UNDERTAKING A HGDG REVERSAL STRATEGY

We are back on the issue of OPM standing in the way of employees receiving back pay for all the time they spend performing higher graded duties. See our recent post entitled, “Money For Higher-Graded Work .“ While we are aware that OPM has now been asked politely to change its advisory opinion barring back pay beyond 120 days a year, we think that unions need to adopt a backup plan as well. Here is our suggestion.

Some union should put the following proposal on the table:

Qualified employees detailed or otherwise assigned to higher graded duties for more than one pay period are entitled to payment at the higher salary level for all their time performing those duties, including time in excess of 120 days a year at the higher grade. Payment will be accomplished by a retroactive temporary promotion or other appropriate method.

Based on current case law it is almost guaranteed that the agency will declare the proposal non-negotiable. The union should then put the issue before FLRA for a negotiability ruling that we hope it will use to change its current view of the back pay issue.  If not, unions will have an opportunity to put the issue before the courts to see if they agree that OPM had the right to defy the clear and unambiguous wording of the Back Pay Act by “advising,” not even regulating a 120-day limit.