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Firing a Bad Federal Employee May Get a Little Easier

Holding federal employees accountable is essentially impossible. They have the highest job security of any sector of the economy. In fact, out of a federal non-military workforce of 2.1 million, only 11,046 persons—or 0.5 percent—were fired in 2017.

One reason for this is the cumbersome process managers must endure to fire a single employee. Multiple appeals involving as many as four separate agencies, as well as union representatives, are not uncommon. This process can last years even in the most cut-and-dry cases.

Faced with such obstacles, federal managers often let misconduct go unaddressed.

But two bills moving through Congress now would make it much easier for federal managers to take action when an employee is simply not getting the job done. The Modern Employment Reform, Improvement, and Transformation (MERIT) Act and the Merit Systems Protection Board (MSPB) Reauthorization Act would strip away several layers of red tape that insulate federal employees from accountability.

How 2 Bills Would Fix the Problem

The process for firing a federal employee is laden with speed bumps and roadblocks.

One of the most time-consuming requirements a federal manager with a problem employee faces is developing a performance improvement plan, which is meant give the employee one last chance to correct his or her behavior.

It rarely has the desired effect. Only 35 percent of federal managers believe “poor performers make a serious effort to use the performance improvement period to improve their performance.” The MERIT Act cuts this requirement.

The performance improvement plan requirement is just one of many built-in delays that slow down any disciplinary actions to a crawl. Today, employees must be notified 30 days in advance of a suspension, demotion, or termination.

The MERIT Act would cut that time in half. Currently, employees have 30 days to appeal an adverse action to the Merit Systems Protection Board. The new deadline would be 10 days.

In the federal government, firing an employee is the easy part. Keeping them fired is where things get difficult. Federal employees can appeal any serious disciplinary action to two different agencies (the Merit Systems Protection Board and the Equal Employment Opportunity Commission), enlist the legal expertise of a third agency (the Office of Special Counsel), and, of course, involve their union representative.

The MSPB Reauthorization Act would clear some of the land mines from this procedural battlefield.

For starters, the MERIT Act would sideline federal employees’ unions. The bill would prohibit employees fired for misconduct, or let go due to downsizing (referred to as a “reduction in force” in the federal government), from making a union grievance.

Employees would still be able to appeal adverse actions to the Merit Systems Protection Board, but if the MSPB Reauthorization Act passes, they would need to meet a higher evidentiary standard to win.

Today, an agency must justify an adverse action by a preponderance of the evidence, meaning the balance of the evidence favors their position. If the MSPB Reauthorization Act passes, an agency must only support its decision with substantial evidence—the lowest evidentiary burden in civil cases.

Read the full story from The Daily Signal

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