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receive retained pay in accordance with the provisions of 5 U.S.C. 5363 and the applicable sections of this part.

§ 536.213 Grade and pay retention in other circumstances.

Under 5 U.S.C. 5365(b)(2)-(3), the Office of Personnel Management may provide for the application of all or portions of grade and pay retention benefits in circumstances not covered under 5 U.S.C. 5362-5363. The Director, Office of Personnel Management, or his or her designee, is authorized to approve, at the request of an agency, the application of grade and pay retention benefits, or any appropriate portion thereof, in such situations as that official determines appropriate and necessary.

§ 536.214 Appeal of termination of benefits because of declination of reasonable offer.

(a) Under 5 U.S.C. 5366(a)(1), an employee whose grade or pay retention benefits under 5 U.S.C. 5362-5363 and this part are terminated on the grounds such employee declined a reasonable offer of a position (as defined in § 536.209 of this part) may appeal such termination to the Office of Personnel Management. Such appeals shall be made in accordance with the provisions of paragraph (b) of this section, except in the case of employees covered under paragraph (e) of this section.

(b) An employee who appeals under this section shall file such appeal in writing with the Office of Personnel Management not later than 15 calendar days after the termination of grade or pay retention benefits, and shall state in the appeal the reasons why the employee believes the offer of a position was not a reasonable offer. (c) The Office of Personnel Management may conduct any investigation or hearing it determines necessary to ascertain the facts of the appeal, and shall make its decision on the appeal in writing, and shall furnish a copy of the decision to the employee and to the agency.

(d) If a decision by the Office of Personnel Management on an appeal under this section requires corrective

action by an agency, including the retroactive and prospective restoration of grade or pay retention benefits, the agency shall take such corrective action.

(e) Termination of benefits based on a declination of a reasonable offer by an employee in an exclusively recognized bargaining unit may be reviewed under negotiated grievance and arbitration procedures in accordance with chapter 71 of title 5, United States Code, and the terms of any applicable collective bargaining agreement. An employee in an exclusively recognized bargaining unit may not appeal a termination of benefits to the Office of Personnel Management if the grievance procedure of the agreement by which he or she is covered provides for such review.

§ 536.215 Effect of grade retention on quota spaces.

For the purpose of determining the number of positions at GS-16, 17 and 18 or the equivalent, including positions in the Senior Executive Service, authorized by an Act of Congress, the grade of the position occupied, rather than the retained grade, is to be used.

§ 536.216 Issuance of employee letter.

The employing agency shall give to the employee, with the copy of the Notification of Personnel Action (SF50) documenting entitlement to grade retention, a letter explaining the action and the nature of the grade retention entitlement.

§ 536.217 Retroactive entitlements.

Under section 801(b) of the Civil Service Reform Act of 1978 employees who otherwise meet the criteria of that section, and who were reduced in grade on or after January 1, 1977 and before the first day of the first pay period beginning on or after January 11, 1979 under circumstances which otherwise would have entitled the employee to grade retention as specified in 5 U.S.C. 5362 or § 536.201 or § 536.202 of these regulations, shall be entitled to pay and benefits as provided in section 801(b) under procedures and instructions issued by the Office of Personnel Management.

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the employee's rate of basic pay as follows:

(a) When the employee is receiving a rate of basic pay below the minimum rate of the grade in which his position is placed, his pay shall be increased to the minimum rate.

(b) When the employee is receiving a rate of basic pay equal to a rate in the grade in which his position is placed, his pay shall be fixed at that rate.

(c) When the employee is receiving a rate of basic pay that falls between two rates of the grade in which his position is placed, his pay shall be fixed at the higher of the two rates.

(d) When the employee is receiving a rate of basic pay above the maximum rate of the grade in which his position is placed, he is entitled to retain his former rate as long as he remains continuously in the same position or in a position of higher grade in the same agency, or until he receives a higher rate of basic pay by operation of chapter 51 and subchapter III of chapter 53 of title 5, United States Code, and Part 531 of this chapter. The employee may retain his former rate on subsequent reassignment as defined in § 531.202 of this chapter. If the employee is subsequently dernoted to a position subject to the General Schedule, the agency shall determine his rate of basic pay in accordance with § 531.203(c) or Subpart E of Part 531 of this chapter, as appropriate.

[33 FR 12458, Sept. 4, 1968]

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Chapter 54 of title 5, United States Code (5 U.S.C. 5401-5405), provides for a Merit Pay System to recognize and reward quality performance by supervisors and management officials (as defined in 5 U.S.C. 7103(10)-(11)) in positions classified in GS-13, 14, or 15. This part contains the regulations which the Office of Personnel Management has prescribed for the Merit Pay System. This part supplements and implements the provisions of 5 U.S.C. 5401-5405, and section 504 of Pub. L. 95-454 (concerning the implementation of the Merit Pay System), and must be read together with those provisions of law.

§ 540.102 Ranges of basic pay and employee coverage.

5402(a), the

(a) Under 5 U.S.C. Office of Personnel Management is required to establish a Merit Pay System which provides a range of basic pay for each grade of the Merit Pay System. The Merit Pay System shall consist of three grades, as follows:

(1) GM-13, which shall consist of supervisors and management officials who are in positions classified in GS13;

(2) GM-14, which shall consist of supervisors and management officials who are in positions classified in GS14; and

(3) GM-15, which shall consist of supervisors and management officials who are in positions classified in GS15.

(b) The range of annual rates of basic pay for each grade of the Merit

Pay System shall be the same as the range of annual rates of basic pay for the corresponding grade of the General Schedule, including any rates authorized under 5 U.S.C. 5303 for any position covered by such authorization.

(c) The head of each agency shall identify employees who are supervisors or management officials for purposes of coverage by the Merit Pay System.

§ 540.103 Determination and allocation of merit pay funds.

(a) Under 5 U.S.C. 5402(b)(4), the Office of Personr.el Management must determine the funds available for merit pay purposes. In order to allow the Office to do this, each agency covered by the Merit Pay System shall submit such data as the Office may require.

(b) Before the beginning of each fiscal year, the Office of Personnel Management shall issue a Merit Pay Fund Computation Table, together with instructions for its use. Each agency covered by the Merit Pay System shall use this table to determine the amount of the merit pay fund available to the agency.

(c) Each agency covered by the Merit Pay System is required to establish procedures to ensure that the merit pay fund in the agency is allocated in a fair and objective manner. Variations in the level of merit pay funding provided different organizational elements in the agency must be based solely on differences in the Merit Pay System payroll for the different organizational elements, unless the agency determines that variations should also be based on differences in organizational accomplishments of the different elements. If differences in organizational accomplishments are to be taken into consideration, those differences must be determined on the basis of a fair and objective assessment of each organization's performance in relation to that of other organizations within the agency, and the basis for the determination must be fully documented.

(d) Each agency covered by the Merit Pay System is required to establish procedures to ensure that the sum

of merit pay increases awarded each year under § 540.105 of this part to Merit Pay System employees in the agency is no less than 95 percent and no more than 105 percent of the agency's merit pay fund (unless the Office of Personnel Management has granted prior approval for a lesser or greater obligation).

§ 540.104 Merit pay determinations.

(a) A merit pay determination is to be made for each employee covered by the Merit Pay System on October 1 of each year, or on the closest date before or after October 1 that is determined by the agency to be administratively feasible (but in no event more than 90 days before or 60 days after October 1).

(b) Each merit pay determination is to be based on a current performance appraisal (which shall include an appraisal of the employee's performance in meeting affirmative action goals and achieving equal employment opportunity requirements, to the extent the employee's position involves such responsibilities). Except in the case of agencies or employees not covered under chapter 42 of title 5, United States Code, performance appraisals are to be made under a performance appraisal system that has been approved by the Office of Personnel Management under 5 U.S.C. 4304(b)(1).

(c) If the agency determines it is appropriate to do so, a merit pay determination may also take into consideration the accomplishments of the organizational element within which the employee is employed. If organizational accomplishments are taken into consideration, the accomplishments of the organizational element must be determined on the basis of a fair and objective assessment of that organization's performance in relation to that of other organizations within the agency, as documented under § 540.103(c) of this part.

(d) No merit pay determination may take into consideration any preestablished or forced distribution of levels of performance among Merit Pay System employees.

(e) Agency procedures for making merit pay determinations must include

a requirement for a concurrence in each merit pay determination by an official of the agency who is at a higher level than the official who made the merit pay determination (unless there is no official at a higher level in the agency).

(f) The reasons for each merit pay determination are to be documented and shall be made available to the affected employee at his or her request.

(g) No merit pay increase resulting from a merit pay determination may be put into effect until the requirements of this section have been met.

§ 540.105 Merit pay increases.

(a) Each agency shall establish a procedure for determining in a fair and objective manner the amount of merit pay increase that shall be granted each Merit Pay System employee. The amount of merit pay increase (if any) for each Merit Pay System employee each fiscal year shall be based on the merit pay determination made with respect to October 1 of that fiscal year under § 540.104 of this part, but may also take into consideration the grade level of the employee, the position of the employee's existing rate of basic pay within the range of basic pay for the employee's grade, the period of time since the employee's last increase in rate of basic pay (other than an increase under 5 U.S.C. 5303, 5305, 5307, 5343(a), 5363(a)(B), or 5402(c)(1)), and the amount of such last increase in rate of basic pay. The amount of merit pay increase for each Merit Pay System employee may not take into consideration any preestablished or forced distribution of dollar or percentage amounts of individual merit pay increases.

(b) All merit pay increases each fiscal year shall be made effective on the same day the pay adjustment under 5 U.S.C. 5402(c)(1) becomes effective in that fiscal year. If, under § 540.104(a) of this part, a merit pay determination is not made until after a pay adjustment under 5 U.S.C. 5402(c)(1) becomes effective, the resulting merit pay increase (if any) shall be made retroactive to the effective date of the pay adjustment under 5 U.S.C. 5402(c)(1). In no event shall the retroactive payment be made later

than December 31 of the calendar year during which such pay adjustment takes effect.

(c) A Merit Pay System employee's rate of basic pay may not be less than the minimum nor more than the maximum rate of basic pay for the employee's grade in the Merit Pay System. Notwithstanding any merit pay determination

(1) Each Merit Pay System employee's rate of basic pay must be increased, effective on the same day a pay adjustment under 5 U.S.C. 5402(c)(1) becomes effective, by any amount necessary to raise the employee's rate of basic pay to the new minimum rate for the employee's grade; and

(2) No Merit Pay System employee's rate of basic pay may be increased by an amount that would cause that rate of basic pay to exceed the maximum rate for the employee's grade.

§ 540.106 Interrupted service.

(a) An employee covered by the Merit Pay System, whose continuous service is interrupted in the public interest by service with the uniformed services or by service in essential nonGovernment employment during a period of war or national emergency, is entitled to have his or her pay fixed in accordance with this section upon:

civilian

(1) Reemployment in a position under the Merit Pay System not later than 52 calendar weeks after separation from active duty in the uniformed services;

(2) Restoration to a position under the Merit Pay System after separation from active duty in the uniformed services (or hospitalization continuing thereafter) as provided by law; or

(3) Reemployment in or restoration to a position under the Merit Pay System without a break in service after service in essential non-Government civilian employment during a period of war or national emergency.

(b) An employee under the Merit Pay System who is entitled to have his or her pay fixed under this section shall have his or her pay fixed within the range of basic pay for the employee's position at a rate which is the lesser of

(1) The maximum rate of the range of basic pay, or

(2) The sum of-(i) The employee's rate of basic pay under the Merit Pay System immediately before the interruption of service entitling the employee to coverage under this section;

(ii) The adjustments that would have been made in the employee's rate of basic pay under 5 U.S.C. 5402(c)(1) had the employee's service not been interrupted; and

(iii) The average adjustments under 5 U.S.C. 5402(b) that were received by comparably situated employees under the Merit Pay System in the agency during the period when the employee's service was interrupted.

§ 540.107 Cash award program.

(a) 5 U.S.C. 5403 authorizes a cash award program as part of the Merit Pay System. Each agency covered by the Merit Pay System shall establish a cash award program for its Merit Pay System employees in accordance with the provisions of 5 U.S.C. 5403 and this section.

(b) Each agency's cash award program shall provide for the administration of cash awards for Merit Pay System employees, except as provided in paragraph (c) of this section, as a part of and in conjunction with the Merit Pay System, and shall establish procedures to ensure that:

(1) Cash awards are made in a fair and objective manner; and

(2) The reasons for each award are documented in such manner as the agency may prescribe.

(c) Cash awards that are not related to the Merit Pay System employee's performance in his or her position are to be administered in accordance with the provisions of Part 451 of this chapter and the agency's incentive award program established pursuant to Part 451.

(d) The Office of Personnel Management shall establish and publish in the Federal Personnel Manual procedures for considering agency certifications for cash awards under 5 U.S.C. 5403(e)(2).

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