H.R. 687

119th CONGRESS 1st Session

To amend title 5, United States Code, to provide for an alternative removal for performance or misconduct for Federal employees.

IN THE HOUSE OF REPRESENTATIVES · January 23, 2025 · Sponsor: Mr. Loudermilk · Committee: Committee on Oversight and Government Reform

Sec. 1. Short title; table of contents.

(a) Short title
- This Act may be cited as the or the .
(b) Table of contents

Sec. 2. Termination of authority for chapter 43 performance-based actions.

(a) Repeal
- Section 4303 of title 5, United States Code, is repealed.
(b) Application
- Subsection (a) shall not apply to any performance-based action under section 4303 of title 5, United States Code, commenced before the effective date provided in section 12.
(c) Conforming amendments
- (1) Title 5
  - Title 5, United States Code, is amended—
    - in section 2302(e)(1)(A), by striking 3504, and 4303(e)and inserting and 3504;
    - in section 4302(c)(6), by striking ;
    - in section 7512, by striking subparagraph (D) and redesignating subparagraphs (E) and (F) as subparagraphs (D) and (E), respectively;
    - in section 7701(c)(1), by striking decisionand all that follows through and inserting preponderance of the evidence;
    - in section 9508(d), by striking and all that follows through ; and
    - in section 9902(a)(2), by striking sections 4302 and 4303(e)and inserting section 4302.
- (2) Title 31
  - Section 732(d)(3) of title 31, United States Code, is amended by striking .
(d) Clerical amendment
- The table of sections for of title 5, United States Code, is amended by striking the item relating to section 4303. chapter 43

Sec. 3. Adverse actions based on performance or conduct.

(a) In general
- Section 7513 of title 5, United States Code, is amended to read as follows:
  - (a) In general
    - Under regulations prescribed by the Office of Personnel Management, an agency may take an action described in paragraphs (1) through (4) of section 7512 against an employee if the agency determines by a preponderance of the evidence the performance or misconduct of the employee warrants such action.
    - (2)
      - When making an initial decision on an action described in paragraphs (1) through (4) of section 7512, the deciding employee of the agency shall exclusively apply the following factors:
        
        (i) The nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated.
        
        (ii) The employee’s job level and type of employment, including supervisory or fiduciary role, and prominence of the position.
        
        (iii) The employee’s past disciplinary records.
        
        (iv) The employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability.
        
        (v) Mitigating circumstances surrounding the offense such as unusual job tensions personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter.
      - The agency shall review the initial decision and uphold such decision if it is supported by substantial evidence.
  - (b) Pay of certain employees subject to a reduction in grade
    - Notwithstanding any other provision of law, an employee subject to a reduction in grade shall, beginning on the date of such reduction, receive the annual rate of pay applicable to such grade.
    - An employee subject to a reduction in grade may not be placed on administrative leave during the period during which an appeal (if any) under this section is ongoing, and may only receive pay if the employee reports for duty or is approved to use accrued unused annual, sick, family medical, military, or court leave.
    - If an employee subject to a reduction in grade does not report for duty or receive approval to use accrued unused leave, such employee shall not receive pay or other benefits.
  - (c) Procedure
    - (1)
      - The aggregate period for written notice, response, and final decision of actions described in paragraphs (1) through (4) of section 7512 may not exceed 15 business days unless there are reasonable causes to believe the employee has committed a crime for which a sentence of imprisonment may be imposed.
      - The period for which an employee may respond to a notice of actions described in paragraphs (1) through (4) of section 7512 in writing and to furnish affidavits and other documentary evidence in support of the response shall be 7 business days.

Sec. 4. Prohibition on grieving adverse actions and reductions in force.

Section 7121 of title 5, United States Code, is amended—

in subsection (a)(1), by striking ;
in subsection (c)—
- by redesignating paragraphs (1) through (5) as paragraphs (5) through (9), respectively; and
  - an adverse action under subchapter II of chapter 75;
  - a furlough of more than 30 days by a reduction in force action under subchapter I of chapter 35;
  - a separation by a reduction in force action under subchapter I of chapter 35;
  - a demotion by a reduction in force action under subchapter I of chapter 35;
- by inserting before paragraph (5), as so redesignated, the following:
in subsection (e)—
- in paragraph (1)—
  - (i) by striking and all that follows through ; and
  - (ii) in the second sentence, by striking Similar mattersand inserting Matters similar to those covered under subchapter II of chapter 75; and
- by striking paragraph (2); and
in subsection (f)—
- by striking the first sentence; and
- in the second sentence, by striking In matters similar to those covered under sections 4303 and 7512 of this titleand inserting In matters similar to those covered under subchapter II of chapter 75.

Sec. 5. Actions against senior executives for performance or conduct.

(a) Repeal of pay retention for career appointees removed from the Senior Executive Service
- Section 3594(c)(1)(B) of title 5, United States Code, is amended to read as follows:
  - (B)
    - (i) any career appointee placed under subsection (a) or (b)(2) of this section shall be entitled to receive basic pay at the highest of—
    - the rate of basic pay in effect for the position in which placed;
    - the rate of basic pay in effect at the time of the placement for the position the career appointee held in the civil service immediately before being appointed to the Senior Executive Service; or
    - the rate of basic pay in effect for the career appointee immediately before being placed under subsection (a) or (b) of this section; and
    - (ii) any career appointee placed under subsection (b)(1) of this section shall be entitled to receive basic pay at the rate of basic pay in effect for the position in which placed; and
(b) Appraisal system requirements
- Section 4314(b) of title 5, United States Code, is amended—
  - in paragraph (3), by inserting before the semicolon the following: ; and
  - in paragraph (4), by inserting before the period at the end the following: .
(c) Suspension for 14 days or less
- means— employee
  - an individual in the competitive service who is not serving a probationary period or trial period under an initial appointment or who has completed 1 year of current continuous employment in the same or similar positions under other than a temporary appointment limited to 1 year or less; or
  - a career appointee in the Senior Executive Service who—
    - (i) has completed the probationary period prescribed under section 3393(d); or
    - (ii) was covered by the provisions of subchapter II of this chapter immediately before appointment to the Senior Executive Service; and
- Paragraph (1) of section 7501 of title 5, United States Code, is amended to read as follows:
(d) Modification of cause and procedure for suspension and termination
- Section 7543 of title 5, United States Code, is amended to read as follows:
  - Under regulations prescribed by the Office of Personnel Management, an agency may take an action covered by this subchapter against an employee if the agency determines by a preponderance of the evidence the performance or misconduct of the employee warrants such action.
  - When making an initial decision on an action covered by this subchapter, the deciding employee of the agency shall exclusively apply the following factors—
    - the nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated; and

Sec. 6. Actions against supervisors for performance or conduct.

Subchapter II of title 5, United States Code, is amended—

by redesignating sections 7514 and 7515 as sections 7516 and 7517, respectively; and
- (a) In general
  - The agency may take an action covered by this subchapter against a supervisor, as defined in section 7103(a)(10), if the agency determines by a preponderance of the evidence that the performance or misconduct of the supervisor warrants such action.
  - When making an initial decision on an action covered by this subchapter, the deciding employee of the agency shall exclusively apply the following factors:
    - The nature and seriousness of the offense, and its relation to the supervisor’s duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated.
    - The supervisor’s job level and type of employment, including supervisory or fiduciary role, and prominence of the position.
  - The agency shall review the initial decision and uphold such decision if it is supported by substantial evidence.
  - A supervisor against whom an action covered by this subchapter is proposed is entitled to—
    - a written notice stating the specific reasons for the proposed action;
    - be represented by an attorney or other representative; and
    - a written decision and the specific reasons therefor at the earliest practicable date.
  - The agency may carry out such action covered by this subchapter without first placing a supervisor on a performance improvement plan.
  - The procedures under chapter 43 shall not apply to an action covered by this subchapter.
- (b) Procedure
  - (1)
    - The aggregate period for written notice, response, and final decision of actions covered by this subchapter may not exceed 15 business days unless there are reasonable causes to believe the employee has committed a crime for which a sentence of imprisonment may be imposed.
    - The period for which an employee may respond to a notice of actions covered by this subchapter in writing and to furnish affidavits and other documentary evidence in support of the response shall be 7 business days.
    - The agency shall issue a final decision with respect to a covered action not later than 15 business days after the agency provides notice, including a file containing all the evidence in support of the proposed action, to the employee. The decision shall be in writing and shall include the specific reasons therefor.
- (c) Reduction in grade
  - A reduction in grade under subsection (a) shall be carried out as a reduction in grade for which the covered individual is qualified, that the agency determines is appropriate, and that reduces the annual rate of pay of the supervisor.
  - Notwithstanding any other provision of law, any supervisor subject to a reduction in grade—

Sec. 7. Modification of procedures for furlough.

(a) Furlough of 14 days or less; emergency furlough
- Subchapter I of of title 5, United States Code, is amended— chapter 75
  - in section 7501, as amended by section 5(c),—
    - in paragraph (1) by striking and at the end;
    - by redesignating paragraph (2) as paragraph (4); and
      - has the meaning given that term in section 7511(a)(5); furlough
      - means a furlough due to a lapse in appropriations; emergency furlough
    - by inserting the following after paragraph (1) the following:
  - in section 7502, by striking This subchapterand all that follows through and inserting the following:
    - This subchapter applies to—
      - a suspension for 14 days or less, but not a suspension under section 7521 or 7532 or any action initiated under section 1215;
      - a furlough for 14 days or less; and
      - an emergency furlough of any duration.
  - by redesignating section 7504 as section 7505; and
    - (a) General Furlough
      - (1) In general
        
        An employee may be subject to a furlough for such cause as will promote the efficiency of the service. Any employee furloughed under this section is entitled to the procedures established under the regulations promulgated under paragraph (2).
      - (2) Procedures
        
        Not later than 180 days after the date of enactment of this section, the Office of Personnel Management shall promulgate regulations providing for—
        
        the circumstances under which an employee may be furloughed under this section;
        
        the procedures to be afforded furloughed employees, including, to the extent appropriate and practicable under the circumstances of the furlough action—
        
        (i) a written notice stating the specific reasons for the proposed action;
        
        (ii) be represented by an attorney or other representative; and
        
        (iii) a written decision and the specific reasons therefor at the earliest practicable date; and
        
        the materials that shall be furnished to a furloughed employee and the Merit Systems Protection Board upon request of the employee or the Board.
    - (b) Emergency furlough
      - (1) In general
        
        An employee may be subject to an emergency furlough.
      - (2) Procedures
        
        (A) Notice
        
        Under regulations prescribed by the Office of Personnel Management, any employee subject to an emergency furlough shall be afforded notice explaining the reasons for the emergency furlough. If the notice cannot be provided in advance of the emergency furlough, notice shall be provided as soon as reasonably practicable.

Sec. 8. Reduction of annuity of employee convicted of a felony for which an adverse action is or would have been taken.

(a) Reduction of annuity of employee convicted of a felony for which an adverse action is taken
- (1) In general
  - Subchapter II of of title 5, United States Code, is amended by adding at the end the following: chapter 83
    - (a) Reduction of annuity
      - (1) In general
        
        The felonious service of a covered individual shall not be taken into account for purposes of calculating an annuity with respect to the individual under subchapter III of this chapter or chapter 84 if—
        
        the covered individual is finally convicted of a felony; and
        
        the head of the agency at which the individual was employed determines that the conviction was based on the acts or omissions of the covered individual that—
        
        (i) were taken or not taken in the performance of the covered individual’s official duties at the agency; and
        
        (ii) are sufficient to support a removal action under section 7513, 7543, or any other provision of law against the covered individual.
      - (2) Procedures
        
        A covered individual against whom a determination is made under paragraph (1) shall be afforded—
        
        notice of the determination not later than 15 business days in advance of a final order under paragraph (3); and
        
        an opportunity to respond to the determination by not later than 10 business days after receipt of the notice.
      - (3) Final order
        
        The head of the agency shall issue a final order to carry out paragraph (1) not later than—
        
        in the case of a covered individual who responds under paragraph (2)(B), 5 business days after receiving the response from the covered individual, to the maximum extent practicable; or
        
        in the case of a covered individual who does not so respond, 15 business days after the date on which the head of the agency provided notice to the individual under paragraph (2)(A), to the maximum extent practicable.
      - (4) Appeal
        
        A covered individual with respect to whom an annuity is to be reduced under this subsection may appeal the final order under paragraph (3) to the Merit Systems Protection Board in accordance with any regulations that the Board may prescribe for purposes of this subsection. An appeal may not be made under this paragraph later than that date that is 10 business days after the date on which an order is issued under paragraph (3).
    - (b) Administrative requirements
      - (1) In general
        
        Not later than 30 business days after the date on which the head of an agency issues a final order under subsection (a) or a final decision of the Merit Systems Protection Board is rendered (as the case may be) with respect to an individual, the applicable employing agency shall amend the covered individual’s retirement records to reflect the period of service that is no longer creditable by operation of this section and transmit the amended records to the Director of the Office of Personnel Management.

Sec. 9. Authority to recoup bonuses or awards paid to employees.

(a) Adverse findings and employees under investigation
- of title 5, United States Code, is amended by adding at the end the following: Chapter 45
  - (a) Definitions
    - In this section:
      - The term agency has the meaning given the term in section 551.
      - The term bonus means any performance award or cash award under—
      - The term employee means an employee of an agency.
  - (b) Prohibition
    - The head of an agency may not award a bonus to an employee of the agency until the date that is 5 years after the end of the fiscal year during which the head of an agency makes an adverse finding relating to the employee.
  - (c) After bonus awarded
    - (1) In general
      - For a bonus awarded to an employee after the date of enactment of this section, if the head of the agency employing the employee makes an adverse finding relating to the employee during the fiscal year in which the bonus is awarded, the head of the agency, after notice and an opportunity for a hearing, shall issue an order directing the employee to repay the amount of the bonus.
    - (2) Repayment plan
      - An agency shall allow an employee who is required to repay a bonus under paragraph (1) to repay that bonus using a repayment plan.
    - (3) Hearings
      - A hearing under this subsection shall be conducted in accordance with regulations relating to hearings promulgated by the head of the agency under chapter 75.
  - (d) Condition of receipt
    - As a condition of receiving a bonus awarded after the date of enactment of this section, an employee shall sign a certification stating that the employee shall repay the bonus in accordance with a final order issued under subsection (c).
  - (e) Appeal
    - An employee determined to be ineligible for a bonus under subsection (b) or against whom an order is issued under subsection (c) may submit an appeal to the Merit Systems Protection Board under section 7701.
    - Appeal
(b) Rulemaking
- The head of each agency, as defined in section 551 of title 5, United States Code, may promulgate rules to carry out section 4531 of title 5, United States Code, as added by subsection (a).
(c) Technical and conforming amendment
- The table of sections for of title 5, United States Code, is amended by adding at the end the following: chapter 45
  - “SUBCHAPTER IV—Limitations on bonus authority
- “4531. Certain forms of misconduct.

Sec. 10. Extension of probationary period for positions within the Senior Executive Service.

(a) In general
- Section 3393(d) of title 5, United States Code, is amended by striking 1-yearand inserting 2-year.
(b) Conforming amendment
- Section 3592(a)(1) of title 5, United States Code, is amended by striking 1-yearand inserting 2-year.
(c) Application
- The amendments made by this section shall apply in the case of any individual initially appointed as a career appointee under section 3393 of title 5, United States Code, on or after the effective date provided in section 12 of this Act.

Sec. 11. Extension of probationary period for employees in the competitive service.

(a) Extension of probationary period
- (1) In general
  - Section 3321 of title 5, United States Code, is amended—
    - in subsection (a), by striking The Presidentand inserting Subject to subsections (c) and (d), the President;
    - by redesignating subsection (c) as subsection (e); and
      - (c)
        
        The length of a probationary period established under paragraph (1) or (2) of subsection (a) shall—
        
        with respect to any position that requires formal training, begin on the date of the appointment to the position and end on the date that is 2 years after the date on which the formal training is completed;
        
        with respect to any position that requires a license, begin on the date of the appointment to the position and end on the date that is 2 years after the date of the appointment or the date on which the license is granted, whichever is later; and
        
        with respect to any position not covered by subparagraph (A) or (B), be a period of 2 years beginning on the date of the appointment to the position.
        
        For purposes of paragraph (1)—
        
        the term formal training means, with respect to any position, a training program required by law, rule, or regulation, or otherwise required by the employing agency, to be completed by the employee before the employee is able to successfully execute the duties of the applicable position; and
        
        the term license means a license, certification, or other grant of permission to engage in a particular activity.
        
        The head of each agency shall, in the administration of this section, take appropriate measures to ensure that—
        
        any announcement of a vacant position and any offer of appointment made to an individual with respect to a vacant position clearly states the terms and conditions of any applicable probationary period, including any formal training period and any license requirement;
        
        any individual who is required to complete a probationary period under this section receives timely notice of any requirements, including performance requirements, that must be met in order to satisfactorily complete that period;
        
        any supervisor or manager of an individual who is required to complete a probationary period under this section receives periodic notifications of the end date of that period not later than 1 year, 6 months, 3 months, and 30 days before the end date; and
        
        if the agency head decides to retain an individual after the completion of a probationary period under this section, the agency head submits a certification to that effect to the President, supported by a brief statement of the basis for the certification, in such form and manner as the President may by regulation prescribe.
    - by inserting after subsection (b) the following:

Sec. 12. Application.

(a) Effective date
- Unless otherwise specifically provided for in this Act, the amendments made by this Act shall take effect on the date that is 1 year after the date of enactment of this Act.
(b) Collective bargaining agreements
- Notwithstanding any other provision of law, the procedures established or amended by this Act shall supersede any collective bargaining agreement to the extent that the agreement is inconsistent with those procedures.
(c) Definition of business day
- For purposes of carrying out this Act and the amendments made by this Act, the term business day means any day other than a Saturday, Sunday, or legal public holiday under section 6103(a) of title 5, United States Code.

(d)

(1)
- The aggregate period for written notice, response, and final decision of actions covered by this subchapter may not exceed 15 business days unless there are reasonable causes to believe the employee has committed a crime for which a sentence of imprisonment may be imposed.
- The period for which an employee may respond to a notice of actions covered by this subchapter in writing and to furnish affidavits and other documentary evidence in support of the response shall be 7 business days.
  - (2) The agency shall issue a final decision with respect to a covered actions not later than 15 business days after the agency provides notice, including a file containing all the evidence in support of the proposed action, to the employee. The decision shall be in writing and shall include the specific reasons therefor.
An employee against whom an action covered by this subchapter is proposed is entitled to—
- a written notice stating the specific reasons for the proposed action;
- be represented by an attorney or other representative; and
- a written decision and the specific reasons therefor at the earliest practicable date.
An agency may provide, by regulation, for a hearing which may be in lieu of or in addition to the opportunity to answer provided under subsection (d)(1)(B) of this section.
An employee against whom an action is taken under this section is entitled to appeal to the Merit Systems Protection Board under section 7701 of this title not later than 10 business days after the effective date of the action.
Copies of the notice of proposed action, the answer of the employee when written, a summary thereof when made orally, the notice of decision and reasons therefor, and any order effecting an action covered by this subchapter, together with any supporting material, shall be maintained by the agency and shall be furnished to the Board upon its request. Upon the affected employee’s request, copies of the documents described in the preceding sentence shall be furnished to the employee, to the extent those documents were not provided under subsection (c).
In this section, the term includes neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function. misconduct