5 U.S.C. § 5362 — Grade retention following a change of po-

Page 613 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 5362 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.) Editorial Notes REFERENCES IN TEXT The General Schedule, referred to in par. (5), is set out under section 5332 of this title. PRIOR PROVISIONS A prior section 5361, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 473, which related to scientific and professional positions, was renumbered section 5371 of this title by Pub. L. 95–454, title VIII, § 801(a)(3)(A)(ii), Oct. 13, 1978, 92 Stat. 1221. AMENDMENTS 2004—Par. (4). Pub. L. 108–411, § 301(a)(4)(A), amended par. (4) generally. Prior to amendment, par. (4) read as follows: ‘‘ ‘rate of basic pay’ means, in the case of a pre- vailing rate employee, the scheduled rate of pay deter- mined under section 5343 of this title;’’. Par. (8). Pub. L. 108–411, § 301(a)(4)(B)–(D), added par. (8). 1993—Par. (5). Pub. L. 103–89 substituted ‘‘or a special occupational pay system under subchapter IX’’ for ‘‘a special occupational pay system under subchapter IX, or the performance management and recognition sys- tem under chapter 54 of this title’’. 1990—Par. (5). Pub. L. 101–509 inserted ‘‘a special occu- pational pay system under subchapter IX,’’ before ‘‘or the performance’’. 1984—Par. (5). Pub. L. 98–615 substituted ‘‘perform- ance management and recognition system’’ for ‘‘merit pay system’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2004 AMENDMENT Amendment by Pub. L. 108–411 effective on the first day of the first applicable pay period beginning on or after the 180th day after Oct. 30, 2004, with provisions relating to conversion rules, see section 301(d) of Pub. L. 108–411, set out as a note under section 5363 of this title. EFFECTIVE DATE OF 1993 AMENDMENT 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. EFFECTIVE DATE OF 1990 AMENDMENT Amendment by Pub. L. 101–509 effective on such date as the President shall determine, but not earlier than 90 days, and not later than 180 days, after Nov. 5, 1990, see section 529 [title III, § 305] of Pub. L. 101–509, set out as a note under section 5301 of this title. EFFECTIVE DATE OF 1984 AMENDMENT Pub. L. 98–615, title II, § 205, Nov. 8, 1984, 98 Stat. 3217, provided that amendment by Pub. L. 98–615 was effec- tive Oct. 1, 1984, and applicable with respect to pay pe- riods commencing on or after that date, with certain exceptions and qualifications. EFFECTIVE DATE Pub. L. 95–454, title VIII, § 801(a)(4), Oct. 13, 1978, 92 Stat. 1222, provided that: ‘‘(A) The amendments made by this subsection [en- acting sections 5361 to 5366 of this title and redesig- nating former sections 5361 to 5366 as sections 5371 to 5375 of this title, amending sections 559, 1305, 3104, 5102, 5107, 5334, 5349, and 8704 of this title, sections 4540, 7212, and 9540 of Title 10, Armed Forces, section 1715 of Title 15, Commerce and Trade, and section 3608 of Title 42, The Public Health and Welfare, and repealing sections 5337 and 5345 of this title] shall take effect on the first day of the first applicable pay period beginning on or after the 90th day after the date of the enactment of this Act [Oct. 13, 1978]. ‘‘(B) An employee who was receiving pay under the provisions of section 5334(d), 5337, or 5345 of title 5, United States Code, on the day before the effective date prescribed in subparagraph (A) of this paragraph shall not have such pay reduced or terminated by reason of the amendments made by this subsection and, unless section 5362 of such title 5 (as amended by subsection (a)(1) of this section) applies, such an employee is enti- tled to continue to receive pay as authorized by those provisions (as in effect on such date).’’ § 5362. Grade retention following a change of po- sitions 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 posi- tion held immediately before such placement be considered to be the retained grade of the em- ployee in any position he holds for the 2-year pe- riod beginning on the date of such placement. (b)(1) Any employee who is in a position sub- ject 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 em- ployee for the 2-year period beginning on the date of the reduction in grade. (2) The provisions of paragraph (1) of this sub- section shall not apply with respect to any re- duction in the grade of a position which had not been classified at the higher grade for a contin- uous period of at least one year immediately be- fore such reduction. (c) For the 2-year period referred to in sub- sections (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 em- ployee’s position for all purposes (including pay and pay administration under this chapter and chapter 55 of this title, retirement and life in- surance 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 sec- tion, (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 regu- lation. (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 em- ployee’s request; Page 614 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 5363 (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.) Editorial Notes PRIOR PROVISIONS A prior section 5362, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 473, Pub. L. 95–251, § 2(a)(1), (b)(1), Mar. 27, 1978, 92 Stat. 183, which related to hearing examiners, was re- numbered section 5372 of this title by Pub. L. 95–454, title VIII, § 801(a)(3)(A)(ii), Oct. 13, 1978, 92 Stat. 1221. AMENDMENTS 1993—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 fol- lows: ‘‘for purposes of determining whether the em- ployee is covered by the performance management and recognition system established under chapter 54 of this title, or’’. 1984—Subsec. (c)(3). Pub. L. 98–615 substituted ‘‘per- formance management and recognition system estab- lished under chapter 54’’ for ‘‘merit pay system estab- lished under section 5402’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1993 AMENDMENT 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. EFFECTIVE DATE OF 1984 AMENDMENT Section 205 of Pub. L. 98–615 provided that amend- ment by Pub. L. 98–615 was effective Oct. 1, 1984, and ap- plicable with respect to pay periods commencing on or after that date, with certain exceptions and qualifica- tions. ADDITIONAL PAY AND BENEFITS FOR EMPLOYEES RE- DUCED IN GRADE ON OR AFTER JANUARY 1, 1977, ETC. Pub. L. 95–454, title VIII, § 801(b), Oct. 13, 1978, 92 Stat. 1222, provided that: ‘‘(1) Under regulations prescribed by the Office of Personnel Management, any employee— ‘‘(A) whose grade was reduced on or after January 1, 1977, and before the effective date of the amend- ments made by subsection (a) of this section [see Ef- fective Date note set out under section 5361 of this title] under circumstances which would have entitled the employee to coverage under the provisions of sec- tion 5362 of title 5, United States Code (as amended by subsection (a) of this section) if such amendments had been in effect at the time of the reduction; and ‘‘(B) who has remained employed by the Federal Government from the date of the reduction in grade to the effective date of the amendments made by sub- section (a) of this section without a break in service of one workday or more; shall be entitled— ‘‘(i) to receive the additional pay and benefits which such employee would have been entitled to re- ceive if the amendments made by subsection (a) of this section had been in effect during the period be- ginning on the effective date of such reduction in grade and ending on the day before the effective date of such amendments, and ‘‘(ii) to have the amendments made by subsection (a), of this section apply to such employee as if the reduction in grade had occurred on the effective date of such amendments. ‘‘(2) No employee covered by this subsection whose reduction in grade resulted in an increase in pay shall have such pay reduced by reason of the amendments made by subsection (a) of this section. ‘‘(3)(A) For purposes of this subsection, the require- ments under paragraph (1)(B) of this subsection, relat- ing to continuous employment following reduction in grade, shall be considered to be met in the case of any employee— ‘‘(i) who separated from service with a right to an immediate annuity under chapter 83 of title 5, United States Code, or under another retirement system for Federal employees; or ‘‘(ii) who died. ‘‘(B) Amounts payable by reason of subparagraph (A) of this paragraph in the case of the death of an em- ployee shall be paid in accordance with the provisions of subchapter VIII of chapter 55 of title 5, United States Code, relating to settlement of accounts in the case of deceased employees. ‘‘(4) The Office of Personnel Management shall have the same authority to prescribe regulations under this subsection as it has under section 5365 of title 5, United States Code, with respect to subchapter VI of chapter 53 of such title, as added by subsection (a) of this sec- tion.’’ § 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 ex- piration of the 2-year period of coverage pro- vided under such section; (2) who is in a position subject to this sub- chapter and who is subject to a reduction or termination of a special rate of pay estab- lished under section 5305 of this title (or cor- responding prior provision of this title); (3) who is in a position subject to this sub- chapter and who (but for this section) would be subject to a reduction in pay under cir- cumstances prescribed by the Office of Per- sonnel Management by regulation to warrant the application of this section; or (4) who is in a position subject to this sub- chapter 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 Per- sonnel Management in conformity with the pro- visions 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 oc- currence 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 ex- ceeds such former rate of basic pay. (B) This section shall cease to apply to an em- ployee to whom subparagraph (A) applies once the appropriate rate of basic pay has been deter- mined 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 employ- ee’s position immediately after the occurrence