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TSA wants to assess its vulnerability to employee-driven lawsuits based on its upcoming job reclassifications

TSA is concerned that its plan to reclassify some of its senior level employees at its headquarters, as well as its future plans to reclassify some of its lower-paid employees, could adversely impact some employees who are in “protected classes” -- such as race, national origin, gender and age -- which in turn could lead to lawsuits.

“The reclassification process has the potential to impact employees in these positions through a change in assignment, supervisory status, pay-band, or some combination of the above,” said TSA in a statement of work that it issued on June 18. That document described TSA’s intention to hire a small business consulting firm to review TSA’s business rules for how it reclassifies its employees, perform a “risk analysis” of these processes, and conduct an “impact analysis” that takes into account various legal trends developing across the country.

“The Contractor shall use the results of its evaluation to assess whether TSA faces any risk of adverse impact-based litigation related to the implementation of the Headquarters reclassification, and if so, the degree of risk associated with the outcomes of this process,” said the statement of work.

TSA indicated that its current reclassification efforts, which began in 2011 and will be completed in the next three months, are focused primarily on senior-level employees, in what are called K- or L-band positions (which are equivalent to GS-15-level jobs). But TSA acknowledged that “lower pay-banded positions may be affected in the future.”

Essentially, TSA wants to hire an outside firm that can provide an independent analysis that can be compared alongside the analysis developed by its own Organizational Assessment Services (OAS) branch, which falls under its Office of Human Capital.

TSA expects that its selected small business vendor will “serve as a ‘check and balance’ of TSA’s internal review process by conducting its own independent analyses and assessing the accuracy and validity of TSA’s analyses,” said the statement of work.

TSA appears to be worried that some of its reclassification actions could lead to employee-generated lawsuits. For that reason, it insists that its selected vendor be up-to-speed with the current legal landscape on such matters, as it develops its report to the agency. “This report shall include expert guidance for interpreting the results of the data analysis within the context of existing laws, recent court decisions, and current trends for adverse impact/EEO [equal employment opportunity] complaints and legislation,” said the agency.

It also appears that TSA wants to assemble reports and analyses that might, in the future, be submitted as evidence to jurors in a courtroom or other laymen. “Interpretations and recommendations shall be presented in a manner that will be understandable by individuals having no technical or statistical background,” said the document, “and shall detail the implications of results in relation to TSA’s reclassification process.”

TSA envisions a firm-fixed-price small business set-aside contract that would have an eight-month base period plus a six-month option period.

Prospective vendors are required to respond to TSA by June 28.

Additional information is available from Victor Carden at 571-227-4834 or Victor.Carden@dhs.gov.