Making it Easier for Federal Agencies to Fire Employees for Poor Performance or Misconduct (H.R. 559)

What is H.R. 559?

(Updated October 5, 2018)

This bill — known as the MERIT Act — would establish an alternative way for the heads of federal agencies to expedite the removal of employees for poor performance or misconduct. It would only allow appeals to the Merit Systems Protection Board (MSPB) if they’re made within 7 days after the removal. Removals for those causes would negate protections that ordinarily afford employees at least 30 days advance written notice of the proposed action, a reasonable time to answer the proposal orally and in writing, representation by an attorney, and a written decision (a process agency heads could continue to use).

When the MSPB receives an appeal, it would be required to issue a decision within 30 days after the appeal’s date. In any case when an MSPB judge can’t issue a decision within 30 days, the removal would be considered final.

The MSPB would uphold the decision of an agency head to remove an employee if the decision is supported by substantial evidence, and couldn’t stay any removal unless the reason for the appeal is related to prohibited personnel practices (like discrimination or retaliation against a whistleblower).

The bill’s full title is the Modern Employment Reform, Improvement, and Transformation Act of 2017.

Argument in favor

The leaders of federal agencies should have a mechanism to remove an employee for poor performance or misconduct while still giving the fired worker a chance to appeal the decision. Giving agency heads the choice of the new procedure or the existing, more lengthy process is wise.

Argument opposed

This bill is an attempt to undermine the due process rights of civil servants in the federal government who are being removed because of poor performance or misconduct. The existing process gives employees an adequate amount of time to respond to the removal decision.

Impact

Federal employees being removed for poor performance or misconduct at agencies whose leaders choose to use the expedited removal process; the MSPB; and agency heads.

Cost of H.R. 559

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Sponsoring Rep. Barry Loudermilk (R-GA) introduced this bill to give the heads of federal agencies an alternative process for expeditiously removing employees for poor performance or misconduct:

“While there are scores of hardworking Americans employed by the federal government, there are also those so entrenched in the bureaucracy, they have learned to game the federal employment  system to their advantage. Under current employment policies, it takes over 300 days to remove an employee who is underperforming, unqualified, or has committed acts of misconduct.

A recent Congressional investigation uncovered the fact that the Department of Homeland Security has paid $380 million in salary and benefits for employees who have lost their security clearance due to disciplinary actions. Because it takes so long to process them off the federal payroll, some of these employees were paid to stay at home for up to two years.

The American people expect the government to be held to the same laws and standards they are held to; however, current employment law protects bad employees, while good employees have to take up their slack. The MERIT Act will provide a desperately needed update to federal law to ensure efficiency, transparency and accountability within the civil service.”

The American Federation of Government Employees — the largest federal employee union representing 700,000 workers — opposes this legislation saying it would “make it easier for politicians to fire federal employees by removing checks and balances and certain workplace due process rights.”

This legislation has the support of 37 cosponsors in the House, all of whom are Republicans.

Media:

• Sponsoring Rep. Barry Loudermilk (R-GA) Press Release
  
• American Federation of Government Employees (Opposed)
  
• FreedomWorks (In Favor)