Submitted via www.regulations.gov

Kimberly A. Holden
Deputy Associate Director for Talent Acquisition, Classification, and Veterans Programs
U.S. Office of Personnel Management

Re: Proposed Rule with Request for Comments; RIN 3206-AN80; 88 Fed.Reg. 47059-47068 (July 21, 2023)

Dear Deputy Associate Director Holden:

The National Employment Lawyers Association (NELA) respectfully submits the following comments concerning the Office of Personnel Management’s (OPM) Proposed Rule with Request for Comments, as published in the Federal Register at 88 Fed.Reg. 88 Fed.Reg. 47059-47068 (July 21, 2023).

NELA is the largest professional membership organization in the country comprised of lawyers who represent employees in labor, employment, wage and hour, and civil rights disputes in both the public and private sector. Our mission is to advance worker’s rights and serve lawyers who advocate for equality and justice in the American workplace. NELA and its 69 circuit, state, and local affiliates have a membership of over 4,000 attorneys who are committed to working on behalf of those who have faced illegal treatment in the workplace. NELA has filed numerous amicus curiae briefs before the United States Supreme Court and other federal appellate courts regarding the proper interpretation of federal civil rights and worker protection laws and comments regularly on relevant proposed rules. NELA also engages in legislative advocacy on behalf of workers throughout the United States. A substantial number of NELA members’ clients are federal employees and applicants for federal employment. NELA, therefore, has an interest in regulations affecting federal hiring. 

NELA is in favor of generally expanding the scope of qualified candidates who are considered for appointment to the federal service.  However, NELA members have observed instances where managers have abused their discretion to adjust the size of the applicant pool selected for interviews or manipulate the scoring of applicants to either exclude disfavored candidates from receiving interviews and/or to ensure that a favored candidate receives an interview.  This type of unscrupulous behavior violates the Merit Systems Principles, and at times also constitutes Prohibited Personnel Practices, unlawful discrimination and/or unlawful retaliation.  OPM accordingly needs to modify the proposed rules in order to limit the opportunity for abuse.  

In particular, the proposed rule should be modified to include a separation of functions in the selection process. A separation of functions in the selection process should ensure that  so that the persons in the selection process who have discretion to set the number of applicants interviewed are restricted from knowing the identity or demographics of the applicant pool for the position at the time they exercise that discretion and the persons who are scoring applicants for consideration for interview are restricted from knowing how many applicants will be interviewed for the position at the time that the applications are being scored.  This can be achieved through requiring the number of applicants interviewed to be selected prior to the close of the vacancy announcement, or through screening the decision-maker who decides on the number of interviews that will occurfrom information regarding the identity or assortment of applicants for the position. Separating these functions in this fashion reduces the opportunity for the persons selecting the number of interviews and the individuals who rate the applicants pre-interview to rig the selection in violation of the Merit Systems Principles and other federal statutes, and helps ensure that the discretion that OPM is proposing to grant agencies in this proposed rule is instead utilized for legitimate purposes.  Separation of functions as proposed in this comment would further promote efficiency for the federal government, as ensuring the fairness of this aspect of the selection process may help reduce litigation over apparent instances of abuse of this new authority.

Thank you for your consideration. If you have questions or wish to discuss these matters, please contact Ashley Westby at awestby@nelahq.org or (202) 420-1123.

Sincerely yours,

Ashley Westby
Program Director
National Employment Lawyers Association