MSPB has refined the criteria for determining when a promotion is effective where the agency announced that the employee would be promoted on one day and after that date decided to postpone the promotion. The new rule should not come up often, but often enough that experienced union leaders should be aware of what it is.

Over 30 years ago Ronald Reagan made his first official act as the new President his withdrawal of job offers that had been made to dozens of applicants for federal jobs–and NTEU made its first official act of the new Reagan administration suing the President for that act. The case (NTEU v. Ronald Reagan) set the precedent over the last 30 years for determining when an employee’s new promotion could not be taken back or away from him/her without adverse action procedures.

In this new MSPB decision an employee was chosen by the promotion selecting official on June 30, 2011, and the employee accepted the job on July 1, 2011. That same day an HR specialist sent the employee an e-mail announcing that the promotion would be effective Sunday, July 3, 2011.

The employee had pre-scheduled annual leave starting July 4 and running through July 22. When he returned to work an agency official informed him that his promotion was being held up pending the outcome of an investigation of his conduct and he was put on administrative leave.  He never had a chance to actually perform the work of the position into which he was promoted.

MSPB has long held that a cancellation of an effected promotion constitutes an appealable reduction in grade. Of course, that begs the question of when a promotion is effective. In cases like this, where the employee alleges that he was promoted and immediately went on annual leave, the effective date of the action precedes the date on which the appellant technically enters onto duty in the higher graded position. In such cases, MSPB found that “the effective date of the action is the point at which the promotion is no longer revocable. We therefore modify the Board’s jurisdictional test as follows: To establish jurisdiction in an appeal from the cancellation of a promotion as a reduction in grade, the appellant must show that: (1) the promotion actually occurred; that is, that it was approved by an authorized appointing official aware that he or she was making the promotion; (2) the appellant took some action denoting acceptance of the promotion; and (3) the promotion was not revoked before it became effective.” Prior to this decision the third criterion was “the promotion was not revoked before the appellant actually performed in the position.” The Board is saying that there are circumstances where the employee need not actually perform in the job before acquiring adverse action rights.

This decision will not only help those who are on leave on (or immediately) after the effective date of a promotion, which is usually the Sunday beginning a pay period, but others. For example, it should help the employee selected for promotion who is nonetheless kept in her current position to promote an efficient transition to a successor, the union leader who is involved in full-time negotiations on official time, and the employee on detail to a different position than his current official one or new one.

The new decision is Levy v. Dept. of Labor.

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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