5 U.S.C. § 4303 — Actions based on unacceptable perform-

Page 484 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 4303 Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF REPEAL Repeal effective Nov. 1, 1993, see section 3(c) of Pub. L. 103–89, set out as an Effective Date of 1993 Amend- ment note under section 3372 of this title. § 4303. Actions based on unacceptable perform- ance (a) Subject to the provisions of this section, an agency may reduce in grade or remove an em- ployee for unacceptable performance. (b)(1) An employee whose reduction in grade or removal is proposed under this section is enti- tled to— (A) 30 days’ advance written notice of the proposed action which identifies— (i) specific instances of unacceptable per- formance by the employee on which the pro- posed action is based; and (ii) the critical elements of the employee’s position involved in each instance of unac- ceptable performance; (B) be represented by an attorney or other representative; (C) a reasonable time to answer orally and in writing; and (D) a written decision which— (i) in the case of a reduction in grade or re- moval under this section, specifies the in- stances of unacceptable performance by the employee on which the reduction in grade or removal is based, and (ii) unless proposed by the head of the agency, has been concurred in by an em- ployee who is in a higher position than the employee who proposed the action. (2) An agency may, under regulations pre- scribed by the head of such agency, extend the notice period under subsection (b)(1)(A) of this section for not more than 30 days. An agency may extend the notice period for more than 30 days only in accordance with regulations issued by the Office of Personnel Management. (c) The decision to retain, reduce in grade, or remove an employee— (1) shall be made within 30 days after the date of expiration of the notice period, and (2) in the case of a reduction in grade or re- moval, may be based only on those instances of unacceptable performance by the em- ployee— (A) which occurred during the 1-year pe- riod ending on the date of the notice under subsection (b)(1)(A) of this section in connec- tion with the decision; and (B) for which the notice and other require- ments of this section are complied with. (d) If, because of performance improvement by the employee during the notice period, the em- ployee is not reduced in grade or removed, and the employee’s performance continues to be ac- ceptable for 1 year from the date of the advance written notice provided under subsection (b)(1)(A) of this section, any entry or other nota- tion of the unacceptable performance for which the action was proposed under this section shall be removed from any agency record relating to the employee. (e) Any employee who is— (1) a preference eligible; (2) in the competitive service; or (3) in the excepted service and covered by subchapter II of chapter 75, and who has been reduced in grade or removed under this section is entitled to appeal the ac- tion to the Merit Systems Protection Board under section 7701. (f) This section does not apply to— (1) the reduction to the grade previously held of a supervisor or manager who has not completed the probationary period under sec- tion 3321(a)(2) of this title, (2) the reduction in grade or removal of an employee in the competitive service who is serving a probationary or trial period under an initial appointment or who has not completed 1 year of current continuous employment under other than a temporary appointment limited to 1 year or less, (3) the reduction in grade or removal of an employee in the excepted service who has not completed 1 year of current continuous em- ployment in the same or similar positions, or (4) any removal or demotion under section 714 of title 38. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 440; Pub. L. 95–454, title II, § 203(a), Oct. 13, 1978, 92 Stat. 1133; Pub. L. 101–376, § 2(b), Aug. 17, 1990, 104 Stat. 462; Pub. L. 115–41, title II, § 202(b)(2), June 23, 2017, 131 Stat. 873.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 2004. Sept. 30, 1950, ch. 1123, § 5, 64 Stat. 1098. The words ‘‘required by this chapter’’ are omitted as unnecessary. 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—Subsec. (f)(4). Pub. L. 115–41 added par. (4). 1990—Subsec. (e). Pub. L. 101–376 amended subsec. (e) generally. Prior to amendment, subsec. (e) read as fol- lows: ‘‘Any employee who is a preference eligible or is in the competitive service and who has been reduced in grade or removed under this section is entitled to ap- peal the action to the Merit Systems Protection Board under section 7701 of this title.’’ 1978—Pub. L. 95–454 substituted ‘‘Actions based on un- acceptable performance’’ for ‘‘Performance-rating plans; requirements for’’ in section catchline and in text substituted provisions relating to actions based on unacceptable performance, for provisions relating to requirements for performance-rating plans. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1990 AMENDMENT Pub. L. 101–376, § 2(c), Aug. 17, 1990, 104 Stat. 462, pro- vided that: ‘‘The amendments made by this section [amending this section and section 7511 of this title] shall apply with respect to any personnel action taking effect on or after the effective date of this Act [see below].’’ Pub. L. 101–376, § 4, Aug. 17, 1990, 104 Stat. 463, pro- vided that: ‘‘This Act and the amendments made by Page 485 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 4311 this Act [amending this section, sections 7511 and 7701 of this title, and enacting provisions set out as notes under this section and section 7501 of this title] shall become effective on the date of the enactment of this Act [Aug. 17, 1990], and, except as provided in section 2(c) [set out above], shall apply with respect to any ap- peal or other proceeding brought on or after such date.’’ 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. § 4304. Responsibilities of the Office of Personnel Management (a) The Office of Personnel Management shall make technical assistance available to agencies in the development of performance appraisal systems. (b)(1) The Office shall review each performance appraisal system developed by any agency under this section and determine whether the perform- ance appraisal system meets the requirements of this subchapter. (2) The Comptroller General shall from time to time review on a selected basis performance ap- praisal systems established under this sub- chapter to determine the extent to which any such system meets the requirements of this sub- chapter and shall periodically report its findings to the Office and to the Congress. (3) If the Office determines that a system does not meet the requirements of this subchapter (including regulations prescribed under section 4305), the Office shall direct the agency to imple- ment an appropriate system or to correct oper- ations under the system, and any such agency shall take any action so required. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 440; Pub. L. 95–454, title II, § 203(a), Oct. 13, 1978, 92 Stat. 1134.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 2005. Sept. 30, 1950, ch. 1123, § 6, 64 Stat. 1099. In subsection (a)(1), the words ‘‘corresponding to an efficiency rating of ‘good’ under the Veterans’ Pref- erence Act of 1944, as amended, and under laws super- seded by this chapter’’ in clause (1) of former section 2005 are omitted, but are carried into section 3502. 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 1978—Pub. L. 95–454 substituted ‘‘Responsibilities of the Office of Personnel Management’’ for ‘‘Ratings for performance’’ in section catchline and in text sub- stituted provisions relating to the responsibilities of the Office of Personnel Management under this sub- chapter, for provisions relating to ratings for perform- ance. 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. § 4305. Regulations The Office of Personnel Management may pre- scribe regulations to carry out the purpose of this subchapter. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 441; Pub. L. 95–454, title II, § 203(a), Oct. 13, 1978, 92 Stat. 1134.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 2006. Sept. 30, 1950, ch. 1123, § 7, 64 Stat. 1099. In subsection (c), the words ‘‘as a matter of right’’ are omitted as unnecessary. In subsection (d), the words ‘‘are entitled’’ are sub- stituted for ‘‘shall be afforded an opportunity’’. The word ‘‘considers’’ is substituted for ‘‘deems to be’’. 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 1978—Pub. L. 95–454 substituted ‘‘Regulations’’ for ‘‘Review of ratings’’ in section catchline and in text substituted provisions relating to regulations to carry out this subchapter, for provisions relating to review of ratings. 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. [§§ 4306 to 4308. Omitted] Editorial Notes CODIFICATION Sections 4306 to 4308, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 441, 442, were omitted in the general revision of this chapter by the Civil Service Reform Act of 1978, Pub. L. 95–454, § 203(a), Oct. 13, 1978, 92 Stat. 1131. Section 4306 related to inspection of performance-rat- ing plans. Section 4307 related to prohibition of other rating procedures. Section 4308 related to regulations for administration of the chapter, and is covered by revised section 4305. SUBCHAPTER II—PERFORMANCE AP- PRAISAL IN THE SENIOR EXECUTIVE SERVICE § 4311. Definitions For the purpose of this subchapter, ‘‘agency’’, ‘‘senior executive’’, and ‘‘career appointee’’ have the meanings set forth in section 3132(a) of this title. (Added Pub. L. 95–454, title IV, § 405(a), Oct. 13, 1978, 92 Stat. 1167.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 9 months after Oct. 13, 1978, and con- gressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415(a)(1), (b), of Pub. L. 95–454, set out as a note under section 3131 of this title.