Another Shutdown? – Now is the Time for Congress to Act to Protect Federal Workers and Contractors

The beginning of Summer means we are just over three months away from the end of Fiscal 2019. In the old days that would have meant Congress was moving along on appropriations bills and something would be on the President’s desk for signature before September 30, 2019. In 2019 that is more of a fairy tale and about as likely to happen as pigs flying. When we combine the need to lift the debt ceiling and raise the Defense/Non-Defense discretionary spending caps, divided control of Congress, intraparty disagreements on the right and left on how to proceed, partisanship, a lack of clear guidance from the White House, and the upcoming presidential election, the outcome could be an end-of-fiscal-year mess that results in a shutdown that is far worse than the record 35-day partial shutdown we saw this year. For federal workers and contractors, the most immediate consequence would be no pay, before many of them have recovered from the mess the Congress and the White House created earlier in the year.

There is a potential measure that could help that has received bipartisan support in the Senate — the Government Shutdowns Accountability Act. Several provisions of the proposed legislation would go a long way toward reducing or eliminating the end-of-fiscal-year madness that seems to afflict us now. The Act would make it clear that members of Congress would be expected to be here doing their jobs during a shutdown. They would not be able to travel home on the government’s dime, nor could they use campaign funds to circumvent the restriction. Here are the key provisions:

  • Allow employees who are not working due to a shutdown to obtain outside employment without prior approval of their agencies. Conflict of interest and other restrictions would still apply. Any pay the employee earned in such employment would not be considered in calculating back pay that might be owed.
  • Official travel outside the National Capital Region (except to return to DC) would be prohibited. That includes members of Congress traveling home to their districts. Use of campaign funds for such travel would also be subject to the same restrictions.
  • House and Senate rules would be changed so that “it shall not be in order to move to proceed to any matter except for (A) a measure making appropriations for the fiscal year during which the Government shutdown begins; (B) emergency legislation; or (C) a motion relating to determining or obtaining the presence of a quorum.” Recessing or adjourning for more than 23 hours would also not be in order. Waiving the restrictions would require a two-thirds vote of the members of the applicable House of Congress.

Other pending Bills would provide for automatic continuing resolutions and for continuation of federal employee pay during a shutdown. If we really want to see an end to shutdown madness, here are a few changes that should be enacted into law:

  • Continuation of pay for federal workers and contractors. Putting the financial security of millions of people in jeopardy simply because Congress and the President cannot do their jobs is wrong. Using those folks and their families as political pawns must stop.
  • The restrictions in the Government Shutdowns Accountability Act should be enacted, with the addition of provisions to place congressional pay in escrow until a shutdown is over. There are questions concerning the constitutionality of not paying members of Congress, but placing the funds in escrow may be just enough to pass constitutional muster. It appears that wasting billions of dollars and depriving workers of their pay and peace of mind is not enough, so something that makes it personal for Congress seems to be the next logical step. Requiring Members to stay in town and in session, and making travel home on their own money during a shutdown might be an effective way of putting pressure on the process.
  • Eliminate the debt ceiling. Congress already controls federal spending through the appropriations process. Every appropriated dollar is approved by Congress and the President. All the debt ceiling does is limit whether or not the United States of America can pay the bills it has already incurred. Imagine what would happen if you and I decided we would run up credit card debt and decide later if we think it is appropriate to pay the bill. The debt ceiling is a relic of World War I bond issues and serves little, if any, useful purpose today. It is primarily used (by both parties) as a bludgeon to get what they want from the other party. If it actually made a difference, the national debt probably would not be $22.4 trillion and rising. 
  • Develop a mechanism for continue funding automatically. This fix is not as simple as it might seem. Both parties have an interest at various times in using shutdowns as leverage and they have different views on what an automatic funding mechanism would do. The most logical move would be to continue funding at the last level that was appropriated. The End Government Shutdowns Act (S. 104 and H.R. 791), co-sponsored in the House by nine Republicans and two Democrats and in the Senate by 33 Republicans, would continue funding for 120 days after a lapse in appropriations, then reduce funding by one percent every 90 days until a continuing resolution or appropriations Bill passed. Another Bill – the Ban Government Shutdowns Act (H.R. 809) – co-sponsored by 11 Democrats, would have the same effect, but without the automatic one percent cuts after the first 120 days.

Prior the last shutdown, I thought it was likely that the shutdown would be averted before the House changed hands. That was the logical outcome that made sense. It did not happen. What we have seen in the past 20 years is a steady degradation of the congressional appropriations process. At first the idea the Congress would not pass appropriations Bills was considered to be a problem, then it became the norm. Sequestration was enacted by the Budget Control Act of 2011 as a way to force Congress to act or face consequences that were so severe that they would not allow them to happen. We saw what happened with that. My misplaced optimism last year has been replaced with pessimism this year. I believe there is a good chance we could see another shutdown. An automatic continuing resolution process may be the only way to keep shutdowns from becoming routine. There may not be time on the legislative calendars to enact one of these Bills, but my hope is that the legislative and executive branches will see that it is the interests of both to keep the government open or, at the very least, make certain that federal workers and contractors are not victims of the process again.




Extending Probationary Periods for Most Hires is Not Needed

An April 12, 2019 proposal from the Office of Personnel Management would make it easier to extend probationary periods for new federal hires. The memo was not a secret, but it was also not publicized and just showed up in the news last week. It included three proposals, including increasing the number of interns who can be hired and making it easier for term employees to get permanent jobs. I wrote on May 1, 2019 about the need to lift the limits on intern hiring. The government continues to do an abysmal job of hiring young people and this proposal could make it easier. It will not solve all of the problems, but at least it will make a dent in them.

While two of the legislative proposals are sound and should be taken up by the Congress, I think the third is far less useful. Extending the probationary period is one of those proposals we see often. In fact, the Department of Defense already has a two-year probationary period for most positions, a change that was authorized by the 2016 National Defense Authorization Act. The extended probationary period is intended to give managers more time to determine whether a new employee should be retained or fired. Managers generally support the extension, while unions generally do not.

The problem with longer probationary periods is that there is no real evidence that they make a difference. For most jobs, a year is more than enough time to determine whether the hire was a mistake. In fact, that is the actual purpose of probation – it was established by the Pendleton Act in 1883 as the last step in the hiring process. We all know that the hiring process is not perfect. Sometimes agencies hire people who are not a good match for the job. The probationary period provides time for the agency to identify that mistake and let the employee go. Employees who are fired during probation have little recourse. They can appeal to the Merit Systems Protection Board (MSPB) if they believe the termination was because of marital status or partisan political reasons, or if the termination was for conditions arising before they were hired.

The effect of the very limited appeal rights is that terminations of probationary employees are seldom reversed. Given the ease of firing probationers, it would be safe to conclude that agencies make good use of probation and remove new employees who have performance or misconduct issues. That conclusion would be wrong. Even though there is virtually no red tape, a simple process, and almost no chance of being reversed on appeal, agencies generally remove fewer than two percent of probationary employees. Once employees have completed probation, the removal rate drops even more.

My own experience in advising managers who are dealing with problem employees is that they do not rush to fire probationers who are struggling with performance. They generally are willing to give them more time to improve, with the result being that many terminations happen near the end of probation. Supervisors tend to be more willing to deal with misconduct problems during probation.

There is one situation where an extended probationary period makes sense, and that is for employees who are on extended training programs. For example, if a new hire is a GS-5 with promotion potential to GS-11 or GS-12, it would be reasonable to evaluate that person’s ability to learn the work and perform successfully at each grade level below the full performance level. In those cases, an extended probationary period of two or even three years makes sense. For new hires who come in at the full performance level, an extended probationary period serves little useful purpose, other than to give managers one more year during which they can easily fire someone. Absent any compelling evidence that it actually makes a difference, depriving employees of full due process rights is not a good idea.

If the Congress takes up this proposal, the best way forward to would be to restrict the extended probationary period to new hires in trainee positions. For the rest of the workforce, a one-year probationary period is adequate.