5 U.S.C. § 4302 — Establishment of performance appraisal

Page 482 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 4302 § 931(a)(1), Oct. 14, 2008, 122 Stat. 4575; Pub. L. 113–235, div. H, title I, § 1301(b), Dec. 16, 2014, 128 Stat. 2537; Pub. L. 115–91, div. A, title X, § 1097(d)(4), Dec. 12, 2017, 131 Stat. 1621.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 2001. Sept. 30, 1950, ch. 1123, § 2, 64 Stat. 1098. Sept. 1, 1954, ch. 1208, § 601(a), 68 Stat. 1115. June 17, 1957, Pub. L. 85–56, § 2201(21), 71 Stat. 159. July 11, 1957, Pub. L. 85–101, 71 Stat. 293. Sept. 2, 1958, Pub. L. 85–857, § 13(p), 72 Stat. 1266. Mar. 26, 1964, Pub. L. 88–290, ‘‘Sec. 306(b)’’, 78 Stat. 170. In paragraph (1), the term ‘‘Executive agency’’ is sub- stituted for the reference to ‘‘executive departments, the independent establishments and agencies in the ex- ecutive branch, including corporations wholly owned by the United States’’ and ‘‘the General Accounting Of- fice’’. The exception of ‘‘a Government controlled cor- poration’’ is added in subparagraph (vii) to preserve the application of this chapter to ‘‘corporations wholly owned by the United States’’. The exceptions for Pro- duction credit corporations and Federal intermediate credit banks in former section 2001(b)(5), (6) are omitted as they are no longer ‘‘corporations wholly owned by the United States’’. Under the Farm Credit Act of 1956, 70 Stat. 659, the production credit corporations were merged in the Federal intermediate credit banks, and pursuant to that Act the Federal intermediate credit banks have ceased to be corporations owned by the United States. The exceptions for Federal land banks and banks for cooperatives in former section 2001(b)(7), (8) are omitted as included within the exception of ‘‘a Government controlled corporation’’ in subparagraph (vii). Paragraph (2) is supplied because the definition of ‘‘employee’’ in section 2105 does not encompass individ- uals employed by the government of the District of Co- lumbia. The definition in paragraph (2) does not encom- pass members of the uniformed services as they are not ‘‘employed’’ in or under an agency. Paragraph (2)(E) is based on the third and fifth sen- tences, respectively, of former sections 1010 and 1011, which are carried into sections 5362 and 559, respec- tively, and section 1106(a) of the Act of Oct. 28, 1949, ch. 782, 63 Stat. 972. Standard changes are made to conform with the defi- nitions applicable and the style of this title as outlined in the preface to the report. Editorial Notes AMENDMENTS 2017—Pub. L. 115–91, in introductory provisions, sub- stituted ‘‘Except as otherwise expressly provided, for the purpose of’’ for ‘‘For the purpose of’’. 2008—Par. (1)(ii) Pub. L. 110–417 substituted ‘‘National Geospatial-Intelligence Agency’’ for ‘‘National Imagery and Mapping Agency’’. 2004—Par. (1)(iii). Pub. L. 108–271 substituted ‘‘Gov- ernment Accountability Office’’ for ‘‘General Account- ing Office’’. 1996—Par. (1)(ii). Pub. L. 104–201 substituted ‘‘Na- tional Imagery and Mapping Agency’’ for ‘‘Central Im- agery Office’’. 1994—Par. (1)(ii). Pub. L. 103–359 inserted ‘‘the Central Imagery Office,’’ after ‘‘Defense Intelligence Agency,’’. 1991—Par. (2)(C). Pub. L. 102–54 substituted ‘‘Veterans Health Administration of the Department of Veterans Affairs’’ for ‘‘Department of Medicine and Surgery, Veterans’ Administration’’. 1990—Par. (1). Pub. L. 101–474 redesignated subpar. (C) as (B) and struck out former subpar. (B) which included Administrative Office of United States Courts within definition of ‘‘agency’’. Par. (2)(H). Pub. L. 101–510 added subpar. (H). 1988—Par. (2)(E). Pub. L. 100–325 inserted reference to Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service. 1978—Pub. L. 95–454 substituted provisions defining ‘‘agency’’, ‘‘employee’’, and ‘‘unacceptable perform- ance’’ for provisions defining ‘‘agency’’ and ‘‘em- ployee’’. Par. (2)(E). Pub. L. 95–251 substituted ‘‘administrative law judge’’ for ‘‘hearing examiner’’. 1970—Par. (1)(ii). Pub. L. 91–375 repealed cl. (ii) which excluded postal field service from definition of ‘‘agen- cy’’. Statutory Notes and Related Subsidiaries CHANGE OF NAME ‘‘Government Publishing Office’’ substituted for ‘‘Government Printing Office’’ in par. (1)(B) on author- ity of section 1301(b) of Pub. L. 113–235, set out as a note preceding section 301 of Title 44, Public Printing and Documents. EFFECTIVE DATE OF 1996 AMENDMENT Amendment by Pub. L. 104–201 effective Oct. 1, 1996, see section 1124 of Pub. L. 104–201, set out as a note under section 193 of Title 10, Armed Forces. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title. EFFECTIVE DATE OF 1970 AMENDMENT Amendment by Pub. L. 91–375 effective within 1 year after Aug. 12, 1970, on date established therefor by Board of Governors of United States Postal Service and published by it in Federal Register, see section 15(a) of Pub. L. 91–375, set out as an Effective Date note pre- ceding section 101 of Title 39, Postal Service. § 4302. Establishment of performance appraisal systems (a) Each agency shall develop one or more per- formance appraisal systems which— (1) provide for periodic appraisals of job per- formance of employees; (2) encourage employee participation in es- tablishing 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)(1) The head of each agency, in consultation with the Director of the Office of Personnel Management and the Special Counsel, shall de- velop criteria that— (A) the head of the agency shall use as a critical element for establishing the job re- quirements of a supervisory employee; and (B) promote the protection of whistle- blowers. (2) The criteria required under paragraph (1) shall include— (A) principles for the protection of whistle- blowers, such as the degree to which super- visory employees— (i) respond constructively when employees of the agency make disclosures described in subparagraph (A) or (B) of section 2302(b)(8); Page 483 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES [§ 4302a (ii) take responsible actions to resolve the disclosures described in clause (i); and (iii) foster an environment in which em- ployees of the agency feel comfortable mak- ing disclosures described in clause (i) to su- pervisory employees or other appropriate authorities; and (B) for each supervisory employee— (i) whether the agency entered into an agreement with an individual who alleged that the supervisory employee committed a prohibited personnel practice; and (ii) if the agency entered into an agree- ment described in clause (i), the number of instances in which the agency entered into such an agreement with respect to the super- visory employee. (3) In this subsection— (A) the term ‘‘agency’’ means any entity the employees of which are covered under para- graphs (8) and (9) of section 2302(b), without re- gard to whether any other provision of this section is applicable to the entity; (B) the term ‘‘prohibited personnel practice’’ has the meaning given the term in section 2302(a)(1); (C) the term ‘‘supervisory employee’’ means an employee who would be a supervisor, as de- fined in section 7103(a), if the agency employ- ing the employee was an agency for purposes of chapter 71; and (D) the term ‘‘whistleblower’’ means an em- ployee who makes a disclosure described in section 2302(b)(8). (c) Under regulations which the Office of Per- sonnel Management shall prescribe, each per- formance appraisal system shall provide for— (1) establishing performance standards which will, to the maximum extent feasible, permit the accurate evaluation of job perform- ance on the basis of objective criteria (which may include the extent of courtesy dem- onstrated 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 ap- praisal periods, and thereafter at the begin- ning of each following appraisal period, com- municating to each employee the performance standards and the critical elements of the em- ployee’s position; (3) evaluating each employee during the ap- praisal period on such standards; (4) recognizing and rewarding employees whose performance so warrants; (5) assisting employees in improving unac- ceptable performance; and (6) reassigning, reducing in grade, or remov- ing employees who continue to have unaccept- able performance but only after an oppor- tunity to demonstrate acceptable perform- ance. (d) In accordance with regulations which the Office shall prescribe, the head of an agency may administer and maintain a performance ap- praisal system electronically. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 440; Pub. L. 95–454, title II, § 203(a), Oct. 13, 1978, 92 Stat. 1132; Pub. L. 102–378, § 2(18), Oct. 2, 1992, 106 Stat. 1347; Pub. L. 106–398, § 1 [[div. A], title XI, § 1104], Oct. 30, 2000, 114 Stat. 1654, 1654A–311; Pub. L. 115–91, div. A, title X, § 1097(d)(1), Dec. 12, 2017, 131 Stat. 1619.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 2002. Sept. 30, 1950, ch. 1123, § 3, 64 Stat. 1098. Standard changes are made to conform with the defi- nitions applicable and the style of this title as outlined in the preface to the report. Editorial Notes AMENDMENTS 2017—Subsecs. (b) to (d). Pub. L. 115–91 added subsec. (b) and redesignated former subsecs. (b) and (c) as (c) and (d), respectively. 2000—Subsec. (c). Pub. L. 106–398 added subsec. (c). 1992—Subsec. (a)(3). Pub. L. 102–378 substituted a pe- riod for semicolon at end. 1978—Pub. L. 95–454 substituted ‘‘Establishment of performance appraisal systems’’ for ‘‘Performance-rat- ing plans; establishment of’’ in section catchline and in text substituted provisions relating to the establish- ment of a performance appraisal system, for provisions relating to the establishment of performance-rating plans. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title. ANNUAL REPORT TO CONGRESS ON UNACCEPTABLE PERFORMANCE IN WHISTLEBLOWER PROTECTION Pub. L. 115–91, div. A, title X, § 1097(d)(3), Dec. 12, 2017, 131 Stat. 1620, provided that: ‘‘(A) DEFINITIONS.—In this paragraph, the terms ‘agency’ and ‘whistleblower’ have the meanings given the terms in section 4302(b)(3) of title 5, United States Code, as amended by paragraph (1). ‘‘(B) REPORT.—Each agency shall annually submit to the Committee on Homeland Security and Govern- mental Affairs of the Senate, the Committee on Over- sight and Government Reform [now Committee on Oversight and Accountability] of the House of Rep- resentatives, and each committee of Congress with ju- risdiction over the agency a report that details— ‘‘(i) the number of performance appraisals, for the year covered by the report, that determined that an employee of the agency failed to meet the standards for protecting whistleblowers that were established under section 4302(b) of title 5, United States Code, as amended by paragraph (1); ‘‘(ii) the reasons for the determinations described in clause (i); and ‘‘(iii) each performance-based or corrective action taken by the agency in response to a determination under clause (i).’’ [§ 4302a. Repealed. Pub. L. 103–89, § 3(b)(1)(B)(i), Sept. 30, 1993, 107 Stat. 981] Section, added Pub. L. 98–615, title II, § 202(a), Nov. 8, 1984, 98 Stat. 3214; amended Pub. L. 101–103, § 5(a), Sept. 30, 1989, 103 Stat. 671; Pub. L. 102–22, § 2(a), Mar. 28, 1991, 105 Stat. 71, related to the establishment of perform- ance appraisal systems for performance management and recognition system employees.