OMB clarifies FAIR Act job classification appeal

OMB clarifies FAIR Act job classification appeal

The Office of Management and Budget made clearer how employees, unions or industry can challenge classifications of agency jobs deemed commercial or inherently governmental under the Federal Activities Inventory Reform Act.

OMB published the technical correction in today's Federal Register].

The budget office said there was confusion about new rules published earlier this summer for competing positions between the public and private sectors under OMB Circular A-76. The revised circular said challenges 'are limited to the reclassification of an activity,' which caused many to believe a challenge was possible only when a position went from inherently government to commercial or vice versa.

In a memo to agency executives, OMB director Joshua Bolten said OMB did not intend to impose such a limitation. Instead, Bolten said, OMB wants interested parties to submit challenges as they see fit for any commercial or inherently governmental position.

The National Treasury Employees Union and the American Federation of Government Employees applauded the correction.

'We pointed out the illegal limitation on those challenge rights at the time OMB announced its massive changes' to Circular A-76, NTEU president Colleen Kelley said. 'I'm glad to see OMB is fixing this erroneous rule before any federal employees have been hurt by it. OMB should now proceed to fix the other violations we identified in our suit.'

NTEU and the American Federation of Government Employees filed separate suits against OMB, arguing the new circular is illegal because it goes against the language in the FAIR Act (see story at

Martin Cohen, AFGE's general counsel, said the correction satisfies about 10 percent of the union's complaint in the lawsuit. The government must respond to the allegations in the next three weeks, he said.

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