WHEN DO YOU OWN A PROMOTION?

By “own” we mean when must management use full adverse action procedures against you to take a promotion away? MSPB has changed its mind on when in the last year, which makes this important when management says that it made a mistake and reverses your promotion.

The basic rule is an agency must use adverse action rules and prove cause to take your promotion when:

(1) the promotion actually occurred; that is, it was approved by an authorized appointing official aware that he or she was making the promotion;

(2) the employee took some action denoting acceptance of the promotion; and

(3) the promotion was not revoked before it became effective.

In a recent case the agency tried to “cancel” a promotion without using adverse action procedures and sent the employee a bill demanding that he repay the $7,050 he higher graded pay he had received. (See Yong Kim v. Dept of Army, 2013 MSPB 34 (5/5/13)  The agency thought it could do so because immediately upon getting promoted the employee left for military duty and never occupied the position at the point it decided to cancel the action.

The Board held that an agency cannot do so in these circumstances, referring to a case it issued in late 2012, “However, in cases like Levy, in which the appellant alleged that he was promoted and immediately went on annual leave, the Board held that the effective date of the action preceded the date on which the appellant technically entered onto duty in the higher graded position. Id. In such cases, the Board found that the effective date of the action is the point at which the promotion is no longer revocable.” (See Jason Levy v. Department of Labor, 2012 MSPR 123 (11/6/12)

Although the Board left the door open for a quickie demotion or reduction in pay where the employee is still in a probationary status when promoted, these two cases are a strong signal that a promotion cannot be taken away no matter what the reason the employee never served in the higher graded position, e.g., FMLA leave, disability, detail, conduct investigation, etc.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.

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