| Comment Number: | EM-019835 |
| Received: | 3/14/2005 8:09:27 PM |
| Subject: | Notice of Proposed Rulemaking, Request for Comment |
| Title: | National Security Personnel System |
| CFR Citation: | 5 CFR Chapter XCIX and Part 9901 |
| No Attachments |
Comments:
March 14, 2005 DoD NSPS Comments , DoD NSPS Comments: I write to express my concerns about changes to work rules in the Department of Defense (DoD). The proposed regulations, known as the National Security Personnel System (NSPS), were printed in the Federal Register on February 14, 2005. This message will be sent to both DoD and my representatives in Congress. I have worked for DoD for years. I am angry that these proposals seem to treat the employees who help defend our country as the enemy. Most DoD employees work hard and are committed. I believe that mistreating the employees will hurt the agency?s mission. I am very upset by NSPS. This system will change the way workers are paid, evaluated, promoted, fired, scheduled, and treated. These rules would create a system in which federal managers are influenced by favoritism rather than serving the civil concerns of the American people. Annual Pay Raises Under the General Schedule and FWS, employee pay was clear. It was funded by Congress and could not be taken away. However, NSPS will take away this certainty. Salaries and bonuses are funded by DoD. In the past ? as recently as just last year ? DoD did not fund its awards program. Given the agency?s miserable record on this issue, how can employees feel confident that our salaries and bonuses will be funded in the future? ?Friend of the Supervisor? Pay System With the new patronage pay system, which DoD calls ?pay for performance,? the amount of a worker's salary will depend almost completely on the personal judgment of his or her manager. This system will force workers to compete with one another for pay raises, which will destroy teamwork, increase conflict among employees, and reward short-term outcomes. There is no guarantee that even the best workers will receive a pay raise or that the pay offered will be fair or competitive. This system will create a situation in which workers are in conflict with one another and afraid to speak out about harassment, violations of the law, and workplace safety problems. Furthermore, there will be no impartial appeal system to assure that everyone is treated fairly. Schedules and Overtime NSPS will allow managers to schedule employees to work without sufficient advance notice of schedule changes. This will make it extremely difficult for working parents to care for their children and family. It will also mean that abusive managers could harass employees with bad schedules or short notice. Overtime rotations can be canceled, which means that employees may not be able to plan adequately for childcare and other important responsibilities. Civilian Deployment Federal employees could be assigned anywhere in the world, even into a war zone, with little or no notice. I am proud to serve my country but I am also responsible for caring for my family and my personal obligations at home. We signed up for a civilian job. We did not enlist in the military. Today?s volunteer system works well. America is at war. We are fighting for democracy abroad. But the regulations are an attack on workers? basic rights. Furthermore, NSPS will divert the attention of defense workers from the soldiers? welfare to protecting themselves from abuse on the job. I urge you to force DoD to rethink this proposal. We need work rules that preserve fairness, serve the American people, and respect the rights of Defense Department workers. The Case for Action ? this is long on rhetoric and short on facts. At this time of war on terrorism and budget shortages, is this a good time to spend the large amount of money to implement a new system and cause all of the confusion and drop in morale of a new system. Most civilians realize that their current standards include the phrase ?other duties as assigned?, so they are not bound to only a strict list of responsibilities. If management wants the ability to deploy civilians, all they need to do is make the position ?emergency essential?. This way when a person applies for the position, they would know upfront they could be deployed. Finally, the civilian workforce has volunteered to go with the troops, to support them in all situations. Additionally, the main problem with the current system is managers not doing their jobs. The new rules won?t solve that problem; only make it easier to cover-up their mistakes. The current system allows for rewarding good performers and punishing poor performers. But the current system allows for outside oversight of management actions. Currently supervisors can deny within grade increases for poor performers. Also, if you check the employee morale at the demonstration sites, you will find many issues with how things are done. As far as training, management has already limited employee access to the Federal Register for reviewing the complete document. The Federal Register is missing large volumes of detail on the new system. Nothing in the old regulations caused or allowed 9/11 and nothing in the new rules would have prevented it. Authority to Establish a New HR System ? the law authorizing the new system also placed certain restrictions, which DOD seems to be disregarding. The law called out some specific things that could not be waived, modified or otherwise affected, to include section 2301 and 2302. It required the performance management system to incorporate merit principles, a fair, credible, and transparent employee appraisal system. Effective safeguards to ensure that the management of the system is fair and equitable and based upon employee performance. Unfortunately, most of the details are missing and all outside review is gone. Employees are to be afforded the protections of due process Legal standards and precedents applied before the effective date of this section by the Merit Systems Protection Board and courts under chapter 43, 75 and 77 of this title shall apply to employees. It allows MSPB to review certain cases but then places limits on corrective actions. Pay and Pay Administration Subpart C ? in the past the President and Congress set pay increases that were across the board, under the new system, DOD will decide if there is an increase and they will control who gets it. Pay bands could be frozen for years without any increase. Current regulations already allow supervisors to deny step increase to poor performers, the problem is that supervisors fail to do their jobs. There is nothing in the new system that will change ineffective supervisors into high performers. Under Performance-Based Pay there is a complete lack of details. There are no specific details about the rating methodology. Putting all of the rating authority into just the rater, will take us back to the time of patronage. The boss sets your pay; so you do what he wants, right or wrong. Pay pool panels are ripe for manipulations by strong or favored supervisors. An employee at the top of a band cannot receive an Extraordinary Pay Increase regardless of how exceptional he performs. Performance Management Subpart D ? if the issue is perceived inflexibility, why not train the supervisors to remove this misconception. The standards can be changed and by putting it in writing, it removes misunderstanding from changing standards. The current system allows for standards to be changed. Performance and Behavior Accountability ? if behavior is sufficiently bad to effect performance, it needs to be corrected immediately and not wait until the annual evaluation. Perception of behavior is very subjective and needs to be taken in context with the total situation. The range of options for dealing with unacceptable performance exists in the current system, it just requires management action. The proposed regulations may lay the foundation for a performance management that is fair, credible, and transparent, and that holds employees, supervisors and managers accountable for results or the foundations for fraud, waste and abuse. Without the details, it could be either a palace or a pigsty. Monitoring Performance and Providing Feedback ? the current system requires it, but that doesn?t make it happen. Performance Rating Challenges ? there are no details. Will there be a chance for outside review? Will the review happen before the pay pool panel meets? Probationary Periods ? current regulations give almost no due process protection to probationary employees. Workforce Shaping Subpart F ? but changing the competitive area, you could end up removing employees with better performance and retaining less experienced or poorer performers, because of the restricted area. Also since there is a lack of detail, is it just the last performance appraisal? Adverse Actions Subpart G ? if the plan is to revitalize the workforce, probationary employees need to be provided due process, or they can be terminated for little or no reason with no recourse. This is not a selling point, for joining the government. No procedures provided in 5 CFR 315.804 and 805 are useless. The mandatory removal offenses need to be clearly identified. Since only the Secretary can mitigate a mandatory removal offense, procedures need to be established for him to review and hear appeals. The proposed standard for taking adverse action remains ?for such cause as will promote the efficiency of the service?, is a catchy phrase, but has no real meaning. Appeals Subpart H ? certain disciplinary actions are not appealable to MSPB, but what happens if the negotiated appeal is setup for arbitration? Require information on the modified rules that MSPB will use. Can the DOD internal review overturn the MSPB administrative judge?s decision? Attorney?s fees should be reimbursable if management would have known the facts, if they had sufficiently investigated the situation prior to taking action. Management should not benefit from sloppy or incompetence. . Page 7576, 9901.103 Definitions, Mandatory Removal Offense ? Need specifics and the list should be reviewable by someone to prevent abuse. Page 7576, 9901.103 Definitions, Performance ? Definition should be restricted to job accomplishment in a professional manner, adding other things dilutes the meaning is open to abuse. Page 7576, 9901.103 Definitions, Rating of Record ? should be based upon performance of assigned duties assigned in job standards with any changes made during rating period. Page 7577, 9901.103 Definitions, Unacceptable performance ? from job standards for unacceptable reasons. Page 7577, 9901.104, Scope of authority ? Waived or modified by who and with what review authority? Page 7578, 9901.106, Continuing collaboration ? DOD and OPM failed to collaborate in good faith. Data was not made available, discussion limited and comments ignored. Page 7578, 9901.107, Relationship to other provisions - being able to waive or modify any rules without review contradicts the principles of fairness and openness. Page 7579, 9901.222 Reconsideration of classification decisions ? If the employee is placed in a lower band and is upgraded upon review, why doesn?t he get retroactive pay? It was management?s mistake. Page 7580, 9901.304 Definitions ? Does extraordinary pay increase (EPI) increase base pay? Can it increase base pay above the level of the pay band? If at top of pay band, can you receive EPI? Page 7580, 9901.304 Definitions ? Is local market supplement an increase to base pay? Used for retirement computation and life insurance? Is thrift savings program contributions based upon total pay or are some types excluded? Page 7581, 9901.312 Maximum rates ? So there are limits to pay for performance? The pay of an exceptional employee could be capped below what he should earn? Page 7581, 9901.313 National Security Compensation Comparability ? Will the overall amount allocated be by pay pool or is it total budget, in which case some areas will get a larger piece of the budget pie? Page 7582, 9901.332 Local Market supplements ? So could an employee who moves from career group to another at the same pay band and local market area have his pay decreased? Page 7582, 9901.342 Performance payouts ? Are there any limits on size of performance shares? Page 7584, Conversion Provisions, 9901.373 Conversion of employees to NSPS pay system ? If a GS employee is being paid above the step 10, due to retain pay or whatever, and at conversion they are at the top of the band, how will their pay be set? Page 7584, Subpart D-Performance Management, 9901.401 Purpose ? Will TAPES be dropped? Under the current system there are timelines and there are still supervisors who fail to meet those timelines, why would new timelines work any better? How are you going to ensure performance feedback and dialogue? What effective safeguards to ensure that management of the system is fair and equitable? Page 7585, 9901.405 Performance management system requirements - (2) can it be more than once a year? Pay increased more than once a year? (4) Will supervisor/manager?s performance be tied to their employee?s performance? Their rating cannot be high if their employee?s performance is low? Page 7586, 9901.409 Rating and rewarding performance (g) ? Need more detail? Is the decision reviewable by anyone? Can someone outside of the organization review it? Page 7589, 9901.607 Retention standing (a)(3) ? Will only the current rating of record be used? Not an average of the last 3? Page 7591, 9901.712 Mandatory removal offenses ? Needs to include the able to appeal the decision to someone, the Secretary if no one else? Page 7592, 9901.805 Coverage (d) ? Probationary employees need at least minimal due process rights, 5 CFR 315.806 does not afford those rights? Page 7596, 9901.907 National Security Labor Relations Board ? These appointments are not subject to review or approval by anyone? He can appoint biased individuals and they are only answerable to the Secretary. He decides who meets the qualifications. Since the Board is appointed by and works for the Secretary, they can hardly be considered impartial. Sincerely,