| Comment Number: | OL-10511731 |
| Received: | 3/16/2005 5:00:07 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:
HQ UNITED STATES EUROPEAN COMMAND COMMENTS ON THE DRAFT NSPS REGULATIONS General Comments: 1 - While DOD and OPM intended to provide only a basic framework for NSPS in the regulations, more detail was required for reviewers. We understand that “implementing issuances” will be published at a later date; however, it would have been helpful if the implementing issuances had been published simultaneously with the draft regulations. Reviewers look forward to the opportunity to review and comment on the implementing issuances which will provide the much detailed policy and procedures for each Subpart of NSPS. 2 - Much of the success of this personnel system will rest with supervisors and managers. Detailed training of the system and its flexibilities is essential to achieving the desired results – a true pay for performance system. 3 – NSPS provides an opportune time to bring the OCONUS areas in line with the locality pay that CONUS enjoys. The lack of this is very important part of pay (which also contributes to benefits and retirement of DOD civilians) OCONUS significantly impacts the decision-making process when individuals are considering overseas employment. And, while Living Quarters and Post allowances help ease the financial burden overseas, these allowances do not contribute to retirement and benefit calculations, as does locality pay. We strongly recommend that Local Market Supplements, which will replace locality pay, be provided OCONUS. 4 – Overseas Employment issues are not addressed by the draft regulations. (We’ve provided specific comments below). Clear guidance on how Family Member appointments will be handled is needed. If we will continue to follow the current CFR provisions, please advise. Specific Comments: Subpart B – Classification Page 7558 -– Provides DoD with the authority to replace the current GS and FWS classification and qualifications systems and other current classification systems with a new method of evaluating and classifying jobs by grouping them into occupational categories and levels of work for pay and other related purposes. Comment: The new pay schedule does not address wage or general schedule leaders. Will these categories of employees no longer exist? Page 7576 Section 9901.103 - Career Groups - Means a grouping of one or more associated or related occupations. A career group may include one or more pay schedules. Comment: Recommend the number of career groups be held to a minimum. i.e., Clerical, Technician, and Prof/Admin. Any attempt to segregate by series or occupational groups will make management of the system cumbersome and serve to restrict flexibilities for which this system is designed. This same theory applies to pay band and schedules. The opportunity to actually review the career groups, bands, and schedules could have impacted our comments on this subject. Page 7579 9901.221 - Classification Requirements - DOD will develop a methodology for describing and documenting the duties, and will make such descriptions and documents available to affected employees. Comment: Would such information not be public information available rather than available to affected employees? DOD is proposing numerous career groups with varying occupational series and pay schedules and bands. Public access to such information allows employees to target positions or occupations in which they may have an interest. 9901.222(b) – Reconsideration of classification decisions – DoD will establish implementing issuances for reviewing requests for reconsideration. Such issuances will include a provision stating that a retroactive effective date may be required only if the employee is wrongfully reduced in band. Comment: Recommend setting a retroactive timeframe. Proposed Change - Such issuances will include a provision stating that a retroactive effective date, of no more than two years from the date of decision/finding, may be required only if the employee is wrongfully reduced in band. Page 7589 Section 9901.606 (c) - Competitive groups – An employee is placed into a competitive group based on the employee’s official position of record. The Department may supplement an employee’s official position description by using other applicable records that document the employee’s actual duties and responsibilities. Comment: An employee should be placed into a competitive group based on official position of record. If there are changes to an employee’s official duties such changes should be documented appropriately. This will protect employees and ease the administrative burden in identifying positions to be placed in competitive groups. It will also alleviate the perception of managers adding information to target or protect employees. General Classification Comment While the new, proposed classification system provides greater flexibility to management on position classification within a pay band, we fail to see clearly how these changes will better support the merit principles of “equal pay for equal work”. NSPS appears to be fostering a new principle of “equal pay for equal performance”. Greater classification freedom for management normally carries with it an increased risk for inconsistencies and judgmental, subjective opinions which frequently result in a wider range of classifications for the same or similar work. We feel this issue needs to be further addressed and clarified. Subpart C – Pay and Pay Administration Page 7560 Rating Methodology 1 - Recommendations will be reviewed by the pay pool panel. The final determination of the rating, number of shares, and payout distribution will be a function of the pay pool panel process and approved by the pay pool manager. Comment: While we want to ensure equitable rating criteria and methodologies are used for everyone in the pay pool, we do not believe mangers should be taken out of the loop. It is disconcerting to believe a pay pool manager can change the rating of someone and significantly affect the payout to that, and other employees, when they may not be familiar with their work or contributions. Some managers are much better at documenting performance and writing evaluations statements than others. The employee(s) should not be penalized or rewarded based on a supervisors’ ability to complete this process. Recommend that managers always be coordinated with prior to making changes to ratings or to making final determinations. 2- The criteria used to determine the number of shares to assign an employee may include assessment of the employee’s contribution. Comment: Recommend “may” change to “must.” This should have always been the case and is even more important under NSPS. 3 - Performance Payout - Subject to DOD guidelines, pay pool managers will have the discretion to determine the proportion of an employee’s total performance payout paid as an increase to basic pay or as a bonus. Increases to basic pay may not cause the basic pay of an employee to exceed the maximum of his or her pay band. Comment: We are comfortable with this notion, if the basic pay increase causes the employee to exceed the maximum of their pay band. We would like to see DOD guidelines require the pay pool managers to coordinate any other changes in the recommended pay increases or bonus amounts with the appropriate supervisor/manager. Page 7561 - Developmental Positions - Employees in developmental positions may receive pay adjustments as they acquire the competencies, skills, and knowledge necessary to advance to the full performance level. Comment: No discussion regarding implementing issuance. Would like to see additional details on this provision. May such an increase be recommended on a yearly or bi-yearly basis, or upon the successful completion of an assignment or school? Page 7561 - Promotion Cluster Comment: There is no definition for this. Is this the same as a career group? Page 7561 - Reassignment Pay Comment: Information should be included on how pay will be set for individuals who are entering NSPS through reassignment from outside the Continental United States where there is no locality pay. Recommend salaries be set with the consideration and addition of locality pay. Information should also be included on how pay will be set for other pay systems entering NSPS. Employees would like to see some assurance of how pay would be set should they leave NSPS and return to a general schedule position. Page 7581 Section 9901.323 - Eligibility for pay increase associated with rate range adjustment - For employees who do not have a current rating of record, DOD will determine the amount of any pay increase associated with a rate range adjustment in accordance with implementing issuances. Comment: For employees who do not have a current rating of record will the supervisor have the option to rate the employee or will the increase be based on the modal rating? Page 7582 Section 9901.332 - Local Market Supplements – Local market supplements apply to employees whose official duty station is located in the given area. DoD may provide different local market supplements for different career groups or for different occupations and/or pay bands within the same career group in the same local market area. Comment: Having different local market supplements for different occupations or pay bands within the same career group in the same local markets will be difficult to administer. This may also cause morale problems as positions are similar enough to be grouped together as a career group, thus there should be no need for different local market supplements in the same area. PAGE 7581-7582 of the Federal Register Section 9901.331/9901.332 - Local Market Supplements Comment: Will the local market supplements, as identified in this section of the FR, become a type of locality pay for the OCONUS locations? What parameters will the OCONUS locations have in implementing the local market supplements? Army in Europe raised the idea of a "virtual locality pay" many years ago as a mechanism to attract and retain experienced employees. Many employees who are within a few years of retirement are reluctant to either come to or remain at an overseas location because of the impact upon their annuity. If the local market supplements can be accomplished under the NSPS, this would be a positive initiative. General Comments: 1 - How will pay be set in an overseas environment? Right now the overseas environment does not allow for locality pay, so will NSPS disregard local market supplements in the overseas areas? 2 - What happens when an employee moves from one geographic location to another? If pay is set using local market supplements, what happens when an employee moves from a higher market area to a lower market area and vice versa? Employees could move back and forth in order to supplement their pay. Comment: Local Market Supplements (LMS) in the OCONUS area should be established. No logical reason exists for OCONUS to be excluded from this part of basic pay which contributes to employees’ retirement annuity calculation and benefits. This would also be a great recruiting tool to attract candidates (especially those close to retirement) for overseas positions. 9901.332 (c) 6 – Overseas allowances and differentials under 5 U.S.C. 5941. Comment: If Local Market Supplements are included in the overseas areas, What impact will they have in determining overseas allowances, typically driven by basic pay only? (As provided by Dept of State Standardized Regulation) Some of the allowances are tied to GS-grades. Will there be a standard GS-equivalency that is used Department-wide? Page 7582 Section 9901.342 (a) (2) - Performance Payout – The rating of record used as the basis for a performance pay increase is the one assigned to the most recently completed appraisal period, except that if an appropriate rating official determines that an employee’s current performance is inconsistent with that rating, that rating official may prepare a more current rating of record. Comment: Agree that managers should be allowed to prepare a more current rating if the situation warrants. However, managers should be cautioned that such rating may allow for the halo or recency affect and any performance payout should be based on the overall rating period. Page 7584 Section 9901.371 - Conversion Provision – Refers to employees who become covered by the pay system without a change in position and exclude employees who are reassigned or transferred from a noncovered position to a position already covered by the NSPS pay system. Comment: Would like to see this information clarified. After reviewing and discussing this section the intent is not clear. 9901.373 (b) – Conversion of employees to the NSPS pay system - When an employee receiving a special rate under 5U U.S.C. 5305 before conversion is converted to an equal rate of pay under the NSPS pay system that consists of a basic rate and a local market supplement, the conversion will not be considered as resulting in a reduction in basic pay for the purpose of applying subpart G of this part. Comment: DoD will convert employees to the system without a reduction in their rate of pay (including basic pay and any applicable locality payment under 5 USC 5304, special rate under 5 USC 5305, or local market supplement under 9901.332). 9901.332 c 9 indicates that local market supplements are considered basic pay upon conversion to NSPS. OCONUS employees who do not currently receive locality pay could be negatively impacted when they port to CONUS positions that are covered under NSPS, since their peers will have had locality pay included in their base pay calculation when they initially converted. OCONUS employees pay will be inherently lower. Concerned that the talent pool that we recruit to come to USAFE to gain overseas experience, sometimes through reassignment or change to lower grade, may dwindle until we implement NSPS and local market supplements overseas. Employees already lose locality pay credit towards their retirement and life insurance by going overseas but now it appears they may also lose pay by having their basic pay w/o locality used for conversion, whereas NSPS-covered CONUS employees converted and had their new basic pay set using locality pay. Proposed Change - As written, the regulation seemingly indicates that locality pay will be included and become part of basic pay when an employee converts to NSPS, rather than as a local market supplement. If this is not the intent, need to clarify or issue clear implementing Guidance. 9901.373 (c) – Conversion of employees to NSPS pay system – If another personnel action (e.g. promotion, geographic movement) takes effect on the same day as the effective date of an employee’s conversion to the new pay system, DoD will process the other action under the rules pertaining to the employee’s former system before processing the conversion action. Comment: Identifies that geographic movement personnel actions occurring on the same day as conversion will be processed first. However, 9901.371 indicates that this subsection only applies to individuals who are converted without a change in position and excludes employees who are reassigned or transferred from a non-covered position. Listing geographic movement as an example under 3301.373 contradicts 9901.371, since this subsection is not applicable. Proposed Change - Delete geographic movement as an example under 9901.373. Implementing guidance would cover geographic movement coupled with conversion. Page 7561 – Reassignment of an employee who moves to a position in a comparable pay band will have pay set depending on whether the move is voluntary or involuntary as a result of unacceptable performance and/or conduct. Comment: The accompanying CFR subsection excludes employees who are reassigned or transferred from a non-covered position to a position already covered by the NSPS pay system, but there are concerns for portability as individuals PCS to/from OCONUS. General Comments on Pay 1- One pay schedule under NSPS includes non-supervisory duties and responsibilities at the “full performance level” of the occupation. The proposed NSPS rules need to further define what the phrase “full performance level” means. Full performance levels vary widely from one organization and activity to another and are primarily based on applied OPM classification guidance within an organization based on past practice and recruitment factors. Without a proper definition, inconsistencies and inequalities may occur. 2 - Need standard format for justifying grade/pay increases for individuals within pay bands. 3 - Activities are competing for the best qualified people. NSPS pay banding should eliminate some of this competition if monetary increases are tied to performance and not to an employee’s classified grade level. 4 - NSPS will allow managers to hire better workers by compensating performance with pay. 5 - While DoD will be able to hire better employees, there may be a potential problem with hiring employees at higher levels within the pay bands unless there is a control/justification system put into place. As employees/ managers become familiar with the system, they will demand higher pay just because they know it’s available rather than the fact that it has been earned. 6 - If NSPS is based on location/performance/labor markets, etc. there should be no distinctions between GS and WG systems. Would it not be better to have one system thereby making it easier to move between the two categories of positions? 7 - One of the reasons we have our current pay system was to prevent favoritism and nepotism. Must ensure controls are put in place to avoid an up swing in complaints along this line. Some employees may perceive a salary increase not as a reward for high performance, but rather as favoritism. Subpart D – Performance Management Single Process and Standard for Action for Unacceptable Performance and Misconduct - The requirement for a formal, set period for an employee to improve performance before management may take an adverse action is eliminated. Comment: We are not opposed to the elimination of the improvement period, provided there is sufficient documentation and counseling prior to such an action occurring. This protects the employee and manager when addressing such issues and complaints. 9901.304 - Definitions - Contribution assessments – Means the determination made by the pay pool manager as to the impact, extent, and scope of contributions that the employee’s performance made to the accomplishment of the organization’s mission and goals. Comment: How is the pay pool manager determined? This individual appears to have much authority, as they have the authority to change the bonus and pay increase amount. By the definition they assess the impact of an employee’s contribution. 9901.409 - Rating and Rewarding performance Comment: The Agency or Pay Pool should, for consistency, develop a definition of what is considered as a contribution when measuring performance. This will help to alleviate subjectivity. A review process for disagreements between the rating pool panel and pool manager needs to be established, preferably relegating the final decision to a higher-level manager. There should be procedures in place to authorize a payout if an employee challenges their rating of record and it results in a higher rating level. 9901.409 (g) - A rating of record may be challenged by an employee only through a reconsideration procedures as provided in DoD implementing issuances. The procedure will be the sole and exclusive method for all employees to challenge a rating of record. A payout determination will not be subject to reconsideration procedures. Comment: EXCELLENT - should reduce the # of grievances. However, how can a payout determination not be subject to reconsideration? This is written as an absolute, yet the section allows for an employee to challenge the rating of record. If successful in that challenge, then a payout determination should be reconsidered. The calculations that determine share values and the number of shares associated with the each step on the rating scale should not be subject to scrutiny, but payout considerations should be if based on an errant/improper rating of record that is successfully challenged. Page 7586 Section 9901.407 (b) Monitoring performance and providing feedback - Provide ongoing (i.e. regular and timely) feedback to employees on their actual performance with respect o their performances expectations, including one or more interim performance reviews during each appraisal period. Comment: The use of "regular and timely" is vague and open to interpretation and makes it difficult to enforce compliance. Since we want this to be transparent and open, we should direct the number of sessions. Supervisors can then be held accountable to that standard. Would like to see this more clearly defined in this regulation or in an overarching implementing regulation. Or simply stick to what is specified, which is one or more interim performance reviews during each appraisal period. The vague terms may cause inconsistencies across components and may cause a need for more supplements, policies letters, etc. for clarity. General Comments: 1 - Concern with the draft legislation is that managers may continually change performance standards throughout the year and this could cause employee concern. Claims could be made for poor performance based on continually moving goals and objectives without sufficient time to meet those targets. 2 - There is no requirement in the NSPS legislation for a formal, set period of time for an employee to improve performance prior to taking adverse action. Employees will find this difficult to accept and organizations will need to be consistent in their treatment of these situations or be faced with an increased number of appeals. 3 - Since the current performance appraisal system is so inadequate and provides for so little employee incentive, NSPS should be an improvement. 4 - NSPS will ensure a direct connection between pay and performance which is a good tool for management. Subpart E – Staffing and Employment 9901.103 - Reassignment – Means the movement of an employee from his or her position of record to a different position or set of duties in the same or a comparable pay band under DOD implementing issuances on a permanent or temporary/time limited basis. Comment: The regulations define reassignment as movement of an employee to a different position in same or comparable pay band. It mentions that this move can be on a permanent or temporary basis (e.g., similar to current reassignment/detail policies). Does this include movement of temporary employees to other temporary positions without having to request special authority? Proposed Change - Include employees on time-limited appointments. This will alleviate the need to reannounce and run competition when management wants to move temporary employees to comparable positions based on mission changes Comment: Draft regulations provide no information on Overseas Employment. Will 5 CFR 301 -- Overseas Employment-- still be applicable? Will 5 CFR 315.608 -- Noncompetitive appointment of certain former overseas employees still be applicable? Will Executive Order 12721 granting employees career/career conditional appointments in the competitive service if they've met certain criteria for creditable overseas service (Schedule A Family Member Appointments), still be applicable? These regulations and Executive Order provide the foundation for employment practices in the overseas theater. While implementing issuances will provide practitioner guidance, having the overarching framework at the CFR level ensures consistency across DoD and other agencies that employ family members overseas. Under NSPS, employees will be defined as either career or time-limited. Career employees serve without time limit in competitive or excepted service positions. Time-limited employees serve either for a specified duration (term) or for an unspecified, but limited duration (temporary). Under NSPS, those employees may be hired directly into the career service. Comment: Will current Family Members in the Overseas area on Excepted Service appointments which do not lead to career status be converted to time-limited or career appointments? Recommend that current Family Members on Excepted Service appointments be converted to career status. Comment: If a Family Member competes for a competitive service position, will they be appointed as time-limited or career? Recommend these appointees be given career status. Page 7579, Section 9901.231 - Conversion of positions and employees to NSPS classification system Comment: Language should be included to address employees who transfer/reassign from other agencies or non NSPS entities. Language should be added to address OCONUS employees who do not receive locality pay and how they will be converted. Page 7588 –Section 9901.516 - Internal Placement - DoD may prescribe implementing issuances regarding the assignment, reassignment, reinstatement, detail, transfer, and promotion of individuals or employees into or within NSPS. These issuances may also establish in-service probationary periods and prescribe the conditions under which employees will complete such periods. Such issuances will be made available to applicants and employees. Internal placement actions may be made on a permanent or temporary basis using competitive and noncompetitive procedures. Those exceptions to competitive procedures set forth in 5 CFR part 335 apply to NSPS. Comment: For flexibility in placing employees, DOD must prescribe procedures which differ from 5 CFR. Comment: Are we to assume that NSPS will negate current time-in-grade restrictions under pay banding? Will there be any rules on this issue regarding waiting periods? Subpart F – Workforce Reshaping General Comments: If RIF is made too narrow or too easy, managers may use RIF more often to get rid of problem employees instead of using disciplinary procedures, as they should. Management needs better choices and more realistic inducements for what they really need to get the mission accomplished. NSPS appears to target those positions that don’t meet the organizations’ current needs. It should be easy for managers to get rid of excess positions, but managers should focus on positions not employees. NSPS says that performance is a major factor in RIF, however, there still seems to be no resolution when it comes to veterans’ preference. You may have an outstanding performer for an employee, but that employee will still be the one to go if there is a veteran in the same competitive area? How will this be resolved? Subpart G –Adverse Actions Page 7565 Subpart G.2 - Mandatory Removal Offenses (MROs) - Only the Secretary may mitigate the penalty for committing a mandatory removal offense. Comment: If the penalty for certain offenses is “mandatory removal” why would there be any need for the Secretary to mitigate. The ability to mitigate these offenses could lead to unfair practices. We liken MRO to zero tolerance policies. Page 7591 Section 9901.712 (b) - Mandatory removal offenses - The procedures in 9901.713 through 9901.716 apply to actions taken under this section, However, a proposed notice required by 9901.714 may be issued to the employee in question only after the Secretary’s review and approval. Comment: The approving authority for MRO should be delegated to the Military Department Secretaries and Defense Agency Directors. Requiring SECDEF approval to utilize this tool makes it unwieldy, considering it will have been clearly defined and publicized to the workforce. Agree that SecDEF is the sole mitigator for determining lesser penalties at employee's and/or management's request. Proposed Change - SecDEF and/or Service secretary review should be part of the employees appeal rights rather than part of the proposal/ notice. General Comments: 1 - NSPS should develop a system of resolving unacceptable performers in a fair and more expeditious manner. 2 - Identifying poor behavior or performance is subjective and applying that poor behavior to a standard and explaining that standard to an employee is a skill which few managers possess. Managers and supervisors should be required to complete a mandatory training course which teaches them how to do this. Training should include such soft supervisory skills as dealing with difficult people and situations. Subpart I – Labor-Management Page 7572 - Duty to Bargain and Consult - Mid-term bargaining over proposed changes in conditions of employment must be completed within 30 days or management will be able to implement the change after notifying the union. The obligation to bargain, however, does not prevent management from exercising its management right identified in 9901.910. Comment: The ability to implement in 30 days without agreement was noted throughout the supplement and regulation. It gives employees a false sense of adding value to the process. The agency and department can go through the motions for 30 days until they can do as they wish – implement. 9901.912 (b) (6) –Determination of appropriate units for labor organization representation – A unit may not be determined to be appropriate under this section solely on the basis of the extent to which employees in the proposed unit have organized, nor may a unit be determined to be appropriate if it includes both professional employees and other employees, unless a majority of the professional employees vote for inclusion in the unit. Comment: What type of professional employees are excluded (e.g. contracting specialist, engineers)? Will it be consistent with a type of professional occupation pay band/scale? Proposed Change - Ensure implementing guidance clearly defines professional employees. Page 7578 - 9901.106 - Continuing Collaboration – This section provides employees representatives with an opportunity to participate in the development of Department-level implementing issuances that carry out the provisions of this part. Comment: Union representatives and employees will act in good faith to review and provide appropriate comment on proposed implementing issuances. However, the Secretary may determine the number of employee representatives to be engaged in continuing collaboration; the timeframe to submit comments; and to the extent the Secretary determines necessary, employee representatives will be provided an opportunity to discuss views with DOD officials. Written comments will become a part of the record and will be “considered” before a decision is made. Reconsider this approach, as ultimately “Nothing in the continuing collaboration process will affect the right of the Secretary to determine the content of implementing issuances and to make them effective at any time.”