Most federal employees fall into one of two categories—they work in either: (i) competitive service, or (ii) excepted service. This distinction has important implications for federal employees’ and job applicants’ legal rights; and, as a result, it is important to know into which category your job (or your desired job) falls.
Competitive Service Positions in the Federal Government
Competitive service positions are those for which applicants must go through a competitive application process. The majority of civil service positions in the executive branch are part of the competitive service. As the U.S. Office of Personnel Management (OPM) explains:
“In the competitive service, individual[s] must go through a competitive process (i.e. competitive examining) which is open to all applicants. This process may consist of a written test, an evaluation of the individual’s education and experience, and/or an evaluation of other attributes necessary for successful performance in the position to be filled.”
Some of the key traits of competitive service positions include:
- Merit Promotion – Current and former competitive service employees are eligible to apply for jobs through the federal merit promotion system. Jobs listed through the merit promotion system are not open to the general public, and they are not subject to the federal Veterans’ Preference.
- Transfer – In addition to applying for jobs with their current (or former) agency through the merit promotion system, competitive service employees (and former employees) are also eligible to transfer into competitive positions with other federal agencies. As the OPM also explains, “[y]our transfer eligibility does not guarantee you will get the job—you will still compete against other federal employees who apply and you must meet the qualifications and other requirements.” However, if you transfer through the competitive process, you will be able to keep your current time in service.
- Career Transition – If a competitive service employee’s job, agency or department is eliminated, the employee may be eligible to transfer to another agency or department through the Career Transition Assistance Plan (CTAP), Interagency Career Transition Assistance Plan (ICTAP) or Reemployment Priority List (RPL). Each of these programs provides selection priority over other non-transitioning applicants.
The competitive service is also governed by the OPM’s hiring rules. Among other things, this means that competitive service employees acquire tenure after three years of continuous service. Competitive service employees with tenure are also referred to as “career employees,” and this means that they can seek reemployment through the merit promotion system after any length of time out of government service.
Excepted Service Positions in the Federal Government
Excepted service positions include all positions in the executive branch that are not part of the competitive service, with the exception of senior executive service (SES) positions with a General Schedule (GS) grade above 15. In contrast to hiring for competitive positions:
“Executive agencies use the excepted service hiring authorities to hire candidates when it is impractical to use traditional competitive hiring procedures, such as the civil service examination. Attorneys and other professionals are frequently hired as excepted service employees. Positions that work closely with agency heads or determine agency policies may also be appointed in the excepted service.”
As the OPM explains, “[t]here are a number of ways to be appointed into the excepted service[,] such as appointed under an authority defined by the [OPM] as excepted (e.g., Veterans Recruitment Appointment) or being appointed to a position defined by OPM as excepted (e.g., Attorneys).” While excepted service positions are not subject to the same eligibility requirements as competitive service positions, seeking an excepted service position still often involves applying for a position and going through the traditional job application and screening process.
Positions in the excepted service can either be “temporary appointments,” “term appointments,” or “indefinite.” Temporary appointments are generally for one year or less, while term appointments are generally one to four years. While excepted service employees do not have the same opportunity to apply for other federal jobs through the merit promotion system, they can apply for any federal positions that are open to the public, and they may be eligible to use the federal Interchange Agreement to transfer to the competitive service.
Competitive Service and Excepted Service Employees Have Many of the Same Legal Rights
While there are important differences between the competitive service and excepted service, all federal employees have many of the same legal rights. For example, all federal employees have the right to be free from discrimination and harassment in the workplace under Title VII of the Civil Rights Act of 1964, and the federal merit system protects all federal employees against prohibited personnel practices (PPPs).
All federal employees are also entitled to protections against retaliation under the Whistleblower Protection Act (retaliation is also a PPP). All federal employees have the right to due process when facing adverse employment actions, and they have the right to challenge wrongful disciplinary and performance actions through the appropriate means.
Ultimately, regardless of your current or former position with the federal government (or the position for which you applied), if you have questions about your legal rights, you should consult with a lawyer who can help you make informed decisions about your next steps. If you are a victim of discrimination, harassment, retaliation or any other prohibited personnel practice, you may be entitled to damages or other remedies. Strict deadlines apply to pursuing employment-related claims against the government in many cases, so we strongly recommend consulting with a lawyer as soon as possible.
Questions About Your Legal Rights? Request a Confidential Consultation with a New York Federal Employment Lawyer Today
Do you have questions about your legal rights as a current federal employee, former federal employee or federal job applicant? If so, our lawyers can explain everything you need to know and help you decide what to do next. To schedule a confidential consultation with a New York federal employment lawyer at Bell Law Group, give us a call at 516-280-3008 or tell us how we can contact you online today.
