Can management refuse to even consider employee applicants who meet the minimum qualifications for a promotion vacancy?  For example, could it refuse to consider, rate and rank qualified employees because they were bald or vegetarians? How about if they were carpoolers, graduates of public universities, or even Yankee fans?  Of course not.  But, how about if they work or live outside the commuting area of the vacancy?  A lot of managers think they can exclude otherwise qualified agency applicants from any promotion consideration based on where the employees live or work or even when they apply.  We don’t, and here’s why.Back in the days before the Internet and e-mail, promotion opportunities were publicized by posting paper announcements on bulletin boards.  That gave agencies the ability to largely control who would apply for a job.  For example, if an agency had a job in Chicago, but only posted vacancy announcements in a single building in Chicago, it was highly unlikely people from all over the country—or even the city–would apply.  That not only reduced the amount of work it took to rate and rank all qualified candidates, but it also was a not-so-subtle way to limit the competition to just local employees or even to a particular local employee. (The reverse was just as true. If management wanted to reduce the odds of having to select a local employee it simply posted the announcement in a wider area which generally increased the number of applicants and raised the level of competition.)

Managers were free to post jobs where they wanted with one exception.  The Federal Personnel Manual (FPM), created something called the Area of Consideration which is defined as, “…the area in which the agency makes an intensive search for eligible candidates in a specific promotion action.”  Obviously, the rule was about imposing a minimum are in which to announce the job to ensure some level of competition.  It had nothing to do with where applicants could come from if they learned of the vacancy.

But then along came the Internet and management’s ability to control its rating and ranking workload as well as rig the competition went the way of “White Out” and hallway bulletin boards.  Suddenly, jobs were posted on the Internet alerting thousands of potential applicants worldwide rather than just a dozen or so local ones.  Selecting officials lost their ability to protect their favorite applicant(s) from stiff competition, which appears to have triggered a frantic search by some for an alternate way to block out unwanted applicants.

It did not take them long because around the same time the Clinton Administration abolished the FPM, leaving only the CFR.  While it used the Area of Consideration term it did not define the concept. Managers suffering Internet shock leapt into that void and turned the concept on its head by alleging that those three words gave them the ability to prohibit agency employees from applying if they failed to meet some eligibility criterion they chose.  No one ever officially wrote this definitional shift into regulations.  It just kind of spread by word of mouth until today some agencies, pointing to their alleged authority under the CFR Area of Consideration concept, prohibit their own employees from applying for promotion if they work outside the commuting area of the vacancy.  Suddenly, managers once again could limit the rating and ranking work they have to do and retake control over the breadth of the competition.

But, just because they have done it, or because the Area of Consideration concept is undefined by regulation, or even because commuting area is less offensive a criterion than being a Yankee fan, does not make it right. In fact, a very good argument can be made that these newly-created, extra obstacles violate the oft-stated obligation that anything and everything about the merit promotion process be job-related. For example,–

  • 5 CFR 7 mandates that appointing officials exercise their discretion in all personnel actions “solely on the basis of merit and fitness.”
  • 5 CFR 300.101 applies to the employment practices that affect the recruitment, measurement, ranking, and selection of individuals for competitive promotion, including the development and use of examinations, qualification standards, tests, and other measurement instruments.
  • 5 CFR 300.103 requires that every employment practice be based on a job analysis that shows there is “a rational relationship between performance in the position to be filled…and the employment practice used.” The demonstration of rational relationship must include a showing that the employment practice was professionally developed.
  • 5 CFR 335.103(b)(1) demands that each agency establish procedures for promoting employees which are based on merit …Actions under a promotion plan—whether identification, qualification, evaluation, or selection of candidates and shall be based solely on job-related criteria.

Whether applying the standard of merit, fitness, job-relatedness or rational relationship to performance success, we fail to see how geography is a proper criterion under regulation.

And then there are the statutes that suggest the same conclusion, such as,

  • 5 USC 2301(b) (1) states, “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.
  •  5 USC 2302(b) (4) demands those managers not, “(4) deceive or willfully obstruct any person with respect to such person’s right to compete for employment; … (6) grant any preference or advantage not authorized by law, rule, or regulation… [or] (10) discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others.”

The flaws of manipulating where vacancies are announced should not come as a surprise.  There is a long line of civil rights case law recognizing that limiting who can apply for jobs by restricting who hears about the vacancy or who already works near the vacancy are “badges of illegal discrimination.” (Brown, 457 F.2d 1377(1972))

While we can sympathize with the workload open competition could create, open competition is a foundational principle of the federal merit system.  If managers wish to limit the burden, there are legitimate ways to do it that do not segregate their own employees with what amounts to posting an “Out-of-Towners Need Not Apply” policy. For example, managers could 1- automate the rating and ranking process, 2- create job-related selective placement factors or other proper minimum qualifications that weed out all but the best candidates before the rating and ranking,  3- fill vacancies by reassignment which does not require rating and ranking , 4- move promotion opportunities into all offices, etc.. If the workforce is unionized, these options would have to be negotiated with the union rather than unilaterally implemented.

If this is going on in your workplace, we hope you have a union.  OPM no longer polices nor even monitors merit system compliance and the Office of the Special Counsel is grossly understaffed.  Unions, on the other hand, can attack the practice through individual or institutionalized grievance-arbitration procedures.

P.S.  As we finalized this comment, we noticed that some agencies are now limiting those they will rate and rank to the first 50 applicants who apply.  That seems just as wrong as the commuting area rule; it has nothing to do with merit and everything to do with how quickly one can crank out an application.

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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