Issue Briefs

Following are key provisions of the DoD authorization bill now ready for final voting in Congress that would affect a range of personnel policies, some of them specific to DoD and others government-wide.

Defense Advanced Research Projects Agency personnel management authority (sec. 1101)

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The Senate bill contained a provision (sec. 1102) that would increase the number of personnel eligible to be hired under the personnel management authority to attract experts in science and engineering under section 1599h of title 10, United States Code, in the Defense Advanced Research Projects Agency (DARPA) by 30, bringing the total for DARPA from 100 to 130, and decreasing the number of such positions available to the laboratories of the military departments by 30, from 40 to 10.

The House amendment contained a similar provision (sec. 1101) that would increase the number of these positions available to DARPA by 40, bringing its total to 140, with no decrease in the number of positions available to the laboratories.

The Senate recedes.

Report on the probationary period for Department of Defense employees (sec. 1102) The House amendment contained a provision (sec. 1102) that would amend section 1599e of title 10, United States Code, to change the probationary period for Department of Defense civilian employees from 2 years to 1 year.

The Senate bill contained no similar provision.

The Senate recedes with an amendment that would require the Secretary of Defense to conduct an independent review of the probationary periods applicable to Department of Defense employees. The amendment would also require the Secretary of Defense to submit a report detailing the results of the review to the Committees on Armed Services of the Senate and House of Representatives, the Committee on Oversight and Reform of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs of the Senate.

Civilian personnel management (sec. 1103)

The House amendment contained a provision (sec. 1103) that would amend section 129 of title 10, United States Code, to clarify that civilian personnel of the Department of Defense may not be managed on the basis of man-years, end strength, or fulltime equivalent positions, or maximum number of employees, and instead will be managed based on the total force management policies and procedures established under section 129a of title 10, United States Code, the workload required to carry out the functions and activities of the Department, and the funds made available to the Department for each fiscal year.

The Senate bill contained no similar provision.

The Senate recedes with an amendment that would prohibit the Secretary of Defense from managing Department of Defense civilian personnel primarily on the basis of man-years or end strength.

One-year extension of temporary authority to grant allowances, benefits, and gratuities to civilian personnel on official duty in a combat zone (sec. 1104)

The Senate bill contained a provision (sec. 1103) that would extend by 1 year the discretionary authority of the head of a Federal agency to provide allowances, benefits, and gratuities comparable to those provided to members of the Foreign Service to the agency’s civilian employees on official duty in a combat zone.

The House bill contained an identical provision (sec.1104).

The conference agreement contains this provision.

One-year extension of authority to waive annual limitation on premium pay and aggregate limitation on pay for Federal civilian employees working overseas (sec. 1105)

The Senate bill contained a provision (sec. 1104) that would amend section 1101 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (Public Law 110–417), as most recently amended by section 1104 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law 115–232), to extend through 2020 the authority of heads of executive agencies to waive limitations on the aggregate of basic and premium pay of employees who perform work in an overseas location that is in the area of responsibility of the commander of U.S. Central Command (CENTCOM), or a location that was formerly in CENTCOM but is now in the area of responsibility of the Commander, U.S. Africa Command, in support of a military operation or an operation in response to a declared emergency.

The House amendment contained a similar provision (sec. 1105).

The House recedes.

Performance of civilian functions by military personnel (sec. 1106)

The House amendment contained a provision (sec. 1106) that would amend section 129a of title 10, United States Code, to ensure that before the Secretary of a military department directs military personnel to perform the functions of civilian personnel, the military department concerned is in compliance with section 129 of title 10, United States Code.

The Senate bill contained no similar provision.

The Senate recedes.

Extension of direct hire authority for domestic industrial base facilities and Major Range and Test Facilities Base (sec. 1107)

The House amendment contained a provision (sec. 1107) that would amend section 1125 of the National Defense Authorization Act for Fiscal Year 2017 (Public Law 114–328) to extend the authority of the Secretary of Defense to use direct hire procedures for civilian personnel at domestic defense industrial base facilities and the Major Range and Test Facilities Base until 2025.

The Senate bill contained no similar provision.

The Senate recedes.

The conferees note Section 1111 of the National Defense Authorization Act for Fiscal Year 2017 (Public Law 114-328) repealed the authority of the Secretaries of the military departments to waive the restriction on the appointment of retired members of the Armed Forces to positions in the civil service in the Department of Defense within 180 days of a servicemember’s retirement based on a state of national emergency.

The conferees remain supportive of this change and note the relevant statute provides a straightforward process to the Secretaries of the military departments in the event that they wish to hire retired servicemembers within the 180-day postretirement timeframe. The conferees urge the Department of Defense to make full use of the existing, and longstanding, process for hiring recently retired servicemembers, consistent with applicable law, policy, and merit principles.

Authority to provide additional allowances and benefits for certain Defense Clandestine Service employees (sec. 1108)

The House amendment contained a provision (sec. 1108) that would authorize the provision of additional allowances and benefits for certain Defense Intelligence Agency, Defense Clandestine Service employees located in the United States, limited to 125 covered employees per year for locations with living costs determined by the Secretary of Defense to be equal to or higher than the District of Columbia.

The Senate bill contained no similar provision.

The Senate recedes.

Modification of direct hire authorities for the Department of Defense (sec. 1109)

The House amendment contained a provision (sec. 1111) that would amend section 9905 of title 5, United States Code, by consolidating direct hiring authorities for the following positions: (1) scientific, technical, engineering, mathematics positions within the defense acquisition workforce; (2) scientific, technical, engineering, mathematics positions working outside a scientific and technology reinvention laboratory; (3) medical or health professional positions; (4) childcare services positions; (5) financial management, accounting, auditing, actuarial, cost estimation, operational research, or business or business administration positions; and (6) Department of Defense business transformation and management innovation positions.

The consolidation of these direct hiring authorities would sunset on September 30, 2025. In addition, this provision would require the Secretary of Defense, in coordination with the Director of the Office of Personnel Management, to contract with a federally funded research and development center and submit a report to Congress by February 1, 2021, on improving competitive hiring at the Department of Defense.

The Senate bill contained no similar provision.

The Senate recedes with an amendment that would remove the requirement for the Department of Defense to contract with a Federally Funded Research and Development Center to complete the required report.

Designating certain FEHBP and FEGLI services provided by Federal employees as excepted services under the Anti-Deficiency Act (sec. 1110)

The House amendment contained a provision (sec. 1113) that would amend sections 8905 and 8702 of title 5, United States Code, to designate certain Federal Employees Health Benefits Program (FEHBP) and Federal Employees Group Life Insurance (FEGLI) Program services provided by Federal employees as excepted services under the Anti-Deficiency Act.

The Senate bill contained no similar provision.

The Senate recedes.

Continuing supplemental dental and vision benefits and long-term care insurance coverage during a Government shutdown (sec. 1111)

The House amendment contained a provision (sec. 1114) that would amend sections 8956, 8986, and 9003 of title 5, United States Code, to authorize continuing coverage of supplemental dental and vision benefits and long-term care insurance during a government shutdown.

The Senate bill contained no similar provision.

The Senate recedes.

Limitation on transfer of Office of Personnel Management (sec. 1112)

The House amendment contained a provision (sec. 1116) that would prohibit the President or his designee from transferring, transitioning, merging, or consolidating any functions, responsibilities, information technology systems, staff, resources, or records of the Office of Personnel Management (OPM) with the General Services Administration, the Office of Management and Budget, or the Executive Office of the President.

The Senate bill contained no similar provision.

The Senate recedes with an amendment that would direct OPM to contract with the National Academy of Public Administration (NAPA) for the conduct of a comprehensive study and report on the full panoply of OPM missions and functions; the challenges associated with the Office’s execution of same; and options and recommended courses of action for addressing those challenges.

Not later than 180 days subsequent to its receipt of the NAPA report, OPM would be required to submit to the appropriate Committees of Congress its views on the report, any recommendations for change in the structure, functions, responsibilities, and authorities of OPM, a business case analysis setting forth the operational efficiencies and cost savings associated with any such change, and a proposal for legislative or administrative actions required to effect the change proposed. The amendment would preclude the assignment, transfer, transition, merger, or consolidation of any function, responsibility, authority, service, system, or program assigned in law to OPM, to or with the General Services Administration, the Office of Management and Budget, or the Executive Office of the President, until on or after the date that is 180 days after the date on which OPM submits its views on the NAPA report to Congress, and subject to the enactment of any legislation required.

Assessment of Accelerated Promotion Program suspension (sec. 1113)

The House amendment contained a provision (sec. 1118) that would require the Secretary of the Navy to enter into an agreement with a federally funded research and development center to conduct an assessment of the impacts resulting from the Navy’s suspension in 2016 of the Accelerated Promotion Program.

The Senate bill contained no similar provision.

The Senate recedes with a technical amendment.

Reimbursement for Federal, State, and local income taxes incurred during travel, transportation, and relocation (sec. 1114)

The Senate bill contained a provision (sec. 1105) that would amend section 5724b of title 5, United States Code, to authorize Federal agencies to reimburse individuals associated with the Federal civil service for all taxes incurred as a result of travel, transportation, or relocation expenses reimbursed, or furnished in-kind, by the agency concerned.

The House amendment contained a similar provision (sec. 1119).

The House recedes with an amendment that would authorize the Federal agencies to reimburse individuals for taxes incurred on or after January 1, 2018.

Clarification of limitation on expedited hiring authority for post-secondary students (sec. 1115)

The House amendment contained a provision (sec. 1120) that would amend section 3116(d) of title 5, United States Code, to limit the total number of students eligible to be appointed under the expedited hiring authority for post-secondary students to no more than 15 percent of the number of students that the agency head appointed during the previous fiscal year at the GS- 11 level or below.

The Senate bill contained no similar provision.

The Senate recedes.

Modification of temporary assignments of Department of Defense employees to a private-sector organization (sec. 1116)

The Senate bill contained a provision (sec. 1101) that would amend section 1599g (e)(2)(A) of title 10, United State Code, to allow the Department of Defense to temporarily transfer or reassign other personnel within the Department to perform the normal duties and functions of employees who are participating in a public-private talent exchange.

The House amendment contained no similar provision.

The House recedes.

Extension of authority for part-time reemployment (sec. 1117)

The conference agreement includes a provision that would extend, for 5 years, the authority of federal agencies to reemploy retired federal civilian employees under limited conditions, without offset of annuity against salary, for certain specified purposes.

SUBTITLE B—FAIR CHANCE ACT Short title (sec. 1121-1124)

The House amendment contained several provisions(sec. 1131 through sec. 1134) that would prohibit Federal agencies and contractors from making inquiries regarding a job applicants’ criminal history before extending a conditional offer of employment.

The Senate bill contained no similar provision.

The Senate recedes.

LEGISLATIVE PROVISIONS NOT ADOPTED

Prohibited personnel practices

The House amendment contained a provision (sec. 1109) that would amend section 2302 of title 5, United States Code, to prohibit Federal employees from discriminating for or against interns or applicants for internships on the basis of race, color, religion, sex, national origin, age, or handicapping condition.

The Senate bill contained no similar provision.

The House recedes.

Enhancement of antidiscrimination protections for Federal employees

The House amendment contained a provision (sec. 1110) that would amend section 2301 of title 5, United States Code, to require Federal agencies to display publicly any findings of discrimination or retaliation within the agency concerned. The provision would modify congressional reporting requirements related to Federal employee antidiscrimination and retaliation by authorizing electronic submittal of reports and requiring a report of disciplinary actions initiated against Federal employees as a result of a violation of applicable antidiscrimination or retaliation policies. The provision would also require each Federal agency to establish a discrimination complaint tracking system. The provision would also require notations in employee personnel records of any adverse action taken as a result of an act of discrimination or retaliation. The provision would also require each Federal agency to establish an impartial Equal Employment Opportunity Program that is independent of the agency’s Human Capital or General Counsel and reports directly to the head of the agency. The provision would also require the Equal Employment Opportunity Commission to refer any findings of discrimination or retaliation within a Federal agency to the Office of Special Counsel within 30 days.

The Senate bill contained no similar provision.

The House recedes.

Permitted disclosures by whistleblowers

The House amendment contained a provision that would amend section 2302(b)(8)(B) of title 5, United States Code, to permit whistleblowers to report fraud, waste, or abuse to the Inspector General of an agency, a supervisor in the employee’s direct chain of command, or to an employee designated to receive such disclosures.

The Senate bill contained no similar provision.

The House recedes.

Interim stay authority to protect whistleblowers

The House amendment contained a provision (sec. 1115) that would authorize the General Counsel of the Merit Systems Protection Board to order a 45-day stay of any personnel action, given grounds to believe the action is a prohibited personnel practice (including agency reprisal against a whistleblower).

The General Counsel could take such action during the period beginning on the date of the enactment of this Act and ending on the first day thereafter that an individual is confirmed by the Senate as a member of the Board. Further, under circumstances in which the Board lacks the number of properly appointed members required to comprise a quorum, any remaining member of the Board would be authorized to execute certain Board functions.

The Senate bill contained no similar provision.

The House recedes.

Review of Standard Occupational Classification System

The House amendment contained a provision (sec. 1117) that would require the Director of the Office of Management and Budget to categorize public safety telecommunicators as a protective service occupation under the Standard Occupational Classification System.

The Senate bill contained no similar provision.

The House recedes.