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[Code of Federal Regulations]
[Title 5, Volume 1, Parts 1 to 699]
[Revised as of January 1, 1997]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR300]
[Page 119-121]
TITLE 5--ADMINISTRATIVE PERSONNEL
CHAPTER I--OFFICE OF PERSONNEL MANAGEMENT
PART 300--EMPLOYMENT (GENERAL)--Table of Contents
Subpart E--Use of Private Sector Temporaries
Source: 54 FR 3766, Jan. 25, 1989, unless otherwise noted.
Sec. 300.501 Definitions.
For purposes of this subpart:
(a) A temporary help service firm is a private sector entity which
quickly provides other organizations with specific services performed by
its pool of employees, possessing the appropriate work skills, for brief
or intermittent periods. The firm is the legally responsible employer
and maintains that relationship during the time its employees are
assigned to a client. The firm, not the client organization, recruits,
tests, hires, trains, assigns, pays, provides benefits and leave to, and
as necessary, addresses performance problems, disciplines, and
terminates its employees. Among other employer obligations, the firm is
responsible for payroll deductions and payment of income taxes, social
security (FICA), unemployment insurance, and workers' compensation, and
shall provide required liability insurance and bonding.
(b) Private sector temporaries or outside temporaries are those
employees of a temporary help service firm who are supervised and paid
by that firm and whom that firm assigns to various client organizations
who have contracted for the temporary use of their skills when required.
(c) Parental and family responsibilities are defined in chapter
630
of the Federal Personnel Manual and include situations such as absence
for pregnancy, childbirth, child care, and care for elderly or infirm
parents or other dependents.
(d) A Federal supervisor of Federal employees is defined in 5
U.S.C.
7103(a)(10) as
an individual employed by an agency having authority in the interest of
the agency to hire, direct, assign, promote, reward, transfer, furlough,
layoff, recall, suspend, discipline, or remove employees, to adjust
their grievances, or to effectively recommend such action, if the
exercise of the authority is not merely routine or clerical in nature
but requires the consistent exercise of independent judgment * * *
(e) A critical need is a sudden or unexpected occurrence; an
emergency; a pressing necessity; or an exigency. Such occasions are
characterized by additional work or deadlines required by statute,
Executive order, court order, regulation, or formal directive from the
head of an agency or subordinate official authorized to take final
action on behalf of the agency head. A recurring, cyclical peak
workload, by itself, is not a critical need.
(f) A local commuting area is defined in part 351 of this chapter.
Sec. 300.502 Coverage.
(a) These regulations apply to the competitive service and
to
Schedules A and B in the excepted service.
(b) Agencies may not use temporary help services for the Senior
Executive Service or for the work of managerial or supervisory
positions.
[61 FR 19510, May 2, 1996]
Sec. 300.503 Conditions for using private sector temporaries.
An agency may enter into a contract or other procurement arrangement
with a temporary help service firm for the brief or intermittent use of
the skills of private sector temporaries, when required, and may call
for those services, subject to these conditions:
(a) One of the following short-term situations exists--
(1) An employee is absent for a temporary period because of a
personal need including emergency, accident, illness, parental or family
responsibilities, or mandatory jury service, but not including vacations
or other circumstances which are not shown to be compelling in the
judgment of the agency, or
[[Page 120]]
(2) An agency must carry out work for a temporary period which
cannot be delayed in the judgment of the agency because of a critical
need.
(b) The need cannot be met with current employees or through the
direct appointment of temporary employees within the time available by
the date, and for the duration of time, help is needed. At minimum, this
should include an agency determination that there are no qualified
candidates on the applicant supply file and on the reemployment priority
list (both of which must provide preference for veterans), and no
qualified disabled veterans with a compensable service-connected
disability of 30 percent or more under 5 U.S.C. 3112, who are
immediately available for temporary appointment of the duration
required, and that employees cannot be reassigned or detailed without
causing undue delay in their regular work. In instances where a need is
foreseeable, as when approval of employee absence is requested well in
advance, an agency may have sufficient time to follow the temporary
appointment recruiting requirements, including veterans' preference in
chapter 316 of the Federal Personnel Manual to determine whether
qualified candidates are available by the date needed and for the length
of service required.
(c) These services shall not be used:
(1) In lieu of the regular recruitment and hiring procedures under
the civil service laws for permanent appointment in the competitive
civil service, or
(2) To displace a Federal employee.
(3) To circumvent controls on employment levels.
(4) In lieu of appointing a surplus or displaced Federal employee
as
required by 5 CFR part 330, subpart F (Agency Career Transition
Assistance Plan for Displaced Employees) and subpart G (Interagency
Career Transition Assistance Plan for Displaced Employees.)
[54 FR 3766, Jan. 25, 1989, as amended at 61 FR 19510, May 2, 1996]
Sec. 300.504 Prohibition on employer-employee relationship
No employer-employee relationship is created by an agency's
use of
private sector temporaries under these regulations. Services furnished
by temporary help firms shall be performed by their employees who shall
not be considered or treated as Federal employees for any purpose, shall
not be regarded as performing a personal service, and shall not be
eligible for civil service employee benefits, including retirement.
Further, to avoid creating any appearance of such a relationship,
agencies shall observe the following requirements:
(a) Time limit on use of temporary help service firm. An agency
may
use a temporary help service firm(s) in a single situation, as defined
in Sec. 300.503, initially for no more than 120 workdays. Provided the
situation continues to exist beyond the initial 120 workdays, the agency
may extend its use of temporary help services up to the maximum limit of
240 workdays.
(b) Time limit on use of individual employee of a temporary help
service firm. (1) An individual employee of any temporary help firm may
work at a major organizational element (headquarters or field) of an
agency for up to 120 workdays in a 24-month period. The 24-month period
begins on the first day of assignment.
(2) An agency may make an exception for an individual to work
up to
a maximum of 240 workdays only when the agency has determined that using
the services of the same individual for the same situation will prevent
significant delay.
(c) Individual employees of a temporary help firm providing
temporary service to a Federal agency may be eligible for competitive
civil service employment only if appropriate civil service hiring
procedures are applied to them.
(d) Agencies shall train their employees in appropriate procedures
for interaction with private sector temporaries to assure that the
supervisory responsibilities identified in paragraph (a) of Sec. 300.501
of this subpart are carried out by the temporary help service firm. At
the same time, agencies must give technical, task-related instructions
to private sector temporaries including orientation, assignment of
tasks, and review of work products, in order that
[[Page 121]]
the temporaries may properly perform their services under the contract.
[54 FR 3766, Jan. 25, 1989, as amended at 61 FR 19511, May 2, 1996]
Sec. 300.505 Relationship of civil service procedures.
Agencies continue to have full authority to meet their temporary
needs by various means, for example, redistributing work, authorizing
overtime, using in-house pools, and making details or time-limited
promotions of current employees. In addition, agencies may appoint
individuals as civil service employees on various work schedules
appropriate for the work to be performed.
[61 FR 19511, May 2, 1996]
Sec. 300.506 Requirements of procurement.
(a) Agencies must follow the Federal procurement laws and the
Federal Acquisition Regulation, as applicable, in procuring services
from the private sector.
(b) Agencies should make full use of the provisions of the Federal
procurement system to make clear that the firm is the legally
responsible employer and to specify the obligations the firm will have
to meet to provide effective performance including such matters as the
types and levels of skills to be provided, deadlines for providing
service, liability insurance, and, when necessary, security
requirements. The Federal procurement system also requires contractors
to comply with affirmative action requirements to employ and advance in
employment qualified disabled and Vietnam era veterans as provided in 41
CFR part 60-250, and with public policy programs including equal
employment opportunity, handicapped employment, and small businesses.
Sec. 300.507 Documentation and oversight.
Agencies are required to maintain records and provide oversight
to
establish that their use of temporary help service firms is consistent
with these regulations. As needed, OPM may require agencies to provide
information on their use of temporary help service firms.
[61 FR 19511, May 2, 1996]
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