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TEMPORARY EMPLOYEE PRACTICES: HOW LONG

DOES TEMPORARY LAST?

HEARING

BEFORE THE

SUBCOMMITTEE ON FEDERAL WORKFORCE,

POSTAL SERVICE, AND THE DISTRICT

OF COLUMBIA

OF THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED ELEVENTH CONGRESS

SECOND SESSION

JUNE 30, 2010

Serial No. 111–95

Printed for the use of the Committee on Oversight and Government Reform

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

http://www.house.gov/reform

(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

EDOLPHUS TOWNS, New York, Chairman

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

JIM COOPER, Tennessee

GERALD E. CONNOLLY, Virginia

MIKE QUIGLEY, Illinois

MARCY KAPTUR, Ohio

ELEANOR HOLMES NORTON, District of

Columbia

PATRICK J. KENNEDY, Rhode Island

DANNY K. DAVIS, Illinois

CHRIS VAN HOLLEN, Maryland

HENRY CUELLAR, Texas

PAUL W. HODES, New Hampshire

CHRISTOPHER S. MURPHY, Connecticut

PETER WELCH, Vermont

BILL FOSTER, Illinois

JACKIE SPEIER, California

STEVE DRIEHAUS, Ohio

JUDY CHU, California

DARRELL E. ISSA, California

DAN BURTON, Indiana

JOHN L. MICA, Florida

JOHN J. DUNCAN, JR., Tennessee

MICHAEL R. TURNER, Ohio

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

BRIAN P. BILBRAY, California

JIM JORDAN, Ohio

JEFF FLAKE, Arizona

JEFF FORTENBERRY, Nebraska

JASON CHAFFETZ, Utah

AARON SCHOCK, Illinois

BLAINE LUETKEMEYER, Missouri

ANH ‘‘JOSEPH’’ CAO, Louisiana

BILL SHUSTER, Pennsylvania

RON STROMAN, Staff Director

MICHAEL MCCARTHY, Deputy Staff Director

CARLA HULTBERG, Chief Clerk

LARRY BRADY, Minority Staff Director

SUBCOMMITTEE ON FEDERAL WORKFORCE, POSTAL SERVICE, AND THE DISTRICT OF

COLUMBIA

STEPHEN F. LYNCH, Massachusetts, Chairman

ELEANOR HOLMES NORTON, District of

Columbia

DANNY K. DAVIS, Illinois

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

WM. LACY CLAY, Missouri

GERALD E. CONNOLLY, Virginia

JASON CHAFFETZ, Utah

BRIAN P. BILBRAY, California

ANH ‘‘JOSEPH’’ CAO, Louisiana

——— ———

WILLIAM MILES, Staff Director

(III)

C O N T E N T S

Page

Hearing held on June 30, 2010 ............................................................................... 1

Statement of:

Dougan, William R., national president, National Federation of Federal

Employees; Colleen M. Kelley, national president, National Treasury

Employees Union; Philip W. Glover, legislative coordinator, Council

of Prison Locals, American Federation of Government Employees, AFL–

CIO; Patricia Barts, member, Cherry Hill, New Jersey Chapter, National Active and Retired Federal Employees ............................................ 36

Barts, Patricia ........................................................................................... 74

Dougan, William R. ................................................................................... 36

Glover, Philip W. ....................................................................................... 60

Kelley, Colleen M. ..................................................................................... 51

Simpson, Jerry, Associate Director for Workforce Management, U.S. National Park Service; Hank Kashdan, Associate Chief, U.S. Forest Service; and Angela Bailey, Deputy Associate Director for Recruitment and

Diversity, U.S. Office of Personnel Management ....................................... 7

Bailey, Angela ............................................................................................ 20

Kashdan, Hank .......................................................................................... 13

Simpson, Jerry ........................................................................................... 7

Letters, statements, etc., submitted for the record by:

Bailey, Angela, Deputy Associate Director for Recruitment and Diversity,

U.S. Office of Personnel Management, prepared statement of ................. 22

Barts, Patricia, member, Cherry Hill, New Jersey Chapter, National Active and Retired Federal Employees, prepared statement of .................... 76

Dougan, William R., national president, National Federation of Federal

Employees, prepared statement of .............................................................. 39

Glover, Philip W., legislative coordinator, Council of Prison Locals, American Federation of Government Employees, AFL–CIO, prepared statement of ........................................................................................................... 62

Kashdan, Hank, Associate Chief, U.S. Forest Service, prepared statement

of ..................................................................................................................... 15

Kelley, Colleen M., national president, National Treasury Employees

Union, prepared statement of ...................................................................... 53

Lynch, Hon. Stephen F., a Representative in Congress from the State

of Massachusetts, prepared statement of ................................................... 3

Simpson, Jerry, Associate Director for Workforce Management, U.S. National Park Service, prepared statement of ................................................ 9

(1)

TEMPORARY EMPLOYEE PRACTICES: HOW

LONG DOES TEMPORARY LAST?

WEDNESDAY, JUNE 30, 2010

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON FEDERAL WORKFORCE, POSTAL

SERVICE, AND THE DISTRICT OF COLUMBIA,

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 2:15 p.m., in room

2154, Rayburn House Office Building, Hon. Stephen F. Lynch

(chairman of the subcommittee) presiding.

Present: Representatives Lynch, Norton, Connolly, Chaffetz, and

Bilbray.

Staff present: Jill Crissman, professional staff; Aisha Elkheshin,

clerk/legislative assistant; William Miles, staff director; Rohan

Siddhanti and Ian Kapuza, interns; Dan Zeidman, deputy clerk/legislative assistant; Justin LoFranco, minority press assistant/clerk;

Marvin Kaplan, minority counsel; and James Robertson, minority

professional staff member.

Mr. LYNCH. Good afternoon. And I apologize for the slight delay.

A little traffic on the way in.

The Subcommittee on the Federal Workforce, Postal Service, and

the District of Columbia will come to order.

I welcome my friend, the ranking member, Mr. Chaffetz of Utah,

members of the subcommittee, hearing witnesses, and all those in

attendance.

The purpose of today’s hearing is to review the existing temporary hiring authorities and current regulations and the resulting

impact on temporary employees’ status and benefit offerings.

The chair, the ranking member, and the subcommittee members

will each have 5 minutes within which to make an opening statement. And all Members will have 3 days to submit statements for

the record.

Hearing no objection, so ordered.

Ladies and gentlemen, it is the duty of this subcommittee to look

after every single Federal employee, no matter the level of pay or

what type of schedule or seniority they may have. I have called today’s hearing to discuss issues relating to temporary employees,

who represent about 9 percent of the total Federal work force.

We know that seasonal temporary employees play a critical role

in helping an agency accomplish its mission and carry out its mandates, yet these employees are operating largely under the radar

screen.

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Given the fact that in certain Federal entities, namely the National Park Service and the Forest Service, seasonal temporary employees can comprise approximately 40 percent of the work force at

any given time, it is important that we take time to seriously consider issues and concerns currently confronting this particular employee population.

Oftentimes, seasonal temporary employees have worked in the

same capacity year after year, decade after decade. However, they

receive no health care, retirement insurance, or other regular benefits accrued by otherwise permanent or term employees of the Federal Government.

While in the early 1990’s regulatory changes were made to reduce temporary employees’ assignment time from 4 years to a maximum total of 2, thereby eliminating the possibility of temporary

employee abuses, it is clear that renewed oversight on this issue

is needed.

As we explore existing temporary hiring authorities and current

regulations, I believe it is important that we consider whether a

path to permanency can be established for our temporary employees, many of whom have worked for multiple years and are fully

cognizant of the merit principles in our hiring. Additionally, we

need to look at how we can harness the sizable talent and information acquired by these temporary employees.

Today’s hearing will also provide us the chance to hear from the

employer as well as the employee side of the temporary hiring

issue. My intent is for this afternoon’s hearing to provide all of us

with an opportunity to further the dialog on various ideas and suggestions on how we can best reach a middle ground on some of

these issues so that our employees are properly taken care of without agency budgets being overly stretched.

It is my hope that the testimony and feedback we receive from

today’s witnesses will provide the subcommittee with precise guidance and direction. Again, I thank each of you for being with us

this afternoon, and I look forward to your participation.

[The prepared statement of Hon. Stephen F. Lynch follows:]

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Mr. LYNCH. I now yield to the ranking member, Mr. Chaffetz, for

5 minutes for an opening statement.

Mr. CHAFFETZ. Thank you, Mr. Chairman.

And thank you to our witnesses for being here and the preparation you put forward. This testimony is important, as we dive into

this issue.

Temporary employees provide Federal agencies with flexibility

needed to handle temporary increases in workload, such as seasonal work and short-term projects, or to hire people to fill in behind permanent employees during an extended leave of absence,

such as parental leave.

These positions are not intended to be used as tryouts or as substitutes to buffer the full-time work force. Congress and the Office

of Personnel Management must continue to work diligently to ensure that agencies comply with the statutory and regulatory framework and limitations on the use of temporary workers. At the same

time, any statutory or regulatory change must be approached with

caution to ensure there is an effective work force, while limiting

spending and maintaining the flexibility the system is intended to

provide.

In 1998, the last time the Office of Personnel Management estimated the cost of extending health and pension benefits to temporary workers, it estimated the total cost of providing these benefits to the 102,000-plus temporary employees would be in excess of

$784 million.

Today, there is something like in the ballpark of 183,000 temporary workers. And, like all Federal employees, their salaries

have grown significantly since 1998. In a year when the Federal

deficit is projected to exceed last year’s record high of $1.4 trillion

and unemployment is in the range of 9.7 percent across the country, a billion-dollar increase in spending would be, obviously, irresponsible.

I look forward to hearing suggestions from today’s witnesses on

how the Office of Personnel Management and Congress can work

together to ensure agencies use temporary workers in accordance

with standing regulations and statutes. I look forward to the interaction, and, again, I thank you for being here.

I yield back, Mr. Chairman.

Mr. LYNCH. I thank the gentleman.

The chair now recognizes the gentlelady from the District of Columbia, Ms. Eleanor Holmes Norton, for 5 minutes for an opening

statement.

Ms. NORTON. Thank you very much, Mr. Chairman. And I thank

you for this hearing and regret that this hearing is necessary, because this issue came up not shortly after I came to Congress almost 20 years ago, and I wonder if we are seeing progress.

I note that the number of temporary employees has gone up.

That doesn’t, in and of itself, bother me, because there are increasing numbers of temporary employees and it is a very satisfactory

status to many people. But I think, at this hearing, we need to find

out whether temporary status is being abused or if it simply

doesn’t work the way we are implementing it.

I am particularly concerned, Mr. Chairman, that, in the year in

which we have just passed a monumentally historic health care reVerDate 11-MAY-2000 14:16 Feb 23, 2011 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\62948.TXT KATIE PsN: KATIE
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form bill, these workers apparently still cannot get access to health

care unless they pay for it entirely. I cannot understand how anybody working for the Federal Government would be put in that position for any period of time. And I would be very interested to

know whether or not the health care bill we just passed makes any

difference with respect to that status.

Very concerning, too, is the lack of any retirement benefits. Now,

a time limit was put on the number of years you could serve as a

temporary employee, and I don’t have objections to that. The reason I don’t have objections to it, at least as it stands now, is that

we want to preserve the merit system as the way to hire employees.

On the other hand, I am troubled by reports of temporary employees who are working far longer than the 2-year limit because

that can be waived. And I think the reason probably is that their

experience is needed. I do join the ranking member in understanding the need for flexibility here, but flexibility should not come with

abuse.

The case that first led to reforms involved a man from the District of Columbia who worked three shifts over July 4th and

dropped dead from it. He had a wife and five or six children, and

nothing to show for it.

I went to the floor with a bill. And a bill for a single individual

is very rare in this House, but the House and the Senate saw this

as not only a signal that there was reform needed but that something had to be done for this man, and we were able to get some

funds for him.

I regret to see now that perhaps too little was done, and hope

to learn more from this hearing about what more needs to be done

consistent with maintaining the flexibility of temporary employment, which is employment that is not only to the benefit of the

Federal Government but many others who work in part-time positions as well.

Thank you again, Mr. Chairman.

Mr. LYNCH. I thank the gentlelady.

The chair now recognizes the gentleman from Virginia, Mr.

Connolly, for 5 minutes for an opening statement.

Mr. CONNOLLY. Thank you very much, Mr. Chairman, for continuing to tackle one of the more intractable challenges facing our

Federal work force.

Widespread agency abuse of temporary employee hiring practices

is both the symptom of a broken hiring system and an ongoing impediment to the long-range recruitment and retention of the highcaliber employees we need in the Federal Government. The Office

of Personnel Management needs to use its administrative authority

to the maximum extent possible to crack down on agencies’ abuse

of temporary hiring as a logical accompaniment to the implementation of the President’s recently announced hiring reforms, which I,

for one, welcome.

One reform OPM could implement would be to close the loophole

allowing repeated temporary hires of seasonal employees who work

less than 6 months in a year. Temporary hiring has all too frequently been abused as a de facto means of retaining long-term

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employees to save money in the short run, at the expense of both

the Federal employee and Federal efficiency in the long run.

It is not surprising that agencies use temporary hiring authorities, including the misnamed Federal Career Internship Program,

to fill employment positions since the current hiring process is so

inefficient. Fortunately, President Obama and OPM Director Berry

are taking aggressive steps to reform that process by eliminating

KSA essay requirements and streamlining hiring on USAJobs.

These reforms will allow agencies to fill job positions more readily

with permanent employees hired under merit principles.

For their part, agencies must take advantage of the opportunity

and begin making progress to reverse the 25,000-position growth in

temporary employment that occurred between 1992 and 2009.

I look forward to hearing the Forest Service’s plans for reforming

abuse of temporary hiring authority. An extraordinary 53 percent

of Forest Service employees who responded to a National Federation of Federal Employees survey said that they had been temporarily hired for five or more seasons, even though the Merit Systems Protection Board advised that temporary employment policies

should be based on the assumption that the employment will normally be on a one-time, short-duration basis.

Many of these temporary employees are, in fact, long-term, dedicated public servants. For example, Forest Service fire crews who

have served year after year from June to October, or longer, may

be seasonal but they surely are not temporary.

Many of these Forest Service positions involve hard, dangerous

labor. It is morally repugnant to exploit temporary hiring authority

to avoid providing Forest Service employees the benefits that, in

fact, they have earned through what is frequently long-term service

and certainly dangerous.

This is not principally an issue of workers’ rights, however, but

rather Federal efficiency and productivity. We must remain focused

on recruiting and retaining the best employees in what is frequently a very competitive job market. In order to recruit and retain the best employees who will serve our constituents, we must

ensure that agencies are offering basic benefits rather than longterm temporary employment that does an injustice to both Federal

employees and, in the long run, the taxpayers themselves.

I yield back.

Mr. LYNCH. I thank the gentleman.

Again, I want to welcome our witnesses.

It is the custom before this committee that all witnesses are

sworn in. Could I ask you to please rise and raise your right

hands?

[Witnesses sworn.]

Mr. LYNCH. Let the record indicate that all of the witnesses have

answered in the affirmative.

What I will do is offer a brief introduction of the witnesses, and

then each will be afforded 5 minutes for an opening statement.

Just for the beginning, the small boxes in front of you on the

table will indicate green while your time is proceeding, then yellow

when it is time to wrap up, and then red when you should stop testifying.

And let me begin.

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Mr. Jerry Simpson began his Federal career with the National

Aeronautics and Space Administration in 1967. In 2006, he left

NASA to join the National Park Service. Mr. Simpson currently

serves as the associate director of work force management for the

National Park Service, where his duties include ensuring effective

utilization of Federal employees, concession employees, co-operators, contractors, and volunteers.

Mr. Hank Kashdan has served the National Forest Service for 35

years and is currently the Forest Service’s associate chief. During

his tenure with the Forest Service, Mr. Kashdan has served in a

variety of roles, including his appointment as deputy chief of business operations.

Ms. Angela Bailey was selected for the Senior Executive Service

in October 2007 after 26 years of public service. She currently

serves as deputy associate director for recruitment and diversity at

the Office of Personnel Management. Prior to joining the Office of

Personnel Management, Ms. Bailey worked for the Social Security

Administration and the Department of Defense.

Mr. Simpson, you are now recognized for 5 minutes for an opening statement.

STATEMENTS OF JERRY SIMPSON, ASSOCIATE DIRECTOR FOR

WORKFORCE MANAGEMENT, U.S. NATIONAL PARK SERVICE;

HANK KASHDAN, ASSOCIATE CHIEF, U.S. FOREST SERVICE;

AND ANGELA BAILEY, DEPUTY ASSOCIATE DIRECTOR FOR

RECRUITMENT AND DIVERSITY, U.S. OFFICE OF PERSONNEL

MANAGEMENT

STATEMENT OF JERRY SIMPSON

Mr. SIMPSON. Mr. Chairman, thank you for the opportunity to

appear today to discuss issues facing temporary employees. In the

interest of time, I will summarize my written testimony and then

answer questions you may have.

For many years, the Park Service has relied heavily on a seasonal work force to augment its permanent staff. Today, we hire

approximately 10,000 seasonal employees every year to provide

critical services, especially during peak summer visitation. The variety of positions that we hire includes maintenance workers; rangers, both law enforcement protection and interpretation; fee collectors; biological technicians; landscape architects; firefighters; and

lifeguards, just to name a few.

Seasonal positions in the Park Service are very competitive, and

the number of applicants usually far exceeds the number of available positions. We use temporary hiring authorities to fill many of

these positions, often through open, competitive examination procedures. However, we may also give temporary appointments noncompetitively to certain individuals, and we do make use of the

Student Educational Employment Program to noncompetitively fill

positions performing seasonal work.

The Park Service is concerned about the morale and the equitable treatment of our seasonal work force. Because the Employee

Viewpoint Survey conducted by OPM is only distributed to permanent employees, we recently completed a comparable internal surVerDate 11-MAY-2000 14:16 Feb 23, 2011 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\62948.TXT KATIE PsN: KATIE
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vey distributed to approximately 6,000 of our employees who were

hired after June 2009, including seasonal employees.

According to the survey, our seasonal employees, like their permanent coworkers, derive very high satisfaction from their belief

that the work they do is important and that they like the work

that they do. Their greatest dissatisfiers, however, are with the

lack of health and retirement benefits, the lack of job security, and

the lack of equity with permanent staff, particularly where promotions and within-grade pay increases are at stake.

Approximately 43 percent of those survey respondents indicated

they were considering leaving the Park Service within the next

year.

We have formed an internal work group to help address these

issues, and we will actively be working on those in the coming

year, within existing regulatory and budgetary constraints.

Though seasonal employees are not eligible for participation in

the Federal Employees Health Benefits program, we do make available to all of our seasonal employees when they first start work,

information about private health insurance that is available to

them through the Association for National Park Rangers, which is

a nonprofit employee organization.

We are vigilant in monitoring our use of temporaries. We conduct

multiple audits annually to ensure compliance with the temporary

hiring laws, regulations, and the time limits imposed on these appointments by OPM guidelines. Over the past 3 years, the Park

Service has conducted between 15 and 20 of these reviews with an

OPM staff member as a member of each review team, and we have

found no major compliance issues in these areas.

So, in summary, the use of temporary hiring authorities is critical to the Park Service. They play a role in our seasonal recruitment efforts, and they allow us to meet our NPS mission. We strive

to ensure that our use of authorities is in compliance with Civil

Service laws and regulations, but we would welcome the opportunity to work with the committee and other agencies and departments to explore potential solutions to the issues that will be discussed today.

So, Mr. Chairman, this concludes my prepared remarks, and I

would be happy to answer questions.

[The prepared statement of Mr. Simpson follows:]

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Mr. LYNCH. Thank you, Mr. Simpson.

Mr. Kashdan, welcome. You are now recognized for 5 minutes for

an opening statement.

STATEMENT OF HANK KASHDAN

Mr. KASHDAN. Thank you, Chairman lynch, Mr. Bilbray, Ms.

Norton, Mr. Connolly. I appreciate the opportunity to be here today

to talk about a very critical segment of the work force that delivers

the Forest Service mission, that being the temporary seasonal work

force.

In addressing the subcommittee’s concerns about temporary hiring authorities and benefits, legislative issues, and qualification for

permanent jobs, I think it is important to just lay out an employment profile for the agency.

At any given time in the Forest Service, we will have up to about

30,000 career employees. At this time of the year, the end of June,

early July, we will increase that number to almost 45,000, adding

15,000 temporary seasonals to the work force. And that typically

hits its height right about this time of the year. These employees

are primarily field employees. They will work in wildlife habitat

management, watershed restoration, recreation management, forest products, and the big employer being wildfire suppression.

Our field seasons vary. In the southern tier of the United States,

that field season may last all year. In the Northeast and the Northwest, as well as Alaska, that field season can be fairly short, 3 or

4 months. So, in addressing the question of how long does a temporary last, I would like to address it from a strictly plain and simple business-model standpoint, as well as an empathetic standpoint, trying to put myself in the shoes of a temporary employee.

From the business-model standpoint, I think there are some

basic attributes that we have to consider. Most of the Forest Service field work is, in fact, seasonal. Winter-type or non-season office

work is different than seasonal field work.

As an executive in the agency that manages the work force, I

think there is an important aspect of the budget profile that necessitates having a reasonable level of discretionary costs compared to

fixed costs. As an executive, I look at 20 to 30 percent of our budget

profile being discretionary as a reasonable level to achieve.

Seasonal employees are in the discretionary category, along with

grants, agreements, contracts, and procurement. Permanent employees would be in the fixed-cost category, along with infrastructure. Now, that is the very plain and simple budget profile.

In the work force profile, it is very important for the agency’s employment profile to represent a variety of sources from which employees are derived. This includes veterans, interns in college,

placements from Job Corps, Presidential Management Fellows, returning Peace Corps volunteers, and from the ranks of seasonal

work force. And let me just add that seasonal work force provides

about 44 percent of our current career work force in the agency. So

it is the single largest component.

Now, that is the business model that I think it is important to

pay attention to.

From the empathy standpoint, I do identify with seasonal employees who want career jobs. I started as a seasonal. The chief of

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the Forest Service, Tom Tidwell, was a seasonal. We both moved

into the career ranks and achieved the positions we have today.

Many seasonals desire career positions. We want seasonals to fill

career jobs.

But it is also important to note that some seasonal employees do

not look for a career in the Forest Service. There is a good percentage of employees that are attending school; they work in the summertime. There are teachers who teach during the school year and

work in the summertime. And then there are others who have

other pursuits that is complementary to a seasonal work force.

Now, back to the employees that do want a job, I do have a personal empathy. My son is a 5-year seasonal. He is very frustrated

with the process of trying to become a career employee. He told me

just last week he is sick of filling out job applications. So I can

identify with that.

We have had some tough-love conversations about this very

issue, and what I tell him are the four things that I tell anybody

who asks me about getting a career job: You have to go where the

jobs are. You may have to do a job you don’t want in order to get

your foot in the career employment category. You should consider

serving your country in the military and getting veterans’ preference or joining the Peace Corps and coming back with a noncompetitive placement authority. Or consider going back to school.

If you can’t do one or more of these things, the reality is that you

do limit yourself in pursuing a career position.

So, in closing, Mr. Chairman, let me just acknowledge that the

union, particularly, and I have discussed the issue of a pathway to

permanence. Right now, we don’t have the authority to do that.

Should the administration and Congress consider those types of incentives for long-term seasonals, we are happy to provide our input

and take part in that dialog.

So that concludes my remarks, Mr. Chairman. Thank you.

[The prepared statement of Mr. Kashdan follows:]

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Mr. LYNCH. Thank you, Mr. Kashdan.

Ms. Bailey, you are now recognized for 5 minutes for an opening

statement.

STATEMENT OF ANGELA BAILEY

Ms. BAILEY. Thank you, Mr. Chairman and members of the subcommittee, for the opportunity to testify on behalf of the Office of

Personnel Management regarding temporary employment in the

Federal Government.

Federal agencies use temporary appointments when they do not

need an employee’s services permanently. These appointments are

used in a variety of circumstances, including when an office is

scheduled to be reorganized or abolished, to complete a specific

short-term project or to meet peak workload demand.

Some employees serving under temporary appointments are employed seasonally—that is, they work during certain times of the

year on a reoccurring basis. The term ‘‘seasonal’’ refers to the employees’ work schedules and not their appointment type. Some seasonal workers are temporary while others serve under permanent

appointments. I will elaborate on that in a moment.

Temporary appointments are limited to 1 year or less. They can

be extended for a maximum of 1 additional year. Generally, an

agency may not fill a position by temporary appointment if that position has been filled by temporary appointment for an aggregate

of 24 months with the preceding 3-year period.

OPM regulations require that the supervisor of each position

filled by temporary appointment must certify that the need for the

position is truly temporary and that the appointment meets the

regulatory time limits. The certification must include the specific

reason for using a temporary appointment.

Let me review why these limitations were imposed. Until 1985,

temporary appointments were much like they are today. Appointments were limited to 1 year, with a maximum 1-year extension.

In 1985, OPM made several policy changes to give agencies greater

flexibility to meet mission and budgetary challenges. From 1985

through 1994, temporary appointments could be extended for up to

4 years in 1-year increments. There was no limit on the number

of times the position could be filled using temporary appointments.

One of the consequences of this situation was that many temporary employees developed an expectation of continuing employment because agencies could appoint them to successive temporary

appointments, sometimes for decades.

One example of this was the tragic case of James Hudson, an

employee of the National Park Service, who died on the job. Because he was a temporary employee, albeit with more than 8 years

of service, his family was not eligible for certain benefits they

would have received had he been serving under a permanent appointment at the time of his death.

OPM reexamined the use of temporary appointments and, in

1994, revised the rules governing them. We prescribed the limitations I outlined in order to ensure that temporary appointments

will be used for truly short-term hiring needs and to avoid the perception by employees that temporary employment could last indefinitely.

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Our regulations provide for limited exceptions from the time limits. Agencies can ask OPM for exceptions on a case-by-case basis

only when required by major reorganizations, base closings, or

other unusual circumstances. OPM requires agencies to submit a

work-related justification for each request.

In addition, OPM regulations provide an exception to the time

limits for work that is expected to last less than 6 months each

year. The reason for this exception is that some agencies need to

be able to bring back some employees on a seasonal basis. In contrast to seasonal employees who work more than 6 months in a

year, and who therefore must be employed under permanent appointments, those who work less than 6 months a year may be

given temporary appointments that may be renewed multiple

times. This exception allows agencies to limit the number of permanent employees they hire while retaining the flexibility to employ

seasonal workers whose services are needed for less than 6 months

each year.

A concern that is often raised with respect to employees serving

under temporary appointments is that they are excluded from coverage under the retirement programs for Federal employees. Retirement coverage is generally not in the interest of either these

employees or the agencies they work for. This is true because of the

requirement that an individual must work for at least 5 years in

the covered employment in order to become entitled to an annuity.

Most temporary employees never fulfill this 5-year requirement, so

it does not make sense for them to have contributions to the retirement system withheld from their pay.

As is the case with the retirement coverage, the laws governing

the Federal Employees Health Benefits and Federal Employees

Group Life Insurance programs authorize OPM to exclude certain

categories of employees from coverage based on the nature and

type of their employment. Consequently, employees serving under

temporary appointments are generally excluded from coverage

under the health and life insurance programs.

Thank you again for the opportunity to discuss with you how

temporary employment is used in the Federal Government and how

and why it affects employee benefits. I would be happy to respond

to any questions you may have.

[The prepared statement of Ms. Bailey follows:]

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Mr. LYNCH. Thank you, Ms. Bailey.

I want to welcome Mr. Bilbray to this hearing.

Let me start with you, Mr. Simpson. I understand from your testimony that a substantial number of your employees serve on a

temporary basis. I do have to note the oxymoron, I guess, of ‘‘career

temporary employee.’’ You know, you have folks who are doing career-related jobs but on a temporary basis. You have a general policy that was articulated by Ms. Bailey that says a person can work

for a year with 1 additional year and that’s it, except that we allow

a waiver, and now it is perpetual, apparently, for some of these employees.

But I am just wondering, the impact on the employees, the morale of the employees, productivity, how they approach the job, and

the impact on their families and the workers, and the peace of

mind in terms of, you know, the management and the work force

there, given the fact that a lot of these people are in limbo, they

are continually reemployed as temporary workers without any benefits.

How is that impacting the work force, and how is that impacting

the conduct of your responsibilities in the workplace?

Mr. SIMPSON. Well, Mr. Chairman, I think it is pretty clear that

there are employees that are impacted by that. As Mr. Kashdan

mentioned, similar to the Forest Service, we have a wide variety

of circumstances represented in our seasonal work force, and those

issues are not true for all of our seasonals. But for those that it

is true, it certainly can’t be denied, it has an impact on morale.

Mr. LYNCH. You mentioned earlier you are oversubscribed for

these temporary positions. So is it just too bad, if you don’t like it,

we have somebody else who wants that job? Is that how we look

at it?

Mr. SIMPSON. I wouldn’t say that we would look at it that way,

no. Every manager makes their own decisions about who they hire.

And there are a lot of individuals that are hired back because they

want to come back and their manager that they worked for the previous season wants to have them back. That is one of the reasons

why we have far more applications than we have available slots for

the competitively advertised positions that we fill.

Mr. LYNCH. Mr. Kashdan, in your closing remarks, you said that

if the administration were willing to, you know, look at this rule

again and change its policy, you would be happy to participate.

Well, this committee is doing just that.

You know, we have a lot of complaints from workers that, you

know, they have been in this limbo for a long time. They get rehired. They look at other folks that are doing the same jobs that

they are doing, albeit they are full-time, full-year, but these folks

are doing it over and over and over again multiple years.

And, at the end of the day, you have the situation that was illustrated earlier about an employee who, you know, for all intents and

purposes, was continually reemployed but was denied all these benefits because he fell in a different class.

How do you feel—I mean, you are saying that 44 percent of your

career positions are being occupied by temporary employees. Is that

just a result of the seasonal nature? Or are we looking at a strategy employed by management to really try to reduce their costs,

27

and so if we can keep 44 percent of the people with no benefits,

you know, no health insurance, no retirement, no annuity, then,

you know, we can manage our budget a lot better?

Mr. KASHDAN. Mr. Chairman, let me clarify. I guess I didn’t state

that fact very well. What I meant to state was that, of our career

work force, those who have career status, in other words permanent employees, 44 percent of that career work force came from the

ranks——

Mr. LYNCH. Ah, OK.

Mr. KASHDAN [continuing]. Of employees who previously were

temporary seasonals.

Mr. LYNCH. OK. So there is a path to——

Mr. KASHDAN. Yes. And it is the largest single segment. I do

think it is critical to have a variety of employment sources. Temporary seasonal employees are a very, very large part of the current career profile. That is where they came from. It is a very important source.

Mr. LYNCH. And that is not withstanding the fact that, as in your

testimony, you said earlier, you have veterans groups that you give

priority to, you have folks coming in from the Peace Corps, so they

have other, I guess, noncompetitive status, you know, right to appointments as well, and you are still getting 44 percent from the

temporary work force into career status?

Mr. KASHDAN. That’s correct, Mr. Chairman. In fact, if you appreciate that a certain segment of our career work force is administrative in nature, say, 5,000 or 6,000 employees that don’t have

seasonal counterparts, those positions that are natural-resource-related, actually, their number is up in the 55 to 56 percent range.

Mr. LYNCH. OK. I have exhausted my time. I am going to yield

for 5 minutes to Mr. Bilbray.

Mr. BILBRAY. Thank you.

On the average, how many individuals do we have who apply for

permanent positions? Anybody know? In your department.

I would like to see a comparison between the permanent applications and the temporary applications. Can you give me some kind

of reference? Do you have any idea of that?

Ms. BAILEY. Well, each year, we fill approximately 350,000 positions. Of those, 150,000 are permanent. At any one given time, we

are averaging around 450 people per job announcement. And I

know that, on average, we have somewhere around 2 million people

apply for our jobs each year. That is across the board, governmentwide.

Mr. BILBRAY. I mean, this discussion, sort of, sparked my interest. I spent 6 years as a seasonal worker. Of course, it is scary to

think that somebody, when I started off in 1970, and he was an

elderly person, almost 30 years old, was lifeguarding, that they are

still out—the same people that I worked with in 1970, a lot of them

are still seasonal workers doing the same thing.

I guess the discussion is, one thing we don’t think about, many

seasonal workers, this is not their only employment—a lot of teachers, a lot of different types of seasonal professions—and they mix

and match.

Do you have any numbers at all of what portion of our seasonal

work force this is a second income?

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Ms. BAILEY. No, I do not.

Mr. KASHDAN. I don’t have any specific data.

From my experience in working in the work force, I would estimate that about half or more of our seasonals would ultimately desire a career job in the Forest Service. There are, certainly, those

who don’t that I described in my testimony. There is even the one

or two I run into now and then who look forward to working for

6 months and going to Mexico for 2 months. And I start to wonder

where I went wrong in that.

But, for the most part, there is a sizable number that ultimately

want to achieve a career appointment in the Forest Service.

Mr. BILBRAY. Every time I go down to Latin America, I agree

with them, OK?

Yeah, I think there is legitimate concern here, the fact that this

is not just a situation where people are living off of a few months

of work. I just know that there are real estate agents who do this

type of thing, there are people who are teaching. There is a whole

lot of different professions that find that ability. People who are in

property management can get into this. So I just think that a lot

of this discussion is somehow focused on a perception that may not

be reality.

But the other issue is, with this 44 percent, you know, I am just

wondering how much of the complaints are people who think that,

if they get seasonal and work for a few years, that puts them in

the pecking order to basically be moved up—which should be true

if they are employees who we want to participate. But seeing that

we have—how many applications do we have for temporary service

in your department? What was the number that you gave out?

Ms. BAILEY. Well, I was just saying that, of the 350,000 that we

fill each year, 200,000 of those are temporary or seasonal.

Mr. BILBRAY. But you don’t know how many applications you

have for those——

Ms. BAILEY. No. On average, though, today, we get around 450

applications for every job that we announce.

Mr. BILBRAY. OK. So, in other words, the market out there is

very large. It is an employer’s market, when it comes to working

for the government, even if it is seasonal, right?

Ms. BAILEY. Correct.

Mr. BILBRAY. OK. So there is enough people on the outside of the

system who really think this is a really good deal, even though

there may be those in the system, once they are in, feeling that it

is not a very good deal.Is that fair to say?

What is the turnover with our seasonal?

Mr. KASHDAN. Overall, in the Forest Service, in the career ranks,

we are looking at around a 5 or 6 percent attrition rate.

Mr. BILBRAY. That is extraordinary.

Mr. KASHDAN. It is fairly small.

In the seasonal ranks, it is very hard to put your finger on because you are bringing in the factor of those who are not looking

at it as continuous, long-term, season-after-season approach. So I

don’t really have any data on——

Mr. BILBRAY. OK. Just for the record, I find it extraordinary that

we would want to limit seasonal workers, for some reason, to how

many years. I’m sorry, I still think the old guys that are there, that

29

have been there for 30 years, are probably still the best lifeguards

on that beach. And, frankly, just because they keep coming back

indicates that they do enjoy it, and that we keep hiring means they

are doing a good job.

And I worry about this attitude that basically says that, you

know, we don’t expect seasonals to be around long. I think we

wouldn’t do that with our full-time employees; I hope we never do

that with our seasonals.

Thank you very much, Mr. Chairman.

Mr. LYNCH. Thank you, Mr. Bilbray.

The chair now recognizes—we have been called for votes, so

Members will be leaving and coming back in. And I am going to

ask Ms. Eleanor Holmes Norton to chair in my absence.

But I now recognize the gentleman from Virginia, Mr. Connolly,

for 5 minutes.

Mr. CONNOLLY. I thank the chairman.

Let me ask Ms. Bailey, is it your testimony today that abuses

have, in fact, occurred using temporary hires?

Ms. BAILEY. No, it is not my testimony today that——

Mr. CONNOLLY. So, then, no abuses have occurred?

Ms. BAILEY. No, we do not believe that abuses have occurred

using this temporary appointment authority. Given our oversight

and accountability role in this and working with the agencies, we

do not believe that there have been abuses.

Mr. CONNOLLY. No abuses?

Ms. BAILEY. Correct.

Mr. CONNOLLY. OK.

Let me ask you a hypothetical question. We do the census every

10 years. I would ask it of the panel. Now, clearly, hiring temporary census workers for a period of a few months to undertake

the initial data collection and/or to followup on that data collection

because it was inadequate or incomplete somehow goes on every 10

years. And that, I think we would all agree, is clearly a temporary

position.

Would you consider it temporary, however, if we did a census

every year and we hired that person for 6 months every year? Is

that a temporary hire, as far as you are concerned, perfectly legitimate and could go on until that person retires? Is that a correct

use in the Federal workplace of this category, temporary hire?

Mr. Kashdan.

Mr. KASHDAN. I’m sorry, Mr. Connolly, I thought that was a

question for Ms. Bailey there.

Mr. CONNOLLY. I’m sorry, I was just opening it up to any of you.

Mr. KASHDAN. OK. We use an appointment, we call it a 1039. I

think the correct term is a—less than 1,040 hours. It is a type of

temporary authority we use that is specifically used for work that

is seasonal and temporary in nature.

Sometimes I think we overlay the issue of benefits with that. We

do not use this authority for the purpose of denying benefits. If

benefits were part of that, we would still use the authority.

We use this authority because it is particularly the one that is

geared for work that is temporary and seasonal in nature. And we

have quite a few of our seasonal employees that do work almost

that—right up to that 1,040 hours.

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Mr. CONNOLLY. But——

Mr. KASHDAN. And that’s not to say it is not something that

many of them are frustrated with.

Mr. CONNOLLY. I am just asking a different question, though. I’m

glad you told us about the practice, but at what point do we have

to agree we are sort of doing an end run on the system in calling

somebody ‘‘temporary?’’

And what is the time limit for somebody to be in that status? I

thought Federal regulations—you went through, Mr. Bailey, in

your testimony, you know, changes in the law going back to the

1980’s. But is the current practice or the current law, as you understand it, literally ad infinitum? There is no limit?

Ms. BAILEY. Actually, if I could address your initial question with

regard to the census takers and, if we hire them back each year,

is that really, truly temporary. In that particular case, what the

current law and what our regulations allow for is, an agency could

make a decision to hire them either as temporary employees or as

permanent employees, and either one could carry what we would

call a seasonal work schedule.

So, in other words, if something is reoccurring every year, we

would probably suggest to an agency that, rather than use temporary employment, that you would make those permanent seasonal employees or permanent because it is reoccurring.

Mr. CONNOLLY. Does the Forest Service do that?

Mr. KASHDAN. In certain areas. Actually, particularly California

is an example where we have career seasonals for exactly the reason that we are talking about here. The fire season could go very

long, could go 6 months, it could go longer than that. And, also, for

other reasons of trying to have a work force that we have been able

to retain over a longer period of time, provide retention incentives.

So there are areas where we do have career seasonals.

Now, along those northern-tier States where the work is primarily field, you will find less of a profile that are career seasonal

and more temporary seasonals. So it really varies with the work

and the fluctuation in the work. You know, in the forest products

area, that work may fluctuate from year to year and we don’t know

how many seasonals we will need. In fire, it is fairly predictable.

Mr. CONNOLLY. My time is almost up, but, Mr. Simpson, I want

to give you a chance to respond.

Mr. SIMPSON. I would echo what Mr. Kashdan said. We also have

a mixture of seasonals who are on career appointments as well as

seasonals who are temporaries, for the same reasons.

Mr. CONNOLLY. My time is up, Madam Chairman, and I thank

you.

I just want to say, I am stunned by Ms. Bailey’s testimony that

they have never found, are not aware of any abuse of the use of

temporary hires. That is an extraordinary statement for a work

force as large as the Federal Government. Even a work force as

normally perfect as ours, there has to be abuse now and then. And

I think that is a challenge, frankly, for this committee.

Thank you.

Ms. NORTON [presiding]. Thank you very much.

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Ms. Bailey, would you like to revise your statement in any way?

I mean, you have just—my colleague says that you have just come

up with a perfect system.

Ms. BAILEY. Well, yes. Thank you, ma’am.

I think it is safe to say that we do have—through our oversight

role, if we do find a situation where there is an abuse that is occurring, we will absolutely go in and work with that agency in an informal manner. We can do all kinds of things, from training the

hiring managers to training the HR specialists——

Ms. NORTON. Do you keep records of where you have found

abuses?

Ms. BAILEY. Actually, yes. As part of our oversight and accountability, we keep records of all agencies where we have found a finding of a violation. And then we make a record of that for both the

agency and for OPM.

Ms. NORTON. Well, Ms. Bailey, it would be very helpful if you

would submit to the subcommittee within the last, let’s say, 2 years

to give us some sense of what kinds of——

Mr. CONNOLLY. Madam Chairwoman.

Ms. NORTON. Yes, Mr. Connolly?

Mr. CONNOLLY. Would you yield just for one point?

Ms. NORTON. Indeed.

Mr. CONNOLLY. I thought Ms. Bailey’s testimony, in answer directly to my question was, we have found no such examples, none.

And now I am hearing Ms. Bailey say, well, actually, when we find

them, we do take corrective action.

And if you wanted to correct your statement, please feel free to

do so. But I am leaving here with your answer under oath to my

question that you have found no examples of the abuse of the use

of temporary positions in the Federal work force.

Ms. BAILEY. And that, sir, I do not want to change. That is correct. We have not found one instance of an abuse under this authority.

Ms. NORTON. Apparently, GAO data showed that 11 percent of

the temporary employees had worked more than 5 years. Would

you consider that an abuse?

Ms. BAILEY. Well, it really depends on exactly under what conditions these folks are working.

Ms. NORTON. Well, they got a waiver. They keep getting a waiver. Wouldn’t automatic waivers constitute an abuse?

Ms. BAILEY. I am not aware of any instance where an agency has

abused the automatic waiver situation. They have applied it appropriately. Wherever we have actually used our oversight authority,

they have applied it appropriately in accordance with the OPM regulations.

Ms. NORTON. Well, then you are back to Mr. Connolly’s point,

that if they have applied it appropriately, you wouldn’t have to go

in and retrain and otherwise correct the abuse. That is the problem

we have with your testimony.

Ms. BAILEY. OK——

Ms. NORTON. But I think it will be clarified if you just do what

I asked you to do. For the last 2 years, would you submit for the

record—I understand we may have a definitional problem, you may

regard what an employee has—what a manager has done as a misVerDate 11-MAY-2000 14:16 Feb 23, 2011 Jkt 000000 PO 00000 Frm 00035 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\62948.TXT KATIE PsN: KATIE
32

take. Whatever it is, we are not trying to play any ‘‘gotcha’’ here.

We are just trying to see how the system works.

So if you would provide for the chairman within 30 days a record

of those instances where you, OPM, have gone in to assist managers or employees with respect to temporary hires, that would assist our record.

Now, as I see it, this hearing is really about two things. One is

benefits, and the other is the merit system.

We see temporary employees as valuable, in fact, in some places,

as indispensable, as in the National Park Service, for example, or

Forest Service.

I would be interested to know, though, Ms. Bailey, because we

here have before us managers from more typical temporary service

agencies, I would like to know what percentage of temporary employees are outside of the seasonal area that we have just heard

about and where we see the critical need in order to function.

Ms. BAILEY. I am not sure of the exact percentage, but——

Ms. NORTON. We understand that they are in virtually every category, that agencies far from just the National Park Service or the

Forest Service, the IRS and you name it, all feel free to use temporary employees.

It would benefit our record to know what percentage come outside of these seasonal employees and yet are temporary employees

that are used across the government.

Within 30 days, would you submit that information to the

record?

Mr. Kashdan, I was interested in your testimony. Seems reasonable that there were a fair number of people, even yourself, who

came into the government first as seasonal employees and then became full employees.

Now, our concern, of course, is, how does this key with the merit

system? Could you tell us, in your case, how you were able to become a merit system employee while beginning as a temporary seasonal employee? How were you able to compete?

Mr. KASHDAN. Sure, Ms. Norton. Let me just clarify that, even

in the 6-month seasonal, there is an initial period where there is

a competition, and you do have to go through a process where you

consider such things as veterans’ preference, that kind of thing.

But your probability of getting into the seasonal work force is much

more enhanced. And then, after that, you can be recurringly appointed if you are not exceeding the 1,040 hours.

In my particular case, I applied—I don’t even know if they have

these anymore, but back in my time I applied for what we called

OPM rosters, and I was on a recurring list for civil engineering

technicians. And, at the point that the forest that I had, in fact,

moved to in order to enhance my chances of getting a career job,

they decided to fill the career job, went to the roster, and I was

available. So I was able to be picked up off that roster.

So the merit process was going through the OPM roster, being

ranked, and being entered on the roster. And that is how I got in.

It is the same way that our chief, Tom Tidwell, got in too.

Ms. NORTON. So you were competing with people who had no experience.

Mr. KASHDAN. I was competing——

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Ms. NORTON. I shouldn’t say who had no experience. Who knows?

Some of them may have had certain kinds experience outside of the

government. But you were competing with people who would have

not had experience in the agency you wished to work for.

Mr. KASHDAN. Yes. Ms. Norton, I was competing—at that point

in time, I believe I was a GS–5, and, in fact, I was on a GS–4 roster. So I had some years, it didn’t matter where those years were,

they were experience that credited me and qualified me for——

Ms. NORTON. So that’s what I want to get at. When you are competing on the merit side—and perhaps this is a question relevant

for Ms. Bailey, as well—to what extent does experience received on

the seasonal or temporary side count or help an employee to obtain

permanent employment through the merit system?

Ms. BAILEY. Experience is something that counts regardless of

how it’s acquired. So if it’s acquired under a seasonal appointment

or a temporary appointment or if it’s acquired outside the Federal

Government—so let’s take a Federal firefighter that happens to be

working on a seasonal basis. Not only would that experience count,

if then, in the wintertime, they’re also a firefighter with the city

of New York, that experience, combined experience, would count

and then give them creditable experience toward whatever position

that they are applying for.

So we don’t make distinctions based on an appointment type or

a work schedule. Experience is experience, no matter how it’s

gained.

Ms. NORTON. Let me ask you, Ms. Bailey, at the time of the

death of James Hudson—and the whole city was moved by this

hardworking man who just kept working, because he obviously

needed to work, with a family—so far as I can tell, all that happened was there was a cap put on the number of years a temporary

employee could work consecutively. Is that right?

Ms. BAILEY. Yes. As part of our review of that particular case

and then in consultation with the agencies in discussing how best

to balance both the mission accomplishment with what is in the

best interest of the employees, that is correct, that we did put in—

our temporary employment regulations allow for 1 year of employment and then a 1-year extension.

And the whole intent of this was to——

Ms. NORTON. Although I’ve just quoted you numbers that show

a healthy number who work 5 years. When they work 5 years, is

that because there is a shortage? Or is it because these employees

are regarded as—the workplace usually regards employees, they’re

looking for experienced people, and so they keep picking these people up?

Ms. BAILEY. It may depend, ma’am, on which kind of appointment that they’re actually using. Some of the agencies are able to,

given the other exception that is in our temporary employment

rules, is that if they are working 6 months or less, which is the

1,040 or less, if they’re working that, then we do allow for indefinite 1-year extensions at a time. And that’s how someone could

work up to 5 years.

Ms. NORTON. Uh-huh, I see. So you think they may be in that

category?

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Ms. BAILEY. Yes. I mean, given the situation that you described,

I do.

Ms. NORTON. I think James Hudson’s death raised rather definitively the notion of benefits, however, so much so that Congress,

in fact, gave Mr. Hudson’s wife and children benefits, $34,000—retirement benefits, in effect.

Ms. BAILEY. Uh-huh.

Ms. NORTON. That’s one man. There have never been retirement

benefits given for any other person, has there?

Ms. BAILEY. Not that I’m aware of.

Ms. NORTON. That was a remedy for a man who dropped dead

on the job.

Now, let me ask you, in light of the health care legislation that

just passed, has OPM looked at health care for temporary workers?

Or are they to be considered outside of the penumbra of a bill that

claimed to cover 95 percent of the American people?

Ms. BAILEY. We have actually discussed this. When President

Obama’s administration first came in, we had the Recovery Act.

And, at that point in time, we had issued a Schedule A authority

for agencies to use to hire temporary workers to come in and to assist with the Recovery Act. And, at that time, the question did

come up with regard to health benefits.

And so we took a very good, close look at both our regulations

and the law. And the way the law is currently written, it is written

in such a way that it excludes temporary employees from receiving

health benefits.

Ms. NORTON. Private and public sector, you’re saying?

Ms. BAILEY. Oh, I’m only speaking to Federal sector. I cannot

speak to private sector.

Ms. NORTON. In testimony before us, one or all of you have indicated that, after a while, perhaps a year, you can get health insurance if you, the worker, are willing to pay for it. You can get in

the FEHBP, Federal Employees Health Benefits Plan, if you are

willing to pay for it. Is that right?

Ms. BAILEY. Yes. After 1 year, even temporary employees are eligible to apply for health benefits as long as they pay the 100 percent contribution of that. So, in other words——

Ms. NORTON. Why would there not be a shared benefit for these

employees? Why would the Federal Government employ people and

pick up—well, first, let me ask you, what percentage of people in

these temporary jobs, which are not your highest-paid job in the

Federal Government, in fact take on coverage, 100 percent of the

health care cost? How many? What percentage do that?

Ms. BAILEY. I don’t have the answer to that.

Ms. NORTON. I would think you would want to know after Mr.

Hudson’s death. It may be a quite empty promise.

What is the policy reason behind the notion of ‘‘coverage if you

want it, but don’t ask us to contribute anything to it?’’ What’s the

justification for that?

Ms. BAILEY. In this particular instance, we are not unsympathetic to this issue. And we would be more than willing to work

with the subcommittee with regard to health benefits for these

Federal employees.

Ms. NORTON. I appreciate that, Ms. Bailey.

35

We understand the difficulty raised here. Episodic employees will

always present issues when it comes to benefits of various kinds.

One can even understand the retirement notions and how difficult

that would be, but then there is Social Security.

I understand that seasonals, however, don’t receive any access to

the Federal Employment Health Benefit Plan. Is that right?

Ms. BAILEY. If they’re a permanent seasonal employee——

Ms. NORTON. What is that?

Ms. BAILEY. Permanent seasonal would be a permanent employee who works seasonal, meaning more than 6 months or more.

Ms. NORTON. I see. But there are over 1,000 less-than–6-month

seasonal employees, the number we have.

Mr. Kashdan, Mr. Simpson, those less-than–6-month employees

have no access to health care?

Mr. KASHDAN. Let me clarify. Again, there are career seasonals,

and there are temporary seasonals. Career seasonals do get health

benefits. If they have career status in the Federal work force, they

do get health benefits, life insurance. Those under temporary employment, non-career status, as Ms. Bailey mentioned, if they are

in an appointment where they work less than a year, they don’t get

health benefits.

So the large amount of our temporary seasonal work force is, in

fact, a 6-month-or-less-type category, the 1,040 hours, and they do

not qualify for benefits under the regulations.

Ms. NORTON. Now, I recognize—I think it was you, Mr. Kashdan,

who said that you could have teachers who are seasonally out of

work for themselves and so they pick up seasonal work; they may,

in fact, have health care.

We do need to understand, in light of the health care bill, how

many people we’re talking about that simply don’t have health care

that were carried on the rolls of the Federal Government. This

would be a terrible embarrassment, it would seem to be, to have

another James Hudson-type incident—I don’t mean death, I mean

someone becomes seriously ill on the job and happens to be a Federal employee, a seasonal employee, and has no access to health

care, despite the fact that we’ve touted the health care bill as covering almost everybody.

We have to understand that this is a very different work force.

The work force of pensioners who work full-time—I’m sure that

may have been the case for the Federal Government at some point,

or something close to it—that’s a work force of the past. And I’m

not sure, Ms. Bailey, that OPM has looked at this new work force

in light of benefits and in light of status.

It’s going to be important for us to know how many of these

seasonals, these less-than–6-month seasonals, have health care.

Now, we know they don’t have health care from the Federal Government, but they may have health care. So we need to have an

accurate picture. I don’t even know if we have a problem. We may.

And if we do, it does seem to me that the first work force that

would have to take account of it would be the Federal work force.

We probably have this problem throughout the United States.

We have sought, in the health care bill, to correct this problem

for seasonal workers in some parts of the country, I might add. But

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then if we’re sitting on such an issue ourselves, it would be an embarrassment and worse for the Federal Government.

I would like to dismiss this panel. Thank you for very helpful testimony on an issue that we are confronting anew, and you have enriched our record. Thank you very much.

Thank you, panel two. We want to proceed until the other Members get back.

The panelists are William Dougan, national president of the National Federation of Federal Employees, a role which he assumed

in 2009. Mr. Dougan began his Federal career in 1976 with the National Park Service as a firefighter and tree planter. He is a 30-

year member of the National Federation of Federal Employees and

has served in a variety of positions at local council and national

levels.

Colleen Kelley is the president of the National Treasury Employees Union, which is the Nation’s largest independent Federal-sector

union and represents employees in 31 different government agencies. Ms. Kelley was first elected to the union’s top post in August

2009.

Phillip Glover has served as the national legislative coordinator

for the Council of Prison Locals of the American Federation of Government Employees since 2005. Mr. Glover is also a senior office

specialist for the Bureau of Prisons in Laredo, Pennsylvania, where

he has served for 20 years. Prior to his time at the Bureau of Prisons, Mr. Glover served in the U.S. Army.

Patricia Barts worked for the Internal Revenue Service for over

30 years, where she served as a lead examiner in the IRS’s Correspondence Examination Group. Since retiring from the IRS, Ms.

Barts now serves as a vocal member of the National Active and Retired Federal Employees Association.

Welcome, panel two. We will begin with Mr. Dougan.

Oh, I would like to swear in the panel.

[Witnesses sworn.]

Ms. NORTON. Let the record show that all the witnesses have replied in the affirmative.

Now Mr. Dougan.

STATEMENTS OF WILLIAM R. DOUGAN, NATIONAL PRESIDENT,

NATIONAL FEDERATION OF FEDERAL EMPLOYEES; COLLEEN M. KELLEY, NATIONAL PRESIDENT, NATIONAL TREASURY EMPLOYEES UNION; PHILIP W. GLOVER, LEGISLATIVE

COORDINATOR, COUNCIL OF PRISON LOCALS, AMERICAN

FEDERATION OF GOVERNMENT EMPLOYEES, AFL–CIO; PATRICIA BARTS, MEMBER, CHERRY HILL, NEW JERSEY CHAPTER, NATIONAL ACTIVE AND RETIRED FEDERAL EMPLOYEES

STATEMENT OF WILLIAM R. DOUGAN

Mr. DOUGAN. Ms. Norton, on behalf of the National Federation

of Federal Employees [NFFE], and the 110,000 Federal employees

that we represent, I thank the subcommittee for holding this hearing.

This critical issue has gone unaddressed since 1994 when James

Hudson, a veteran and U.S. Park Service employee, died at the

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Lincoln Memorial, leaving his widow and seven children destitute.

He had no life insurance because of his temporary status. After legislation was introduced to remedy this, Hudson’s widow commented, ‘‘Something good has come out of the death of my husband. This legislation means no one else will have to go through

what this family went through.’’ The bill subsequently died in committee.

Since then, we have seen MSPB’s 1994 prediction come true, that

continued use of long-term temporary employment has created a

permanent underclass in the Federal work force. How long does

temporary last in the Federal Government? For some employees of

the U.S. Forest Service, temporary has lasted more than 30 years.

We all would like to think that the Federal Government is a

model employer, as well it should be, but thousands of employees

hired into temporary positions receive no health insurance benefits,

no life insurance benefits, no retirement benefits, no step increases,

and no competitive standing for internal placement into career

jobs.

Federal land management agencies, in particular, overuse temporary employment. Even though land management work occurs

every year, a loophole in the regulations allows agencies to use an

unlimited number of successive temporary appointments. Some

agencies are using this loophole to the maximum extent. Roughly

35 to 40 percent of the work forces of the Forest Service and National Park Service are hired as temps each season.

I brought with me today Joe Katz of Dover, ID, who is sitting

here. Joe has worked as a temporary employee of the Forest Service almost every year since 1975; however, he remains a temporary

worker to this day. He has been hired and terminated each year

under a string of temporary appointments. Joe is a Marine who

served his country honorably in Vietnam. He has held his current

position in Trails and Recreation for 21 of the past 22 seasons, yet

he still has no career position.

I’ve also brought Lisa McKinney from California, who is sitting

there. She began working for the Forest Service as a firefighter in

1978 and has worked for the agency almost every season since

then. She has performed the same regular and recurring work as

a certified timber cruiser since 1995, yet she, too, has never received a career position.

Joe and Lisa exemplify the boots on the ground that actually get

the agency’s work done. Temporary employees like Joe and Lisa

make invaluable contributions to the mission of the Forest Service.

Many work for years, even decades, and never get a career seasonal appointment. Thousands of long-term temps work for five or

more seasons. This is simply outrageous.

Long-term temps are only part of the story. Most temps move on

to other employment within a few years, taking their experience

and training with them. Because they are misclassified as temps,

this huge retention problem goes unnoticed and unaddressed.

With high turnover, safety suffers. Recently, a long-term temporary employee who serves on a fire crew told me that eight of

the members on her 11-person crew were rookies. I can tell you

from my personal experience as a firefighter, that is a recipe for

disaster.

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This is a tough problem. There is no way under current laws and

regulations to redesignate jobs held for decades by long-term temps

as the permanent seasonal career jobs they really are. A career job

with exactly the same duties as the long-term temporary job is considered a new job. And as MSPB noted in 1994, legal and procedural barriers prevent the consideration of many temporary employees for career positions regardless of how well they have performed.

To avoid a purge, a pathway to permanence for long-term temps

must be the first step in reform. It would be unjust and unwise to

discard these dedicated public servants and their knowledge and

experience after their many years of service. If I only get one point

across at this hearing, I hope it will be this: to make clear to this

subcommittee and Federal agencies that a pathway to permanence

must be put in place before reform can begin.

In closing, we would propose enactment of legislation to: grant

competitive standing to long-term temporary employees so they can

compete for any career job just like other Federal employees may

do; afford priority consideration to any long-term temporary employee whose job is converted to career status; and give long-term

temporary employees creditable service time for their temporary

service for certain purposes.

This proposal has no price tag, it has no mandate. It is consistent

with the 1994 recommendation of OPM and the National Partnership Council. It would simply provide agencies with the tools to

allow reform to begin. With this done, NFFE will commit to working with the agencies, OPM, MSPB, and Congress on the appropriate use of available employment authorities.

This concludes my remarks.

[The prepared statement of Mr. Dougan follows:]

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Ms. NORTON. Thank you, Mr. Dougan.

Ms. Kelley.

STATEMENT OF COLLEEN M. KELLEY

Ms. KELLEY. Thank you very much, Chairman Norton.

On behalf of the 160,000 Federal employees represented by

NTEU, I want to thank you for this hearing today to talk about the

important issue, the use of temporary employees by the government.

As you’ve heard, there are too many stories out there, very real

stories that are happening today. And while temporary employment status we all recognize can be useful to an agency when it

is properly applied, it is also a status that lends itself to abuse, and

it can be an unfair working condition for an employee.

Temporary employees do not participate in FERS or in the right

to family and medical leave or in leave for military service. And

these policies might be defensible for a true temporary employee of

1 year or less, but it becomes a severe denial of rights when the

status is abused.

Regulations are very clear that agencies are prohibited from

using temporary status to avoid the costs of employee benefits, to

extend the probationary period, or to avoid competitive hiring.

However, we are concerned that these regulations are too often ignored.

Today, I would like to highlight a particularly unfair situation

that confronts current and former employees of the FDIC who performed temporary service early in their careers. But this issue I’m

going to describe would impact every temporary employee who is

currently under that status today.

The FDIC hired thousands of temporary employees during the

1980’s, and they were known as LG employees, or liquidation grade

employees. Their duties included managing and liquidating the assets of failed banks and savings and loans. However, they were excluded from any credit for retirement under FERS. They continued

to serve in 1-year appointments, with thousands of them serving

longer than 5 years, and many renewed for over 15 years in those

appointments. These employees were clearly temporary only in

name.

The FDIC hired them under special authority it had acquired in

1938 and had never surrendered that authority. However, that authority had only been used to hire temporary bank-specific teams

of liquidation personnel. In the early 1980’s, the FDIC adopted a

new policy of establishing regional offices dealing with multiple

bank liquidations. It is this action that NTEU considered an abuse,

as such work had historically been viewed as permanent.

In 1993, OPM moved to take away this authority from the FDIC.

Over the objections of employees and NTEU, OPM agreed to a compromise with the FDIC that allowed them to phase it out in their

misuse of this temporary classification and phase it out over 21⁄2

years, from January 1994 to June 1996, continuing the denial of retirement credit during that time.

With the passage of the FERS Act in 1986, Federal employees

without retirement credit because they had years as temporary employees were able to buy back credit for the years prior to 1989 by

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paying for the retirement deductions that were not taken. But

former LG employees were not allowed to buy back their credit for

temporary service after 1989. The result is that valuable service

time from January 1, 1989, until the date they actually became eligible to participate in FERS and have made deductions was essentially lost or forfeited.

Now, we understand that the intent of Congress in the 1986

FERS legislation was to encourage agencies to cease overusing

temporary employees and abusing the classification. Congress allowed a 2-year window as agencies transitioned. But it was not expected that the FDIC, a government corporation with considerable

administrative autonomy, would continue to abuse the temporary

service early in their careers.

The NTEU had long argued that Congress needed to act to correct this grave injustice that was suffered by LG employees. NTEU,

along with many Members of Congress and FDIC management,

have voiced support for legislation to allow LG employees to buy

back their missed retirement credit.

We would ask that Congress move to allow former FDIC LG employees to get credit for years of service they performed between

1989 and when they were given permanent status, so long as they

are willing to make a payment for these years of credit equal to

the retirement deductions they would have contributed if they had

been allowed.

We propose this credit would only be available to those who were

victims of the unfair FDIC policy. We are not asking that it be extended to those who never accepted or acquired permanent Federal

positions.

We believe that allowing these misclassified LG employees the

opportunity to buy back their lost retirement credit would be an equitable and just resolution to the unfairness that they faced by

being misclassified for so many years as temporary workers.

In a few days, we expect the President will be signing the DoddFrank Wall Street Reform and Consumer Protection Act. And I

would like to thank you, Chairman Lynch, for your efforts on that

bill, especially in crafting the aspects dealing with Federal personnel policies.

This groundbreaking consumer protection legislation is witness

to the importance of the work of the frontline employees at the

FDIC and other financial regulatory agencies. I don’t think it is too

much to ask that those men and women who are working so hard

as bank examiners, liquidation specialists, and credit union consumer compliance specialists be given retirement credit for all of

their years of service in the Federal Government.

Thank you again for this hearing, and I would welcome any

questions you might have.

[The prepared statement of Ms. Kelley follows:]

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Mr. LYNCH [presiding]. Thank you, President Kelley.

Mr. Glover, you are now recognized for 5 minutes for an opening

statement.

STATEMENT OF PHILIP W. GLOVER

Mr. GLOVER. Chairman Lynch, Congresswoman Norton, members

of the subcommittee, my name is Phil Glover. I am the national

legislative coordinator for the Council of Prison Locals, American

Federation of Government Employees. We represent 28,000 correctional workers nationwide serving in 114 Federal prisons.

I have served as a representative of the union since 1991 and

have been involved in many representational and legislative issues

throughout my service. This issue was brought to us by members

at our local who, as they started to look at retirement, this service

credit issue arose.

I want to thank you for the opportunity to testify today at the

hearing on existing temporary employee authorities and their adverse impact on temporary employee status and benefits.

Our problem at Bureau of Prisons is the fact that many Federal

correctional workers who are participants in the Federal Employees Retirement System are unable to make a service credit deposit

into FERS for temporary civilian service performed after January

1, 1989.

Federal correctional workers, as well as other Federal law enforcement officers, are covered by special retirement rules. Under

5 C.F.R. Section 842.208, an employee working in law enforcement

can retire after 25 years of service at any age and at 50 years of

age after 20 years of Federal service.

We have mandatory retirement at age 57. It has been determined that working with violent offenders requires a youthful and

vigorous work force. This has been in effect for correctional officers

and Federal correctional workers since 1956. The mandatory retirement age was changed in 1990 from 55 to 57 years of age.

Our members perform dangerous work inside Federal BOP correctional institutions. We supervise murderers, gang members, terrorists, and other dangerous inmates. Since the brutal stabbing

murder of a correctional officer in June 2008 by two prison inmates

at USP Atwater, we have had at least 380 vicious inmate-on-worker assaults in the BOP system.

After 20 to 25 years working in these facilities under such stressful conditions, most people are ready to leave. Once our employees

attain the retirement age, it is normal, depending on their individual circumstances, to retire. This is where the problem arises regarding service credit for temporary civilian service. 5 C.F.R. Sections 304 and 305 do not allow a deposit for temporary civilian

service after January 1, 1989.

Many bargaining unit employees in the BOP have been hired

using temporary employment rules. This is done for many reasons,

such as to get a specialist onboard quickly or to hire large groups

of correctional officers to startup an existing prison, a new facility.

Between 1989 and 1991, the BOP went on a large hiring spree

due to identified understaffing problems in the systems. As many

as 6,000 employees were hired, and many of them were hired as

temporary employees. Records from the Department of Justice indiVerDate 11-MAY-2000 14:16 Feb 23, 2011 Jkt 000000 PO 00000 Frm 00064 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\62948.TXT KATIE PsN: KATIE
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cate that, between 1989 and 1993, there were 3,569 employees initially hired by the Bureau of Prisons as temporary employees and

then, after short periods of time, were transitioned into permanent

employee status.

Similarly, DOJ and the National Finance Center records show

that, between 1989 and 2010, there were over 6,200 employees initially hired by BOP as temporary employees and then again, after

short periods of time, were transitioned into permanent employee

status.

Many of those BOP employees are now approaching retirement

age. Many of them didn’t realize they were hired in a temporary

employment status. We had a situation recently where one employee was hired before the January 1, 1989, date and, thus, could

make a deposit for service credit, while another employee hired 1

month later was informed he could not. This is clearly unfair.

Another situation that confuses the issue is the employee service

date for seniority purposes is the date they began receiving paychecks in BOP. However, their requirement date could be a year

to 3 years later, depending on the date they gained permanent employment status. It is also unclear why this regulation was changed

in the first place.

In the change from the Civil Service Retirement System to

FERS, which passed in 1986, the ability to make a deposit for service credit was maintained. It wasn’t until 1989 that credible service

was denied to employees who were willing to make the deposit.

We have identified employees who have as much as 3 years’ temporary employment time in the Bureau of Prisons. These employees

have worked alongside full-time employees who can retire at the

appropriate age and time-in-service requirements. The employee

with temporary service time is used in the same manner as those

with full-time service. They respond to emergencies, they handle

difficult inmates, and may have been on the Voluntary Disturbance

Control Team or other emergency operations. They must pass a full

15-year background check, pass basic correctional training in

Glynco, GA, and handle a firearm. Temporary employees in the

BOP also have arrest authority pursuant to 18 U.S.C. 3050.

If Congress would change the provision back to the 1988 language, we believe it should include all current employees.

In closing, all law enforcement officers, including BOP correctional workers, should be able to make the service credit deposit

into FERS for temporary civilian service performed after January

1, 1989.

And I will be happy to answer any questions I can. Thank you.

[The prepared statement of Mr. Glover follows:]

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Mr. LYNCH. Thank you very much, Mr. Glover.

Ms. Barts, you are now recognized for an opening statement for

5 minutes.

STATEMENT OF PATRICIA BARTS

Ms. BARTS. Chairman Lynch and members of the subcommittee,

my name is Patricia Barts. I am from Atco, NJ. And I appreciate

the opportunity to testify on behalf of the National Active and Retired Federal Employees Association about my experiences as a

seasonal-status Federal worker.

I was employed with the Internal Revenue Service at the Philadelphia Service Center from January 1970, retiring on July 31st,

2001. From 1970 until 1986, I was a seasonal employee. In November 1969, I took the Civil Service test for Federal employment.

Shortly after, I was called to take an 80-hour unpaid training

course as a data transcriber.

In early January 1970, I was hired to work transcribing tax returns as a seasonal worker. I worked from January to June that

first year. When I was called back the next filing season, I worked

a similar period and additional months to work on the quarterly returns. Eventually, I was working 10 months each year.

One of those years, during my 14 seasonal years as a data transcriber, I worked every day except one, being furloughed on a

Thursday and brought back on a Monday. This was done to break

my time. If I had worked the extra day, I would have been made

a permanent employee and entitled to all the rights and benefits

that are accrued to that status.

During my time in data transcription, I was promoted to a lead

data transcriber. My duties included instructing other employees

and filling in for the supervisor. I enjoyed my work and only left

the department because I could not become a permanent employee

and advance to a higher grade.

In 1984, I was accepted as a seasonal tax examiner in the Correspondence Audit Department. I took this position because it offered a higher grade and a chance to become a permanent employee. After about a year and a half, I became a permanent worker.

During my career in the Examination Department, I was selected

to be a lead tax examiner and instructor. My duties in this department included handling problem cases and telephone calls for other

tax examiners, acting as a supervisor when the supervisor was not

in the office, and holding yearly update classes in tax law changes

each October.

When the Federal Employees Retirement System was introduced

to the Federal employees in January 1987, the employees like me

who were in the older Civil Service Retirement System were counseled to remain in CSRS. This turned out to be bad advice. At this

time, the seasonal employees in FERS were credited with a full

year’s service time if they worked at least 4 months out of the year.

The CSRS employees contacted our bargaining unit, the National

Treasury Employees Union, about receiving the same credit for

their years of service before FERS was implemented. This request

was denied by IRS management at the service center. Their deciVerDate 11-MAY-2000 14:16 Feb 23, 2011 Jkt 000000 PO 00000 Frm 00078 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\62948.TXT KATIE PsN: KATIE
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sion not only affected our years of service, it also affected our time

and grade for step raises in the General Schedule pay series.

The FERS employees were receiving a full year’s service credit

to their time and grade and years of service for retirement. It is

my feeling that we should have been credited with our service the

same as the FERS employees. If this had been the policy, I would

have 31 years and 7 months of service instead of 26 years and 7

months. This policy greatly affected my retirement annuity and

that of the other fellow CSRS workers.

I enjoyed working for the agency and always felt respected by my

supervisors. Still, as a matter of equity, I believe I have been unfairly denied benefits which I should have been able to access.

I understand the subcommittee is interested in reviewing a proposal that would allow temporary employees who have extended

years of service to qualify for permanent job status, as well as a

plan to allow such workers to credit their temporary status toward

retirement. NARFE welcomes this discussion, and we would like to

participate in the development of these reasonable proposals.

Mr. Chairman, thank you for focusing attention on temporary

and seasonal hiring authorities and on how such service affects our

status and benefit offerings. I appreciate your allowing me to testify today on behalf of myself and other active and retired employees who work part of their public service careers as seasonal or

temporary workers.

I would be happy to answer any questions you may have.

[The prepared statement of Ms. Barts follows:]

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Mr. LYNCH. Thank you very much.

I now yield myself 5 minutes.

Thank you each for your willingness to come before the committee and testify and to help us with our work.

There are several different points at which temporary employees

are treated far less favorably in the Federal system, especially recognizing that, in many instances, they are continuously temporarily employed, year after year. And it seems that the underlying

basis of treating them differently is undermined by this continual

employment.

One of the things that I think is fundamentally unfair here is

that, in our scheme of preference, we’ve established a preference

for veterans that I think is noble and right, we’ve established a

preference in some jobs for prior service. The Peace Corps I think

we talked about earlier with the folks from the National Forest

Service.

But, unless I’m missing something, there is no preference for a

person who has done that job as a temporary worker in becoming

a career employee. In other words, what I’m saying is that they are

treated basically the same as a person who comes off the street. So

they’re not getting any advantage. They’re coming into the process

as if they had never worked in their current job.

And I think that is wrong, and I think there has to be some way

to acknowledge the albeit temporary service for that employee so

that they aren’t at the very back of the line, that they get some

recognition and some type of preference in terms of filling those career positions.

I believe it was Mr. Simpson, who testified on the first panel,

that said that, you know, roughly 40 percent, I think, of his eventual career employees were chosen from the temporary work force;

however, when they were chosen, they were not given any greater

advantage than someone just walking in off the street.

Is that a problem that you see, in terms of recognizing the status?

I know it doesn’t address the point that you mention, Ms. Barts,

about crediting temporary time toward your pension. But it might

get you in the door faster, so that the ability of a temporary employee to get into a career position where they’re earning pension

credits is sooner than what otherwise might be.

Are there other solutions that you can see that would eliminate

the difficulty that we are experiencing with these temporary employees?

Ms. Kelley.

Ms. KELLEY. Chairman Lynch, I would say to your specific question, that is something that would help, whether—and you could

define it a number of ways, even if you just started by giving them

first consideration so that they had to—you know, they were on the

short list, at least, to be considered. Today, they have to literally

apply through the outside process as if they never worked for the

government.

And we went through this very recently up in your part of the

country with the Andover Service Center. In that case, I would say

the IRS had appropriately used some temporary hiring authority as

they were ramping down the submission processing operation. But

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then when new work was added to Andover and new positions were

added, permanent positions were added, all of those temporary

workers, many of whom had been there for 4 years, had no firstconsideration rights to even be considered for those permanent

jobs. So something like you described would be a giant step forward

to fix that part of the problem.

I would suggest, though, that another part of the problem, just

from things I’ve heard here today and from some situations that

we’ve seen at NTEU, is the question to the agencies of how many

of these temporary employees or temporary positions are really

temporary positions. I mean, I don’t know how you justify, in the

FDIC, when we had employees hired year after year for 15 years,

or how—and Mr. Dougan could speak better to this than I on those

who have joined him today.

I mean, if people are doing the same job year after year, even if

it’s only for 6 months, then that is, in my view, a permanent seasonal position. It is still seasonal, it’s not a full-time; it doesn’t create work where it doesn’t exist. But it’s a permanent seasonal position, not a temporary seasonal position.

And that alone would change the status of those employees and

their eligibility to retirement and contributions for health insurance and to FMLA and to all of the rights and benefits that a permanent career work force has in the Federal Government.

So I think that’s as big a piece as figuring out how to be able

to get them first consideration or some priority, is to really press

hard on these agencies as to how they’re designating these positions. Are there some that should be temporary? Probably. But the

numbers that I heard today and the real-life examples that I’ve

heard, it just doesn’t sound right to me.

Mr. LYNCH. Thank you.

I notice my time has expired. I now yield 5 minutes to Ms. Eleanor Holmes Norton, the Congresswoman from the District of Columbia.

Ms. NORTON. Thank you, Mr. Chairman.

I guess I can understand, for example, that in the IRS, Ms.

Barts, when you might have temporary employees because of the

tax season and the way that goes. But I must say, with Ms. Kelley,

I wonder about the use of temporary employees across the whole

spectrum of the Federal Government, whether there has been the

kind of oversight to assure us that there is not abuse.

Ms. Barts, I was drawn to the part of your testimony on page 1

where, not only did they break your time in order to keep you in

the seasonal status, but somehow they managed to promote you.

And I didn’t quite understand that. ‘‘During my time at data transcription, I was promoted to lead data transcriber.’’ You had supervisory duties.

Were others working under you also temporary employees?

Ms. BARTS. They were all seasonals, yes. The supervisor was a

permanent employee, and she had what you would call the timekeeper for the groups was a permanent employee. Everybody else

was a seasonal employee.

Ms. NORTON. Now, you say on the next page that, after about a

year and a half, you became a permanent worker.

Ms. BARTS. Once I was picked up by Correspondence Audit, yes.

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Ms. NORTON. After you were picked up by whom?

Ms. BARTS. The other department, the Correspondence Examination Department.

Ms. NORTON. So you got on that permanent registry or on that

permanent list for that job?

Ms. BARTS. I applied for several jobs when I was in data over the

14-year period, and I was accepted for quite a few of them. But the

department always said that they couldn’t release me at that time,

and that eliminated that job opportunity for me.

Ms. NORTON. The department wanted to maintain you for their

own purposes.

Ms. BARTS. Right.

Ms. NORTON. They could do that even though you had an offer

for a permanent job?

Ms. BARTS. Yes.

Ms. NORTON. Boy, that sounds like something close to slavery

here.

Ms. BARTS. That’s the way it was done back in the 1970’s.

Ms. NORTON. Did your work as a seasonal employee help you in

the process of applying for the permanent job?

Ms. BARTS. My evaluations that I received over the years was a

great help to be picked up for the other department.

And I was on a roster, yes, for a permanent job. I was on a roster

for a permanent job. But as I said, as the permanent jobs would

come up and not just myself, other people would apply, if it was

in the height of their filing season, they would not let you go.

Ms. NORTON. All right. I think that is really quite scandalous.

But I’m not sure—the chairman asked about whether or not such

an employee, essentially, in competition was like anybody else coming off the street. It’s rather counterintuitive to believe that I’ve

gotten myself on a roster for a job like Ms. Barts, and I’m able to

show that I was in precisely the same job, it’s hard to believe that

wouldn’t help me in some way in the competition with others who

may have indeed been doing similar work but not been doing it in

the agency.

So it is just counterintuitive to me to think that person who has

been doing that work in a Federal agency is precisely the same as

somebody who may have been doing something in the private sector or have other kinds of credentials.

Don’t you think it’s helpful, at least, that person has been doing

work of a very similar nature in the Federal sector once you’re applying for a permanent job?

Ms. KELLEY. I would sure hope so, if the applications were looked

at that closely.

Ms. NORTON. Well, perhaps we ought to say so. Perhaps we

ought to say so when these employees are applying.

Ms. KELLEY. Exactly. If there were some kind of a process that

said, ‘‘First consideration is given to those employees who are doing

this work for this Federal agency in a temporary status.’’

Ms. NORTON. Well, it doesn’t even say ‘‘consideration should be

given,’’ does it?

Ms. KELLEY. No. No, my words of ‘‘first consideration’’ would be

a giant step forward from where we are today.

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And I’m only using that as an example for those who would oppose some kind of a guaranteed selection, you know, to just try to,

kind of, think of a process that would at least give that first consideration.

Mr. DOUGAN. I think that there are a couple of things here. Really, there is a question of what hiring process is being used. Because

the agency is certainly free to use their internal hiring process,

which, under the current regulations, a temporary employee is not

even eligible to apply under the internal process.

So that avenue they are excluded from from the get-go. So they

only have the external hiring process that the rest of the public has

available to them. So they’re competing with everybody else out on

the street for those positions.

And, you know, I think it’s fair to say that, certainly, their experience working as a temporary in an agency that they’re applying

for a permanent position in, it certainly doesn’t hurt them. But it

certainly is true that it does not give them, necessarily, a leg up

on any other person that is applying for that job.

I think there are a couple of things we can do. I think, one, if

we grant competitive standing to our long-term temporary work

force, they will have the ability not only to apply through the external hiring process but also through the merit systems hiring process internally in the agency. So they will get a fair shake just like

the rest of the permanent work force, in terms of applying for permanent jobs in that agency and doing that.

And I think the other thing that we could do would be, as you’ve

described and as Colleen has talked about, is afford some sort of

priority consideration to long-term temporary employees, particularly if the agency decides to make their current temporary position

a permanent position.

It’s my belief that if we have an employee that’s been in a series

of positions doing the same job 5, 6, 7 years, 10 years, 30 years,

essentially those people are incumbents in those positions. And the

fact of the matter is that the position was misclassified by the

agency as a temporary position when, in fact, when you look at the

recurring nature of the work, it’s really a permanent position in reality.

And so it’s my belief that those folks need to be given priority

consideration for those positions for which they’ve been doing the

work all along, once those positions are made permanent positions

by the agency.

Ms. NORTON. Mr. Chairman, I see my time is up.

I was very concerned. I do not believe it was this roster of witnesses who testified about firefighters. And we know there are

parts of the country where these firefighters are absolutely essential; you can understand the seasonal nature of the work. But here,

experience can be lifesaving. And it does seem to me we’ve got to

look at various categories of work here, as well.

I’m not sure—I think the testimony was that eight out of 10 was

a rookie. Was that you, Mr. Dougan?

Mr. DOUGAN. Yes, ma’am.

Ms. NORTON. Eight out of 10 of these firefighters each year is a

rookie, which means that you’ve got to, for one of the most dangerous jobs in America—indeed, it is considered the most danVerDate 11-MAY-2000 14:16 Feb 23, 2011 Jkt 000000 PO 00000 Frm 00087 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\62948.TXT KATIE PsN: KATIE
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gerous, usually, in Civil Service work—you’ve got a whole bunch of

people who are new. People have reached their 2-year limit. And

there you go retraining or training people for one of the most risky

jobs in the work force.

Mr. Dougan, would you like to elaborate on that testimony? Because it does seem to me it requires some kind of priority attention

from the subcommittee.

Mr. DOUGAN. Yeah, I mean, the situation with the wildland firefighting work force in the Federal Government, there are relatively

few Federal agencies that have employees that have that expertise.

There is the Forest Service, Bureau of Land Management, National

Park Service, Fish and Wildlife Service, Bureau of Indian Affairs.

Those are the five Federal agencies that primarily have a wildland

firefighting work force.

These people are specially trained. The agencies have invested a

lot of time and resources and money in terms of training these people. They have highly specialized training. They hold a variety of

qualifications. It takes many years of training and experience out

on these fires for people to work their way up into leadership positions in the fire organization.

And it is not uncommon to see on wildland fires temporary employees that are part of a fire crew that actually have more experience than the leaders of those crew or, in many cases, some of the

other leaders that are in charge of and responsible for managing

these wildfires.

And, to me, I mean, the risk that we run as a country and in

these agencies if we fail to acknowledge the professional work, the

experience, and the skills that these folks have and don’t make an

honest effort to retain these and we just let these people go, we

really risk having a brain-drain in the area of wildland firefighting,

which, as Ms. Norton pointed out, has some potential catastrophic

safety implications if we have inexperienced people out there trying

to lead these crews as well as put these fires out.

Ms. NORTON. Thank you very much.

And thank you, Mr. Chairman.

Mr. LYNCH. Thank you.

Mr. Dougan, if I could just stay on that issue for a minute. What

do we see right now in terms of the wildfire firefighters? Are you

seeing, you know, professional firefighters, city firefighters, volunteer firefighters that go into that line of work? Or is it across the

board from every walk of life?

Mr. DOUGAN. The current work force of the Federal Government’s wildland firefighting work force, there are really two pieces

to it. One is, most of these agencies or all of these agencies have

essentially permanent—they do have some permanent seasonal positions in their fire organizations. These folks work seasonally, but

they’re permanent employees. They typically work 6 to 9 months

out of the year.

But the bulk of the firefighting work force that’s hired in the

Federal Government are temporary employees. And where the Federal Government gets their temporary wildland firefighting work

force is really from a couple of different areas.

One is, there are a lot of college students that apply for these

jobs. They’re looking to make a lot of money. These guys work a

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lot of hours, and they tend to get a lot of overtime, so it’s a good

way for college students that are, you know, out of school to earn

some money to help them out, to pay their tuition and books.

The second group of folks that tend to be drawn into these kinds

of positions is just, you know, average people out on the street. The

Forest Service, for the most part, has a presence in more rural

communities across America, particularly out in the western

United States. These jobs, these firefighting jobs are highly coveted

by people that live in small towns. The Forest Service is often the

largest employer in the town and also pays, probably, for the most

part, the highest wage. So these jobs are really sought after by

local residents in these rural communities and really have a huge

impact on those local economies.

But what we see with these temporary jobs is, you know, if these

folks are expected to be hired year after year as a temporary and

not afforded any benefits, not afforded retirement, not afforded

health care, what we see in terms of retaining this work force is,

after a certain amount of time, these folks leave and are wooed

away by county fire departments, by city fire departments, by State

forestry organizations who can often pay more than the Federal

Government and offer these folks permanent jobs and better wages.

So we are losing a lot of our wildland firefighting work force because of those reasons. Particularly out in California we see that

quite a bit.

Mr. LYNCH. Uh-huh.

Let me ask—and maybe Ms. Kelley—I explored this with the

first panel, trying to figure out where the practices of prudent and

optimum management separate from abuse.

You know, we in Congress, we hire young interns on a regular

basis, and, you know, when we see one or two that might be especially bright, we snap them up, but generally it’s understood that

there aren’t a lot of opportunities, so that’s a rare occasion. But

since they’re only there for a learning experience and there is no

expectation of hiring, I suppose it’s fair. We very, very, very rarely

get interns back twice.

But here you’ve got this repeat, year-after-year, decades-long relationship, where workers keep coming back. And some of them

might be stuck—some of them just love their jobs, but some of

them are relying on that, as anybody else would, over time.

And I’m just trying to find a way to determine when that, you

know, repeat employment becomes abuse and how do we get at

that.

Mr. Dougan, you described a situation; Ms. Barts, you’ve described another; Mr. Glover, as well, with the Bureau of Prisons;

and President Kelley.

How do I devise a solution that’s going to be able to, sort of, capture all those different situations and provide some type of—you

know, you want to have some flexibility for management to bring

in temporary employees when needed. But this type of abuse, you

know, where people are in there for decades or, you know, 8 or 10

years, brought back and are denied retirement, they’re denied annuity, they’re denied health care benefits, I don’t necessarily think

that’s the way that the Federal Government should be operating as

an employer.

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And so, you know, I think some of our Federal management

agencies are adopting this strategy as a way of balancing their

budgets, and they’re doing it on the backs of these temporary employees. And that’s as simple as that. And we’re allowing it to happen. And we’ve got to figure out some way to push back, to say,

‘‘OK, you know, this person is coming back for the 4th consecutive

year. If they come back for the 5th, they’re going to have to earn

something.’’

Or there needs to be some pathways to career employment made

for these people, where, as you say, when a position becomes permanent, it goes from temporary to permanent, I think the assumption should be—or the priority should be to hire the people who

were in that job and doing that job originally when it changes over.

But there also has to be some way of, not necessarily—not displacing a veteran going for a job, but next in line, so to speak.

There should be an opportunity to put these temporary workers in

line right behind them, ahead of the general public.

And I’m just trying to figure out a way to develop a system that

would accommodate those realities.

Ms. KELLEY. Well, again, Chairman Lynch, I would probably

take it in a couple of different directions. And NTEU would be glad

to work with the committee, I’m sure we all would, on language to

fix each of these problems.

When I was getting ready for this hearing, I was focused on the

IRS and the FDIC, because the IRS hires a lot of seasonal employees. I did not come in here intending to say that I think the IRS

is doing a great job, but I have to tell you, after listening to everything I heard today, they are doing a great job.

I don’t know what happened back in the 1970’s and 1980’s, you

know, in Ms. Barts’s situation, and I’m sure those facts drive why

she’s here today. I can tell you that, today, the IRS employs tens

of thousands of seasonals, and most of them are permanent

seasonals with all the rights that go along with permanent employment, even though their schedule might only be a 4- or 6- or 9-

month-a-year job. Seasonal defines their schedule, not what benefits they have.

And, as I said, they don’t always hire as permanent, but I think,

over the years, NTEU has helped them, perhaps, see the criteria

that should be used, so that when they were doing the ramp-downs

on submission processing, they used that.

But even though today the IRS seems to be doing at least as

well, if not better, than most agencies, I think what we have also

heard here today that there is a lot of harm that has been done

in the past. And we’re hoping we could have Congress help us to

give employees who have been harmed by not being able to redeposit their FERS—the FDIC employees who got no credit for up to

15 years of work and now are Federal employees but don’t have

credit for that 15 years. So I think one piece of it is if we could

figure out how to give them an opportunity to buy those years

back.

Mr. LYNCH. Yeah.

Ms. KELLEY. And then, of course, to make sure, to your point,

that it is happening correctly.

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And maybe I was the only one who heard it this way on the first

panel. I was a little surprised to hear OPM say that, if you’re going

to work 6 months or more, then you’re a permanent seasonal; if

you’re going to work 6 months or less, it’s up to the agency to decide whether you’re a temporary seasonal or a permanent seasonal.

And that they grant these waivers, that I think they that were

questioned about these waivers.

I don’t know how closely anybody’s looking at those waivers, but

it seems to me that, if they ask for it, they get it. And that’s where

I would like to see the agencies pushed pretty hard and held to a

standard, as you’re suggesting, you know, that they should be able

to make a case that 40 percent of the work force is really temporary.

Mr. LYNCH. Right.

Ms. KELLEY. I mean, if they need employees in those jobs, in

those parks, 6 months a year or 4 months a year or 7 months a

year, they need them every year, I think that’s a permanent seasonal job; it’s not temporary. But there doesn’t seem to be a process

to hold them accountable for that designation.

Mr. LYNCH. Right.

Mr. Glover, if I could ask you about this opportunity to buy back

time. Obviously, you know, we are facing extreme limitations on

the Federal budget, and we’ve got a massive deficit. You know, I

think rightly, Congress is sharpening its pencils and looking at

every expenditure that we make.

However, I think there is a certain fairness that you bring out

in your argument for those employees who, you know, because of

the seemingly arbitrary application of a regulation against them,

they’ve been taken out of a position that they originally had benefits in.

How would you envision giving an opportunity to the Bureau of

Prisons folks that—I guess they were in the system back in 1989

and then now they’re denied that opportunity. How do we reconcile

that for the employees that you represent?

Mr. GLOVER. I think what happened, Mr. Chairman, is that

when the regulation changed from 1988 when you could buy back

into your service credit, we had employees being hired at that time

in large numbers, so some were hired under the 1988 rule, some

were hired under the 1989 rule. And so what happened is, if you

were hired after January 1, 1989, you could not buy back your

service—you could not buy back in for the service credit.

So we have employees—actually, one that was able to buy back

6 months of temporary service and one 1 month later that wasn’t

allowed to buy back 6 months of temporary service. And so that

person has to work inside the Federal prison for another 6 months

prior to his retirement. And at that point in your career, after

working in the system for 20 to 25 years, you are tired and you are

ready to go, generally.

What I want to at least add as part of this discussion is that

time should count. If you are a temporary, you are hired temporary—and the way the Bureau of Prisons does it, they identify

you as an employee that they want. For instance, Fort Devens.

When Fort Devens in Massachusetts was converted from a military

base to a Federal prison hospital, they were trying to get employees

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onboard quickly to get that prison up. So you might hire 60 to 100

employees in a temporary status because they have already identified they want that employee. They have already had an interview.

They are waiting on paperwork, they’re waiting on a background

check. And they want to get them onboard.

The thing is, though, you are in there working in the same circumstances as every full-term employee. You don’t have any different work rules as far as responding to an emergency, handling

a disruptive inmate, handling some of the situations that we handle on a daily basis.

And so, what our argument is is, once they make you permanent,

you should be able to step back and recredit that service, the service that they have from when they started. Because they have been

made permanent, and they should at least get to reach back and

say, ‘‘This time should count. And I will redeposit.’’ I mean, we are

not talking about the government necessarily; we are talking about

the employee being able to redeposit for their service credits.

Mr. LYNCH. Right, right.

Mr. GLOVER. So that is the piece that we are particularly interested in, because all the FERS employees now are hitting their 20-

year marks, obviously, and now they are starting to realize what

they did.

Mr. LYNCH. Right.

Mr. GLOVER. And it is now incumbent upon the union that represents them to go out and do something about it.

Mr. LYNCH. Right. And while there is still time, maybe, for those

last 5 years, that they make those contributions that they would

have made, so that they are actually making bad years into good

years and creditable service.

Mr. GLOVER. Correct.

Mr. LYNCH. OK. We have to figure out that balance, because

there is not a lot of extra resources out there. And so, you

know——

Mr. GLOVER. If I could also say this: In a scoring of this, you

would have numerous employees who may get back some of this

temporary time and actually retire. The Bureau would then bring

in employees at a much lower grade. GS–5 is what our correctional

officers start at, GS–6. And so, on a score, I am not convinced that

we would blow up any budget.

Mr. LYNCH. Right. That is a good point. That is a good point.

Ms. Barts, I wanted to ask you—you know, you described your

situation extremely well. How many people do you think—I am

way over my time, by the way—how many people are in your situation?

Ms. BARTS. How many people?

Mr. LYNCH. Do you think?

Ms. BARTS. Well, I would say, just from the people I know that

I worked with, about 250, just that I know, of the people that I

worked with all those years.

Mr. LYNCH. Yeah. And is that a national population or is that

just——

Ms. BARTS. No, that is just the Philadelphia service center, the

people that I know personally.

Mr. LYNCH. Yeah.

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Maybe President Kelley, maybe you’re the person that I should

be asking about this. How many folks do you know that are in Ms.

Barts’s circumstance?

Ms. KELLEY. Actually, I don’t have any—I was not surprised, but

when I read Ms. Barts’s testimony this morning was the first that

I knew that she or others were facing that problem. That is not

anything that I have any data on.

Mr. LYNCH. OK. You’ve got fairly discrete circumstances there

that might be addressed if the population were small enough. If it

is a big situation, then, obviously——

Ms. BARTS. Well, there were 10 service centers, so I don’t know

how many people would be involved.

Mr. LYNCH. Yeah.

OK, I have abused my time. I am going to yield—oh, no, I am

not going to yield. Well, I think you have all suffered enough. I appreciate all the testimony you have offered us today.

I’m going to leave the record open, as we indicated at the beginning of the hearing, for 3 days in case other Members have some

questions. I know that Mr. Connolly of Virginia has some questions, but not for this panel. And so I’ll leave the record open to

allow them to submit written testimony.

I want to thank you each for your work on behalf of Federal employees. I want to thank you for coming forward before this committee and offering your testimony to help us with our work.

This is a complicated situation, but I will make a commitment

that we will work with you to try to figure out how to get at these

inequities that are obviously out there and also try to diminish

them going forward, so that we don’t have these big gaps in time

where we have these temporary employees out there; that we build

a system that credits temporary employees so they can use that

time to get into career positions, so that we don’t have this big

delta between the time they begin as a temporary employee and

the time they get on as career employees; and also a way to recognize the value of that service in the hiring process, so that it is a

priority and it is recognized as valuable service.

I mean, it is astounding that we recognize priorities for different

reasons, but time in the job, you know, active, relevant, excellent

service in the job is ignored or sidestepped, and, instead, we treat

people as if they are just walking in the door and have never

worked in the job before.

So I thank you for your willingness to testify and to help the

committee with its work. I wish you all a good day. Thank you.

This meeting is now adjourned.

[Whereupon, at 4:45 p.m., the subcommittee was adjourned.]

[Additional information submitted for the hearing record follows:]

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