U.S. Office of Personnel ManagementVariations 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 DateSend comments to eswebmaster@opm.gov
Updated 7 May 1998