Legislation Reintroduced to Make Federal Employees “At-Will” Employees

Legislation has been reintroduced to make it easier to fire federal employees for non-performance.

Legislation was recently reintroduced in both the House and Senate to make it easier to fire federal employees for performance reasons.

The Public Service Reform Act was reintroduced in the House by Congressman Chip Roy (R-TX) (H.R. 3115) and in the Senate (S. 1496) by Senator Rick Scott (R-FL). It was last introduced in 2022.

It is probably not a coincidence that the bill was reintroduced at the start of Public Service Recognition Week 2023.

Under the terms of the bill as currently written, any federal employee in the Executive Branch would be considered “at-will”, may be subject to any adverse personnel action (up to and including being fired) for good cause, bad cause, or no cause at all, and may not challenge or appeal any such adverse action. However, it does include exceptions for prohibited personnel practices such as age or race based discrimination.

In other words, the federal workforce would lose the appeal rights they currently enjoy.

Rationale Behind the Legislation

A press release on the bill states:

The last [Trump] administration faced unprecedented resistance from an entrenched federal bureaucracy, protected by layers and layers of red tape, dedicated to subverting our constitutional order.

Federal employees entrusted with implementing the President’s agenda often put their own politics over serving the American people who elected the President. The Public Service Reform Act promotes accountability by empowering the President to remove these rogue bureaucrats for not doing their job.

Both lawmakers issued statements with their positions on the bill.

Scott said, “It’s clear that the bureaucracy of the federal government is both a waste of taxpayer dollars and inefficient. Red tape and bloated federal agencies constantly slow down progress and hamper American innovation. It’s time to change Washington so it actually work for the American people. The Public Service Reform Act will boost accountability and responsiveness across the federal government by making all executive branch employees at-will.”

Roy added, “It is far past time to reinstate accountability to the people for the federal bureaucracy by requiring that like any private sector employee, federal workers can be removed from their positions. Notwithstanding the majority of federal workers who faithfully serve, especially our law enforcement personnel, we should not allow a wall of red tape to shield those engaged in noncompliance with the law and brazen political partisanship. Federal employees should keep their jobs based on merit, just like the people they serve.”

Are Poorly Performing Federal Employees Dealt With Effectively?

Whether or not one agrees with their proposed solution, Scott and Roy may have a valid point in suggesting that there is a performance problem not being addressed in the federal workforce.

Feedback from the Federal Employee Viewpoint Survey routinely indicates that federal employees believe that agencies do not effectively deal with their poorly performing colleagues.

The latest FEVS survey results (2022) show that 42% of respondents said that poor performers generally “remain in the work unit and continue to underperform.”

FEVS survey data from 2017 and 2021 indicate that an average of 36% of employees favorably responded to the question which states, “steps are taken to deal with a poor performer who cannot or will not improve.” In other words, 64% of respondents reported that their agencies did not take action to deal with an employee who was not successfully performing in a work unit.

Data from OPM show that permanent full-time federal employees are rarely fired for performance reasons. The figures below represent the total number of performance related removals in fiscal years 2020-2022 for permanent, full-time federal employees with 3 years of service or more. In each case, it is less than 1/4 of 1% of the total federal workforce.

FY 2020FY 2021FY 2022
Total Federal Employees1,963,9281,980,6011,986,895

When these figures are considered along with the data from the FEVS results which indicate that not enough is done to address poor performers, that suggests there are other performance issues that go unaddressed.

About the Author

Ian Smith is one of the co-founders of FedSmith.com. He has over 20 years of combined experience in media and government services, having worked at two government contracting firms and an online news and web development company prior to his current role at FedSmith.