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.
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?
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.
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The grade that someone converts back to should be the grade that their position description grades out to. So, if this person was a GS-13, converted to a YA-2 in NSPS, remained in the same position with no change in duties, then they should have converted back to the “legacy position description” which would have been the GS-13. Otherwise, the duties of the job did change and they classified the duties to a GS-12 when converting out of NSPS. Either way, this person should be on a classified GS position description which is graded by the OPM standards.