The Department of Defense (DOD) issued freeze guidance today, covering a large number of DOD civilian jobs. DOD reiterated that the freeze does not apply to military personnel, and identified the types of positions that are covered by the national security and public safety exemptions. Deputy Secretary Robert Work signed the memorandum, which also explains who can approve additional exemptions and the criteria those individuals must follow.
The authorized officials for approving exemptions in Sections A, B and C are the Secretaries of the Military Departments; the Chairman of the Joint Chiefs of Staff for the Office of the Joint Chiefs of Staff and the Joint Staff; the Inspector General of the Department of Defense for the Office of the Inspector General of the Department of Defense; and the Deputy Chief Management Officer for the Office of the Secretary of Defense, the Defense Agencies and DoD Field Activities, and all other organizational entities in DOD assigned in this paragraph. Combatant Command exemptions must be coordinated with the Chairman of the Joint Chiefs of Staff before submission to the appropriate Military Department Secretary for review and action. Exemption requests from Defense Agencies (DLA, DFAS, etc) or a DoD Field Activity must be forwarded through the responsible Principal Staff Assistant to the Deputy Chief Management Officer.
The guidance does not provide specific exemptions for support staff required to fully execute DOD’s mission. For example, HR offices that are continuing to process hiring actions are not exempted. If the freeze extends long enough that lack of support staff becomes a problem, it could be addressed using the criteria in Section B. The memo makes it clear that it is not to be read as business as usual and that exemption authority should be used “sparingly.”
The following list of functions (Section A of the memo) are exempt from the freeze. The memo says “Exemptions may be granted only for positions deemed critical to the execution of the function listed. Officials to whom exemption authority has been delegated are required to submit reports as described above and must be prepared to justify their exemption decisions on a position-by-position basis based on such reports.” All of the numbered items below for all sections of the memo are taken, mostly verbatim, from the DOD memo. I have edited some of them for space or clarity My comments are in italics.
- Positions directly supporting the execution of contingency missions and operations, scheduled military operations and deployments, and security cooperation exercises or training.
- Positions required for cybersecurity and cyberspace operations or planning. This question has come up a lot since the freeze. Given the difficulty in hiring cyber experts, this (and number 4 below) are very good news.
- Positions required for space operations or planning.
- Positions required for execution of the cyber and intelligence lifecycle operations, planning, or support thereof.
- To the extent necessary to maintain capability to ensure a medically ready force, positions directly providing inpatient care in Department of Defense Medical Treatment Facilities and providing acute and emergency outpatient care in Department of Defense medical and dental facilities. Additionally, positions involving communicable disease prevention and similar public health activities.
- First responder firefighter and law enforcement positions.
- Positions necessary to carry out or enforce treaties and other international obligations.
- Positions providing operational support to the President of the United States, Secretary of Defense, or Chairman, Joint Chiefs of Staff.
- Positions providing child care to the children of military personnel.
- Positions at the installation level providing direct support to the prevention of child abuse, sexual assault, domestic violence, and suicide and providing direct support to those affected.
- Positions required for nuclear reactor and nuclear weapon safety and security and nuclear command, control, and communications. Additionally, positions required for biological select agent safety and security.
- Positions performing mortuary affairs activities and other directly related services necessary to properly care for the fallen and their families.
- Positions required to be filled by a foreign national employee.
- Positions in shipyards and depots in which positions incumbents perform direct management of inventory and direct maintenance of equipment. This could be a lot of people.
- Positions funded by Foreign Military Sales.
- Civilian Mariners in Military Sealift Command.
Section B of the memo includes exemptions that are to be determined by the authorized delegates listed above. The exemptions may be granted individually or for groups of jobs. Approving officials are required to certify that the positions are necessary to meet the Department’s national security or public safety responsibilities and base their decisions on the responsibilities of the job, rather the funding source. Every exemption decision has to include all of the following:
- A description of how the functions of the position are necessary to meet the Department’s national security or public safety responsibilities.
- The compelling circumstances that justify the grant of an exemption.
- A description of the alternatives considered in assessing how the national security or public safety responsibilities associated with the position would be performed if the exemption were not granted. The approving official must certify that the requesting organization would not meet its national security or public safety responsibilities through measures short of hiring. (Note – this is a high bar)
- Certification that the need cannot be met by assigning the duties to another DOD employee.
For people who received a job offer/appointment prior to January 22, 2017, and received documentation that specifies a confirmed start date after February 22, 2017 (or who does not have a confirmed start date), the decision-maker must review the offers and use the criteria above to make their decision regarding going through with the offer or revoking it.
The officials with exemption authority may may extend term or temporary appointments of a current DoD employee may be extended to the maximum allowable time limit, consistent with the conditions/requirements of the legal authority originally used to appoint the employee.
Section C of the memo includes exemptions that are required by law. Again, these may be group or individual exemptions, but the decisions must be reported and justified. If you do not know what these are, they most likely do not apply to you.
- Civilian employees exercising return rights from an overseas assignment.
- Civilian employees returning from uniformed service and afforded protections pursuant to the Uniformed Services Employment and Reemployment Rights Act.
- Civilian employees returning to duty after an absence pursuant to the Federal Employees’ Compensation Act.
- Placements required to reasonably accommodate an employee under the Rehabilitation Act of 1973.
- Dual Status Military Technicians.
- Placements directed by a court, arbitrator, or administrative tribunal.
- Any other hiring action required by law, as determined by the General Counsel of the Department of Defense or the General Counsel of a Military Department.
Section D of the memo covers actions that do not require exemptions. These are derived from and further explain the OMB/OPM guidance that was issued on January 31.
- The nomination and appointment of officials to positions requiring Presidential appointment or Senate confirmation, the appointment of officials to non-career positions in the Senior Executive Service or to Schedule C positions in the Excepted Service, or the appointment of any other official who serves at the pleasure of, and directly for, a Presidential appointee or an official in a non-career position in the Senior Executive Service (e.g., a reemployed annuitant, highly qualified expert, or expert/consultant who works directly for the Secretary of a Military Department or a non-career SES).
- An individual who has received a job offer/appointment prior to January 22, 2017, and who has received documentation from the agency that specifies a confirmed start date on or before February 22, 2017, should report to work on that date.
- As to positions that are determined not to be exempt, but for which hiring actions were initiated prior to January 22, 2017, processing may proceed, provided that no new tentative or firm job offer is extended. For example, an organization may review resumes submitted and identify and interview qualified candidates. Or, if an individual was extended a tentative job offer before January 22, 2017, required actions such as drug testing and security clearance investigation and adjudication may proceed. In all such cases, organizations will take great care to ensure and document that applicants are aware of the hiring freeze and communicate that the organization’s decision to proceed with such required actions does not confer any rights or privileges. This means they can keep moving with everything required to bring the person on board, but cannot actually make the appointment until the freeze is lifted. It is common in hiring freezes to keep job announcements and the hiring process moving up to the point of appointment, then holding them. If they waited until the freeze is lifted to start the actions, the lost time would be a problem.
- Pursuant to Department of Defense Instruction 1100.21, “Voluntary Services in the Department of Defense,” volunteers may be used during the hiring freeze to maintain programs covered by the Instruction, including (as an exception to the restriction in the Instruction) volunteers for services previously provided by civilian employees whose positions cannot be filled due to the freeze.
- Appointments made under the Pathways Internship and Presidential Management Fellows programs (but not including the Recent Graduates program). Organizations will ensure that such hires understand the provisional nature of these appointments and that conversion is not guaranteed.
- Conversions in the ordinary course to the competitive service, of current DoD employees serving in positions with conversation authority, such as Veterans Recruitment Act and Pathways programs.
- Internal career ladder promotions.
Section E includes actions that do not require an exemption, but Require Advance Coordination with the Acting Deputy Assistant Secretary of Defense for Civilian Personnel Policy (CPP).
- Appointment of seasonal employees and short-term temporary employees necessary to meet traditionally recurring seasonal workloads, provided that the official to whom exemption authority has been delegated coordinates hiring plans with CPP in advance of any such appointment.
- Appointments made under 5 Code of Federal Regulations, section 213.3102(r) (time limited positions in support of fellowship or professional industry exchange programs) provided that CPP validates to the official to whom exemption authority has been delegated, in advance of any appointment action, that the total number of individuals employed under this authority would not exceed the number of employees hired under this same authority and onboard in the Department of Defense on January 22, 2017.
- Voluntary transfers of current members of the career Senior Executive Service from one DoD component to another, or between DoD and another Federal agency, as necessary to secure leadership capacity, and where needs cannot be met by the internal reallocation of Senior Executive resources. Officials to whom exemption authority has been delegated will coordinate such transfers, in advance, with CPP.