The Merit Act of 2017, a bill in the House of Representatives, has 8 co-sponsors. The purpose of the bill is to make it easier to fire a federal employee for misconduct and performance. The bill has been referred to the House Committee for Oversight and Government Reform.
The existing process is time-consuming and inefficient, therefore, very few employees are removed. A report noted that 0.5 percent of federal employees are fired in a year, including for reasons of poor performance and misconduct. That is one-sixth the private sector firing rate.
Details of the Bill
This bill would provide the following to enable faster removal of a federal employee:
- The head of an agency may remove an employee if it’s determined the performance or misconduct warrants a removal.
- There would be a quicker process for these types of removals.
To take an action based on misconduct or performance, an agency would provide notice of at least 7 days and no more than 21 days before acting with:
- A notice in writing of the proposed personnel action, including the reasons for action and the proposed final date of employment.
- Also, an opportunity to respond to the personnel action within the remaining employment period beginning on the date the written notice is received.
The employee would have the right to appeal to the Merit Systems Protection Board (MSPB). An appeal can only be made if it is made no later than 7 days after the removal date.
The current process, outlined in 5 U.S.C. 7513(b), would not apply to removal under this procedure. This new bill would eliminate the current requirements for:
- 30 days’ advance written notice.
- A reasonable time, but not less than 7 days, to answer orally and in writing, and to also furnish affidavits and other evidence.
- Representation by an attorney or other representation.
- A written decision detailing specific reasons for the action at the earliest practicable date.
This bill would also provide for an expedited appeal to the MSPB. The MSPB would be required to issue a decision within 30 days after an appeal is filed. It would be required to uphold the decision to remove an employee if the decision is supported by substantial evidence. In addition, if the MSPB judge can’t issue a decision within the 30-day requirement, the employee’s removal would be final.
Starting on the date on which an appeal is filed and ending on the date the MSPB issues a final decision, the employee wouldn’t receive and pay, benefits, bonuses, awards, allowances, incentives, differentials, student loan repayments, or special payments.
Because the current process is time-consuming, some agencies would rather keep an incompetent employee than taking the extended time and effort of removing them.
Some obvious issues with this bill are:
- The time limits in the bill are short.
- Cutting off pay and benefits of an employee who files an appeal would be effective in cutting down the number of appeals. This would be difficult to gain traction in Congress.
- More administrative judges might be required regarding the time limits for the MSPB to issue an initial decision.
Some, or all, of these problems, may prevent passage or require modification in order to pass Congress.