BIDEN’S THINLY DISGUISED WAGE THEFT PROGRAM

President Biden deserves gobs of credit for rescuing federal employees and their unions from the intense hate the prior administration had focused on them. But let’s not pretend that all is now peachy for feds or their representatives. One particularly ugly smudge on the Biden image is an organized wage theft program he has done nothing about nor even recognized as such, i.e., 5 CFR 335.103(c).

Section 335.103(c) states, in relevant part, that “competitive procedures . . . apply to all promotions . . . for more than 120 days to higher graded positions . . . [and d]etails for more than 120 days to a higher grade position or to a position with higher promotion potential.”  On the surface, that is a good rule because it theoretically stops managers from promoting cronies and favorites without using competitive procedures.  But this regulatory response is worse than the disease it is designed to cure because it permits agencies to steal money from employees who have legitimately earned it. Here’s how they do it.

Back in 2004 during another White House administration that delighted in tormenting feds and their unions, its OPM appointees interpreted this regulation to impose a “regulatory cap of 120 days” on retroactive pay for noncompetitive temporary promotions and details. (See U.S. Dep’t of VA, Ralph H. Johnson Med. Ctr.,Charleston, S.C., 60 FLRA 46, 47 (2004)) So, if the highest graded employee in a work unit retired, went on workers comp, or was just promoted away, a manager can tap any lower-graded employee in the unit to take over the missing employee’s work without paying that employee the same wage it paid the now gone employee.  And lest you miss this point, THAT CAN GO ON FOREVER. There is no stopgap device in OPM’s rules. Hiding behind the self-proclaimed status of protectors of the merit system, OPM has operated an organized crime wave.

Nothing has come out of Biden’s OPM requiring agencies to pay employees for the work they are doing when they take on higher graded duties.  Unions can negotiate obligations into their contracts that require agencies to pay the employee for up to 120 days, but even that decades-old right was weakened substantially by FLRA Member James Abbott’s anti-union efforts. (You have to wonder whether he is so willingly taking money out of peoples’ pockets just to curry favor with those who control future political appointments–while also portraying himself as a very principled person.) He imposed an interpretation of the law that makes most of those negotiated clauses that operated for decades unenforceable. (SBA and AFGE, Local 3841, 70 FLRA 729 (2018))

There is an easy fix for Biden’s reg, but only if the President wants it fixed.  He could pick up the phone and tell his OPM Director to not only disavow any and all federal wage theft—and especially the 2004 interpretation of the reg, but also to amend the reg.  It need only mention that when the 120-day cap is violated, it is not the employee who should suffer.  The employee should be paid, absent a provable joint conspiracy with a manager to avoid competitive selection, and the manager should be considered for disciplinary action under the prohibited personnel practice provisions.

The threat of discipline along with the likelihood that a union or other employee would file a grievance if the reg was violated are more than enough to protect the so-called merit system.

Finally, one must wonder also about why we have not heard unions knocking down OPM’s doors demanding that this reg and a few others be changed pronto. After all, they are not going to get a statutory change out of this Congress.  So, why not aim at a target that is realistic?