On December 29, 2015, the Office of Personnel Management (OPM) issued guidance on implementation of the Land Management Workforce flexibility Act (LMWFA). In a subsequent release, NFFE expressed concerns about the guidance and provided some advice to employees. In the weeks following OPM’s issued guidance, NFFE has worked to have our concerns addressed by OPM.
As stated in the Congressional Record by Representative Gerry Connolly, the Act’s House sponsor, the LMWFA was enacted to provide long-serving and successful temporary seasonal employees of land management agencies “with the same career advancement opportunities available to all other Federal employees.” NFFE’s biggest concern with OPM’s guidance is that it fails to fulfill this clear statement of legislative intent. The guidance limits positions to which eligible temporary employees may apply to those which are otherwise open only to the employing agency’s internal workforce. In other words, they are banned from competing for merit vacancies open to all federal employees.
Other Federal employees are not subject to this ban. The guidance is therefore inconsistent with legislative intent. When this happens, there are two possibilities. One is that the legislative language is so badly flawed that it forces an interpretation that is contrary to legislative intent, in which case a legislative fix would be required. The second is that legislative language is clear or at least can be interpreted to be consistent with legislative intent, but is simply being inaccurately interpreted. There is no third possibility.
After careful study, it is NFFE’s firm belief that the many Congressional staff who worked on the bill – staff from the offices of Representative Connolly, Senator Tester (the Act’s Senate sponsor), the House Oversight and Government Reform Committee, and the Senate Homeland Security and Government Reform Committee – drafted a law whose plain language is consistent with the clearly-stated legislative intent. In an effort to provide clarity on this point, NFFE has shared this analysis
with OPM and with the aforementioned Congressional offices. NFFE will continue to reach out to these sources to work toward an accurate and proper implementation of the LMWFA.
One highlight of OPM’s guidance is the statement “OPM encourages agencies using merit promotion procedures to… apply the Act in accordance with its terms and the discussion in this document.” Accordingly, NFFE strongly supports this language and urges the Forest Service and other land management agencies to implement the LMWFA immediately. Under the current guidance, opportunities remain limited and are at odds with the legislative intent of the LMWFA. However, limited-opportunity implementation is better than no implementation and no opportunity at all. Guidance, on this core concern as well as on other operational details, can always be improved after implementation. Immediate implementation would allow Forest Service employees, for example, to immediately begin applying for Forest Service vacancies open only to Forest Service employees.
Meanwhile, there are things that union officials and employees can do to be in a position to take advantage of the new opportunities that the LMWFA will provide, even under the flawed guidance. NFFE Forest Service Council union officials are reminded that the Merit Promotion Plan MOU states that merit promotion vacancies will generally be open only to Forest Service employees. OPM’s guidance in its current form makes enforcement of this provision especially crucial, as under it eligible temporary employees can apply to such vacancies but would be banned from applying to any that are open government-wide.
In addition, temporary or term employees who might wish to apply for a permanent job in the future are reminded that the guidance in its current form requires them to document their periods of employment and performance for all time going toward the 24 months required for eligibility. Because the time required to collect this documentation might be greater than the time for which that next good job will be open, such employees are advised to begin collecting their documentation now.