1. U.S. Code
  2. title 5
  3. part III
  4. subpart D
  5. chapter 53
  6. subchapter VI
  7. § 5365

Collapse to view only § 5365. Regulations

§ 5361. DefinitionsFor 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—
(A) the rate of basic pay payable to an employee under law or regulations before any deductions or additions of any kind, but including—
(i) any applicable locality-based comparability payment under section 5304 or similar provision of law;
(ii) any applicable special pay under section 5305 or similar provision of law; and
(iii) subject to such regulations as the Office of Personnel Management may prescribe, any applicable existing retained rate of pay established under section 5363 or similar provision of law; and
(B) in the case of a prevailing rate employee, the scheduled rate of pay determined under section 5343;
(5) “covered pay schedule” means the General Schedule, any prevailing rate schedule established under subchapter IV of this chapter, or a special occupational pay system under subchapter IX;
(6) “position subject to this subchapter” means any position under a covered pay schedule;
(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; and
(8) “retained rate” means the rate of basic pay to which an employee is entitled under section 5363(b)(2).
(Added Pub. L. 95–454, title VIII, § 801(a)(1), Oct. 13, 1978, 92 Stat. 1218; amended Pub. L. 98–615, title II, § 204(a)(2), Nov. 8, 1984, 98 Stat. 3216; Pub. L. 101–509, title V, § 529 [title I, § 105(b)(1)], Nov. 5, 1990, 104 Stat. 1427, 1448; Pub. L. 103–89, § 3(b)(1)(J), Sept. 30, 1993, 107 Stat. 982; Pub. L. 108–411, title III, § 301(a)(4), Oct. 30, 2004, 118 Stat. 2315.)

CITE AS: 5 USC 5361

§ 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 chapter 55 of this title, retirement and life insurance under chapters 83, 84, 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, or
(3) 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.
(Added Pub. L. 95–454, title VIII, § 801(a)(1), Oct. 13, 1978, 92 Stat. 1219; amended Pub. L. 98–615, title II, § 204(a)(1), Nov. 8, 1984, 98 Stat. 3216; Pub. L. 103–89, § 3(b)(1)(K), Sept. 30, 1993, 107 Stat. 982.)

CITE AS: 5 USC 5362

§ 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 5305 of this title (or corresponding prior provision of this title);
(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; or
(4) who is in a position subject to this subchapter and who is subject to a reduction or termination of a rate of pay established under subchapter IX of chapter 53;
is entitled to a rate of basic pay in accordance with regulations prescribed by the Office of Personnel Management in conformity with the provisions of this section.
(b)
(1)
(A) If, as a result of any event described in subsection (a), the employee’s former rate of basic pay is less than or equal to the maximum rate of basic pay payable for the grade of the employee’s position immediately after the occurrence of the event involved, the employee is entitled to basic pay at the lowest rate of basic pay payable for such grade that equals or exceeds such former rate of basic pay.
(B) This section shall cease to apply to an employee to whom subparagraph (A) applies once the appropriate rate of basic pay has been determined for such employee under this paragraph.
(2)
(A) If, as a result of any event described in subsection (a), the employee’s former rate of basic pay is greater than the maximum rate of basic pay payable for the grade of the employee’s position immediately after the occurrence of the event involved, the employee is entitled to basic pay at a rate equal to the lesser of—
(i) the employee’s former rate of basic pay; or
(ii) 150 percent of the maximum rate of basic pay payable for the grade of the employee’s position immediately after the occurrence of the event involved,
as adjusted by subparagraph (B).
(B) A rate to which an employee is entitled under this paragraph shall be increased at the time of any increase in the maximum rate of basic pay payable for the grade of the employee’s position by 50 percent of the dollar amount of each such increase.
(3) For purposes of this subsection, the term “former rate of basic pay”, as used with respect to an employee in connection with an event described in subsection (a), means the rate of basic pay last received by such employee before the occurrence of such event.
(c)
(1) Notwithstanding any other provision of this section, in the case of an employee who—
(A) moves to a new official duty station, and
(B) in conjunction with such move, becomes subject to both a different pay schedule and (disregarding this subsection) the preceding provisions of this section,
this section shall be applied—
(i) first, by determining the rate of pay to which such employee would be entitled at the new official duty station based on such employee’s position, grade, and step (or relative position in the pay range) before the move, and
(ii) then, by applying the provisions of this section that would apply (if any), treating the rate determined under clause (i) as if it were the rate last received by the employee before the application of this section.
(2) A reduction in an employee’s rate of basic pay resulting from a determination under paragraph (1)(ii) is not a basis for an entitlement under this section.
(3) The rate of basic pay for an employee who is receiving a retained rate at the time of moving to a new official duty station at which different pay schedules apply shall be subject to regulations prescribed by the Office of Personnel Management consistent with the purposes of this section.
(d) A retained rate shall be considered part of basic pay for purposes of this subchapter and for purposes of subchapter III of chapter 83, chapters 84 and 87, subchapter V of chapter 55, section 5941, and for such other purposes as may be expressly provided for by law or as the Office of Personnel Management may by regulation prescribe. The Office shall, for any purpose other than any of the purposes referred to in the preceding sentence, prescribe by regulation what constitutes basic pay for employees receiving a retained rate.
(e) This section shall not apply, or shall cease to apply, to an employee who—
(1) has a break in service of 1 workday or more;
(2) is entitled, by operation of this subchapter, chapter 51 or 53, or any other provision of law, 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 retained rate to which the employee would otherwise be entitled; or
(3) is demoted for personal cause or at the employee’s request.
(Added Pub. L. 95–454, title VIII, § 801(a)(1), Oct. 13, 1978, 92 Stat. 1219; amended Pub. L. 101–509, title V, § 529 [title I, §§ 101(b)(3)(B), 105(b)(2)], Nov. 5, 1990, 104 Stat. 1427, 1439, 1448; Pub. L. 103–89, § 3(b)(1)(L), Sept. 30, 1993, 107 Stat. 982; Pub. L. 108–411, title III, § 301(a)(5), Oct. 30, 2004, 118 Stat. 2316.)

CITE AS: 5 USC 5363

§ 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.
(Added Pub. L. 95–454, title VIII, § 801(a)(1), Oct. 13, 1978, 92 Stat. 1220.)

CITE AS: 5 USC 5364

§ 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 (subject to any conditions or limitations the Office may establish)—
(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.
Individuals with respect to whom authority under paragraph (2) may be exercised include individuals who are moved without a break in service of more than 3 days from employment in nonappropriated fund instrumentalities of the Department of Defense or the Coast Guard described in section 2105(c) to employment in the Department of Defense or the Coast Guard, respectively, that is not described in section 2105(c).
(Added Pub. L. 95–454, title VIII, § 801(a)(1), Oct. 13, 1978, 92 Stat. 1220; amended Pub. L. 101–508, title VII, § 7202(f), Nov. 5, 1990, 104 Stat. 1388–336; Pub. L. 108–411, title III, § 301(a)(6), Oct. 30, 2004, 118 Stat. 2317.)

CITE AS: 5 USC 5365

§ 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.
(Added Pub. L. 95–454, title VIII, § 801(a)(1), Oct. 13, 1978, 92 Stat. 1221.)

CITE AS: 5 USC 5366