§ 4303. Actions based on unacceptable performance

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

1. 1966

   Pub. L. 89–554 · 80 Stat. 378

   Enacted · 5 U.S.C. § 4303

   Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 440

   Source evidence

   Code source credit
   Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 440

2. 1978

   Pub. L. 95–454 title II § 203(a) · 92 Stat. 1111

   Substituted · 5 U.S.C. § 4303

   Pub. L. 95–454 substituted “Actions based on unacceptable performance” for “Performance-rating plans; requirements for” in section catchline and in text substituted provisions relating to actions based on unacceptable performance, for provisions relating to requirements for performance-rating plans

   Source evidence

   Code amendment note
   Pub. L. 95–454 substituted “Actions based on unacceptable performance” for “Performance-rating plans; requirements for” in section catchline and in text substituted provisions relating to actions based on unacceptable performance, for provisions relating to requirements for performance-rating plans.

   Enacted provision · exact public law section
   (a) Chapter 43 of title 5, United States Code, is amended to read as follows: “CHAPTER 43— PERFORMANCE APPRAISAL “SUBCHAPTER I—GENERAL PROVISIONS “Sec. “4301. Definitions. “4302. Establishment of performance appraisal systems. “4303. Actions based on unacceptable performance. “4304. Responsibilities of Office of Personnel Management. “4305. Regulations. “§4301. Definitions “For the purpose of this subchapter— “(1) ‘agency’ means— “(A) an Executive agency; “(B) the Administrative Office of the United States Courts; and “(C) the Government Printing Office; but does not include— “(i) a Government corporation; “(ii) the Central Intelligence Agency, the Defense Intelligence Agency, the National Security Agency, or any Executive agency or unit thereof which is designated by the President and the principal function of which is the conduct of foreign intelligence or counterintelligence activities; or “(iii) the General Accounting Office; “(2) ‘employee’ means an individual employed in or under an agency, but does not include— “(A) an employee outside the United States who is paid in accordance with local native prevailing wage rates for the area in which employed; “(B) an individual in the Foreign Service of the United States; “(C) a physician, dentist, nurse, or other employee in the Department of Medicine and Surgery, Veterans’ Administration whose pay is fixed under chapter 73 of title 38; 38 USC 4101 et seq. “(D) an administrative law judge appointed under section 3105 of this title; “(E) an individual in the Senior Executive Service; “(F) an individual appointed by the President; or “(G) an individual occupying a position not in the competitive service excluded from coverage of this subchapter by regulations of the Office of Personnel Management; and “(3) ‘unacceptable performance’ means performance of an employee which fails to meet established performance standards in one or more critical elements of such employee’s position. “§4302. Establishment of performance appraisal systems “(a) Each agency shall develop one or more performance appraisal systems which— “(1) provide for periodic appraisals of job performance of employees; “(2) encourage employee participation in establishing performance standards; and “(3) use the results of performance appraisals as a basis for training, rewarding, reassigning, promoting, reducing in grade, retaining, and removing employees; “(b) Under regulations which the Office of Personnel Management shall prescribe, each performance appraisal system shall provide for— “(1) establishing performance standards which will, to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria (which may include the extent of courtesy demonstrated to the public) related to the job in question for each employee or position under the system; “(2) as soon as practicable, but not later than October 1, 1981, with respect to initial appraisal periods, and thereafter at the beginning of each following appraisal period, communicating to each employee the performance standards and the critical elements of the employee’s position; “(3) evaluating each employee during the appraisal period on such standards; “(4) recognizing and rewarding employees whose performance so warrants; “(5) assisting employees in improving unacceptable performance; and “(6) reassigning, reducing in grade, or removing employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance. “§4303. Actions based on unacceptable performance “(a) Subject to the provisions of this section, an agency may reduce Removal or reduction in grade. in grade or remove an employee for unacceptable performance. “(b) (1) An employee whose reduction in grade or removal is proposed under this section is entitled to— “(A) 30 days’ advance written notice of the proposed action Notice. which identifies— “(i) specific instances of unacceptable performance by the employee on which the proposed action is based; and “(ii) the critical elements of the employee’s position involved in each instance of unacceptable performance; “(B) be represented by an attorney or other representative; Representation. “(C) a reasonable time to answer orally and in writing; and “(D) a written decision which— Written decision. “(i) in the case of a reduction in grade or removal under this section, specifies the instances of unacceptable performance by the employee on which the reduction in grade or removal is based, and “(ii) unless proposed by the head of the agency, has been concurred in by an employee who is in a higher position than the employee who proposed the action. “(2) An agency may, under regulations prescribed by the head of Extension of notice. such agency, extend the notice period under subsection (b) (1) (A) of this section for not more than 30 days. An agency may extend the notice period for more than 30 days only in accordance with regulations issued by the Office of Personnel Management. “(c) The decision to retain, reduce in grade, or remove an employee— “(1) shall be made within 30 days after the date of expiration of the notice period, and “(2) in the case of a reduction in grade or removal, may be based only on those instances of unacceptable performance by the employee— “(A) which occurred during the 1-year period ending on the date of the notice under subsection (b)(1)(A) of this section in connection with the decision; and “(B) for which the notice and other requirements of this section are complied with. “(d) If, because of performance improvement by the employee during the notice period, the employee is not reduced in grade or removed, and the employee’s performance continues to be acceptable for 1 year from the date of the advance written notice provided under subsection (b) (1) (A) of this section, any entry or other notation of the unacceptable performance for which the action was proposed under this section shall be removed from any agency record relating to the employee. “(e) Any employee who is a preference eligible or is in the competitive service and who has been reduced in grade or removed under this section is entitled to appeal the action to the Merit Systems Protection Board under section 7701 of this title. Post, p. 1138. “(f) This section does not apply to— “(1) the reduction to the grade previously held of a supervisor or manager who has not completed the probationary period under section 3321 (a) (2) of this title, 5 USC 3321. “(2) the reduction in grade or removal of an employee in the competitive service who is serving a probationary or trial period under an initial appointment or who has not completed 1 year of current continuous employment under other than a temporary appointment limited to 1 year or less, or “(3) the reduction in grade or removal of an employee in the excepted service who has not completed 1 year of current continuous employment in the same or similar positions. “§4304. Responsibilities of the Office of Personnel Management “(a) The Office of Personnel Management shall make technical Technical assistance. assistance available to agencies in the development of performance appraisal systems. “(b) (1) The Office shall review each performance appraisal system Review of performance appraisal system. developed by any agency under this section and determine whether the performance appraisal system meets the requirements of this subchapter. “(2) The Comptroller General shall from time to time review on a selected basis performance appraisal systems established under this subchapter to determine the extent to which any such system meets the requirements of this subchapter and shall periodically report its findings to the Office and to the Congress. “(3) If the Office determines that a system does not meet the requirements of this subchapter (including regulations prescribed under section 4305), the Office shall direct the agency to implement an appropriate system or to correct operations under the system, and any such agency shall take any action so required. “§4305. Regulations “The Office of Personnel Management may prescribe regulations to carry out the purpose of this subchapter.”.

3. 1990

   Civil Service Due Process Amendments

   Pub. L. 101–376 § 2(b) · 104 Stat. 461

   Amended · 5 U.S.C. § 4303(e)

   Pub. L. 101–376 amended subsec. (e) generally. Prior to amendment, subsec. (e) read as follows: “Any employee who is a preference eligible or is in the competitive service and who has been reduced in grade or removed under this section is entitled to appeal the action to the Merit Systems Protection Board under section 7701 of this title.”

   Source evidence

   Code amendment note
   Subsec. (e). Pub. L. 101–376 amended subsec. (e) generally. Prior to amendment, subsec. (e) read as follows: “Any employee who is a preference eligible or is in the competitive service and who has been reduced in grade or removed under this section is entitled to appeal the action to the Merit Systems Protection Board under section 7701 of this title.”

   Enacted provision · exact public law section
   (b) Actions Based on Unacceptable Performance.— Section 4303(e) of title 5, United States Code, is amended to read as follows: “(e) Any employee who is— “(1) a preference eligible; “(2) in the competitive service; or “(3) in the excepted service and covered by subchapter II of chapter 75, and who has been reduced in grade or removed under this section is entitled to appeal the action to the Merit Systems Protection Board under section 7701.”.

   Effective date note
   Pub. L. 101–376, § 2(c), Aug. 17, 1990, 104 Stat. 462, provided that: “The amendments made by this section [amending this section and section 7511 of this title] shall apply with respect to any personnel action taking effect on or after the effective date of this Act [see below].” Pub. L. 101–376, § 4, Aug. 17, 1990, 104 Stat. 463, provided that: “This Act and the amendments made by this Act [amending this section, sections 7511 and 7701 of this title, and enacting provisions set out as notes under this section and section 7501 of this title] shall become effective on the date of the enactment of this Act [Aug. 17, 1990], and, except as provided in section 2(c) [set out above], shall apply with respect to any appeal or other proceeding brought on or after such date.”

4. 2017

   Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017

   Pub. L. 115–41 title II § 202(b)(2) · 131 Stat. 862

   Added · 5 U.S.C. § 4303(f)(4)

   Pub. L. 115–41 added par. (4)

   Source evidence

   Code amendment note
   Subsec. (f)(4). Pub. L. 115–41 added par. (4).

   Enacted provision · exact public law section
   (2) Conforming.— Section 4303(f) of title 5, United States Code, is amended— (A) in paragraph (2), by striking “or” at the end; (B) in paragraph (3), by striking the period at the end and inserting “, or”; and (C) by adding at the end the following: “(4) any removal or demotion under section 714 of title 38.” .

3 of 4 references resolved to an enrolled provision · 1 partial