When Hiring a Particular Candidate Might Constitute a Prohibited Personnel Practice

The author discusses the prohibited personnel practice that can result from defining a particular position in a way that favors certain candidates or disfavors others.

Now that the hiring freeze has been lifted, federal managers will be relieved to resume the process of filling critical position vacancies.

Perhaps over the past several months, hiring officials have contemplated how they would advertise a vacancy on USAJOBS and may even have a particular candidate in mind whom they believe would be “perfect for the job.”

This article discusses an area of law not widely known to federal managers—specifically, the prohibited personnel practice that can result from defining the scope or manner of competition or requirements for a particular position in a way that favors certain candidates, or disfavors others.

Picture this scenario: an agency hired an employee for a four (4)-year term position to fill a critical need for a linguist in a remote area. That employee was not veteran’s preference-eligible, but at the time he competed for the term position was the best qualified linguist among all non-preference eligible applicants and, therefore, got the job.

The agency’s linguist requirement continued longer than expected, so the agency received authorization from the Office of Personnel Management (OPM) to extend the term for another one (1)-year increment under 5 C.F.R. § 316.301 (permitting exceptions to the normal four (4)-year limit on term positions and extensions when “clearly justified”).

This helped the agency continue the incumbent linguist, whom was well-liked by the commander, for another year in his position. However, the following year, OPM denied the request for another term extension. Instead, OPM instructed the agency that if it wished to continue to employ a linguist in that unit, it would have to post the job either as a new term position or a permanent position. There are no government-wide direct hire authorities for this particular linguist job series.

The agency decided its mission was such that it needed a permanent linguist. The hiring officials, at the request of the commander, wanted to make certain the incumbent secured the permanent job.

Despite advice to the contrary by the servicing personnel office and legal counsel, the agency tailored its USAJOBS announcement so that it excluded the potential veteran’s preference-eligible candidates whom the agency anticipated would apply for the position. To guarantee no veteran candidate “bumped” the incumbent linguist, the agency defined the job requirements in such a way to favor the incumbent and harm the prospects of other candidates.

For example, it included a narrow geographical limitation on candidates. It also stated that relocation expenses would not be paid by the government.

By doing this, the agency ensured the pool of applicants would be so narrow that the incumbent would be the natural selection because he would be the only candidate with the requisite experience who resided in the remote geographic area. The veterans who otherwise would have applied for the job were dissuaded from applying because it was too costly to move across the country or from another continent at their own expense.

The scenario described above is a clear prohibited personnel practice in violation of 5 U.S.C. § 2302(b)(6). That statutory provision explains:

[a]ny employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority … grant any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment (including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment.

The most common laws, rules and regulations that otherwise authorize favoring certain candidates are those pertaining to granting certain preferences to veterans or disabled candidates/employees, such as the Rehabilitation Act of 1973 (incorporating the Americans with Disabilities Act), and the Veteran’s Preference Act of 1944. If the agency is attempting to favor or disfavor candidates on any other non-permissible grounds, it will be construed as a prohibited personnel practice.

In Special Counsel v. Byrd, 59 M.S.P.R. 561 (1993), the Merit Systems Protection Board (MSPB) found “one of the clearest possible examples of abuse of the merit system” when the U.S. Customs Service advertised for a position in a manner that restricted all meaningful consideration of candidates other than the favored one.

For example, the advertisement narrowed the geographic area, shortened the application time period, recruited only at the grade of GS-12 rather than GS-11/GS-12, and the agency failed to interview a single candidate.

The MSPB explained that the favored candidate was not a member of any protected group for which authorized preferences may be granted (e.g., veterans, Native Americans, persons with reemployment rights, and disabled persons). Accordingly, under 5 U.S.C. 2302(b)(6), the agency unlawfully improved a particular candidate’s chances of being hired while injuring others’ prospects for employment—a clear prohibited personnel practice.

When advising hiring officials on the tailoring of a job posting, it is important to note that a geographic limitation, in and of itself, is not inherently unlawful if it genuinely attempts to capture enough job applicants. The necessary inquiry with respect to geographically confined job announcements is whether “the area of consideration is sufficiently broad to ensure the availability of high quality candidates.” See Beatrez v. MSPB, 413 Fed. Appx. 298 (Fed. Cir. 2011).

Accordingly, an agency may appropriately tailor an announcement to give internal candidates an opportunity to be considered for a job, as long as the local commuting area is sufficiently broad to include a pool of available quality applicants.

For example, in Beatrez, a job posting limited to candidates within the Los Angeles, California area to fill a Merchant Marine Specialist job was broad enough to be lawful. Conversely, in the scenario described in this article, the nature of the remote area and specialized linguist skill-set were such that a geographically-tailored announcement did not capture enough high-quality applicants.

In the post-hiring freeze rush to fill vacant positions, federal managers may have their eyes on particular prospective candidates. Perhaps those persons were temporary employees who now seek permanent positions with their agency. Others may be retiring/transitioning military members who managers want to “give a leg up” on other similarly situated preference-eligible candidates.

Whatever the case may be, caution must be exercised when drafting the position requirements. Hiring officials must ask themselves, “Does this job posting tend to favor a particular person or injure the prospects of another person?”

If it appears so, they should seek a legal opinion to ensure that any direct or indirect preference is authorized by an existing law, rule or regulation. Failure to do so could result in the Office of Special Counsel investigating and filing a complaint, which could ultimately result in disciplinary action against responsible officials.

Jeffrey Lorek is a labor and employment litigation attorney for the Department of the Air Force and has published several articles on various labor and employment law topics. The views expressed in this article are solely the views of the author, and do not reflect the views of the government, the Department of Defense, the U.S. Air Force, or FedSmith.com.