New Bills for Shorter Appeals and MSPB Fees

Jul 20, 2018

appeals

The House Oversight and Government Reform Committee cleared two pieces of legislation. Federal employees may see more significant changes to the current disciplinary appeals process with their agencies and the Merit Systems Protection Board than before.

The Modern Employment Reform Improvement and Transformation (MERIT) Act would shorten the disciplinary appeals process for many federal employees. It allows agency heads to propose an adverse action and give employees a chance to respond within 7-21 days. Employees can also appeal a firing to the MSPB, but only within the first 30 days. MSPB would have 30 days to issue a decision and if they can’t meet the 30-day deadline, the decision from the employees’ agency would stand.

This bill would extend probationary periods for most hourly hired federal employees and senior executives from 1 year to 2.

“Extending the probationary period gives employees the time they need to demonstrate proficiency in their roles before supervisors have to make a decision about whether or not they’re qualified to become permanent employees,” said Rep. James Comer (R-Ky).

The legislation would also:

  • Prohibit employees from using the negotiated grievance process to appeal a disciplinary action or reduction in force (RIF).
  • Change procedures for notifying and appealing a furlough.
  • Reduce the annuity for a federal employee ultimately convicted of a felony and fired from civil service.
  • Authorize federal agencies to recoup bonuses or performance awards paid to employees/executives.

Another Act

Another bill passed was The MSPB Reauthorization Act. This bill reauthorizes the agency for the first time in over a decade. It also would have a significant impact on federal employees who file appeals before the MSPB. It would let MSPB collect fees from employees who choose to appeal an adverse action with the agency.

There is no set price specified but it said fees shouldn’t “exceed the amount that is 50% of the fee required for filing a civil action in U.S. District Court.” There is some leeway to adjust the price and the fee can be waived if the board believes it would cause “undue hardship”.

The Reauthorization Act would also change MSPB’s existing adjudication process. It gives MSPB summary judgment authority and shifts the evidentiary burden of proof that agencies must show the board in a disciplinary appeal case. It also limits MSPB’s ability to mitigate disciplinary actions.

The bill would also amend a provision in the VA Accountability and Whistleblower Protection Act. It would allow VA employees in Title 38 (medical professionals) to appeal directly to MSPB rather than an administrative judge.

Opposition

While there is support for these bills, there is also widespread opposition.

“The bill raises hurdles of a federal employee in terms of an appeal and in terms of merit protection,” Rep. Gerry Connolly (D-Va) said. “I suppose it has to do with a philosophy or an ethos of presumption. Heretofore, the ethos of presumption has been that a federal employee has a legitimate grievance that needs to be heard and protected. If we adopt this bill this way, we are radically shifting that ethos of presumption, to one in which we believe you’re gaming the system.”

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