Variations to Staffing Regulations |
NATURE AND PURPOSE OF A VARIATION
The Office of Personnel Management (OPM) is authorized by rule V [5 CFR 5.1] to permit variation (i.e., an exception)
from the strict letter of the regulations whenever precise compliance
with them would impose practical difficulties and unnecessary hardship
and when no other remedy exists within the regulations. A variation
may be granted if it is within the spirit of the regulations and if it
adequately meets the objectives and accomplishes the purpose of the regulation
as far as the Government and the competitive service are concerned. All
variation requests must be submitted by the agency's headquarters level.
There are two categories of variations:
- to alleviate hardship to individuals resulting from agencies' errors
in effecting personnel actions, e.g., erroneous appointments; and,
- to permit agencies to take actions in unusual situations which cannot
be accommodated within the letter of the regulation, e.g., extension
of term appointments, beyond 4
years.
Under rule V, a non-precedent setting variation applies "whenever
like conditions exist," regardless of how much time has passed. Most
requests for variations are non-precedent setting and are approved by
the Associate Director for Employment.
When evaluating a variation that will set a precedent, consideration must
be given to why an exception would be more appropriate than a change to
the regulation. If the situation is likely to happen frequently and is
within the spirit of the rules, regulatory change is preferable, although
a variation may still be needed if an agency needs to act in an individual
case before the new regulation takes effect. However, if the situation
justifying the variation is not likely to happen again, variation is preferable.
Precedent-setting variations must be approved by the Director.
While 5 CFR 5.1 authorizes variations that affect
requirements established by personnel regulations, OPM has no legal
authority to modify requirements established by law, Executive order,
or court decision; e.g., citizenship, Veterans Readjustment Appointments
(VRA), and overseas Executive Orders. An action that violated such
requirements (e.g., appointment of a noncitizen in the competitive
service and employee is still a noncitizen or a VRA appointment of
someone who did not serve during the Vietnam era) cannot be regularized
by variation. If proper appointment authority cannot be established in
these cases, termination is the only recourse.
VARIATION TO CORRECT ERRONEOUS APPOINTMENT
If an employee is on an illegal appointment (i.e, reinstated improperly,
appointed noncompetitively (Veterans Readjustment Appointment) when the
employee wasn't eligible for noncompetive appointment, the agency should
try to put the employee on a legal appointment. A variation request must
be the only way to avoid the hardship. Remember, it is the remedy of
last resort! Agencies must have made extensive efforts to regularize the erroneous appointment before the Office of Personnel
Management will consider granting a variation. A variation is granted
to avoid unnecessary hardship to the employee, i.e, loss of employment,
pay, grade or significant service credit.
There are two types of variations involving erroneous appointments:
- Agency made an error, but has subsequently given the employee a
proper appointment. In this case, the agency will want service credit
for the period of de facto employment (the time from the initial error
up to the day before the proper appointment).
- Agency made an error and the error cannot be corrected. Employee
is still on an illegal appointment. A variation is needed to: 1)
retain the employee, and 2) grant service credit for the period of de facto employment.
Before asking for a variation, the agency must go through the following
steps:
- Try to give the employee a legal appointment.
- If the employee could not have been properly appointed when the error
was made (not within reach or Service Center cannot reconstruct), find
out if the employee could have been within reach competitively at any
time during the period of de facto employment.
The outcome of the above 3 steps determines whether a variation request
will be granted.
IF ON PROPER APPOINTMENT NOW:
Once on a proper appointment, the agency may want to get full service
credit for the de facto employment. To do this, the agency must find out
if the employee could or would have been within reach for the same appointment
at an earlier date. The agency should contact the Service
Center, which would try to reconstruct the register or announce through
case examining. The agency can do this on its own if it has a delegation.
If the employee is on a proper appointment, he/she gets credit for the
de facto service employment for all purposes except career tenure and
time-in-grade.
If the employee is within reach earlier than the proper appointment but
may not have been within reach from the date of the initial error, a variation
is granted to give full service credit for all purposes including career
tenure and time-in-grade from the date the employee would have been within
reach. If the employee may have made the certificate at the time of initial
error (or some time later, but would not have been within reach, ( i.e,
blocked by a veteran), variation for service credit for career tenure and time-in-grade wouldn't be appropriate because
the agency would not have been able to appoint the employee at that time
anyway.
IF NOT ON PROPER APPOINTMENT NOW:
If the register holding office is
unable to reconstruct the register, (i.e, threw out the records or so
much time has elapsed that reconstruction is not possible or practicable
or real vacancy does not exist so office doesn't want to announce as "vacancy"),
agency may be granted a variation to retain the employee on the basis
that extensive efforts have been made to regularize. However, the employee would not
be given service credit for time-in-grade and career tenure since the
individual did not hold a "proper" competitive appointment.
Therefore, we would allow retention to avoid hardship to the employee
that loss of employment would cause but, to protect competitive principles,
service credit for career tenure
and time-in-grade can begin only
from the date of the variation.
If it can be determined that the employee would have been reachable at some point in the past, we can
grant a variation to retain the employee and grant full service credit
including career tenure and time in grade from the date the person would
have been within reach.
VARIATION TO PERMIT AN ATYPICAL SITUATION
Variations responding to unusual situations raise different policy
issues than variations to correct erroneous appointments. These variations
permit something to happen rather than correcting something that has already
happened. Their denial would not cause personnel hardship such as separation
or pay loss for any individual. Consequently, the Office of Personnel
Management (OPM) has approved these variations to relieve practical difficulty
for agencies only when all other conditions specified in Rule V were clearly
met. The two most common examples of variation requests for unusual
or atypical situations are term appointment extensions beyond 4 years
and appointment at above the minimum rate based on superior qualifications.
Term appointment extensions - Variations of this type most
commonly involve extensions to service limits for term appointments which
are currently limited to 4 years, 5 CFR 316.301.
(Separation on the scheduled expiration date of an appointment is not
an unnecessary hardship for an employee who accepted a time-limited job.) Precedent exists for granting
such variation when the initial appointments represented proper use of
the particular authority, and the need for extension resulted from events
beyond the agency's control.
Superior qualifications - Appointments using superior qualifications
authority 5 CFR 531.203(b) are allowed only for individuals entering
the Federal Government (General Schedule positions only) for the first
time or who are returning to the Federal Government after a break
in service of 90 days or more. Once an individual is appointed, the
agency must retain the employee at the step originally appointed. The
part of the regulation that is usually varied is 531.203(b)(2), the requirement that Federal employees
must have a break in service of 90 days or more before appointment above
the minimum pay step of the grade.
Other requests for variation may arise from situations that were not
anticipated when the regulations were written. Variation would be appropriate
in these cases if the proposed action is within OPM's authority (i.e.,
if it does not violate a legal requirement), if it would accomplish the
intent of the regulation better than the action normally required, and
if it does not compromise the integrity of the competitive service.
PUBLISHING VARIATIONS
Rule V requires that variation decisions be published "promptly,"
but does not define that term. Since the OPM Notice and Posting System
is intended to inform agencies of precedents, reporting of variations
that merely follow existing precedent is done at quarterly intervals.
However, precedent-setting variations must be publicized separately and
immediately, with sufficient detail to explain the basis for the approval.
Quarterly
Notices of variations:
Notices By Date
- OPM Notice 95-59 Aug. 17, 1995
- OPM Notice 95-85 Nov. 15, 1995
- OPM Notice 96-09 Feb. 16, 1996
- OPM Notice 96-21 May 3, 1996
- OPM Notice 96-26 Jun. 4, 1996
- OPM Notice 96-29 Jun. 5, 1996
- OPM Notice 96-33 Jun. 21, 1996
- OPM Notice 96-45 Aug. 9, 1996
- OPM Notice 96-46 Aug. 21, 1996
- OPM Notice 96-56 Oct. 25, 1996
- OPM Notice 97-12 Mar. 17, 1997
- OPM Notice 97-23 May 16, 1997
- OPM Notice 97-34 Aug. 1, 1997
- OPM Notice 98-03 Jan. 16, 1998
- OPM Notice 98-08 Feb. 6, 1998
Notices By Subject
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