I Can’t Keep Up with this Stuff

By William Wiley, July 19, 2018

Recently, you readers got an article from us (me) here at FELTG that purported to describe the MERIT Act that is moving through Congress. Well, as it turns out, it’s moving faster than I can keep up with. Thanks to a heads-up email from a very important reader, we now know that our article described an earlier version of the bill that was subsequently amended.

The most recent version of the bill contains the following significant changes:

Current Law	MERIT Act Changes Original	MERIT Act Changes Now
30-day minimum notice period prior to a removal. This means that the agency has to keep a bad employee on the payroll at least 30 days after giving the employee a notice that his removal is being proposed.	7-day minimum; 21-day maximum notice period.	The period of advance notice of proposed action is reduced to 15 business days. The period of time in which an employee has to respond to a notice of proposed action is reduced to no more than 7 business days. This actually increases the employee’s response period by two days from the current seven calendar days. It reduces the overall notice period from 30 days of pay to 19 days of pay.
30-day maximum time period to file an appeal of a removal to MSPB.	7-day maximum period of time to file an MSPB appeal.	The appeal must be made not later than 10 business days after the adverse action is effective. That’s 12 calendar days, for those of you used to counting days that way, down from the current 30; less time to find a representative and draft an appeal.
A goal of 120 days for the MSPB administrative judge to issue a decision on a removal appeal.	A firm 30 days for the MSPB administrative judge to issue a decision.	No time limits on the Board’s judge to make a decision.
The Board can stay a removal if it believes that whistleblower reprisal might have occurred.	No more whistleblower stays.	Stays of whistleblower reprisal claims are OK.

If you think that these changes are significant, get a load of these:

• The ability to use demonstration periods and to remove employees for failing performance during the demonstration period is repealed (5 USC Section 4303). No more PIPs, ODAPS, or any other opportunity to demonstrate acceptable performance.
• Unionized employees can no longer grieve and arbitrate removals, long suspensions, demotions, RIFs, or furloughs greater than 30 days.
• Furloughs of 14 days or fewer may no longer be appealed to MSPB.
• Demoted SESers for poor performance can no longer retain the pay of the higher-level position.
• SESers may be suspended for fewer than 15 days.
• Employees who are removed or proposed to be removed for committing a felony will cease to accrue time credit for an annuity during the period the felonious misconduct occurred. Not sure how this will be applied as sometimes it takes just a few minutes to commit a felony.
• Agencies may recoup award, relocation, recruitment, and retention monies paid to an employee if the agency subsequently determines that the employee engaged in misconduct or unacceptable performance prior to the payment.
• Probationary periods are to be extended from one to two years.

In addition to the MERIT Act, HR 559, the House Oversight Committee this week also voted out HR 6391. Add the following potential changes to your to-think-about list:

• Individuals who appeal their adverse actions to MSPB will have to pay a filing fee, refundable if the appeal is successful. MSPB will set the fee amount, to be no more than half of what a filing fee is in district court (currently that would be half of about 50 bucks).
• The Board can mitigate a removal to a suspension or less only if the removal is so disproportionate as to be wholly without justification. Now, the agency has to prove that the penalty is within the range of reasonableness by a preponderance of the evidence.
• The Board may grant summary judgment motions and decide the appeal without a hearing. Now, the MSPB judge is obligated to provide the employee a hearing if he asks for one.
• Appellants no longer have an unfettered right to a hearing on appeal even without a summary judgment motion.
• Board members can be reappointed once their terms expire. This has always been the case at FLRA and EEOC, but not before at MSPB.

Whew. if you are not blown away by these changes, you must be highly medicated. Some changes would be effective within 90 days of the day the bill becomes law, others have a one-year date for implementation. There are other parts of the pending acts that address secondary issues, but this Executive Summary captures most of the issues you need to know about now.

I am reminded of a day in the fall of 1978 when, as a young HR lad, I sat in on a staff meeting in the civilian personnel office where I had been employed for just over a full year. Somebody passed out copies of the Civil Service Reform Act of 1978 and the attendees all began to discuss it. I, naively, said, “Hey, is this a big deal? Does it really matter that we just got a new civil service law? Doesn’t this kind of thing happen all the time?” Over the ensuing laughter, I was quickly informed that, yes, Virginia, it is a big deal (don’t know why they called me “Virginia”). When Congress makes significant changes to civil service law, the whole government catches its breath.

We, the members of the civil service law profession, just caught our collective breath. And, we should each hold onto it until we see what comes out of the Senate relative to these bills. Or, we faint, whichever comes first. Buckle up, kids; the ride, she will be bumpy. Wiley@FELTG.com