MERIT Act of 2019

II 116TH CONGRESS 1ST SESSION S. 1898 To amend title 5, United States Code, to provide for an alternative removal for performance or misconduct for Federal employees. IN THE SENATE OF THE UNITED STATES JUNE 19, 2019 Mr. PERDUE (for himself, Mrs. BLACKBURN, Mr. BRAUN, Mr. COTTON, Mr. GRASSLEY, and Mr. WICKER) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To amend title 5, United States Code, to provide for an alternative removal for performance or misconduct for Federal employees. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Modern Employment Reform, Improvement, and Trans- 5 formation Act of 2019’’ or the ‘‘MERIT Act of 2019’’. 6 (b) TABLE OF CONTENTS.—The table of contents for 7 this Act is as follows: 8 Sec. 1. Short title; table of contents. VerDate Sep 11 2014 21:58 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\S1898.IS S1898 kjohnson on DSK79L0C42 with BILLS 2 •S 1898 IS Sec. 2. Termination of authority for chapter 43 performance-based actions. Sec. 3. Adverse actions based on performance or conduct. Sec. 4. Prohibition on grieving adverse actions and reductions in force. Sec. 5. Actions against senior executives for performance or conduct. Sec. 6. Modification of procedures for furlough. Sec. 7. Reduction of annuity of employee convicted of a felony for which an ad- verse action is or would have been taken. Sec. 8. Authority to recoup bonuses or awards paid to employees. Sec. 9. Extension of probationary period for positions within the Senior Execu- tive Service. Sec. 10. Extension of probationary period for employees in the competitive serv- ice. Sec. 11. Application. SEC. 2. TERMINATION OF AUTHORITY FOR CHAPTER 43 1 PERFORMANCE-BASED ACTIONS. 2 (a) REPEAL.—Section 4303 of title 5, United States 3 Code, is repealed. 4 (b) APPLICATION.—Subsection (a) shall not apply to 5 any performance-based action under section 4303 of title 6 5, United States Code, commenced before the effective 7 date provided in section 11. 8 (c) CONFORMING AMENDMENTS.— 9 (1) TITLE 5.—Title 5, United States Code, is 10 amended— 11 (A) in section 2302(e)(1)(A), by striking 12 ‘‘3504, and 4303(e)’’ and inserting ‘‘and 13 3504’’; 14 (B) in section 4302(c)(6), by striking ‘‘but 15 only after an opportunity to demonstrate ac- 16 ceptable performance’’; 17 (C) in section 7512, by striking subpara- 18 graph (D) and redesignating subparagraphs (E) 19 VerDate Sep 11 2014 21:58 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1898.IS S1898 kjohnson on DSK79L0C42 with BILLS 3 •S 1898 IS and (F) as subparagraphs (D) and (E), respec- 1 tively; 2 (D) in section 7701(c)(1), by striking ‘‘de- 3 cision’’ and all that follows through ‘‘preponder- 4 ance of the evidence’’ and inserting ‘‘decision is 5 supported by a preponderance of the evidence’’; 6 (E) in section 9508(d), by striking ‘‘(1) In 7 applying’’ and all that follows through ‘‘(2)’’; 8 and 9 (F) in section 9902(a)(2), by striking ‘‘sec- 10 tions 4302 and 4303(e)’’ and inserting ‘‘section 11 4302’’. 12 (2) TITLE 31.—Section 732(d)(3) of title 31, 13 United States Code, is amended by striking ‘‘con- 14 sistent with section 4303 of title 5’’. 15 (d) CLERICAL AMENDMENT.—The table of sections 16 for chapter 43 of title 5, United States Code, is amended 17 by striking the item relating to section 4303. 18 SEC. 3. ADVERSE ACTIONS BASED ON PERFORMANCE OR 19 CONDUCT. 20 (a) IN GENERAL.—Section 7513 of title 5, United 21 States Code, is amended— 22 (1) in subsection (b)— 23 (A) in paragraph (1)— 24 VerDate Sep 11 2014 21:58 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1898.IS S1898 kjohnson on DSK79L0C42 with BILLS 4 •S 1898 IS (i) by striking ‘‘at least 30 days’ ad- 1 vance written notice’’ and inserting ‘‘writ- 2 ten notice 15 business days in advance’’; 3 and 4 (ii) by inserting before the semicolon 5 at the end the following: ‘‘, and including 6 a file containing all the evidence in support 7 of the proposed action’’; 8 (B) in paragraph (2), by striking ‘‘but not 9 less than 7 days’’ and inserting ‘‘but not more 10 than 7 business days’’; and 11 (C) in paragraph (4), by striking ‘‘at the 12 earliest practicable date’’; 13 (2) by amending subsection (c) to read as fol- 14 lows: 15 ‘‘(c) An agency shall issue the decision not later than 16 15 business days after the agency provides notice, to the 17 maximum extent practicable, to the employee affected.’’; 18 (3) in subsection (d), by inserting before the pe- 19 riod at the end the following: ‘‘not later than 10 20 business days after the effective date of the action’’; 21 and 22 (4) in subsection (e)— 23 (A) by striking ‘‘and to the employee af- 24 fected upon the employee’s request’’; and 25 VerDate Sep 11 2014 21:58 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1898.IS S1898 kjohnson on DSK79L0C42 with BILLS 5 •S 1898 IS (B) by adding at the end the following: 1 ‘‘Upon the affected employee’s request, copies 2 of the documents described in the preceding 3 sentence shall be furnished to the employee, to 4 the extent those documents were not provided 5 under subsection (c).’’. 6 (b) DISCIPLINE OF SUPERVISORS BASED ON RETAL- 7 IATION AGAINST WHISTLEBLOWERS.—Section 8 7515(b)(2)(B) of title 5, United States Code, is amend- 9 ed— 10 (1) in clause (i), by striking ‘‘not later than 14 11 days’’ and inserting ‘‘not more than 7 business 12 days’’; and 13 (2) in clause (ii), by striking ‘‘14-day period’’ 14 and inserting ‘‘7-business-day period’’. 15 (c) APPLICATION.—The amendments made by sub- 16 sections (a) and (b) shall not apply to any action under 17 section 7513 or 7515 of title 5, United States Code, as 18 amended by those subsections, respectively, commenced 19 before the effective date provided in section 11. 20 SEC. 4. PROHIBITION ON GRIEVING ADVERSE ACTIONS 21 AND REDUCTIONS IN FORCE. 22 Section 7121 of title 5, United States Code, is 23 amended— 24 VerDate Sep 11 2014 21:58 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1898.IS S1898 kjohnson on DSK79L0C42 with BILLS 6 •S 1898 IS (1) in subsection (a)(1), by striking ‘‘the settle- 1 ment of’’; 2 (2) in subsection (c)— 3 (A) by redesignating paragraphs (1) 4 through (5) as paragraphs (5) through (9), re- 5 spectively; and 6 (B) by inserting before paragraph (5), as 7 so redesignated, the following: 8 ‘‘(1) an adverse action under subchapter II of 9 chapter 75; 10 ‘‘(2) a furlough of more than 30 days by a re- 11 duction in force action under subchapter I of chap- 12 ter 35; 13 ‘‘(3) a separation by a reduction in force action 14 under subchapter I of chapter 35; 15 ‘‘(4) a demotion by a reduction in force action 16 under subchapter I of chapter 35;’’; 17 (3) in subsection (e)— 18 (A) in paragraph (1)— 19 (i) by striking ‘‘(1) Matters’’ and all 20 that follows through ‘‘but not both.’’; and 21 (ii) in the second sentence, by striking 22 ‘‘Similar matters’’ and inserting ‘‘Matters 23 similar to those covered under subchapter 24 II of chapter 75’’; and 25 VerDate Sep 11 2014 21:58 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1898.IS S1898 kjohnson on DSK79L0C42 with BILLS 7 •S 1898 IS (B) by striking paragraph (2); and 1 (4) in subsection (f)— 2 (A) by striking the first sentence; and 3 (B) in the second sentence, by striking ‘‘In 4 matters similar to those covered under sections 5 4303 and 7512 of this title’’ and inserting ‘‘In 6 matters similar to those covered under sub- 7 chapter II of chapter 75’’. 8 SEC. 5. ACTIONS AGAINST SENIOR EXECUTIVES FOR PER- 9 FORMANCE OR CONDUCT. 10 (a) REPEAL OF PAY RETENTION FOR CAREER AP- 11 POINTEES REMOVED FROM THE SENIOR EXECUTIVE 12 SERVICE.—Section 3594(c)(1)(B) of title 5, United States 13 Code, is amended to read as follows: 14 ‘‘(B)(i) any career appointee placed under sub- 15 section (a) or (b)(2) of this section shall be entitled 16 to receive basic pay at the highest of— 17 ‘‘(I) the rate of basic pay in effect for the 18 position in which placed; 19 ‘‘(II) the rate of basic pay in effect at the 20 time of the placement for the position the ca- 21 reer appointee held in the civil service imme- 22 diately before being appointed to the Senior Ex- 23 ecutive Service; or 24 VerDate Sep 11 2014 21:58 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1898.IS S1898 kjohnson on DSK79L0C42 with BILLS 8 •S 1898 IS ‘‘(III) the rate of basic pay in effect for 1 the career appointee immediately before being 2 placed under subsection (a) or (b) of this sec- 3 tion; and 4 ‘‘(ii) any career appointee placed under sub- 5 section (b)(1) of this section shall be entitled to re- 6 ceive basic pay at the rate of basic pay in effect for 7 the position in which placed; and’’. 8 (b) APPRAISAL SYSTEM REQUIREMENTS.—Section 9 4314(b) of title 5, United States Code, is amended— 10 (1) in paragraph (3), by inserting before the 11 semicolon the following: ‘‘or, as warranted, from the 12 civil service’’; and 13 (2) in paragraph (4), by inserting before the pe- 14 riod at the end the following: ‘‘or, as warranted, 15 from the civil service’’. 16 (c) SUSPENSION FOR 14 DAYS OR LESS.—Paragraph 17 (1) of section 7501 of title 5, United States Code, is 18 amended to read as follows: 19 ‘‘(1) ‘employee’ means— 20 ‘‘(A) an individual in the competitive serv- 21 ice who is not serving a probationary period or 22 trial period under an initial appointment or, ex- 23 cept as provided in section 1599e of title 10, 24 who has completed 1 year of current continuous 25 VerDate Sep 11 2014 21:58 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1898.IS S1898 kjohnson on DSK79L0C42 with BILLS 9 •S 1898 IS employment in the same or similar positions 1 under other than a temporary appointment lim- 2 ited to 1 year or less; or 3 ‘‘(B) a career appointee in the Senior Ex- 4 ecutive Service who— 5 ‘‘(i) has completed the probationary 6 period prescribed under section 3393(d); or 7 ‘‘(ii) was covered by the provisions of 8 subchapter II of this chapter immediately 9 before appointment to the Senior Executive 10 Service; and’’. 11 (d) MODIFICATION OF CAUSE AND PROCEDURE FOR 12 SUSPENSION AND TERMINATION.—Section 7543 of title 13 5, United States Code, is amended— 14 (1) by striking subsections (a), (b), and (c) and 15 inserting the following: 16 ‘‘(a) Under regulations prescribed by the Office of 17 Personnel Management, an agency may take an action 18 covered by this subchapter against an employee only for 19 such cause as would promote the efficiency of the service. 20 ‘‘(b) An employee against whom an action covered by 21 this subchapter is proposed is entitled to— 22 ‘‘(1) written notice 15 business days in advance, 23 unless there is reasonable cause to believe the em- 24 ployee has committed a crime for which a sentence 25 VerDate Sep 11 2014 21:58 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1898.IS S1898 kjohnson on DSK79L0C42 with BILLS 10 •S 1898 IS of imprisonment can be imposed, stating specific 1 reasons for the proposed action, and including a file 2 containing all the evidence in support of the pro- 3 posed action; 4 ‘‘(2) a reasonable time, but not more than 7 5 business days, to answer orally and in writing and 6 to furnish affidavits and other documentary evidence 7 in support of the answer; 8 ‘‘(3) be represented by an attorney or other 9 representative; and 10 ‘‘(4) a written decision and the specific reasons 11 therefor. 12 ‘‘(c) An agency shall issue the decision not later than 13 15 business days after the agency provides notice, to the 14 maximum extent practicable, to the employee affected.’’; 15 (2) in subsection (d), by inserting before the pe- 16 riod at the end the following: ‘‘not later than 10 17 business days after the effective date of the action’’; 18 and 19 (3) in subsection (e)— 20 (A) by striking ‘‘and to the employee af- 21 fected upon the employee’s request’’; and 22 (B) by adding at the end the following: 23 ‘‘Upon the affected employee’s request, copies 24 of the documents described in the preceding 25 VerDate Sep 11 2014 21:58 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1898.IS S1898 kjohnson on DSK79L0C42 with BILLS 11 •S 1898 IS sentence shall be furnished to the employee, to 1 the extent those documents were not provided 2 under subsection (c).’’. 3 (e) CONFORMING AMENDMENTS.—Title 5, United 4 States Code, is amended— 5 (1) in section 3592(b)(2)(B), by striking ‘‘any 6 disciplinary action’’ and inserting ‘‘any action under 7 section 7543’’; 8 (2) in section 3593(a)(2), by striking ‘‘mis- 9 conduct, neglect of duty, malfeasance,’’ and insert- 10 ing ‘‘a removal under section 7543’’; 11 (3) in section 3594, by adding at the end the 12 following: 13 ‘‘(d) This section shall not apply to any career ap- 14 pointee who is subject to a personnel action under sub- 15 chapter V of chapter 75.’’; and 16 (4) in section 7542, by striking ‘‘or to a re- 17 moval under section 3592 or 3595’’ and inserting 18 the following: ‘‘to a removal from the Senior Execu- 19 tive Service under section 3592 of this title, to a re- 20 duction in force as defined in section 3595(d) of this 21 title, or to a transfer of function as described in sec- 22 tion 3595(e)’’. 23 (f) APPLICATION.—The amendments made by this 24 section shall not apply to any personnel action under sub- 25 VerDate Sep 11 2014 21:58 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1898.IS S1898 kjohnson on DSK79L0C42 with BILLS 12 •S 1898 IS chapter V of chapter 75 of title 5, United States Code, 1 commenced before the effective date provided in section 2 11. 3 SEC. 6. MODIFICATION OF PROCEDURES FOR FURLOUGH. 4 (a) GENERAL FURLOUGH OF 14 DAYS OR LESS; 5 FURLOUGH DUE TO LAPSE IN APPROPRIATIONS.—Sub- 6 chapter I of chapter 75 of title 5, United States Code, 7 is amended— 8 (1) in section 7501, as amended by section 9 5(c)— 10 (A) in paragraph (1), by striking ‘‘and’’ at 11 the end; 12 (B) by redesignating paragraph (2) as 13 paragraph (5); and 14 (C) by inserting after paragraph (1) the 15 following: 16 ‘‘(2) ‘furlough’ has the meaning given that term 17 in section 7511(a)(5); 18 ‘‘(3) ‘furlough due to lapse in appropriations’ 19 means a furlough due to a lapse in appropriations; 20 ‘‘(4) ‘general furlough’ means a furlough that is 21 not due to a lapse in appropriations; and’’; 22 (2) in section 7502, by striking ‘‘This sub- 23 chap [Text truncated for display. Full text available on Congress.gov.]