Fedweek

The House has passed a bill (HR-5314) containing a number of government reform proposals including strengthening whistleblower protections for federal employees and barring a future attempt to move certain employees from the competitive service to a new excepted “Schedule F.”

The measure contains provisions that have advanced through committee or the full House – some with substantial bipartisan support, however the composite bill was passed almost completely along party lines.

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Regarding whistleblowers, the bill would make clear that no federal government employee, up to and including the President, may interfere with or retaliate against a federal employee sharing information with Congress; bar agencies from launching retaliatory investigations in certain situations; define certain types of furloughs as retaliatory actions; prohibit retaliation against an employee who makes whistleblowing-type disclosures to a supervisor; broaden the categories of covered employees to include noncareer Senior Executive Service employees, Public Health Service officers or applicants, and the National Oceanic and Atmospheric Administration’s commissioned officer corps.

It also would speed up consideration of requests for a delay in a personnel action the employee considers retaliatory pending further investigations; grant whistleblowers access to a jury trial in federal district court if the MSPB does not issue a decision in 180 days (or 240 days for complex cases); and clarify that whistleblowers who prevail are entitled to recover attorney fees and other relief such as training, restoration of seniority, or a promotion consistent with the employee’s record.

Another provision would prevent a repeat of a bid the Trump administration made last year to shift career positions involved in making or carrying out policy or advising political appointees on policy issues into a new excepted service Schedule F. Under that order—which President Biden quickly revoked after taking office—such employees would have lost their civil service appeal rights and union representation rights and the positions could have been filled by direct appointment without competition, much like political appointees.

No employees were converted in the several months between that order being issued and being revoked, although agencies did start the process of identifying such positions. Estimates of how many employees could have been affected varied widely but could have been in the tens of thousands or more.

The bill also would strengthen protections for agency inspectors general by defining the grounds on which they may be suspended or fired; require that Congress be notified and given an explanation of such actions; and generally require that nominations be made within seven months to fill any vacancies.

It further would strengthen enforcement of the Hatch Act against political appointees by stating that when the OSC finds a Hatch Act violation by a political appointee, the President would have to report within three months on any disciplinary action taken against them. If no action was taken, the OSC could bring a complaint before the MSPB as it does for career federal employees and the merit board could impose a fine of up to $50,000. It also would require public reporting of findings and outcomes of such cases and specify that certain employees of the offices of the President and Vice President are subject to the law.

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