HC 1993-01 (OOP-93-01), Authorized Use of Temporary Limited Appointments in the Competitive Service

Issuance Date: 3/2/1993

Expiration Date: Retain until obsolete

The Office of Personnel Management (OPM) has issued FPM Letter 316-25, Authorized Use of Temporary Appointments under 5 CFR 316.401 (Attachment A), dated October 23, 1992, following a Governmentwide compliance review that indicated continued inappropriate use of the authority. This authority applies only to temporary limited appointments in the competitive service, and as such, the various excepted service Schedule A and Schedule B appointment utilized throughout the USGS (Attachment B), and term appointments which are covered under separate regulations, are not affected. FPM Letter 316-25 emphatically states that temporary appointments in the competitive service are intended to meet only legitimate nonpermanent staffing needs as defined in FPM Chapter 316 Subchapter 2-2.b. (Attachment C). This means that the subject appointments may only be authorized when the need for the position is temporary. They may not be used to: (1) avoid the costs of employee benefits or because ceiling limitations prevent the firing of permanent employees, (2) to impose an unofficial probationary period unless specifically authorized as in the case of severely disable or mentally restored employees, or (3) circumvent the competitive examining process by appointing an individual on a temporary basis because they are not within reach for permanent appointment or because a particular register is closed.

The FPM Letter now specifically prohibits agencies from refilling a position that, over the preceding 4 years has been filled continuously on a temporary basis. The 4-year limitation on temporary employment in the competitive service was designed to distinguish permanent from temporary employment. However, OPM points out that flexible interpretation of regulation by both management and personnel officials has led to a great deal of misunderstanding of OPM's intent in expanding the temporary appointing authority several years ago. To avoid further misinterpretation, OPM has provided the following clarification:

A. An agency is not allowed to fill a position with a temporary employee for a legitimate reason and then, after 4 years, refill the position with either the same or a different temporary employee. It is irrelevant that there was a break in service between the first block of 4 years and any subsequent refilling of the position on a temporary basis.

B. After a position has been filled continuously on a temporary basis for 4 years, an agency may not create a successor position and fill it with a temporary employee. A successor position is one that replaces and absorbs the original position. Successor position include upgraded jobs, positions transferred from one activity to another, and positions with new position titles or reporting relationships but with no substantive changes in duties. A position involving the same basic duties in the same organizational and geographic location would be considered a successor position unless the agency can show the positions are clearly different.

In that OPM has clearly defined the appropriate and inappropriate uses of the temporary appointing authority for competitive service positions and has instructed agencies to enforce its proper utilization, it is imperative that management and personnel work together to ensure agency compliance with OPM regulations. Effective immediately we will require that justifications for temporary appointments in the competitive service be documented in the remarks section of the automated SF-52 when the position description is submitted to the servicing personnel office for classification action. The justification must specifically describe the temporary need for the position and include a supervisory certification indicating that the temporary position is established in accordance with the requirements stipulated in FPM Letter 316-25 and FPM Chapter 316 Subchapter 2. The following statement in the remarks section of the automated SF-52 is adequate:

Temporary position is for the purpose of (insert purpose) and is established under the provisions of FPM Chapter 316 Subchapter 2-2.b (cite-5 as appropriate - See Attachment C).

In making temporary limited appointments in the competitive service, all applicable OPM, departmental, and bureau procedural requirements and time limitations must be followed. Timely and accessible public notice for potential applicants is particularly important. While all applicants for temporary positions must meet the qualifications requirements for the position including any applicable written test, please note that the ADMINISTRATIVE CAREERS WITH AMERICA test is not required for temporary positions covered under that examination. In concert with this, as explained in FPM Chapter 330, the filling of temporary positions is subject to the employment restriction of the Reemployment Priority List and agencies are encouraged to consider qualified displaced employees when making temporary appointments.

All temporary appointees must be advised at the time of hire, of the conditions of their temporary employment, specifically that the bureau has no permanent need for their service and that the employee may be terminated at any time upon notice from the employing office.

It is imperative that management abide by the new regulations issued by OPM. OPM will be closely monitoring our use of this authority and any willful misuse may jeopardize our OPM delegated authority to make temporary appointments. Survey Manual Chapter 316 will incorporate these new requirements.

Attachments

Attachment A - Contact Office of Personnel to obtain copy of FPM Letter 316-25.

Attachment B - Schedule A-Appointments Frequently Used Within the USGS

213.3102(o) - Positions of a scientific, professional, or analytical nature when filled by bona fide member of the faculty of an accredited college or university who have special qualifications for the positions to which appointed. Employment under this provision is not to exceed 130 working days a year.

213.3102(p) - Positions of a scientific, professional, or analytical natures when filled by bona fide graduate students at accredited college or university provided that the work performed for the agency is to be used by the student as a basis for completing certain academic requirements toward a graduate degree. Appointments under this authority may not exceed 1 year, but may be extended for additional period(s) not to exceed 1 year as long as the condition for appointment continue to be met. The appointment of any individual under this authority will terminate upon the individual's completion of requirements for the graduate degree.

213.3102(q) - Positions at grade GS-9, or equivalent, and below when appointees are to assist scientific, professional, or technical employees. Persons employed under this provisions must be (bona fide high school science or mathematics teachers, or (2) bona fide students at high schools or accredited colleges or universities who are pursuing courses related to the field in which employed. The appointment of any individual under this authority will terminate upon the individual's ceasing to be enrolled in a qualifying educational program or to be employed as a teacher. No one will be employed under this provision in routine clerical positions, routine trades and labor positions (unless such employment clearly relates to a scientific, professional, or technical curriculum) or in excess of 1040 working hours a year. Appointments under this authority may not be used to extend the service limits contained in any other appointing authority.

213.3102(t) - Positions when filled by mentally retarded persons in accordance with the guidance in Federal Personnel Manual Chapter 306. Upon completion of 2 years of satisfactory service under this authority, the employee may qualify for conversion to competitive status under the provisions of Executive Order 12125 and implementing instruction issued by the office.

213.3102(u) - Positions when filled by severely physically handicapped persons who: (1) under a temporary appointment have demonstrated their ability to perform the duties satisfactorily, or (2) have been certified by counselor of State vocational rehabilitation agencies or the Veterans Administration as likely to succeed in the performance of the duties. Upon completion of 2 years of satisfactory service under this authority, the employee may qualify for conversion to competitive status under the provisions of Executive Order 12125 and implementing regulations issued by the office.

213.3102(v) - Between May 13 and September 30 only, temporary Summer Aid positions, the duties of which involve work of a routine nature not regularly covered under the General Schedule requiring no specific knowledge or skills,

when filled by youths, either (1) appointed under economic needs standards prescribed by the Office of Personnel Management, or (2) who are mentally retarded or severely physically handicapped. Youths may not be appointed unless they have reached their 16th birthday. Salaries for these positions are fixed at the highest Federal minimum wage rate established by the Fair Labor Standards Act of 1938, as amended.

213.3102(w) - Part-time or intermittent positions, the duties of which involve routine work up to and including the GS-4 level of difficulty or equivalent under the Federal Wage System, when filled by bona fide students appointed under the Stay-in-School Program. Students may be appointed if they need the earnings in school or if they are mentally retarded or severely physically handicapped, provided that the following conditions are met: (1) Appointees are enrolled in or accepted for enrollment as a resident student in a secondary school (or other appropriate school for mentally retarded students) or an institution of higher learning not above the baccalaureate level, accredited by a recognized accrediting body; (2) Employment does not exceed 20 hours in any calendar week except that students may work fulltime whenever their school is officially closed and during any school vacation period; (3) While employed, appointees continue to maintain an acceptable school standing, although they need not attend school during the summer; (4) Appointees meet the economic criteria prescribed by the Office of Personnel Management, except that this requirement does not apply to mentally retarded or severely physically handicapped students; and (5) Salaries are fixed by the agency head at a level commensurate with the duties assigned and the expected level of performance.

Schedule B Appointments Frequently Used Within the USGS

213.3202(a) - Student positions established in connection with a bachelor's degree cooperative education program which provide for a formally arranged schedule of attendance at an institution of higher learning combined with at least 26 weeks, or 1040 hours, of study-related work in the Federal agency. The periods of work and study together must satisfy requirements for a bachelor's degree and must provide the experience necessary for a career or career-conditional appointment to administrative, professional or technical positions in the Federal career service upon the student's graduation.

213.3202(b) - Student positions established in support of cooperative education programs for graduate students which provide for scheduled periods of attendance at a graduate school combined with at least 16 weeks or 640 hours of study-related work in a Federal agency. The periods of work and study must satisfy requirements for the graduate degree and provide experience necessary for career or career-conditional appointment in the Federal career service upon the student's graduation.

213.3202(c) - Student positions established in connection with associate degree cooperative education programs which provide for formally arranged schedules of attendance at a recognized 2-year educational institution combined with at least 26 weeks or 1040 hours of study-related work in a Federal agency. The periods of work and study together must satisfy the requirements for graduation and must provide the experience necessary for career or career-conditional appointment in selected occupations in the Federal career service upon the student's graduation.

213.3202(f) - Positions under the Federal Junior Fellowship Program, a career-related work-study program covered under the provisions of E.O. 12015.

213.3202.(g) - Student positions established in support of the Cooperative Education Program in which the student is enrolled in an undergraduate certificate or diploma program in an accredited college, technical, trade, vocational, or business school which provides for scheduled periods of classroom study combined with at least 16 weeks or 640 hours of study-related work in a Federal agency. The periods of study and work must satisfy requirements for an undergraduate certificate or diploma and provide experience necessary for career or career-conditional appointment into office and administrative support, technician, assistant, helper and pre-apprentice occupation of the Federal career service upon the student's graduation.

Attachment C - Examples of Appropriate Uses of Temporary Limited Employment in the Competitive Service.

FPM Chapter 316 Subchapter 2-2b.:

(1) temporarily increasing staff to meet a workload peak;

(2) staffing continuing positions when future funding and workload levels are uncertain or when it is anticipated that funding levels will be reduced or that the activity will be reorganized;

(3) filling permanent position on a temporary basis in order to save them for eventual incumbency by permanent employees expected to be displaced from other parts of the organization;

(4) filling vacancies which occur in activities under study for possible contracting out;

(5) hiring temporary employees to perform recurring seasonal work which the agency expects to last less than 6 months in a year.