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Bill would double probationary period—but unions, experts raise doubts

A key House committee has approved legislation that would revise a longtime accepted fact about federal employment: the one-year probationary period—extending that out to two years.

A key House committee has approved legislation that would revise a longtime accepted fact about federal employment: the one-year probationary period—extending that out to two years.

For proponents, the rationale for the bill—introduced by Rep. James Comer (R-Ky.) and advanced in the House Oversight and Government Reform Committee by a vote of 19 for and 17 against—is that a longer probationary period would allow federal managers to better ensure new hires are truly qualified for federal service.

The Ensuring A Qualified Civil Service Act—or “EQUALs” Act, as the bill is known—would require the extension of the probationary period for most federal employees and senior executives.

Backers say it would not just let managers have more time to decide, but also allow hires more time to complete required training and licensing programs before being evaluated as to whether or not they can do the job they were hired to do.

EQUALs, if enacted, would require agencies to notify managers when an employee’s probationary period will end—and that supervisors certify an employee is fully qualified for conversion to career status.

“I’ve seen firsthand the critical importance of a qualified government workforce,” Comer said in a statement. “The EQUALS Act will ensure the American people are served by a professional and competent civil service."

"It will also provide sufficient time for federal managers to assess the performance of probationary employees and for new hires to demonstrate proficiency in their roles. This legislation will benefit the federal workforce and, most importantly, the American people whom they serve,” he continued.

EQUALs: Unions object, experts see pluses and minuses

Federal managers, through the mouthpiece of the multi-association professional group known as the Government Managers Coalition, have thrown their support behind the bill.

“Our coalition is supportive of the Ensuring a Qualified Civil Service Act of 2017 (the EQUALS Act), introduced by Rep. James Comer,” a press release from the group, hosted on the Senior Executives Association website, said. “We appreciate Rep. Comer’s efforts to take the lead on this important legislation and would also like to commend the Committee for considering the measure.”

But federal employee unions, for the most part, over the long haul have fought moves to stretch the probationary period beyond one year—and the new bill is shaping up as no exception.

For example, the National Federation of Federal Employees reiterated its traditional objections to the latest move in that direction.

“One year of probation is enough for nearly all positions in government,” NFFE national president Randy Erwin said, in a press release that borrowed from a media interview he gave recently. “If a manager cannot figure out in a year’s time whether an employee is a good fit, then it is the manager that may need replacing.”

Experts in federal employee history and labor management contacted by FEND paint a nuanced picture—generally noting advantages and disadvantages that would result from passage of the new bill.

“What is fairly standard throughout most public employment in this country is that in these jobs you get some kind of basic discharge—firing—protections,” Joseph E. Slater, a professor of law at the University of Toledo, told FEND. “These protections go back to the nineteenth century, rooted in worries about political machines installing their people, including incompetent nephews and political cronies, into public service jobs. And then the next party comes in and fires them, right? This was the concern to be warded off—machine politics taking over government jobs. So, making sure employees are protected and full employees soon after hiring makes sense by this logic.”

“But the other side of any debate, the case for lengthening probation, includes concerns that [for now when] an agency hires someone, and they are not working out, managers have to go through a lot of wasteful procedures even with someone obviously shown to be incompetent early on.”

“So, the compromise for decades has been that some relatively short period—6 months, a year—would be the probationary period, and if you survive that you begin to have some kind of job protections,” he continued. “What we are seeing now a wave of lawmakers, Republican members, rejecting that compromise—and saying bluntly instead that if at-will employment is good enough for the private sector—and that’s increasingly common—it should be good enough for the public sector, too.”

“Yet, in my opinion, what we have seen, really going back to 2011 with attacks on collective bargaining rights in states such as Wisconsin, is one party going after union rights because of the political motivation, political rewards for doing so.” Slater said. “The push is not really mostly about any merits.”

Marick Masters, a business professor and labor expert at Wayne State University, also sees some legitimate reasons for wanting a change in hiring and probationary practices—yet in the end finds the bill wanting. That legitimate rationale? Data discussed in a 2015 government analysis is one crucial touchstone for the bill’s mostly conservative backers.

“There’s a GAO report that came out in 2015, arguing that in some jobs it might make sense for their to be longer probationary periods—and please note there are already some at DOD that now have two year probationary periods—and, looking at this bill, I presume the proponents of this want to spread that government-wide,” Masters told FEND.

Yet Masters noted that the GAO report notes that longer probation makes sense only in specific instances—situations that should be determined through careful study—something he says the bill cops out on. Indeed, in the final analysis Masters rejected the bill as unbalanced.

“A one-size fits all solution to whatever the problems may really be here is not appropriate,” Masters told FEND. “To my mind, there are lots of jobs in the federal government where a one-year probationary period remains sufficient, even while there may be some other positions that need more time to judge the person’s capability and performance on the job. Yet this bill would change the period across the board.”

“But all this begs the real question: Are federal managers actually gauging employee performance properly?” Masters asks. “To me, that’s the underlying problem: that managers are just not doing due diligence, properly evaluating employees. So, until that’s changed, the default option is that sometimes the wrong person becomes a career civil servant.”

“Having pointed out these problems, if you really want to solve them, this bill is not the approach to take,” Masters concluded. “We should be trying to take a more careful look at whether or not the current performance evaluation system is appropriate—that is, whether managers are doing a good read on probationary employees, and then making the difficult decisions that need to be made about who is hired and who is not.”

“Only around 3500 feds were terminated in 2013, according to that GAO report—this is a pretty small number,” he added. “That means either that we don’t have much of a problem with employees—or managers are just not sufficiently exercising existing authority.”

Masters then stated unequivocally that he sees the EQUALs bill as a power grab.

“In the end, I think this bill is an effort to enhance management’s power, with no real substance behind it,” he told FEND. “If you really wanted to improve performance in the federal government, you would need to improve performance metrics—how you measure those—and hold people accountable to them. And this proposal simply does not do that. Instead, the [proposed legislation] glosses all this over, and uniformly extends the probationary period. It comes down to the length of the period may not matter—many people, managers, are just push their evaluation off to the deadline, and then they aren’t evaluating properly.”

Timothy Hagle, an associate prof of American politics at the University of Iowa weighed in with thoughts supporting, in part, both sides.  

“I think that if a new law passed, extending the probationary period, there would be pros and cons to it,” Hagle told FEND. “On the one side, as proponents suggest, that would give government more time, at the management level, to evaluate folks—and if you could watch a new employee for two years, then you could see if they keep up a certain standard.”

“This could be important because sometimes new people come in and do well enough, under the current shorter probationary period, and yet their performance then falls off too late to catch it,” Hagle said. “But, over a two-year period, you could argue that if someone shows high quality work they are more likely to maintain that.”

“On the other hand, with a longer probationary period, management gets a longer time, and federal supervisors not only can identify and remove people who aren’t performing well—but also they get a power that can be abused,” he continued. “For example, in some instances it could be cheaper [for an agency] to just bring in and let go people on a regular basis instead of permanently hiring your own people and developing them, in the normal way intended, through the GS-system.”

CORRECTION:
In our story “Federal unions help press House to reject—for now—cuts in pay, benefits” (FEND 11/6/17), we reported erroneously that the National Treasury Employees Union had issued a statement on the final budget bill (passed in October). The piece also mistakenly drew on and linked to an outdated NTEU statement. We regret the errors.

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