OPM, NFFE at odds over temporary employee guidance

One word in a bill that’s designed to give some temporary and seasonal federal workers the same job opportunities as permanent employees is giving the Office of Personnel Management and a federal union a few headaches.

The Land Management Workforce Flexibility Act, which Congress passed last August, lets temporary and seasonal employees at land management agencies compete for a permanent job in any land management or other agency under “internal merit promotion procedures.”

But the National Federation of Federal Employees says recent guidance from OPM undermines the legislative intent of the bill.

At issue is the word “internal,” said Mark Davis, a national vice president for NFFE.

According to OPM’s guidance, “internal merit promotion procedures” means a temporary worker can only apply to a merit-based position if the employing agency limits applications only to its own employees. For example, if the Interior Department has a position open and chooses to accept applications outside the agency, temporary employees cannot apply.

But NFFE said the bill wasn’t written that way, when the goal of the legislation is to give temporary workers the same job opportunities as every other federal employee.

“Insofar as wildland firefighters are concerned, the guidance effectively rebuilds the walls that the act tore down,” NFFE National President Bill Dougan wrote in a March 17 letter to President Barack Obama. “For them, it is as if it had never been passed.”

NFFE said it reached out to OPM to discuss its concerns, but OPM disagreed that its policy guidance has a problem.

“We have been stonewalled,” Davis said. “There is no one at OPM willing to engage with us in discussions.”

The bill applies to temporary employees at the Bureau of Land Management, National Park Service, Fish and Wildlife Service, Bureau of Indian Affairs and Bureau of Reclamation. NFFE represents employees at all five agencies covered under the legislation.

Davis estimates the legislation could impact roughly 20,000 temporary and seasonal employees in land management agencies, including about 5,000 temporary workers in the U.S. Forest Service.

The interim guidance Acting OPM Director Beth Cobert released Dec. 29 is meant to help agencies implement the bill until the agency can issue final regulations.

But based on his discussions with OPM so far, Davis said the agency hasn’t given him an indication that it will consider NFFE’s concerns when it writes the final rule on the bill.

“They have their heels dug in,” Davis said of OPM. “Why should they pay attention to it in the final rule? I have no reason to believe that they would.”

Sen. Jon Tester (D-Mont.), who introduced the Senate companion bill, sees issues with OPM’s guidance as well.

“The initial guidance does not seem to be following the congressional intent,” Sen. Jon Tester (D-Mont.) told Cobert during her nomination hearing before the Senate Homeland Security and Governmental Affairs Committee Feb. 4. “We need to get that fixed if we’re going to really fulfill what the legislation meant: to give seasonal employees a fair shake.”

Cobert said OPM will work with Congress and others on the final rule.

“What we wanted to do in responding to this piece of legislation was to try to get some guidance out there quickly so people could take  advantage of the provisions but recognizing that we wanted to go through the full regulatory process, where we get greater input and make sure the permanent regulations that are put in place are appropriate,” she said.

OPM is “in the midst of starting that process,” Cobert told Tester.

But Davis said he’s concerned that as OPM begins the long and arduous process of writing the final rule, temporary employees will continue to miss out on the jobs that were supposed to be accessible to them. He said he’s heard from temporary employees who spent multiple seasons with the U.S. Forest Service and cannot apply for their dream jobs that have recently been posted.

“There’s interest in getting it right, not only in the land management agencies, but if this reform is going to get traction,” Davis said. “We’ve talked to political appointees in the Obama administration who have expressed support for this sort of thing being a government-wide thing as opposed to a parochial thing.”

Temporary employees who work for the Defense Department, for example, could soon receive similar flexibilities.

A bill from Reps. Markwayne Mullin (R-Okla.) and Steve Russell (R-Okla.), the DoD Workforce Flexibility Act, would add the Defense Department under the list of agencies whose temporary employees would be eligible to apply for permanent positions.

The goal of the bill is to make it easier for military installations to hire temporary employees who already have experience into permanent positions, said Liz Payne, a spokeswoman for Mullin. His office had received complaints that the external hiring process took too long — 115 days in some cases.

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