OMB and OPM January 31st Hiring Freeze Guidance Answers Many Questions (Updated)

Update – OPM has released additional guidance that addresses many Frequently Asked Questions  (FAQs). The FAQs address merit promotion, reemployed annuitants and more.

The Acting Office of Management and Budget (OMB) and Office of Personnel Management (OPM) Directors issued new hiring freeze guidance today. Bottom line up front – this is good guidance that answers many of the questions agencies and employees have about the freeze.

Here are key points, followed by the permitted exemptions and the processes for requesting exemptions from OPM. My comments are in italics.

• The memo “applies to all Executive departments and agencies regardless of the sources of their operational and programmatic funding and to all types of Federal civilian appointments, regardless of the length of the appointment, except as provided for below or otherwise provided in law.” The freeze applies to new temporary and term appointments. 
• Contracting outside the Government to circumvent the intent of the freeze is not permitted, but agencies can continue, modify, or enter into service contracts for other purposes, consistent with law, regulation, and any applicable management direction.
• The guidance should be implemented consistent with any lawful collective bargaining obligations that may apply. The Administration is not attempting to circumvent the bargaining process.

Permitted Exemptions:

1. Military personnel in the armed forces and all Federal uniformed personnel, including the U.S. Coast Guard, the Commissioned Corps of the U.S. Public Health Service, and the Commissioned Officer Corps of the National Oceanic and Atmospheric Administration.
2. Filling of positions under programs where limiting the hiring of personnel would conflict with applicable law.
3. Nomination and appointment of officials to positions requiring Presidential appointment, with or without Senate confirmation. Appointment of officials to non-career positions in the Senior Executive Service or to Schedule C appointments in the Excepted Service, or the appointment of any other officials who serve at the pleasure of the appointing authority (i.e., “appointed” positions of a political/non-career nature). This is a clarification that the exemption is talking about non-career jobs rather than reemployed annuitants or temporary employees who also serve at the will of the appointing officer.
4. Appointment of seasonal employees and short-term temporary employees necessary to meet traditionally recurring seasonal workloads, provided that the agency informs its OMB Resource Management Office in writing in advance of its hiring plans. This is important – particularly for agencies such as the IRS and the National Park Service.
5. Hiring by the U.S. Postal Service. This is new. Good news for the Postal Service.
6. Federal civilian personnel hires made by the Office of the Director of National Intelligence (ODNI) and the Central Intelligence Agency (CIA). This is new. Good news for ODNI and the CIA.
7. Appointments made under the Pathways Internship and Presidential Management Fellows programs (this does not include the Recent Graduates program). Agencies should ensure that such hires understand the provisional nature of these appointments and that conversion is not guaranteed. This is helpful – it may partially mitigate the adverse effects of a freeze on the number of young employees in government. It also provides some answers for Pathways participants who did not know if they still had a job.
8. Conversions in the ordinary course to the competitive service of current agency of employees serving in positions with conversion authority, such as Veteran’s Recruitment Act (VRA) and Pathways programs. Many of these jobs begin with a temporary appointment that is later converted to permanent. This exemption will be a big relief to those folks. 
9. Appointments made under 5 C.F.R. § 213.3102(r) (time limited positions in support of fellowship or professional/industry exchange programs) provided that the total number of individuals employed under this authority does not exceed the number of employees onboard (hired under this authority) on January 22, 2017.
10. Placement of persons with restoration rights accorded by law, such as restoration after absence with injury compensation and restoration after military duty.
11. Job offers made prior to January 22, 2017, for which the individual has a confirmed start date on or before February 22, 2017. Those individuals should report to work according to their respective designated start dates.
12. Job offers made prior to January 22, 2017, but for which the individual has a confirmed start date that is later than February 22, 2017 (or does not have a confirmed start date), should be decided on a case-by-case basis and must go through an agency-head review. The agency head should review each position to determine whether the job offer should be revoked, or whether the hiring process should continue. Agency heads should consider essential mission priorities, current agency resources, and funding levels when making determinations about whether or not to revoke job offers.
13. Internal career ladder promotions. This is among the most common questions federal employees have about the freeze. Very good news for anyone in a job with promotion potential.
14. Reallocations (i.e., noncompetitive reassignments and details) of current Federal civilian employees within an agency to meet the highest priority needs (including preservation of national security and other essential services) are not affected. This makes clear that agencies can move their employees around to meet mission requirements. 
15. Details (reimbursable and non-reimbursable) between agencies are also not affected; however, agency leadership should ensure that any reimbursable details between agencies are not being used to circumvent the intent of the hiring freeze.
16. Term and temporary appointments of existing Federal employees may be extended up to the maximum allowable time limit, consistent with the conditions/requirements of the legal authority originally used to appoint the employee. Another of the most common questions. This is a very reasonable approach that does not leave these folks without a job.
17. A limited number of voluntary transfers of current SES between agencies, as necessary to secure the leadership capacity of agencies, and where needs cannot be met by reallocation of resources within an agency’s current workforce; however, filling of such vacancies is subject to OPM approval in accordance with section 4 (paragraph 19 below) of the memo. This one should be interesting. I could imagine agencies stealing executives from one another and losing agencies objecting to losing someone they may not be able to replace.
18. The head of any agency may exempt any positions that it deems necessary to:
    • Meet national security (including foreign relations) responsibilities, or
    • Meet public safety responsibilities (including essential activities to the extent that they protect life and property). Agencies may refer to longstanding guidance, which provides examples of such activities in OMB Memorandum, Agency Operations in the Absence of Appropriations, dated 11/17/1981 [see examples 3(a) to 3(k)].
    • Agency heads should consult with appropriate personnel, including the agency Chief Human Capital Officer (CHCO) or equivalent and agency counsel when determining what positions to exempt from the hiring freeze. Agency heads are also required to consult with OPM and the agency’s OMB Resource Management Office on their intent to exempt positions using their agency head authority before implementing these exemptions. The requirement to consult with OMB and OPM is most likely to keep agencies from going too far with exemptions.
    • In the case of an Inspector General’s (IG) office, the Inspector General is considered the agency head for the purposes of determining which positions in the IG office are exempt based on the definitions above, as well as for the purposes of the agency-head review of job offers in the IG office that either do not have a start date or have a designated start date beyond February 22, 2017. This is a question that is critical to the IG community. They would be concerned if an agency head could starve the IG’s office during a freeze.
19. Exemptions Granted by the Director of OPM. (This is the exemption process people have been waiting to see – how does an agency go about getting an exemption that is not on the list of approved exemptions?) The Director of OPM may grant additional exemptions from the hiring freeze for critical situations. Accordingly, if an agency head assesses that circumstances warrant additional exemptions to the hiring freeze other than those specified above, a request must be made in writing to the Director of OPM and signed by the agency head. (Note the requirement for personal involvement of the agency head) The request must:
    • Explain the critical need and how it relates to essential services or critical mission requirements.
    • Explain why reallocation (reassignment/detail) of existing staff within the agency is not possible to meet the needs outlined in the request.
    • Explain the urgency of the need and the consequences of not filling the position within a 3 to 6 month timeline. Agencies must also notify their respective OMB Resource Management Office of exemption requests to OPM under this provision. The “3 to 6 month timeline” leads me to believe the freeze may not be over in 90 days. If the OMB/OPM plan is completed on schedule in 90 days, there would still be a need to coordinate it with others and get it approved. Hence the wiggle room. 
20. Effective Dates. The guidance in this memorandum is effective immediately. Within 90 days of the publication of the PM issued on January 23, 2017, the Director of OMB, in consultation with the Director of OPM, shall recommend a long-term plan to reduce the size of the Federal Government’s workforce through attrition. The hiring freeze will expire upon implementation of the OMB plan.

Overall, this is thorough guidance that answers many of the questions agencies, employees and applicants have been asking.