# 60 FR 2546: Time-In-Grade Rule Eliminated

> Federal · Regulations · In force

URL: https://www.frixlaw.com/law-library/statutes/FR_PRORULE_95-562

## Section

- **Citation:** 60 FR 2546
- **Heading:** Time-In-Grade Rule Eliminated
- **Jurisdiction:** Federal
- **Kind:** Regulations
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Federal Register / Vol. 60 / 60 FR 2546

## Text

Proposed Rules
Federal Register
________________________________________________________________________

========================================================================

Proposed Rules

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 300

RIN 3206-AG06

Time-In-Grade Rule Eliminated

AGENCY: Office of Personnel Management.

ACTION: Extension of public comment period on proposed elimination of
time-in-grade rule.

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

SUMMARY: On June 15, 1994, the Office of Personnel Management (OPM)
proposed regulations to abolish the time-in-grade restriction on
promotion of Federal employees to positions in the General Schedule.
The National Performance Review and National Partnership Council had
recommended the elimination of the 1-year Federal service requirement
for promotions because it prevents employees from applying for jobs for
which the qualify.
To ensure that the public has ample opportunity to fully review and
comment on the proposed rulemaking, this notice extends the public
comment period for an additional 60 days.

DATES: Comments must be submitted on or before March 13, 1995.

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.

FOR FURTHER INFORMATION CONTACT: Lee Shelkey Edwards on 202-606-0830,
TDD 202-606-0023, or FAX 202-606-2329.

SUPPLEMENTARY INFORMATION:

A. Background
Comments must be submitted on or before March 13, 1995.

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.

FOR FURTHER INFORMATION CONTACT: Lee Shelkey Edwards on 202-606-0830,
TDD 202-606-0023, or FAX 202-606-2329.

SUPPLEMENTARY INFORMATION:

A. Background

Since the early 1950's, Federal employees in General Schedule
positions at GS-5 and above have had to serve at least 1 year in grade
before being promoted. This restriction originated in statute with the
now expired ``Whitten Amendment,'' a series of controls on expansion of
the Federal work force during the Korean conflict. The time-in-grade
restriction currently is in 5 CFR part 300, subpart F. Prior to the
Whitten Amendment, no such regulatory restriction existed.
The National Performance Review recommended abolishing the time-in-
grade restriction because it prevents employees from being considered
for jobs for which they qualify. On June 15, 1994, OPM proposed
regulations (59 FR 30717) to abolish the time-in-grade restriction. We
received 241 written comments; 30 agreed with the proposal (22
individuals and 8 agencies) and 211 disagreed with it (197 individuals,
5 employee unions, 2 agencies, and 7 other organizations).
Comments from individuals include 189 form letters expressing
serious concern that the proposal would have an adverse impact on
minority and disabled employees. Others also commented that the
elimination of time in grade could lead to favoritism and inequity in
promotions, and promoted employees would not be qualified. A majority
of commenters who opposed the proposal requested an extension of the
comment period.
As requested, OPM is extending the comment period to allow
additional time to examine the proposal. We are also using this notice
to provide additional information on the background of the time-in-
grade restriction and the impact of its elimination.
by the Civil Service Commission to determine whether any of its
provisions, including time-in-grade, should be retained. The Commission
reported that the time-in-grade restriction on competitive service
employees had been placed in regulation and would continue even if the
Whitten Amendment expired. Subsequently, Congress permitted the Whitten
Amendment to expire effective September 14, 1978. Since then,
competitive service employees, but not excepted employees, have
continued to be subject to the Governmentwide time-in-grade
restriction, although individual agencies could at their discretion
require it for excepted employees.
Over the 16 years since its expiration, much has happened in
Federal personnel administration. The civil service has been subject to
numerous reviews, and several reports, most recently from the National
Performance Review, have recommended deregulation and simplification of
the hiring system. The time-in-grade rule is often seen as a symbol of
bureaucratic red tape that binds managers hands and prevents the
efficient use of qualified workers.

C. NPR Proposal

In its September 1993 report From Red Tape to Results: Creating a
Government That Works Better & Costs Less, the National Performance
Review (NPR) recommended abolishing the time in-grade requirement as an
arbitrary limit on competition. The requirement excludes from
consideration those candidates who meet OPM qualification standards and
have the proven ability to perform the duties of higher grade
positions, but who have not served at least one year in lower graded
Government positions. See pages 11 and 15 of Reinventing Human
Resources Management, Accompanying Report of the National Performance
Review.
The National Partnership Council, established by Executive Order
12871 of October 1, 1993, was charged with developing legislative
proposals for the President to implement the NPR recommendations. The
Council's report also recommended abolishing the time-in-
grade restriction
ee pages 11 and 15 of Reinventing Human
Resources Management, Accompanying Report of the National Performance
Review.
The National Partnership Council, established by Executive Order
12871 of October 1, 1993, was charged with developing legislative
proposals for the President to implement the NPR recommendations. The
Council's report also recommended abolishing the time-in-
grade restriction. In A Report to the President on Implementing
Recommendations of the National Performance Review by the National
Partnership Council, January 1994, the Council states on page 30:
``The NPC recommends the following * * * regulatory changes be made
to allow employees to compete for job opportunities based on their
qualifications and to enable decision makers to utilize employees more
fully where needed--
Abolish the time-in-grade regulatory requirement. For
bargaining unit employees, the current requirement should remain in
effect until the parties agree to modify it either through consensus or
collective bargaining.''
Thus, OPM's proposal is consistent with recommendations of both the
NPR and National Partnership Council.

D. Impact of Proposal

Shrinking Federal Work Force

When Congress passed the Whitten Amendment in the 1950's, the civil
service was expanding to respond to the needs of the growing conflict
in Korea. Time in grade was a brake on that expansion.
The situation today is just the opposite. The Federal Workforce
Restructuring Act of 1994, Pub. L. 103-226 of March 30, 1994, mandates
reductions in Federal employment levels. Employment in executive
agencies is to be reduced in each fiscal year from FY 94 through FY 99
by a total of 272,900 positions. Also, the level of agency funding is
being reduced because of deficit reduction legislation.
The results is that managers must do more with fewer employees and
less money. Managers cannot inflate grade levels because their funds
and position authorizations will be tight
oyment in executive
agencies is to be reduced in each fiscal year from FY 94 through FY 99
by a total of 272,900 positions. Also, the level of agency funding is
being reduced because of deficit reduction legislation.
The results is that managers must do more with fewer employees and
less money. Managers cannot inflate grade levels because their funds
and position authorizations will be tight. And, since agencies are
being asked to do more with less, the quality of the work force has
become even more important. It makes more sense for managers to be able
to select from among the best-qualified employees available, regardless
of their existing grade levels.
Another effect of the shrinking work force is fewer opportunities
for employee advancement. Agencies traditionally encourage employees to
improve their capabilities. Employees who have acquired new skills and
knowledge--many on their own time and with their own resources--will
find far fewer vacancies available. The time-in-grade restriction is
just one more obstacle to prevent them from competing to use the new
skills they have worked hard to acquire, even though they meet OPM
qualification standards.

Coverage

Not all Federal employees are subject to the restriction. The
Whitten Amendment applied to both competitive and excepted employees in
GS positions. However, when the law expired in 1978, excepted employees
were released from its coverage because OPM's time-in-grade regulations
apply only to the competitive service. Other competitive service
employees under other pay plans, such as the wage grade system, also
are free of the restriction. Yet the lack of a time-in-grade
restriction has had no discernible adverse effect on these excepted and
wage grade positions. OPM's proposal would put competitive service
employees on an equal footing by allowing them to compete for
advancement based on their qualifications just as these other employees
do.

Qualifications
ans, such as the wage grade system, also
are free of the restriction. Yet the lack of a time-in-grade
restriction has had no discernible adverse effect on these excepted and
wage grade positions. OPM's proposal would put competitive service
employees on an equal footing by allowing them to compete for
advancement based on their qualifications just as these other employees
do.

Qualifications

Many of the commenters who disagreed with the proposal believed
that its abolishment would result in the promotion of employees who are
not qualified for their jobs. This is not true. When the time-in-grade
restriction was implemented in the 1950's, no effective means existed
to prevent employees from advancing rapidly through the grades. But
there is now in place a comprehensive qualification standards system
covering all General Schedule positions in the competitive service.
To qualify for most positions, an individual must have 1 year of
specialized experience equivalent in difficulty to the next lower grade
level, or equivalent education. Even without the time-in-grade
restriction, individuals must meet this specialized experience or
education requirement. Thus, this proposal would not result in the
hiring of unqualified persons. Nor would this proposal allow persons to
be placed in a higher grade position merely because of their
``potential'' and without the necessary qualifying background. In fact,
the only employees who could be promoted in less than 1 year are those
who have higher level experience from another job or qualifying
education.
Abolishment of time in grade simply means that employees may be
considered for any grade for which they meet the qualification
requirements, either through education or experience acquired in
Federal or any other work settings. Employees may compete in civil
service examinations without regard to time in grade, and this proposal
would enable them also to compete under internal merit promotion
procedures based on qualifications
means that employees may be
considered for any grade for which they meet the qualification
requirements, either through education or experience acquired in
Federal or any other work settings. Employees may compete in civil
service examinations without regard to time in grade, and this proposal
would enable them also to compete under internal merit promotion
procedures based on qualifications.
The time-in-grade restriction prevents that consideration, as with
individuals who take lower graded jobs when nothing else is available
and then find they are not allowed to apply for higher graded jobs for
which they are well qualified. Letters from individuals supporting the
proposed elimination provide other representative examples of how time
in grade inhibits employee advancement:

--An employee pursued Bachelors and Masters degrees while balancing
time as a student, mother, and Federal clerical employee in
positions up to GS-5, yet time in grade prevents her from competing
for the GS-9 professional positions for which she now qualifies.
--An employee whose agency has had a longstanding hiring freeze has
been detailed to a higher grade position for more than 1 year.
Although the employee is now qualified for a position two grades
higher, he meets time in grade only for positions one grade higher.
--A minority employee entered Government employment as a GS-9.
Despite two Masters degrees, a year and a half of law school, 10
years experience in executive positions at a private corporation,
service as adjunct instructor at a major university, and other
substantive experience, he was restricted by time in grade from
applying for managerial positions for which he qualified.
--A co-op student accepted a GS-4 clerical job when her agency
terminated its trainee program. Most jobs in her field start at GS-
7, for which she qualifies, but she is eligible only for GS-5
because of time in grade and will have to pursue a different line of
work
other
substantive experience, he was restricted by time in grade from
applying for managerial positions for which he qualified.
--A co-op student accepted a GS-4 clerical job when her agency
terminated its trainee program. Most jobs in her field start at GS-
7, for which she qualifies, but she is eligible only for GS-5
because of time in grade and will have to pursue a different line of
work.
--A retired military member with a degree and over 20 years of
experience took a Federal wage grade position. A debilitating
accident required him to accept a GS-4 position, and now time in
grade prevents him from applying for positions consistent with his
experience.

Impact on Minorities

Individual commenters and organizations representing minority
employees were concerned that eliminating time in grade would lead to
abuse and favoritism, with a negative impact on affirmative action and
equal employment opportunity. OPM does not believe that retention of
time in grade contributes to equality in the work place. Although
abolishing the restriction will not eliminate the ``glass ceiling,'' it
would be one more step toward eliminating artificial barriers to
employees advancement for minorities and nonminorities alike.

Promotions

Even without time in grade, agencies must continue to assure that
employees meet Governmentwide qualification standards to
be eligible for promotion, both competitive actions under the merit
promotion program and noncompetitive actions such as career ladder
promotions. Agencies also must continue to evaluate the relative
qualifications of candidates to determine the best-qualified applicants
under a competitive promotion action. Therefore, it is not necessary
for an agency to have any additional processes or systems in place
before implementing the abolishment of time in grade.
Many commenters focused on the impact of the proposal on career
ladder promotions
encies also must continue to evaluate the relative
qualifications of candidates to determine the best-qualified applicants
under a competitive promotion action. Therefore, it is not necessary
for an agency to have any additional processes or systems in place
before implementing the abolishment of time in grade.
Many commenters focused on the impact of the proposal on career
ladder promotions. Several thought employees in career ladders would
expect rapid advancement without time in grade and that managers could
be pressured into making rapid promotions. Again, we must stress that
career ladder promotions require an individual to have 1 year of
specialized experience equivalent in difficulty to the next lower grade
level or possess equivalent education.
Furthermore, agencies have the discretion to specify requirements
employees must meet for career ladder promotions, and many have done
so. Such requirements include, for example, the level of performance to
be met, the range of skills to be acquired, a finding that higher level
duties exist, and the availability of funds. Elimination of time in
grade will enable agencies to dispel the idea that promotion
automatically follows a period of time in grade and instead concentrate
on qualifications and the level of performance that is need for the
next higher level.
One employee union suggested that OPM consider whether to limit the
number of grades an employee could be promoted in a year. The current
regulation has such limits only on promotions up to GS-5 because
employees in grades GS-1 through GS-4 are not subject to the year in
grade requirement. OPM believes grade limits are not needed because
they too are arbitrary and disregard employee qualifications.
One employee union felt it would normally disrupt the work place to
a great degree if a lower graded employee were promoted over higher
graded employees
mits only on promotions up to GS-5 because
employees in grades GS-1 through GS-4 are not subject to the year in
grade requirement. OPM believes grade limits are not needed because
they too are arbitrary and disregard employee qualifications.
One employee union felt it would normally disrupt the work place to
a great degree if a lower graded employee were promoted over higher
graded employees. The union believes this should occur only when there
is a specific, identifiable, business-related reason which the agency
documents in writing. OPM's view is that managers must be prepared to
deal with the impact of selection decisions, such as when selecting an
individual from outside an immediate unit instead of an eligible
employee within the unit. The manager decide which qualified employee
is best able to carry out the duties of the position and must weigh
various effects of different options. Abolishment of time in grade
would not alter this responsibility.
Several commenters suggested managers hire workers at the grade
needed instead of, for example, hiring at the GS-5 level and later
promoting the employee to a GS-9. However, there may be instances where
a manager hires an employee at a lower level to save money or because
the manager feels the individual is not ready for the higher level. If
the funding level changes or the employee demonstrates good work, the
manager might want to promote the employee is less than 1 year. In
neither of these cases is there a merit system violation, and our
proposal would allow these employees to advance.

Violations
hires an employee at a lower level to save money or because
the manager feels the individual is not ready for the higher level. If
the funding level changes or the employee demonstrates good work, the
manager might want to promote the employee is less than 1 year. In
neither of these cases is there a merit system violation, and our
proposal would allow these employees to advance.

Violations

Some individuals, for personal reasons, must accept jobs lower than
their highest skill level and later will seek higher grade jobs.
However, it would be improper for an agency to hire someone at a lower
grade to avoid proper appointing procedures and then promote the
individual to the desired grade. For example, it would be improper to
appoint an individual to a clerical job because he or she is not
``within reach'' for appointment to a professional job, and then
promptly promote the person to the professional job. To prevent this, 5
CFR 330.501 prohibits the promotion of an employee within 90 days of a
new competitive appointment. OPM continues to enforce violations of
that provision and, in the absence of a time-in-grade rule, would
closely monitor agency actions for potential violations.
Other protections against potential abuse are the statutory merit
principles and prohibited personnel practices (5 U.S.C. 2301 and 2302)
in place since January 1979. For example, it is a prohibited personnel
practice for an agency official to grant any preference or advantage
not authorized by law, rule, or regulation to any employee or applicant
for the purpose of improving or injuring the prospects of any
particular person for employment (5 U.S.C. 2302(b)(6)). These statutory
provisions did not exist when the Whitten Amendment expired in 1978.
Alleged violations may be pursued through the independent Office of
Special Counsel, which is responsible for investigating allegations of
prohibited personnel practices and initiating corrective or
disciplinary action where warranted.

Training Agreements
rticular person for employment (5 U.S.C. 2302(b)(6)). These statutory
provisions did not exist when the Whitten Amendment expired in 1978.
Alleged violations may be pursued through the independent Office of
Special Counsel, which is responsible for investigating allegations of
prohibited personnel practices and initiating corrective or
disciplinary action where warranted.

Training Agreements

Agencies have long had the authority to establish training
agreements under which employees acquire qualifications at a faster
than normal rate. This proposal will have no impact on agencies'
continued use of training agreements. However, with abolishment of time
in grade, agencies no longer will need to obtain OPM approval of
training agreements that contain waivers of time in grade.
Training agreements are traditionally used for critical shortage
occupations at the entry level. These programs provide a valuable
recruitment incentive in filling positions where qualified applicants
are in extremely short supply.

E. Waivers

Several commenters recommended the time-in-grade restriction be
retained with authority to waive it in inequitable or hardship
situations or to promote an outstanding employee. Agencies currently
have waiver authority in inequitable or hardship situations. The
problem with this approach is that an employee is dependent on agency
management to seek a waiver when management needs it. Our proposed
elimination of the restriction would free employees to seek other
opportunities, in any agency, without being dependent on management's
waiver action. Also, because of the restriction, managers often are not
aware that lower graded employees may have higher level qualifications
and thus seek job candidates from outside the agency.

F. Bargaining Unit Employees
anagement needs it. Our proposed
elimination of the restriction would free employees to seek other
opportunities, in any agency, without being dependent on management's
waiver action. Also, because of the restriction, managers often are not
aware that lower graded employees may have higher level qualifications
and thus seek job candidates from outside the agency.

F. Bargaining Unit Employees

One employee union suggested that OPM should not allow agencies to
eliminate time in grade for nonbargaining unit employees while
continuing to apply it to those in bargaining units. OPM's proposal is
consistent with the National Partnership Council recommendations to
abolish the regulatory time-in-grade rule. Inasmuch as time in grade
has been a condition of employment for bargaining unit employees, the
Council recommended that it should remain in effect until the
bargaining unit parties (agency management and union) agree to modify
it either through consensus or collective bargaining. In other words,
OPM's elimination of the regulation would have no effect on bargaining
unit positions unless the parties agreed to modify or eliminate time in
grade.
OPM has no authority to require agencies to seek agreement with
unions, through consensus or collective bargaining, over time-in-grade
provisions or to prohibit agencies from implementing a
regulatory revision affecting nonbargaining unit positions.

G. Public Notice
regulation would have no effect on bargaining
unit positions unless the parties agreed to modify or eliminate time in
grade.
OPM has no authority to require agencies to seek agreement with
unions, through consensus or collective bargaining, over time-in-grade
provisions or to prohibit agencies from implementing a
regulatory revision affecting nonbargaining unit positions.

G. Public Notice

Many individual commenters asked that we ensure proper
dissemination of National Performance Review initiatives to all levels
of the work force to allow greater input and commentary. Some
commenters suggested that OPM's 60-day comment period on the initial
proposal appeared to be designed to restrict the number of comments and
commenters.
OPM's 60-day comment period is the standard open period for
receiving comments on proposed regulatory changes. As is our usual
practice required by law, OPM distributed the time-in-grade proposal to
agencies with instructions for public posting. OPM also made the
proposal available through its primary electronic bulletin board,
Mainstreet, at 202-606-4800. OPM issued a press release on the
proposal, and it was widely reported in the press. We are taking the
same steps with this notice. Furthermore, the recommendations of the
NPR and the National Partnership Council were widely reported in the
press and in newsletters that reach employees.

Authority: 5 U.S.C. secs. 552, 3301, 3302; E.O. 10577, 3 CFR,
1954-1958 Comp., page 218, unless otherwise noted.

Secs. 300.101 through 300.104 also issued under 5 U.S.C. secs.
7201, 7204, 7701; E.O. 11478, 3 CFR, 1966-1970 Comp., page 803.
Secs. 300.401 through 300.408 also issued under 5 U.S.C. secs.
1302(c), 2301, and 2302.
Secs. 300.501 through 300.507 also issued under 5 U.S.C.
1103(a)(5).)

Office of Personnel Management.
James B. King,
Director.
[FR Doc. 95-562 Filed 1-9-95; 8:45 am]
BILLING CODE 6325-01-M

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/FR_PRORULE_95-562. Check the current official text before relying on it. Not legal advice.