DON’T MAKE THIS HGDG GRIEVANCE MISTAKE

One of the more satisfying grievances to win for employees is a claim that they be paid for doing work above their normal salary grade.  Often these are called Higher Graded Duty Grievances (HGDG), and they come with back pay, interest, attorney fees, and more remedies.  But there are a couple of common errors to avoid in drafting a HGDG grievance.  One of them was addressed in an August 31, 2022 FLRA decision. There the union requested a remedy that, based on the employee’s long-time assignment to what it argued was work above his grade level, the employee should receive a permanent promotion going forward. That doomed the grievance from the beginning because…

when you ask that an employee’s position grade be changed permanently you are asking that they be reclassified, and classification issues can neither be grieved nor negotiated over. Why?  Because classification matters are excluded from the statute’s definition of conditions of employment. (5 USC 7103(a)(14)).

HGDG remedy requests must be confined to back pay requests only.  If the violation continues beyond the Date of the grievance, file another grievance.  If the union believes the employee’s higher graded duties have become permanent, it can file an EEO complaint for a permanent upgrade if there is an “equal pay for equal work” statutory violation or another kind of discrimination. The grievance and EEO charge can be filed simultaneously because they are different factual issues and different legal claims.

P.S.  We just heard that within days of our post entitled, “Money for Higher Graded Work,” beseeching unions to ask OPM to withdraw its advisory opinion that denied long-term back pay to those who win HGDG grievances, one union did. Let’s keep our collective fingers crossed that OPM does the right thing and once again permits employees to get the back pay they are entitled to.