Defense finalizes changes to NSPS hiring, promotion rules

The Defense Department on Friday issued final rules to expand the hiring and promotion flexibilities available to managers under its new personnel system.

The rules, published by Defense and the Office of Personnel Management in the Federal Register, modify the department's procedures for recruiting, hiring and promoting employees under the National Security Personnel System. Defense originally proposed the changes in December 2008.

"In order to meet its critical mission requirements worldwide and respond to a dynamic national security environment, the department needs flexibility to attract, recruit, assign and retain a high quality workforce," the notice stated. "The current federal hiring system does not have the flexibility needed by DoD to meet all of its mission requirements."

The rules enable Defense to exercise direct-hire authority and expand its use of term, temporary and time-limited appointments to help address surges in workload and extended absences due to military or civilian deployments. The temporary spots could be noncompetitively converted to permanent status later, the notice said.

The regulations also revise Defense's recruiting and competitive examining process by allowing the department to limit consideration to job applicants in the local commuting area. To preserve merit principles, Defense would provide public notice for all vacancies and accept applications from all sources. But managers would have the option of looking only at local residents, should a sufficient number apply.

Department managers also have new tools for making promotion decisions, including assessment boards, alternate certification procedures and selection processes that rely on employee performance ratings, according to the final rules. Managers would have to complete a job analysis to identify requisite skills. They also would be required to notify potential candidates, but they would not have to advertise the opening using the standard vacancy announcement procedures.

Some comments on the draft regulations expressed concern about the fairness and equity of the staffing and employment rules, charging that increased flexibilities could result in hiring or placement decisions not based on merit. Many complained about the geographic limits placed on hiring decisions as well as the alternative promotion procedures, noting that such authorities could result in a supervisor's favorite employees or cronies being selected.

"This opens the door for nepotism and for potential discrimination and runs counter to the protections offered employees and applicants through the passage of the Civil Service Reform Act in 1978," said William Dougan, national secretary-treasury for the National Federation of Federal Employees, on Friday. "The resilience, capability and strength exhibited by a diverse and productive workforce are eroded through these hiring practices NSPS allows to be employed."

Terry Rosen, a labor relations specialist for the American Federation of Government Employees, also expressed concern on Friday over a provision that shifts the ability to authorize direct-hire authority from OPM to the Defense secretary. "It's not that we believe OPM should be heavy-handed, but we think OPM has been going the opposite direction over the past eight years in that it is getting out of the business of monitoring and ensuring that things are done fairly and agencies are held accountable," she said. "More and more, OPM is relinquishing its authority."

Rosen said AFGE would try to bargain over the new regulations, but added that Defense likely would argue that they are nonnegotiable. While the fiscal 2008 National Defense Authorization Act restored collective bargaining rights under NSPS to governmentwide labor relations rules, she said, the law also included a "major rule" that requires regulations jointly promulgated by OPM and Defense to be treated as governmentwide rules for the purposes of collective bargaining. The complexity and detail of the regulations also make them difficult to negotiate, she added.

"Defense has done this complete about-face to limit involvement of the unions and limit bargaining," Rosen said. "There's going to be a lot of litigation over this."