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By Amy Johnson, LDS 406

Information contained in this article is not original and is from numerous sources. A version of this article can be found at the following links:   

• https://www.whitehouse.gov/presidential-actions/executive-order-promoting-accountability-streamlining-removal-procedures-consistent-merit-system-principles/
  
• https://public-inspection.federalregister.gov/2020-20427.pdf 
  
• https://www.govexec.com/management/2020/10/opm-finalizes-rules-trump-executive-order-ease-firing-and-discipline-feds/169333/

Two bills currently moving through Congress would make it easier for Federal managers to take action when an employee is simply not getting the job done. The Modern Employment Reform, Improvement, and Transformation (MERIT) Act and the Merit Systems Protection Board (MSPB) Reauthorization Act would strip away several layers of red tape that insulate Federal employees from accountability.

Holding Federal employees accountable is essentially impossible. They have the highest job security of any sector of the economy. In fact, out of a Federal nonmilitary workforce of 2.1 million, only 10,000 persons were fired as of March 2020. One reason for this is the cumbersome process managers must endure to fire a single employee. Multiple appeals involving as many as four separate agencies, as well as union representatives, are not uncommon. This process can last years, even in the most cut-and-dry cases.

Faced with such obstacles, Federal managers often let misconduct go unaddressed.

How Two Bills Would Fix the Problem

The process for firing a Federal employee is laden with speed bumps and roadblocks.

One of the most time-consuming requirements a Federal manager with a problem employee faces is developing a performance improvement plan, which is meant to give the employee one last chance to correct his or her behavior. It rarely has the desired effect. Dr. John York, Former Policy Analyst, Simon Center for Principles and Politics stated only 35 percent of Federal managers believe poor performers make a serious effort to use the performance improvement period to improve their performance. The MERIT Act cuts this requirement.

The performance improvement plan requirement is just one of many built-in delays that slow down any disciplinary actions to a crawl. Today, employees must be notified 30 days in advance of a suspension, demotion, or termination. The MERIT Act would cut that time in half. Currently, employees have 30 days to appeal an adverse action to the MSPB. The new deadline would be 10 days.

In the Federal Government, firing an employee is the easy part. Keeping that person fired is where things get difficult. Federal employees can appeal any serious disciplinary action to two different agencies (the Merit Systems Protection Board and the Equal Employment Opportunity Commission), enlist the legal expertise of a third agency (the Office of Special Counsel), and, of course, involve their union representative.

The MSPB Reauthorization Act would clear some of the land mines from this procedural battlefield.
For starters, the MERIT Act would sideline Federal employees’ unions. The bill would prohibit employees fired for misconduct, or let go due to downsizing (referred to as a “reduction in force” in the Federal Government), from making a union grievance. Employees would still be able to appeal adverse actions to the MSPB, but if the MSPB Reauthorization Act passes, they would need to meet a higher evidentiary standard to win.

Today, an agency must justify an adverse action by a preponderance of the evidence, meaning the balance of the evidence favors the agency’s position. If the MSPB Reauthorization Act passes, an agency must support its decision only with substantial evidence—the lowest evidentiary burden in civil cases.

Under the terms of the MSPB Reauthorization Act, the Merit Systems Protection Board would not be able to second-guess the severity of the punishment an agency takes against an employee. Today, even if an employee is clearly guilty of misconduct or chronic poor performance, the MSPB can overturn a punishment it finds to be too harsh given an employee’s past performance, punishments doled out for similar offenses, or extenuating circumstances that help explain an employee’s behavior. Under the new law, the MSPB would no longer have this discretion.

The MERIT Act would also make it much easier let go of new employees when agencies make a bad hire. The bill would lengthen the probationary period for new hires from one year to two for most Federal employees. During this period, an employee can essentially be fired at will and cannot appeal a demotion, suspension, or firing.

Good workers do not want to be dragged down or asked to pick up the slack for bad employees. In fact, when President Donald Trump recently issued three executive orders that made it easier to fire poorly performing government employees, a majority of public-sector workers were on board.