Fedweek

OPM has proposed rules that would narrow the situations in which federal employees are eligible for back pay awards over an “unjustified or unwarranted personnel action,” saying the policy it has followed for nearly 40 years is incorrect.

Under OPM rules dating to 1981, awards are available if an agency is found to have taken, or have failed to take, certain personnel actions and pay actions. However, a Federal Register notice says OPM has now concluded that its policy “appears to contravene OPM’s statutory authority and congressional intent.”

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It says that when the Back Pay Act was written in 1966, Congress intended it to cover only changes in grade, suspensions, removals or separations, reassignments, or changes to full- or part-time work; that a 1976 Supreme Court ruling “rejected the contention that the Back Pay Act applied to other actions affecting employee pay”; and that in passing the 1978 Civil Service Reform Act Congress considered expanding coverage to other actions affected pay but chose not to.

The notice says that despite those developments, the 1981 rules expanded the term ‘‘personnel action’’ to include other actions outside of a prohibited personnel practice that could affect an employee’s pay such as debt collections, improper overtime payments, rejections for cash awards, leave denials, or denials of official time for union representatives.

Under the proposed rules, eligibility would be limited to appointments, a prohibited personnel practice, an action based on performance or conduct, any other removal or suspension, a promotion or demotion, a change in step or grade, a transfer or reassignment, or a change from full-time to part-time work.

The proposed rules also would limit the payments of attorney’s fees under the law to an employee’s “personal representative”; it said that by using that term, Congress intended “to provide for rare circumstances in which an agency owes funds under the Back Pay Act to a deceased employee.” It said that since 1981 courts have applied OPM’s rules to allow fees to union representatives, for example, which it said was a “misinterpretation” of that term. The rules would restrict such payments to the executor or administrator of a deceased employee’s estate.

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