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H.R. 559 (115th): MERIT Act of 2017


Should the process for removing underperforming federal employees be sped up?

Context

Due to existing federal rules and bureaucracy, it can take more than a year to remove or fire an underperforming federal employee.

The federal government currently has 2.78 million employees. That number is down -0.8 percent since President Trump took office.

What the bill does

The Modern Employment Reform, Improvement, and Transformation (MERIT) Act would streamline federal workplace rules, making it easier to dismiss or fire federal employees.

  • It would give any federal employees intended to be fired a 7 to 21 day notice of action, a written notice listing the reason(s) for dismissal and the projected final date of employment.
  • Any appeal from an employee to the Merit Systems Protection Board would be given up to 30 days. If a decision is not made by then, the dismissal would be upheld.
  • The probationary period for new hires — during which new employees have curtailed appeal rights in case of firing — would be doubled from one year to two years.

House version H.R. 559 was introduced by Rep. Barry Loudermilk (R-GA11)in January 2017. Senate version S. 3200 was introduced by Sen. David Purdue (D-GA) in July 2018, days before the House committee held its vote.

What supporters say

Supporters argue the bill would create a more responsive and effective federal workforce, modeled after reforms that have worked at one agency and expanding it outward.

“In June of 2017, the President signed the Veterans Accountability and Whistleblower Protection Act. Through the civil service reforms in that legislation, the VA Secretary has been empowered to cut through destructive red tape and increase employee accountability, resulting in the removal of over 1,400 underperforming employees, and hundreds of employment suspensions or demotions,” Rep. Loudermilk said in a press release. ”The effect of injecting accountability at the VA has ensured better care and treatment of our veterans.”

“It is time to ensure the same respect and diligence is paid to all Americans by all agencies,” Loudermilk continued. “The MERIT Act will provide a desperately needed update to federal law to ensure efficiency, transparency, and accountability within the civil service — answering the President’s call to empower his team to initiate the changes needed to make American great again.”

What opponents say

Opponents counter that the VA bill is a misguided approach for how to adjust federal workforce rules government-wide.

“There are several reasons why the VA law should not be replicated across the federal government,” Rep. Elijah Cummings (D-MD7), the top Democrat on the House Oversight and Government Reform Committee, said in a markup hearing.

“There have been reports that the new authorities are being misused by the VA to target wrong employees. The original intent of the new VA firing authorities was to help the VA get rid of bad actors, especially top officials, senior executives, medical directors who had the ability to direct patient care. However, according to recent press reports, the VA’s own data shows that since the law took effect last June, the agency has fired only four senior officials.”

“The vast majority of the other 1,700 individuals terminated were low-level employees. They include 133 housekeepers, 101 nursing assistants, and 59 food service workers. Even worse, a significant number of these low ranking employees are veterans hired as a part of the Compensated Work Therapy program. This is a program that hires veterans who have mental illnesses and physical impairments.”

“But it’s not just the low employees that are losing their jobs. Whistleblowers and those who file discrimination complaints are also being fired. So although the new VA law was meant to protect whistleblowers, it’s actually doing just the opposite. This should make us pause before we try to replicate this approach across the entire federal government.”

Vote and Odds of Passage

The House Oversight and Government Reform Committee passed the bill last week in a voice vote, meaning no individual vote tallies were cast.

However, it seems unlikely the bill got many — if any — Democratic votes, considering the bill has 56 House cosponsors, all Republicans. The legislation next goes to the full House.

It also tracks a presidential preference of Trump, as expressed in January’s State of the Union Address. “All Americans deserve accountability and respect — and that is what we are giving them,” Trump said. “So tonight, I call on the Congress to empower every Cabinet Secretary with the authority to reward good workers — and to remove Federal employees who undermine the public trust or fail the American people.”

The Senate version has no cosponsors at this time.

Last updated Jul 31, 2018. View all GovTrack summaries.

The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress, and was published on Jan 13, 2017.


Modern Employment Reform, Improvement, and Transformation Act of 2017 or the MERIT Act of 2017

This bill establishes an alternative mechanism for the expedited removal by agency heads of federal employees for performance or misconduct by: (1) limiting an appeal to the Merit Systems Protection Board (MSPB) to appeals made not later than 7 days after the date of such removal; and (2) making inapplicable to removals employee protections affording employees at least 30 days advance written notice of the proposed action and a reasonable time to answer the proposal orally and in writing, representation by an attorney, and a written decision.

Upon receipt of an appeal, the MSPB shall issue a decision not later than 30 days after the date of the appeal. In any case in which an MSPB judge cannot issue a decision in accordance with such 30-day requirement, the removal is final.

The MSPB: (1) shall uphold the decision of the agency head to remove an employee if the decision is supported by substantial evidence; and (2) may not stay any removal unless the basis for the appeal of such removal is related to certain prohibited personnel practices.