The Rule of Three Vs The Three Strike Rule for Dummies

[Deleted]

I wanted to start this thread for the benefit of the new wannabes (myself included) undergoing this testing process. I know this has previously been discussed ad nasuem in previous threads and I have read many of them but reading the old threads leads to questions. In addition, the old threads were discussions for previous candidates, many of whom have become ALJs or who have abandoned their ALJ quest.

Observer53 has been a major contributor in past threads and I am sure he will chime in and correct me if I am wrong or expand on something that I did not really cover.

My understanding is that the rule of three is not the same as the three strike rule, they are two different animals. The rule of three says that a manager can pick one of the three top scoring candidates to fill a position. A comprehensive explanation of the rule by MSPB is found at:

www.mspb.gov/netsearch/viewdocs.aspx?docnumber=253660&version=253947&application=ACROBAT

It seems that if a veteran is one of the top three (and by default preference will have the number one position) then it becomes the rule of one if the other two candidates are not veteran preference eligibles. The Agency can override the preference and choose number 2 or 3 if they disqualify the veteran by a procedure that appears to involve OPM. If two or all of the three top scorers are veteran preference eligibles then the manager can chose anyone of the preference eligibles whether they are 5 or 10 point veterans without any further explanation.

Bartleby has previously pointed out that management can be creative and work the certificate by pitting veteran preference eligibles against each other. In other words if there is a veteran they do not like and he/she is on a certificate on more than one location and there happens to be other veterans in the top three, they will pass over the veteran by choosing another veteran. This may determine how they chose to fill certain vacancies first. If they do this three times then they are able to three strike the veteran they do not like/want and he/she is done and will not get further consideration. This is the three strike rule and I guess it prevents this same veteran (or anyone else on the certificate) from appearing in or being selected from future certificates. The agency can also choose not fill a position and simply allow a transfer in and therefore the veteran that cannot be passed over is really not considered but it allows management to not have to choose the veteran they cannot pass over.

The three strike rule is also called the Bona fide Consideration Rule and states:

Bona Fide Consideration. An applicant receives bona fide consideration when his or her name is within the group of three eligible candidates referred to the selecting official on a certificate list and a legal appointment is made from the certificate. Each eligible candidate is entitled to three bona fide considerations for the same appointment before he or she can be eliminated from consideration.

It is not mandatory:

5 CFR § 332.405 Three considerations for appointment.
An appointing officer is not required to consider an eligible who has been considered by him for three separate appointments from the same or different certificates for the same position.

However, if they do not want to hire you then they are going to exercise their managerial prerogative. An excellent discussion is found at:

aljdiscussion.proboards.com/thread/1756/3-strikes-out

My take is that they only use the three strike rule on folks they do not want to hire. For example, you had a decent interview and the agency would hire you but you show up on certificates where you are #2 or # 3 and veterans they like are selected. Well you have been given consideration for three locations but through no fault of your own you were not selected. In this case management will probably not hold this against you. Now if you had a poor interview and have the same facts listed above then management will say they gave you three opportunities and you are done (and it makes no difference if you are a veteran or not). Essentially the agency has decided you would not be a fit for the organization and you are done for the life of the register.

[funkyodar]

I thought I read somewhere that the "rule of 3" had been done away with in favor of something called "category rating". There was a thread on here (I will look it up later) that mentioned this was done and was to go into effect at some future date. Anyone more knowledgeable?

[Gaidin]

Jul 30, 2013 13:43:37 GMT -5 @aljfaq said:

So it seems that under this system, on the rare occasions when one of the "other" agencies hires off the register, they would always be forced to hire a veteran because it is extremely unlikely for there to be no veteran on the register that listed the cities where the other agencies are (which are DC and a few other major metro areas). Or am I missing something? Is it likely that there is no veteran in the top 3 scorers listing DC on their GAL?

I think the answer is probably not unless they hire late in the process and the vets are all gone.  I would assume this is one of the big reasons (besides saving on training costs) that the other agencies hire already employed ALJs.

[Gaidin]

Jul 30, 2013 13:57:56 GMT -5 funkyodar said:

I thought I read somewhere that the "rule of 3" had been done away with in favor of something called "category rating". There was a thread on here (I will look it up later) that mentioned this was done and was to go into effect at some future date. Anyone more knowledgeable?

There is such a thread but the announcement for this registry says they will use it.

[Deleted]

Good question and I really do not know the answer. The rule is that veteran's preference is a mandatory tie breaker for equally qualified candidates. Notwithstanding, some agencies like SSA do disqualify veterans. I will share my experience with SSA.

Back in 2006 I was leaving the military and applied to three AA openings in cities that were highly desireable. I was a five point vet back then. One office passed up the 10 point vet ahead of me because he had not practiced law in a while and chose me, the 5 point vet because they thought I was a better fit. The other office rescinded the job announcement because I was the top candidate (and there were no other vets at the #2 and # 3 position) and they did not want to chose me. The third office which had two vacancies actually wrote up that a non vet was better qualified than I was and the personnel office with delegated authority accepted their position that the local candidate that they liked was better qualified than I was (they claimed that the attorney had more years of experience and that she had a good working relationship with the office ALJs and spoke many language--none of which were required under the announcement). They filled the second vacacy by taking another preference eligible.

I took the first job that was offered because it was my number one choice and found out about the overside of the vet preference at the other office after I was settled into the job. I could have fought it but by that time it did not matter to me but had I not gotten a job I wanted.

Perhaps this is another reason why the other agencies like to hire ALJs from SSA. They have folks identified and tell them to go to SSA and that they will be allowed to lateral over at a future date because I do not believe that vet preference apply for those vacancies.

[Deleted]

Jul 30, 2013 13:57:56 GMT -5 funkyodar said:

I thought I read somewhere that the "rule of 3" had been done away with in favor of something called "category rating". There was a thread on here (I will look it up later) that mentioned this was done and was to go into effect at some future date. Anyone more knowledgeable?

I do not believe so Funky, that would really rain on SSA's SOP. Look at the ALJ job announcement it says they will select from the three highest candidates or words to that affect.

[71stretch]

Jul 30, 2013 14:11:40 GMT -5 @exafjag said:

Jul 30, 2013 13:57:56 GMT -5 funkyodar said:

I thought I read somewhere that the "rule of 3" had been done away with in favor of something called "category rating". There was a thread on here (I will look it up later) that mentioned this was done and was to go into effect at some future date. Anyone more knowledgeable?

I do not believe so Funky, that would really rain on SSA's SOP. Look at the ALJ job announcement it says they will select from the three highest candidates or words to that affect.

The president issued some sort of order directing federal agencies to stop using the rule of three in May, 2010. Apparently it's still some sort of work in progress, as ODAR is evidently still using it.

voices.washingtonpost.com/federal-eye/2010/05/obama_orders_government_to_cha.html

[funkyodar]

Cool. I just reread some of the thread about the rule of three being eliminated and I think we are better off with the rule of 3in actuality. Category rating would appear to give the hiring agency the ability to "give a strike" to several candidates at once as opposed to just 3 (the 2 not hired from the 3 submitted).

Faq, you have a seriously uphill battle for your hopes to come true my friend. I mean we all do, but someonein your shoes that wants such a limited gal and wants to work for an agency other than ssa, its really gonna take a miracle.

First, agencies other than ssa have only about 5% of the aljs. Second, these agencies prefer to hire people who are already aljs at other agencies. Third, these agencies aljs are almost exclusively dc, ny or some other highly desirable locale meaning tons of others have your same gal.

I assumed if you had one of the top scores on the register you may have a shot, slim, but a shot. Now though I'm not so sure. From what I have read these agencies, when they hire from the register, like to take people with expinside their agency. From your background posts that isn't you. So on top of needing to be a top scorer, you need to hope that the 3 submitted doesn't include an agency insider. Additionally you need it to not have any vets among the 3 cause they get automatic preference regardless of score. Maybe you will get lucky and no vets will want to go to the most popular cities in gov.

Not saying you shouldn't waste the time in dc, miracles happen. Butif you want a realistic shot at being an alj I think you should get used to the idea of hearing nonadversarial disabilty cases.

[zebra51]

It does appear from the vacancy announcement that the plan is to use the "rule of three" instead of the 2010 executive ordered mandate to use "category rating". From Announcement: "It is the responsibility of the hiring agency to make selections from the list of candidates referred for employment consideration from among the highest three available names, taking into consideration veterans' preference and other civil service rules". Of course the "other civil service rules" disclaimer and EO mandate to use category rating may trump.

If you look at the EO and our phase I, II, and III process it appears that the elimination of the AR at phase I was perhaps OPM following the EO. EO states must: " (1) eliminate any requirement that applicants respond to essay-style questions when submitting their initial application materials for any Federal job;".

Will they continue to follow the EO? Only time and the first cert from this upcoming register will tell which method is used. (Is there a way to find out after that first cert happens which was used?)

Concerning strikes under category rating:

Jul 30, 2013 14:35:50 GMT -5 funkyodar said:

I think we are better off with the rule of 3in actuality. Category rating would appear to give the hiring agency the ability to "give a strike" to several candidates at once as opposed to just 3 (the 2 not hired from the 3 submitted).

OPM policy statement; "The “three consideration” rule embodied in 5 CFR 332.405 does not apply in category rating." So if category rating is used no one can be three struck.

[funkyodar]

Very interesting Zebra

[Deleted]

Zebra, I hope you are right and that I am wrong but I suspect that OPM got an excusal from this categorical hiring for the ALJs. The following OPM presentation states (and I also read it in another document from OPM that I can no longer find) that in Categorical ratings 5 or 10 points for veterans will not be applied--a preference will be given:


www.opm.gov/policy-data-oversight/human-capital-management/hiring-reform/reference/hrspecialisttraining.pdf

The job announcement however, states taht the 5 or 10 points will be given.

Final Numerical Rating: Applicants who complete all portions of the assessment process and achieve a minimum required score on both the WD and SI will be issued a final numerical rating on a scale of 1 – 100. The rating will be based on the scores assigned for the SJT/Writing Sample/Experience Assessment, WD/LBMT, and SI components of the examination with a maximum possible total score of 100, excluding veterans' preference. If you do not claim veterans' preference, this earned rating will be your final numerical rating. If you claim veterans' preference (other than on the basis of sole survivorship, as described below) and have submitted the required documentation, 5 or 10 points, as appropriate, will be added to your total earned rating to determine your final numerical rating.

Additionally, as previously stated the job announcement states the following regarding hiring.

Receiving Employment Consideration:

If you receive a NOR with a final numerical rating, your name will be placed on the new ALJ register. The ALJ register is a list of candidates eligible for selection used to make referrals to agencies for employment consideration when they have entry level ALJ vacancies to fill. Names are referred in descending rank order, based on the duty location of the position(s) to be filled and the geographical preference of candidates. It is the responsibility of the hiring agency to make selections from the list of candidates referred for employment consideration from among the highest three available names, taking into consideration veterans' preference and other civil service rules.

The job announcement is found at:

www.usajobs.gov/GetJob/PrintPreview/338848600

[privateatty]

SSA will three-strike you if you are in the way. Let's say you had four or five folks they needed to eliminate to get out of the way so that they didn't have to consider them later when they could have easily beaten lower scoring others. So they stack you early against the highest scoring SSA shoe-ins, consider you three times and presto, you are down and out. It has been said countless times but I will repeat it again, if Puzzle Palace wants you then you will be a SSA ALJ. SSA are masters in doing this--it is a process that not only will make your head hurt but is arguably not within the intent of the law. Nonetheless, as any lawyer will tell you, its legal.

Thus, while the determination that you were thrice struck because you were a lousy interview or got a shiv in the back from a supervisor may be accurate, there are other reasons for three-striking folks too.

The four digit score [NOR] (like a 75.34) eliminates vet ties.

As to aljfaq, it is fine (IMHO) to be confident. You may think that you have the necessary qualifications to be an ITC or FERC or FLRA ALJ. When, in every 3 or 5 or 7 years one of those jobs opens, I can assure you that the competition will be steep indeed and any number of things over which you have no control will be dispositive. In short, I share funky's assessment.

[zebra51]

I believe the excusal from categorical hiring is requested from OPM. Would the excusal have to be requested by the hiring agency (SSA, OHA, OSHRT, etc)?

[Deleted]

Jul 30, 2013 16:21:01 GMT -5 zebra51 said:

I believe the excusal from categorical hiring is requested from OPM. Would the excusal have to be requested by the hiring agency (SSA, OHA, OSHRT, etc)?

By the same token OPM can tell the particular agency that they are not using categorical hiring since they are the ones that make the civil service rules and regulations.

[privateatty]

Jul 30, 2013 16:21:01 GMT -5 zebra51 said:

I believe the excusal from categorical hiring is requested from OPM. Would the excusal have to be requested by the hiring agency (SSA, OHA, OSHRT, etc)?

That's assuming they have money to hire and/or backfill and that they would hire off the Register. I don't see that happening right now, but then I could be wrong.

[privateatty]

Jul 30, 2013 16:24:47 GMT -5 @exafjag said:

Jul 30, 2013 16:13:32 GMT -5 privateatty said:

The four digit score [NOR] (like a 75.34) eliminates vet ties.


Very interesting private, but if the top three candidates are as follows:

# 1 75.34 (vet)
# 2 75.33 (non vet)
# 3 75.32 (non vet)

They have to pick # 1 unless they disqualify him/her right?

Yes.

[valkyrie]

Oh boy, one of my favorite topics! Don't forget, the hiring agency has the option to use the rule of three once you have been passed over three times. There were many of us that used the information on this site to mathematically determine that we had been passed over three times in the process, but were still hired at a later date. Sometimes it isn't a matter of not liking you, so much as liking someone else better.

As for the insider "advantage," it is a two edged sword, and much the same as other agencies, there are a lot of petty management-types with very long memories that have been the downfall of numerous hopefuls. If you are working for the agency, just remember to always avoid pissing off anyone without a very good reason. On the other hand, it is important to be "known." By that, I don't mean start an ass-kissing campaign. I mean you should try and get involved in regional or national details, training, or other work-groups that get you in contact with people that may have the ear of people on the selection board. In the end, this is a hiring process like any other, and any recruiter/HR manager will tell you that hiring off a resume and an interview is a total leap of faith. Better if you can ask Bob in Accounting about candidate #17, because Bob is a reasonable guy and will likely tell you if the kid is a flake or meets the sniff test. "Known" means you aren't a screwball and somebody who matters can vouch for it. The key is getting into a work situation with that all-important "somebody-who-matters" and show that you can do a job competently without making an ass of yourself. Or you can depend on the unlikely prospect that your references are somehow significantly more impressive than those of everyone else who is applying.

The ALJ Discussion Forum is just like Lake Woebegone, we're all above average!