Lawmakers have until Dec. 16, when the current continuing resolution expires, to pass the rest of the appropriations bills and fund the government next year, but it’s not the only item on the congressional to-do list with big implications for the federal workforce.
Many of those additional items are included as amendments under the National Defense Authorization Act for fiscal 2023. There are more than 1,000 amendments to the NDAA, and at least a handful of them have the potential to change the federal hiring process, federal benefits, retirement and much more.
For one, Sens. Dianne Feinstein (D-Calif.) and Tim Kaine (D-Va.) proposed an amendment to the 2023 NDAA that would effectively add the language of the Preventing a Patronage System Act to the legislation. A similar amendment was also included the already-passed House version of the NDAA.
The amendment, as well as the bill itself, would prevent any current or future administration from creating new federal job classifications. It would effectively block any return of the Schedule F executive order from the end of the Trump administration, which President Joe Biden since revoked. The order would have reclassified about 50,000 federal policy-related positions, placing them outside of a merit-based system and removing some workforce protections.
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“The Schedule F executive order that was issued the end of 2020 really displayed that there is a statutory loophole that could be exploited,” said John Hatton, staff vice president of policy and programs at the National Active and Retired Federal Employees (NARFE) association. “Presidential candidates looking to bring this back at the beginning of an administration would be a much greater threat than at the end of the administration when it never had time to be implemented. We certainly think this is one of our last best opportunities to pass this into law prior to the next presidential election.”
The language of the bill has gained bipartisan support, but a couple of House Republicans introduced bills that would revive, at least in part, the Schedule F executive order in a new form. Advocates of Schedule F said it would add more flexibility to removing poor-performing employees.
Schedule F has also garnered plenty of opposition since its creation. Federal advocacy groups and individuals urged Congressional leaders to pass the Preventing a Patronage System Act, or similar provisions in some form, by the end of the year.
“More is needed by Congress to ensure that future attempts to destroy the merit system are thwarted,” a group of nearly 50 organizations said in an Oct. 28 letter. “Specifically, we urge you to include the language to prevent a return of Schedule F, or other similar efforts, in year-end legislation passed by both chambers. Doing so would provide a congressional check on abuse of executive powers from any administration by limiting the ability of the executive branch to bypass the entire framework of the merit-based civil service through the creation of broad new exceptions to the application of merit-based rules.”
Several less controversial proposed amendments to the 2023 NDAA, including those with language of the Honoring Civil Servants Killed in the Line of Duty Act and the Fairness for Federal Firefighters Act, have also garnered support from organizations like NARFE.
The “Honoring Civil Servants” amendment would adjust death benefits for those who were killed serving the country. Specifically, the provision would increase the death benefit payment from $10,000 to $100,000 to go toward the individual’s family. The benefit has not increased since 1997. It would also increase the payout for funeral allowances to $8,800, which currently sits at $800 and was last updated in 1966. The amounts would also be adjusted annually for inflation.
The bill language of the Fairness for Federal Firefighters Act was also included as a proposed amendment to the NDAA. Under the legislation, federal firefighters would receive workers’ compensation for cardiovascular disease, certain types of cancer and other infectious diseases — all of which are common for firefighters to get after years on the job. The House passed the companion bill last December.
The Senate also just advanced another bill, the Federal First Responders Fair RETIRE Act, which would ensure that the special retirement system for federal first responders still applies to those who get injured on the job and later have to switch career fields. Both the Senate and the House unanimously passed the legislation, and it has now moving to the president’s desk for signing.
Outside of the NDAA, other legislation still on the table would make changes to the federal hiring process by increasing the use of subject-matter experts, as well as placing a larger emphasis on candidates’ skills, in the federal hiring process.
The House passed its version of the Chance to Compete Act, with bipartisan support, in September, after it advanced out of the Oversight and Reform Committee earlier this year. The Senate introduced a companion bill, which is now on the legislative calendar.
The prioritization of federal hiring reform isn’t only in Congress, though — the U.S. Digital Service has piloted a Subject Matter Expert Qualification Assessment (SMEQA), which uses subject-matter experts to help screen job candidates for certain positions. The State Department launched a similar program in March. The Office of Personnel Management also released guidance in May, encouraging agencies to move away from a focus on education when making hiring decisions.
“It’s nice to see a bipartisan effort from those in Congress also aligning with what the administration is doing,” Hatton said. “Hopefully it can result in some improvements in the hiring process and getting people into the jobs quickly and in a way that they’re the right people for the job.”
The Social Security Fairness Act, a bill that has come up in some form every year for decades, may gain additional momentum at the end of this year. The bill now has over 300 cosponsors, up from 290 in July, and well over the amount required to propel a House floor vote.
The bill would remove two provisions in the 1935 Social Security Act that either reduce or eliminate Social Security benefits for two million retirees. The Windfall Elimination Provision (WEP) limits Social Security benefits for federal, state and local retirees who also receive a government annuity. And the Government Pension Offset (GPO) reduces Social Security benefits for spouses, widows and widowers of federal retirees impacted by the WEP.
But there are still some obstacles for the bill, namely that it went to consideration in the House Ways and Means Committee in September, rather than straight to a floor vote. Once a bill reaches the required number of cosponsors, an alternative to a floor vote can still occur if a committee decides instead to take up the bill and advance it out of committee.
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Although the bill cleared the committee on Sept. 20, some committee members said the meeting was unnecessary, and only intended to prevent a floor vote. That being said, the committee’s comments on the issues surrounding the legislation were largely positive.
“Chairman Richard Neal (D-Mass.) and Ranking Member Kevin Brady (R-Texas) both have more modest reform bills addressing the WEP and had talked about continuing to work together to find an agreement,” Hatton said. “I think the most likely place for this in year-end legislation would be part of a tax extenders package and I think the most likely outcome would be some compromise between Neil and Brady’s bills, rather than the full repeal.”
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