I love standing around, preferably in a bar, listening to a couple of well-respected, high-class union lawyers talk about a problem employees are having.  More than a few times in my career it has caused me to silently ask myself, “Well, why not try this?”  I had one of those moments last week in the mid-tavern discussion.  Thanks to some political operatives at OPM a federal manager can order a GS-7 employee to do GS-9, 11, 12 or even higher-level work and never pay the employee more than the GS-7 salary.  That could go on for months, years or decades and all the current case law permits a fed to do about it is to get paid at the higher rate for no more than 120 days out of every 365.  Even then, only those feds under a collective bargaining agreement that mandated payment would get it. But then I had a thought.

To begin, an OPM regulation requires managers to use a competitive promotion process if they want to detail an employee into a higher-graded job for more than 120 days. 5 CFR 335.103(c)(ii) states:

Details for more than 120 days to a higher-grade position or to a position with higher promotion potential (prior service during the preceding 12 months under noncompetitive details to higher graded positions and noncompetitive time-limited promotions counts toward the 120-day total)

But like any regulation, that raises the question of what happens when that regulation is violated, e.g., where a supervisor just starts shifting the casework of a recently retired GS-9 employee to a GS-7 because there is a hiring freeze and no authority to fill the GS-9 vacancy.  Given that it was the manager who decided to make the GS-7 employee do the GS-9 work for months and months, you might be thinking that the supervisor is the one who would be penalized. But that would be wrong according to the folks in the Bizzaro World of OPM.

Let’s assume the manager did detail the GS-7 employee to do the now-retired GS-9’s work without temporarily promoting her.  Let’s also assume that after she had been in the job for 11 months waiting for the agency to announce a competitive GS-9 vacancy she filed a grievance. She asked to be retroactively paid at the GS-9 level.  Under a good collective bargaining agreement, she would be entitled to four months or 120 days of retroactive pay, but she would have to forfeit any claim to the remaining 7 months she did the higher-graded work because OPM says so.

In other words, even though the manager assigned her the higher-graded work without running a competitive action and even though the agency got its GS-9 level cases completed without breaking its hiring freeze, and even though the members of the public behind those GS-9 cases got their claims addressed, it is the employee who must pay the penalty. To add insult to injury, by forfeiting the right to the higher-graded pay after 120 days the employee gives the manager immunity from prosecution. Had the OPM not taken steps to stop the employee’s higher pay at 120 days, agencies would have had to pay the employee and that could have meant the manager who assigned the higher-graded work committed a prohibited personnel practice, making him or her liable for discipline and a fine.

Given that nothing in the OPM regulation prohibits the employee from receiving back pay when the reg is violated, you might be asking why no back pay.  The answer is that way back in 2004 during one of those political administrations that was anti-union, anti-employee and anti-common sense, FLRA, also plagued by anti-employee, etc. sentiment at the time, asked OPM what the regulation meant. OPM replied in an advisory opinion that, although not specified, the reg prohibited an employee from receiving back pay beyond 120 days no matter how much higher-graded work a supervisor heaped on her.  See Veteran Affairs, SC, and NAGE, 60 FLRA 46 (2004).  Consequently, today FLRA enforces that advisory opinion by cutting off back pay at 120 days-and it has been that way for almost two decades.

But here is my thought. Even if the OPM interpretation was a regulation—WHICH IT IS NOT, like any regulation it cannot conflict with statutory law. When it comes to back pay questions, there is a statute that spells out the employee’s entitlement to back pay whenever an employee is affected by an “unjust and unwarranted personnel action,” i.e., The Back Pay Act at 5 USC 5596. It plainly states the employee is “entitled…to receive for the period for which the personnel action was in effect…” back pay.  FLRA made it unquestionably clear in a case about a decade ago that the word “entitled” barred an arbitrator from giving an employee make-up overtime rather than back pay for overtime unjustly denied her. Failure to do so violates law, it said. Nor does the statute give OPM or agencies the discretion to impose regulations or policies limiting that statutory entitlement.

Upon further reflection and digging deeply into our institutional knowledge, we remembered that the General Accounting Office’s (GAO) Comptroller General used to decide questions of what was allowed under federal compensation statutes. Back in 1983 it issued a decision titled, “B-210917, AUG 10, 1983.” It involved a federal employee’s  claim to be retroactively paid at a higher rate because he had been detailed to a higher-graded position for over 11 months. The Comp. Gen. ordered the agency to pay the employee for the entire period without any limitation for the imagined 120-day limit that OPM conjured up. Surely, the U.S. Comptroller General’s opinion about the legality of the payment after 120 days should carry considerable weight in assessing whether the OPM had any rational basis for its advisory opinion.

Consequently, we are asking ourselves why some union has not raised this conflict between the statute and OPM’s opinion. For example, why not write OPM to ask it to not only withdraw that 2004 advisory opinion, but to disavow it?  We will leave it to the lawyers to decide whether OPM can be taken to court if it refuses.

Or, why not file a grievance on behalf of some employee serving more than 120 days in a higher graded position, ask for back pay beyond the 120-day cap, and ask FLRA to reconsider the 2004 decision? If you are worried the FLRA the case might be decided by a union-hostile FLRA, it also seems to us that it would be a ULP to enforce this 120 back pay limit.  5 USC 7116(a)(8) makes it an agency ULP to “fail or refuse to comply with any provisions of this chapter” and the statutory chapter is filled with references to an agency’s obligation to administer labor relations in compliance with law. If an agency refuses to pay an employee at the higher grade after 120 days, is it not in violation of the Back Pay Act, irrespective of what OPM thought back in 2004? Filing a ULP grievance would enable a union to get the issue into court if FLRA and OPM ignored the conflict.

On top of that there are the public policy considerations.  If OPM can block back pay after 120 days of higher-graded work, it would effectively gut an employee’s right to a full remedy under the Equal Pay or Civil Rights Acts should an employee be able to prove illegal discrimination was behind the salary decision.  In fact, it smacks of a degree of involuntary servitude to officially hire an employee for one position and force her to work in another.  I also sense whiffs of criminal falsification of federal documents given that if a manager issues a SF-50 saying the employee is a GS-7 but actually employs her as a GS-9 that is a false statement.

Of course, all the above are just my idle thoughts from a bar stool.  Who knows if they will hold up?  But if no one ever tries we will never know. As the old Irish anti-vaxer GBS once said, “’Some men see things as they are and ask why, others dream things that never were and ask why not.”


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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