OPM is proposing to elevate performance above tenure and length of service in the RIF order of retention. Image: Andrii Yalanskyi/Shutterstock.com
By: FEDweek Staff
Following are key sections of a rules proposal from OPM to elevate performance ratings above length of service and veterans’ preference in RIF retention standing that address the major changes and a “statement of need.”
Note: The proposed regulations in their entirety are in the March 5 Federal Register.
Under current regulations at 5 CFR 351.501 (entitled “Order of retention – competitive service”), the order of retention for classifying competing employees on a retention register is (in descending order):
tenure of employment,
veterans’ preference,
length of service, and
performance.
Length of service is augmented by performance; an employee receives additional retention service credit (i.e., additional years of service) based on the employee’s applicable ratings of record. OPM is proposing to modify the order of retention to make performance ratings a more significant factor. The United States deserves a federal workforce that is high quality, efficient, and dedicated to the public interest. By elevating performance in the order of retention, the employees who are best contributing to the mission will be more likely to be retained during restructuring.
In proposing to place performance and veterans’ preference ahead of tenure and length of service in determining retention standing, OPM is also guided by the experience of the Department of Defense (DOD). Section 1101 of the National Defense Authorization Act (NDAA) for Fiscal Year 2016 (Pub. L. 114-92), enacted on November 25, 2015, directed that the Secretary of Defense establish procedures to provide that, in any reduction in force of civilian positions in the competitive or excepted service, the order of retention will be based primarily on performance.
In implementing this statutory mandate, DOD implemented procedures for RIFs that placed performance ahead of tenure, veterans’ preference, and length of service.
The operative statute was amended in December 2021 to remove the directive that employee performance be the “primary” factor in determining which employees are to be separated by a RIF—instead, it is one factor that the Secretary may consider. See 10 U.S.C. 1597(e). However, DOD has continued to adhere to a performance-first system for determining which employees are separated in a RIF, as DOD believes that prioritizing performance over tenure and other factors in RIFs supports mission readiness and a high-performing workforce.
OPM has studied DOD’s procedures and, while it does not adopt them in whole, it is convinced by DOD’s experience that prioritizing performance is the right approach and that a performance-first approach is facilitated by prioritizing performance ratings, as augmented by veteran’s preference, ahead of tenure and length of service in determining RIF retention standing.
Under the current regulations at 5 CFR 351.504, credit for performance is used to supplement an employee’s length of service for purposes of determining an employee’s standing on a retention register (both of these retention factors are expressed in years). An employee receives additional retention service credit based on his or her performance as reflected in up to three ratings of record and their assigned summary levels received within the last four years. This additional credit is added to the employee’s length of service to determine that employee’s retention standing within the employee’s appropriate tenure group and veterans’ preference subgroup.
The additional credit for performance is: 20 additional years of service for each rating of record with a Level 5 (Outstanding or equivalent) summary level; 16 additional years of service for each rating of record with a Level 4 (Exceeds Fully Successful or equivalent) summary level; and 12 additional years of service for each rating of record with a Level 3 (Fully Successful or equivalent) summary level, in accordance with the summary levels described in 5 CFR 430.208. The additional years of service are added together, divided by 3, and rounded up to a whole number, if necessary, to determine the number of years that will be used to adjust an employee’s actual service computation date and arrive at an adjusted service computation date for RIF purposes.
OPM is proposing to elevate performance above tenure and length of service in the RIF order of retention.
Under this proposal, employees competing in a RIF will first be sorted into: their appropriate tenure group (competitive service versus excepted service); then within each tenure group, by performance in descending order based on values assigned for the employee’s three most recent ratings of record (i.e., performance credit—see discussion of proposed § 351.503). Then, performance credits would be augmented by additional points based on veterans’ preference, as discussed in proposed § 351.504. Where two employees have the same performance credit, as augmented by veterans’ preference, the tie would be broken according to which employee is in the higher tenure subgroup (with subgroup I ranked ahead of subgroup II).
If the employees are still tied, the tie would be broken based on length of service based on each employee’s actual service computation date. Thus, length of service will be used as a tie-breaker for employees with the same performance credit (as augmented by veterans’ preference) and in the same tenure group and subgroup.
Statement of Need
The proposed changes are needed because current RIF rules are outdated and no longer address the needs of agencies in the twenty first century.
The current regulatory framework has been in place since the middle of the twentieth century with few modifications since then. The current rules have become cumbersome and inefficient.
The proposed changes offer a more streamlined RIF structure that emphasizes performance over other factors in the downsizing process. These changes promote the general principle that employees should be retained on the basis of merit.
The proposed changes incorporate this principle, which will assist Federal agencies in retaining their best performing employees when conducting RIF actions. Agency missions and the workers they employ to carry out these missions have become more complex since the mid-twentieth century when the current rules were developed. So have the positions agencies seek to fill to meet these changing needs.
The skill sets of many existing positions have changed, and new positions addressing rapidly evolving skills, such as those for scientific and technical positions, have emerged. At the same time, organizational structures within agencies have evolved. Moreso than ever before, many organizations are characterized by multiple funding sources, complex supervisory and oversight structures, and employees serving on a variety of work schedules and under a number of different hiring authorities.
Competition to recruit the most in-demand talent and then retain top performers possessing this talent has never been tighter.
Oftentimes, doing so comes at considerable agency investment in recruiting and then developing this talent.
The current RIF rules, however, have not kept pace with these needs and changes. The proposed rules would also allow agencies more flexibility in moving functions internally without also reassigning employees, and in furloughing employees. Current rules impose unnecessary burdens and requirements and do not allow for the flexibility that many agencies need.
Retirement Application Processing Backlog Nearly Doubles in Four Months
Arrival of Schedule P/C Spurs Renewed Legal Challenges
OPM Revives Plan to Increase Role of Performance Ratings in RIFs
See also,
Where Should I Put My TSP in Retirement
How Long Will it Take OPM to Process My Retirement and Pay My Pension
Why Standard Social Security Optimization Falls Short for Federal Employees
The Retirement Math Gap: Why Your Current Estimates are Wrong
How Withdrawal Order Affects Taxes for Federal Retirees