§ 5362. Grade retention following a change of positions or reclassification

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. 1978

   Pub. L. 95–454 title VIII § 801(a)(1) · 92 Stat. 1111

   Enacted · 5 U.S.C. § 5362

   Added Pub. L. 95–454, title VIII, § 801(a)(1), Oct. 13, 1978, 92 Stat. 1219

   Source evidence

   Code source credit
   Added Pub. L. 95–454, title VIII, § 801(a)(1), Oct. 13, 1978, 92 Stat. 1219

   Enacted provision · exact public law section
   (1) Chapter 53 of title 5, United States Code, relating 5 USC 5301 et seq. 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 5 USC 5342. temporary or term basis; “(2) ‘agency’ has the meaning given it by section 5102 of this title; 5 USC 5102. “(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 USC 5343. “(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; Ante, p. 1180. “(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. “§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 Ante, p. 1180. 5 USC 5501. 5 USC 8301, 8701. 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 Ante, p. 1181. “(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 5 USC 5303. “(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 5 USC 5101, 5301. Ante, p. 1180. 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. “§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— Ante, p. 1192. “(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. 1984

   Civil Service Retirement Spouse Equity Act of 1984

   Pub. L. 98–615 title II § 204(a)(1) · 98 Stat. 3195

   Substituted · 5 U.S.C. § 5362(c)(3)

   Pub. L. 98–615 substituted “performance management and recognition system established under chapter 54” for “merit pay system established under section 5402”

   Source evidence

   Code amendment note
   Subsec. (c)(3). Pub. L. 98–615 substituted “performance management and recognition system established under chapter 54” for “merit pay system established under section 5402”.

   Enacted provision · exact public law section
   (1) in sections 4501(2)(A), 5332(a), 5334(c)(2), 5334(f), 5335(e), 5336(c), and 5362(c)(3), by striking out “the merit pay system established under section 5402” each place it appears and inserting in lieu thereof “the performance management and recognition system established under chapter 54”;

3. 1993

   Pub. L. 103–89 § 3(b)(1)(K) · 107 Stat. 981

   1. Substituted · 5 U.S.C. § 5362(c)

      Pub. L. 103–89 substituted “chapter 55 of this title, retirement and life insurance under chapters 83, 84, and 87” for “chapters 54 and 55 of this title, retirement and life insurance under chapters 83 and 87” in introductory provisions

   2. Redesignated · 5 U.S.C. § 5362(c)

      Pub. L. 103–89 redesignated par. (4) as (3)

   3. Struck · 5 U.S.C. § 5362(c)

      Pub. L. 103–89 struck out former par. (3) which read as follows: “for purposes of determining whether the employee is covered by the performance management and recognition system established under chapter 54 of this title, or”

   Source evidence

   Code amendment note
   Subsec. (c). Pub. L. 103–89 substituted “chapter 55 of this title, retirement and life insurance under chapters 83, 84, and 87” for “chapters 54 and 55 of this title, retirement and life insurance under chapters 83 and 87” in introductory provisions, redesignated par. (4) as (3), and struck out former par. (3) which read as follows: “for purposes of determining whether the employee is covered by the performance management and recognition system established under chapter 54 of this title, or”.

   Enacted provision · exact public law section
   (K) in section 5362(c)— (i) in the matter before paragraph (1) by striking “chapters 54 and 55 of this title, retirement and life insurance under chapters 83 and 87” and inserting “chapter 55 of this title, retirement and life insurance under chapters 83, 84, and 87”; (ii) by inserting “or” at the end of paragraph (2); and (iii) by striking paragraph (3) and redesignating paragraph (4) as paragraph (3);

   Effective date note
   Amendment by Pub. L. 103–89 effective Nov. 1, 1993, see section 3(c) of Pub. L. 103–89, set out as a note under section 3372 of this title.

5 of 5 references resolved to an enrolled provision