Ask The Lawyer

By Debra Roth

Q & A Session – NSPS to GS Conversion Promotion Opportunities

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

Prior to the conversion to NSPS, I was a GS-12 and during my time as an NSPS employee I was grade YC-02. However, when I was converted back to GS I was returned to my prior GS-12 grade but my pay had reached GS-14, step 4. What grades am I eligible to apply for?

A:

The answer to this question depends on what the vacancy announcement requires and the level of experience you have had. If you have only had experience at the GS-12 level, and the vacancy announcement for a GS-13 requires GS-12 experience, you may apply. If a GS-14 requires GS-13 experience, you may not apply.

 

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

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Q & A Session – NSPS Conversion to Lower Grade

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

I was formerly a GS-13 and then served under NSPS. However, I have converted back to the General Schedule retaining the same job and duties, but am now a GS-12. Is this correct? What are my options?

A:

According to 5 C.F.R. § 9901.372(d)(1)(v), “an employee’s virtual GS grade may not be less than the permanently assigned GS grade the employee held upon conversion into NSPS (for an employee who was converted as described in § 9901.371), unless, since that time, the employee has undergone: (A) A voluntary reduction in band or reduction in base salary; (B) An involuntary reduction in band or reduction in base salary based on unacceptable performance and/or conduct; or (C) A reduction in band based on a reduction in force (RIF) or classification action.”

I believe this language leads many converting employees to believe that their GS grade cannot be lower than the GS grade they held when converting into the NSPS. However, this virtual GS grade is not directly used in determining a new grade. Instead, it is a tool in determining your new GS salary (accounting for locality pay, specialty pay and related payments).

The legal question here is whether or not you earn at least as much as you did under the NSPS. If your total GS-12 pay (including pay retention, if you receive it) is in line with your YD-02 pay, then you may have been transitioning properly.

Unfortunately your prior grade is not necessarily retained. As 5 C.F.R. § 9901.372 (b)(ii) explains, “grade retention is not applicable to NSPS employees who convert or move to a GS position.” Instead, it is your pay that is protected.

If you are not satisfied with your grade and step, you may request a desk audit. A desk audit will review your duties as well as the complexities and expectations of your job to see if you should be placed in a different grade. You should be aware, however, that desk audits tend to scrutinize and can even result in a reduced grade. They do not usually result in a grade increase.

You may also attempt to transfer to a new position in the federal government. Your prior experience as a GS-13 might make you a desirable candidate for related positions grade as GS-13 or even higher.

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

 

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Q & A Session – NSPS Conversion to GS Misclassification

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

To took a promotion to the GS system out of the NSPS system. I was assigned step 1, which is not where I would have been if I had remained GS throughout my career. This affects my CSRS “high three” computation, as well as my final years of federal service. The Merit Systems Protection Board said they had no jurisdiction in 2008 and the Office of Special Counsel concurred. What are my options?

A:

Because your case has been fully litigated, I doubt you could relitigate it as class action. Generally speaking, there is not remedy beyond an agency or OPM classification appeal for an equal pay claim based upon a misclassification or an argument that is based on a misclassification. The obvious exception is an EEO claim. Generally speaking, merit system principles are not self-executing. Instead, one has to challenge a law or rule that implements a merit system principle. Even then, that’s not all you have. Most likely, you are at the mercy of the prosecutorial discretion of the U.S. Office of Special Counsel.

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

 

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Q & A Session – NSPS Salary Increase Restriction

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

Is DoD’s action to restrict certain employees from receiving a NSPS salary increase consistent with merit system principles?

A:

With the salary freeze, it is a tough time for all federal employees, particularly those in pay for performance systems. My understanding is that so long as you don’t lose pay the NSPS conversion is at the discretion of DoD.

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

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Q & A Session – Qualified for GS-14 Position?

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

I was under NSPS and have been converted back to the General Schedule as a GS-12. I am receiving retained pay because under NSPS I was the equivalent of a GS-13. I would like to apply for a newly created GS-14 position. I have been certified as fully qualified, but want to know if there is a basis to appeal the decision?

A:

Your question is unclear.

Were you denied the position because you were found unqualified for the GS-14 because you lacked 52 weeks as the GS-13? If so, you have to convince the hiring authority that you did have the GS-13 experience under NSPS. That might be difficult to do, and your remedies are limited. You can file a grievance. If you can prove illegal discrimination EEO might work. If you can show a violation of the merit promotion plan, you might seek help from the U.S. Office of Special Counsel.

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

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Q & A Session – Base Pay Reduction

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

During the NSPS to GS conversion in June 2010, my base pay was reduced 10%. The reduction in base pay was not administrative or voluntary. Is this legal?

A:

If your base salary was reduced, you may have an MSPB appeal right. You might consider consulting an attorney or filing an MSPB appeal on your own to raise the issue. Non-probationary employees who have their base pay reduced are entitled to due process.

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

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Q & A Session – Temporary Promotion

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

I moved from a nonsupervisory position to a supervisory position for about 10 months and then was returned to my original assigned position after my request. I have asked for temporary promotion pay. Should my agency pay compensation for the detail to a higher graded position?

A:

Because you served in a higher pay band on your detail and that would equate to a temporary promotion, it appears that your pay for that period of time was supposed to increase by a minimum of 6%, and up to 20% with management approval.  Your base salary then should have reverted to the salary of your permanent position upon termination of the detail.

Agencies are not required to officially document details under NSPS unless the detail exceeds one year, crosses component and/or agency lines, assigns an employee from NSPS to another pay system within the component (i.e., NSPS to General Schedule), or documents developmental rotational assignments or deployment.  Although NSPS does not require a detail to be documented solely because it goes beyond 180 days, individual components may have such a requirement in those circumstances and so you would need to check with yours.

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

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Q&A Session – NSPS Pay Retention

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

With the transition back to the General Schedule (GS) from the National Security Personnel System (NSPS), can they lower the grade level or pay of the employee?

A:

The conversion from NSPS back to the General Schedule has caused a great deal of confusion. Employees are supposed to be moved from their NSPS designation to a GS position with the equivalent duties and responsibilities. An employee is not supposed to see a decrease in pay. However, if you were making a salary under NSPS that is higher than the GS salary for your converted position, you will be placed under pay retention – which means you will not be eligible for full salary adjustments until the General Schedule catches up. Your supervisor and HR specialist should be able to discuss your specific situation.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

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Q&A Session: NSPS Transition and Pay

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

I was reassigned to NSPS (the National Security Personnel System at the Department of Defense) from a GS-7 position. On the conversion back from NSPS to the General Schedule (GS), I am now a GS-9, step 1. If NSPS had never been established, I would have been a GS-9, step 2 by now and receiving that compensation level.

The 2010 National Defense Authorization Act, which repealed NSPS, states that employees should be converted from NSPS back to the “statutory pay system and all other aspects of the personnel system that last applied to such an employee.” Wouldn’t my personal pay and grade fall into this? Shouldn’t I get back pay, step increases and the time I have worked in my position credited as a GS-9? There are quite a few people who were reassigned into NSPS and not promoted.

A:

You are asking a complicated question and the answer is not known. Many people will lose out with the conversion back to the GS from NSPS. DoD has promised that no one will lose pay, but many will be in a less advantageous position. Whether a court would be open to providing relief to these disadvantaged NSPS converts is unknown. But the issue may very well be viewed negatively unless an employee can show an actual loss of salary.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

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