On November 7, 2008, the Office of Personnel Management (OPM) published a final rule eliminating the 52-week time-in-grade restriction for promotions in the competitive service. The rule will become effective March 9, 2009.
The restrictions were formally found in 5 CFR Part 300, subpart F and applied to federal employees in competitive service at grade 5 and above. To qualify for a promotion to a higher grade, employees were required to have “service of at least 52 weeks at their current grade.” This was known as the “time in grade” requirement.
Many commenters on the proposed rule change argued that abolishing the time-in-grade requirement would lead to abuse of a manager’s promotion authority, primarily because it would allow managers to promote their favorite employees. These commenters believe that the requirement ensures fairness and equity in promotions. OPM disagreed, noting that the time-in-grade requirement is only one of the requirements for eligibility for promotion. Managers must still select only from those individuals who have at least one year of specialized experience equivalent in difficulty to the next lower grade level or (in some cases) the equivalent education. Moreover, individuals must meet occupational qualification standard requirements and any additional job-related qualification requirements established for the position. OPM noted that federal managers are presumed to act in good faith in making employment decisions. OPM also noted that there are safeguards in place to protect the merit system, including prohibited personnel practices, which include a promotion as a personnel action.
Many commentators were also concerned that eliminating the time-in-grade requirement would have a negative impact on minorities and veterans. Again OPM disagreed, noting that in making selections for promotions, managers and human resources staff continue to be bound by applicable civil service laws and the laws pertaining to equal employment opportunity.
Given the often ineffective prosecution of prohibited personnel practices by the Office of Special Counsel, and the difficult burden of proof in promotion/selection cases at the EEOC, Passman & Kaplan, PC disagrees with OPM’s conclusions that there are adequate protections for federal employees who do not receive fair and objective promotion and/or selection consideration.
You can view the regulation at http://edocket.access.gpo.gov/2008/E8-26559.htm .
* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.
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