[House Report 115-415]
[From the U.S. Government Publishing Office]


115th Congress    }                                   {        Report
                        HOUSE OF REPRESENTATIVES
 1st Session      }                                   {       115-415

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



 
             ENSURING A QUALIFIED CIVIL SERVICE ACT OF 2017

                                _______
                                

 November 16, 2017.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

   Mr. Gowdy, from the Committee on Oversight and Government Reform, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 4182]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Oversight and Government Reform, to whom 
was referred the bill (H.R. 4182) to amend title 5, United 
States Code, to modify probationary periods with respect to 
positions within the competitive service and the Senior 
Executive Service, and for other purposes, having considered 
the same, report favorably thereon without amendment and 
recommend that the bill do pass.

                                CONTENTS

                                                                   Page
Committee Statement and Views....................................     2
Section-by-Section...............................................     4
Explanation of Amendments........................................     5
Committee Consideration..........................................     5
Roll Call Votes..................................................     5
Application of Law to the Legislative Branch.....................     7
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................     7
Statement of General Performance Goals and Objectives............     7
Duplication of Federal Programs..................................     7
Disclosure of Directed Rule Makings..............................     7
Federal Advisory Committee Act...................................     7
Unfunded Mandates Statement......................................     7
Earmark Identification...........................................     8
Committee Estimate...............................................     8
Budget Authority and Congressional Budget Office Cost Estimate...     8
Changes in Existing Law Made by the Bill, as Reported............     9
Minority Views...................................................    17

                     Committee Statement and Views


                          PURPOSE AND SUMMARY

    H.R. 4182, the Ensuring a Qualified Civil Service Act of 
2017, or the EQUALS Act of 2017, extends the probationary 
period for appointments to the competitive service and initial 
appointments as supervisors and managers to two years after the 
conclusion of formal training or upon receipt of any applicable 
formal license. The bill also requires a certification by 
agencies at the completion of the probationary period to 
confirm the appointment should be final, extends the 
probationary period for Senior Executive Service members to two 
years, and makes changes to eligibility for employee appeal 
rights to conform to the longer probationary period.

                  BACKGROUND AND NEED FOR LEGISLATION

    Under current law, most new hires in the competitive 
service and initial appointments of managers require a 
probationary period before such appointments become final.\1\ 
Probationary periods normally last for one year after 
appointment.\2\ This time provides probationary employees with 
an opportunity to understand the requirements of the position 
for which they have been conditionally selected and undergo 
proper assessment before becoming a career employee. The 
probationary period also provides the government with an 
opportunity to evaluate an employee's job performance to 
determine if an appointment to the civil service should become 
final.
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    \1\5 U.S.C. Sec. 3321.
    \2\5 C.F.R. Sec. 315.802.
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    During the probationary period, probationers may be removed 
for unsatisfactory performance or conduct via a more expedient 
process. In general, all that is required for an employing 
agency to remove a probationer is a written notice of 
termination, including an explanation as to why the agency 
deems the employee's performance or conduct to be 
inadequate.\3\ Agencies do not have to follow the complex and 
time-consuming removal procedures as they would for non-
probationary employees, and generally probationers may not 
appeal a removal action.\4\
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    \3\5 C.F.R. Sec. 315.804.
    \4\There are limited circumstances in which a probationer can 
appeal a removal action. See 5 C.F.R. Sec. 315.806(b), (d); 29 C.F.R. 
pt. 1617; and 5 U.S.C. Sec. Sec. 1214(a)(3), 1221(b).
---------------------------------------------------------------------------
    Once an appointment becomes final, an employee is covered 
by significant legal protections under the merit system, 
including full appeal rights for removal to the Merit Systems 
Protection Board.\5\ A 2015 Government Accountability Office 
(GAO) report found that under this formal process, removal 
actions for poorly performing employees can take six months to 
a year.\6\ Thus, it is important for agencies to remove 
individuals not suited to Federal service during the 
probationary period. GAO found that in each year from 2004 to 
2013, most employee dismissals for performance took place 
during the probationary period.\7\
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    \5\5 U.S.C. Sec. Sec. 7513, 7701.
    \6\Gov't Accountability Office, GAO-15-191, Improved Supervision 
and Better Use of Probationary Periods are Needed to Address 
Substandard Employee Performance Cover Page (2015) [hereinafter ``GAO 
Probationary Period Report''].
    \7\Id., at 22.
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    The probationary period can be a powerful tool for Federal 
managers to ensure qualified individuals are being appointed to 
Federal service. However, one year is not sufficient for 
employees to demonstrate, and for supervisors to observe and 
assess, all critical aspects of increasingly complex Federal 
positions. GAO found three specific instances in which the one-
year probationary period was insufficient, including:
          1. Complex occupations where individuals on a 
        probationary period spend much of the first year in 
        training before beginning work in their assigned areas;
          2. Occupations that are project-based and where 
        individuals on a probationary period may not have an 
        opportunity to demonstrate all of the skills associated 
        with the position; and
          3. Instances in which individuals on a probationary 
        period often rotate through various offices in the 
        agency and supervisors have only a limited opportunity 
        to assess their performance.\8\
---------------------------------------------------------------------------
    \8\Id., at 12.
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    GAO's findings have been supported by other groups. In a 
congressional hearing earlier this year, the president of the 
Federal Managers Association testified, ``[n]ew employees must 
often master broad and complex policies and procedures to meet 
their agencies' missions, necessitating several months of 
formal training followed by long periods of on-the-job 
instruction. . . . In occupations where training takes 
substantial time, supervisors may only have a few months of 
work to judge employees' performance.''\9\
---------------------------------------------------------------------------
    \9\Empowering Managers--Ideas for a More Effective Federal 
Workforce: Hearing Before the S. Comm. on Homeland Sec. and 
Governmental Affairs, 115th Cong. 9 (2017) (written statement of Renee 
Johnson, Nat'l President, Fed. Managers Ass'n).
---------------------------------------------------------------------------
    In addition, GAO's internal human capital officer has 
increased the length of the probationary period for new 
analysts hired to the agency. This allows new hires to show 
their work skills on different jobs and at different phases of 
each job, which include designing an audit, conducting an 
audit, and writing the report after the audit is complete.\10\
---------------------------------------------------------------------------
    \10\Email from Tim Minelli, Assistant Dir. for Cong. Relations, 
Gov't Accountability Office, to Majority staff, H. Comm. on Oversight 
and Gov't Reform (July 12, 2017, 9:07 a.m.) (on file with the 
Committee).
---------------------------------------------------------------------------
    The bill also addresses the concern that the current 
probationary period is not being used for its intended purpose. 
Federal regulations provide, ``The agency shall utilize the 
probationary period as fully as possible to determine the 
fitness of the employee and shall terminate his services during 
this period if he fails to demonstrate fully his qualifications 
for continued employment.''\11\ GAO found, however, that 
supervisors are often not making performance-related decisions 
about an individual's future likelihood of success with the 
agency during the probationary period. This is in part due to 
supervisors being unaware that an employee's probationary 
period is expiring.\12\
---------------------------------------------------------------------------
    \11\5 C.F.R. Sec. 315.803(a).
    \12\GAO Probationary Period Report, supra note 6, at 11.
---------------------------------------------------------------------------
    The EQUALS Act addresses both of these problems. It extends 
the probationary period for competitive service appointments 
and supervisors to two years after any required formal training 
or licensure process is complete. This ensures that agencies 
have enough time to assess the performance of new employees and 
managers before making their appointments final. It also allows 
new hires more time to show improvement based on performance 
feedback.
    The bill helps improve agency use of the probationary 
period by requiring supervisors to be notified 30 days in 
advance of the scheduled completion of a probationary period. 
Agencies are also required to certify that an employee 
successfully completes the probationary period. Together, these 
provisions will help supervisors make better use of the 
probationary period to remove individuals not fit for Federal 
service.
    Finally, H.R. 4182 also extends the probationary period 
from one year to two years for career appointees to the Senior 
Executive Service. The Senior Executive Service leads the 
Federal workforce. As leaders, the nature of the work required 
of the Senior Executive Service can take longer to assess in 
order to ensure adequate job performance.

                          LEGISLATIVE HISTORY

    On October 31, 2017, Representative James Comer (R-KY) 
introduced H.R. 4182, the Ensuring a Qualified Civil Service 
Act of 2017, with Representative Mark Meadows (R-NC) and 
Representative Jody Hice (R-GA). H.R. 4182 was referred to the 
Committee on Oversight and Government Reform. The Committee 
considered H.R. 4182 at a business meeting on November 2, 2017, 
and ordered the bill favorably reported by a recorded vote of 
19 to 17.
    In the 114th Congress, Representative Ken Buck (R-CO) 
introduced a similar bill, H.R. 3023. On January 12, 2016, the 
Committee ordered H.R. 3023 favorably reported by a recorded 
vote of 20 to 16. The text of H.R. 3023 was subsequently added 
as Title III of H.R. 4361, the Government Reform and 
Improvement Act of 2016, which passed the House by a recorded 
vote of 241 to 181 on July 7, 2016.
    Also in the 114th Congress, S. 1118, the National Defense 
Authorization Act for Fiscal Year 2016, contained a provision 
extending the probationary period for new hires in the 
Department of Defense to two years. On November 25, 2015, then-
President Barack Obama signed S. 1118 into law.\13\
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    \13\Pub. L. No. 114-92 (2015), 129 Stat. 1023, Sec. 1105.
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                           Section-by-Section


Section 1. Short title

    Section 1 establishes the short title of the bill.

Section 2. Extension of probationary period for positions within the 
        competitive service

    Section 2 amends section 3321 of title 5, United States 
Code, to extend the probationary period for appointments in the 
competitive service and initial appointments as a manager or 
supervisor to two years after the completion of required 
training and licensing.
    In addition, changes made to title 5 under this section 
require agencies to: (1) clearly explain the probationary 
period in any job posting or offer of employment; (2) tell 
employees in probationary positions the expectations in order 
to be retained after the probationary period; (3) notify 
supervisors 30 days before the end of a probationary period; 
and (4) certify satisfactory completion of probationary periods 
for employees agencies retain after the end of the period.
    The section takes effect one year after enactment and 
applies only to appointments made after the provision takes 
effect.

Section 3. Extension of probationary period for positions within the 
        Senior Executive Service

    Section 3 amends section 3393(d) of title 5, United States 
Code, to extend the probationary period for initial Senior 
Executive Service career appointments to two years. As with 
Section 2, the section takes effect one year after enactment 
and applies only to appointments made after the provision takes 
effect.

Section 4. Adverse actions

    Section 4 amends section 7501(1) and 7511(a)(1) of title 5, 
United States Code, to clarify an individual in the competitive 
service must both (1) complete a probationary or trial period, 
and (2) complete two years of current continuous employment in 
the same position or similar positions, except a temporary 
appointment of one year or less, to be covered by adverse 
action procedures for misconduct. In the excepted service, a 
preference eligible must complete two years of current 
continuous employment in the same or similar positions. A non-
preference eligible must complete a probationary period and 
complete two years of current continuous service in the same or 
similar positions, except a temporary appointment limited to 
two years or less. Section 4 also amends section 4303(f) of 
title 5, United States Code, to clarify individuals are not 
entitled to appeal a removal or reduction in grade based on 
unacceptable performance to the Merit Systems Protection Board 
until they have completed those requirements. The section takes 
effect one year after enactment and applies only to individuals 
whose periods of continuous service commence after the section 
takes effect.

Section 5. Regulations required

    Section 5 requires the Director of the Office of Personnel 
Management to issue regulations to implement the requirements 
of the bill.

                       Explanation of Amendments

    During Committee consideration of the bill, Representative 
Gerald Connolly (D-VA) offered an amendment in the nature of a 
substitute to require the Comptroller General of the United 
States to conduct a study on extended probationary periods. The 
Connolly amendment was rejected by voice vote.

                        Committee Consideration

    On November 2, 2017, the Committee met in open session and, 
with a quorum being present, ordered the bill favorably 
reported by a record vote of 19 to 17.

                            Roll Call Votes

    There was one roll call vote conducted during Committee 
consideration of H.R. 4182.


              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch where the bill relates to the terms and conditions of 
employment or access to public services and accommodations. 
This bill amends title 5, United States Code, to modify 
probationary periods within the competitive service and the 
Senior Executive Service. As such, this bill does not relate to 
employment or access to public services and accommodations in 
the legislative branch.

  Statement of Oversight Findings and Recommendations of the Committee

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

         Statement of General Performance Goals and Objectives

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

                    Duplication of Federal Programs

    In accordance with clause 2(c)(5) of rule XIII no provision 
of this bill establishes or reauthorizes a program of the 
Federal Government known to be duplicative of another Federal 
program, a program that was included in any report from the 
Government Accountability Office to Congress pursuant to 
section 21 of Public Law 111-139, or a program related to a 
program identified in the most recent Catalog of Federal 
Domestic Assistance.

                  Disclosure of Directed Rule Makings

    Section 5 bill directs the Director of the Office of 
Personnel Management to issue such regulations as are necessary 
to carry out the requirements of the bill.

                     Federal Advisory Committee Act

    The Committee finds that the legislation does not establish 
or authorize the establishment of an advisory committee within 
the definition of Section 5(b) of the appendix to title 5, 
United States Code.

                      Unfunded Mandates Statement

    Pursuant to section 423 of the Congressional Budget and 
Impoundment Control Act of 1974 (Pub. L. 113-67) the Committee 
has included a letter received from the Congressional Budget 
Office below.

                         Earmark Identification

    This bill does not include any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of rule XXI of the House of Representatives.

                           Committee Estimate

    Pursuant to clause 3(d)(2)(B) of rule XIII of the Rules of 
the House of Representatives, the Committee includes below a 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974.

   New Budget Authority and Congressional Budget Office Cost Estimate

    Pursuant to clause 3(c)(3) of rule XIII of the House of 
Representatives, the cost estimate prepared by the 
Congressional Budget Office and submitted pursuant to section 
402 of the Congressional Budget Act of 1974 is as follows:

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, November 13, 2017.
Hon. Trey Gowdy,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 4182, the Ensuring 
a Qualified Civil Service Act of 2017.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Dan Ready.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

H.R. 4182--Ensuring a Qualified Civil Service Act of 2017

    H.R. 4182 would extend the probationary period for members 
of the senior executive service from one year to two years and 
would require a probationary period of at least two years for 
most members of the civil service. The bill also would increase 
to two years the amount of time civil servants must be employed 
before being afforded certain prerogatives when being 
disciplined, including advance notice of the following actions: 
suspensions, pay reductions, furloughs, or removals. In 
addition, agencies would be required to provide certain 
notifications regarding the terms of probationary periods to 
job postings, employees in their probationary period, and their 
supervisor.
    Enacting the bill would not generally change the number of 
employees in the federal government. Furthermore, the necessary 
tracking and administrative procedures regarding probationary 
periods are already in place. Therefore, CBO estimates that 
implementing the legislation would have no significant 
budgetary effect.
    Enacting H.R. 4182 would not affect direct spending or 
revenues; therefore pay-as-you-go procedures do not apply.
    CBO estimates that, enacting H.R. 4182 would not increase 
net direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2028.
    H.R. 4182 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    The CBO staff contact for this estimate is Dan Ready. The 
estimate was approved by H. Samuel Papenfuss, Deputy Assistant 
Director for Budget Analysis.

         Changes in Existing Law Made by the Bill, as Reported

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

                      TITLE 5, UNITED STATES CODE




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

           *       *       *       *       *       *       *


SUBPART B--EMPLOYMENT AND RETENTION

           *       *       *       *       *       *       *


CHAPTER 33--EXAMINATION, SELECTION, AND PLACEMENT

           *       *       *       *       *       *       *



SUBCHAPTER I--EXAMINATION, CERTIFICATION, AND APPOINTMENT

           *       *       *       *       *       *       *



Sec. 3321. Competitive service; probationary period

  (a) [The President] Subject to subsections (c) and (d), the 
President may take such action, including the issuance of 
rules, regulations, and directives, as shall provide as nearly 
as conditions of good administration warrant for a period of 
probation--
          (1) before an appointment in the competitive service 
        becomes final; and
          (2) before initial appointment as a supervisor or 
        manager becomes final.
  (b) An individual--
          (1) who has been transferred, assigned, or promoted 
        from a position to a supervisory or managerial 
        position, and
          (2) who does not satisfactorily complete the 
        probationary period under subsection (a)(2) of this 
        section,
shall be returned to a position of no lower grade and pay than 
the position from which the individual was transferred, 
assigned, or promoted. Nothing in this section prohibits an 
agency from taking an action against an individual serving a 
probationary period under subsection (a)(2) of this section for 
cause unrelated to supervisory or managerial performance.
  (c)(1) The length of a probationary period established under 
paragraph (1) or (2) of subsection (a) shall--
          (A) with respect to any position that requires formal 
        training, begin on the date of appointment to the 
        position and end on the date that is 2 years after the 
        date on which such formal training is completed;
          (B) with respect to any position that requires a 
        license, begin on the date of appointment to the 
        position and end on the date that is 2 years after the 
        date on which such license is granted; and
          (C) with respect to any position not covered by 
        subparagraph (A) or (B), be a period of 2 years 
        beginning on the date of the appointment to the 
        position.
  (2) In paragraph (1)--
          (A) the term ``formal training'' means, with respect 
        to any position, a training program required by law, 
        rule, or regulation, or otherwise required by the 
        employing agency, to be completed by the employee 
        before the employee is able to successfully execute the 
        duties of the applicable position; and
          (B) the term ``license'' means a license, 
        certification, or other grant of permission to engage 
        in a particular activity.
  (d) The head of each agency shall, in the administration of 
this section, take appropriate measures to ensure that--
          (1) any announcement of a vacant position within the 
        agency and any offer of appointment made to any 
        individual with respect to any such position clearly 
        states the terms and conditions of any applicable 
        probationary period, including any formal training 
        period and any license requirement;
          (2) any individual who is required to complete a 
        probationary period under this section receives timely 
        notice of any requirements, including performance 
        requirements, that must be met in order to 
        satisfactorily complete such period;
          (3) any supervisor or manager of an individual who is 
        required to complete a probationary period under this 
        section receives notification of the end date of such 
        period not less than 30 days before such date; and
          (4) if the head decides to retain an individual after 
        the completion of a probationary period under this 
        section, the head submits a certification to that 
        effect, supported by a brief statement of the basis for 
        the certification, in such form and manner as the 
        President may by regulation prescribe.
  [(c) Subsections (a) and (b)] (e) Subsections (a) through (d) 
of this section shall not apply with respect to appointments in 
the Senior Executive Service or the Federal Bureau of 
Investigation and Drug Enforcement Administration Senior 
Executive Service, or any individual covered by section 1599e 
of title 10.

           *       *       *       *       *       *       *


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

           *       *       *       *       *       *       *


Sec. 3393. Career appointments

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

           *       *       *       *       *       *       *


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

           *       *       *       *       *       *       *


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

           *       *       *       *       *       *       *


Sec. 3592. Removal from the Senior Executive Service

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

           *       *       *       *       *       *       *


SUBPART C--EMPLOYEE PERFORMANCE

           *       *       *       *       *       *       *


CHAPTER 43--PERFORMANCE APPRAISAL

           *       *       *       *       *       *       *


SUBCHAPTER I--GENERAL PROVISIONS

           *       *       *       *       *       *       *


Sec. 4303. Actions based on unacceptable performance

  (a) Subject to the provisions of this section, an agency may 
reduce in grade or remove an employee for unacceptable 
performance.
  (b)(1) An employee whose reduction in grade or removal is 
proposed under this section is entitled to--
          (A) 30 days' advance written notice of the proposed 
        action which identifies--
                  (i) specific instances of unacceptable 
                performance by the employee on which the 
                proposed action is based; and
                  (ii) the critical elements of the employee's 
                position involved in each instance of 
                unacceptable performance;
          (B) be represented by an attorney or other 
        representative;
          (C) a reasonable time to answer orally and in 
        writing; and
          (D) a written decision which--
                  (i) in the case of a reduction in grade or 
                removal under this section, specifies the 
                instances of unacceptable performance by the 
                employee on which the reduction in grade or 
                removal is based, and
                  (ii) unless proposed by the head of the 
                agency, has been concurred in by an employee 
                who is in a higher position than the employee 
                who proposed the action.
  (2) An agency may, under regulations prescribed by the head 
of such agency, extend the notice period under subsection 
(b)(1)(A) of this section for not more than 30 days. An agency 
may extend the notice period for more than 30 days only in 
accordance with regulations issued by the Office of Personnel 
Management.
  (c) The decision to retain, reduce in grade, or remove an 
employee--
          (1) shall be made within 30 days after the date of 
        expiration of the notice period, and
          (2) in the case of a reduction in grade or removal, 
        may be based only on those instances of unacceptable 
        performance by the employee--
                  (A) which occurred during the 1-year period 
                ending on the date of the notice under 
                subsection (b)(1)(A) of this section in 
                connection with the decision; and
                  (B) for which the notice and other 
                requirements of this section are complied with.
  (d) If, because of performance improvement by the employee 
during the notice period, the employee is not reduced in grade 
or removed, and the employee's performance continues to be 
acceptable for 1 year from the date of the advance written 
notice provided under subsection (b)(1)(A) of this section, any 
entry or other notation of the unacceptable performance for 
which the action was proposed under this section shall be 
removed from any agency record relating to the employee.
  (e) Any employee who is--
          (1) a preference eligible;
          (2) in the competitive service; or
          (3) in the excepted service and covered by subchapter 
        II of chapter 75,
and who has been reduced in grade or removed under this section 
is entitled to appeal the action to the Merit Systems 
Protection Board under section 7701.
  (f) This section does not apply to--
          (1) the reduction to the grade previously held of a 
        supervisor or manager who has not completed the 
        probationary period under section 3321(a)(2) of this 
        title,
          (2) the reduction in grade or removal of an employee 
        in the competitive service who is serving a 
        probationary or trial period under an initial 
        appointment or who has not completed [1 year of 
        current] 2 years of current continuous employment under 
        other than a temporary appointment limited to 1 year or 
        less,
          (3) the reduction in grade or removal of an employee 
        in the excepted service who has not completed [1 year] 
        2 years of current continuous employment in the same or 
        similar positions, or
          (4) any removal or demotion under section 714 of 
        title 38.

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SUBPART F--LABOR-MANAGEMENT AND EMPLOYEE RELATIONS

           *       *       *       *       *       *       *


CHAPTER 75--ADVERSE ACTIONS

           *       *       *       *       *       *       *


              SUBCHAPTER I--SUSPENSION FOR 14 DAYS OR LESS

Sec. 7501. Definitions

   For the purpose of this subchapter--
          (1) ``employee'' means an individual in the 
        competitive service who is not serving a probationary 
        or trial period under an initial appointment [or, 
        except] and, except as provided in section 1599e of 
        title 10, who has completed [1 year of current] 2 years 
        of current continuous employment in the same or similar 
        positions under other than a temporary appointment 
        limited to 1 year or less; and
          (2) ``suspension'' means the placing of an employee, 
        for disciplinary reasons, in a temporary status without 
        duties and pay.

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

Sec. 7511. Definitions; application

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

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                             MINORITY VIEWS

    Democrats strongly oppose H.R. 4182, which would extend the 
probationary period from one year to two years for federal 
employees in the competitive service and the Senior Executive 
Service.
    During the probationary period, federal employees 
essentially have no due process or appeal rights if 
disciplinary action is taken against them. They may be fired 
without notice, they have limited rights to an attorney or 
representative, and they generally may not appeal their 
removals.
    The bill would double the amount of time during which 
federal employees are essentially at-will employees. Due 
process protections are critical to ensuring the integrity of 
the federal civil service by preventing its politicization and 
protecting whistleblowers from retaliation.
    The Majority would take the drastic step of doubling the 
probationary period with no evidence that there is a problem 
that needs to be addressed. The Committee has held no hearings 
on whether federal agencies need a blanket one-year extension 
of the probationary period for every federal job in the 
competitive and senior executive service. This legislation 
appears to be a solution in search of a problem.
    A two-year probationary period for Department of Defense 
civilian employees was recently enacted in the National Defense 
Authorization Act for fiscal year 2016. However, the Defense 
Department did not indicate a need for this change or request 
it in its fiscal year 2016 legislative proposal. Democratic 
Members sent a letter to the House and Senate Committees on 
Armed Services raising concerns that such an extension would 
undermine due process rights, harm whistleblower protections, 
and degrade recruitment and retention.
    Even after the existing probationary period ends, agencies 
may still dismiss poor performers after providing employees a 
chance to improve and ensuring appropriate due process, 
including 30 days' notice, an opportunity to respond, and 
appeal rights.
    These due process protections are necessary to protect 
against arbitrary agency actions, including retaliation against 
whistleblowers, which the Committee has documented as a very 
real danger in the past.
    Before damaging due process and whistleblower rights, the 
Committee should determine whether an extension of the 
probationary period is needed and, if so, whether it is 
appropriate for all federal service occupations or only certain 
occupations.
    During Committee consideration of the bill, Rep. Connolly 
offered an amendment in the nature of a substitute that would 
have required the Government Accountability Office to conduct a 
study of federal agencies that have lengthened the employee 
probationary period from one to two years for certain 
occupations. It also would have required GAO to analyze the 
impact of an increased probationary period on each agency's 
ability to deal with poor performers, improve employee 
productivity, promote recruitment and retention, and accomplish 
its mission.
    Since Congress recently increased the Defense Department's 
probationary period for civilian employees from one to two 
years, the amendment would have required GAO to examine the 
Defense Department as one case study. Gathering this data is a 
necessary first step before deciding to change the law, 
especially since such changes could have damaging effects on 
civil service protections, whistleblower disclosures, and lead 
to the potential politicization of the federal workforce.
                                   Elijah E. Cummings,
                                           Ranking Member.

                                  [all]