
out, has some potential catastrophic safety implications if we 
have inexperienced people out there trying to lead these crews 
as well as put these fires out.
    Ms. Norton. Thank you very much.
    And thank you, Mr. Chairman.
    Mr. Lynch. Thank you.
    Mr. Dougan, if I could just stay on that issue for a 
minute. What do we see right now in terms of the wildfire 
firefighters? Are you seeing, you know, professional 
firefighters, city firefighters, volunteer firefighters that go 
into that line of work? Or is it across the board from every 
walk of life?
    Mr. Dougan. The current work force of the Federal 
Government's wildland firefighting work force, there are really 
two pieces to it. One is, most of these agencies or all of 
these agencies have essentially permanent--they do have some 
permanent seasonal positions in their fire organizations. These 
folks work seasonally, but they're permanent employees. They 
typically work 6 to 9 months out of the year.
    But the bulk of the firefighting work force that's hired in 
the Federal Government are temporary employees. And where the 
Federal Government gets their temporary wildland firefighting 
work force is really from a couple of different areas.
    One is, there are a lot of college students that apply for 
these jobs. They're looking to make a lot of money. These guys 
work a lot of hours, and they tend to get a lot of overtime, so 
it's a good way for college students that are, you know, out of 
school to earn some money to help them out, to pay their 
tuition and books.
    The second group of folks that tend to be drawn into these 
kinds of positions is just, you know, average people out on the 
street. The Forest Service, for the most part, has a presence 
in more rural communities across America, particularly out in 
the western United States. These jobs, these firefighting jobs 
are highly coveted by people that live in small towns. The 
Forest Service is often the largest employer in the town and 
also pays, probably, for the most part, the highest wage. So 
these jobs are really sought after by local residents in these 
rural communities and really have a huge impact on those local 
    But what we see with these temporary jobs is, you know, if 
these folks are expected to be hired year after year as a 
temporary and not afforded any benefits, not afforded 
retirement, not afforded health care, what we see in terms of 
retaining this work force is, after a certain amount of time, 
these folks leave and are wooed away by county fire 
departments, by city fire departments, by State forestry 
organizations who can often pay more than the Federal 
Government and offer these folks permanent jobs and better 
    So we are losing a lot of our wildland firefighting work 
force because of those reasons. Particularly out in California 
we see that quite a bit.
    Mr. Lynch. Uh-huh.
    Let me ask--and maybe Ms. Kelley--I explored this with the 
first panel, trying to figure out where the practices of 
prudent and optimum management separate from abuse.
    You know, we in Congress, we hire young interns on a 
regular basis, and, you know, when we see one or two that might 
be especially bright, we snap them up, but generally it's 
understood that there aren't a lot of opportunities, so that's 
a rare occasion. But since they're only there for a learning 
experience and there is no expectation of hiring, I suppose 
it's fair. We very, very, very rarely get interns back twice.
    But here you've got this repeat, year-after-year, decades-
long relationship, where workers keep coming back. And some of 
them might be stuck--some of them just love their jobs, but 
some of them are relying on that, as anybody else would, over 
    And I'm just trying to find a way to determine when that, 
you know, repeat employment becomes abuse and how do we get at 
    Mr. Dougan, you described a situation; Ms. Barts, you've 
described another; Mr. Glover, as well, with the Bureau of 
Prisons; and President Kelley.
    How do I devise a solution that's going to be able to, sort 
of, capture all those different situations and provide some 
type of--you know, you want to have some flexibility for 
management to bring in temporary employees when needed. But 
this type of abuse, you know, where people are in there for 
decades or, you know, 8 or 10 years, brought back and are 
denied retirement, they're denied annuity, they're denied 
health care benefits, I don't necessarily think that's the way 
that the Federal Government should be operating as an employer.
    And so, you know, I think some of our Federal management 
agencies are adopting this strategy as a way of balancing their 
budgets, and they're doing it on the backs of these temporary 
employees. And that's as simple as that. And we're allowing it 
to happen. And we've got to figure out some way to push back, 
to say, ``OK, you know, this person is coming back for the 4th 
consecutive year. If they come back for the 5th, they're going 
to have to earn something.''
    Or there needs to be some pathways to career employment 
made for these people, where, as you say, when a position 
becomes permanent, it goes from temporary to permanent, I think 
the assumption should be--or the priority should be to hire the 
people who were in that job and doing that job originally when 
it changes over.
    But there also has to be some way of, not necessarily--not 
displacing a veteran going for a job, but next in line, so to 
speak. There should be an opportunity to put these temporary 
workers in line right behind them, ahead of the general public.
    And I'm just trying to figure out a way to develop a system 
that would accommodate those realities.
    Ms. Kelley. Well, again, Chairman Lynch, I would probably 
take it in a couple of different directions. And NTEU would be 
glad to work with the committee, I'm sure we all would, on 
language to fix each of these problems.
    When I was getting ready for this hearing, I was focused on 
the IRS and the FDIC, because the IRS hires a lot of seasonal 
employees. I did not come in here intending to say that I think 
the IRS is doing a great job, but I have to tell you, after 
listening to everything I heard today, they are doing a great 
    I don't know what happened back in the 1970's and 1980's, 
you know, in Ms. Barts's situation, and I'm sure those facts 
drive why she's here today. I can tell you that, today, the IRS 
employs tens of thousands of seasonals, and most of them are 
permanent seasonals with all the rights that go along with 
permanent employment, even though their schedule might only be 
a 4- or 6- or 9-month-a-year job. Seasonal defines their 
schedule, not what benefits they have.
    And, as I said, they don't always hire as permanent, but I 
think, over the years, NTEU has helped them, perhaps, see the 
criteria that should be used, so that when they were doing the 
ramp-downs on submission processing, they used that.
    But even though today the IRS seems to be doing at least as 
well, if not better, than most agencies, I think what we have 
also heard here today that there is a lot of harm that has been 
done in the past. And we're hoping we could have Congress help 
us to give employees who have been harmed by not being able to 
redeposit their FERS--the FDIC employees who got no credit for 
up to 15 years of work and now are Federal employees but don't 
have credit for that 15 years. So I think one piece of it is if 
we could figure out how to give them an opportunity to buy 
those years back.
    Mr. Lynch. Yeah.
    Ms. Kelley. And then, of course, to make sure, to your 
point, that it is happening correctly.
    And maybe I was the only one who heard it this way on the 
first panel. I was a little surprised to hear OPM say that, if 
you're going to work 6 months or more, then you're a permanent 
seasonal; if you're going to work 6 months or less, it's up to 
the agency to decide whether you're a temporary seasonal or a 
permanent seasonal. And that they grant these waivers, that I 
think they that were questioned about these waivers.
    I don't know how closely anybody's looking at those 
waivers, but it seems to me that, if they ask for it, they get 
it. And that's where I would like to see the agencies pushed 
pretty hard and held to a standard, as you're suggesting, you 
know, that they should be able to make a case that 40 percent 
of the work force is really temporary.
    Mr. Lynch. Right.
    Ms. Kelley. I mean, if they need employees in those jobs, 
in those parks, 6 months a year or 4 months a year or 7 months 
a year, they need them every year, I think that's a permanent 
seasonal job; it's not temporary. But there doesn't seem to be 
a process to hold them accountable for that designation.
    Mr. Lynch. Right.
    Mr. Glover, if I could ask you about this opportunity to 
buy back time. Obviously, you know, we are facing extreme 
limitations on the Federal budget, and we've got a massive 
deficit. You know, I think rightly, Congress is sharpening its 
pencils and looking at every expenditure that we make.
    However, I think there is a certain fairness that you bring 
out in your argument for those employees who, you know, because 
of the seemingly arbitrary application of a regulation against 
them, they've been taken out of a position that they originally 
had benefits in.
    How would you envision giving an opportunity to the Bureau 
of Prisons folks that--I guess they were in the system back in 
1989 and then now they're denied that opportunity. How do we 
reconcile that for the employees that you represent?
    Mr. Glover. I think what happened, Mr. Chairman, is that 
when the regulation changed from 1988 when you could buy back 
into your service credit, we had employees being hired at that 
time in large numbers, so some were hired under the 1988 rule, 
some were hired under the 1989 rule. And so what happened is, 
if you were hired after January 1, 1989, you could not buy back 
your service--you could not buy back in for the service credit.
    So we have employees--actually, one that was able to buy 
back 6 months of temporary service and one 1 month later that 
wasn't allowed to buy back 6 months of temporary service. And 
so that person has to work inside the Federal prison for 
another 6 months prior to his retirement. And at that point in 
your career, after working in the system for 20 to 25 years, 
you are tired and you are ready to go, generally.
    What I want to at least add as part of this discussion is 
that time should count. If you are a temporary, you are hired 
temporary--and the way the Bureau of Prisons does it, they 
identify you as an employee that they want. For instance, Fort 
Devens. When Fort Devens in Massachusetts was converted from a 
military base to a Federal prison hospital, they were trying to 
get employees onboard quickly to get that prison up. So you 
might hire 60 to 100 employees in a temporary status because 
they have already identified they want that employee. They have 
already had an interview. They are waiting on paperwork, 
they're waiting on a background check. And they want to get 
them onboard.
    The thing is, though, you are in there working in the same 
circumstances as every full-term employee. You don't have any 
different work rules as far as responding to an emergency, 
handling a disruptive inmate, handling some of the situations 
that we handle on a daily basis.
    And so, what our argument is is, once they make you 
permanent, you should be able to step back and recredit that 
service, the service that they have from when they started. 
Because they have been made permanent, and they should at least 
get to reach back and say, ``This time should count. And I will 
redeposit.'' I mean, we are not talking about the government 
necessarily; we are talking about the employee being able to 
redeposit for their service credits.
    Mr. Lynch. Right, right.
    Mr. Glover. So that is the piece that we are particularly 
interested in, because all the FERS employees now are hitting 
their 20-year marks, obviously, and now they are starting to 
realize what they did.
    Mr. Lynch. Right.
    Mr. Glover. And it is now incumbent upon the union that 
represents them to go out and do something about it.
    Mr. Lynch. Right. And while there is still time, maybe, for 
those last 5 years, that they make those contributions that 
they would have made, so that they are actually making bad 
years into good years and creditable service.
    Mr. Glover. Correct.
    Mr. Lynch. OK. We have to figure out that balance, because 
there is not a lot of extra resources out there. And so, you 
    Mr. Glover. If I could also say this: In a scoring of this, 
you would have numerous employees who may get back some of this 
temporary time and actually retire. The Bureau would then bring 
in employees at a much lower grade. GS-5 is what our 
correctional officers start at, GS-6. And so, on a score, I am 
not convinced that we would blow up any budget.
    Mr. Lynch. Right. That is a good point. That is a good 
    Ms. Barts, I wanted to ask you--you know, you described 
your situation extremely well. How many people do you think--I 
am way over my time, by the way--how many people are in your 
    Ms. Barts. How many people?
    Mr. Lynch. Do you think?
    Ms. Barts. Well, I would say, just from the people I know 
that I worked with, about 250, just that I know, of the people 
that I worked with all those years.
    Mr. Lynch. Yeah. And is that a national population or is 
that just----
    Ms. Barts. No, that is just the Philadelphia service 
center, the people that I know personally.
    Mr. Lynch. Yeah.
    Maybe President Kelley, maybe you're the person that I 
should be asking about this. How many folks do you know that 
are in Ms. Barts's circumstance?
    Ms. Kelley. Actually, I don't have any--I was not 
surprised, but when I read Ms. Barts's testimony this morning 
was the first that I knew that she or others were facing that 
problem. That is not anything that I have any data on.
    Mr. Lynch. OK. You've got fairly discrete circumstances 
there that might be addressed if the population were small 
enough. If it is a big situation, then, obviously----
    Ms. Barts. Well, there were 10 service centers, so I don't 
know how many people would be involved.
    Mr. Lynch. Yeah.
    OK, I have abused my time. I am going to yield--oh, no, I 
am not going to yield. Well, I think you have all suffered 
enough. I appreciate all the testimony you have offered us 
    I'm going to leave the record open, as we indicated at the 
beginning of the hearing, for 3 days in case other Members have 
some questions. I know that Mr. Connolly of Virginia has some 
questions, but not for this panel. And so I'll leave the record 
open to allow them to submit written testimony.
    I want to thank you each for your work on behalf of Federal 
employees. I want to thank you for coming forward before this 
committee and offering your testimony to help us with our work.
    This is a complicated situation, but I will make a 
commitment that we will work with you to try to figure out how 
to get at these inequities that are obviously out there and 
also try to diminish them going forward, so that we don't have 
these big gaps in time where we have these temporary employees 
out there; that we build a system that credits temporary 
employees so they can use that time to get into career 
positions, so that we don't have this big delta between the 
time they begin as a temporary employee and the time they get 
on as career employees; and also a way to recognize the value 
of that service in the hiring process, so that it is a priority 
and it is recognized as valuable service.
    I mean, it is astounding that we recognize priorities for 
different reasons, but time in the job, you know, active, 
relevant, excellent service in the job is ignored or 
sidestepped, and, instead, we treat people as if they are just 
walking in the door and have never worked in the job before.
    So I thank you for your willingness to testify and to help 
the committee with its work. I wish you all a good day. Thank 
    This meeting is now adjourned.
    [Whereupon, at 4:45 p.m., the subcommittee was adjourned.]
    [Additional information submitted for the hearing record