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U.S. Office of Personnel Management

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:

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:

Before asking for a variation, the agency must go through the following steps:

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

Notices By Subject



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Updated 7 May 1998