1588 , the NationalDefense Authorization Act for FY2004, amended, by a 361 to 68 (Roll No. 194) vote, did not include these Title XI personnel managementprovisions (but included other personnel provisions at Title XI). Implementation of Title XI of P.L. Beginning in late April 2006, theclassification, performance management, compensation, staffing, and workforce shaping provisionsof the new system will be implemented. DOD and OPM jointly published the finalregulations in the Federal Register on November 1, 2005. The new Section 9902(a) of P.L.108-136 provides that notwithstanding any other provision of Part III, the Secretary of Defense may,in regulations prescribed jointly with the OPM Director, establish, and from time to time adjust, ahuman resources management (HRM) system, referred to as the National Security Personnel System(NSPS), for some or all of the organizational or functional units of DOD. Many of the details that will govern theoperation of these areas are currently under discussion by DOD and the labor organizations. Classification. Â§9902(f), that requires the Secretary of Defense and the Director of OPM toprovide a written description of the proposed personnel system or adjustments to such system to thelabor organizations representing employees in the department. Thedecision to bargain at a level above the level of exclusive recognition is not subject to review or todispute resolution procedures outside the department. (33) DOD hasindicated that it will appeal the decision. Subpart I of the regulations defines the department's labor-relations system. The board is authorized to dismiss any petition that, in the board'sview, does not raise substantial questions of fact or law. Subpart H of the final regulations on appeals implements the provisions of Section 9902(h)of Title 5 of the United States Code, which establishes the system for DOD employees to appealcertain adverse actions covered under Subpart G. In applying existing legal standards andprecedents, the Merit Systems Protection Board (MSPB) is bound by the regulation set forth inSection 9901.107(a)(2)of Title 5 of the Code of Federal Regulations, which provides that theregulations must be interpreted in a way that recognizes the critical national security mission of theDepartment of Defense and that each provision must be construed to promote the swift, flexible,effective day-to-day accomplishment of this mission as defined by the Secretary of Defense. The Director of the Office of Personnel Management, after consulting with the Secretary ofDefense, may seek reconsideration by MSPB of a final Board decision. Congress authorized DOD and OPM to establish an appeals process that provides employeeswith "fair treatment in any appeals that they bring in decisions relating to their employment." OnNovember 7, 2005, following the issuance of final regulations to establish the NSPS, a coalition offederal unions, including the American Federation of Government Employees, filed a lawsuit infederal district court challenging the regulations. On February 27, 2006, the court enjoined the newregulations on the grounds that they failed to ensure collective bargaining rights, did not provide forthe independent third-party review of labor relations decisions, and failed to provide a fair processfor appealing adverse actions. Current law only entitlesReserve component members to the additional military leave. The eight elements are as follows:
adherence to merit system principles under 5 U.S.C.Â§2301;
a fair, credible, and transparent employee performance appraisalsystem;
a link between elements of the pay-for-performance system, the employeeperformance appraisal system, and the agency's strategic plan;
a means for ensuring employee involvement in the design and implementationof the system;
adequate training and retraining for supervisors, managers, and employees inthe implementation and operation of the pay-for-performance system;
a process for ensuring ongoing performance feedback and dialogue betweensupervisors, managers, and employees throughout the appraisal period, and setting timetables forreview;
effective safeguards to ensure that the management of the system is fair andequitable and based on employee performance; and
a means for ensuring that adequate agency resources are allocated for thedesign, implementation, and administration of the pay-for-performancesystem. According to the law, thefund will reward the highest performing and most valuable employees in an agency and offer federalmanagers a new tool for recognizing employee performance that is critical to an agency achievingits mission.
Title XI of the National Defense Authorization Act for FY2004, P.L. 108-136 , includesprovisions on a National Security Personnel System (NSPS) for the Department of Defense (DOD)and provisions on personnel management that are applicable government-wide. The law was enactedon November 24, 2003.
Title XI, Subtitle A, of the law authorizes the Secretary of Defense and the Director of theOffice of Personnel Management (OPM) to establish a new human resources management (HRM)system for DOD's civilian employees and to jointly prescribe regulations for the system. TheSecretary and the Director are authorized to establish and adjust a labor relations system and arerequired to provide a written description of the proposed personnel system or any adjustments tosuch system to the labor organizations representing DOD employees. A collaboration proceduremust be followed by the Secretary, Director, and employee representatives. The Secretary isauthorized to engage in any collaboration activities and collective bargaining at an organizationallevel above the level of exclusive recognition. The Secretary also is authorized to establish anappeals process that provides fair treatment for DOD employees covered by the NSPS. Regulationsapplicable to employee misconduct or performance that fails to meet expectations may not beprescribed until after the Secretary consults with the Merit Systems Protections Board (MSPB) andmust afford due process protections and conform to public employment principles of merit andfitness at 5 U.S.C. Â§3201. A qualifying employee subject to some severe disciplinary actions maypetition the MSPB for review of the department's decision. The board could dismiss any petition thatdoes not raise a substantial question of fact or law and order corrective action only if the board findsthat the department's personnel decision did not meet some prescribed standards. An employeeadversely affected by a final decision or order of the board could obtain judicial review. Subtitle Cof Title XI includes amendments to the government-wide policies for the federal employee overtimepay cap, military leave, and Senior Executive Service pay, and creates a Human Capital PerformanceFund to reward the highest-performing and most valuable employees in an agency.
DOD and OPM jointly published final regulations for the NSPS in the Federal Register onNovember 1, 2005. The regulations state that "issuances" to implement the regulations will beprepared by DOD. Draft versions of the "issuances" are currently under discussion by thedepartment and labor organizations. A coalition of federal unions, including the AmericanFederation of Government Employees, filed a lawsuit in federal district court challenging the finalregulations. On February 27, 2006, the court enjoined the regulations because they failed to ensurecollective bargaining rights, did not provide for independent third-party review of labor relationsdecisions, and failed to provide a fair process for appealing adverse actions. DOD said that it willappeal the decision. In early March 2006, DOD stated that the phased implementation of the newsystem and its classification, performance management, compensation, staffing, and workforceshaping components would begin in April 2006, with some 11,000 employees. This report will beupdated to reflect changes in the status of implementation.