Disabled vet’s lawsuit threatens intern-hiring program

Disabled vet’s lawsuit threatens intern-hiring program

Disabled vet’s lawsuit threatens intern-hiring program
By TIM KAUFFMAN
October 19, 2008
An increasingly popular hiring program that allows managers to bypass traditional competitive rules to fill entry-level jobs could be declared illegal under a case under review by a federal appeals court.
Since being established in 2001, the Federal Career Intern Program has become one of the most popular methods for filling entry-level jobs at GS-5 to GS-9. Use of the program has grown 147 percent in the past four years alone. That’s because the program allows managers to shorten hiring times and target their recruitment efforts to particular applicants. But critics of the program say it undermines the fair and open competition process that has long been the hallmark of federal hiring.
The program allows managers to fill jobs without public notice or competition and then convert those interns to permanent positions after a two-year probationary period. This is in sharp contrast to the traditional competitive hiring method, which requires agencies to post vacancies nationally and hire from a list of highly qualified candidates. Employees hired competitively are subject to a one-year probationary period.
On Oct. 10, the U.S. Court of Appeals for the Federal Circuit heard arguments in a case brought by a disabled veteran who applied for an auditing job at the Defense Department that was instead given to a nonveteran intern two years ago.

The veteran, Stephen Gingery, who has a 30 percent or greater disability, challenged the decision before the Labor Department and, later, the Merit Systems Protection Board. Both agencies sided with the Defense Department decision, prompting Gingery to take his case to federal court.
In hearing arguments in the case, the court took the unusual step of inviting oral arguments from the National Treasury Employees Union, which has filed a separate lawsuit challenging the intern-hiring program but is not representing Gingery.
The appeals court is expected to issue a ruling in about eight months. Meanwhile, NTEU’s lawsuit is pending in the U.S. District Court for the District of Columbia.
In presenting the union’s arguments, NTEU attorney Elaine Kaplan said use of the intern program violated Gingery’s veterans preference rights. More broadly, she argued, the growing use of excepted service hiring authorities — particularly the intern program — undermines the basic concept of filling civil service positions using fair and open competition.
“We have the excepted service replacing the competitive service for entry-level positions. It’s the exception swallowing the rule,” Kaplan said in an interview.
Others appear to agree. Earlier this year, MSPB Chairman Neil McPhee said the growing use of the intern program and other so-called excepted service hiring authorities represent “troublesome trends that could thwart merit-based hiring over time.”
“These authorities should be used with caution because they can inadvertently circumvent recruitment from all segments of society, fair and open competition, and selection based on relative ability,” McPhee said in a January report on entry-level hiring.
The intern program allows agencies to bypass competitive hiring procedures and make excepted appointments at the entry level GS grades of 5, 7 and 9. Veterans preference must be applied, although agencies aren’t required to notify the Office of Personnel Management or applicants when it bypasses a veteran for a nonveteran, like they must when hiring under competitive procedures.
Even though the board has issued warnings about the growing use of the intern program, MSPB said the Defense Department properly exercised the hiring authority and had recorded its reasons for passing over Gingery as required under the excepted service rules. The board also called the intern program a “valid exception to the competitive examination requirement” that was expressly authorized under an executive order issued in 2000 by President Clinton.
NTEU’s Kaplan said the union isn’t arguing that there can never be an intern program. However, she said OPM’s regulations establishing the program are too broad and allow agencies to fill virtually any position outside the normal competitive process.
Hiring interns becomes popular
Customs and Border Protection, at the Homeland Security Department, now uses the intern program to fill all of its entry-level officer positions, primarily because it provides for a two-year probationary period instead of a one-year period, Kaplan said. IRS also is filling most of its new revenue agent and revenue officer positions using the intern program, which Kaplan said has allowed the agency to bypass current employees who otherwise would get first dibs on the new positions.
“You leave the door open for hiring people for reasons other than their qualifications. That’s why competitive procedures have been the rule since the 1880s,” Kaplan said. “The whole point of these competitive procedures is to make sure people are hired based on merit.”
Attorneys from the Justice Department and OPM, who filed the legal argument before the appeals court on behalf of the Defense Department, said the court lacks jurisdiction to review the case because the president has sole discretion whether to place jobs in the competitive or excepted service.
Supervisors cite speedy hiring as one the main benefits of using the intern program. According to a June study by MSPB, 35 percent of supervisors said they used the intern program because it gave them the ability to hire faster, while 28 percent said the intern program was easier than other hiring methods. Just 22 percent said they used the program to choose the best applicant for the job.
Supervisors now fill roughly half of their entry-level professional and administrative jobs using the intern program, compared with 20 percent filled under the traditional competitive hiring method. These employees become the feeder group for future leaders in professional and administrative occupations, which account for 60 percent of the federal work force, MSPB said.
Tell us what you think. E-mail Tim Kauffman.
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An increasingly popular hiring program that allows managers to bypass traditional competitive rules to fill entry-level jobs could be declared illegal under a case under review by a federal appeals court

I am sure it was popular, anything that allows them to bypass having to hire disabled veterans, would be something federal managers would like. Why be bothered by "rules"?

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