House Clears Fiscal Year 2017 Defense Authorization Conference Report with Several Government-Wide Federal Workforce Provisions

U.S. House of Representatives

On Friday, the House of Representatives cleared the Fiscal Year (FY) 2017 defense authorization conference report that annually sets major U.S. defense policies, and which is typically used as a legislative vehicle to carry some government-wide federal workforce provisions. The House passed the FY 17 defense authorization conference report (S. 2943) on a bipartisan basis by a vote of 375-34 (Roll Number 600). The conference report now heads to the U. S. Senate, where it is expected to receive a final, bipartisan vote this week or next. The measure authorizes $543.4 billion for defense, with an additional $67.8 billion for overseas contingency operations, totaling $611.2 billion in discretionary budget authority for defense for FY 17.

Several bills sponsored by Chairman Jason Chaffetz (R-UT) that were approved by the Committee on Oversight and Government Reform earlier in 2016, and which had cleared the House of Representatives earlier in the year both as free-standing bills and as part of the House’s original defense authorization bill prior to its conference with the Senate, are included in the final measure. These government-wide federal employee provisions include changes to administrative leave and to official personnel files.

Section 1138 of the conference report will alter how agencies can use and record administrative leave for employees. Agencies will be required to record administrative leave separate from other forms of authorized leave (such as jury duty, training, official time, excused leave for weather conditions, safety issues that necessitate leave), and will be able to place an employee on administrative leave “for a period of not more than a total of ten work days,” per calendar year. Under this legislation, the United States Office of Personnel Management (OPM) logoOffice of Personnel Management will be given 270 days to issue the necessary government-wide regulations for agencies, which in the past were solely responsible for administering administrative leave. It is important to note that employees will remain in a paid status while agencies conduct investigations for personnel or conduct issues as is the case currently, and prior to any adverse actions being taken. Rather than categorize the paid leave as administrative leave as is done now during an investigation, agencies will place employees into a newly-created investigative leave category, which will trigger a written notice requirement to the employee. The legislation provides agencies with various, escalating internal deadlines and requirements for the length of the (paid) investigative leave, which ultimately requires reporting to Congress if the employee has not been returned to their job or received an adverse action notice such as removal. NTEU strongly opposed original versions of this legislation which would have required agencies to place employees into a non-paid status after only 14 days, while the agency continued its investigation, and before any determinations regarding adverse actions had actually been made. NTEU worked with both Senator Jon Tester (D-MT) and Representative Stephen Lynch (D-MA) to ensure that frontline employees will ultimately remain in a paid status during any agency investigation, and before any adverse actions have been issued. These changes to administrative leave are expected to largely impact senior agency management officials, who in the past have been far more likely than frontline employees, to have been placed on lengthy periods of administrative leave, with no personnel actions being taken.

Sections 1136 and 1140 of the defense conference report include several changes to employee official personnel files. Section 1136 will require agencies to review the existing official personnel file for any individual who seeks to return to federal service, and Section 1140 will require agencies to enter any adverse findings into a departed employee’s official personnel file, generally in cases where an employee resigns during an ongoing agency or IG investigation that later makes an adverse finding. NTEU worked with Representative Gerry Connolly (D-VA) on language that was successfully incorporated into the bill that establishes both a notification and appeals process for any affected individuals.

Section 1135 of the measure will alter hiring opportunities for certain employees who have served in so-called “time-limited” positions. These individuals will now be able to compete for permanent positions at agencies under regular internal merit promotion procedures.

I will keep you updated on expected Senate action on the defense conference report.