Dear bargaining unit members,

Now that Congress is back in session, things will be changing very quickly on the legislative front. Going into this important month on the legislative calendar, we want to take the opportunity to update you on where things stand with respect to issues that impact you as a federal employee represented by a federal labor union.

For those of you interested in TEAPP, the Agency would like to obtain a 3 year extension to the program. At the same time, POPA is working with management on an alternative in case an extension to TEAPP is not granted. POPA is advocating for the alternative program to allow current TEAPP participants to change their duty stations while also allowing new entries into the program. We will provide you with more information on this as soon as possible.

The following report was prepared by POPA’s Legislative Representative, Richard J. Hirn. We hope you find it informative.

Pam Schwartz, President, Patent Office Professional Association


Legislative Report – 115th Congress, 1st session (2017)

There are three areas of proposed legislation that may have an adverse impact on Federal employees: reduction in retirement benefits; curtailment of due process rights during proposed adverse actions; and restrictions on the ability of Federal employee unions to represent employees.

Federal retirement benefits

The President’s budget proposed draconian cuts to Federal employee retirement benefits that were estimated to save $149 billion over the next several years. The President proposed to:

· Eliminate cost-of-living adjustments (COLAs) for FERS retirees.

· Reduce COLAs that CSRS retirees would otherwise receive by 0.5% a year.

· Increase the amount FERS employees would be required to contribute to retirement by 1% of salary every year for the next six years, for a total of 6%.

· Eliminate the FERS annuity supplement that replaces social security for employees who are eligible to retire before age 62.

· Recalculate FERS retirement benefits based on an average of the employee’s “high 5” rather than “high 3” salary.

The Republican leadership in the House has proposed less drastic, although still significant, cuts. The House Budget Blueprint calls for an unspecified increase in the amount that Federal employees will be required to contribute to retirement, as well as an elimination of the FERS annuity supplement for those who retire before age 62. The Budget Resolution, (“House Concurrent Resolution 71”) which was passed by the House Budget Committee and which is pending a vote in the full House, instructs the Committee on Oversight and Government Reform to draft legislation that will result in $32 billion in savings in Federal employee pay and benefits over the next ten years. (“Reconciliation Instructions”).

Another alternative that has been discussed as a possible way to save $32 billion over the next ten years is to reduce the Thrift Savings Plan G Fund rate of return to the equivalent of a three-month Treasury security. This will reduce the average rate of return from 2.6% (over the past 10 years) to nearly 0%.

Any such changes in retirement laws would later be voted upon as part of a reconciliation bill that would have to be passed by both the House and the Senate – so this is several steps away from fruition. A group of ten Republican House members whose districts include large numbers of Federal employees has written to the Chair of the Committee on Oversight and Government Reform urging him not to make any changes to Federal employee retirement programs, noting that Federal employee salary and benefit cuts since 2010 have already amounted to $182 billion. It is impossible to predict the likelihood that these or other pay and benefit cuts will ultimately be enacted. If they are enacted, it will likely be part of the FY 2018 Budget Reconciliation bill, which will only require 50 votes in the Senate to pass. Senate Majority Leader McConnell has recently indicated that he expects to use the FY 2018 Reconciliation bill as the vehicle to pass a tax reform package. Therefore, if Federal employee pay and/or benefit reductions are also incorporated into the Reconciliation bill, there will be strong political pressure to pass it.


Due Process protections

Congress recently passed, and the President signed the Veterans Administration Accountability Act. This is a bipartisan bill that significantly reduces the due process rights of employees who are suspended or terminated by the Department of Veterans Affairs. It is believed that this bill may eventually serve as a basis to reduce the due process rights of other Federal employees.

Among other things, the VA Accountability Act reduces the amount of time an employee has to respond to a proposed suspension or termination (thereby limiting the ability to collect witness statements, medical excuses or other evidence in defense). It also reduces the time to appeal a final decision to the MSPB from 30 to ten days. The Act further provides that any adverse action will be upheld by the MSPB or arbitrator if supported by “substantial evidence,” which means “more than a mere scintilla” and “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” This is a lesser standard than “preponderance of the evidence,” which is the standard in effect previously. Further, the MSPB (and presumably arbitrators) would be unable to mitigate any penalty.

Rep. Todd Rokita (R-IN) has recently introduced the “Promote Accountability and Government Act” (H.R. 3257) which would make all new Federal employees “at-will” employees who could be fired without notice or any reason. This act would also cap the amount that a Federal employee could be awarded in any discrimination case to $50,000 and would cap any amount that could be awarded to employees for a violation of a collective bargaining agreement to $10,000 in the aggregate per occurrence. The act would also require Federal employee unions to maintain records of all their representational and other activities and would make those records disclosable under FOIA. The bill has been referred to the Committee on Oversight and Government Reform.


Official Time

A number of bills have been proposed to reduce or eliminate the use of official time at the Veterans Administration. Official time is the time federal labor union representatives are permitted to spend away from their regular duties in order to perform representational activities. The most comprehensive bill limiting the amount of official time government-wide that has progressed towards passage is the Official Time Reform Act of 2017 introduced by Rep. Jody Hice (R-GA). This bill will retroactively deny retirement coverage for any period of time, in excess of 365 days, during which a Federal employee spends 80% or more of his or her duty day on official time. Not only would this serve as a disincentive for Federal employees to serve as a union official in the future, it would also serve as an incentive for those union officials who have already spent more than 365 days on official time to retire before the bill’s effective date in order to preserve the retirement service credit for the years they have already spent on official time. Employees would still be required to make retirement contribution for the periods of time on which they are on official time and for which they will not be receiving retirement service credit. There is no mechanism for refund of an employee’s retirement contributions towards retirement for the period of time they have already contributed if the bill goes into effect.

This bill was approved by the House Committee on Oversight and Government Reform during a contentious mark-up. It was expected to be brought to the floor of the House but has not yet been scheduled for a vote.


Beneficial legislation

Senator Brian Schatz (D-HI) and Rep. Gerry Connolly (D-VA) have proposed in the Federal Adjustment of Income Rates (“FAIR”) Act that would provide Federal employees with a 3.2% pay increase in 2018. Passage is highly unlikely.


POPA’s efforts

The Patent Office Professional Association is actively engaged in lobbying on these government-wide issues as a member of two different coalitions: The Federal-Postal Coalition (comprised of most Federal employee and Postal unions, manager associations, as well as the National Association of Retired and Active Federal Employees) and the Federal Workers Alliance (composed of most Federal employee unions). POPA attends the monthly meetings of these groups, participates in occasional Congressional meetings scheduled by the Coalition; signs onto letters to Congress in support of or opposing legislation affecting Federal employees; and uses these groups as an information-sharing source. The President’s nominee for Director of the Office of Personnel Management recently withdrew his name from nomination because of the letter sent by members of the Federal Workers Alliance opposing his nomination.

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