New OPM proposal would ensure feds detailed to temporary promotions are paid properly

The Office of Personnel Management last week proposed new regulations that it says will ensure that federal workers who are temporarily promoted are appropriately compensated for the duration of their detail.

For two decades, federal employee unions have struggled to make bargaining unit employees whole in cases where their employing agency had detailed those workers to perform the duties of a higher-graded position without increasing their pay. At issue is OPM’s interpretation of the rule requiring that the selection of candidates for temporary promotions of more than 120 days go through competitive procedures.

That interpretation, as laid out in a 2004 advisory opinion, stemmed from multiple cases before the Federal Labor Relations Authority, in which independent arbitrators had found federal agencies had improperly detailed employees to perform the duties of a higher-graded position without compensating them for their increased responsibilities. OPM’s opinion stated that the requirement that long-term temporary promotions or details go through the competitive selection process effectively capped the relief improperly promoted employees could receive at 120 days.

Both the National Treasury Employees Union and the National Federation of Federal Employees petitioned OPM in 2022 to consider changing the regulations to ensure that employees can receive backpay for the entire time they spend on a temporary promotion in these scenarios. And in a Dec. 27 filing in the Federal Register, OPM proposed adding a provision ensuring that retroactive temporary promotions, as ordered by an arbitrator, court or other adjudicative body, are not subject to competitive selection rules.

Since OPM’s 2004 opinion was published, officials have warned that applying the 120-day cap to backpay awards could incentivize agencies flouting both the temporary promotion and competitive selection processes.

“I have concerns that OPM’s interpretation actually encourages agencies to violate, rather than comply with, [the rule],” wrote then-FLRA Member Carol Waller Pope in 2004. “Specifically, under OPM’s interpretation, an agency that ignores competitive procedures cannot be required to pay employees for higher-graded duties performed in excess of 120 days, while an agency that complies with competitive procedures can be required to pay employees for those duties. This provides a strong incentive to ignore competitive procedures when they want to assign employees higher-graded duties for more than 120 days.”

Although the legal history of this issue has dwelled predominantly in the federal labor relations community, OPM’s regulatory proposal also applies the new interpretation to federal workers in non-bargaining unit positions. As is the case in the union cases, an employee who believes they have been performing higher-graded duties without being compensated commensurately would need an adjudicatory body to issue a ruling in their favor, such as the Merit Systems Protection Board, the Equal Employment Opportunity Commission or federal court.

In its filing, OPM argued that the proposed regulation will both help ensure agencies follow competitive selection procedures and protect federal workers from potential wage theft.

“OPM believes that fair and open competition is appropriate for performing duties for a period of time exceeding 120 days,” the agency wrote. “OPM also agrees that it is unfair for employees to be assigned these higher-graded duties and not be compensated accordingly when assignment of these duties exceeds 120 days and a third party orders the agency to compensate the employee accordingly . . . OPM expects this proposed rule to further incentivize agencies to follow proper procedures when assigning higher-graded duties and to honor the commitment agencies made in their collective bargaining agreement when they agreed to temporarily promote employees.”

NTEU National President Doreen Greenwald applauded the measure in a statement.

“For decades, federal agencies have relied on an outdated Office of Personnel Management advisory opinion to limit back pay to employees performing higher graded work,” she said. “This has allowed agencies to assign higher graded work to employees for months or years but only pay the employees the correct pay for up to 120 days . . . NTEU is pleased that OPM considered our 2022 petition urging a change in regulations and is now taking the necessary action to end this inequity.”

OPM is accepting comments on its proposal between now and Feb. 25.