OPM finalizes rule to ensure temporarily promoted feds are paid properly

The Office of Personnel Management on Thursday finalized new regulations intended to ensure that federal workers who are temporarily promoted are paid appropriately for the duration of their detail.

Federal HR rules require that agencies go through the competitive hiring and promotion process if they seek to temporarily promote an employee or otherwise detail them to a higher-graded position for more than 120 days.

But for 20 years, federal employee unions said that this rule has been erroneously used to make it difficult for employees who were temporarily detailed to higher-graded jobs but denied the corresponding pay raise. A 2004 advisory opinion from OPM said that when unions seek redress for improperly detailed workers through the Federal Labor Relations Authority or arbitrated grievances could only recoup a bargaining unit employee’s back pay at the higher grade for the first 120 days of their temporary promotion.

In 2022, the National Treasury Employees Union requested that OPM change the regulations to ensure that employees can receive backpay for the entire time they spend on a temporary promotion in these cases, arguing that the current rule effectively incentivizes agencies to flout both temporary promotions and competitive selection rules because it caps potential damages at 120 days’ worth of a higher salary.

And last December, OPM indicated that it agreed, proposing new rules stipulating that if the FLRA, an independent arbitrator or other “adjudicative body” finds that an agency temporarily promoted an employee without providing a corresponding increase in pay, that employee is entitled to back pay for the duration of their detail. It also clarifies that this applies to non-bargaining unit employees as well, albeit not members of the government’s excepted service.

OPM finalized those changes in a final rule published in the Federal Register Thursday, with only minor revisions, particularly elaborating on which avenues non-union federal workers have to contest allegedly improper temporary promotions.

“This regulatory change would also apply to any employee, including non-bargaining unit employees, pursuant to a final order by an adjudicative body or court unrelated to procedures found in a collective bargaining agreement,” the rule states. “For example, an employee may file a complaint with the Equal Employment Opportunity Commission alleging discrimination on matters related to a temporary promotion exceeding 120 days. Finally, as previously discussed, this is limited to situations where an employee meets qualification and time-in-grade requirements established by the OPM regulations, but the agency made the assignment without the use of competitive procedures.”

The new rule will go into effect on Aug. 26. In a memo to agency HR directors, OPM Associate Director for Workforce Policy and Innovation Veronica Hinton sought to reassure agencies that the new rule only applies in certain circumstances, providing an FAQ on the issue.

“An agency may detail an employee in the competitive service to a position in either the competitive or excepted service,” one answer states. “In other words, OPM regulations do not always require time-limited promotions for details to higher-graded duties. There may be other requirements, such as collective bargaining agreements, that obligate the agency to temporarily promote the employee.”

The document also recommends that if an agency knows that it will take at least 120 days to fill a vacant position or otherwise anticipates a temporary detail exceeding the 120-day limit, it should use competitive selection procedures at the outset, which “should provide the agency the necessary time to permanently fill the position.”