August 18, 2006

Pentagon plans shift of blue-collar workers to new pay system

By Karen Rutzick
Source: GovExec.com
Officials at the Pentagon are in the early stages of retooling the department's new personnel system to cover blue-collar employees -- behind-the-scenes work that continues despite legal setbacks to the labor relations portion of the department's reforms.

The Defense Department started work this summer on a new set of rules it may publish to transfer 140,000 blue-collar employees currently in the Federal Wage System into the National Security Personnel System, an NSPS spokeswoman said. These employees, who are tradesmen, craftsmen and laborers such as pipe fitters and shipbuilders, will make up the second broad layer, called Spiral 2, of the NSPS.

The plans for the transition continue despite a federal court ruling in the spring that blocked the Pentagon's proposed labor relations system and stalled pay changes for employees covered by collective bargaining agreements. NSPS, which is expected to cover 700,000 civilian Defense employees eventually, is under review by an appellate court.

 

August 16, 2006

DHS ELECTS NOT TO APPEAL MAXHR DECISION TO D.C. APPEALS COURT
Source: Fednews-online

If the legal battle over the Department of Homeland Security's personnel system continues, it will go before the United States Supreme Court.

DHS had until midnight Friday, Aug. 11, to file an appeal with the U.S. Court of Appeals for the District of Columbia Circuit. The D.C. Circuit blocked MaxHR's labor relations component. (See DHS HUDDLING WITH OPM, DOJ ON MAXHR OPTIONS at http://www.fednews-online.com/?publicationId=9394.)

The ruling did not affect other aspects of the personnel system and DHS will continue to implement the pay-for-performance and performance management components, said DHS spokesperson Larry Orluskie.

DHS and the National Treasury Employees Union have fought a legal battle over MaxHR since August 2005, when Judge Rosemary Collyer ruled that the system violated collective bargaining rights and that the new system illegally extended the Federal Labor Relations Authority's jurisdiction. (See DHS, NTEU IN COURT TODAY at http://www.fednews-online.com/?publicationId=9056.)

The Department has not decided if it will ask the Supreme Court to review the case. DHS has until Sept. 25 to petition the Court.

August 14, 2006

Perhaps Worst A-76 Privatization Review Ever Can Still Be Killed—With Your Help!

Senators Barbara Mikulski (MD) and Paul Sarbanes (MD) will offer an amendment to the Senate FY07 Defense Appropriations Bill when that funding measure is considered by the Senate on September 5 to kill what many observers believe to the worst OMB Circular A-76 privatization review ever.

Even if you are not directly adversely affected, please take the time to urge your Senators to support the Mikulski-Sarbanes Amendment. The feeling among contracting out experts is if the agency is able to get away with this botched and biased A-76 review, then anything is possible. So be thankful it’s not happening to you, but don’t ever forget that you could be next. Fortunately, the House of Representatives has already added the language in the Mikulski-Sarbanes Amendment to the House version of the Defense Appropriations Bill.

The victims of this A-76 privatization review are 350 older, blue-collar, overwhelmingly African-American employees of the Department of the Army, many of them veterans. In September 2004, the Army decided that these employees should continue performing base operations support services at the Walter Reed Army Medical Center, in Washington, DC.

However, in January 2006, the Army reversed course and decided to contract out their work.
This privatization review

1. is so expensive that the costs of conducting it are now in excess of any promised savings.
2. is so unfair to the employees that the Deputy Garrison Commander asked the affected employees’ union in writing to pay for outside counsel to appeal the January 2006 decision to contract out to the Government Accountability Office.
3. is so problematic that the Garrison Commander wanted to conduct further research and cost comparisons three months after the January 2006 decision to contract out—but was instructed not to do so by the Army.
4. has been so botched—the original solicitation was amended 16 times and the last such amendment included 1,500 changes—that the Army asked the Pentagon for permission to shut it down—but was mysteriously refused this request.
5. is so old that it actually began in the Clinton Administration, in June 2000.
6. is so clearly illegal. While it was conducted, the Defense Appropriations Bills first limited the length of A-76 reviews to 48 months and then to 30 months, in order to hold down the often significant costs of the A-76 process, which leaves the Walter Reed A-76 privatization review in clear defiance of the Anti-Deficiency Act.

A fact sheet has been attached to this article if you need additional information. If you have questions, please contact John Threlkeld in AFGE’s Legislative Department at (202) 639-6413 / threlj@afge.org.
Click here to tell your Senators by email to support the Mikulski-Sarbanes Amendment.

August 14, 2006

Big Vote Coming Up In Senate In September On Protecting Retirement Benefits And Fighting Back Against Contracting Out

The Senate will vote on September 5 on the bipartisan Kennedy-Hatch Amendment to the FY07 Defense Appropriations Bill. All AFGE Activists should urge their Senators to support the bipartisan Kennedy-Hatch Amendment when it is considered later this week.

We all know that contractors get a big advantage in the cost comparison process by providing their employees with bad retirement benefits—or even none at all—compared to what the federal government is required to provide for federal employees.

Well, the bipartisan Kennedy-Hatch Amendment would exclude retirement costs from the cost comparison process, making privatization reviews less unfair to federal employees. No longer would the Department of Defense (DoD) actually reward contractors for providing inadequate retirement benefits and no longer would the privatization process be used by DoD to increase the number of working Americans without adequate retirement benefits. And at a time when defined benefit retirement plans are under fierce attacks from both Corporate America and the Bush Administration, AFGE Activists can fight back for federal employees and all working Americans.

The bipartisan Kennedy-Hatch Amendment is particularly important for civilian employees, as DoD is reviewing for privatization in FY06 eight times the number of employees as it did during the previous year. And the number of civilian employees targeted for privatization in FY07 will be even greater. Employees in non-DoD agencies should urge their Senators to support the bipartisan Kennedy-Hatch Amendment because if we can get it into law for DoD, the agency that does two-thirds of all service contracting, we’ll eventually get it into law for the rest of the federal government.

Please urge your Senators to support the bipartisan Kennedy-Hatch Amendment to the FY07 Defense Appropriations Bill by clicking here to contact them. A detailed fact sheet has been attached to this article. If you have any questions, please contact John Threlkeld in AFGE’s Legislative Department at (202) 639-6466 / threlj@afge.org

 

August 14, 2006

OPM’s new overtime plan. Extra pay wouldn’t be automatic for most GS employees
Source: FedTimes.com
By TIM KAUFFMAN

Two years ago, the Labor Department overhauled the rules that determine who is eligible for overtime pay. Unions shrieked, warning that millions of employees would be excluded from time-and-a-half pay for working extra hours. And managers scurried for answers on how the changes would affect their staffs and payroll budgets.

Now federal employees will soon fall under similar rules.
Should federal managers and employees be concerned? Perhaps. Will they see a big impact because of the changes? Probably not.

Experts say a tiny fraction of the 1.8 million federal employees covered by the regulations will see any change under the rules.

For federal managers, the biggest impact will be having to field employee questions about who’s affected or not, and why.
 
Who’s affected
About 50,000 low-grade General Schedule employees will no longer automatically qualify for overtime pay under the Fair Labor Standards Act. The proposed rules would change the threshold for deciding who’s automatically eligible for overtime, from a grade level (Grade 4 and below) to a salary level ($23,660 and below). Of the 67,000 employees who rank GS-4 or below, about 75 percent earn more than the proposed salary threshold and would no longer be automatically eligible.

But pay is not the only factor in determining overtime eligibility. Generally, an employee would continue to receive overtime pay unless he or she is a supervisor or manager, or performs high-level administrative tasks without direct supervision, or is in a professional job that requires specific degrees or advanced training.

“It might be tempest in a teapot in that you’re unlikely to qualify [for the overtime exemption] in the duties test at such low grade levels,” said a union attorney who litigates overtime cases. The attorney asked not to be identified because she was not authorized to speak on behalf of the union.

For its part, the Office of Personnel Management declined requests to discuss the proposed rule, except to say that the number of employees who would be affected by the rule changes would be “quite small.” It also declined to make the public comments on the proposed rules available for review.

Even if an employee is no longer eligible for overtime under the Fair Labor Standards Act because of the rule changes, he or she still could be eligible under a different authority — Title 5 of the U.S. Code, the rulebook that governs federal personnel. Title 5 overtime — which, unlike FLSA overtime, requires preapproval from a supervisor and which limits time-and-a-half pay to those at GS-10 or below — will not change.

Some employees farther up the pay scale who currently are eligible for overtime could become ineligible under the proposed rules, while some who are now ineligible may discover they qualify for overtime. Such changes likely will affect few employees, if recent history is any indicator.

“We saw very little change,” said Mike Aitken, director of governmental affairs for the Society of Human Resources Management (SHRM), which studied the impact of the Labor Department’s revised overtime rules that took effect two years ago. “There were stories being written by everybody, saying as many as 8 million people were going to lose overtime, and those stories have not borne out to being anywhere close to the truth.”

Many of the employees who could be affected by the change work in various clerical, medical and technical support positions across government, including in the Defense Department, IRS, Census Bureau and Veterans Affairs Department.

IRS, for instance, employs a quarter of all employees at GS-4 and below. Most are clerks, data transcribers and mailroom operators.

And the Veterans Health Administration employs almost 13 percent of employees in those grades, mostly as nursing assistants or clerical staff. Neither IRS nor VA responded to a request for comment.

Grade vs. salary test
The two largest federal unions — the American Federation of Government Employees and the National Treasury Employees Union — both oppose moving from a grade-based test to a salary-based test because they say it will lead to disparate treatment of employees based on where they live.

Employees at GS-2, Step 5, in the Washington area exceed the minimum $23,600 salary. In New York, the cutoff would be GS-2, Step 2. Employees in San Francisco, which has the highest locality pay in the country, would lose their automatic coverage at GS-1, Step 5.

Unions also complain the salary threshold will not be adjusted from year to year for inflation or other circumstances, so employees gradually will lose their automatic overtime eligibility as their pay increases.

“There clearly is no logic in adopting a dollar-figure test that results in such disparate treatment depending on an employee’s location,” NTEU President Colleen Kelley said.

OPM previously rejected moving to a specific salary, which the Labor Department always has used, because “such routine actions as within-grade increases and yearly comparability increases could affect an employee’s exemption status,” according to a 1986 overtime rule from OPM.

Kelley said it makes no sense for OPM to reverse course now.

“Having previously rejected a minimum-salary test as ill-suited for use with the government’s classification system, OPM cannot now adopt such a test without even attempting to explain why harmonizing with DOL’s rule suddenly makes sense,” NTEU said in its prepared comments to OPM.

No more ‘80 percent test’
The changes also could make it harder for some employees above GS-5 to qualify for overtime.
The proposed rules would abandon a requirement that employees at GS-5 and GS-6 must spend at least 80 percent of their time on executive, administrative or professional duties to be declared ineligible for overtime. Those employees would be treated no differently than employees at higher pay grades, who are ineligible for overtime if they spend more than 50 percent of their time on such duties.

OPM has little choice but to get rid of this requirement, called the 80 percent test, since Labor abandoned it in its final regulations, experts note. OPM can deviate from Labor policy only when following the policy would create conflict with existing federal pay and classification laws.

Administrative exemption
The overtime exemption for administrative workers would be broadened. Currently, administrative employees are excluded from overtime pay if they formulate or affect management policies or operating practices. The new rules would expand that definition to exclude employees who interpret or implement such policies. The change, said AFGE in its comments to OPM, “broadens the term to the point that it could encompass any employee who carries out management policy.”
The exemption also would cover employees who lead project teams, even if they do not have supervisory responsibility over team members. This exemption could apply to employees who lead teams that conduct acquisitions, negotiate real estate deals or collective bargaining agreements, design and carry out productivity improvements, conduct program reviews or lead investigations.

Professional exemption
OPM left unchanged another overtime exemption that affects professional employees. That exemption prohibits overtime to employees whose work requires at least a bachelor’s degree specific to the field or who have specialized education or training and experience. However, the proposed rule changes would allow for additional jobs to be excluded from overtime when an advanced specialized degree, specialized curriculum or certification program becomes a standard requirement for a particular occupation.

AFGE argues that this addition would allow management to exclude more employees from overtime whenever a school creates a new advanced degree for a profession. AFGE said such exclusions should be limited to situations in which a job has been significantly redefined.

Executive exemption
OPM’s rule changes would expand the so-called executive exemption to include those who exercise executive discretion occasionally, rather than day to day as currently required.

Attorney Michael Harris, who specializes in labor and employment law as a partner at Harris Dowell Fisher & Harris in Chesterfield, Mo., said the rewritten executive exemption actually would make it more difficult to be considered an executive. Previously, employees could meet the executive exemption even if they didn’t have the right to hire or fire employees or effectively recommend hiring or firing employees. The new rules clarify that employees without that authority, such as first-line supervisors, can’t be disqualified from overtime under the executive exemption.

Many managers unaware
Managers contacted by Federal Times mostly were unaware that OPM was changing overtime rules. Most who had some knowledge of the proposed changes said they perceived little impact on their employees. The Federal Managers Association, for instance, which represents the nearly 200,000 middle managers and supervisors, opted not to submit comments on the proposed changes.

OPM is updating the overtime rules to bring them in compliance with changes the Labor Department made in 2004 to the Fair Labor Standards Act. Before the 2004 revisions, the act hadn’t been updated in decades.

The changes were designed to update the minimum earnings test to reflect current salaries, update the duties exclusions to reflect workplace changes and judicial rulings, and make the regulations easier to understand, Labor said in issuing the final rules.

It is unclear from OPM’s proposed rules whether managers would be able to increase salaries for employees who will no longer be eligible for overtime as a way to compensate them for the lost income.

This was a common practice used by many non-federal managers to cushion the blow for employees who became ineligible for overtime under the Labor Department rule changes, SHRM’s Aitken said.

AUGUST 10, 2006

JOHN GAGE WINS SECOND TERM AS PRESIDENT OF NATION’S LARGEST FEDERAL AND DC GOVERNMENT WORKERS UNION

J. David Cox Elected Secretary-Treasurer; Andrea Brooks NVP, Women’s and Fair Practices
 (ATLANTA)—Calling for an emphasis on unity, John Gage today was sworn in for a second term as president of the American Federation of Government Employees (AFGE), the nation’s largest union representing federal and DC government employees.  

 “There is much to do on behalf of federal workers in anti-worker administration,” Gage told convention delegates after the swearing in ceremony. “It’s our turn.  Our focus is now on the November 7 congressional elections. We plan to help elect a Congress with men and women who are actually responsive to the needs of the American people, particularly the nation’s working families,” he added.

 The new National Secretary-Treasurer (NST) is J. David Cox, formerly the first vice president of the union’s National Veterans Affairs Council (NVAC).   During his acceptance speech, Cox appealed to delegates to make a commitment to make AFGE a leader in the labor movement. “This union is great and has the capacity to be even greater.” Cox said.

Andrea Brooks was elected to another term as National Vice President, Women’s and Fair Practices, and told convention delegates that “the best is yet to come.” She also asked that AFGE members focus on “hope, positive thinking and action.”

 

AUGUST 1, 2006

VBA EMPLOYEES SPEAK OUT AGAINST PROBLEMS AT DEPT. OF VETERANS AFFAIRS DURING NATIONAL TOWN HALL MEETINGS AFGE Mobilizes VBA Employees to Voice Concerns to Benefits Commission Washington — American Federation of Government Employees (AFGE) members who work for the Department of Veterans Affairs’ (VA) Veterans Benefits Administration (VBA) are decrying staffing shortages, inadequate training, contracting out and other problems during a series of nationwide town hall meetings held by the Veterans’ Benefits Disability Compensation Commission. The commission is an independent, bipartisan body created to study the benefits and services intended to compensate and assist disabled veterans, service members and their survivors for disabilities and deaths attributable to the military. Its members are appointed by the president and leaders of Congress. “Given that we weren’t invited to testify at these meetings, it was important to mobilize VBA employees nationwide to ensure that the commission heard from people in the trenches,” said Marilyn Park, an AFGE legislative representative. “These employees need to have a stronger voice in VBA policy decisions because they know the best way to get the job done.” Since February, the commission has held town hall meetings in various cities including Tampa, Fla., San Antonio, Chicago, San Diego, Seattle and Washington, D.C. Boston and Atlanta will host meetings later this year. During the meetings, VBA employees have used the public comment periods to decry staffing and training problems, an overall lack of resources, contracting out, and efforts to link VA disability with Social Security disability. “There’s a concern about contracting out jobs,” Kathleen Hurst, an AFGE member employed at the VBA, told the commission at its San Diego meeting. “When you contract out, the contractor’s goal is to get the biggest bang for the buck. These aren’t just claims or cases we are talking about, they’re veterans. VA and VBA employees are passionate about their commitment to grant benefits to veterans in a timely fashion.” The commission’s charter to conduct its study will end on Oct. 1, 2007. Once its work is complete, the commission will produce a report summarizing its findings. “AFGE is deeply committed to veterans’ issues,” said Park. “We hope the commission will take our concerns as seriously as we take our commitment to veterans.” ### The American Federation of Government Employees (AFGE) is the largest federal employee union, representing 600,000 workers in the federal government and the government of the District of Columbia.