The Senate’s Defense Authorization Act Omits Most Workforce Provisions, For Now

The Senate this week began formal consideration of its version of the fiscal 2023 National Defense Authorization Act albeit without many of the federal workforce provisions included in the House version of the legislation. But several opportunities still exist to secure their inclusion in the bill before it becomes law.

On Tuesday, the Senate formally began consideration of the NDAA, an annual must-pass bill that has consequently become a vehicle for broader measures affecting all of government, just before adjourning for a month-long recess that coincides with the final weeks of the midterm election campaign. The latest iteration of the Senate version of the bill, makes some changes compared to the draft released by the Senate Armed Services Committee over the summer, but is missing most of the federal workforce provisions included in the legislation passed by the House in July.

One workforce proposal that was included in the Senate bill is delaying the sunset of the Defense Department’s two-year probationary period for new civilian hires from the end of this year to December 2024. Not included in the House legislation, the delay is apparently due to the fact that reverting back to a one-year probationary period was contingent on a report from the Pentagon that officials failed to submit. Over the summer, the American Federation of Government Employees assailed the plan to retain the longer probationary period for another two years, arguing that it rewards those within the department who wish to retain the policy for their “lassitude.”

But left on the chopping block are House-passed provisions blocking the president from unilaterally reviving Schedule F, increasing the death gratuities and funeral benefits for the families of federal employees who die on the job, providing federal firefighters with a presumption that the development of various chronic illnesses associated with fire suppression were caused by on-the-job exposure to hazardous materials for the purposes of workers’ compensation benefits, and a measure that allows federal first responders to continue to participating in an expedited retirement benefits system if they are forced to take positions elsewhere in government due to a disability developed on the job.

The Senate also failed to include the House-passed provision that would grant Transportation Security Administration employees Title 5 protections, including access to the General Schedule pay system, civil service protections and full collective bargaining rights.

However, most of these plans, with the exception of the TSA workforce legislation, have been proposed as amendments by senators. Those lawmakers now have about a month to build support for the provisions before the Senate returns to Capitol Hill to debate what gets included in the final bill. After that occurs, both congressional chambers will go to conference committee to iron out differences between the two versions of the bill, at which point the House could continue to push for the measures’ inclusion.

In a letter to all 100 senators Wednesday, the American Federation of Government Employees encouraged them to support the workforce provisions included in the House NDAA, and announced the union’s opposition to a pair of amendments filed by Sen. James Lankford, R-Okla., to expand the use of temporary hires and direct hire authority across government.

The first amendment expands term appointments, which are currently generally limited to four years, to six years, as well as allowing agencies to make temporary and term appointments for up to 18 months without public notice or informing the Office of Personnel Management. AFGE argued the measure would encourage agencies to misuse temporary and term hiring to avoid using the competitive hiring system to onboard new permanent employees, “chipping away at long-term job security.”

“This kind of excessive misuse of term appointments shows a failure to plan and effectively treats these employees as ‘at will’ employees,” the union wrote. “It is completely incompatible with any kind of strategic human capital planning that leverages and develops an employee’s skills on a long-term basis and is a shabby way to treat people.”

The second amendment changes the criteria OPM follows when evaluating agency requests for direct hire authority by replacing the phrase “qualified candidates” with “highly qualified candidates.” AFGE argued that the new phrasing would no longer comport with language used to describe candidates in the traditional hiring process, thereby granting agencies an avenue to avoid that process altogether.

“Interposing the category rating concept of ‘highly qualified’ candidates to determine whether there is a shortage of candidates, thus enabling agencies to use direct hire procedures (bypassing normal merit-based assessment and examining, including veterans preference requirements) weakens the application of merit system principles in civil service hiring,” AFGE wrote. “After issuing a vacancy announcement where many existing employees and outside candidates are found to be ‘qualified,’ this amendment would allow an agency to claim that direct hire is necessary because qualified candidates are not adequate, and that they want ‘highly qualified candidates,’ whatever that may mean.”