[House Report 112-116]
[From the U.S. Government Publishing Office]
112th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 112-116
======================================================================
EXTENSION OF PROBATIONARY PERIOD APPLICABLE TO APPOINTMENTS IN THE
CIVIL SERVICE
_______
June 23, 2011.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Issa, from the Committee on Oversight and Government Reform,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 1470]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Government Reform, to whom was
referred the bill (H.R. 1470) to amend title 5, United States
Code, to extend the probationary period applicable to
appointments in the civil service, and for other purposes,
having considered the same, report favorably thereon with an
amendment and recommend that the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. PROVISIONS RELATING TO PROBATIONARY PERIODS.
(a) In General.--Section 3321 of title 5, United States Code, is
amended--
(1) in subsection (a), by striking ``The President'' and
inserting ``Subject to subsections (c) and (d), the
President'';
(2) by redesignating subsection (c) as subsection (e); and
(3) by inserting after subsection (b) the following:
``(c) The length of a probationary period under paragraph (1) or (2)
of subsection (a), established by rule, regulation, or other action of
the President, shall be--
``(1) except as provided in paragraph (2), not less than 2
years; and
``(2) in the case of a preference eligible, not longer than--
``(A) if the appointment (as referred to in
subsection (a)(1)) or the initial appointment (as
referred to in subsection (a)(2)) is to a position that
exists on the effective date of this subsection, the
length of the probationary period which applies to such
position as of such effective date; or
``(B) if the appointment (as referred to in
subsection (a)(1)) or the initial appointment (as
referred to in subsection (a)(2)) is to a position that
does not exist on the effective date of this
subsection, such length of time as the President may
establish, consistent with the purposes of this
paragraph.
``(d) The head of each agency shall, in the administration of this
section, take appropriate measures to ensure that--
``(1) any announcement of a vacant position within such
agency and any offer of appointment made to any individual with
respect to any such position shall clearly state the terms and
conditions of the probationary period applicable to such
position;
``(2) any individual who is required to complete a
probationary period under this section shall receive timely
notice of the performance and other requirements which must be
met in order to successfully complete the probationary period;
and
``(3) upon successful completion of a probationary period
under this section, certification to that effect shall be made,
supported by a brief statement of the basis for that
certification, in such form and manner as the President may by
regulation prescribe.''.
(b) Technical Amendment.--Section 3321(e) of title 5, United States
Code (as so redesignated by subsection (a)(2)) is amended by striking
``Subsections (a) and (b) of this section'' and inserting ``This
section''.
(c) Effective Date.--This section and the amendments made by this
section--
(1) shall take effect 180 days after the date of enactment of
this Act; and
(2) shall apply in the case of any appointment (as referred
to in section 3321(a)(1) of title 5, United States Code) and
any initial appointment (as referred to in section 3321(a)(2)
of such title) taking effect on or after the date on which this
section takes effect.
SEC. 2. APPEALS FROM ADVERSE ACTIONS.
(a) In General.--Section 7501(1) of title 5, United States Code, is
amended--
(1) by striking ``1 year'' the first place it appears and
inserting ``not less than 2 years''; and
(2) by striking ``1 year'' the second place it appears and
inserting ``2 years''.
(b) Definition Amendment.--Section 7511(a)(1) of title 5, United
States Code, is amended--
(1) in subparagraph (A)(ii), by striking ``1 year'' the first
place it appears and inserting ``not less than 2 years''; and
(2) in subparagraph (C)(ii), by striking ``2 years'' the
first place it appears and inserting ``not less than 2 years''.
(c) Effective Date.--This section and the amendments made by this
section--
(1) shall take effect 180 days after the date of enactment of
this Act; and
(2) shall apply in the case of any individual whose period of
continuous service (as referred to in the provision of law
amended by paragraph (1) or (2) of subsection (b), as the case
may be) commences on or after the date on which this section
takes effect.
C O N T E N T S
Page
Committee Statement and Views.................................... 2
Section-by-Section............................................... 6
Explanation of Amendments........................................ 7
Committee Consideration.......................................... 7
Roll Call Votes.................................................. 7
Application of Law to the Legislative Branch..................... 8
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 8
Statement of General Performance Goals and Objectives............ 8
Federal Advisory Committee Act................................... 8
Unfunded Mandate Statement....................................... 8
Earmark Identification........................................... 8
Committee Estimate............................................... 8
Budget Authority and Congressional Budget Office Cost Estimate... 9
Changes in Existing Law Made by the Bill as Reported............. 10
Minority Views................................................... 13
Committee Statement and Views
PURPOSE AND SUMMARY
The probationary period can be a highly effective tool to
evaluate a candidate's potential to be an asset to the Federal
Government before an appointment to the federal civil service
becomes final. The probationary period is the last stage of the
assessment process under which a candidate's ability,
knowledge, and skills are observed, and a final decision is
made in light of those observations. The Committee is concerned
however that the probationary period has become a formality,
often overlooked as part of the appointment process.
H.R. 1470 provides agencies with additional tools to ensure
they meet their responsibility to fairly assess probationers
and therefore improve performance management within the Federal
Government. The legislation extends the length of the
probationary period from one year to a minimum of two years.
Lengthening the probationary period provides an individual the
opportunity to complete job-related training and begin
performing the actual work of the position, thus allowing the
person additional time to demonstrate their capabilities. The
legislation also clarifies the limitation of certain appeal
rights for adverse actions while individuals are on probation.
BACKGROUND AND NEED FOR LEGISLATION
The history of the probationary period dates back to the
creation of the federal civil service in the Pendleton Act of
1883, which required that there be a period of probation before
an appointment becomes final.\1\ The probationary period
provides the Federal Government with an opportunity to evaluate
an individual's conduct and performance on the job to determine
if an appointment should become final. Proper use of the
probationary period promotes the merit system principle that
selection should be determined solely on the basis of relative
ability, knowledge, and skills.\2\
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\1\U.S. Statutes at Large 22 (1883): 403.
\2\5 U.S.C. 2301(b)(1).
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In developing H.R. 1470, the Committee reviewed various
studies, reports, and surveys of federal supervisors and
employees, who identified various impediments to dealing with
poor performance, including the probationary period. Studies
suggest that even a small number of poor performers can have a
negative impact on the work environment.\3\ In this regard,
general agreement exists that poor performance should be
addressed earlier rather than later.\4\ In its report to the
Committee, the General Accountability Office (GAO) noted that
effective use of probationary periods to rigorously review
employee performance is important for developing staff to reach
full productivity, and that the probationary period may be
viewed as the final opportunity to evaluate performance before
permanent appointment.\5\ Similarly, the Merit Systems
Protection Board (MSPB) concluded, ``If the government does not
have a way to quickly and easily correct mistakes that are made
in the hiring process, it may be left with a situation that can
negatively affect the efficiency of the organization for a long
time.''\6\
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\3\U.S. Merit Systems Protection Board, The Federal Workforce for
the 21st Century, Results of the Merit Principles Survey 2000
(Washington, D.C.: 2003).
\4\U.S. Government Accountability Office, Poor Performers in the
Federal Workplace GAO-05-812R (Washington, D.C.: June 29, 2005).
\5\Ibid.
\6\U.S. Merit Systems Protection Board, Navigating the Probationary
Period (Washington, D.C.: September 2006).
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Many federal agencies employ labor forces requiring
specialized skills to carry out their duties. New employees
must often master broad and complex procedures and policies to
meet their agencies' missions, necessitating several months of
formal training followed by long periods of on-the-job
instruction. For example, at the Social Security
Administration, a benefit authorizer is provided 8.5 months of
formal training, followed by a period of assigned casework that
is reviewed until he or she has demonstrated acceptable
accuracy and production. The current one year probationary
period impedes a fair assessment of the employee's full range
of performance. Sufficient time is necessary to determine
whether a probationer should be retained.
In its letter to the Committee, the Government Managers
Coalition (GMC) discussed the need for management to have
adequate time to determine if a new employee has the required
skill set to perform the responsibilities of the position for
which they were selected. The GMC stated,
``a two-year probationary period would give managers
the necessary time to ensure an employee receives
training and then has adequate time on the job before
the probationary period ends.
``Once on the job, managers have a very small window
of time to identify performance issues, counsel the
employee and allow the employee to improve. Managers
are in the difficult position of having to decide
whether or not to keep employees when they have not had
sufficient time to evaluate employees. If managers miss
the one-year window to dismiss a failing employee, the
burden of proof becomes much greater if they decide to
do so later. For that reason, managers have an
incentive to dismiss the employee prior to the
expiration of the one-year window even though the
employee has not had sufficient time to show that they
could master the job.''\7\
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\7\Letter to Chairman Issa from Government Managers Coalition.
April 12, 2011.
Accordingly, H.R. 1470 lengthens the probationary period
from one year to a minimum of two years. Lengthening the
probationary period provides individuals the opportunity to
complete job-related training and begin performing the actual
work of the position. More importantly, it allows candidates
more time to demonstrate their capabilities. The legislation
maintains agencies' flexibility to lengthen the probationary
period for a reasonable fixed duration, provided such
probationary periods are uniformly applied. The Committee
agrees with the MSPB that the longer probationary period
``should not be used to delay action when there is sufficient
data to create an informed decision at an earlier date.''\8\
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\8\U.S. Merit Systems Protection Board, The Probationary Period: A
Critical Assessment Opportunity (Washington, D.C.: August 2005).
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There is a precedent for a longer probationary period. The
General Accountability Office requires a two year probationary
period for new hires who participate in the Professional
Development Program. The Internal Revenue Service has authority
to establish a probationary period for up to three years.\9\
Demonstration projects at the National Institute of Standards
and Technology and the Department of Commerce gained authority
to establish probationary periods of up to three years.\10\
These alternative personnel systems ``produced impressive
statistics on increased job satisfaction and quality of
employees versus that for the Federal workforce in
general.''\11\
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\9\5 U.S.C. 9159(d).
\10\U.S. Government Accountability Office, Human Capital:
Implementing Pay for Performance at Selected Demonstrates Projects,
GAO-04-83 (Washington, D.C.: Jan. 23, 2004).
\11\75 FR 55160.
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Lengthening the probationary period supports reform
planning underway. In March 2011, the Director of the Office of
Personnel Management (OPM), John Berry, asked the Chief Human
Capital Officers Council to form a working group to improve
government-wide performance management. In discussing the need
to improve federal employee performance, Director Berry stated,
``Failing to remove poor performers disrespects and demotivates
the entire team. And what's more, we don't have a position to
waste.''\12\
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\12\Davidson, Joe. ``OPM's John Berry calls for new performance-
review system for federal workers, Washington Post, March 16, 2011.
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In a January 2011 interview, Department of Homeland
Security Chief Human Capital Officer Jeff Neal commented on the
need for a longer probationary period, indicating that one year
was not enough time to judge new Border Patrol agents and other
law enforcement officers. Neal explained that he would like a
longer probationary period.\13\
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\13\Losey, Stephen. ``Pay Reform: Lawmaker Wants Your Input,''
Federal Times, March 16, 2011.
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In its 2011 Legislative Issues Brief, the Federal Managers
Association expressed support for lengthening the probationary
period, noting ``The current economic environment requires
agencies to take on greater responsibility while receiving
fewer resources, and it is critical that members of the federal
workforce prove they are up to the challenge of serving the
interests of the American public.''\14\ Enabling agencies to
assess and easily terminate unsatisfactory candidates
recognizes this reality, and promotes two other merit system
principles: using the federal workforce efficiently and
effectively; and retaining employees on the basis of the
adequacy of their performance.\15\
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\14\Federal Managers Association, 2011 Issue Brief, accessed at
http://fedmanagers.org/ public/pdfs/
Federal%20Workforce%20Management%202011.pdf.
\15\5 U.S.C. 2301(b)(5) and (b)(6).
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In addition, the MSPB recommended Congress amend current
law to indicate that probationers are not entitled to
protections granted to federal employees. The MSPB noted this
change ``would help support the message that appointment as a
Federal employee must be earned through successful performance
and is not an entitlement that automatically results from a job
offer or physical presence in the workplace.''\16\ H.R. 1470
clarifies the limitation of certain appeal rights for adverse
actions while individuals are on probation.
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\16\U.S. Merit Systems Protection Board, The Probationary Period: A
Critical Assessment Opportunity (Washington, D.C.: August 2005).
---------------------------------------------------------------------------
The MSPB also examined how agencies were using the
probationary period to ensure only the best candidates received
finalized appointments as federal employees. The MSPB
recommended that OPM establish procedures so that a probationer
does not automatically become an employee in the absence of
agency action, describing how a probationary period helps the
individual understand they have ``been given a time-limited
opportunity with the burden on the probationer to demonstrate
why a finalized appointment is in the interest of the
Government.''\17\ H.R. 1470 requires that agencies certify a
probationer's conduct and performance is such that an
individual will be an asset to the Federal Government.
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\17\Ibid.
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Finally, the MSPB discussed the need for agencies to
``create a culture in which probationers are treated with
respect as candidates for an appointment, but not as Federal
employees with finalized appointments.''\18\ The MSPB
recommended probationers be notified, before accepting a job
offer, that they will be probationers. H.R. 1470 requires
agencies to define the terms of the probationary period in the
vacancy announcement as well as ensure probationers have a full
understanding of performance expectations.
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\18\Ibid.
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LEGISLATIVE HISTORY
The history of the federal probationary period dates back
to the creation of the civil service in the Pendleton Act of
1883, which required ``that there shall be a period of
probation before any absolute appointment or employment
aforesaid.''\19\ The Civil Service Reform Act provided that:
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\19\U.S. Statutes at Large 22, Chapter 27, January 16, 1883, 403,
at 404.
The President may take such action, including the
issuance of rules, regulations, and directives, as
shall provide as nearly as conditions of good
administration warrant for a period of probation--(1)
before an appointment in the competitive service
becomes final; and before initial appointment as a
supervisor or manager becomes final.\20\
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\20\P.L. 94-454, Sec. 303(a), October 13, 1978, 92 Stat. 1111, at
1146.
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An individual's initial appointment as a career
appointee shall become final only after the individual
has served a 1-year probationary period as a career
appointee.\21\
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\21\P.L. 94-454, Sec. 403(a), October 13, 1978, 92 Stat. 1111, at
1162 (section on appointments in the Senior Executive Service).
In 1990, Congress extended full appeal rights to non-
preference eligibles in the excepted service.\22\
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\22\P.L. 101-376, Sec. 2(a), August 17, 1990, 104 Stat. 461.
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Section-by-Section
Section 1. Provisions relating to probationary periods
The probationary period for federal civilian employees is
extended from one year to not less than 2 years. Veterans'
preference is maintained for individuals with initial
appointments to positions that exist 180 days after enactment
of the legislation.
Agency heads must ensure that individuals receive clear
guidance of the performance requirements that must be met as
part of the probationary period, beginning with the vacancy
announcement. Agencies are required to certify an individual's
successful completion of the probationary period, demonstrating
that a probationer's conduct and performance have established
that the employee will be an asset to the Federal Government.
Section 2. Appeals from adverse actions
Individuals in a probationary status are not entitled to
protections from adverse actions granted to employees who have
completed their probationary period.
Explanation of Amendments
Rep. Dennis Ross offered an amendment in the nature of a
substitute that made minor changes to the legislation. The
amendment removes the section of the bill that dealt with
application of the probationary period to transfers,
promotions, demotions, and lateral assignments to guard against
a situation where an employee could spend their entire time in
a career ladder in a probationary period. The amendment also
makes clear that veterans' preference is maintained by keeping
the length of the probationary period the same, consistent with
current law. The amendment was agreed to by voice vote.
Rep. Cummings offered an amendment in the nature of a
substitute that would have replaced the probationary period
extension with a GAO study assessing the impact of lengthening
the probationary period. The amendment was defeated by a vote
of 13-14.
Rep. Connolly offered an amendment in the nature of a
substitute that would have replaced the probationary period
extension with certain training programs for federal
supervisors. Most of the provisions of the amendment would
codify existing practices of the federal government, including
those established by the Federal Workforce Flexibility Act of
2004 and the Fiscal Year 2010 National Defense Authorization
Act. The Connolly amendment was ruled out-of-order by the
Chairman because it was non-germane.
Committee Consideration
On April 13, 2011, the Committee met in open session and
ordered reported favorably the bill, H.R. 1470, as amended, by
roll call vote, a quorum being present.
Roll Call Votes
H.R. 1470 (Ross-FL)--To amend title 5, U.S.C., to extend the
probationary period applicable to appointments in the civil
service, and for other purposes
(1) Cummings amendment to the Ross substitute--defeated by
a vote of 13 ayes to 14 noes.
Voting aye: Cummings, Towns, Maloney, Norton, Kucinich,
Tierney, Clay, Lynch, Connolly, Davis, Braley, Murphy and
Speier.
Voting no: Issa, Burton, Platts, Chaffetz, Walberg, Amash,
Buerkle, Gosar, Labrador, Meehan, DesJarlais, Gowdy, Ross and
Farenthold.
(2) H.R. 1470 was ordered favorably reported, as amended, a
quorum being present, by a vote of 15 ayes to 14 nays.
Voting aye: Issa, Burton, McHenry, Chaffetz, Walberg,
Amash, Buerkle, Gosar, Labrador, Meehan, DesJarlais, Gowdy,
Ross, Guinta and Farenthold.
Voting no: Platts, Cummings, Towns, Maloney, Norton,
Kucinich, Tierney, Clay, Lynch, Connolly, Davis, Braley, Murphy
and Speier.
** Note: Had they been present at the vote, Mr. Turner and
Mr. Walsh both would have been recorded as voting ``aye.'' By
unanimous consent, this was approved for the record.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to the terms and conditions of
employment or access to public services and accommodations.
This bill extends the probationary period for federal civil
service employees from one year to not less than two years.
H.R. 1470 applies to employees paid according to the General
Schedule. As such this bill does not relate to legislative
branch employees.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the Committee's oversight findings and recommendations are
reflected in the descriptive portions of this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals and objectives are reflected in the descriptive portions
of this report.
Federal Advisory Committee Act
The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of 5 U.S.C. App., Section 5(b).
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement as to
whether the provisions of the reported include unfunded
mandates. In compliance with this requirement the Committee has
received a letter from the Congressional Budget Office included
herein.
Earmark Identification
H.R. 1470 does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI.
Committee Estimate
Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
H.R. 1470. However, clause 3(d)(3)(B) of that rule provides
that this requirement does not apply when the Committee has
included in its report a timely submitted cost estimate of the
bill prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act.
Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause 3(c)(3) of rule XIII of the Rules of
the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has received
the following cost estimate for H.R. 1470 from the Director of
Congressional Budget Office:
April 26, 2011.
Hon. Darrell Issa,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1470, a bill to
amend title 5, United States Code, to extend the probationary
period applicable to appointments in the civil service, and for
other purposes.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 1470--A bill to amend title 5, United States Code, to extend the
probationary period applicable to appointments in the civil
service, and for other purposes
H.R. 1470 would extend the probationary period for federal
employees from one year to two years. During that time, an
agency is responsible for assessing a candidate for a permanent
position or termination. CBO estimates that implementing the
legislation would have no significant impact on the federal
budget. Enacting the bill could affect direct spending by
agencies not funded through annual appropriations, such as the
Tennessee Valley Authority and the Bonneville Power
Administration; therefore, pay-as-you-go procedures apply. CBO
estimates, however, that any net increase in spending by those
agencies would not be significant. Enacting H.R. 1470 would not
affect revenues.
Under current regulations, the first year of service for
most federal employees is considered a probationary period.
During that year, supervisors evaluate an employee's
performance and conduct on the job and may remove the employee
if necessary. Employees dismissed during this probationary
period generally have no right of appeal to the Merit Systems
Protection Board. H.R. 1470 would extend the current
probationary period to two years. CBO estimates that the
legislation would have no significant budgetary effect because
it would not change the evaluation process or structure, the
total number of federal jobs available, or the oversight of
employees.
H.R. 1470 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Matthew
Pickford. The estimate was approved by Theresa Gullo, Deputy
Assistant Director for Budget Analysis.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
TITLE 5, UNITED STATES CODE
* * * * * * *
PART III--EMPLOYEES
* * * * * * *
SUBPART B--EMPLOYMENT AND RETENTION
* * * * * * *
CHAPTER 33--EXAMINATION, SELECTION, AND PLACEMENT
* * * * * * *
SUBCHAPTER I--EXAMINATION, CERTIFICATION, AND APPOINTMENT
* * * * * * *
Sec. 3321. Competitive service; probationary period
(a) [The President] Subject to subsections (c) and (d), the
President may take such action, including the issuance of
rules, regulations, and directives, as shall provide as nearly
as conditions of good administration warrant for a period of
probation--
(1) * * *
* * * * * * *
(c) The length of a probationary period under paragraph (1)
or (2) of subsection (a), established by rule, regulation, or
other action of the President, shall be--
(1) except as provided in paragraph (2), not less
than 2 years; and
(2) in the case of a preference eligible, not longer
than--
(A) if the appointment (as referred to in
subsection (a)(1)) or the initial appointment
(as referred to in subsection (a)(2)) is to a
position that exists on the effective date of
this subsection, the length of the probationary
period which applies to such position as of
such effective date; or
(B) if the appointment (as referred to in
subsection (a)(1)) or the initial appointment
(as referred to in subsection (a)(2)) is to a
position that does not exist on the effective
date of this subsection, such length of time as
the President may establish, consistent with
the purposes of this paragraph.
(d) The head of each agency shall, in the administration of
this section, take appropriate measures to ensure that--
(1) any announcement of a vacant position within such
agency and any offer of appointment made to any
individual with respect to any such position shall
clearly state the terms and conditions of the
probationary period applicable to such position;
(2) any individual who is required to complete a
probationary period under this section shall receive
timely notice of the performance and other requirements
which must be met in order to successfully complete the
probationary period; and
(3) upon successful completion of a probationary
period under this section, certification to that effect
shall be made, supported by a brief statement of the
basis for that certification, in such form and manner
as the President may by regulation prescribe.
[(c) Subsections (a) and (b) of this section] (e) This
section shall not apply with respect to appointments in the
Senior Executive Service or the Federal Bureau of Investigation
and Drug Enforcement Administration Senior Executive Service.
* * * * * * *
SUBPART F--LABOR-MANAGEMENT AND EMPLOYEE RELATIONS
* * * * * * *
CHAPTER 75--ADVERSE ACTIONS
* * * * * * *
SUBCHAPTER I--SUSPENSION FOR 14 DAYS OR LESS
Sec. 7501. Definitions
For the purpose of this subchapter--
(1) ``employee'' means an individual in the
competitive service who is not serving a probationary
or trial period under an initial appointment or who has
completed [1 year] not less than 2 years of current
continuous employment in the same or similar positions
under other than a temporary appointment limited to [1
year] 2 years or less; and
* * * * * * *
SUBCHAPTER II--REMOVAL, SUSPENSION FOR MORE THAN 14 DAYS, REDUCTION IN
GRADE OR PAY, OR FURLOUGH FOR 30 DAYS OR LESS
Sec. 7511. Definitions; application
(a) For the purpose of this subchapter--
(1) ``employee'' means--
(A) an individual in the competitive
service--
(i) * * *
(ii) who has completed [1 year] not
less than 2 years of current continuous
service under other than a temporary
appointment limited to 1 year or less;
* * * * * * *
(C) an individual in the excepted service
(other than a preference eligible)--
(i) * * *
(ii) who has completed [2 years] not
less than 2 years of current continuous
service in the same or similar
positions in an Executive agency under
other than a temporary appointment
limited to 2 years or less;
* * * * * * *
MINORITY VIEWS
Currently, federal employees serve a one year probationary
period when they are hired into federal service. H.R. 1470
would increase the probationary period to at least two years
for the entire federal workforce.
According to the Merit Systems Protection Board, the
purpose of the probationary period is ``to provide the
Government with an opportunity to evaluate an individual's
conduct and performance on the job to determine if an
appointment to the civil service should become final.''
It is appropriate that the federal government have a
reasonable opportunity to evaluate the ability of new hires. In
most cases, one year is an adequate period in which to assess a
new employee's ability to perform. The Committee has not held a
single hearing to identify any shortcomings in the current
probation period, and it has not received any testimony or
evidence from the government explaining why a two year
probationary period is needed or how it would improve the
efficiency of the federal workforce.
Nevertheless, the Committee decided to report legislation
on a party-line vote that would erode protections guaranteed to
federal workers without identifying any benefit this would
produce. In fact, an across-the-board requirement for a two-
year probationary period would undermine the majority's stated
desire to provide federal managers with flexibility to modify
probationary periods based on the individual occupation of the
employee.
The Committee adopted an amendment by Rep. Ross that
eliminates some of the potentially absurd consequences of the
original bill. As introduced, H.R. 1470 would have subjected
federal employees to a two-year probationary period when they
were hired, and then required another two-year probationary
period every time they were promoted, transferred, demoted, or
reassigned.
While the Committee adopted this amendment and eliminated
the absurd possibility that federal employees might spend
decades on probation, the manner in which this legislation was
drafted suggests a lack of consideration of the impact of the
policy change this legislation seeks. The Committee has not
conducted any type of assessment to determine whether a
lengthening of the current probationary period is needed or
would be an improvement over current practice. For these
reasons, Ranking Member Cummings offered an amendment to
require the Government Accountability Office to conduct a non-
partisan, fact-based review of the probationary period and
report its findings to Congress. Unfortunately, that amendment
was defeated.
Instead of a thoughtfully constructed proposal to help
government managers and agencies, this bill degrades the rights
of federal employees and denigrates public service. Federal
employees care for our veterans, research and fight diseases
such as cancer, respond to natural disasters, ensure that the
food we eat is safe, protect our borders, and deliver vital
services to our nation's citizens. Given the importance of
these functions, Congress has long-recognized the need to
promote the federal merit system and protect federal employees
from arbitrary personnel actions that do not promote the
efficiency of the federal service.
The Merit Systems Protection Board has explained that the
primary reason non-probationary employees are granted due
process protections against adverse actions is ``to keep the
civil service free from prohibited personnel practices,''
including retaliation for whistle-blowing, personnel decisions
based on improper political motives, or other non-merit based
actions.
The Committee has an obligation to strengthen the civil
service and support protections for federal workers that allow
civil servants to effectively and efficiently carry out their
duties without fear of arbitrary personnel actions or
retaliation. H.R. 1470 undermines these important principles.
Elijah E. Cummings.