S. 3423 – Reading Mode

Calendar No. 558

117th CONGRESS

2d Session

S. 3423

[Report No. 117–206]

IN THE SENATE OF THE UNITED STATES

December 16, 2021

Ms. Sinema (for herself, Mr. Hagerty, Mr. Lankford, and Mr. Carper) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs

November 17, 2022

Reported by Mr. Peters, with an amendment

Strike out all after the enacting clause and insert the part printed in italic

A BILL

To implement merit-based reforms to the civil service hiring system that replace degree-based hiring with skills- and competency-based hiring.

Short title

This Act may be cited as the Chance to Compete Act of 2021.

Definitions

(a)

Terms defined in section 3308 of title 5, United States Code

In this Act, the terms agency, Director, examining agency, Office, subject matter expert, and technical assessment have the meanings given those terms in subsection (a) of section 3308 of title 5, United States Code, as added by section 3(a).

(b)

Other terms

In this Act, the term competitive service has the meaning given the term in section 2102 of title 5, United States Code.

Defining the term examination for purposes of hiring in the competitive service

(a)

In general

Section 3308 of title 5, United States Code, is amended—

(1)

by striking The Office of Personnel Management and inserting the following:

(a)

Definitions

(1)

Examination defined for purposes of chapter

For purposes of this chapter, the term examination, with respect to the competitive service—

(A)

means an opportunity to directly demonstrate knowledge, skills, abilities, and competencies, through a passing score assessment (unless the examining agency determines that another method, not limited to the outcomes of pass or fail, makes meaningful and objective differentiations in rating candidates); and

(B)

does not include a self-assessment from an automated examination, a résumé review (unless conducted by a subject matter expert in a structured manner), or any other method of determining the experience or level of educational attainment of an individual, alone.

(2)

Other terms

In this section—

(A)

the term agency means an agency described in section 901(b) of title 31;

(B)

the term Director means the Director of the Office;

(C)

the term examining agency means—

(i)

the Office; or

(ii)

an agency to which the Director has delegated examining authority under section 1104(a)(2) of this title;

(D)

the term Office means the Office of Personnel Management;

(E)

the term passing score assessment means an assessment that an individual can pass or fail;

(F)

the term subject matter expert means an employee—

(i)

who is determined by the employee's agency to be an expert in the subject and job field of a position in the competitive service; and

(ii)

whom the employee's agency designates to develop and conduct technical assessments; and

(G)

the term technical assessment means a position-specific assessment developed under subsection (b)(1)(A).

(b)

Technical assessments

(1)

In general

For the purpose of conducting an examination for a position in the competitive service, a subject matter expert who is determined by the subject matter expert's agency to be an expert in the subject and job field of the position, as affirmed and audited by the Chief Human Capital Officer or Human Resources Director (as applicable) of that agency, may—

(A)

develop, in partnership with human resources employees of the examining agency, a position-specific assessment that is relevant to the position; and

(B)

conduct the assessment developed under subparagraph (A) to—

(i)

determine whether an applicant for the position has a passing score to be qualified for the position; or

(ii)

rank applicants for the position as most qualified or qualified for category rating purposes under section 3319.

(2)

Types of assessments

A technical assessment developed under paragraph (1) may include—

(A)

a structured interview;

(B)

a work-related sample;

(C)

a custom or generic behavioral assessment (which, if generic, may be customized as needed); or

(D)

another assessment.

(3)

Sharing and customization of assessments

(A)

Sharing

An examining agency may share a technical assessment developed under paragraph (1) with another examining agency.

(B)

Customization

An examining agency with which a technical assessment is shared under subparagraph (A) may customize the assessment as appropriate.

(C)

Platform for sharing and customization

The Director shall establish and operate a platform on which examining agencies can share and customize technical assessments under this paragraph.

(4)

Adoption of determinations by other agencies

For purposes of sections 3318(b) and 3319(c), an appointing authority, other than the appointing authority requesting a certificate of eligibles, that selects an individual from that certificate in accordance with such section 3318(b) or 3319(c) may adopt the determination described in paragraph (1) of this subsection of a subject matter expert employed by the requesting appointing authority instead of conducting an additional technical assessment of the individual.

(c)

Educational requirements

The Office

; and

(2)

in subsection (c), as so designated, in the second sentence, by striking this section and inserting this subsection.

(b)

Implementation of passing score assessment requirement

Not later than 1 year after the date of enactment of this Act, the Director and the head of any other examining agency shall eliminate the use of any examination for the competitive service that does not satisfy the definition of the term examination in subsection (a) of section 3308 of title 5, United States Code, as added by subsection (a) of this section.

(c)

OPM reporting

(1)

Public dashboard

(A)

In general

The Director shall maintain and periodically update a publicly available dashboard that, with respect to each position in the competitive service for which an examining agency examined applicants during the applicable period, includes—

(i)

the type of assessment used, such as—

(I)

a behavioral off-the-shelf assessment;

(II)

a résumé review conducted by a subject matter expert;

(III)

an interview conducted by a subject matter expert;

(IV)

a technical off-the-shelf assessment; or

(V)

a cognitive ability test;

(ii)

whether or not the agency selected a candidate for the position; and

(iii)

the hiring authority used to fill the position.

(B)

Timing

(i)

Initial data

Not later than 180 days after the date of enactment of this Act, the Director shall update the dashboard described in subparagraph (A) with data for positions in the competitive service for which an examining agency examined applicants during the period beginning on the date of enactment of this Act and ending on the date of submission of the report.

(ii)

Subsequent updates

Not later than October 1 of each fiscal year beginning after the date on which the dashboard is initially updated under clause (i), the Director shall update the dashboard described in subparagraph (A) with data for positions in the competitive service for which an examining agency examined applicants during the preceding fiscal year.

(2)

Annual progress report

Each year, the Director shall make publicly available and submit to Congress an overall progress report that includes summary data of the use of examinations (as defined in subsection (a) of section 3308 of title 5, United States Code, as added by subsection (a) of this section) for the competitive service, including technical assessments, broken down by applicant demographic indicator, including veteran status, race, gender, disability, and any other measure the Director determines appropriate, using the data available as of October 1, 2020, as a baseline.

(d)

GAO report

Not later than 5 years after the date of enactment of this Act, the Comptroller General of the United States shall submit to Congress a report that—

(1)

assesses the implementation of this section and the amendments made by this section;

(2)

assesses the impact and modifications to the hiring process for the competitive service made by this section and the amendments made by this section; and

(3)

makes recommendations for the improvement of the hiring process for the competitive service.

Amendments to Competitive Service Act of 2015

(a)

Platforms for sharing certificates of eligibles

Section 3318(b) of title 5, United States Code, is amended—

(1)

in paragraph (1), by striking 240-day and inserting 1-year;

(2)

by redesignating paragraph (5) as paragraph (6); and

(3)

by inserting after paragraph (4) the following:

(5)

Platform for sharing résumés of individuals on certificates of eligibles

The Director of the Office shall establish and operate a platform on which an appointing authority can share, with other appointing authorities and the Chief Human Capital Officers Council established under section 1303 of the Chief Human Capital Officers Act of 2002 (5 U.S.C. 1401 note; Public Law 107–296), the résumés of individuals who are on a certificate of eligibles requested by the appointing authority.

(b)

Maximizing sharing of applicant information

Section 2 of the Competitive Service Act of 2015 (Public Law 114–137; 130 Stat. 310) is amended—

(1)

by redesignating subsections (c) and (d) as subsections (d) and (e), respectively; and

(2)

by inserting after subsection (b) the following:

(c)

Maximizing sharing of applicant information

(1)

Definitions

In this subsection—

(A)

the terms agency, Director, and Office have the meanings given those terms in section 3308(a) of title 5, United States Code; and

(B)

the term competitive service has the meaning given the term in section 2102 of title 5, United States Code.

(2)

Maximizing sharing

The Director shall maximize the sharing of information among agencies regarding qualified applicants for positions in the competitive service, including by—

(A)

providing for the delegation to other agencies of the authority of the Office to host multi-agency hiring actions to increase the return on investment on high-quality pooled announcements; and

(B)

sharing certificates of eligibles for appointment.

(c)

Amendment of implementing regulations

Not later than 180 days after the date of enactment of this Act, the Director shall promulgate regulations to carry out the amendments made by this section.

Modernizing and reforming the assessment and hiring of Federal job candidates

(a)

In general

Subsection (c) of section 3308 of title 5, United States Code, as so designated by section 3(a), is amended—

(1)

by striking scientific, technical, or professional;

(2)

by inserting legally before performed; and

(3)

by inserting in a jurisdiction in which the duties of the position are to be performed after a prescribed minimum education.

(b)

Implementation

(1)

Regulations and guidance documents

Not later than 1 year after the date of enactment of this Act, the Director shall amend all regulations and guidance documents as necessary to implement the amendments made by subsection (a).

(2)

Hiring practices

Not later than 1 year after the date of enactment of this Act, the Director and the head of any other examining agency shall amend the hiring practices of the Office or the other examining agency, respectively, in accordance with the amendments made by subsection (a).

Talent teams

(a)

Federal agency talent teams

(1)

In general

An agency may establish 1 or more talent teams (referred to in this section as agency talent teams), including at the component level.

(2)

Duties

An agency talent team shall provide hiring support to the agency and other agencies, including by—

(A)

improving examinations (as defined in subsection (a) of section 3308 of title 5, United States Code, as added by section 3(a));

(B)

facilitating writing job announcements for the competitive service;

(C)

sharing high-quality certificates of eligibles; and

(D)

facilitating hiring for the competitive service using examinations (as defined in such subsection (a)) and subject matter experts.

(b)

Office of Personnel Management

The Director may establish a Federal talent team to support agency talent teams in facilitating pooled hiring actions across the Federal Government, providing training, and creating technology platforms to facilitate hiring for the competitive service, including—

(1)

the development of technical assessments; and

(2)

the sharing of certificates of eligibles under sections 3318(b) and 3319(c) of title 5, United States Code.

Short title

This Act may be cited as the Chance to Compete Act of 2022.

Definitions

(a)

Terms defined in section 3304 of title 5, United States Code

In this Act, the terms agency, Director, examining agency, Office, subject matter expert, and technical assessment have the meanings given those terms in subsection (c)(1) of section 3304 of title 5, United States Code, as added by section 3(a).

(b)

Other terms

In this Act, the term competitive service has the meaning given the term in section 2102 of title 5, United States Code.

Defining the term examination for purposes of hiring in the competitive service

(a)

Examinations; technical assessments

(1)

In general

Section 3304 of title 5, United States Code, is amended—

(A)

by redesignating subsections (c) through (f) as subsections (d) through (g), respectively; and

(B)

by inserting after subsection (b) the following:

(c)

Examinations

(1)

Definitions

(A)

Examination defined for purposes of this chapter

For purposes of this chapter, the term examination—

(i)

means an opportunity to directly demonstrate knowledge, skills, abilities, and competencies, through a passing score assessment;

(ii)

includes a résumé review that is—

(I)

conducted by a subject matter expert; and

(II)

based upon indicators that—

(aa)

are derived from a job analysis; and

(bb)

bear a rational relationship to performance in the position for which the examining agency is hiring; and

(iii)

on and after the date that is 2 years after the date of enactment of the Chance to Compete Act of 2022, does not include a self-assessment from an automated examination, a résumé review (except as provided in clause (ii)), or any other method of determining the experience or level of educational attainment of an individual, alone.

(B)

Other terms

In this subsection—

(i)

the term agency means an agency described in section 901(b) of title 31;

(ii)

the term Director means the Director of the Office;

(iii)

the term examining agency means—

(I)

the Office; or

(II)

an agency to which the Director has delegated examining authority under section 1104(a)(2) of this title;

(iv)

the term Office means the Office of Personnel Management;

(v)

the term passing score assessment means an assessment that an individual can pass or fail;

(vi)

the term subject matter expert means an employee or selecting official—

(I)

who possesses understanding of the duties of, and knowledge, skills, and abilities required for, the position for which the employee or selecting official is developing or administering an assessment; and

(II)

whom the delegated examining unit of the agency that employs the employee or selecting official designates to assist in the development and administration of technical assessments under paragraph (2); and

(vii)

the term technical assessment means an assessment developed under paragraph (2)(A)(i) that—

(I)

allows for the demonstration of job-related technical skills, abilities, and knowledge;

(II)

(aa)

is based upon a job analysis;

(bb)

is relevant to the position for which the assessment is developed; and

(cc)

does not discriminate on the basis of a protected status, as established by Director in regulations implementing this subsection; and

(III)

may include—

(aa)

a structured interview;

(bb)

a work-related exercise;

(cc)

a custom or generic procedure used to measure an individual’s employment or career-related qualifications and interests; or

(dd)

another assessment that meets the criteria under subclauses (I) and (II).

(2)

Technical assessments

(A)

In general

(i)

develop, in partnership with human resources employees of the examining agency, a position-specific assessment that is relevant to the position; and

(ii)

administer the assessment developed under clause (i) to—

(I)

determine whether an applicant for the position has a passing score to be qualified for the position; or

(II)

rank applicants for the position for category rating purposes under section 3319.

(B)

Sharing and customization of assessments

(i)

Sharing

An examining agency may share a technical assessment with another examining agency if each agency maintains appropriate control over examination material.

(ii)

Customization

An examining agency with which a technical assessment is shared under clause (i) may customize the assessment as appropriate, provided that the resulting assessment satisfies the requirements under part 300 of title 5, Code of Federal Regulations (or any successor regulation).

(iii)

Platform for sharing and customization

(I)

In general

The Director shall establish and operate a platform on which examining agencies can share and customize technical assessments under this subparagraph.

(II)

Guidance

Not later than 1 year after the date of enactment of the Chance to Compete Act of 2022, the Director shall issue guidance to examining agencies on how to efficiently and effectively share assessments using the platform established under subclause (I).

(C)

Adoption of determinations by other agencies

For purposes of sections 3318(b) and 3319(c), an appointing authority, other than the appointing authority requesting a certificate of eligibles, that selects an individual from that certificate in accordance with such section 3318(b) or 3319(c) may adopt the determination described in subparagraph (A) of this paragraph of a subject matter expert employed by the requesting appointing authority instead of administering an additional technical assessment of the individual.

(2)

Alternative ranking and selection procedures

Section 3319(a) of title 5, United States Code, is amended by adding at the end the following: To be placed in a quality category under the preceding sentence, an applicant shall be required to have passed an examination in accordance with section 3304(b), subject to the exceptions in that section..

(3)

Technical and conforming amendment

Section 3330a(a)(1)(B) of title 5, United States Code, is amended by striking section 3304(f)(1) and inserting section 3304(g)(1).

(b)

Implementation of passing score assessment requirement

Not later than 2 years after the date of enactment of this Act, the Director and the head of any other examining agency shall eliminate the use of any examination for the competitive service that does not satisfy the definition of the term examination in subsection (c)(1)(A) of section 3304 of title 5, United States Code, as added by subsection (a) of this section.

(c)

OPM reporting

(1)

Public dashboard

(A)

In general

(i)

the type of assessment used, such as—

(I)

a behavioral off-the-shelf assessment;

(II)

a résumé review conducted by a subject matter expert;

(III)

an interview conducted by a subject matter expert;

(IV)

a technical off-the-shelf assessment; or

(V)

a cognitive ability test;

(ii)

whether or not the agency selected a candidate for the position; and

(iii)

the hiring authority used to fill the position.

(B)

Timing

(i)

Initial data

(ii)

Subsequent updates

(2)

Annual progress report

(A)

In general

Each year, the Director, in accordance with subparagraphs (B) and (C), shall make publicly available and submit to Congress an overall progress report that includes summary data of the use of examinations (as defined in subsection (c)(1)(A) of section 3304 of title 5, United States Code, as added by subsection (a) of this section) for the competitive service, including technical assessments.

(B)

Categories; baseline data

In carrying out subparagraph (A), the Director shall—

(i)

break the data down by applicant demographic indicator, including veteran status, race, gender, disability, and any other measure the Director determines appropriate; and

(ii)

use the data available as of October 1, 2020, as a baseline.

(C)

Limitations

In carrying out subparagraph (A), the Director may only make publicly available and submit to Congress data relating to examinations for which—

(i)

the related announcement is closed;

(ii)

certificates have been audited; and

(iii)

all hiring processes are completed.

(d)

GAO report

Not later than 5 years after the date of enactment of this Act, the Comptroller General of the United States shall submit to Congress a report that—

(1)

assesses the implementation of this section and the amendments made by this section;

(2)

assesses the impact and modifications to the hiring process for the competitive service made by this section and the amendments made by this section; and

(3)

makes recommendations for the improvement of the hiring process for the competitive service.

Amendments to Competitive Service Act of 2015

(a)

Platforms for sharing certificates of eligibles

Section 3318(b) of title 5, United States Code, is amended—

(1)

in paragraph (1), by striking 240-day and inserting 1-year;

(2)

by redesignating paragraph (5) as paragraph (6); and

(3)

by inserting after paragraph (4) the following:

(5)

Platform for sharing résumés of individuals on certificates of eligibles

(b)

Maximizing sharing of applicant information

Section 2 of the Competitive Service Act of 2015 (Public Law 114–137; 130 Stat. 310) is amended—

(1)

by redesignating subsections (c) and (d) as subsections (d) and (e), respectively; and

(2)

by inserting after subsection (b) the following:

(c)

Maximizing sharing of applicant information

(1)

Definitions

In this subsection—

(A)

the terms agency, Director, and Office have the meanings given those terms in section 3304(c)(1) of title 5, United States Code; and

(B)

the term competitive service has the meaning given the term in section 2102 of title 5, United States Code.

(2)

Maximizing sharing

The Director shall maximize the sharing of information among agencies regarding qualified applicants for positions in the competitive service, including by—

(A)

providing for the delegation to other agencies of the authority of the Office to host multi-agency hiring actions to increase the return on investment on high-quality pooled announcements; and

(B)

sharing certificates of eligibles and accompanying résumés for appointment.

(c)

Amendment of implementing regulations

Not later than 180 days after the date of enactment of this Act, the Director shall promulgate regulations to carry out the amendments made by this section.

Modernizing and reforming the assessment and hiring of Federal job candidates

(a)

In general

Section 3308 of title 5, United States Code, is amended—

(1)

by striking scientific, technical, or professional;

(2)

by inserting legally before performed; and

(3)

by inserting in a jurisdiction in which the duties of the position are to be performed after a prescribed minimum education.

(b)

Implementation

(1)

Regulations and guidance documents

Not later than 1 year after the date of enactment of this Act, the Director shall amend all regulations and guidance documents as necessary to implement the amendments made by subsection (a).

(2)

Hiring practices

Talent teams

(a)

Federal agency talent teams

(1)

In general

An agency may establish 1 or more talent teams (referred to in this section as agency talent teams), including at the component level.

(2)

Duties

An agency talent team shall provide hiring support to the agency and other agencies, including by—

(A)

improving examinations (as defined in subsection (c)(1)(A) of section 3304 of title 5, United States Code, as added by section 3(a));

(B)

facilitating writing job announcements for the competitive service;

(C)

sharing high-quality certificates of eligibles; and

(D)

facilitating hiring for the competitive service using examinations (as defined in such subsection (c)(1)(A)) and subject matter experts.

(b)

Office of Personnel Management

(1)

the development of technical assessments; and

(2)

the sharing of certificates of eligibles and accompanying résumés under sections 3318(b) and 3319(c) of title 5, United States Code.

November 17, 2022

Reported with an amendment