38 U.S.C. § 7455 — Increases in rates of basic pay

Page 1251 TITLE 38—VETERANS’ BENEFITS § 7455 1 See References in Text note below. ices of individuals in positions listed in section 7401(3) of this title, the Secretary may, on a na- tionwide, local, or other geographic basis, pay persons employed in such positions additional pay on the same basis as provided for nurses in section 7453 of this title. (2) Health care professionals employed in posi- tions referred to in paragraph (1) shall be enti- tled to additional pay on the same basis as pro- vided for nurses in section 7453(c) of this title. (3) Employees appointed under section 7408 of this title performing service on a tour of duty, any part of which is within the period com- mencing at midnight Friday and ending at mid- night Sunday, shall receive additional pay in ad- dition to the rate of basic pay provided such em- ployees for each hour of service on such tour at a rate equal to 25 percent of such employee’s hourly rate of basic pay. (c) The Secretary shall prescribe by regulation standards for compensation and payment under this section. (Added Pub. L. 102–40, title IV, § 401(b)(4), May 7, 1991, 105 Stat. 234; amended Pub. L. 107–135, title I, § 121(a), Jan. 23, 2002, 115 Stat. 2450; Pub. L. 108–170, title III, §§ 301(d), 303(a), Dec. 6, 2003, 117 Stat. 2057, 2058; Pub. L. 111–163, title VI, § 601(k)(2), May 5, 2010, 124 Stat. 1171.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in section 4107(f) of this title prior to the repeal of that section as part of the complete revision of chap- ter 73 of this title by Pub. L. 102–40. AMENDMENTS 2010—Subsec. (b)(3). Pub. L. 111–163 amended par. (3) generally. Prior to amendment, par. (3) read as follows: ‘‘Employees appointed under section 7408 of this title shall be entitled to additional pay on the same basis as provided for nurses in section 7453(c) of this title.’’ 2003—Subsec. (b)(1). Pub. L. 108–170, § 301(d), sub- stituted ‘‘individuals in positions listed in section 7401(3) of this title,’’ for ‘‘certified or registered res- piratory therapists, licensed physical therapists, li- censed practical or vocational nurses, pharmacists, or occupational therapists,’’. Subsec. (b)(3). Pub. L. 108–170, § 303(a), added par. (3). 2002—Subsec. (b). Pub. L. 107–135 designated existing provisions as par. (1) and added par. (2). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2003 AMENDMENT Pub. L. 108–170, title III, § 303(b), Dec. 6, 2003, 117 Stat. 2058, provided that: ‘‘The amendment made by sub- section (a) [amending this section] shall take effect with respect to the first pay period beginning on or after January 1, 2004.’’ EFFECTIVE DATE OF 2002 AMENDMENT Pub. L. 107–135, title I, § 121(b), Jan. 23, 2002, 115 Stat. 2450, provided that: ‘‘The amendments made by sub- section (a) [amending this section] shall apply with re- spect to pay periods beginning on or after the date of the enactment of this Act [Jan. 23, 2002].’’ § 7455. Increases in rates of basic pay (a)(1) Subject to subsections (b), (c), and (d), when the Secretary determines it to be nec- essary in order to obtain or retain the services of persons described in paragraph (2), the Sec- retary may increase the minimum, inter- mediate, or maximum rates of basic pay author- ized under applicable statutes and regulations. Any increase in such rates of basic pay— (A) may be made on a nationwide basis, local basis, or other geographic basis; and (B) may be made— (i) for one or more of the grades listed in the schedules in subsection (b)(1) of section 7404 1 of this title; (ii) for one or more of the health personnel fields within such grades; or (iii) for one or more of the grades of the General Schedule under section 5332 of title 5. (2) Paragraph (1) applies to the following: (A) Individuals employed in positions listed in paragraphs (1) and (3) of section 7401 of this title. (B) Health-care personnel who— (i) are employed in the Administration (other than administrative, clerical, and physical plant maintenance and protective services employees); (ii) are paid under the General Schedule pursuant to section 5332 of title 5; (iii) are determined by the Secretary to be providing either direct patient-care services or services incident to direct patient-care services; and (iv) would not otherwise be available to provide medical care and treatment for vet- erans. (C) Employees who are Department police officers providing services under section 902 of this title. (b) Increases in rates of basic pay may be made under subsection (a) only in order— (1) to provide pay in an amount competitive with, but not exceeding, the amount of the same type of pay paid to the same category of personnel at non-Federal facilities in the same labor market; (2) to achieve adequate staffing at particular facilities; or (3) to recruit personnel with specialized skills, especially those with skills which are especially difficult or demanding. (c)(1) Subject to paragraph (2), the amount of any increase under subsection (a) in the min- imum rate for any grade may not (except in the case of nurse anesthetists, licensed practical nurses, licensed vocational nurses, nursing posi- tions otherwise covered by title 5, pharmacists, and licensed physical therapists) exceed the maximum rate of basic pay (excluding any local- ity-based comparability payment under section 5304 of title 5 or similar provision of law) for the grade or level by more than 50 percent. (2) No rate may be established under this sec- tion in excess of the rate of basic pay payable for level II of the Executive Schedule. (3)(A) Notwithstanding section 5304 of title 5 or any other provision of law, but subject to the limitation under paragraph (2), pursuant to an increase under subsection (a), the Secretary Page 1252 TITLE 38—VETERANS’ BENEFITS § 7455 may pay a special rate or an adjusted rate of basic pay in excess of the rate of basic pay pay- able for level IV of the Executive Schedule. (B) If an employee is in receipt of a special rate of pay under subparagraph (A) in excess of the rate of basic pay payable for level IV of the Executive Schedule with an established special rate supplement of greater value than a supple- ment based on the applicable locality-based comparability payment percentage under sec- tion 5304 of title 5, but a pay adjustment would cause such established special rate supplement to be of lesser value, the special rate supplement shall be converted to a supplement based on the applicable locality-based comparability percent- age unless the Secretary determines that some other action is appropriate. (d)(1) In the exercise of the authority provided in subsection (a) with respect to personnel de- scribed in subparagraph (B) or (C) of paragraph (2) of that subsection to increase the rates of basic pay for any category of personnel not ap- pointed under subchapter I, the Secretary shall, not less than 45 days before the effective date of a proposed increase, notify the President of the Secretary’s intention to provide such an in- crease. (2) Such a proposed increase shall not take ef- fect if, before the effective date of the proposed increase, the President disapproves such in- crease and provides the appropriate committees of the Congress with a written statement of the President’s reasons for such disapproval. (3) If, before that effective date, the President approves such increase, the Secretary may ad- vance the effective date to any date not earlier than the date of the President’s approval. (Added Pub. L. 102–40, title IV, § 401(b)(4), May 7, 1991, 105 Stat. 234; amended Pub. L. 102–83, § 2(c)(7), Aug. 6, 1991, 105 Stat. 402; Pub. L. 102–405, title II, § 201, title III, § 302(c)(1), Oct. 9, 1992, 106 Stat. 1983, 1984; Pub. L. 106–419, title II, § 203, Nov. 1, 2000, 114 Stat. 1841; Pub. L. 111–163, title VI, § 601(l), May 5, 2010, 124 Stat. 1172; Pub. L. 117–168, title IX, § 904(a), Aug. 10, 2022, 136 Stat. 1811.) Editorial Notes REFERENCES IN TEXT Section 7404(b) of this title, referred to in subsec. (a)(1)(B)(i), was amended by Pub. L. 108–445, § 3(a)(1), Dec. 3, 2004, 118 Stat. 2636. As so amended, section 7404(b) no longer contains paragraphs. Schedules appear under section 7404(b). Level II of the Executive Schedule, referred to in sub- sec. (c)(2), is set out in section 5313 of Title 5, Govern- ment Organization and Employees. Level IV of the Executive Schedule, referred to in subsec. (c)(3), is set out in section 5315 of Title 5, Gov- ernment Organization and Employees. PRIOR PROVISIONS Provisions similar to those in this section were con- tained in section 4107(g) of this title prior to the repeal of that section as part of the complete revision of chap- ter 73 of this title by Pub. L. 102–40. AMENDMENTS 2022—Subsec. (c)(1). Pub. L. 117–168, § 904(a)(1), sub- stituted ‘‘50 percent’’ for ‘‘30 percent’’. Subsec. (c)(2). Pub. L. 117–168, § 904(a)(2), substituted ‘‘level II’’ for ‘‘level IV’’. Subsec. (c)(3). Pub. L. 117–168, § 904(a)(3), added par. (3). 2010—Subsec. (c). Pub. L. 111–163 amended subsec. (c) generally. Prior to amendment, subsec. (c) read as fol- lows: ‘‘(c)(1) The amount of any increase under subsection (a) in the maximum rate for any grade may not (except in the case of nurse anesthetists, pharmacists, and li- censed physical therapists) exceed by two times the amount by which the maximum for such grade (under applicable provisions of law other than this subsection) exceeds the minimum for such grade (under applicable provisions of law other than this subsection), and the maximum rate as so increased may not exceed the rate paid for individuals serving as Assistant Under Sec- retary for Health. ‘‘(2) Whenever the amount of an increase under sub- section (a) results in a rate of basic pay for a position being equal to or greater than the amount that is 94 percent of the maximum amount permitted under para- graph (1), the Secretary shall promptly notify the Com- mittees on Veterans’ Affairs of the Senate and House of Representatives of the increase and the amount there- of.’’ 2000—Subsec. (c)(1). Pub. L. 106–419 inserted ‘‘, pharmacists,’’ after ‘‘anesthetists’’. 1992—Subsec. (c). Pub. L. 102–405, § 302(c)(1), sub- stituted ‘‘Under Secretary for Health’’ for ‘‘Chief Med- ical Director’’ in par. (1). Pub. L. 102–405, § 201, designated existing provisions as par. (1), inserted ‘‘by two times’’ after first reference to ‘‘exceed’’, and added par. (2). 1991—Subsec. (a)(2)(C). Pub. L. 102–83 substituted ‘‘902’’ for ‘‘218’’. Executive Documents EX. ORD. NO. 12797. REVIEW OF INCREASES IN RATES OF BASIC PAY FOR CERTAIN EMPLOYEES OF DEPARTMENT OF VETERANS AFFAIRS AND OTHER AGENCIES Ex. Ord. No. 12797, Apr. 3, 1992, 57 F.R. 11671, provided: By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 7455(d)(2)–(3) of title 38, United States Code, in order to establish procedures for review of proposed increases in the rates of basic pay of certain employees of the Department of Veterans Af- fairs and of other agencies, it is hereby ordered as fol- lows: SECTION 1. The Director of the Office of Personnel Management is designated to exercise the authority vested in the President by section 7455(d)(2)–(3) of title 38, United States Code, to review and approve or dis- approve the increases in rates of basic pay proposed by the Secretary of Veterans Affairs and to provide the ap- propriate committees of the Congress with a written statement of the reasons for any such disapproval. SEC. 2. In exercising this authority, the Director of the Office of Personnel Management shall assure that any increases in basic pay proposed by the Secretary of Veterans Affairs are in the best interest of the Federal Government, do not exceed the amounts authorized by section 7455, and are made only to: (1) Provide pay in an amount competitive with, but not exceeding, the amount of the same type of pay paid to the same category of health-care personnel at non- Federal health-care facilities in the same labor market; (2) Achieve adequate staffing at particular facilities; or (3) Recruit personnel with specialized skills, espe- cially those with skills which are especially difficult or demanding. SEC. 3. The Secretary of Veterans Affairs shall pro- vide to the Director of the Office of Personnel Manage- ment such information as the Director may request in order to carry out the responsibilities delegated by this order. SEC. 4. The Director of the Office of Personnel Man- agement shall provide the Secretary of Veterans Af- Page 1253 TITLE 38—VETERANS’ BENEFITS § 7456A fairs with a copy of any written statement provided to the appropriate committees of the Congress that sets forth the reasons for disapproval of any proposed in- crease in rates of basic pay under this order. SEC. 5. In the case of any other law authorizing an- other agency to use the authority provided by section 7455 of title 38, United States Code, the Director of the Office of Personnel Management shall exercise the same authority in the same manner as provided for with respect to section 7455 under sections 1 through 4 of this order, and the head of such other agency shall provide information requested by the Director as pro- vided for in section 3 of this order. SEC. 6. Executive Order No. 12438 of August 23, 1983, is revoked. SEC. 7. This order shall be effective upon publication in the Federal Register. GEORGE BUSH. § 7456. Nurses: special rules for weekend duty (a) Subject to subsection (b), if the Secretary determines it to be necessary in order to obtain or retain the services of nurses at any Depart- ment health-care facility, the Secretary may provide, in the case of nurses appointed under this chapter and employed at such facility, that such nurses who work two regularly scheduled 12-hour tours of duty within the period com- mencing at midnight Friday and ending at mid- night the following Sunday shall be considered for all purposes (except computation of full-time equivalent employees for the purposes of deter- mining compliance with personnel ceilings) to have worked a full 40-hour basic workweek. (b)(1) Basic and additional pay for a nurse who is considered under subsection (a) to have worked a full 40-hour basic workweek shall be subject to paragraphs (2) and (3). (2) The hourly rate of basic pay for such a nurse for service performed as part of a regu- larly scheduled 12-hour tour of duty within the period commencing at midnight Friday and end- ing at midnight the following Sunday shall be derived by dividing the nurse’s annual rate of basic pay by 1,248. (3)(A) Such a nurse who performs a period of service in excess of such nurse’s regularly sched- uled two 12-hour tours of duty is entitled to overtime pay under section 7453(e) of this title, or other applicable law, for officially ordered or approved service performed in excess of eight hours on a day other than a Saturday or Sunday or in excess of 24 hours within the period com- mencing at midnight Friday and ending at mid- night the following Sunday. (B) Except as provided in subparagraph (C), a nurse to whom this subsection is applicable is not entitled to additional pay under section 7453 of this title, or other applicable law, for any pe- riod included in a regularly scheduled 12-hour tour of duty. (C) If the Secretary determines it to be further necessary in order to obtain or retain the serv- ices of nurses at a particular facility, a nurse to whom this paragraph is applicable who performs service in excess of such nurse’s regularly sched- uled two 12-hour tours of duty may be paid over- time pay under section 7453(e) of this title, or other applicable law, for all or part of the hours of officially ordered or approved service per- formed by such nurse in excess of 40 hours dur- ing an administrative workweek. (c) The Secretary shall prescribe regulations for the implementation of this section. (Added Pub. L. 102–40, title IV, § 401(b)(4), May 7, 1991, 105 Stat. 235; amended Pub. L. 111–163, title VI, § 602(b), May 5, 2010, 124 Stat. 1173.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in section 4107(h) of this title prior to the repeal of that section as part of the complete revision of chap- ter 73 of this title by Pub. L. 102–40. AMENDMENTS 2010—Subsecs. (c), (d). Pub. L. 111–163 redesignated subsec. (d) as (c) and struck out former subsec. (c) which read as follows: ‘‘A nurse described in subsection (b)(1) who is absent on approved sick leave or annual leave during a regularly scheduled 12-hour tour of duty shall be charged for such leave at a rate of five hours of leave for three hours of absence.’’ § 7456A. Nurses: alternate work schedules (a) APPLICABILITY.—This section applies to registered nurses appointed under this chapter. (b) 72/80 WORK SCHEDULE.—(1)(A) Subject to paragraph (2), if the Secretary determines it to be necessary in order to obtain or retain the services of registered nurses at any Department health-care facility, the Secretary may provide, in the case of nurses employed at such facility, that such nurses who work six regularly sched- uled 12-hour tours of duty within a 14-day period shall be considered for all purposes to have worked a full 80-hour pay period. (B) A nurse who works under the authority in subparagraph (A) shall be considered a 0.90 full- time equivalent employee in computing full- time equivalent employees for the purposes of determining compliance with personnel ceilings. (2)(A) Basic and additional pay for a nurse who is considered under paragraph (1) to have worked a full 80-hour pay period shall be subject to subparagraphs (B) and (C). (B) The hourly rate of basic pay for a nurse covered by this paragraph for service performed as part of a regularly scheduled 36-hour tour of duty within the work week shall be derived by dividing the nurse’s annual rate of basic pay by 1,872. (C) The Secretary shall pay overtime pay to a nurse covered by this paragraph who— (i) performs a period of service in excess of such nurse’s regularly scheduled 36-hour tour of duty within an administrative work week; (ii) for officially ordered or approved service, performs a period of service in excess of 8 hours on a day other than a day on which such nurse’s regularly scheduled 12-hour tour of duty falls; (iii) performs a period of service in excess of 12 hours for any day included in the regularly scheduled 36-hour tour of duty work week; or (iv) performs a period of service in excess of 40 hours during an administrative work week. (D) The Secretary may provide a nurse to whom this subsection applies with additional pay under section 7453 of this title for any period included in a regularly scheduled 12-hour tour of duty.