grade and pay retention

grade and pay retention Sec. 801. (a) (1) Chapter 53 of title 5, United States Code, relating to pay rates and systems, is amended by inserting after subchapter V thereof the following new subchapter: “SUBCHAPTER VI— GRADE AND PAY RETENTION “§5361. Definitions “For the purpose of this subchapter— “(1) ‘employee’ means an employee to whom chapter 51 of this title applies, and a prevailing rate employee, as defined by section 5342(a)(2) of this title, whose employment is other than on a temporary or term basis; “(2) ‘agency’ has the meaning given it by section 5102 of this title; “(3) ‘retained grade’ means the grade used for determining benefits to which an employee to whom section 5362 of this title applies is entitled; “(4) ‘rate of basic pay’ means, in the case of a prevailing rate employee, the scheduled rate of pay determined under section 5343 of this title; “(5) ‘covered pay schedule’ means the General Schedule, any prevailing rate schedule established under subchapter IV of this chapter, or the merit pay system under chapter 54 of this title; “(6) ‘position subject to this subchapter’ means any position under a covered pay schedule; and “(7) ‘reduction-in-force procedures’ means procedures applied in carrying out any reduction in force due to a reorganization, due to lack of funds or curtailment of work, or due to any other factor. 92 STAT. 1219 “§5362. Grade retention following a change of positions or reclassification “(a) Any employee— “(1) who is placed as a result of reduction-in-force procedures from a position subject to this subchapter to another position which is subject to this subchapter and which is in a lower grade than the previous position, and “(2) who has served for 52 consecutive weeks or more in one or more positions subject to this subchapter at a grade or grades higher than that of the new position, is entitled, to the extent provided in subsection (c) of this section, to have the grade of the position held immediately before such placement be considered to be the retained grade of the employee in any position he holds for the 2-year period beginning on the date of such placement. “(b) (1) Any employee who is in a position subject to this subchapter and whose position has been reduced in grade is entitled, to the extent provided in subsection (c) of this section, to have the grade of such position before reduction be treated as the retained grade of such employee for the 2-year period beginning on the date of the reduction in grade. “(2) The provisions of paragraph (1) of this subsection shall not apply with respect to any reduction in the grade of a position which had not been classified at the higher grade for a continuous period of at least one year immediately before such reduction. “(c) For the 2-year period referred to in subsections (a) and (b) of this section, the retained grade of an employee under such subsection (a) or (b) shall be treated as the grade of the employee’s position for all purposes (including pay and pay administration under this chapter and chapters 54 and 55 of this title, retirement and life insurance under chapters 83 and 87 of this title, and eligibility for training and promotion under this title) except— “(1) for purposes of subsection (a) of this section, “(2) for purposes of applying any reduction-in-force procedures, “(3) for purposes of determining whether the employee is covered by the merit pay system established under section 5402 of this title, or “(4) for such other purposes as the Office of Personnel Management may provide by regulation. “(d) The foregoing provisions of this section shall cease to apply to an employee who— “(1) has a break in service of one workday or more; “(2) is demoted (determined without regard to this section) for personal cause or at the employee’s request; “(3) is placed in, or declines a reasonable offer of, a position the grade of which is equal to or higher than the retained grade; or “(4) elects in writing to have the benefits of this section terminate. “§5363. Pay retention “(a) Any employee— “(1) who ceases to be entitled to the benefits of section 5362 of this title by reason of the expiration of the 2-year period of coverage provided under such section; “(2) who is in a position subject to this subchapter and who is subject to a reduction or termination of a special rate of pay established under section 5303 of this title; or 92 STAT. 1220 “(3) who is in a position subject to this subchapter and who (but for this section) would be subject to a reduction in pay under circumstances prescribed by the Office of Personnel Management by regulation to warrant the application of this section; is entitled to basic pay at a rate equal to (A) the employee’s allowable former rate of basic pay, plus (B) 50 percent of the amount of each increase in the maximum rate of basic pay payable for the grade of the employee’s position immediately after such reduction in pay if such allowable former rate exceeds such maximum rate for such grade. “(b) For the purpose of subsection (a) of this section, ‘allowable former rate of basic pay’ means the lower of— “(1) the rate of basic pay payable to the employee immediately before the reduction in pay; or “(2) 160 percent of the maximum rate of basic pay payable for the grade of the employee’s position immediately after such reduction in pay. “(c) The preceding provisions of this section shall cease to apply to an employee who— “(1) has a break in service of one workday or more; “(2) is entitled by operation of this subchapter or chapter 51, 53, or 54 of this title to a rate of basic pay which is equal to or higher than, or declines a reasonable offer of a position the rate of basic pay for which is equal to or higher than, the rate to which the employee is entitled under this section; or “(3) is demoted for personal cause or at the employee’s request. “§5364. Remedial actions “Under regulations prescribed by the Office of Personnel Management, the Office may require any agency— “(1) to report to the Office information with respect to vacancies (including impending vacancies) ; “(2) to take such steps as may be appropriate to assure employees receiving benefits under section 5362 or 5363 of this title have the opportunity to obtain necessary qualifications for the selection to positions which would minimize the need for the application of such sections; “(3) to establish a program under which employees receiving benefits under section 5362 or 5363 of this title are given priority in the consideration for or placement in positions which are equal to their retained grade or pay; and “(4) to place certain employees, notwithstanding the fact their previous position was in a different agency, but only in circumstances in which the Office determines the exercise of such authority is necessary to carry out the purpose of this section. “§5365. Regulations “(a) The Office of Personnel Management shall prescribe regulations to carry out the purpose of this subchapter. “(b) Under such regulations, the Office may provide for the application of all or portions of the provisions of this subchapter— “(1) to any individual reduced to a grade of a covered pay schedule from a position not subject to this subchapter; “(2) to individuals to whom such provisions do not otherwise apply; and “(3) to situations the application to which is justified for purposes of carrying out the mission of the agency or agencies involved. 92 STAT. 1221 “§5366. Appeals “(a) (1) In the case of the termination of any benefits available to an employee under this subchapter on the grounds such employee declined a reasonable offer of a position the grade or pay of which was equal to or greater than his retained grade or pay, such termination may be appealed to the Office of Personnel Management under procedures prescribed by the Office. “(2) Nothing in this subchapter shall be construed to affect the right of any employee to appeal— “(A) under section 5112(b) or 5346(c) of this title, or otherwise, any reclassification of a position; or “(B) under procedures prescribed by the Office of Personnel Management, any reduction-in-force action. “(b) For purposes of any appeal procedures (other than those described in subsection (a) of this section) or any grievance procedure negotiated under the provisions of chapter 71 of this title— “(1) any action which is the basis of an individual’s entitlement to benefits under this subchapter, and “(2) any termination of any such benefits under this subchapter, shall not be treated as appealable under such appeals procedures or grievable under such grievance procedure.”. (2) Sections 5334(d), 5337, and 5345 of title 5, United States Code, are hereby repealed. (3) (A) Chapter 53 of title 5, United States Code, is amended— (i) by redesignating subchapter VI as subchapter VII, and (ii) by redesignating sections 5361 through 5365 as sections 5371 through 5375, respectively. (B) (i) The analysis of chapter 53 of title 5, United States Code, is amended by striking out the items relating to subchapter VI thereof and inserting in lieu thereof the following: “SUBCHAPTER VI—GRADE AND PAY RETENTION “Sec. “5361. Definitions. “5362. Grade retention following a change of positions or reclassification. “5363. Pay retention. “5364. Remedial actions. “5365. Regulations. “5366. Appeals. “SUBCHAPTER VII—MISCELLANEOUS PROVISIONS “Sec. “5371. Scientific and professional positions. “5372. Administrative law judges. “5373. Limitation on pay fixed by administrative action. “5374. Miscellaneous positions in the executive branch. “5375. Police force of National Zoological Park.”. (ii) The analysis of such chapter is further amended by striking out the items relating to sections 5337 and 5345, respectively. (iii) Sections 559 and 1305 of title 5, United States Code, are each amended by striking out “5362,” each place it appears and inserting “5372,” in lieu thereof. (C) Section 3104(b) of title 5, United States Code, as redesignated by this Act, is amended by striking out “section 5361” and inserting “section 5371” in lieu thereof. (D) Section 5102(c) (5) of title 5, United States Code, is amended by striking out “section 5365” and inserting “section 5375” in lieu thereof. 92 STAT. 1222 (E) Sections 5107 and 8704(d)(1) of title 5, United States Code, are each amended by striking out “section 5337” and inserting in lieu thereof “subchapter VI of chapter 53”. (F) Section 5334(b) of title 5, United States Code, is amended by striking out “section 5337 of this title” each place it appears and inserting in lieu thereof “subchapter VI of this chapter”. (G) Section 5334 of title 5, United States Code, is amended by redesignating subsections (e) and (f) as subsections (d) and (e), respectively. (H) Section 5349(a) of title 5, United States Code, is amended— (i) by striking out “section 5345, relating to retention of pay,” and inserting in lieu thereof “subchapter VI of this chapter, relating to grade and pay retention,”; (ii) by striking out “section 5345 of this title” and inserting in lieu thereof “subchapter VI of this chapter”; and (iii) by striking out “paragraph (2) of section 5345(a)” and inserting in lieu thereof “section 5361 (1)”. (I) Sections 4540(c), 7212(a), and 9540(c) of title 10, United States Code, are each amended by inserting after “of title 5” the following: “and subchapter VI of chapter 53 of such title 5”. (J) Section 1416(a) of the Act of August 1, 1968 (Public Law 90–448; 15 U.S.C. 1715(a)), and section 808(c) of the Act of April 11, 1968 (Public Law 90–284; 42 U.S.C. 3608(b)), are each amended by striking out “5362,” and inserting in lieu thereof “5372,”. (4) (A) The amendments made by this subsection shall take effect on the first day of the first applicable pay period beginning on or after the 90th day after the date of the enactment of this Act. (B) An employee who was receiving pay under the provisions of section 5334(d), 5337, or 5345 of title 5, United States Code, on the day before the effective date prescribed in subparagraph (A) of this paragraph shall not have such pay reduced or terminated by reason of the amendments made by this subsection and, unless section 5362 of such title 5 (as amended by subsection (a) (1) of this section) applies, such an employee is entitled to continue to receive pay as authorized by those provisions (as in effect on such date). (b) (1) Under regulations prescribed by the Office of Personnel Management, any employee— (A) whose grade was reduced on or after January 1, 1977, and before the effective date of the amendments made by subsection (a) of this section under circumstances which would have entitled the employee to coverage under the provisions of section 5362 of title 5, United States Code (as amended by subsection (a) of this section) if such amendments had been in effect at the time of the reduction; and (B) who has remained employed by the Federal Government from the date of the reduction in grade to the effective date of the amendments made by subsection (a) of this section without a break in service of one workday or more; shall be entitled— (i) to receive the additional pay and benefits which such employee would have been entitled to receive if the amendments made by subsection (a) of this section had been in effect during the period beginning on the effective date of such reduction in grade and ending on the day before the effective date of such amendments, and (ii) to have the amendments made by subsection (a) of this section apply to such employee as if the reduction in grade had occurred on the effective date of such amendments. 92 STAT. 1223 (2) No employee covered by this subsection whose reduction in grade resulted in an increase in pay shall have such pay reduced by reason of the amendments made by subsection (a) of this section. (3) (A) For purposes of this subsection, the requirements under paragraph (1) (B) of this subsection, relating to continuous employment following reduction in grade, shall be considered to be met in the case of any employee— (i) who separated from service with a right to an immediate annuity under chapter 83 of title 5, United States Code, or under another retirement system for Federal employees; or (ii) who died. (B) Amounts payable by reason of subparagraph (A) of this paragraph in the case of the death of an employee shall be paid in accordance with the provisions of subchapter VI I I of chapter 55 of title 5, United States Code, relating to settlement of accounts in the case of deceased employees. (4) The Office of Personnel Management shall have the same authority to prescribe regulations under this subsection as it has under section 5365 of title 5, United States Code, with respect to subchapter VI of chapter 53 of such title, as added by subsection (a) of this section.