Fedweek

The House Oversight and Government Reform Committee has passed bills to tighten the deadlines in the federal workplace disciplinary notice and appeals process and lower the bar for agencies to prevail, measures that might amount to the major push on those policies for the remainder of this Congress.

Among other provisions, HR-559 would shorten the notice, response, final agency decision and appeal timeframes, allow performance-based discipline without a performance improvement period, exclude from negotiated grievance-arbitration procedures cases involving discipline or RIFs, and allow an agency to claw back a bonus already paid after learning later of performance or misconduct problems during the time the bonus covers. Also, at MSPB an agency would have to show only that “substantial” evidence supports its decision in either conduct or performance cases; currently in performance cases management must show that the higher “preponderance” of the evidence supports it. MSPB would have only 30 days to issue a decision or else the agency would prevail by default.

It also would require that probationary periods for all competitive service positions last two years, rather than one, and not start until after the newly hired employee has completed any required training. Two years already is required at DoD and in excepted service positions.

A second bill, HR-6391, would require that the MSPB charge a fee when employees file an appeal and also would allow so-called “summary judgment” decisions without a full hearing.

Approval of the measures represents the most substantial step to apply provisions enacted last year for the VA across government, which has been expected since that law passed. The Trump administration has called for a major rewrite of disciplinary and appeals processes and has said that a legislative proposal toward that end would be made in time for Congress to act before the elections. No such proposal has been made yet, though, and with working time already running short the House bills might effectively become the vehicle for that rewrite.

A recent executive order contained some similar provisions, including that performance improvement periods should generally last no more than 30 days, that agencies should consider using the misconduct disciplinary process in performance-related cases, and that they should make a final decision on proposed discipline for misconduct within 15 days of receiving the employee’s response. In unionized workplaces, agencies are not to agree to contrary provisions during bargaining.

That order did not contain some other provisions that would require a change in law, including shortening time to appeal to MSPB. But it went farther in some other ways by setting new government-wide standards including that agencies need not use progressive discipline; that discipline need not mirror what was done previously to a different employee in the same situation; and that agencies should take into account all of an employee’s past misconduct, not only similar past misconduct.