[House Report 114-472]
[From the U.S. Government Publishing Office]


114th Congress    }                                     {       Report
                        HOUSE OF REPRESENTATIVES
 2d Session       }                                     {      114-472

======================================================================

 
 AMENDING TITLE 5, UNITED STATES CODE, TO MODIFY PROBATIONARY PERIODS 
WITH RESPECT TO POSITIONS WITHIN THE COMPETITIVE SERVICE AND THE SENIOR 
               EXECUTIVE SERVICE, AND FOR OTHER PURPOSES

                                _______
                                

 March 23, 2016.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Chaffetz, 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. 3023]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Oversight and Government Reform, to whom 
was referred the bill (H.R. 3023) to amend title 5, United 
States Code, to modify probationary periods with respect to 
positions within the competitive service and the Senior 
Executive Service, and for other purposes, having considered 
the same, report favorably thereon without amendment and 
recommend that the bill do pass.

                                CONTENTS

                                                                   Page
Committee Statement and Views....................................     2
Section-by-Section...............................................     3
Explanation of Amendments........................................     3
Committee Consideration..........................................     4
Roll Call Votes..................................................     4
Application of Law to the Legislative Branch.....................     7
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................     7
Statement of General Performance Goals and Objectives............     7
Duplication of Federal Programs..................................     7
Disclosure of Directed Rule Makings..............................     7
Federal Advisory Committee Act...................................     7
Unfunded Mandate Statement.......................................     7
Earmark Identification...........................................     8
Committee Estimate...............................................     8
Budget Authority and Congressional Budget Office Cost Estimate...     8
Changes in Existing Law Made by the Bill, as Reported............     9
Minority Views...................................................    15

                     Committee Statement and Views


                          PURPOSE AND SUMMARY

    H.R. 3023 modifies the probationary periods for positions 
within the competitive service and the Senior Executive 
Service.

                  BACKGROUND AND NEED FOR LEGISLATION

    In general, an appointment in the competitive service is 
not considered final until completion of a one-year 
probationary period, although there are exceptions requiring 
longer periods. The probationary period provides the government 
with an opportunity to evaluate an employee's job performance 
to determine if an appointment to the civil service should 
become final. Before an appointment becomes final, an employee 
has limited job protections and, in general, an employee on 
probation may not appeal a removal action. After an appointment 
to the civil service is final, an employee receives 
considerable job protections under the federal merit system, 
including appeal rights to the Merit Systems Protection Board. 
In order to provide adequate time to evaluate an employee's job 
performance, H.R. 3023 establishes a two-year probationary 
period before an appointment in the competitive service or an 
initial appointment as a supervisor or manager becomes final.
    There are a number of positions in the federal government 
that are unique and extremely complex. For example, the federal 
government has positions that require months or years of 
training or specific licensing or certification requirements. 
The current one-year probationary period does not provide 
adequate time for supervisors to properly assess the 
performance of an employee and to make informed conclusions 
about employee performance for positions that have additional 
training or licensing requirements. For federal government 
positions with training or licensing requirements, H.R. 3023 
requires that the probationary period will be the two-year 
period beginning on the date such formal training is completed 
or the date such license or certification is granted.
    H.R. 3023 also extends the probationary period from one 
year to two years for career appointees to the Senior Executive 
Service. The Senior Executive Service leads the federal 
workforce. As leaders, the nature of the work required of the 
Senior Executive Service can take longer to assess in order to 
ensure adequate job performance.
    Finally, H.R. 3023 requires agencies to ensure vacancy 
announcements clearly state the terms and conditions of the 
probationary period and to provide employees with the 
requirements needed to successfully complete the probationary 
period. Agencies are also required to certify that an employee 
successfully completes the probationary period.

                          LEGISLATIVE HISTORY

    H.R. 3023, to amend title 5, United States Code, to modify 
probationary periods with respect to positions within the 
competitive service and the Senior Executive Service, was 
introduced on July 10, 2015, by Rep. Ken Buck (R-CO) and 
referred to the Committee on Oversight and Government Reform. 
On January 12, 2016, the Committee ordered H.R. 3023 favorably 
reported without amendment by a record vote of 20 to 16.

                           Section-by-Section


Section 1. Extension of probationary period for positions within the 
        competitive service

    Amends section 3321 of title 5 of the United States Code to 
establish that the length of a probationary period, before an 
appointment in the competitive service becomes final, and 
initial appointment as a supervisor or manager becomes final, 
shall not be less than a period of two years. For positions 
that require formal training or completion of a license, the 
two-year probationary period begins on the date formal training 
is completed or a license is granted.
    Provides the probationary period for a preference eligible, 
with an appointment or initial appointment to a position that 
exists on the effective date of this bill, shall be the 
probationary period that was in effect prior to the effective 
date of this bill. For a preference eligible with an 
appointment or initial appointment to a position that does not 
exist on the effective date of this bill, the probationary 
period shall be the length of time as the President establishes 
consistent with the purposes of this bill.
    Defines ``formal training'' as any position that requires a 
training program by law, rule, regulation, or agency 
requirement.
    Defines ``license'' as a license, certification or other 
grant of permission to engage in a particular activity.
    Ensures that agencies include in vacancy announcements, and 
offers of appointment, the terms and conditions of the 
probationary period. Also, ensures that agencies provide 
individuals, who are required to complete probationary periods, 
timely notice of the requirements to successfully complete the 
probationary period, and that agencies provide certification 
that the probationary period was successfully completed.

Section 2. Extension of probationary period for positions within the 
        Senior Executive Service

    This section amends Title 5 of the United States Code 
section 3393(d) to establish that an appointment as a career 
appointee in the Senior Executive Service shall become final 
only after serving a two year probationary period.

Section 3. Appeals from adverse actions

    This section amends Title 5 of the United States Code 
section 7501(a) from one year to two years to establish when an 
employee becomes entitled to appeal adverse actions.

                       Explanation of Amendments

    Ranking Member Elijah Cummings (D-MD) offered an amendment 
in the nature of a substitute that would insert a provision 
requiring the Government Accountability Office to conduct a 
study on federal agencies that have lengthened the employee 
probationary period from one to two years. The amendment was 
not adopted by a record vote of 14 to 20.
    Congresswoman Brenda Lawrence (D-MI) offered an amendment 
in the nature of a substitute that would insert a provision 
requiring that an appointment to competitive service shall not 
become final until the agency head has made an affirmative 
decision, in writing, 30 days before the end of the 
probationary period that the individual's performance is 
acceptable. However, if a written decision is not made, the 
appointment still becomes final.
    In addition, the amendment provides that appointment as a 
career appointee shall become final after a one year 
probationary period and that such appointment shall not become 
final until the agency head has made an affirmative decision, 
in writing, 30 days before the end of the probationary period 
that the individual's performance is acceptable. However, if a 
written decision is not made, the appointment still becomes 
final. The amendment was not adopted by voice vote.

                        Committee Consideration

    On January 12, 2016, the Committee met in open session and 
ordered reported favorably the bill, H.R. 3023, by a record 
vote of 20 to 16, a quorum being present.


              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 strengthens the management and implementation of 
Equal Employment Opportunity programs in federal agencies. As 
such this bill does not relate to employment or access to 
public services and accommodations.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
(2)(b)(1) of rule X of the Rules of the House of 
Representatives, the Committee's oversight findings and 
recommendations are reflected in the descriptive portions of 
this report.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goal or objective of the bill is to amend title 5, United 
States Code, to modify probationary periods with respect to 
positions within the competitive service and the Senior 
Executive Service.

                    Duplication of Federal Programs

    No provision of this bill establishes or reauthorizes a 
program of the federal government known to be duplicative of 
another federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    The Committee estimates that enacting this bill does not 
direct the completion of any specific rule makings within the 
meaning of 5 U.S.C. Sec. 551.

                     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

    This bill 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)(1) 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 
this bill. However, clause 3(d)(2)(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 of 
1974.

     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 this bill from the Director of 
Congressional Budget Office:

H.R. 3023--A bill to amend title 5, United States Code, to modify 
        probationary periods with respect to positions within the 
        competitive service and the Senior Executive Service, and for 
        other purposes

    H.R. 3023 would extend the probationary period for members 
of the senior executive service from one year to two years and 
would require at least a two-year probationary period for most 
members of the civil service. The bill also would require that 
federal agencies add certain notifications regarding the terms 
of probationary periods to job postings and to information 
provided to employees in such periods.
    H.R. 3023 would not generally change the number of 
employees in the federal government. Furthermore, the necessary 
tracking and administrative procedures regarding probationary 
periods are already in place. Therefore, CBO estimates that 
implementing the legislation would have no net budgetary 
effect.
    Because enacting H.R. 3023 would not affect direct spending 
or revenues, pay-as-you-go procedures do not apply. CBO 
estimates that, enacting H.R. 3023 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year period beginning in 2027.
    H.R. 3023 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 Dan Ready. The 
estimate was approved by H. Samuel Papenfuss, Deputy Assistant 
Director for Budget Analysis.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, and existing law in which no 
change is proposed is shown in roman):

                      TITLE 5, UNITED STATES CODE



           *       *       *       *       *       *       *
PART III--EMPLOYEES

           *       *       *       *       *       *       *


SUBPART B--EMPLOYMENT AND RETENTION

           *       *       *       *       *       *       *


CHAPTER 33--EXAMINATION, SELECTION, AND PLACEMENT

           *       *       *       *       *       *       *


SUBCHAPTER I--EXAMINATION, CERTIFICATION, AND APPOINTMENT

           *       *       *       *       *       *       *


Sec. 3321. Competitive service; probationary period

  (a) [The President] Subject to subsections (c) and (d), the 
President may take such action, including the issuance of 
rules, regulations, and directives, as shall provide as nearly 
as conditions of good administration warrant for a period of 
probation--
          (1) before an appointment in the competitive service 
        becomes final; and
          (2) before initial appointment as a supervisor or 
        manager becomes final.
  (b) An individual--
          (1) who has been transferred, assigned, or promoted 
        from a position to a supervisory or managerial 
        position, and
          (2) who does not satisfactorily complete the 
        probationary period under subsection (a)(2) of this 
        section,
shall be returned to a position of no lower grade and pay than 
the position from which the individual was transferred, 
assigned, or promoted. Nothing in this section prohibits an 
agency from taking an action against an individual serving a 
probationary period under subsection (a)(2) of this section for 
cause unrelated to supervisory or managerial performance.
  (c)(1) Except as provided in paragraph (2), the length of a 
probationary period established under paragraph (1) or (2) of 
subsection (a) shall be--
          (A) with respect to any position that requires formal 
        training, a period of 2 years beginning on the date 
        that such formal training is completed;
          (B) with respect to any position that requires a 
        license, a period of 2 years beginning on the date that 
        such license is granted; and
          (C) with respect to any position not covered by 
        subparagraph (A) or (B), not less than 2 years.
  (2) The length of a probationary period established under 
paragraph (1) or (2) of subsection (a) in the case of a 
preference eligible shall be 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 subparagraph.
  (3) In paragraph (1)--
          (A) the term ``formal training'' means, with respect 
        to any position, a training program required by law, 
        rule, or regulation, or otherwise required by the 
        employing agency, to be completed by the employee 
        before the employee is able to successfully execute the 
        duties of the applicable position; and
          (B) the term ``license'' means a license, 
        certification, or other grant of permission to engage 
        in a particular activity.
  (d) The head of each agency shall, in the administration of 
this section, take appropriate measures to ensure that--
          (1) any announcement of a vacant position within 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)] (e) Subsections (a) through (d) 
of this section shall not apply with respect to appointments in 
the Senior Executive Service or the Federal Bureau of 
Investigation and Drug Enforcement Administration Senior 
Executive Service, or any individual covered by section 1599e 
of title 10.

           *       *       *       *       *       *       *


 SUBCHAPTER VIII--APPOINTMENT, REASSIGNMENT, TRANSFER, AND DEVELOPMENT 
IN THE SENIOR EXECUTIVE SERVICE

           *       *       *       *       *       *       *


Sec. 3393. Career appointments

  (a) Each agency shall establish a recruitment program, in 
accordance with guidelines which shall be issued by the Office 
of Personnel Management, which provides for recruitment of 
career appointees from--
          (1) all groups of qualified individuals within the 
        civil service; or
          (2) all groups of qualified individuals whether or 
        not within the civil service.
  (b) Each agency shall establish one or more executive 
resources boards, as appropriate, the members of which shall be 
appointed by the head of the agency from among employees of the 
agency or commissioned officers of the uniformed services 
serving on active duty in such agency. The boards shall, in 
accordance with merit staffing requirements established by the 
Office, conduct the merit staffing process for career 
appointees, including--
          (1) reviewing the executive qualifications of each 
        candidate for a position to be filled by a career 
        appointee; and
          (2) making written recommendations to the appropriate 
        appointing authority concerning such candidates.
  (c)(1) The Office shall establish one or more qualifications 
review boards, as appropriate. It is the function of the boards 
to certify the executive qualifications of candidates for 
initial appointment as career appointees in accordance with 
regulations prescribed by the Office. Of the members of each 
board more than one-half shall be appointed from among career 
appointees. Appointments to such boards shall be made on a non-
partisan basis, the sole selection criterion being the 
professional knowledge of public management and knowledge of 
the appropriate occupational fields of the intended appointee.
  (2) The Office shall, in consultation with the various 
qualification review boards, prescribe criteria for 
establishing executive qualifications for appointment of career 
appointees. The criteria shall provide for--
          (A) consideration of demonstrated executive 
        experience;
          (B) consideration of successful participation in a 
        career executive development program which is approved 
        by the Office; and
          (C) sufficient flexibility to allow for the 
        appointment of individuals who have special or unique 
        qualities which indicate a likelihood of executive 
        success and who would not otherwise be eligible for 
        appointment.
  (d) An individual's initial appointment as a career appointee 
shall become final only after the individual has served a [1-
year] 2-year probationary period as a career appointee. The 
preceding sentence shall not apply to any individual covered by 
section 1599e of title 10.
  (e) Each career appointee shall meet the executive 
qualifications of the position to which appointed, as 
determined in writing by the appointing authority.
  (f) The title of each career reserved position shall be 
published in the Federal Register.
  (g) A career appointee may not be removed from the Senior 
Executive Service or civil service except in accordance with 
the applicable provisions of sections 1215, 3592, 3595, 7532, 
or 7543 of this title.

           *       *       *       *       *       *       *


   CHAPTER 35--RETENTION PREFERENCE, VOLUNTARY SEPARATION INCENTIVE 
PAYMENTS, RESTORATION, AND REEMPLOYMENT

           *       *       *       *       *       *       *


 SUBCHAPTER V--REMOVAL, REINSTATEMENT, AND GUARANTEED PLACEMENT IN THE 
SENIOR EXECUTIVE SERVICE

           *       *       *       *       *       *       *


Sec. 3592. Removal from the Senior Executive Service

  (a) Except as provided in subsection (b) of this section, a 
career appointee may be removed from the Senior Executive 
Service to a civil service position outside of the Senior 
Executive Service--
          (1) during the [1-year] 2-year period of probation 
        under section 3393(d) of this title, or
          (2) at any time for less than fully successful 
        executive performance as determined under subchapter II 
        of chapter 43 of this title,
except that in the case of a removal under paragraph (2) of 
this subsection the career appointee shall, at least 15 days 
before the removal, be entitled, upon request, to an informal 
hearing before an official designated by the Merit Systems 
Protection Board at which the career appointee may appear and 
present arguments, but such hearing shall not give the career 
appointee the right to initiate an action with the Board under 
section 7701 of this title, nor need the removal action be 
delayed as a result of the granting of such hearing.
  (b)(1) Except as provided in paragraph (2) of this 
subsection, a career appointee in an agency may not be 
involuntarily removed--
          (A) within 120 days after an appointment of the head 
        of the agency; or
          (B) within 120 days after the appointment in the 
        agency of the career appointee's most immediate 
        supervisor who--
                  (i) is a noncareer appointee; and
                  (ii) has the authority to remove the career 
                appointee.
  (2) Paragraph (1) of this subsection does not apply with 
respect to--
          (A) any removal under section 4314(b)(3) of this 
        title; or
          (B) any disciplinary action initiated before an 
        appointment referred to in paragraph (1) of this 
        subsection.
  (c) A limited emergency appointee, limited term appointee, or 
noncareer appointee may be removed from the service at any 
time.

           *       *       *       *       *       *       *


SUBPART F--LABOR-MANAGEMENT AND EMPLOYEE RELATIONS

           *       *       *       *       *       *       *


                      CHAPTER 75--ADVERSE ACTIONS

              SUBCHAPTER I--SUSPENSION FOR 14 DAYS OR LESS

Sec. 7501. Definitions

   For the purpose of this subchapter--
          (1) ``employee'' means an individual in the 
        competitive service who is not serving a probationary 
        or trial period under an initial appointment or, except 
        as provided in section 1599e of title 10, 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
          (2) ``suspension'' means the placing of an employee, 
        for disciplinary reasons, in a temporary status without 
        duties and pay.

           *       *       *       *       *       *       *


SUBCHAPTER II--REMOVAL, SUSPENSION FOR MORE THAN 14 DAYS, REDUCTION IN 
             GRADE OR PAY, OR FURLOUGH FOR 30 DAYS OR LESS

Sec. 7511. Definitions; application

  (a) For the purpose of this subchapter--
          (1) ``employee'' means--
                  (A) an individual in the competitive 
                service--
                          (i) who is not serving a probationary 
                        or trial period under an initial 
                        appointment; or
                          (ii) except as provided in section 
                        1599e of title 10, 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;
                  (B) a preference eligible in the excepted 
                service who has completed 1 year of current 
                continuous service in the same or similar 
                positions--
                          (i) in an Executive agency; or
                          (ii) in the United States Postal 
                        Service or Postal Regulatory 
                        Commission; and
                  (C) an individual in the excepted service 
                (other than a preference eligible)--
                          (i) who is not serving a probationary 
                        or trial period under an initial 
                        appointment pending conversion to the 
                        competitive service; or
                          (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;
          (2) ``suspension'' has the same meaning as set forth 
        in section 7501(2) of this title;
          (3) ``grade'' means a level of classification under a 
        position classification system;
          (4) ``pay'' means the rate of basic pay fixed by law 
        or administrative action for the position held by an 
        employee; and
          (5) ``furlough'' means the placing of an employee in 
        a temporary status without duties and pay because of 
        lack of work or funds or other nondisciplinary reasons.
  (b) This subchapter does not apply to an employee--
          (1) whose appointment is made by and with the advice 
        and consent of the Senate;
          (2) whose position has been determined to be of a 
        confidential, policy-determining, policy-making or 
        policy-advocating character by--
                  (A) the President for a position that the 
                President has excepted from the competitive 
                service;
                  (B) the Office of Personnel Management for a 
                position that the Office has excepted from the 
                competitive service; or
                  (C) the President or the head of an agency 
                for a position excepted from the competitive 
                service by statute;
          (3) whose appointment is made by the President;
          (4) who is receiving an annuity from the Civil 
        Service Retirement and Disability Fund, or the Foreign 
        Service Retirement and Disability Fund, based on the 
        service of such employee;
          (5) who is described in section 8337(h)(1), relating 
        to technicians in the National Guard;
          (6) who is a member of the Foreign Service, as 
        described in section 103 of the Foreign Service Act of 
        1980;
          (7) whose position is within the Central Intelligence 
        Agency or the Government Accountability Office;
          (8) whose position is within the United States Postal 
        Service, the Postal Regulatory Commission, the Panama 
        Canal Commission, the Tennessee Valley Authority, the 
        Federal Bureau of Investigation, an intelligence 
        component of the Department of Defense (as defined in 
        section 1614 of title 10), or an intelligence activity 
        of a military department covered under subchapter I of 
        chapter 83 of title 10, unless subsection (a)(1)(B) of 
        this section or section 1005(a) of title 39 is the 
        basis for this subchapter's applicability;
          (9) who is described in section 5102(c)(11) of this 
        title; or
          (10) who holds a position within the Veterans Health 
        Administration which has been excluded from the 
        competitive service by or under a provision of title 
        38, unless such employee was appointed to such position 
        under section 7401(3) of such title.
  (c) The Office may provide for the application of this 
subchapter to any position or group of positions excepted from 
the competitive service by regulation of the Office which is 
not otherwise covered by this subchapter.

           *       *       *       *       *       *       *


                             MINORITY VIEWS

    Democrats strongly oppose H.R. 3023, which would extend the 
probationary period from one year to two years for federal 
employees in the competitive service and the Senior Executive 
Service.
    During the probationary period, federal employees 
essentially have no due process or appeal rights if 
disciplinary action is taken against them. They may be fired 
without notice, they have limited rights to an attorney or 
representative, and they generally may not appeal their 
removals.
    The bill would double the amount of time during which 
federal employees are essentially at-will employees. Due 
process protections are critical to ensuring the integrity of 
the federal civil service by preventing its politicization and 
protecting whistleblowers from retaliation.
    The Majority would take the drastic step of doubling the 
probationary period with no evidence that there is a problem 
that needs to be addressed. The Committee has held no hearings 
on whether federal agencies need a blanket one-year extension 
of the probationary period for every federal job in the 
competitive and senior executive service. This legislation 
appears to be a solution in search of a problem.
    A two-year probationary period for Department of Defense 
civilian employees was recently enacted in the National Defense 
Authorization Act for fiscal year 2016. However, the Defense 
Department did not indicate a need for this change or request 
it in its fiscal year 2016 legislative proposal. Democratic 
Members sent a letter to the House and Senate Committees on 
Armed Services raising concerns that such an extension would 
undermine due process rights, harm whistleblower protections, 
and degrade recruitment and retention.
    Even after the existing probationary period ends, agencies 
may still dismiss poor performers after providing employees a 
chance to improve and ensuring appropriate due process, 
including 30 days' notice, an opportunity to respond, and 
appeal rights.
    These due process protections are necessary to protect 
against arbitrary agency actions, including retaliation against 
whistleblowers, which the Committee has documented as a very 
real danger in the past.
    Before damaging due process and whistleblower rights, the 
Committee should first determine whether an extension of the 
probationary period is needed and, if so, whether it is 
appropriate for all federal service occupations or only certain 
occupations.
    Committee Democrats offered two amendments to address the 
concerns raised by the bill, which were defeated on party-line 
votes. An amendment in the nature of a substitute was offered 
by Ranking Member Cummings which would have required the 
Government Accountability Office to conduct a study of federal 
agencies that have lengthened the employee probationary period 
from one to two years for certain occupations. It also would 
have required GAO to analyze the impact of an increased 
probationary period on each agency's ability to deal with poor 
performers, improve employee productivity, promote recruitment 
and retention, and accomplish its mission.
    Since Congress recently increased the Defense Department's 
probationary period for civilian employees from one to two 
years, the amendment would have required GAO to examine the 
Defense Department as one case study. Gathering this data is a 
necessary first step before deciding to change the law, 
especially since such changes could have damaging effects on 
civil service protections and whistleblower disclosures.
    Rep. Lawrence also offered an amendment which would have 
struck the provisions in the underlying bill and required each 
employing agency to make an affirmative decision in writing 
near the end of an employee's probationary period stating that 
the individual's performance is acceptable. The Office of 
Personnel Management considers the use of an affirmative 
decision to be a leading or best practice in managing the 
performance of employees.

                                        Elijah E. Cummings,
                                                    Ranking Member.

                                  [all]