Career and Career-Conditional Employment

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of the system are outdated.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]

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