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 am a GS-08 employee in the federal government. Several months ago, my agency recruited employees under the Federal Career Intern Program (FCIP) and many recruits were brought in using the Veteran’s Recruitment Appointment (VRA). I was offered entrance into the program. I was informed that since I am currently in the government system, I would be brought in as a GS-05, step 10. I think I may have been entitled to pay retention. Can they deny me retained pay?
A:
Your question does not provide sufficient information to allow me to respond with a concrete answer. It is unclear to me whether you are, for instance, a permanent federal employee or a temporary employee, or if you were presented with the GS-05 position because you applied under a career intern program or a veteran’s recruitment program.
However, given that you are a GS-08 and applied for a GS-05 position, I suspect you might be a term or temporary employee. If so, it should be noted that temporary or term employees are not entitled to pay retention. See 5 CFR § 536.102.
Generally, permanent employees are entitled to pay retention for a reduction in grade when the reduction in grade is based on a “management action,” and the reduction in grade is not for cause (such as poor performance or misconduct). Generally, a change in grade made pursuant to an employee’s request, such as a requested transfer, is not eligible for pay retention. A major exception to this rule, however, is that recruitments made under a “formal employee development program” are considered to be a “management action.” See 5 CFR § 536.103; 5 CFR § 536.301-536.306. Thus, if you were a permanent employee recruited for the GS-05 position under FCIP or VRA (as I suspect you may have been given that you say you were “offered entrance into the program”), I believe there is a good chance you are eligible for pay retention.
Bill Bransford is managing partner of Shaw Bransford & Roth PC.
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