Following is a House report on a pending bill to double the standard federal employee probationary period to two years, reflecting differing views of that period by Republican sponsors of the bill versus Democratic opponents.

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. Probationary periods normally last for one year after appointment. 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.

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. 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. 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. 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. 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. 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. Probationary periods normally last for one year after appointment. 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.

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. 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. 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. 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. 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.

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.

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.’’  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. 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.’’  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. 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.
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.

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.