[Congressional Bills 119th Congress]
[From the U.S. Government Publishing Office]
[S. 662 Introduced in Senate (IS)]
<DOC>
119th CONGRESS
1st Session
S. 662
To amend title 5, United States Code, to provide for an alternative
removal for performance or misconduct for Federal employees.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
February 20, 2025
Mr. Sheehy (for himself, Mr. Cramer, and Mrs. Hyde-Smith) introduced
the following bill; which was read twice and referred to the Committee
on Homeland Security and Governmental Affairs
_______________________________________________________________________
A BILL
To amend title 5, United States Code, to provide for an alternative
removal for performance or misconduct for Federal employees.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Modern Employment
Reform, Improvement, and Transformation Act of 2025'' or the ``MERIT
Act of 2025''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Termination of authority for chapter 43 performance-based
actions.
Sec. 3. Adverse actions based on performance or conduct.
Sec. 4. Prohibition on grieving adverse actions and reductions in
force.
Sec. 5. Actions against senior executives for performance or conduct.
Sec. 6. Actions against supervisors for performance or conduct.
Sec. 7. Modification of procedures for furlough.
Sec. 8. Reduction of annuity of employee convicted of a felony for
which an adverse action is or would have
been taken.
Sec. 9. Authority to recoup bonuses or awards paid to employees.
Sec. 10. Extension of probationary period for positions within the
Senior Executive Service.
Sec. 11. Extension of probationary period for employees in the
competitive service.
Sec. 12. Application.
SEC. 2. TERMINATION OF AUTHORITY FOR CHAPTER 43 PERFORMANCE-BASED
ACTIONS.
(a) Repeal.--Section 4303 of title 5, United States Code, is
repealed.
(b) Application.--Subsection (a) shall not apply to any
performance-based action under section 4303 of title 5, United States
Code, commenced before the effective date provided in section 12.
(c) Conforming Amendments.--
(1) Title 5.--Title 5, United States Code, is amended--
(A) in section 2302(e)(1)(A), by striking ``3504,
and 4303(e)'' and inserting ``and 3504'';
(B) in section 4302(c)(6), by striking ``but only
after an opportunity to demonstrate acceptable
performance'';
(C) in section 7512, by striking subparagraph (D)
and redesignating subparagraphs (E) and (F) as
subparagraphs (D) and (E), respectively;
(D) in section 7701(c)(1), by striking ``decision''
and all that follows through ``preponderance of the
evidence'' and inserting ``decision is supported by a
preponderance of the evidence'';
(E) in section 9508(d), by striking ``(1) In
applying'' and all that follows through ``(2)''; and
(F) in section 9902(a)(2), by striking ``sections
4302 and 4303(e)'' and inserting ``section 4302''.
(2) Title 31.--Section 732(d)(3) of title 31, United States
Code, is amended by striking ``consistent with section 4303 of
title 5''.
(d) Clerical Amendment.--The table of sections for chapter 43 of
title 5, United States Code, is amended by striking the item relating
to section 4303.
SEC. 3. ADVERSE ACTIONS BASED ON PERFORMANCE OR CONDUCT.
(a) In General.--Section 7513 of title 5, United States Code, is
amended to read as follows:
``Sec. 7513. Cause and procedure for actions other than furlough
``(a) In General.--
``(1) Standard for certain adverse actions.--Under
regulations prescribed by the Office of Personnel Management,
an agency may take an action described in paragraphs (1)
through (4) of section 7512 against an employee if the agency
determines by a preponderance of the evidence that the
performance or misconduct of the employee warrants such action.
``(2) Factors for initial decision.--When making an initial
decision on an action described in paragraphs (1) through (4)
of section 7512 with respect to an employee, the deciding
employee of the agency shall exclusively apply the following
factors:
``(A) The nature and seriousness of the offense,
and its relation to the employee's duties, position,
and responsibilities, including whether the offense--
``(i) was intentional or technical or
inadvertent;
``(ii) was committed maliciously or for
gain; or
``(iii) was frequently repeated.
``(B) The employee's job level and type of
employment, including any supervisory or fiduciary
role, and the prominence of the position.
``(C) The employee's past disciplinary records.
``(D) The employee's past work record, including
length of service, performance on the job, ability to
get along with fellow workers, and dependability.
``(E) Mitigating circumstances surrounding the
offense, such as--
``(i) unusual job tensions, personality
problems, or mental impairment; or
``(ii) harassment, bad faith, malice, or
provocation on the part of others involved in
the matter.
``(3) Standard of review.--The agency shall--
``(A) review the initial decision described in
paragraph (2), without regard to whether the employee
responds under subsection (e)(2); and
``(B) uphold the initial decision if it is
supported by substantial evidence.
``(b) Pay of Certain Employees Subject to a Reduction in Grade.--
``(1) Applicable rate of pay.--Notwithstanding any other
provision of law, an employee subject to a reduction in grade
shall, beginning on the date of the reduction in grade, receive
the annual rate of pay applicable to the reduced grade.
``(2) No administrative leave, or pay without working or
use of other leave, during appeal.--If an employee subject to a
reduction in grade appeals the reduction in grade under this
section, during the period during which the appeal is ongoing,
the employee--
``(A) may not be placed on administrative leave;
and
``(B) may only receive pay and benefits if the
employee--
``(i) reports for duty; or
``(ii) is approved to use accrued unused
annual, sick, family medical, military, or
court leave.
``(3) Conditions on pay and benefits generally.--During any
period other than a period described in paragraph (2), if an
employee subject to a reduction in grade does not report for
duty or receive approval to use accrued unused leave, the
employee may not receive pay or benefits.
``(c) Procedure.--
``(1) Response period.--The period during which an employee
may respond to a notice of an action described in paragraphs
(1) through (4) of section 7512 in writing and furnish
affidavits and other documentary evidence in support of the
response, as provided under subsection (e)(2), shall be 7
business days.
``(2) Final decision.--
``(A) In general.--The agency shall issue a final
decision with respect to an action described in
paragraphs (1) through (4) of section 7512, with
respect to an employee, not later than 15 business days
after the agency provides notice, including a file
containing all the evidence in support of the proposed
action, to the employee, unless there is reasonable
cause to believe the employee has committed a crime for
which a sentence of imprisonment may be imposed.
``(B) Form and contents.--A final decision
described in subparagraph (A) shall--
``(i) be in writing; and
``(ii) include the specific reasons
therefor.
``(d) PIP.--The agency may carry out an action described in
paragraphs (1) through (4) of section 7512 with respect to an employee
without first placing the employee on a performance improvement plan.
``(e) Employee Rights.--An employee against whom an action
described in paragraphs (1) through (4) of section 7512 is proposed is
entitled to--
``(1) a written notice stating the specific reasons for the
proposed action;
``(2) respond in writing and furnish affidavits and other
documentary evidence in support of the response;
``(3) be represented by an attorney or other
representative; and
``(4) a written decision and the specific reasons therefor
at the earliest practicable date.
``(f) Hearing.--An agency may provide, by regulation, for a hearing
which may be in lieu of or in addition to the opportunity to respond
provided under subsection (e)(2).
``(g) Appeal.--An employee against whom an action described in
paragraphs (1) through (4) of section 7512 is taken is entitled to
appeal to the Merit Systems Protection Board (referred to in this
section as the `Board') under section 7701 of this title not later than
10 business days after the effective date of the action.
``(h) Records.--
``(1) Agency records; provision to board.--The agency shall
maintain, and shall furnish to the Board upon request of the
Board, copies of the notice of proposed action, the response of
the employee when written, a summary thereof when made orally,
the notice of decision and reasons therefor, and any order
effecting an action described in paragraphs (1) through (4) of
section 7512, together with any supporting material.
``(2) Provision to employee.--Upon the request of an
affected employee, the agency shall furnish copies of the
documents described in paragraph (1) to the employee, to the
extent those documents were not provided under subsection
(c).''.
(b) Discipline of Supervisors Based on Retaliation Against
Whistleblowers.--Section 7515(b)(2)(B) of title 5, United States Code,
is amended--
(1) in clause (i), by striking ``not later than 14 days''
and inserting ``not later than 7 business days''; and
(2) in clause (ii), by striking ``14-day period'' and
inserting ``7-business-day period''.
(c) Application.--The amendments made by subsections (a) and (b)
shall not apply to any action under section 7513 or 7515 of title 5,
United States Code, as amended by those subsections, respectively,
commenced before the effective date provided in section 12.
SEC. 4. PROHIBITION ON GRIEVING ADVERSE ACTIONS AND REDUCTIONS IN
FORCE.
Section 7121 of title 5, United States Code, is amended--
(1) in subsection (a)(1), by striking ``the settlement
of'';
(2) in subsection (c)--
(A) by redesignating paragraphs (1) through (5) as
paragraphs (5) through (9), respectively; and
(B) by inserting before paragraph (5), as so
redesignated, the following:
``(1) an adverse action under subchapter II of chapter 75;
``(2) a furlough of more than 30 days by a reduction in
force action under subchapter I of chapter 35;
``(3) a separation by a reduction in force action under
subchapter I of chapter 35;
``(4) a demotion by a reduction in force action under
subchapter I of chapter 35;'';
(3) in subsection (e)--
(A) in paragraph (1)--
(i) by striking ``(1) Matters'' and all
that follows through ``but not both.''; and
(ii) in the second sentence, by striking
``Similar matters'' and inserting ``Matters
similar to those covered under subchapter II of
chapter 75''; and
(B) by striking paragraph (2); and
(4) in subsection (f)--
(A) by striking the first sentence; and
(B) in the second sentence, by striking ``In
matters similar to those covered under sections 4303
and 7512 of this title'' and inserting ``In matters
similar to those covered under subchapter II of chapter
75''.
SEC. 5. ACTIONS AGAINST SENIOR EXECUTIVES FOR PERFORMANCE OR CONDUCT.
(a) Repeal of Pay Retention for Career Appointees Removed From the
Senior Executive Service.--Section 3594(c)(1)(B) of title 5, United
States Code, is amended to read as follows:
``(B)(i) any career appointee placed under subsection (a)
or (b)(2) of this section shall be entitled to receive basic
pay at the highest of--
``(I) the rate of basic pay in effect for the
position in which placed;
``(II) the rate of basic pay in effect at the time
of the placement for the position the career appointee
held in the civil service immediately before being
appointed to the Senior Executive Service; or
``(III) the rate of basic pay in effect for the
career appointee immediately before being placed under
subsection (a) or (b)(2) of this section; and
``(ii) any career appointee placed under subsection (b)(1)
of this section shall be entitled to receive basic pay at the
rate of basic pay in effect for the position in which placed;
and''.
(b) Appraisal System Requirements.--Section 4314(b) of title 5,
United States Code, is amended--
(1) in paragraph (3), by inserting before the semicolon the
following: ``or, as warranted, from the civil service''; and
(2) in paragraph (4), by inserting before the period at the
end the following: ``or, as warranted, from the civil
service''.
(c) Suspension for 14 Days or Less.--Paragraph (1) of section 7501
of title 5, United States Code, is amended to read as follows:
``(1) `employee' means--
``(A) an individual in the competitive service who
is not serving a probationary period or trial period
under an initial appointment or who has completed 1
year of current continuous employment in the same or
similar positions under other than a temporary
appointment limited to 1 year or less; or
``(B) a career appointee in the Senior Executive
Service who--
``(i) has completed the probationary period
prescribed under section 3393(d); or
``(ii) was covered by the provisions of
subchapter II of this chapter immediately
before appointment to the Senior Executive
Service; and''.
(d) Modification of Cause and Procedure for Suspension and
Termination.--Section 7543 of title 5, United States Code, is amended
to read as follows:
``Sec. 7543. Cause and procedure
``(a) Standard for Adverse Actions.--Under regulations prescribed
by the Office of Personnel Management, an agency may take an action
covered by this subchapter against an employee if the agency determines
by a preponderance of the evidence that the performance or misconduct
of the employee warrants such action.
``(b) Factors for Initial Decision.--When making an initial
decision on an action covered by this subchapter, the deciding employee
of the agency shall exclusively apply the following factors:
``(1) The nature and seriousness of the offense, and its
relation to the employee's duties, position, and
responsibilities, including whether the offense--
``(A) was intentional or technical or inadvertent;
``(B) was committed maliciously or for gain; or
``(C) was frequently repeated.
``(2) The employee's job level and type of employment,
including any supervisory or fiduciary role, and the prominence
of the position.
``(c) Standard of Review.--The agency shall--
``(1) review the initial decision described in subsection
(b), without regard to whether the employee responds under
subsection (e)(2); and
``(2) uphold the decision if it is supported by substantial
evidence.
``(d) Procedure.--
``(1) Response period.--The period during which an employee
may respond to a notice of an action covered by this subchapter
in writing and furnish affidavits and other documentary
evidence in support of the response, as provided under
subsection (e)(2), shall be 7 business days.
``(2) Final decision.--
``(A) In general.--The agency shall issue a final
decision with respect to an action covered by this
subchapter not later than 15 business days after the
agency provides notice, including a file containing all
the evidence in support of the proposed action, to the
employee, unless there is reasonable cause to believe
the employee has committed a crime for which a sentence
of imprisonment may be imposed.
``(B) Form and contents.--A final decision
described in subparagraph (A) shall--
``(i) be in writing; and
``(ii) include the specific reasons
therefor.
``(e) Employee Rights.--An employee against whom an action covered
by this subchapter is proposed is entitled to--
``(1) a written notice stating the specific reasons for the
proposed action;
``(2) respond in writing and furnish affidavits and other
documentary evidence in support of the response;
``(3) be repr