Merit board proposes new rules for DHS cases

The Merit Systems Protection Board issued a proposed rule last week outlining how it will handle the adjudication of cases arising from the Homeland Security Department's new personnel system.

The rule, published in the Federal Register Friday, seeks to streamline the process by which department employees can appeal disciplinary actions -- such as suspensions, reductions in pay, removals or furloughs -- with the merit board. The new rule is the result of collaboration among the department, MSPB and the Office of Personnel Management.

Under the rule, DHS employees will have 20 days to appeal a disciplinary action, unlike the 30 days permitted to most other federal employees. The rule also allows the removal of employees for national security reasons without opportunity for appeal.

The department also may establish up to a two-year probationary period for certain jobs, as opposed to the current one-year period for most other federal employees. Employees generally have limited appeal rights during a probationary period, making it easier for an agency to fire them.

Additionally, if there is no dispute over the basic facts of a case, the agency or the adjudicating official may file a motion for summary judgment, allowing the judge to issue a decision without conducting a hearing. In contrast, most other federal employees hold a guaranteed right to a hearing with no option for summary judgment.

Previously, the merit board could modify a DHS employee's punishment if it found the penalty unreasonable. But the board's new rule will allow a mitigation standard to take effect, preventing the board from changing an employee's penalty "unless it is so disproportionate to the basis for the action as to be wholly without justification."

Federal labor unions challenged the mitigation standard as part of a broader court case against aspects of personnel reform at DHS. But the U.S. Court of Appeals for the D.C. Circuit reversed a lower court ruling and upheld the standard, arguing that the mitigation provision's legality was not ripe for judicial review.

The National Treasury Employees Union said Wednesday that the mitigation standard and other changes will make it much more difficult for DHS employees to challenge actions taken against them. "NTEU will monitor the implementation of the new mitigation standard closely and, if warranted, renew its challenge at the appropriate time," President Colleen Kelley said.

Larry Orluskie, a spokesman for DHS, said Wednesday that the changes will have a minimal effect on employees. "For 99.9 percent of DHS employees, this means absolutely nothing because most are never going to have to worry about it," he said. "They're all good workers."

Nonbargaining unit employees at DHS will be covered by the new rule on Nov. 5, Orluskie said. The department will extend the rules to bargaining unit employees as collective bargaining agreements come under renegotiation.

"There has been significant collaboration with the unions," Orluskie said. "We've been working closely with the unions on adverse actions and appeals, and as we put out our own management directive, there will be decisions we've worked out in collaboration with the unions."

Comments on the proposed rule can be submitted through Nov. 5, and can be e-mailed to mspb@mspb.gov, faxed to (202) 653-7130, or mailed to:

Office of Clerk of the Board
U.S. Merit Systems Protection Board
1615 M St. NW
Washington, D.C. 20419