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5 U.S.C. § 5363 — Pay retention

Federal law — U.S. Code and appendices · legal_authorities

5 U.S.C. § 5363 — Pay retention

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Source file: Laws/federal/codes/united-states-code/title-5/section-5363-pay-retention--7e0685a5bb.md
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Source location: Title 5, Chapter 53, § 5363; chapter-053-pay-rates-and-systems.md

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**(a)** Any employee— (1) who ceases to be entitled to the benefits of [section 5362 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section5362&num=0&edition=prelim) 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](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section5305&num=0&edition=prelim) (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.

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Federal law — U.S. Code and appendices · legal_authorities

5 U.S.C. § 5373 — Limitation on pay fixed by administrative action

**(a)** Except as provided in subsection (b) and by the Government Employees Salary Reform Act of 1964 (78 Stat. 400) and notwithstanding the provisions of other statutes, the head of an Executive agency or military department who is authorized to fix by administrative action the annual rate of basic pay for a position or employee may not fix the rate at more than the rate for level IV of the Executive Schedule. This section does not impair the authorities provided by— (1) sections 248, 482, 1766, and 1819 of title 12, section 206 of the Bank Conservation Act, sections 2B(b) 11 See References in Text note below. and 21A(e)(4) 1 of the Federal Home Loan Bank Act, section 2A(i) 1 of the Home Owners’ Loan Act, and sections 5.11 and 5.58 of the Farm Credit Act of 1971; (2) [section 831b of title 16](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title16-section831b&num=0&edition=prelim); (3) sections 403a–403c, 403e–403h, and 403j of title 50; 1 or (4) 22 So in original. Two pars. (4) have been enacted. section 4802. (4) 2 section 2(a)(7) of the Commodity Exchange Act ([7 U.S.C. 2(a)(7)](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title7-section2/a/7&num=0&edition=prelim)). **(b)** Subsection (a) shall not affect the authority of the Secretary of Defense or the Secretary of a military department to fix the pay of a civilian employee paid from nonappropriated funds, except that the annual rate of basic pay (including any portion of such pay attributable to comparability with private-sector pay in a locality) of such an employee may not be fixed at a rate greater than the rate for level III of the Executive Schedule.

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Federal law — U.S. Code and appendices · legal_authorities

5 U.S.C. § 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

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5 U.S.C. § 3372 — General provisions

**(a)** On request from or with the concurrence of a State or local government, and with the consent of the employee concerned, the head of a Federal agency may arrange for the assignment of— (1) an employee of his agency, other than a noncareer appointee, limited term appointee, or limited emergency appointee (as such terms are defined in [section 3132(a) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section3132/a&num=0&edition=prelim)) in the Senior Executive Service and an employee in a position which has been excepted from the competitive service by reason of its confidential, policy-determining, policy-making, or policy-advocating character, to a State or local government; and (2) an employee of a State or local government to his agency; for work of mutual concern to his agency and the State or local government that he determines will be beneficial to both. The period of an assignment under this subchapter may not exceed two years. However, the head of a Federal agency may extend the period of assignment for not more than two additional years. In the case of assignments made to Indian tribes or tribal organizations as defined in section 3371(2)(C) of this subchapter, the head of an executive agency may extend the period of assignment for any period of time where it is determined that this will continue to benefit both the executive agency and the Indian tribe or tribal organization. If the assigned employee fails to complete the period of assignment and there is another employee willing and available to do so, the Secretary may assign the employee to complete the period of assignment and may execute an agreement with the tribal organization with respect to the replacement employee. That agreement may provide for a different pe

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Federal law — U.S. Code and appendices · legal_authorities

5 U.S.C. § 5305 — Special pay authority

**(a)** (1) Whenever the Office of Personnel Management finds that the Government’s recruitment or retention efforts with respect to 1 or more occupations in 1 or more areas or locations are, or are likely to become, significantly handicapped due to any of the circumstances described in subsection (b), the Office may establish for the areas or locations involved, with respect to individuals in positions paid under any of the pay systems referred to in subsection (c), higher minimum rates of pay for 1 or more grades or levels, occupational groups, series, classes, or subdivisions thereof, and may make corresponding increases in all rates of the pay range for each such grade or level. However, a minimum rate so established may not exceed the maximum rate of basic pay (excluding any locality-based comparability payment under section 5304 or similar provision of law) for the grade or level by more than 30 percent, and no rate may be established under this section in excess of the rate of basic pay payable for level IV of the Executive Schedule. In the case of individuals not subject to the provisions of this title governing appointment in the competitive service, the President may designate another agency to authorize special rates under this section. (2) The head of an agency may determine that a category of employees of the agency will not be covered by a special rate authorization established under this section. The head of an agency shall provide written notice to the Office of Personnel Management (or other agency designated by the President to authorize special rates under the last sentence of paragraph (1)) which identifies the specific category or categories of employees that will not be covered by special rates authorized under this section. If the head of an age

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Federal law — U.S. Code and appendices · legal_authorities

5 U.S.C. § 5304 — Locality-based comparability payments

**(a)** Pay disparities shall be identified and reduced as follows: (1) Comparability payments shall be payable within each locality determined to have a pay disparity greater than 5 percent. (2) (A) The localities having pay disparities, and the size of those disparities, shall, for purposes of any comparability payment scheduled to take effect in any calendar year, be determined in accordance with the appropriate report, as prepared and submitted to the President under subsection (d)(1) for purposes of such calendar year. (B) Any computation necessary to determine the size of the comparability payment to become payable for any locality in a year (as well as any determination as to the size of any pay disparity remaining after that comparability payment is made) shall likewise be made using data contained in the appropriate report (described in subparagraph (A)) so prepared and submitted for purposes of such calendar year. (3) Subject to paragraph (4), the amount of the comparability payments payable under this subsection in a calendar year within any locality in which a comparability payment is payable shall be computed using such percentage as the President determines for such locality under subsection (d)(2), except that— (A) the percentage for the first calendar year in which any amounts are payable under this section may not be less than ⅕ of the amount needed to reduce the pay disparity of the locality involved to 5 percent; (B) the percentage for the second calendar year in which any amounts are payable under this section may not be less than 3⁄10 of the amount needed to reduce the pay disparity of the locality involved to 5 percent; (C) the percentage for the third calendar year in which any amounts are payable under this section may not be le

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5 U.S.C. § 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](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section5342/a/2&num=0&edition=prelim), whose employment is other than on a temporary or term basis; (2) “agency” has the meaning given it by [section 5102 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section5102&num=0&edition=prelim); (3) “retained grade” means the grade used for determining benefits to which an employee to whom [section 5362 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section5362&num=0&edition=prelim) 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

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Federal law — U.S. Code and appendices · legal_authorities

5 U.S.C. § 5301 — Policy

It is the policy of Congress that Federal pay fixing for employees under the General Schedule be based on the principles that— (1) there be equal pay for substantially equal work within each local pay area; (2) within each local pay area, pay distinctions be maintained in keeping with work and performance distinctions; (3) Federal pay rates be comparable with non-Federal pay rates for the same levels of work within the same local pay area; and (4) any existing pay disparities between Federal and non-Federal employees should be completely eliminated.

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Federal law — U.S. Code and appendices · legal_authorities

5 U.S.C. § 3104 — Employment of specially qualified scientific and professional personnel

**(a)** The Director of the Office of Personnel Management may establish, and from time to time revise, the maximum number of scientific or professional positions for carrying out research and development functions which require the services of specially qualified personnel which may be established outside of the General Schedule. Any such position may be established by action of the Director or, under such standards and procedures as the Office prescribes and publishes in such form as the Director may determine (including procedures under which the prior approval of the Director may be required), by agency action. **(b)** The provisions of subsection (a) of this section shall not apply to any Senior Executive Service position (as defined in [section 3132(a) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section3132/a&num=0&edition=prelim)). **(c)** In addition to the number of positions authorized by subsection (a) of this section, the Librarian of Congress may establish, without regard to the second sentence of subsection (a) of this section, not more than 8 scientific or professional positions to carry out the research and development functions of the Library of Congress which require the services of specially qualified personnel.

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5 U.S.C. § 4505a — Performance-based cash awards

**(a)** (1) An employee whose most recent performance rating was at the fully successful level or higher (or the equivalent thereof) may be paid a cash award under this section. (2) A cash award under this section shall be equal to an amount determined appropriate by the head of the agency, but may not be more than 10 percent of the employee’s annual rate of basic pay. Notwithstanding the preceding sentence, the agency head may authorize a cash award equal to an amount exceeding 10 percent of the employee’s annual rate of basic pay if the agency head determines that exceptional performance by the employee justifies such an award, but in no case may an award under this section exceed 20 percent of the employee’s annual rate of basic pay. **(b)** (1) A cash award under this section shall be paid as a lump sum, and may not be considered to be part of the basic pay of an employee. (2) The failure to pay a cash award under this section, or the amount of such an award, may not be appealed. The preceding sentence shall not be construed to extinguish or lessen any right or remedy under subchapter II of chapter 12, chapter 71, or any of the laws referred to in section 2302(d). **(c)** The Office of Personnel Management shall prescribe such regulations as it considers necessary for the administration of subsections (a) and (b). **(d)** The preceding provisions of this section shall be applicable with respect to any employee to whom subchapter III of chapter 53 applies, and to any category of employees provided for under subsection (e). **(e)** At the request of the head of an Executive agency, the President may authorize the application of subsections (a) through (c) with respect to any category of employees within such agency who would not otherwise be covered by this se

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Federal law — U.S. Code and appendices · legal_authorities

5 U.S.C. § 5302 — Definitions

For the purpose of this subchapter— (1) the term “statutory pay system” means a pay system under— (A) subchapter III, relating to the General Schedule; (B) section 403 of the Foreign Service Act of 1980, relating to the Foreign Service of the United States; or (C) chapter 74 of title 38, relating to the Veterans Health Administration (other than a position subject to [section 7451 of title 38](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title38-section7451&num=0&edition=prelim)); (2) the term “ECI” means the Employment Cost Index (wages and salaries, private industry workers) published quarterly by the Bureau of Labor Statistics; (3) the “base quarter” for any year is the 3-month period ending on September 30 of such year; (4) the term “pay agent” means the agent designated by the President under section 5304(d)(1); (5) the term “locality” or “pay locality” means any locality, as established or modified under section 5304; (6) the term “pay disparity”, as used with respect to a locality, means the extent to which rates of pay payable under the General Schedule are generally lower than the rates paid for the same levels of work by non-Federal workers in the same locality; except as otherwise required in this subchapter, a pay disparity shall be expressed as a single percentage which, if uniformly applied to employees within the locality who are receiving rates of pay under the General Schedule, would cause the rates payable to such employees to become substantially equal (when considered in the aggregate) to the rates paid to non-Federal workers for the same levels of work in the same locality; (7) the term “comparability payment” means a payment payable under section 5304; (8) the term “rates of pay under the General Schedule”, “rates o

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