[Federal Register Volume 59, Number 202 (Thursday, October 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-26003]


[[Page Unknown]]

[Federal Register: October 20, 1994]


                                                   VOL. 59, NO. 202

                                         Thursday, October 20, 1994

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 315

RIN 3206-AG22

 

Career and Career-Conditional Employment

agency: Office of Personnel Management.

action: Proposed rule.

-----------------------------------------------------------------------

summary: The Office of Personnel Management (OPM) proposes to revise 
requirements of the career-conditional employment system concerning 
reinstatement, career tenure, and probation. Consistent with 
recommendations of the National Performance Review, these proposals 
would deregulate and simplify the appointment system. These proposals 
would drop the time limit on reinstatement eligibility, link career 
tenure to completion of probation instead of 3 years of service, and 
clarify probationary period requirements.

dates: Comments must be submitted on or before December 19, 1994.

addresses: Send or deliver written comments to Leonard R. Klein, 
Associate Director for Career Entry, Office of Personnel Management, 
Room 6F08, 1900 E Street NW, Washington, DC 20415 (FAX 202-606-2329).

for further information contact: Lee Edwards on reinstatement and 
career tenure. Raleigh Neville on probation. Both may be reached at 
202-606-0830; FAX 202-606-2329.

supplementary information: The National Performance Review (NPR) has 
recommended changes in the way the Government operates. One 
recommendation was to deregulate and decentralize the personnel system 
to give agencies more authority over hiring. Consistent with the NPR 
recommendations, these proposals would simplify the career tenure, 
probation, and reinstatement aspects of the career-conditional 
appointment system.
    A specific NPR recommendation was to abolish the Federal Personnel 
Manual (FPM). When this was done in December 1993, FPM Chapter 315 was 
provisionally retained through December 1994 to enable OPM to issue 
regulations to replace needed instructions found only in the FPM. 
Rather than transfer existing rules from the FPM to the CFR, OPM 
proposes to simplify requirements.

Career-Conditional Appointment System

    The Federal career-conditional system is close to 40 years old. 
Because it was created to meet the needs of another era, many aspects 
of the system are outdated. For example, major concerns in designing 
the system were two provisions of the now expired ``Whitten Amendment'' 
(section 1310 of Pub. L. 82-253, November 1, 1951). One provision was a 
Governmentwide ceiling on permanent employees and another was a 
requirement that appointments be made on a nonpermanent basis. Thus, 
the length of the career-conditional period was made to be flexible so 
it could be extended beyond 3 years if the permanent workforce became 
larger than permitted by law.
    Today, however, both career and career-conditional employees are 
counted as permanent, and the idea of a varying service requirement for 
career tenure no longer fits our framework. Other than the probationary 
period, there are only two differences between career and career-
conditional appointments. First, non-veteran career-conditional 
employees have a 3-year reinstatement eligibility. Other employees have 
no time limit. Second, in a reduction in force, career employees who 
are not serving probation have higher standing than career-conditional 
employees have.
    The basic purpose of the tenure system has changed too. The 
original intent was that an employee would gain the full benefits of 
the system only after working continuously in the career system for a 
certain period. A lengthy continuous service requirement, however, is 
too burdensome in today's society where workers, many of whom are from 
dual income families, are highly mobile and subject to relocation 
(which often results in breaks in service in Federal careers). 
Furthermore, over the years, we have added exceptions and new rules to 
accommodate changing employment conditions. In the process, the body of 
rules for career tenure has become complex.
    The relationship of probation and career tenure is also a confusing 
aspect of the appointment system. Most individuals view completion of 
the probationary period as the most significant change in an employee's 
status. Once employees complete probation, they acquire the adverse 
action rights under 5 CFR part 432 and 752. Despite having these 
rights, most employees continue for an additional 2 years as career-
conditional before reaching career tenure.

Career Tenure

    Currently, 5 CFR 315.201(a) requires 3 years of creditable service 
for an employee to receive a career appointment. Section 315.201(b) 
provides that OPM will publish in the FPM the conditions under which 
service may be credited in meeting the 3-year requirement.
    These conditions are in subchapter 2 of the provisionally retained 
FPM Chapter 315. An employee's 3-year period of service must begin with 
one of 16 different categories of employment, be substantially 
continuous (with nine categories of exceptions), and total 3 years 
(with special rules for less than full-time service, credit for time in 
nonpay status in four situations, credit for time off the rolls in six 
situations, and credit for certain intervening service in seven 
situations). As a result, making a determination of an employee's 
eligibility for career status can be confusing and time consuming.
    To simplify these rules and to link career employment to the 
significant event of completing probation, OPM proposes that 
acquisition of career tenure rest on completion of the probationary 
period. Generally, an individual's first permanent appointment in the 
competitive service would be a career-conditional appointment. Upon 
completion of probation as provided in 5 CFR 315, subpart H, the 
employee would automatically become a career appointee. (Certain 
authorities specifically exempt appointees from probation. Individuals 
employed under these authorities would be hired under career 
appointment. Example: employees noncompetitively converted from a 
Veterans Readjustment Appointment to the competitive service are not 
subject to probation, so they would be converted to a career 
appointment upon satisfying requirements.)
    At present, the probationary period on appointment is 1 year. 
However, the National Performance Review and the National Partnership 
Council have recommended that legislation be sought to enable 
probationary periods to be set for up to 3 years, based on the 
requirements of the position. Therefore, this proposal anticipates that 
at some time in the future, employees may be subject to differing 
probationary periods and may acquire career tenure after varying 
periods.
    OPM recognizes that this proposal to simplify the appointment 
system could impact the outcome of any reduction in force (RIF). This 
is because tenure is one of the four factors required by law to 
determine retention standing in a RIF. Under this proposal, employees 
would acquire career tenure and move to tenure group I, the highest 
tenure group, sooner than they do under current rules. This would 
result in relatively fewer employees in tenure group II than there are 
now, reducing opportunities for tenure group I employees to displace, 
or bump, employees in lower tenure groups. If this proposed rule is 
adopted, OPM would make the change mandatory for all RIF actions 
effective 6 months after publication of the final rule.
    Under this proposal, current career-conditional employees who have 
completed probation would be changed to a career appointment. Upon 
reinstatement, a former career-conditional employee who had completed 
probation would be reinstated to a career appointment; if probation had 
not been completed, reinstatement would be to a career-conditional 
appointment. In revising Sec. 315.201(c), we dropped the term 
``conversion'' as redundant; this term simply indicates that an 
employee was changed from one type of appointment to another 
appointment, without a break in service, while on the rolls of the same 
agency.
    5 CFR 2.2(a)(2) provides that a current or former career employee 
who is appointed from a register must be given a career appointment, 
even if subject to a probationary period. (Therefore, OPM is not 
proposing any change in the tenure groups defined in the reduction in 
force rules at 5 CFR 351.501(b).) Rule 2.2(a)(2) can be amended only by 
Executive order. OPM welcomes comments on whether it should seek an 
amendment to this provision so that all current or former career 
employees who are reappointed subject to probation would be hired as 
career-conditional employees. This would not lessen their rights since, 
even now, current and former career employees who accept an appointment 
with a probationary period are placed in the same tenure group with 
career-conditional employees.

Probationary Period

    OPM proposes to clarify basic requirements of the probationary 
period for new appointments, and for new supervisors and managers. The 
following changes are proposed:
    Section 315.801 would clarify that family members appointed under 
Executive Order 12721 are required to serve probation and that Postal 
Career employees who transfer to the competitive service, without 
having completed 1 year of service, serve the remainder of the 1 year 
in their new agencies as probationers.
    Section 315.802 would clarify that agencies may not extend the 
probationary period beyond 1 year and specify how prior and other 
service is credited towards the completion of probation. OPM may not 
permit agencies to extend probation beyond 1 year or impose it at 
agency discretion because the OPM General Counsel has advised that such 
an extension would be inconsistent with the adverse action protections 
and procedures under current law that are afforded to employees who 
have completed 1 year of current continuous service. Legislation is 
needed for longer probationary periods.
    Section 315.804 would clarify when the probationary period ends and 
when a separation must be effected.
    Section 315.902 refers the reader to the FPM, which referenced the 
Supervisory Grade Evaluation Guide (SGEG). The SGEG was replaced by 
General Schedule Supervisory Guide in April 1993.
    Section 315.906 would clarify the crediting of various service 
toward completion of probation for new supervisors and managers.
    Section 315.907 would clarify what happens when an employee takes a 
downgrade to enter a supervisory or managerial position and fails to 
complete probation.

Reinstatement Eligibility

    Currently, 5 CFR 315.401 places a 3-year limit on the reinstatement 
eligibility of a nonpreference eligible who previously served under a 
career-conditional appointment. (Reinstatement eligibility permits an 
individual to be re-hired without competing in a competitive civil 
service examination.) Subchapter 3 of the provisionally retained FPM 
Chapter 315 authorizes agencies to extend this limit based on any of 14 
different activities of a former employee, such as excepted employment 
or education which gave the individual valuable training for the job to 
be filled. (Career employees and preference eligible career-conditional 
employees already have unlimited reinstatement eligibility.)
    To simplify the appointment system, OPM proposes to drop the time 
limit on reinstatement eligibility so that any individual who served 
under career-conditional appointment could be rehired at any time. This 
change also recognizes the difficulties encountered by spouses subject 
to relocation (such as spouses of members of the Armed Forces) due to 
the current 3-year limit and that, in the future, individuals may have 
fewer opportunities to exercise a reinstatement eligibility in a 
shrinking Federal Government. Dropping the time limit will enable them 
to exercise their eligibility at any time.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic 
impact on a substantial number of small entities because it pertains 
only to Federal employees and agencies.

Executive Order 12866, Regulatory Review

    This rule has been reviewed by the Office of Management and Budget 
in accordance with Executive Order 12866.

List of Subjects in 5 CFR Part 315

    Government employees.

U.S. Office of Personnel Management
James B. King,
Director.

    Accordingly, OPM proposes to amend part 315 of title 5, Code of 
Federal Regulations, as follows:

PART 315--CAREER AND CAREER-CONDITIONAL EMPLOYMENT

    1. The authority citation for part 315 is revised to read as 
follows:

    Authority:  5 U.S.C. 1302, 3301, 3302; E.O. 10577, 3 CFR, 1954-
1958 Comp., page 218, unless otherwise noted.
    Secs. 315.601 and 315.609 also issued under 22 U.S.C. 3651 and 
3652.
    Secs. 315.602 and 315.604 also issued under 5 U.S.C. 1104.
    Sec. 315.603 also issued under 5 U.S.C. 8151.
    Sec. 315.605 also issued under E.O. 12034, 3 CFR, 1978 Comp., p. 
111.
    Sec. 315.606 also issued under E.O. 11219, 3 CFR, 1964-1965 
Comp., p. 303.
    Sec. 315.607 also issued under 22 U.S.C. 2506.
    Sec. 315.608 also issued under E.O. 12721, 3 CFR, 1990 Comp., p. 
293.
    Sec. 315.610 also issued under 5 U.S.C. 3304(d).
    Sec. 315.710 also issued under E.O. 12596, 3 CFR, 1987 Comp., p. 
229.

    Subpart I also issued under 5 U.S.C. 3321, E.O. 12107, 3 CFR, 1978 
Comp., p. 264.
    2. Subpart B is revised to read as follows:

Subpart B--The Career-Conditional Employment System


Sec. 315.201  Competitive status and career employment.

    (a) A person employed in the competitive service for other than 
temporary, term, or indefinite employment is appointed as a career or 
career-conditional employee subject to the probationary period required 
by subpart H of this part.
    (b) Except as provided in paragraph (c) of this section, an 
appointee who is required to serve a probationary period under subpart 
H of this part is appointed as a career-conditional employee. A career-
conditional employee becomes a career employee automatically on 
completion of probation.
    (c) A person is appointed as a career employee on:
    (1) Appointment from a register if the person previously completed 
the requirement for a career appointment, even if the person must serve 
a probationary period under subpart H of this part;
    (2) Reinstatement if the person previously completed the 
requirement for a career appointment or served with competitive status 
under an appointment that did not require a probationary period under 
subpart H of this part;
    (3) Appointment based on a noncompetitive authority under which the 
person acquired competitive status or is not required to serve a 
probationary period under subpart H of this part; and
    (4) Appointment to a position required by law to be filled on a 
permanent basis, including while an employee is serving in such a 
position.
    (d) Career and career-conditional employees are assigned to tenure 
groups for retention purposes in accordance with Sec. 351.501(b) of 
this chapter.
    3. Section 315.401 is revised, to read as follows:


Sec. 315.401  Reinstatement.

    Subject to part 335 of this chapter, an agency may appoint by 
reinstatement to a competitive service position any person who 
previously was employed under career or career-conditional appointment. 
There is no time limit on a person's eligibility for reinstatement.
    4. Sections 315.501 and 315.502 are revised, to read as follows:


Sec. 315.501  Transfer.

    Subject to part 335 of this chapter, an agency may appoint by 
transfer to a competitive service position, without a break in service 
of a single day, a current career or career-conditional employee of 
another agency.


Sec. 315.502  Tenure on transfer.

    (a) General Rule. Except as provided in paragraph (b) of this 
section, a career employee who transfers remains a career employee and 
a career-conditional employee who transfers remains a career-
conditional employee.
    (b) Exception. A career-conditional employee who transfers to a 
position required by law to be filled on a permanent basis becomes a 
career employee.
    5. In Sec. 315.801, paragraphs (a)(8) and (d) are added, to read as 
follows:


Sec. 315.801  Probationary period; when required.

    (a) * * *
    (8) Was appointed under Sec. 315.608 and Executive Order 12721 as a 
family member formerly stationed overseas.
* * * * *
    (d) Upon noncompetitive appointment to the competitive service 
under the Postal Reorganization Act (39 U.S.C. 101 et seq.), an 
employee of the Postal Career Service (including substitute and part-
time flexible) who has not completed 1 year of Postal service, must 
serve the remainder of a 1-year probationary period in the new agency.
    6. Section 315.802 is revised to read as follows:


Sec. 315.802  Length of probationary period; crediting service.

    (a) The probationary period required by Sec. 315.801 is 1 year and 
may not be extended.
    (b) Prior Federal civilian service (including nonappropriated fund 
service) counts toward completion of probation when the prior service:
    (1) Is in the same agency, e.g., Department of the Army;
    (2) Is in the same line of work (determined by the employee's 
actual duties and responsibilities); and
    (3) Contains or is followed by no more than a single break in 
service that does not exceed 30 days.
    (c) Periods of absence while in a pay status count toward 
completion of probation. Absence in nonpay status while on the rolls 
(other than for compensable injury or military duty) is creditable up 
to a total of 22 workdays. Absence (whether on or off the rolls) due to 
compensable injury or military duty is creditable in full upon 
restoration to Federal service. Nonpay time in excess of 22 workdays 
extends the probationary period by an equal amount. An employee serving 
probation who leaves Federal service to become a volunteer with the 
Peace Corps or ACTION serves the remainder of the probationary period 
upon reinstatement provided the employee is reinstated within 90 days 
of termination of service as a volunteer, or training for such service.
    (d) The probationary period for part-time employees is computed on 
the basis of calendar time, in the same manner as for full-time 
employees. For intermittent employees, i.e., those who do not have 
regularly scheduled tours of duty, each day or part of a day in pay 
status counts as 1 day of credit toward the 260 days in a pay status 
required for completion of probation. (However, the probationary period 
cannot be completed in less than 1 year of calendar time.)
    7. In Sec. 315.804, the existing text is designated as paragraph 
(a) and paragraph (b) is added, to read as follows:


Sec. 315.804  Termination of probationers for unsatisfactory 
performance or conduct.

* * * * *
    (b) Probation ends when the employee completes his or her scheduled 
tour of duty on the day before the anniversary date of the employee's 
appointment. For example, when the last workday is a Friday and the 
anniversary date is the following Monday, the probationer must be 
separated before the end of the tour of duty on Friday since Friday 
would be the last day the employee actually has to demonstrate fitness 
for further employment.
    8. Section 315.902 is revised to read as follows:


Sec. 315.902  Definitions.

    In this subpart supervisory position and managerial position have 
the meaning given them by the General Schedule Supervisory Guide.
    9. In Sec. 315.906, paragraph (b) is revised and new paragraphs (c) 
and (d) are added, to read as follows:


Sec. 315.906  Crediting service toward completion of the probationary 
period.

* * * * *
    (b) Service on detail, temporary promotion, or reassignment to 
another supervisory or managerial position while serving probation is 
creditable toward completion of probation. Service in a nonsupervisory 
or nonmanagerial position is not creditable.
    (c) Absence in a non-pay status while on the rolls (other than 
absence because of compensable injury or military duty) is creditable 
up to a total of 22 workdays. Absence (whether on or off the rolls) due 
to compensable injury or military duty is creditable in full upon 
restoration to Federal service.
    (d) Service during a probationary period from which an employee was 
separated or demoted for cause does not count toward completion of 
probation required under a subsequent appointment. In other situations 
in which an employee does not complete probation, service is creditable 
as determined by agency policy.
    10. In Sec. 315.907, paragraph (b) is revised to read as follows:


Sec. 315.907  Failure to complete the probationary period.

* * * * *
    (b) A nonsupervisory or nonmanagerial employee who is demoted into 
a position in which probation under Sec. 315.904 is required and who, 
for reasons of supervisory or managerial performance, does not 
satisfactorily complete the probationary period is entitled to be 
assigned to a position at the same grade and pay as the position in 
which he or she was serving probation. The employee is eligible for 
repromotion in accordance with agency promotion policy.
* * * * *
[FR Doc. 94-26003 Filed 10-19-94; 8:45 am]
BILLING CODE 6325-01-M