Proposed Rule2023-28458
Time-Limited Promotions
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 27, 2023
Issuing agencies
Personnel Management Office
Abstract
The Office of Personnel Management (OPM) is issuing a proposed regulation to clarify that bargaining-unit employees, who are detailed or temporarily promoted to higher grade duties of a higher-graded position, should be paid accordingly for the entire time performing these duties of a higher-graded position, when this action is pursuant to a final order by an arbitrator, adjudicative body, or court, under a collective bargaining agreement that provides for this action and the employees were assigned these duties outside of competitive hiring procedures. In addition, the proposed change clarifies that non- bargaining unit employees who are temporarily promoted to higher grade duties of a higher-graded position should be paid accordingly for the entire time performing these duties of a higher-graded position, as found pursuant to a final order by an adjudicative body or court. At present, non-competitive temporary promotions, and non-competitive details to duties of higher-graded positions are limited to no more than 120 days under OPM regulations regardless of the bargaining-unit status of the employee. Competitive procedures apply for any temporary promotion or detail to duties of a higher-graded position that exceeds 120-days, again, regardless of the bargaining-unit status of the employee.
Full Text
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<title>Federal Register, Volume 88 Issue 247 (Wednesday, December 27, 2023)</title>
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[Federal Register Volume 88, Number 247 (Wednesday, December 27, 2023)]
[Proposed Rules]
[Pages 89321-89327]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-28458]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 88, No. 247 / Wednesday, December 27, 2023 /
Proposed Rules
[[Page 89321]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 335
[Docket ID: OPM-2023-0041]
RIN 3206-AO52
Time-Limited Promotions
AGENCY: Office of Personnel Management.
ACTION: Proposed rule.
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SUMMARY: The Office of Personnel Management (OPM) is issuing a proposed
regulation to clarify that bargaining-unit employees, who are detailed
or temporarily promoted to higher grade duties of a higher-graded
position, should be paid accordingly for the entire time performing
these duties of a higher-graded position, when this action is pursuant
to a final order by an arbitrator, adjudicative body, or court, under a
collective bargaining agreement that provides for this action and the
employees were assigned these duties outside of competitive hiring
procedures. In addition, the proposed change clarifies that non-
bargaining unit employees who are temporarily promoted to higher grade
duties of a higher-graded position should be paid accordingly for the
entire time performing these duties of a higher-graded position, as
found pursuant to a final order by an adjudicative body or court. At
present, non-competitive temporary promotions, and non-competitive
details to duties of higher-graded positions are limited to no more
than 120 days under OPM regulations regardless of the bargaining-unit
status of the employee. Competitive procedures apply for any temporary
promotion or detail to duties of a higher-graded position that exceeds
120-days, again, regardless of the bargaining-unit status of the
employee.
DATES: Comments must be received on or before February 26, 2024.
ADDRESSES: You may submit comments, identified by the docket number or
Regulation Identifier Number (RIN) for this proposed rulemaking, via
the Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the
instructions for sending comments.
Instructions: All submissions must include the agency name and
docket number or RIN for this rulemaking. Please arrange and identify
your comments on the regulatory text by subpart and section number; if
your comments relate to the supplementary information, please refer to
the heading and page number. All comments received will be posted
without change, including any personal information provided. Please
ensure your comments are submitted within the specified open comment
period. Before finalizing this rule, OPM will consider comments
received on or before the closing date for comments. OPM may make
changes to the final rule after considering the comments received.
FOR FURTHER INFORMATION CONTACT: Timothy Curry by email at <a href="/cdn-cgi/l/email-protection#9cfdebeedcf3ecf1b2fbf3ea"><span class="__cf_email__" data-cfemail="4a2b3d380a253a27642d253c">[email protected]</span></a>
or by telephone at (202) 606-2930.
SUPPLEMENTARY INFORMATION:
I. Background
On December 29, 1994, OPM issued interim regulations to maintain
requirements under which agencies conduct merit promotion and internal
placement programs in the competitive service.\1\ These requirements
were in the provisionally retained chapter 335 of the former Federal
Personnel Manual (FPM) and related issuances. Adopting the interim rule
prevented a lapse in government-wide requirements when FPM chapter 335
expired on December 31, 1994.\2\ The interim rule was effective on
January 1, 1995. Agencies were authorized by 5 CFR 335.103 to promote
competitive service employees to positions for which the agency had
adopted and administered a merit promotion program. The promotion
program had to conform with the standards and requirements that were in
provisionally retained chapter 335 of the former FPM. This included the
requirement that competitive procedures must be followed for time-
limited promotions for more than 120 days to higher-graded positions.
This requirement still exists today.
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\1\ 59 FR 67121 (Dec. 29, 1994).
\2\ OPM abolished the FPM in December 1993, as recommended by
the National Performance Review. FPM chapter 335 was kept
temporarily through December 31, 1994, to enable OPM to incorporate
promotion and internal placement requirements in the CFR.
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The Federal Labor Relations Authority (FLRA) has found union
proposals requiring the temporary promotion of bargaining unit
employees officially assigned to a higher-graded position, or to the
duties of a higher-graded position, for certain specified time periods
are within the duty to bargain.\3\ The FLRA has further found that,
under Federal personnel law, an employee may be entitled to a temporary
promotion for performing the duties of a higher grade position for an
extended period of time. However, the FLRA has emphasized that ``the
entitlement must be based on a provision of a collective bargaining
agreement or an agency regulation making a temporary promotion
mandatory for details to, or the performance of the duties of, a
higher-grade position after a specified period of time.'' \4\ As a
result, some collective bargaining agreements between Federal agencies
and unions have provisions requiring the temporary promotion of
employees officially assigned to a higher-graded position or to the
duties of a higher-graded position when such assignment is made without
use of competitive procedures. As provided for in 5 U.S.C. 7121,
disagreements on application and interpretation of such provisions are
subject to negotiated grievance procedures that provide for binding
arbitration.
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\3\ See National Federation of Federal Employees v. Department
of the Interior Bureau of Land Management, 29 FLRA 1491 (1987).
\4\ See National Treasury Employees Union v. Department of
Treasury Internal Revenue Service, 29 FLRA 348 (1987).
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Prior to 2004, arbitrators awarded backpay to employees who filed
grievances after being assigned to higher graded duties and were not
temporarily promoted, and those awards were not time limited to 120
days. For example, in Oklahoma City Air Logistics Center, Tinker AFB,
OK and AFGE Local 9116, 42 FLRA 62 (October 1991), the arbitrator
directed the agency to provide a grievant a retroactive temporary
promotion, with backpay, for the entire period of time in which the
grievant performed work of a higher-graded position. The grievant, a
WG-8 employee, filed a grievance claiming he should have been promoted
to the WG-
[[Page 89322]]
9 level. The arbitrator concluded the grievant was not wrongfully
denied a permanent, competitive promotion to WG-9. The arbitrator
found, however, the grievant ``was temporarily assigned the grade-
controlling duties of a WG-9'' employee from February 1987 to February
1990. The arbitrator concluded the agency's failure to promote the
grievant temporarily violated the parties' collective bargaining
agreement and resulted in an unjustified or unwarranted personnel
action. The arbitrator sustained the grievance, in part, and ordered
the agency to make the grievant whole for the loss of WG-9 pay from
March 29, 1987, to February 2, 1990. The decision was challenged to the
FLRA. The FLRA stated, where parties to a collective bargaining
agreement provide for the temporary promotion of employees assigned to
perform the work of higher-graded positions, an arbitrator may order
temporary promotions, with backpay, in accordance with that agreement.
The FLRA modified the arbitration award and sustained the grievance in
part finding the grievant must be made whole for loss of WG-9 pay for a
2-year period beginning March 29, 1987. The FLRA directed the agency to
request OPM to formally authorize the Agency to grant the grievant a
retroactive temporary promotion, with backpay, from the end of the 2-
year period to February 2, 1990.
Another example concerns U.S. Department of the Army, Fort Polk,
LA, and the National Association of Government Employees, Local R5-168,
44 FLRA 121 (1992). In this case, the employee filed a grievance
claiming that, under the parties' collective bargaining agreement, the
grievant was entitled to a temporary promotion for having performed the
duties of a higher-graded position for an extended period of time. The
arbitrator sustained the grievance and awarded the grievant a
retroactive temporary promotion with backpay. The FLRA stated, in order
to award backpay, an arbitrator must find (1) the aggrieved employee
was affected by an unjustified or unwarranted personnel action; (2) the
personnel action directly resulted in the withdrawal or reduction of
the grievant's pay, allowance, or differentials; and (3) but for such
action, the grievant otherwise would not have suffered the withdrawal
or reduction. The FLRA found the arbitrator's award satisfied these
requirements for the Back Pay Act. Specifically, the Authority found
the arbitrator made a properly supported award of backpay under the
Back Pay Act when the arbitrator determined the agency denied the
grievant a temporary promotion to which the grievant was entitled for
having performed the duties of a higher-graded position for an extended
period of time. The award was modified to include the payment of
interest on the award of backpay.
Finally, in Social Security Administration and the American
Federation of Government Employees, Local 220, 57 FLRA 115 (2001), the
arbitrator found the agency violated the parties' collective bargaining
agreement by failing to temporarily promote certain employees. One
employee who performed mentoring duties was temporarily promoted while
the other employees who performed the same duties were not. The
arbitrator found that the agency's failure to temporarily promote the
other employees who performed mentoring duties violated the parties'
collective bargaining agreement. The arbitrator concluded that the
agency's actions constituted an unjustified and unwarranted personnel
action that directly resulted in a reduction of pay within the meaning
of the Back Pay Act. The arbitrator sustained the grievance and ordered
the agency to grant retroactive temporary promotion to the employees
who were not temporarily promoted and were eligible for a temporary
promotion under the parties' collective bargaining agreement. The FLRA
found denying an employee a temporary promotion to which the employee
is entitled under a collective bargaining agreement constitutes an
unjustified or unwarranted personnel action, and so, the arbitrator's
award of backpay in these circumstances was authorized under the Back
Pay Act.
On September 10, 2003, the FLRA, in accordance with 5 U.S.C.
7105(i), requested an advisory opinion from OPM regarding an
interpretation of 5 CFR part 335 and posed the following question:
``Where an agency violates a collective bargaining agreement provision
entitling employees to noncompetitive temporary promotions and an
arbitrator grants a retroactive temporary promotion of more than 120
days to remedy that violation with the retroactive promotion what is
the applicability, if any, of the requirements of 5 CFR
335.103(c)(1)(i) that `competitive procedures' apply to promotions
exceeding 120 days. If the requirements apply, what effect do they have
on the arbitral remedy of a retroactive temporary promotion exceeding
120 days?'' On February 27, 2004, the OPM General Counsel provided a
response to the FLRA. OPM noted: ``Upon analysis of this issue, OPM
concludes that 5 CFR 335.103 applies and that the arbitration award in
this matter is contrary to the regulatory requirement that executive
agencies must apply competitive procedures for the purposes of
implementing temporary promotions in excess of 120 days.''
The case before the FLRA that prompted the request to OPM for an
advisory opinion was United States Department of Veterans Affairs Ralph
H. Johnson Medical Center Charleston, South Carolina, and National
Association of Government Employees, 60 FLRA 46 (2004) (Johnson Medical
Center). In this case, an arbitrator granted a retroactive temporary
promotion greater than 120 days. A GS-7 employee filed a grievance
alleging she had been performing the duties of a computer specialist,
GS-9, for approximately 2 years. The grievant alleged the agency failed
to promote her temporarily to the higher grade in violation of the
parties' collective bargaining agreement that provided for the
noncompetitive temporary promotion of employees detailed to a higher-
graded position for more than 30 consecutive days.
In ordering a remedy of backpay exceeding two years, the arbitrator
rejected the agency's argument that competitive procedures were
required for temporary promotions exceeding 120 days. Upon appeal to
the FLRA, the agency alleged the remedy of a temporary promotion in
excess of 120 days was contrary to 5 CFR 335.103 because competitive
promotion procedures were not used to affect that promotion action.
The FLRA rendered its decision relying upon OPM's February 27,
2004, advisory opinion about 5 CFR 335.103(c)(1)(i). OPM opined the
arbitrator's decision was contrary to a government-wide regulation by
providing the grievant a retroactive temporary promotion exceeding 120
days because there had been no competitive process. Based on this
advisory opinion, the FLRA modified the award and ordered the agency to
grant the grievant a retroactive temporary promotion with backpay for
the difference between GS-7 and GS-9 wage rate, effective August 1999,
for a period of 120 days because there was no evidence that competitive
procedures were applied in the promotion of the grievant. Furthermore,
the FLRA decided there was no showing that a personnel action resulted
in the withdrawal or reduction of the grievant's pay and therefore the
grievant was not entitled to back pay for the
[[Page 89323]]
period exceeding the 120-day limitation.\5\
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\5\ In a concurrence to the Johnson Medical Center decision,
Member Carol Waller Pope noted ``I have concerns that OPM's
interpretation actually encourages agencies to violate, rather than
comply with, Sec. 335.103(c). Specifically, under OPM's
interpretation, an agency that ignores competitive procedures cannot
be required to pay employees for higher-graded duties performed in
excess of 120 days, while an agency that complies with competitive
procedures can be required to pay employees for those duties. This
provides agencies a strong incentive to ignore competitive
procedures when they want to assign employees higher-graded duties
for more than 120 days.''
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Following its decision in 2004, the FLRA has found arbitration
decisions deficient when the arbitrator ordered a temporary promotion
with backpay for the pay differential for higher-graded work performed
by an employee exceeding 120 days despite the lack of competitive
procedures for the promotion. For example, in United States Department
of the Treasury Internal Revenue Service and National Treasury
Employees, 61 FLRA 667 (2006), an arbitrator determined the agency
violated the collective bargaining agreement by ``failing to detail
[the grievant] for performing work'' at a higher grade. The arbitrator
expressly rejected the agency's claim that monetary relief could not
extend beyond 120 days under 5 CFR 335.103(c). In the arbitrator's
view, ``[t]o deny a remedy longer tha[n] 120 days not only would be at
odds with negotiated terms, but, in effect, would reward the agency
with a monetary windfall for its persistent contractual transgression,
despite grievances having been lodged, thereby subverting the deterrent
value of the contract's prohibitory language.'' The agency filed
exceptions with the FLRA. The FLRA noted that ``a provision in a
collective bargaining agreement establishing the requisite mandatory
promotion is enforceable only to the extent consistent with civil
service regulations pertaining to temporary promotions.'' The FLRA also
found controlling OPM's advisory opinion in its 2004 Johnson Medical
Center decision that placed a regulatory cap of 120 days on retroactive
temporary promotions awarded by arbitrators without competition. As
such, the FLRA set aside that portion of the award of backpay for a
period exceeding 120 days.
More recently, in United States Department of the Navy Commander,
Navy Region Mid-Atlantic Naval Weapons Station Earle and International
Association of Firefighters Local F-147, 72 FLRA 533 (2021), an
arbitrator found that the grievants were temporarily assigned the
duties of a higher-graded position. The arbitrator also found the
agency violated the parties' collective bargaining agreement, which
required that employees temporarily assigned to higher-graded positions
for two pay periods or more receive the higher rate of pay for the
position to which they have been assigned. The agency challenged the
amount of the backpay remedy noting it was contrary to 5 CFR
335.103(c)(1)(i). The FLRA once again found that ``an award granting a
temporary promotion is enforceable only to the extent that it is
consistent with civil service regulations pertaining to such
promotions.'' Specifically, relying on OPM's 2004 advisory opinion, the
FLRA concluded ``a retroactive temporary promotion and associated
backpay of more than 120 days cannot be awarded unless the promotion
was filled competitively.'' The FLRA determined ``no evidence has
established that the temporary promotion was competed. Therefore, to
the extent that the backpay remedy exceeds 120 days, it is contrary to
law.''
II. Proposed Amendment
OPM proposes amending 5 CFR part 335, as summarized below, to
clarify that a bargaining unit employee found, pursuant to a final
order by an arbitrator, adjudicative body, or court, to have been
detailed or temporarily promoted to a higher-graded position should be
paid accordingly (i.e., higher compensation) for the entire time the
employee performed the duties of the higher-graded position. This is
limited to situations where an employee meets qualification and time-
in-grade requirements established by OPM regulations, but the agency
made the assignment without use of competitive procedures. For
bargaining unit employees, this may include when a collective
bargaining agreement provided for the temporary promotion of employees
officially assigned to a higher-graded position or to the duties of a
higher-graded position when such assignment is made without use of
competitive procedures and the employee otherwise meets qualification
and time-in-grade requirements. This amendment only applies when a
third party has made a finding the employee is entitled to receive a
retroactive temporary promotion. An adjudicative body could include,
but not be limited to, a third party such as the U.S. Merit Systems
Protection Board (MSPB) or the Equal Employment Opportunity Commission
(EEOC).
Similarly, the proposed amendment clarifies that, when a non-
bargaining unit employee has been temporarily promoted to a higher-
graded position as found by an adjudicative body or court, that
employee should be paid accordingly (i.e., higher compensation) for the
entire time performing these duties of a higher-graded position,
pursuant to a final order by that adjudicative body or court. Similar
to what is discussed earlier for bargaining unit employees, this is
limited to situations where an employee meets qualification and time-
in-grade requirements established by OPM regulations, but the agency
made the assignment without use of competitive procedures. While the
background focused on disputes related to collective bargaining
agreements, OPM recognizes that non-bargaining unit employees may
pursue grievances or complaints related to temporary promotions in
forums outside of procedures found in collective bargaining agreements.
The proposed regulatory change addresses such matters for the sake of
consistency and fairness regardless of the employee's bargaining unit
status. This amendment only applies when a third party has made a
finding the employee is entitled to receive a retroactive temporary
promotion. An adjudicative body could include, but not be limited to, a
third party such as the MSPB or the EEOC.
Part 335--Promotion and Internal Placement
Subpart A--General Provisions
Section 335.103--Agency Promotion Program
In Sec. 335.103, agencies are authorized by OPM to make promotions
under Sec. 335.102 to positions under the competitive service and to
insure systematic means of selection for promotion according to merit.
OPM proposes to amend Sec. 335.103 by adding a new paragraph
(c)(2)(iii) to read, ``Retroactive temporary promotions to higher-
graded positions pursuant to a final order by an arbitrator,
adjudicative body or court.'' This added language will require agencies
to pay an employee who has been found to have been noncompetitively,
temporarily detailed to a higher-graded position at the higher grade
even for a period of time that exceeds 120 days, pursuant to a final
order by an arbitrator, adjudicative body, or court. As previously
noted, this regulatory change would also apply to any employee,
including non-bargaining unit employees, pursuant to a final order by
an adjudicative body or court unrelated to procedures found in a
collective bargaining agreement. For example, an employee may file a
complaint with the
[[Page 89324]]
Equal Employment Opportunity Commission alleging discrimination on
matters related to a temporary promotion exceeding 120 days. Finally,
as previously discussed, this is limited to situations where an
employee meets qualification and time-in-grade requirements established
by OPM regulations, but the agency made the assignment without use of
competitive procedures.
OPM's interpretation of 5 CFR 335.103 continues to be that agencies
covered by this regulation must apply competitive procedures for the
purpose of implementing temporary promotions in excess of 120 days.
This is consistent with the wording of regulatory language that has
existed for decades OPM believes requiring competition for these
opportunities when they exceed 120 days supports merit system
principles at 5 U.S.C. 2301 and provides greater job opportunities to
the workforce.
The merit system principles (MSPs) \6\ are nine basic standards
that govern the management of the executive branch workforce and serve
as the foundation of the Federal civil service. The U.S. Merit Systems
Protection Board (MSPB) has noted the general themes of the MSPs and
prohibited personnel practices \7\ are: (1) Fairness--treating
employees fairly in all aspects of their employment; (2) Protection--
refraining from misuse of authority and protecting employees from harm,
such as reprisal for the exercise of a legally protected right; and (3)
Stewardship--management employees in the short-term and long-term
public interest.\8\ For example, MSP # 1 provides that ``Recruitment
should be from qualified individuals from appropriate sources in an
endeavor to achieve a work force from all segments of society, and
selection and advancement should be determined solely on the basis of
relative ability, knowledge, and skills, after fair and open
competition which assures that all receive equal opportunity.'' \9\ The
MSPB has noted MSP # 1 ``[f]ocuses on attaining a well-qualified and
representative workforce through open recruitment and fair, job-related
assessment of applicants.'' Therefore, OPM believes 5 CFR 335.103
strikes the right balance between when competitive procedures are
necessary and when they are not necessary, depending on the duration of
the time-limited promotion. For situations where agencies have more
immediate, short-term needs of 120 days or less, it is appropriate for
agencies to non-competitively assign higher-graded duties to qualified
employees to meet these needs. For situations where agencies have
longer-term needs exceeding 120 days, use of competitive procedures is
consistent with the purpose of MSP # 1. However, OPM also considers it
unfair for employees to be assigned these higher-graded duties and not
be compensated accordingly for the higher-graded duties when employee
has effectively been detailed to a higher-graded position for more than
120 days.
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\6\ 5 U.S.C. 2301: Merit system principles.
\7\ 5 U.S.C. 2302: Prohibited personnel practices.
\8\ The Merit System Principles: Keys to Managing the Federal
Workforce (<a href="http://mspb.gov">mspb.gov</a>), October 2020, available at <a href="https://www.mspb.gov/studies/studies/The_Merit_System_Principles_Keys_to_Managing_the_Federal_Workforce_1371890.pdf">https://www.mspb.gov/studies/studies/The_Merit_System_Principles_Keys_to_Managing_the_Federal_Workforce_1371890.pdf</a>.
\9\ See 5 U.S.C. 2301(b)(1).
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OPM reminds agencies that they should not assign employees to
perform higher-graded duties for periods exceeding 120 days such that
the employee has been effectively detailed to a higher-grade position
without following applicable competitive procedures. Under this
proposed regulation, agencies are reminded that they may be required to
provide higher compensation as a result of arbitrator, adjudicative or
court decisions. OPM also reminds agencies, subject to the requirements
of 5 CFR part 335, that competitive procedures should always be
followed if the agency anticipates the assignment of higher-graded
duties may exceed 120 days. If the agency incorrectly anticipates the
assignment of higher graded duties will last 120 days or less but later
determines the need exceeds 120 days, the agency must follow
competitive procedures for assignment of such duties beyond 120 days
for any particular employee or assign the higher-graded work to another
qualified employee, up to, but not exceeding 120 days. Finally, OPM
reminds agencies to consider this when negotiating new collective
bargaining agreement provisions regarding temporary promotions.
Collective bargaining agreements must be consistent with requirements
in government-wide regulations on this matter. In fact, newly
negotiated collective bargaining agreements that allow non-competitive
temporary promotion exceeding 120 days must be disapproved in agency
head review for not complying with government-wide regulations.\10\
However, some agreements are silent on the length of the time-limited
promotion and may not be in conflict with government-wide regulations
as written.
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\10\ 5 U.S.C. 7114(c) provides that ``(1) An agreement between
any agency and an exclusive representative shall be subject to
approval by the head of the agency.'' and ``(2) The head of the
agency shall approve the agreement within 30 days from the date the
agreement is executed if the agreement is in accordance with the
provisions of this chapter and any other applicable law, rule, or
regulation (unless the agency has granted an exception to the
provision.''
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It should be noted 5 CFR part 335 does not apply to positions in
the Excepted Service. Therefore, the 2004 OPM advisory opinion and the
various FLRA decisions on this matter are not applicable to the issue
of when competitive procedures must be followed for time-limited
promotions in the Excepted Service. However, agencies with employees in
the Excepted Service are subject to Merit System Principles and should
be mindful of these principles when assigning Excepted Service
employees the duties of a higher-graded position.
III. Regulatory Analysis
A. Statement of Need
This rulemaking has two purposes. First, OPM intends to remind
agencies that competitive procedures must be followed when assigning
duties of a higher-graded position to employees for a period of time
exceeding 120 days. Second, in recognition that there continue to be
situations where competitive procedures are not followed by agencies
subject to 5 CFR part 335, this rulemaking provides the possibility of
remedial relief to employees covered by collective bargaining
agreements requiring temporary promotions to non-bargaining unit
employees when an arbitrator, adjudicative body or court finds the
employee has been detailed or temporarily promoted to a higher-graded
position.
On August 5, 2022, OPM received a petition from the National
Treasury Employees Union (NTEU), which represents Federal workers in 34
agencies and departments,\11\ to amend OPM regulations at 5 CFR 335.103
``to remove the existing 120-day cap on back pay for employees who
perform higher graded work during noncompetitive temporary promotions
and details.'' NTEU noted that OPM's existing regulation, as
interpreted in a 2004 OPM advisory opinion, has led to ``significant
unfairness.'' NTEU stated that prior to that advisory opinion,
arbitrators had awarded back pay to employees who performed higher-
graded duties. ``Arbitrators made employees whole for the time they
spent performing such work, without any 120-day limitation.'' NTEU
noted that the 2004 decision of the FLRA abandoned years of precedent
by limiting the back pay remedy for employees performing higher-graded
duties to 120 days each year. NTEU
[[Page 89325]]
correctly noted that FLRA's decision ``was based entirely on [OPM's]
advisory opinion.''
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\11\ See NTEU, ``Our Agencies,'' <a href="https://www.nteu.org/who-we-are/our-agencies">https://www.nteu.org/who-we-are/our-agencies</a>.
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NTEU notes that ``although OPM's 2004 interpretation of the
regulation was in error, NTEU is not [asking OPM] to revisit its
analysis.'' NTEU stated it is proposing ``instead that the regulation
itself be changed to more clearly establish that employees detailed or
temporarily promoted to a higher grade, or who perform higher-graded
duties, should be paid accordingly, even if the detail, temporary
promotion or performance of such duties exceeds 120 days.''
On November 3, 2022, the National Federation of Federal Employees
(NFFE), which represents approximately 110,000 government workers
across the United States,\12\ provided suggestions to OPM on revisions
to existing OPM regulations, including 5 CFR 335.103(c)(1)(i).
Specifically, NFFE requested revisions to ``eliminate limit on back pay
for temporary promotions to 120 days.''
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\12\ See NFFE, About Us, <a href="https://nffe.org/about/">https://nffe.org/about/</a>.
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OPM's interpretation that competitive procedures must be followed
for temporary promotions exceeding 120 days has not changed.
Notwithstanding OPM's current interpretation of the requirements of 5
CFR 335.103, however, OPM agrees that employees should be compensated
accordingly when an agency has been found to be out of compliance with
requirements of a collective bargaining agreement and understands that
the current text of the regulations could provide greater clarity.
Furthermore, OPM's 2004 advisory opinion should not be cited as a basis
for agencies to disregard, whether intentionally or unintentionally,
government-wide regulations on use of competitive procedures and
collective bargaining agreement requirements regarding temporary
promotions for performing duties of a higher-graded position.
Therefore, OPM is proposing to modify 5 CFR 335.103 to address these
scenarios.
This proposed modification reinforces the President's recognition
that Federal civil servants' rights deserve to be protected. President
Biden has stated that ``[c]areer civil servants are the backbone of the
Federal workforce, providing the expertise and experience necessary for
the critical functioning of the Federal Government. It is the policy of
the United States to protect, empower, and rebuild the Federal
workforce.'' \13\ NTEU notes that it supports merit-based competition
for long-term promotions or details to positions that are properly
classified at a higher grade to ensure that the merit system principles
of fair and open competition are met.
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\13\ See Executive Order 14003, Protecting the Federal Workforce
(January 22, 2021).
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NTEU notes that ``[i]n practice, many of these cases arise where
higher-graded duties are assigned to employees on a different, lower-
graded position description, due to staffing shortages, budget
constraints, retirements, etc. Agency managers, who are often tasked
with delivering the agency's mission without the resources to do so,
simply assign the higher graded work to whomever is available and
convenient.'' NTEU notes that ``these employees are precluded from any
remedial relief beyond 120 days--not because the inequity has ceased to
exist, but because the relevant regulation has been reinterpreted since
2004 to undermine, rather than strengthen, merit system principles.''
OPM believes the proposed modification is a reasonable solution to
address those situations where an agency may assign higher-graded
duties to an employee without using competitive procedures and where a
collective bargaining agreement requires a temporary promotion.
B. Regulatory Alternatives
An alternative to this rulemaking is to not issue a regulation and
to continue the possibility of agencies not using competitive
procedures when assigning an employee the duties of a higher-graded
position over 120 days because of an absence of clarification. As a
result, employees may not have an opportunity to be made whole for time
performing higher-graded duties in excess of 120 days even if the
employee challenges the agency action in a grievance or complaint
process. OPM has determined this is not a viable option. As NTEU noted,
an inequity exists and employees are precluded from any remedial relief
beyond 120 days because the relevant regulation has been reinterpreted
since 2004 to undermine, rather than strengthen, merit system
principles.
Another regulatory alternative is to address this issue through
OPM's oversight function. OPM's statutory responsibility to oversee the
Federal personnel system encompasses assessment of compliance with
merit system principles, and supporting laws, rules, regulations,
Executive orders, and OPM standards, as well as the effectiveness of
personnel policies, programs, and operations.\14\ The legal authority
for OPM oversight is 5 U.S.C. 1104(b)(2) and 5 CFR parts 5 and 10.
Under this authority, OPM can evaluate the effectiveness of agency
personnel policies, programs and operations and agency compliance with
and enforcement of applicable laws, rules, regulations, and OPM
directives. OPM can also direct corrective action where appropriate.
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\14\ OPM website, Compliance, What is our oversight
responsibility?, available at <a href="https://www.opm.gov/policy-data-oversight/oversight-activities/compliance/">https://www.opm.gov/policy-data-oversight/oversight-activities/compliance/</a>.
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While OPM can, through its oversight process, identify situations
where an agency is not complying with the requirement to use
competitive procedures for time-limited promotions that exceed 120
days, OPM's enforcement process may not provide timely relief to
employees who are impacted by an agency's failure to follow OPM
procedures on time-limited promotions. Furthermore, based on OPM's 2004
advisory opinion, although OPM may direct, as part of its oversight
process, an agency to follow competitive procedures for time-limited
promotions exceeding 120 days, this would not provide any monetary
relief for employees covered by collective bargaining agreements that
require time-limited promotions and are identified by OPM as situations
where OPM's regulations were not properly followed.
C. Impact
OPM is issuing this proposed regulation to authorize a retroactive
temporary promotion when a competitive service employee, effectively,
has been detailed or temporarily promoted to higher grade duties of a
higher-graded position if a collective bargaining agreement requires it
and the employee has been assigned these duties outside of competitive
hiring procedures, as found pursuant to a final order by an arbitrator,
adjudicative body, or court. By authorizing a retroactive promotion in
these situations, OPM affirms that an employee should be paid
accordingly for the entire time performing these duties of a higher-
graded position. In addition, a non-bargaining unit competitive service
employee who is temporarily promoted to higher grade duties of a
higher-graded position should be paid accordingly for the entire time
performing these duties of a higher-graded position, as found pursuant
to a final order by an adjudicative body or court.
As discussed earlier, OPM reminds agencies to use competitive
procedures when assigning an employee the duties of a higher-graded
position when the assignment exceeds 120 days. This is
[[Page 89326]]
not a new requirement and simply reinforces what agencies, subject to 5
CFR part 335, should already be doing and should have no impact.
However, in those situations where an agency does not meet this
regulatory requirement, it reinforces the commitment an agency has
already made as part of the collective bargaining process under 5
U.S.C. chapter 71. It also provides all employees, whether bargaining
unit or non-bargaining unit, an opportunity to be made whole if an
agency does not properly follow policies related to temporary
promotions and pursues a grievance or complaint in applicable grievance
and complaint processes which may be available to employees.
D. Costs
This proposed rule will affect the operations of over 80 non-postal
Federal agencies in the Executive Branch--ranging from cabinet-level
departments to small independent agencies--with one or more labor
organizations certified by the FLRA as the exclusive representative of
employees in an appropriate unit pursuant to 5 U.S.C. 7112. We do not
believe this proposed rule should substantially increase the ongoing
administrative costs to agencies (including the administrative costs of
administering the program) as this rulemaking leverages existing
procedures and requires agencies to comply with collective bargaining
agreements that they have made with unions. Furthermore, OPM believes
costs should be negligible as we anticipate agencies will leverage
existing resources to implement the reminders in this rulemaking and
the regulatory requirements. Ultimately, costs are likely to vary from
agency to agency since some agencies have collective bargaining unit
agreements with language regarding the process for detailing bargaining
unit employees to a higher graded position for more than 120 days.
Furthermore, some agencies are currently already closely adhering to
OPM regulations in Sec. 335.103.
With the above in mind, we estimate this rulemaking will require
agencies to review policies on time-limited promotions subject to 5 CFR
part 335; update these policies if needed; and provide reminders and,
if necessary, training to implement this proposed rule and reinforce
existing requirements in 5 CFR part 335. For the purpose of this cost
analysis, the assumed staffing for Federal employees performing the
work required by the regulations in part 335 is one executive; one GS-
15, step 5; a GS-14, step 5; and one GS-13, step 5 in the Washington,
DC, locality area. The 2023 basic rate of pay for an executive at an
agency with a certified SES performance appraisal system is $235,600
annually, or $113.27 per hour. For General Schedule employees in the
Washington, DC, locality area, the 2023 pay table rates are $176,458
annually and $84.55 hourly for GS-15, step 5; $150,016 annually and
$71.88 for GS-14; and $126,949 annually and $60.83 hourly for GS-13,
step 5. We assume that the total dollar value of labor, which includes
wages, benefits, and overhead, is equal to 200 percent of the wage
rate, resulting in assumed hourly labor costs of $226.54 for an
executive; $169.10 for a GS-15, step 5; $143.76 for a GS-14, step 5;
and $121.66 for a GS-13, step 5. In order to comply with the regulatory
changes in this proposed rule and the reminder in this preamble to
follow competitive procedures for time-limited promotions exceeding 120
days, affected agencies will need to review and update (if applicable)
their policies, procedures and develop appropriate training or
communications to appropriate personnel. Agencies are reminded to
review 5 CFR part 335, agency merit promotion plans, and related
guidance to ensure compliance. Agencies are also encouraged to
communicate with managers, supervisors, and agency staff who are
responsible for completing actions related to part 335. We estimate
that this will require an average of 10 hours of work by employees with
an average hourly cost of $165.26. This would result in estimated costs
of about $1,653 per agency, and about $132,212 in total government-
wide. If an agency follows existing requirements to use competitive
procedures for time-limited promotions exceeding 120 days, there should
be no need for employees to file grievances ending in binding
arbitration that could order backpay with interest. To the extent that
grievances are filed and arbitration decisions order backpay, the costs
will vary by agency depending on the number of employees impacted, the
salaries of these employees, and the amount of time performing the
higher-graded duties beyond 120 days. OPM does not have data to make a
determination on potential costs related to arbitration decisions
implementing the proposed regulatory language. OPM requests comments on
the implementation and impacts of this proposed rule.
E. Benefits
This proposed rule has several important benefits. First, it
supports merit system principles by reminding agencies to use
competitive procedures for time-limited promotions exceeding 120 days.
As discussed earlier, OPM believes 5 CFR 335.103 strikes the right
balance between when competitive procedures are necessary and when they
are not necessary, depending on the duration of the time-limited
promotion. OPM believes that fair and open competition is appropriate
for performing duties for a period of time exceeding 120 days.
OPM also agrees that it is unfair for employees to be assigned
these higher-graded duties and not be compensated accordingly when
assignment of these duties exceeds 120 days and a third party orders
the agency to compensate the employee accordingly. Therefore, the
second benefit of this rulemaking is that it facilitates agencies'
provision of monetary relief to employees who perform duties of a
higher-graded position for more than 120 days where the agency has
failed to follow the requirements of 5 CFR part 335. OPM expects this
proposed rule to further incentivize agencies to follow proper
procedures when assigning higher-graded duties and to honor the
commitment agencies made in their collective bargaining agreement when
they agreed to temporarily promote employees. This proposed rule not
only reinforces merit system principles but reinforces the agency's
obligations under the Federal Service Labor-Management Relations
Statute.
IV. Request for Comments
OPM requests comments on the implementation and impacts of this
proposed rule in general. Such information will be useful for better
understanding the effect of these proposed revisions on time-limited
promotions impacted by collective bargaining agreements. The type of
information in which OPM is interested includes, but is not limited to,
the following:
<bullet> Each year, out of the total number of grievances or
administrative complaints filed by bargaining unit employees, what
percentage of those grievances or other types of complaints claim
appropriate compensation was denied after being non-competitively
placed on time-limited promotions exceeding 120 days and despite
collective bargaining agreement requirements?
<bullet> Each year, out of the total number of administrative
grievances or complaints filed by non-bargaining unit employees, what
percentage of those administrative grievances or other types of
complaints claim commensurate compensation was denied after being non-
competitively placed on time-limited promotions exceeding 120 days?
[[Page 89327]]
<bullet> OPM also requests comment on the options available to non-
bargaining unit employees to seek redress after being non-competitively
placed on a time-limited promotion exceeding 120 days without
commensurate pay. Based on comments received, OPM could consider
exercising its authority to confer jurisdiction on an adjudicative body
to evaluate complaints filed by non-bargaining unit employees to the
extent OPM can confer such jurisdiction.
Regulatory Review
Executive Orders 13563, 12866, and 14094 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). A
regulatory impact analysis must be prepared for major rules with
effects of $200 million or more in any one year. This rulemaking does
not reach that threshold; however, OMB has designated the rule as a
``significant regulatory action'' under Executive Order 14094.
Regulatory Flexibility Act
The Director of OPM certifies that this proposed rule will not have
a significant economic impact on a substantial number of small
entities.
Federalism
This proposed rule will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this proposed rule does not have
sufficient federalism implications to warrant preparation of a
Federalism Assessment.
Civil Justice Reform
This proposed rule meets the applicable standard set forth in
Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This proposed rule will not result in the expenditure by state,
local, and tribal governments, in the aggregate, or by the private
sector, of $100 million or more in any year and it will not
significantly or uniquely affect small governments. Therefore, no
actions were deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521)
This regulatory action is not expected to impose any reporting or
recordkeeping requirements under the Paperwork Reduction Act.
List of Subjects in 5 CFR Part 335
Government employees.
Office of Personnel Management.
Kayyonne Marston,
Federal Register Liaison.
Accordingly, for the reasons stated in the preamble, OPM proposes
to amend 5 CFR part 335 as follows:
PART 335--Promotion and Internal Placement
0
1. The authority citation for part 335 continues to read as follows:
Authority: 5 U.S.C. 2301, 2302, 3301, 3302, 3330; E.O. 10577,
E.O. 11478, 3 CFR 1966-1970, Comp., page 803, unless otherwise
noted, E.O. 13087; and E.O. 13152, 3 CFR 19554-58 Comp., p.218; 5
U.S.C. 3304(f), and Pub. L. 106-117, and 5 CFR 2.2 and 7.1.
Subpart A--General Provisions
0
2. Amend Sec. 335.103 by adding new paragraph (c)(2)(iii) to read as
follows:
Sec. 335.103 Agency promotion programs.
* * * * *
(c) * * *
(2) * * *
(iii) A retroactive temporary promotion to a higher-graded position
pursuant to a final order by an arbitrator, adjudicative body, or
court.
* * * * *
[FR Doc. 2023-28458 Filed 12-26-23; 8:45 am]
BILLING CODE 6325-39-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.