Performing above your grade level

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A recent decision issued by the U.S. Court of Appeals for the Federal Circuit, the federal appeals court that decides employee appeals from the Merit Systems Protection Board, made me think about a long-standing belief held by federal employees that it is illegal for their employer to require them to perform job duties above their grade level. It’s not per se illegal, although there are some processes by which a federal worker could be compensated at the higher grade level.

First, under Office of Personnel Management regulations, an agency may make a noncompetitive, time-limited (120-day) promotion to accomplish temporary mission needs.  During that temporary promotion the employee is paid at the higher grade.

Second, if you believe you are regularly asked to perform duties that are outside the scope of your grade, job series and title, there is a “desk audit” procedure. This is a procedure by which you may be able to have the position description you occupy upgraded, although this rarely occurs. The duties of the position you occupy are evaluated to determine whether an upgrade is warranted in terms of grade, title or classification series. A desk audit is also referred to as a classification appeal.

The process starts with a review by your human resources office. If the outcome is against you, there is a procedure to appeal to OPM. The decision by OPM is final and there is no other appeal. That said, be careful what you ask for. Almost all desk audits do not result in an upgrade of position. Your management can simply remove the job duties before or after the desk audit. I’ve seen an employee succeed in having human resources conduct a desk audit that finds the duties being performed are at the higher grade level, but then management took away those duties to avoid having to promote the employee.

Third, if you want to be relieved of the duties, you could file a grievance, assuming your agency grievance procedures allow it on the issue of assignment of duties. In such a grievance, you would identify which duties you believe are above your grade level and ask that those be removed.

The recent court of appeals decision involved an employee who was temporarily promoted. On completion of the temporary promotion, he claimed that management continued to have him perform the duties of the higher-graded position. He filed an appeal with MSPB, claiming a constructive demotion. The MSPB and court of appeals found that he did not suffer a constructive demotion. In so doing, the appeals court observed that the employee’s argument “runs afoul of the well-recognized principle that a ‘federal employee is entitled to receive only the salary of the position to which he was appointed, even though he may have performed the duties of another position or claims that he should have been placed in a higher grade.’ ”

The last course of action is to perform the duties assigned to you, even if arguably at the higher grade level. Perform well and ask that your rating and performance award reflect the extra effort. Successfully performing above your grade level could help you in the promotion process.

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About Author

Debra Roth

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth, a federal employment law firm in Washington, D.C. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to lawyer@federaltimes.com.

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