§ 531.517 Appeals to the Merit Systems Protection Board.'

(a) General. An employee who is reduced in grade or pay, or reassigned during his or her salary retention period, may appeal to the Merit Systems Protection Board from a decision of the agency that (1) he or she is not entitled to salary retention, or (2) will terminate or adversely affect the salary retention he or she is currently receiving. This right of appeal does not in any way restrict an employee's entitlement to appeal to the Board under another part of this chapter or under statute.

(b) Agency notification to employee. When an employee is reduced in grade or pay, or reassigned during a salary retention period, the agency shall inform him or her in writing whether or not he or she is entitled to salary retention, or whether the salary retention he or she is currently receiving will be terminated or adversely affected. When an agency decides that (1) an employee is not entitled to salary retention, or (2) the salary retention an employee is currently receiving will be terminated, the agency shall inform him or her in writing of his or her right to appeal to the Board under the provisions of the Board's regulations. The agency shall comply with the provisions of § 1201.21 of this title.

(5 U.S.C. 7701, et seq.)

[44 FR 48953, Aug. 21, 1979]

PART 532-PAY UNDER PREVAILING RATE SYSTEMS

NOMENCLATURE CHANGE: A document published at 44 FR 47523, Aug. 14, 1979, made general nomenclature changes to the Office of Personnel Management regulations in this chapter.

'The provisions of this section apply only to: (1) Determinations of entitlement under 5 U.S.C. 5337; and (2) agency decisions to terminate or adversely affect the retained rate received under 5 U.S.C. 5337. 5 U.S.C. 5337 was repealed by the Civil Service Reform Act of 1978 (Pub. L. 95-454) effective on the first day of the first pay period beginning on or after January 11, 1979. For information concerning entitlement to pay retention in actions which occurred after the effective date of the CSRA, see Part 536 of this chapter.

Subparts A-D-[Reserved]

Subpart E-Wage Rates for Principal Types of Federal Positions

Sec.

532.501 Applicability. 532.502

Definitions.

532.503 Determining applicability of section 5341(c).

532.504 Responsibility of surveying agency. 532.505 Determination process.

532.506 Establishing rates on basis of outof-area data.

Subpart F-[Reserved]

Subpart G-Appeals 532.701 Applicability. 532.702 Agency responsibility. 532.703 Appeal to OPM.

Subparts A-D-[Reserved]

Subpart E-Wage Rates for Principal Types of Federal Positions

AUTHORITY: 5 U.S.C. 5341(c).

SOURCE: 35 FR 11025, July 9, 1970, unless otherwise noted.

§ 532.501 Applicability.

(a) Agency. This subpart and section 5341(c) of title 5, United States Code, apply to an agency which has employees whose rates of pay are fixed and adjusted under section 5341(a) of title 5, United States Code in accordance with prevailing rates.

(b) Employee. This subpart and section 5341(c) of title 5, United States Code, apply to an employee who is excepted from Chapter 51 of title 5, United States Code by section 5102(c)(7) of that title.

§ 532.502 Definitions.

In this subpart:

(a) "Survey area” means that part of a wage area within which private enterprise establishments included in the wage survey are located and within which sufficient comparable samples can be obtained;

(b) "Wage area" means the geographic area within which a single wage schedule is established for wage employees;

(c) "Wage employee" means an employee to whom this subpart applies;

(d) "Wage schedule” means a schedule which establishes pay rates for wage employees;

(e) "Wage survey" means the collection of wage rate data from private industry for use in establishing a wage schedule.

§ 532.503 Determining applicability of section 5341(c).

In determining the applicability of section 5341(c) of title 5, United States Code:

(a) "Principal types of Federal positions" means those groups of occupations which require work of a specialized nature and which are peculiar to a specialized Government industry which is the dominant industry among the total wage employment in the wage area. The specialized Government industry is the dominant industry when the number of wage employees in the wage area in occupations which make up the principal types of Federal positions comprise either (1) 25 percent or more of the total wage employment in the wage area or (2) not less than 1,000 employees when the total wage employment in the wage area exceeds 4,000. When more than one Government specialized industry in the wage area qualifies under this paragraph, the two specialized Government industries having the greatest number of wage employees are the dominant industries. For the purpose of this subparagraph total wage employment in a wage area means the total of all wage employees in the wage area who are paid under the same wage schedule.

(b) "Sufficient number of comparable positions" means that number of positions in private industry in the survey area similar to those in the specialized Government industry identified under paragraph (a) of this section which will provide survey coverage representative of the principal types of Federal positions. Subject to obtaining adequate data under § 532.505(e)(3), there is deemed to be a sufficient number of comparable private positions in a survey area when all positions in private establishments in industries designated by OPM to be similar to each dominant industry as determined under paragraph (a) of

§ 532.505 Determination process.

(a) Time of making determinations. The initial determination as to whether there exists in the survey area a sufficient number of comparable positions in private industry to establish a wage schedule for the principal types of Federal positions subject to the regular wage schedule, is made before a wage survey is ordered to be conducted in a survey area and is based on all relevant, available evidence.

(b) More than one type of wage schedule. When there is more than one type of wage schedule in the wage area, the agency shall make a separate determination for each wage schedule.

(c) Obtaining views from organizations or individuals. (1) In making its determinations, the surveying agency shall consider all relevant evidence submitted by labor organizations holding formal or exclusive recognition for Federal wage employees in the wage area, the findings and recommendations of its local wage survey organization, and any recommendations of the agency wage committee established under the Coordinated Federal Wage System.

(2) At least 30 calendar days before a survey is ordered, the surveying agency shall inform all installations in the wage area having wage employees subject to the wage schedule of the date by which organizations or individuals may present to it any recommendations and supporting evidence concerning principal types of Federal positions for which they believe there is not sufficient private industry in the survey area on which to establish wage schedules.

(3) For at least 10 workdays before the date for submission of recommen

dations and supporting evidence, each installation in the wage area shall post the notice of the final date for submitting recommendations and supporting evidence to the local survey organization.

(4) Recommendations and supporting evidence shall be presented in writing to the local survey organization on or before the date specified.

(d) Determinations regarding principal types of Federal positions. Before ordering a wage survey, the surveying agency shall make a determination in writing concerning each recommendation before it as to whether or not the positions involved are principal types of Federal positions.

(e) Determinations regarding adequacy of private industry data in the survey area. (1) When the surveying agency has determined that there are principal types of Federal positions in a wage area, it shall determine whether there is a sufficient number of comparable positions in private industry in the survey area as provided by § 532.503(b), except that when the survey area includes one of the 25 largest Standard Metropolitan Statistical Areas as listed in the latest issue of the Statistical Abstract of the United States the survey area is deemed to have a sufficient number of comparable positions as provided by § 532.503(b).

(2) When the surveying agency has determined that there are principal types of Federal positions in a wage area, the surveying agency shall add survey jobs specified by OPM to be surveyed in industry establishments set out in the Federal Personnel Manual, and these additional survey jobs will be surveyed within the survey area when the surveying agency determines that the number of comparable positions in private industry in the survey area is sufficient to meet the requirements of § 532.503(b) or will be surveyed in the nearest similar wage area selected under § 532.506(b) when it is necessary to secure wage data from outside the wage area under the regulations in this subpart.

(3) After completing the survey, the agency shall analyze the data obtained for the survey jobs representing the principal types of Federal position and

the data obtained from other jobs in the private industry counterpart of the principal types of Federal positions to assure that the data meet the requirements for adequacy as set out in the Federal Personnel Manual.

(4) The data from the additional jobs added under this paragraph are included and will be used with all other data collected during the survey to establish the wage schedule for the wage area.

§ 532.506 Establishing rates on basis of out-of-area data.

(a) Establishing the rate. When the surveying agency determines that the number of comparable positions in private industry in the survey area is not sufficient to meet the requirements of § 532.503(b), or when it determines that the data obtained in the survey and analyzed under § 532.505(e)(3) do not meet all requirements for adequacy, the surveying agency shall establish the wage schedule for the wage area only after obtaining wage data concerning the principal types of Federal positions from comparable private positions in the nearest similar wage area, except that when the wait for wage data from the nearest similar wage area would unduly delay the issuance of the wage schedule for the local wage area, OPM may authorize (1) the earlier issuance of an interim schedule for the wage area without the wage data from the nearest similar wage area, and (2) the issuance of the final wage schedule based on wage data from the nearest similar wage area at a later date but effective on the same date as the interim schedule.

(b) Selecting nearest similar area. (1) The surveying agency shall examine available information first on wage areas contiguous to the local wage area to identify wage areas in which a sufficient number of private industry positions can be expected to be found, and shall select the area that is most nearly similar to the local wage area in terms of a gross comparison of private employment, population, relative numbers of private employees in major industry categories, and the kinds and sizes of industrial establishments.

(2) If none of the contiguous wage areas has a sufficient number of pri

vate industry positions comparable to the principal types of Federal positions, the surveying agency shall next examine available information on the wage areas surrounding the contiguous wage areas to identify wage areas where there are a sufficient number of private industry positions comparable to the principal types of Federal positions, and shall select the wage area that is most nearly similar on the basis of the factors set out in paragraph (b)(1) of this section.

(3) If none of the wage areas surrounding the contiguous wage areas has a sufficient number of private industry positions comparable to the principal types of Federal positions, the surveying agency shall select the wage area nearest to the local wage area that has private industry with comparable positions.

(4) When there are two dominant industries, the surveying agency shall select the nearest similar area for each dominant industry in the manner prescribed by paragraphs (b)(1), (2), and (3) of this section.

(c) Obtaining and using data. The surveying agency shall obtain necessary data from the wage area selected under paragraph (b) of this section by surveying a sufficient number of jobs found in private industry to provide survey coverage representative of the principal types of Federal positions. The data from that survey shall be included with all other data collected during the survey in the local wage area to determine the wage schedule for the local wage area, except that the data secured under this paragraph may be used only to the extent that the number of job matches in the outside wage area (or outside wage areas when there are two dominant industries and the surveying agency has obtained data from two outside wage areas) does not exceed the total number of job matches secured in the local wage area.

(d) Establishing rates. (1) The surveying agency shall establish the wage schedules for the local wage area by using the data secured within the local wage area and the data secured from the nearest similar wage area, except that the pay rates established by using these data (i) may not exceed the pay

rates established for the same grades in the nearest similar wage areas selected under paragraph (b) of this section, and, (ii) may not be lower than the local wage area rates would be without using these data.

(2) When data are secured from two additional wage areas because there are two dominant industries, the pay rates established by using these data may not exceed the higher of the pay rates established for each grade in the two additional wage areas selected under paragraph (b) of this section.

(e) Continuation of rates. Rates established under this subpart continue in effect until revised or canceled. No employee shall have his pay reduced because of cancellation or revision of the rates.

Subpart F-[Reserved]

Subpart G-Appeals

AUTHORITY: 5 U.S.C. 5345.

§ 532.701 Applicability.

This subpart applies to an employee in a trades, crafts, or labor occupation who is subject to section 5341(a) of title 5, United States Code (referred to in this subpart as an employee) and to an agency in which such an employee is employed.

[33 FR 12454, Sept. 4, 1968]

§ 532.702 Agency responsibility.

(a) Each agency shall establish a system for processing an application by an employee for a review of the correctness of the classification of his position (referred to in this subpart as an application), including the title or series when appropriate.

(b) In establishing the system required by this section, an agency, as a minimum, shall provide that:

(1) The provisions of the system shall be published and its employees shall be informed where a published copy is available for review.

(2) An application shall be in writing and contain the reasons the employee believes his position is erroneously classified.

(3) An application may be filed at any time. However, when a classifica

tion action results in a change to lower grade, in order to be entitled to retroactive corrective action:

(i) An employee covered by Subpart B of Part 752 of this chapter must appeal the change to lower grade under the provisions of § 752.203 of this chapter. An appeal under Subpart B of Part 752 of this chapter precludes the employee from filing an application under this section; or

(ii) An employee not covered by Subpart B of Part 752 of this chapter must request review under the provisions of this subpart within 15 calendar days of the effective date of the change to lower grade.

(4) An employee may select a representative of his own choosing and the employee (and his representative when the representative is also employed by the agency) shall be granted a reasonable time in presenting his application, and shall be assured freedom from restraint, interference, coercion, or reprisal in presenting his application. An employee's representative does not have a right to be present during a desk audit conducted by OPM.

(5) The application shall be processed and decided promptly, with a provision that when a decision has not been issued within 60 days of the date the employee filed the application, he may request the next higher level in the agency with classification authority to assume jurisdiction of his application and the next higher level will promptly process and decide it.

(6) An employee shall promptly furnish such facts as may be requested by the agency.

(7) An application shall be canceled and the employee so notified in the following circumstances:

(i) On receipt of a written request by an employee;

(ii) On failure to prosecute when an employee does not furnish requested information and duly proceed with the advancement of his application; however, instead of cancellation for failure to prosecute, the application may be adjudicated if the information is sufficient for that purpose; or

(iii) On notice that an employee has left the position, except when he would be entitled to retroactive bene

fits including benefits allowable after the death of an employee.

(8) No more than one level of review may be established within an agency before a final decision may be issued, and that level of review, when possible, must be above the level of classification authority which classified the position.

(9) When an employee not subject to Subpart B of Part 752 of this chapter requests a review of a downgrading or other classification action that resulted in a reduction of pay and the decision of an agency reverses in whole or in part the downgrading or other classification action, the effective date of that decision shall be retroactive to the effective date of the action being reviewed when the initial application to the agency was submitted not later than 15 calendar days after the effective date of the action taken as a result of the classification decision. However, when the agency decision raises the grade or level of the position above its grade or level immediately preceding the downgrading, retroactivity will apply only to the extent of restoration to the grade or level immediately preceding the downgrading.

(10) The right of a retroactive effective date is preserved when an agency finds that an employee was not notified of the applicable time limit for review and was not otherwise aware of the limit, or that circumstances beyond his control prevented him from filing his application within the prescribed time limit.

(11) The effective date of a change in the classification of a position shall be specified in the agency decision and, unless otherwise required by this subpart, may not be earlier than the date of the decision but in no case may it be later than the beginning of the first pay period which begins after the 60th day from the date the application was filed. However, when the agency decision will result in a downgrading or other classification action that will reduce the pay of the incumbent of the position, the effective date may not be earlier than the time required to effect the decision in accordance with procedures required by applicable law and regulation.