22 U.S.C. § 3968 — Local compensation plans

Page 1448 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 3967 unless the performance of the member during that period is found in a review by a selection board established under section 4002 of this title to fall below the standards of performance for his or her salary class. (b) Additional increase for meritorious service The Secretary may grant, on the basis of espe- cially meritorious service, to any member of the Service receiving an increase in salary under subsection (a), an additional salary increase to any higher step in the salary class in which the member is serving. (Pub. L. 96–465, title I, § 406, Oct. 17, 1980, 94 Stat. 2089.) § 3967. Salaries for Foreign Service personnel abroad who perform routine duties (a) The Secretary may establish salary rates at rates lower than those established for the Foreign Service Schedule for the Foreign Serv- ice personnel described in subsection (b). The rates established under this subsection may be no less than the then applicable minimum wage rate specified in section 206(a)(1) of title 29. (b) The Secretary may pay Foreign Service personnel who are recruited abroad, who are not available or are not qualified for assignment to another Foreign Service post, and who perform duties of a more routine nature than are gen- erally performed by Foreign Service personnel assigned to class 9 in the Foreign Service Sched- ule, in accordance with the salary rates estab- lished under subsection (a). (Pub. L. 96–465, title I, § 407, Oct. 17, 1980, 94 Stat. 2090.) § 3968. Local compensation plans (a) Establishment; rates of pay; leaves of ab- sence; supplemental payments; transfer from Civil Service Retirement and Disability Fund (1) The Secretary shall establish compensation (including position classification) plans for for- eign national employees of the Service and United States citizens employed under section 3951(c)(1) of this title. To the extent consistent with the public interest, each compensation plan shall be based upon prevailing wage rates and compensation practices (including partici- pation in local social security plans) for cor- responding types of positions in the locality of employment, except that such compensation plans shall provide for payment of wages to United States citizens at a rate which is no less than the then applicable minimum wage rate specified in section 206(a)(1) of title 29. Any com- pensation plan established under this section may include provision for (A) leaves of absence with pay for employees in accordance with pre- vailing law and employment practices in the lo- cality of employment without regard to any limitation contained in section 6310 of title 5, (B) programs for voluntary transfers of such leave and voluntary leave banks, which shall, to the extent practicable, be established in a man- ner consistent with the provisions of sub- chapters III and IV, respectively, of chapter 63 of title 5, and (C) payments by the Government and employees to (i) a trust or other fund in a finan- cial institution in order to finance future bene- fits for employees, including provision for reten- tion in the fund of accumulated interest and dividends for the benefit of covered employees; or (ii) a Foreign Service National Savings Fund established in the Treasury of the United States, which (I) shall be administered by the Secretary, at whose direction the Secretary of the Treasury shall invest amounts not required for the current needs of the Fund; and (II) shall be public monies, which are authorized to be ap- propriated and remain available without fiscal year limitation to pay benefits, to be invested in public debt obligations bearing interest at rates determined by the Secretary of the Treasury taking into consideration current average mar- ket yields on outstanding marketable obliga- tions of the United States of comparable matu- rity, and to pay administrative expenses. For United States citizens under a compensation plan, the Secretary shall define those allow- ances and benefits provided under United States law which shall be included as part of the total compensation package, notwithstanding any other provision of law, except that this section shall not be used to override United States min- imum wage requirements, or any provision of the Social Security Act [42 U.S.C. 301 et seq.] or title 26. (2) The Secretary may make supplemental payments to any civil service annuitant who is a former foreign national employee of the Serv- ice (or who is receiving an annuity as a survivor of a former foreign national employee of the Service) in order to offset exchange rate losses, if the annuity being paid such annuitant is based on— (A) a salary that was fixed in a foreign cur- rency that has appreciated in value in terms of the United States dollar; and (B) service in a country in which (as deter- mined by the Secretary) the average retire- ment benefits being received by individuals who retired from competitive local organiza- tions are superior to the local currency value of civil service annuities plus any other retire- ment benefits payable to foreign national em- ployees who retired during similar time peri- ods and after comparable careers with the Government. (3)(A) Whenever a foreign national employee so elects during a one-year period established by the Secretary of State with respect to each post abroad, the Secretary of the Treasury (at the di- rection of the Secretary of State) shall transfer such employee’s interest in the Civil Service Re- tirement and Disability Fund to a trust or other local retirement plan certified by the United States Government under a local compensation plan established for foreign national employees pursuant to this section (excluding local social security plans). (B) For purposes of subparagraph (A), the phrase ‘‘employee’s interest in the Civil Service Retirement and Disability Fund’’ means the total contributions of the employee and the em- ploying agency with respect to such employee, pursuant to sections 8331(8) and 8334(a)(1) of title 5, respectively, plus interest at the rate provided in section 8334(e)(3) of such title. Page 1449 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 3968 (C) Any such transfer shall void any annuity rights or entitlement to lump-sum credit under subchapter III of chapter 83 of such title. (b) Employment programs For the purpose of performing functions abroad, any agency or other Government estab- lishment (including any establishment in the legislative or judicial branch) may administer employment programs for its employees who are foreign nationals, are United States citizens em- ployed in the Service abroad who were hired while residing abroad, or are family members of Government employees assigned abroad, in ac- cordance with the applicable provisions of this chapter. (c) Regulations The Secretary of State may prescribe regula- tions governing the establishment and adminis- tration of local compensation plans under this section by all agencies and other Government establishments. (Pub. L. 96–465, title I, § 408, Oct. 17, 1980, 94 Stat. 2090; Pub. L. 98–164, title I, § 127(a), Nov. 22, 1983, 97 Stat. 1026; Pub. L. 101–246, title I, § 141(a), Feb. 16, 1990, 104 Stat. 35; Pub. L. 102–138, title I, §§ 148, 152, Oct. 28, 1991, 105 Stat. 670, 672; Pub. L. 103–236, title I, § 180(a)(4), Apr. 30, 1994, 108 Stat. 415; Pub. L. 106–113, div. B, § 1000(a)(7) [div. A, title III, § 322], Nov. 29, 1999, 113 Stat. 1536, 1501A–436; Pub. L. 107–228, div. A, title III, § 313, Sept. 30, 2002, 116 Stat. 1378.) Editorial Notes REFERENCES IN TEXT The Social Security Act, referred to in subsec. (a)(1), is act Aug. 14, 1935, ch. 531, 49 Stat. 620, which is classi- fied generally to chapter 7 (§ 301 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see section 1305 of Title 42 and Tables. This chapter, referred to in subsec. (b), was in the original ‘‘this Act’’, meaning Pub. L. 96–465, Oct. 17, 1980, 94 Stat. 2071, known as the Foreign Service Act of 1980, which is classified principally to this chapter (§ 3901 et. seq.). For complete classification of this Act to the Code, see Short Title note set out under section 3901 of this title and Tables. AMENDMENTS 2002—Subsec. (a)(1). Pub. L. 107–228 in third sentence substituted ‘‘payments by the Government and employ- ees to (i) a trust or other fund in a financial institution in order to finance future benefits for employees, in- cluding provision for retention in the fund of accumu- lated interest and dividends for the benefit of covered employees; or (ii) a Foreign Service National Savings Fund established in the Treasury of the United States, which (I) shall be administered by the Secretary, at whose direction the Secretary of the Treasury shall in- vest amounts not required for the current needs of the Fund; and (II) shall be public monies, which are author- ized to be appropriated and remain available without fiscal year limitation to pay benefits, to be invested in public debt obligations bearing interest at rates deter- mined by the Secretary of the Treasury taking into consideration current average market yields on out- standing marketable obligations of the United States of comparable maturity, and to pay administrative ex- penses.’’ for ‘‘payments by the Government and em- ployees to a trust or other fund in a financial institu- tion in order to finance future benefits for employees, including provision for retention in the fund of accu- mulated interest for the benefit of covered employees.’’ 1999—Subsec. (a)(1). Pub. L. 106–113, in last sentence, struck out ‘‘(A) provide such citizens with a total com- pensation package (including wages, allowances, bene- fits, and other employer payments, such as for social security) that has the equivalent cost to that received by foreign national employees occupying a similar po- sition at that post and (B)’’ after ‘‘Secretary shall’’ and substituted ‘‘the total compensation package’’ for ‘‘this total compensation package’’. 1994—Subsec. (a)(1). Pub. L. 103–236, § 180(a)(4)(D), in- serted at end ‘‘For United States citizens under a com- pensation plan, the Secretary shall (A) provide such citizens with a total compensation package (including wages, allowances, benefits, and other employer pay- ments, such as for social security) that has the equiva- lent cost to that received by foreign national employ- ees occupying a similar position at that post and (B) define those allowances and benefits provided under United States law which shall be included as part of this total compensation package, notwithstanding any other provision of law, except that this section shall not be used to override United States minimum wage requirements, or any provision of the Social Security Act or title 26.’’ Pub. L. 103–236, § 180(a)(4)(B), (C), in second sentence struck out ‘‘employed in the Service abroad who were hired while residing abroad and to those family mem- bers of Government employees who are paid in accord- ance with such plans’’ after ‘‘United States citizens’’ and in third sentence struck out ‘‘foreign national’’ be- fore ‘‘employees’’ wherever appearing. Pub. L. 103–236, § 180(a)(4)(A), inserted first sentence and struck out former first sentence which read as fol- lows: ‘‘The Secretary shall establish compensation (in- cluding position classification) plans for foreign na- tional employees of the Service, United States citizens employed in the Service abroad who were hired while residing abroad, and for United States citizens em- ployed in the Service abroad who are family members of Government employees.’’ 1991—Subsec. (a)(1). Pub. L. 102–138, § 152(a), inserted ‘‘United States citizens employed in the Service abroad who were hired while residing abroad,’’ after ‘‘employ- ees of the Service,’’ and ‘‘to United States citizens em- ployed in the Service abroad who were hired while re- siding abroad and’’ after ‘‘payment of wages’’. Pub. L. 102–138, § 148, added cl. (B) and redesignated former cl. (B) as (C). Subsec. (b). Pub. L. 102–138, § 152(b), inserted ‘‘, are United States citizens employed in the Service abroad who were hired while residing abroad,’’ after ‘‘foreign nationals’’. 1990—Subsec. (a)(3). Pub. L. 101–246 added par. (3). 1983—Subsec. (a)(1). Pub. L. 98–164 designated existing provisions as cl. (A) and added cl. (B). Statutory Notes and Related Subsidiaries DATE OF TRANSFER FROM CIVIL SERVICE RETIREMENT AND DISABILITY FUND Pub. L. 101–246, title I, § 141(c), Feb. 16, 1990, 104 Stat. 35, provided that: ‘‘The transfer of an employee’s inter- est in the Civil Service Retirement and Disability Fund shall occur after October 1, 1990.’’ FOREIGN NATIONAL PAY PLANS Pub. L. 96–60, title I, § 107(a), Aug. 15, 1979, 93 Stat. 397, provided that: ‘‘It is the sense of the Congress that the Secretary of State should— ‘‘(1) improve coordination between the Department of State and the Department of Defense and other de- partments and agencies of the United States oper- ating outside the United States with respect to for- eign national pay systems and wage schedules to the extent that— ‘‘(A) joint wage surveys and compatible pay schedules are adopted in countries where two or more departments or agencies of the United States directly employ foreign nationals, and Page 1450 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 3968a ‘‘(B) Department of Defense wage rates are in- cluded in wage surveys of the Department of State where the Department of Defense operates under in- direct-hire arrangements; ‘‘(2) monitor the establishment of wage rates out- side the United States more closely to insure that United States missions— ‘‘(A) operate under salary schedules that reflect private sector average pay or average pay ranges, ‘‘(B) include the cost of severance in making pay adjustments, and ‘‘(C) survey jobs in the private sector which rep- resent as closely as possible the work force of the mission; and ‘‘(3) substitute, whenever possible, prevailing local retirement plans for civil service retirement with re- spect to the retirement of foreign nationals employed by the United States.’’ § 3968a. Locally-employed staff wages (a) Market-responsive staff wages Not later than 180 days after December 16, 2016, and every 3 years thereafter, the Secretary shall establish and implement a prevailing wage rates goal for positions in the local compensa- tion plan, as described in section 3968 of this title, at each diplomatic post that— (1) is based on the specific recruiting and re- tention needs of each such post and local labor market conditions, as determined annually; and (2) is not less than the 50th percentile of the prevailing wage for comparable employment in the labor market surrounding each such post. (b) Exception The prevailing wage rate goal established under subsection (a) shall not apply if compli- ance with such subsection would be inconsistent with applicable United States law, the law in the locality of employment, or the public inter- est. (c) Recordkeeping requirement The analytical assumptions underlying the calculation of wage levels at each diplomatic post under subsection (a), and the data upon which such calculation is based— (1) shall be filed electronically and retained for not less than 5 years; and (2) shall be made available to the appro- priate congressional committees upon request. (Pub. L. 114–323, title IV, § 401, Dec. 16, 2016, 130 Stat. 1926; Pub. L. 118–31, div. F, title LXII, § 6226(a), Dec. 22, 2023, 137 Stat. 980.) Editorial Notes CODIFICATION Section was enacted as part of the Department of State Authorities Act, Fiscal Year 2017, and not as part of the Foreign Service Act of 1980 which comprises this chapter. AMENDMENTS 2023—Subsec. (a). Pub. L. 118–31 substituted ‘‘every 3 years’’ for ‘‘periodically’’ in introductory provisions. Statutory Notes and Related Subsidiaries DEFINITIONS For definitions of ‘‘Secretary’’ and ‘‘appropriate con- gressional committees’’ as used in this section, see sec- tion 2 of Pub. L. 114–323, set out as a note under section 2651 of this title. § 3969. Salaries of consular agents The Secretary of State shall establish the sal- ary rate for each consular agent. Such salary rate shall be established after taking into ac- count the workload of the consular agency and the prevailing wage rates in the locality where the agency is located, except that, in the case of a consular agent who is a citizen of the United States, the salary rate may not be less than the then applicable minimum wage rate specified in section 206(a)(1) of title 29. (Pub. L. 96–465, title I, § 409, Oct. 17, 1980, 94 Stat. 2091.) § 3970. Compensation for imprisoned foreign na- tional employees (a) Eligibility; rates of compensation; terms and conditions of payment; applicability of pow- ers under other statutory provisions The head of any agency or other Government establishment (including any in the legislative or judicial branch) may compensate any current or former foreign national employee, or any for- eign national who is or was employed under a personal services contract, who is or has been imprisoned by a foreign government if the Sec- retary of State (or, in the case of a foreign na- tional employed by the Central Intelligence Agency, the Director of Central Intelligence) de- termines that such imprisonment is the result of the employment of the foreign national by the United States. Such compensation may not exceed the amount that the agency head deter- mines approximates the salary and other bene- fits to which the foreign national would have been entitled had he or she been employed dur- ing the period of such imprisonment. Such com- pensation may be paid under such terms and conditions as the Secretary of State deems ap- propriate. For purposes of this section, an agen- cy head shall have the same powers with respect to imprisoned foreign nationals who are or were employed by the agency as an agency head has under subchapter VII of chapter 55 of title 5 to the extent that such powers are consistent with this section. (b) Time spent imprisoned considered as period of employment Any period of imprisonment of a current or former foreign national employee which is com- pensable under this section shall be considered for purposes of any other employee benefit to be a period of employment by the Government, ex- cept that a period of imprisonment shall not be creditable— (1) for purposes of subchapter III of chapter 83 of title 5, unless it is expressly creditable under that subchapter; or (2) for purposes of subchapter I of chapter 81 of title 5, unless the individual was employed by the Government at the time of his or her imprisonment. (c) Time of filing of claims No compensation or other benefit shall be awarded under this section unless a claim there- for is filed within 3 years after—