```

[House Report 112-116]
[From the U.S. Government Publishing Office]

112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    112-116

======================================================================

 
  EXTENSION OF PROBATIONARY PERIOD APPLICABLE TO APPOINTMENTS IN THE 
                             CIVIL SERVICE

                                _______
                                

 June 23, 2011.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Issa, from the Committee on Oversight and Government Reform, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 1470]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Oversight and Government Reform, to whom was 
referred the bill (H.R. 1470) to amend title 5, United States 
Code, to extend the probationary period applicable to 
appointments in the civil service, and for other purposes, 
having considered the same, report favorably thereon with an 
amendment and recommend that the bill as amended do pass.
  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. PROVISIONS RELATING TO PROBATIONARY PERIODS.

  (a) In General.--Section 3321 of title 5, United States Code, is 
amended--
          (1) in subsection (a), by striking ``The President'' and 
        inserting ``Subject to subsections (c) and (d), the 
        President'';
          (2) by redesignating subsection (c) as subsection (e); and
          (3) by inserting after subsection (b) the following:
  ``(c) The length of a probationary period under paragraph (1) or (2) 
of subsection (a), established by rule, regulation, or other action of 
the President, shall be--
          ``(1) except as provided in paragraph (2), not less than 2 
        years; and
          ``(2) in the case of a preference eligible, not longer than--
                  ``(A) if the appointment (as referred to in 
                subsection (a)(1)) or the initial appointment (as 
                referred to in subsection (a)(2)) is to a position that 
                exists on the effective date of this subsection, the 
                length of the probationary period which applies to such 
                position as of such effective date; or
                  ``(B) if the appointment (as referred to in 
                subsection (a)(1)) or the initial appointment (as 
                referred to in subsection (a)(2)) is to a position that 
                does not exist on the effective date of this 
                subsection, such length of time as the President may 
                establish, consistent with the purposes of this 
                paragraph.
  ``(d) The head of each agency shall, in the administration of this 
section, take appropriate measures to ensure that--
          ``(1) any announcement of a vacant position within such 
        agency and any offer of appointment made to any individual with 
        respect to any such position shall clearly state the terms and 
        conditions of the probationary period applicable to such 
        position;
          ``(2) any individual who is required to complete a 
        probationary period under this section shall receive timely 
        notice of the performance and other requirements which must be 
        met in order to successfully complete the probationary period; 
        and
          ``(3) upon successful completion of a probationary period 
        under this section, certification to that effect shall be made, 
        supported by a brief statement of the basis for that 
        certification, in such form and manner as the President may by 
        regulation prescribe.''.
  (b) Technical Amendment.--Section 3321(e) of title 5, United States 
Code (as so redesignated by subsection (a)(2)) is amended by striking 
``Subsections (a) and (b) of this section'' and inserting ``This 
section''.
  (c) Effective Date.--This section and the amendments made by this 
section--
          (1) shall take effect 180 days after the date of enactment of 
        this Act; and
          (2) shall apply in the case of any appointment (as referred 
        to in section 3321(a)(1) of title 5, United States Code) and 
        any initial appointment (as referred to in section 3321(a)(2) 
        of such title) taking effect on or after the date on which this 
        section takes effect.

SEC. 2. APPEALS FROM ADVERSE ACTIONS.

  (a) In General.--Section 7501(1) of title 5, United States Code, is 
amended--
          (1) by striking ``1 year'' the first place it appears and 
        inserting ``not less than 2 years''; and
          (2) by striking ``1 year'' the second place it appears and 
        inserting ``2 years''.
  (b) Definition Amendment.--Section 7511(a)(1) of title 5, United 
States Code, is amended--
          (1) in subparagraph (A)(ii), by striking ``1 year'' the first 
        place it appears and inserting ``not less than 2 years''; and
          (2) in subparagraph (C)(ii), by striking ``2 years'' the 
        first place it appears and inserting ``not less than 2 years''.
  (c) Effective Date.--This section and the amendments made by this 
section--
          (1) shall take effect 180 days after the date of enactment of 
        this Act; and
          (2) shall apply in the case of any individual whose period of 
        continuous service (as referred to in the provision of law 
        amended by paragraph (1) or (2) of subsection (b), as the case 
        may be) commences on or after the date on which this section 
        takes effect.

                            C O N T E N T S

                                                                   Page
Committee Statement and Views....................................     2
Section-by-Section...............................................     6
Explanation of Amendments........................................     7
Committee Consideration..........................................     7
Roll Call Votes..................................................     7
Application of Law to the Legislative Branch.....................     8
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................     8
Statement of General Performance Goals and Objectives............     8
Federal Advisory Committee Act...................................     8
Unfunded Mandate Statement.......................................     8
Earmark Identification...........................................     8
Committee Estimate...............................................     8
Budget Authority and Congressional Budget Office Cost Estimate...     9
Changes in Existing Law Made by the Bill as Reported.............    10
Minority Views...................................................    13

                     Committee Statement and Views

                          PURPOSE AND SUMMARY

    The probationary period can be a highly effective tool to 
evaluate a candidate's potential to be an asset to the Federal 
Government before an appointment to the federal civil service 
becomes final. The probationary period is the last stage of the 
assessment process under which a candidate's ability, 
knowledge, and skills are observed, and a final decision is 
made in light of those observations. The Committee is concerned 
however that the probationary period has become a formality, 
often overlooked as part of the appointment process.
    H.R. 1470 provides agencies with additional tools to ensure 
they meet their responsibility to fairly assess probationers 
and therefore improve performance management within the Federal 
Government. The legislation extends the length of the 
probationary period from one year to a minimum of two years. 
Lengthening the probationary period provides an individual the 
opportunity to complete job-related training and begin 
performing the actual work of the position, thus allowing the 
person additional time to demonstrate their capabilities. The 
legislation also clarifies the limitation of certain appeal 
rights for adverse actions while individuals are on probation.

                  BACKGROUND AND NEED FOR LEGISLATION

    The history of the probationary period dates back to the 
creation of the federal civil service in the Pendleton Act of 
1883, which required that there be a period of probation before 
an appointment becomes final.\1\ The probationary period 
provides the Federal Government with an opportunity to evaluate 
an individual's conduct and performance on the job to determine 
if an appointment should become final. Proper use of the 
probationary period promotes the merit system principle that 
selection should be determined solely on the basis of relative 
ability, knowledge, and skills.\2\
---------------------------------------------------------------------------
    \1\U.S. Statutes at Large 22 (1883): 403.
    \2\5 U.S.C. 2301(b)(1).
---------------------------------------------------------------------------
    In developing H.R. 1470, the Committee reviewed various 
studies, reports, and surveys of federal supervisors and 
employees, who identified various impediments to dealing with 
poor performance, including the probationary period. Studies 
suggest that even a small number of poor performers can have a 
negative impact on the work environment.\3\ In this regard, 
general agreement exists that poor performance should be 
addressed earlier rather than later.\4\ In its report to the 
Committee, the General Accountability Office (GAO) noted that 
effective use of probationary periods to rigorously review 
employee performance is important for developing staff to reach 
full productivity, and that the probationary period may be 
viewed as the final opportunity to evaluate performance before 
permanent appointment.\5\ Similarly, the Merit Systems 
Protection Board (MSPB) concluded, ``If the government does not 
have a way to quickly and easily correct mistakes that are made 
in the hiring process, it may be left with a situation that can 
negatively affect the efficiency of the organization for a long 
time.''\6\
---------------------------------------------------------------------------
    \3\U.S. Merit Systems Protection Board, The Federal Workforce for 
the 21st Century, Results of the Merit Principles Survey 2000 
(Washington, D.C.: 2003).
    \4\U.S. Government Accountability Office, Poor Performers in the 
Federal Workplace GAO-05-812R (Washington, D.C.: June 29, 2005).
    \5\Ibid.
    \6\U.S. Merit Systems Protection Board, Navigating the Probationary 
Period (Washington, D.C.: September 2006).
---------------------------------------------------------------------------
    Many federal agencies employ labor forces requiring 
specialized skills to carry out their duties. New employees 
must often master broad and complex procedures and policies to 
meet their agencies' missions, necessitating several months of 
formal training followed by long periods of on-the-job 
instruction. For example, at the Social Security 
Administration, a benefit authorizer is provided 8.5 months of 
formal training, followed by a period of assigned casework that 
is reviewed until he or she has demonstrated acceptable 
accuracy and production. The current one year probationary 
period impedes a fair assessment of the employee's full range 
of performance. Sufficient time is necessary to determine 
whether a probationer should be retained.
    In its letter to the Committee, the Government Managers 
Coalition (GMC) discussed the need for management to have 
adequate time to determine if a new employee has the required 
skill set to perform the responsibilities of the position for 
which they were selected. The GMC stated,

          ``a two-year probationary period would give managers 
        the necessary time to ensure an employee receives 
        training and then has adequate time on the job before 
        the probationary period ends.
          ``Once on the job, managers have a very small window 
        of time to identify performance issues, counsel the 
        employee and allow the employee to improve. Managers 
        are in the difficult position of having to decide 
        whether or not to keep employees when they have not had 
        sufficient time to evaluate employees. If managers miss 
        the one-year window to dismiss a failing employee, the 
        burden of proof becomes much greater if they decide to 
        do so later. For that reason, managers have an 
        incentive to dismiss the employee prior to the 
        expiration of the one-year window even though the 
        employee has not had sufficient time to show that they 
        could master the job.''\7\
---------------------------------------------------------------------------
    \7\Letter to Chairman Issa from Government Managers Coalition. 
April 12, 2011.

    Accordingly, H.R. 1470 lengthens the probationary period 
from one year to a minimum of two years. Lengthening the 
probationary period provides individuals the opportunity to 
complete job-related training and begin performing the actual 
work of the position. More importantly, it allows candidates 
more time to demonstrate their capabilities. The legislation 
maintains agencies' flexibility to lengthen the probationary 
period for a reasonable fixed duration, provided such 
probationary periods are uniformly applied. The Committee 
agrees with the MSPB that the longer probationary period 
``should not be used to delay action when there is sufficient 
data to create an informed decision at an earlier date.''\8\
---------------------------------------------------------------------------
    \8\U.S. Merit Systems Protection Board, The Probationary Period: A 
Critical Assessment Opportunity (Washington, D.C.: August 2005).
---------------------------------------------------------------------------
    There is a precedent for a longer probationary period. The 
General Accountability Office requires a two year probationary 
period for new hires who participate in the Professional 
Development Program. The Internal Revenue Service has authority 
to establish a probationary period for up to three years.\9\ 
Demonstration projects at the National Institute of Standards 
and Technology and the Department of Commerce gained authority 
to establish probationary periods of up to three years.\10\ 
These alternative personnel systems ``produced impressive 
statistics on increased job satisfaction and quality of 
employees versus that for the Federal workforce in 
general.''\11\
---------------------------------------------------------------------------
    \9\5 U.S.C. 9159(d).
    \10\U.S. Government Accountability Office, Human Capital: 
Implementing Pay for Performance at Selected Demonstrates Projects, 
GAO-04-83 (Washington, D.C.: Jan. 23, 2004).
    \11\75 FR 55160.
---------------------------------------------------------------------------
    Lengthening the probationary period supports reform 
planning underway. In March 2011, the Director of the Office of 
Personnel Management (OPM), John Berry, asked the Chief Human 
Capital Officers Council to form a working group to improve 
government-wide performance management. In discussing the need 
to improve federal employee performance, Director Berry stated, 
``Failing to remove poor performers disrespects and demotivates 
the entire team. And what's more, we don't have a position to 
waste.''\12\
---------------------------------------------------------------------------
    \12\Davidson, Joe. ``OPM's John Berry calls for new performance-
review system for federal workers, Washington Post, March 16, 2011.
---------------------------------------------------------------------------
    In a January 2011 interview, Department of Homeland 
Security Chief Human Capital Officer Jeff Neal commented on the 
need for a longer probationary period, indicating that one year 
was not enough time to judge new Border Patrol agents and other 
law enforcement officers. Neal explained that he would like a 
longer probationary period.\13\
---------------------------------------------------------------------------
    \13\Losey, Stephen. ``Pay Reform: Lawmaker Wants Your Input,'' 
Federal Times, March 16, 2011.
---------------------------------------------------------------------------
    In its 2011 Legislative Issues Brief, the Federal Managers 
Association expressed support for lengthening the probationary 
period, noting ``The current economic environment requires 
agencies to take on greater responsibility while receiving 
fewer resources, and it is critical that members of the federal 
workforce prove they are up to the challenge of serving the 
interests of the American public.''\14\ Enabling agencies to 
assess and easily terminate unsatisfactory candidates 
recognizes this reality, and promotes two other merit system 
principles: using the federal workforce efficiently and 
effectively; and retaining employees on the basis of the 
adequacy of their performance.\15\
---------------------------------------------------------------------------
    \14\Federal Managers Association, 2011 Issue Brief, accessed at 
http://fedmanagers.org/ public/pdfs/
Federal%20Workforce%20Management%202011.pdf.
    \15\5 U.S.C. 2301(b)(5) and (b)(6).
---------------------------------------------------------------------------
    In addition, the MSPB recommended Congress amend current 
law to indicate that probationers are not entitled to 
protections granted to federal employees. The MSPB noted this 
change ``would help support the message that appointment as a 
Federal employee must be earned through successful performance 
and is not an entitlement that automatically results from a job 
offer or physical presence in the workplace.''\16\ H.R. 1470 
clarifies the limitation of certain appeal rights for adverse 
actions while individuals are on probation.
---------------------------------------------------------------------------
    \16\U.S. Merit Systems Protection Board, The Probationary Period: A 
Critical Assessment Opportunity (Washington, D.C.: August 2005).
---------------------------------------------------------------------------
    The MSPB also examined how agencies were using the 
probationary period to ensure only the best candidates received 
finalized appointments as federal employees. The MSPB 
recommended that OPM establish procedures so that a probationer 
does not automatically become an employee in the absence of 
agency action, describing how a probationary period helps the 
individual understand they have ``been given a time-limited 
opportunity with the burden on the probationer to demonstrate 
why a finalized appointment is in the interest of the 
Government.''\17\ H.R. 1470 requires that agencies certify a 
probationer's conduct and performance is such that an 
individual will be an asset to the Federal Government.
---------------------------------------------------------------------------
    \17\Ibid.
---------------------------------------------------------------------------
    Finally, the MSPB discussed the need for agencies to 
``create a culture in which probationers are treated with 
respect as candidates for an appointment, but not as Federal 
employees with finalized appointments.''\18\ The MSPB 
recommended probationers be notified, before accepting a job 
offer, that they will be probationers. H.R. 1470 requires 
agencies to define the terms of the probationary period in the 
vacancy announcement as well as ensure probationers have a full 
understanding of performance expectations.
---------------------------------------------------------------------------
    \18\Ibid.
---------------------------------------------------------------------------

                          LEGISLATIVE HISTORY

    The history of the federal probationary period dates back 
to the creation of the civil service in the Pendleton Act of 
1883, which required ``that there shall be a period of 
probation before any absolute appointment or employment 
aforesaid.''\19\ The Civil Service Reform Act provided that:
---------------------------------------------------------------------------
    \19\U.S. Statutes at Large 22, Chapter 27, January 16, 1883, 403, 
at 404.

          The President may take such action, including the 
        issuance of rules, regulations, and directives, as 
        shall provide as nearly as conditions of good 
        administration warrant for a period of probation--(1) 
        before an appointment in the competitive service 
        becomes final; and before initial appointment as a 
        supervisor or manager becomes final.\20\
---------------------------------------------------------------------------
    \20\P.L. 94-454, Sec. 303(a), October 13, 1978, 92 Stat. 1111, at 
1146.
---------------------------------------------------------------------------
          An individual's initial appointment as a career 
        appointee shall become final only after the individual 
        has served a 1-year probationary period as a career 
        appointee.\21\
---------------------------------------------------------------------------
    \21\P.L. 94-454, Sec. 403(a), October 13, 1978, 92 Stat. 1111, at 
1162 (section on appointments in the Senior Executive Service).

    In 1990, Congress extended full appeal rights to non-
preference eligibles in the excepted service.\22\
---------------------------------------------------------------------------
    \22\P.L. 101-376, Sec. 2(a), August 17, 1990, 104 Stat. 461.
---------------------------------------------------------------------------

                           Section-by-Section

Section 1. Provisions relating to probationary periods

    The probationary period for federal civilian employees is 
extended from one year to not less than 2 years. Veterans' 
preference is maintained for individuals with initial 
appointments to positions that exist 180 days after enactment 
of the legislation.
    Agency heads must ensure that individuals receive clear 
guidance of the performance requirements that must be met as 
part of the probationary period, beginning with the vacancy 
announcement. Agencies are required to certify an individual's 
successful completion of the probationary period, demonstrating 
that a probationer's conduct and performance have established 
that the employee will be an asset to the Federal Government.

Section 2. Appeals from adverse actions

    Individuals in a probationary status are not entitled to 
protections from adverse actions granted to employees who have 
completed their probationary period.

                       Explanation of Amendments

    Rep. Dennis Ross offered an amendment in the nature of a 
substitute that made minor changes to the legislation. The 
amendment removes the section of the bill that dealt with 
application of the probationary period to transfers, 
promotions, demotions, and lateral assignments to guard against 
a situation where an employee could spend their entire time in 
a career ladder in a probationary period. The amendment also 
makes clear that veterans' preference is maintained by keeping 
the length of the probationary period the same, consistent with 
current law. The amendment was agreed to by voice vote.
    Rep. Cummings offered an amendment in the nature of a 
substitute that would have replaced the probationary period 
extension with a GAO study assessing the impact of lengthening 
the probationary period. The amendment was defeated by a vote 
of 13-14.
    Rep. Connolly offered an amendment in the nature of a 
substitute that would have replaced the probationary period 
extension with certain training programs for federal 
supervisors. Most of the provisions of the amendment would 
codify existing practices of the federal government, including 
those established by the Federal Workforce Flexibility Act of 
2004 and the Fiscal Year 2010 National Defense Authorization 
Act. The Connolly amendment was ruled out-of-order by the 
Chairman because it was non-germane.

                        Committee Consideration

    On April 13, 2011, the Committee met in open session and 
ordered reported favorably the bill, H.R. 1470, as amended, by 
roll call vote, a quorum being present.

                            Roll Call Votes

H.R. 1470 (Ross-FL)--To amend title 5, U.S.C., to extend the 
        probationary period applicable to appointments in the civil 
        service, and for other purposes

    (1) Cummings amendment to the Ross substitute--defeated by 
a vote of 13 ayes to 14 noes.
    Voting aye: Cummings, Towns, Maloney, Norton, Kucinich, 
Tierney, Clay, Lynch, Connolly, Davis, Braley, Murphy and 
Speier.
    Voting no: Issa, Burton, Platts, Chaffetz, Walberg, Amash, 
Buerkle, Gosar, Labrador, Meehan, DesJarlais, Gowdy, Ross and 
Farenthold.
    (2) H.R. 1470 was ordered favorably reported, as amended, a 
quorum being present, by a vote of 15 ayes to 14 nays.
    Voting aye: Issa, Burton, McHenry, Chaffetz, Walberg, 
Amash, Buerkle, Gosar, Labrador, Meehan, DesJarlais, Gowdy, 
Ross, Guinta and Farenthold.
    Voting no: Platts, Cummings, Towns, Maloney, Norton, 
Kucinich, Tierney, Clay, Lynch, Connolly, Davis, Braley, Murphy 
and Speier.
    ** Note: Had they been present at the vote, Mr. Turner and 
Mr. Walsh both would have been recorded as voting ``aye.'' By 
unanimous consent, this was approved for the record. 

              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch where the bill relates to the terms and conditions of 
employment or access to public services and accommodations. 
This bill extends the probationary period for federal civil 
service employees from one year to not less than two years. 
H.R. 1470 applies to employees paid according to the General 
Schedule. As such this bill does not relate to legislative 
branch employees.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the Committee's oversight findings and recommendations are 
reflected in the descriptive portions of this report.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goals and objectives are reflected in the descriptive portions 
of this report.

                     Federal Advisory Committee Act

    The Committee finds that the legislation does not establish 
or authorize the establishment of an advisory committee within 
the definition of 5 U.S.C. App., Section 5(b).

                       Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandates Reform Act, P.L. 104-4) requires a statement as to 
whether the provisions of the reported include unfunded 
mandates. In compliance with this requirement the Committee has 
received a letter from the Congressional Budget Office included 
herein.

                         Earmark Identification

    H.R. 1470 does not include any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of rule XXI.

                           Committee Estimate

    Clause 3(d)(2) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs that would be incurred in carrying out 
H.R. 1470. However, clause 3(d)(3)(B) of that rule provides 
that this requirement does not apply when the Committee has 
included in its report a timely submitted cost estimate of the 
bill prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act.

     Budget Authority and Congressional Budget Office Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause 3(c)(3) of rule XIII of the Rules of 
the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has received 
the following cost estimate for H.R. 1470 from the Director of 
Congressional Budget Office:

                                                    April 26, 2011.
Hon. Darrell Issa,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1470, a bill to 
amend title 5, United States Code, to extend the probationary 
period applicable to appointments in the civil service, and for 
other purposes.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

H.R. 1470--A bill to amend title 5, United States Code, to extend the 
        probationary period applicable to appointments in the civil 
        service, and for other purposes

    H.R. 1470 would extend the probationary period for federal 
employees from one year to two years. During that time, an 
agency is responsible for assessing a candidate for a permanent 
position or termination. CBO estimates that implementing the 
legislation would have no significant impact on the federal 
budget. Enacting the bill could affect direct spending by 
agencies not funded through annual appropriations, such as the 
Tennessee Valley Authority and the Bonneville Power 
Administration; therefore, pay-as-you-go procedures apply. CBO 
estimates, however, that any net increase in spending by those 
agencies would not be significant. Enacting H.R. 1470 would not 
affect revenues.
    Under current regulations, the first year of service for 
most federal employees is considered a probationary period. 
During that year, supervisors evaluate an employee's 
performance and conduct on the job and may remove the employee 
if necessary. Employees dismissed during this probationary 
period generally have no right of appeal to the Merit Systems 
Protection Board. H.R. 1470 would extend the current 
probationary period to two years. CBO estimates that the 
legislation would have no significant budgetary effect because 
it would not change the evaluation process or structure, the 
total number of federal jobs available, or the oversight of 
employees.
    H.R. 1470 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Matthew 
Pickford. The estimate was approved by Theresa Gullo, Deputy 
Assistant Director for Budget Analysis.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

                      TITLE 5, UNITED STATES CODE

           *       *       *       *       *       *       *
PART III--EMPLOYEES

           *       *       *       *       *       *       *

SUBPART B--EMPLOYMENT AND RETENTION

           *       *       *       *       *       *       *

CHAPTER 33--EXAMINATION, SELECTION, AND PLACEMENT

           *       *       *       *       *       *       *

SUBCHAPTER I--EXAMINATION, CERTIFICATION, AND APPOINTMENT

           *       *       *       *       *       *       *

Sec. 3321. Competitive service; probationary period

  (a) [The President] Subject to subsections (c) and (d), the 
President may take such action, including the issuance of 
rules, regulations, and directives, as shall provide as nearly 
as conditions of good administration warrant for a period of 
probation--
          (1) * * *

           *       *       *       *       *       *       *

  (c) The length of a probationary period under paragraph (1) 
or (2) of subsection (a), established by rule, regulation, or 
other action of the President, shall be--
          (1) except as provided in paragraph (2), not less 
        than 2 years; and
          (2) in the case of a preference eligible, not longer 
        than--
                  (A) if the appointment (as referred to in 
                subsection (a)(1)) or the initial appointment 
                (as referred to in subsection (a)(2)) is to a 
                position that exists on the effective date of 
                this subsection, the length of the probationary 
                period which applies to such position as of 
                such effective date; or
                  (B) if the appointment (as referred to in 
                subsection (a)(1)) or the initial appointment 
                (as referred to in subsection (a)(2)) is to a 
                position that does not exist on the effective 
                date of this subsection, such length of time as 
                the President may establish, consistent with 
                the purposes of this paragraph.
  (d) The head of each agency shall, in the administration of 
this section, take appropriate measures to ensure that--
          (1) any announcement of a vacant position within such 
        agency and any offer of appointment made to any 
        individual with respect to any such position shall 
        clearly state the terms and conditions of the 
        probationary period applicable to such position;
          (2) any individual who is required to complete a 
        probationary period under this section shall receive 
        timely notice of the performance and other requirements 
        which must be met in order to successfully complete the 
        probationary period; and
          (3) upon successful completion of a probationary 
        period under this section, certification to that effect 
        shall be made, supported by a brief statement of the 
        basis for that certification, in such form and manner 
        as the President may by regulation prescribe.
  [(c) Subsections (a) and (b) of this section] (e) This 
section shall not apply with respect to appointments in the 
Senior Executive Service or the Federal Bureau of Investigation 
and Drug Enforcement Administration Senior Executive Service.

           *       *       *       *       *       *       *

SUBPART F--LABOR-MANAGEMENT AND EMPLOYEE RELATIONS

           *       *       *       *       *       *       *

CHAPTER 75--ADVERSE ACTIONS

           *       *       *       *       *       *       *

              SUBCHAPTER I--SUSPENSION FOR 14 DAYS OR LESS

Sec. 7501. Definitions

  For the purpose of this subchapter--
          (1) ``employee'' means an individual in the 
        competitive service who is not serving a probationary 
        or trial period under an initial appointment or who has 
        completed   [1 year] not less than 2 years of current 
        continuous employment in the same or similar positions 
        under other than a temporary appointment limited to [1 
        year] 2 years or less; and

           *       *       *       *       *       *       *

SUBCHAPTER II--REMOVAL, SUSPENSION FOR MORE THAN 14 DAYS, REDUCTION IN 
             GRADE OR PAY, OR FURLOUGH FOR 30 DAYS OR LESS

Sec. 7511. Definitions; application

  (a) For the purpose of this subchapter--
          (1) ``employee'' means--
                  (A) an individual in the competitive 
                service--
                          (i) * * *
                          (ii) who has completed [1 year] not 
                        less than 2 years of current continuous 
                        service under other than a temporary 
                        appointment limited to 1 year or less;

           *       *       *       *       *       *       *

                  (C) an individual in the excepted service 
                (other than a preference eligible)--
                          (i) * * *
                          (ii) who has completed [2 years] not 
                        less than 2 years of current continuous 
                        service in the same or similar 
                        positions in an Executive agency under 
                        other than a temporary appointment 
                        limited to 2 years or less;

           *       *       *       *       *       *       *

                             MINORITY VIEWS

    Currently, federal employees serve a one year probationary 
period when they are hired into federal service. H.R. 1470 
would increase the probationary period to at least two years 
for the entire federal workforce.
    According to the Merit Systems Protection Board, the 
purpose of the probationary period is ``to provide the 
Government with an opportunity to evaluate an individual's 
conduct and performance on the job to determine if an 
appointment to the civil service should become final.''
    It is appropriate that the federal government have a 
reasonable opportunity to evaluate the ability of new hires. In 
most cases, one year is an adequate period in which to assess a 
new employee's ability to perform. The Committee has not held a 
single hearing to identify any shortcomings in the current 
probation period, and it has not received any testimony or 
evidence from the government explaining why a two year 
probationary period is needed or how it would improve the 
efficiency of the federal workforce.
    Nevertheless, the Committee decided to report legislation 
on a party-line vote that would erode protections guaranteed to 
federal workers without identifying any benefit this would 
produce. In fact, an across-the-board requirement for a two-
year probationary period would undermine the majority's stated 
desire to provide federal managers with flexibility to modify 
probationary periods based on the individual occupation of the 
employee.
    The Committee adopted an amendment by Rep. Ross that 
eliminates some of the potentially absurd consequences of the 
original bill. As introduced, H.R. 1470 would have subjected 
federal employees to a two-year probationary period when they 
were hired, and then required another two-year probationary 
period every time they were promoted, transferred, demoted, or 
reassigned.
    While the Committee adopted this amendment and eliminated 
the absurd possibility that federal employees might spend 
decades on probation, the manner in which this legislation was 
drafted suggests a lack of consideration of the impact of the 
policy change this legislation seeks. The Committee has not 
conducted any type of assessment to determine whether a 
lengthening of the current probationary period is needed or 
would be an improvement over current practice. For these 
reasons, Ranking Member Cummings offered an amendment to 
require the Government Accountability Office to conduct a non-
partisan, fact-based review of the probationary period and 
report its findings to Congress. Unfortunately, that amendment 
was defeated.
    Instead of a thoughtfully constructed proposal to help 
government managers and agencies, this bill degrades the rights 
of federal employees and denigrates public service. Federal 
employees care for our veterans, research and fight diseases 
such as cancer, respond to natural disasters, ensure that the 
food we eat is safe, protect our borders, and deliver vital 
services to our nation's citizens. Given the importance of 
these functions, Congress has long-recognized the need to 
promote the federal merit system and protect federal employees 
from arbitrary personnel actions that do not promote the 
efficiency of the federal service.
    The Merit Systems Protection Board has explained that the 
primary reason non-probationary employees are granted due 
process protections against adverse actions is ``to keep the 
civil service free from prohibited personnel practices,'' 
including retaliation for whistle-blowing, personnel decisions 
based on improper political motives, or other non-merit based 
actions.
    The Committee has an obligation to strengthen the civil 
service and support protections for federal workers that allow 
civil servants to effectively and efficiently carry out their 
duties without fear of arbitrary personnel actions or 
retaliation. H.R. 1470 undermines these important principles.
                                                Elijah E. Cummings.
```