Longer probationary periods, more student interns target of new OPM legislative proposals

The Office of Personnel Management has offered up three legislative proposals this spring for congressional consideration, which the agency said will “improve, expand and harmonize” government’s efforts to restructure and reshape the federal workforce.

Specifically, OPM wants to create a noncompetitive term and temporary appointment for employees, lift the existing statutory cap on the number of interns can agencies can appoint using an expedited hiring authority and allow agencies to appoint federal employees to a two-year probationary period.

“OPM recognizes that federal agencies may need additional tools and flexibilities as they seek to improve efficiency, effectiveness and accountability,” Margaret Weichert, OPM’s acting director, wrote in a letter dated April 12 to congressional leadership. “Further, OPM believes that the federal government will benefit from providing additional authorities to agencies in recruiting and developing top talent in their ranks.”

Under one legislative proposal, OPM suggests giving agencies the flexibility to convert term and temporary employees to permanent employment. This proposal would allow existing term employees to compete for a permanent role only when their agencies are considering candidates from within or outside their organizations .

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“This proposal would rectify the inequities being created through agency-specific statutory authorities for similar flexibilities,” OPM wrote.

More recent grads through direct-hire

OPM also suggested a solution that would rectify an unintended consequence of a provision provided in last year’s defense authorization bill.

Agencies last year secured a direct-hire authority that allows them to determine their own recruitment sources, such as colleges, universities and other programs, to recruit and hire students that best fit their needs.

But the original mandate in the 2019 National Defense Authorization Act directed OPM to cap the hiring of recent college graduates based on the number of students appointed using this authority in previous years.

“An agency that reduces its student hiring or one that is unable to hire students during a particular year may not be able to use this authority in subsequent years,” OPM wrote in its proposal. “Under such circumstances, the cap is based on the percentage of a very low number of hires or even zero hires, which in effect renders this hiring authority unusable.”

OPM this year has simply suggested to lift the cap from the previous year’s mandate.

Agencies hired fewer than 4,000 students to positions in fiscal 2018, a far lower figure than the 35,000 interns agencies managed to recruit back in 2010, according to the Office of Management and Budget.

“This low number of intern hires is insufficient to build the pipeline needed to support agencies,” OPM wrote.

Option for longer probationary periods

In addition, OPM has suggested statutory changes that would eventually allow agencies to use longer probationary periods for employees.

Currently, most federal employees have a one-year probationary period after their initial hire date to demonstrate their skills and abilities on the job.

“Probationary periods are an important part of the hiring process and are the final state of candidate assessment, as the candidate is demonstrating his/her ability to perform the work successfully in the true work environment with no artificial constraints,” OPM wrote.

During this time, employees on a probationary period don’t have the same rights to appeal a disciplinary action, for example, that their colleagues who have cleared the one-year mark have. The Merit Systems Protection Board only has jurisdiction over federal employees who have completed their probationary periods. Probationary employees can appeal to MSPB if they believe they’ve been fired for partisan or political reasons, but they can’t appeal disciplinary actions related to poor performance or misconduct.

“OPM can provide for longer probationary periods under its current authority, but any practical benefit of this authority is constrained by the current statutory definition of ’employee,’ which defined when an individual becomes an employee for purposes of receiving procedural due process right when an agency removes them from federal service,” the legislative proposal reads.

If Congress tweaks the definition of a federal employee in Title 5 statute, agencies may have the flexibility to use longer probationary periods, according to OPM.

This proposal, however, may face a tough time in a democratically-controlled House.

Employees at the Defense Department already have two-year probationary periods today, but the House Armed Services Committee has suggested DoD revert to a one-year trial period.

The proposal has already earned criticism from the Government Managers Coalition, which includes the Federal Managers Association, Senior Executives Association, Professional Managers Association, FAA Managers Association and the National Council of Social Security Management Associations.

DoD, in announcing its plans to implement a two-year probationary period for new hires back in 2015, said many positions require more than a year to determine whether employees are a good fit.

“It is unclear if this is no longer true, if the department determined the two-year probationary period did not have the desired consequence or if another consequence of the policy arose,” the coalition wrote in a June 12 letter to members of the House Armed Services Committee. “We have heard from our members no issues nor evidence that the longer probationary period at DOD is inhibiting hiring of a qualified civilian workforce.”

Federal employee unions such as the American Federation of Government Employees have previously criticized the prospect of two-year probationary periods.

And yet past research from MSPB has found that agencies have rarely used the probationary to weed out poor managers. Between 1999 and 2016, only about seven for every 1,000 new supervisors faced consequences for failing their probationary period.

The administration’s legislative proposals aren’t yet part of the House draft of the defense authorization bill, but the Government Managers Coalition argues they should be.

“Each of these proposals would strengthen the civil service and enhance the federal government’s ability to serve the American people,” the coalition wrote.

Congress often uses the annual defense authorization bill as a vehicle to advance other legislative priorities for the rest of government, because lawmakers nearly always pass the NDAA every year.

Members in previous years have used the annual defense bill to advance the expedited hiring authority for recent college graduates, which OPM now wants to tweak.

They’ve also twice considered an increase to the maximum amount that civilian agencies can offer in the form of Voluntary Separation Incentive Payments (VSIP) from the current $25,000 to $40,000.

Several agencies have offered buyouts since the Office of Management and Budget in 2017 encouraged them to consider using incentive payments as a way to restructure and reduce the size of their workforces.

But the $25,000 buyout figure hasn’t changed since Congress first authorized these incentives in the early 2000s, and federal employees have said the deal isn’t sweet enough to persuade them to accept VERA/VSIP offers.

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