CHAPTER 43 - PERFORMANCE APPRAISAL
Title 5 > CHAPTER 43
Sections (12)
§ 4301 Definitions
Except as otherwise expressly provided, for the purpose of this subchapter— “agency” means— an Executive agency; and the Government Publishing Office; but does not include— a Government corporation; the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, or any Executive agency or unit thereof which is designated by the President and the principal function of which is the conduct of foreign intelligence or counterintelligence activities; or the Government Accountability Office; “employee” means an individual employed in or under an agency, but does not include— an employee outside the United States who is paid in accordance with local native prevailing wage rates for the area in which employed; an individual in the Foreign Service of the United States; a physician, dentist, nurse, or other employee in the Veterans Health Administration of the Department of Veterans Affairs whose pay is fixed under chapter 73 of title 38; an administrative law judge appointed under section 3105 of this title ; an individual in the Senior Executive Service or the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service; an individual appointed by the President; an individual occupying a position not in the competitive service excluded from coverage of this subchapter by regulations of the Office of Personnel Management; or an individual who (i) is serving in a position under a temporary appointment for less than one year, (ii) agrees to serve without a performance evaluation, and (iii) will not be considered for a reappointment or for an increase in pay based in whole or in part on performance; and “unacceptable performance” means performance of an employee which fails to meet established performance standards in one or more critical elements of such employee’s position. ( Pub. L. 89–554 , Sept. 6, 1966 , 80 Stat. 440 ; Pub. L. 91–375, § 6(c)(8) , Aug. 12, 1970 , 84 Stat. 776 ; Pub. L. 95–251, § 2(a)(1) , Mar. 27, 1978 , 92 Stat. 183 ; Pub. L. 95–454, title II, § 203(a) , Oct. 13, 1978 , 92 Stat. 1131 ; Pub. L. 100–325, § 2(f) , May 30, 1988 , 102 Stat. 581 ; Pub. L. 101–474, § 5(e) , Oct. 30, 1990 , 104 Stat. 1100 ; Pub. L. 101–510, div. A, title XII, § 1206(e) , Nov. 5, 1990 , 104 Stat. 1661 ; Pub. L. 102–54, § 13(b)(2) , June 13, 1991 , 105 Stat. 274 ; Pub. L. 103–359, title V, § 501(e) , Oct. 14, 1994 , 108 Stat. 3429 ; Pub. L. 104–201, div. A, title XI, § 1122(a)(1) , Sept. 23, 1996 , 110 Stat. 2687 ; Pub. L. 108–271, § 8(b) , July 7, 2004 , 118 Stat. 814 ; Pub. L. 110–417 , [div. A], title IX, § 931(a)(1), Oct. 14, 2008 , 122 Stat. 4575 ; Pub. L. 113–235, div. H, title I, § 1301(b) , Dec. 16, 2014 , 128 Stat. 2537 ; Pub. L. 115–91, div. A, title X, § 1097(d)(4) , Dec. 12, 2017 , 131 Stat. 1621 .)
§ 4302 Establishment of performance appraisal systems
(a) Each agency shall develop one or more performance appraisal systems which— provide for periodic appraisals of job performance of employees; encourage employee participation in establishing performance standards; and use the results of performance appraisals as a basis for training, rewarding, reassigning, promoting, reducing in grade, retaining, and removing employees.
(b) The head of each agency, in consultation with the Director of the Office of Personnel Management and the Special Counsel, shall develop criteria that— the head of the agency shall use as a critical element for establishing the job requirements of a supervisory employee; and promote the protection of whistleblowers. The criteria required under paragraph (1) shall include— principles for the protection of whistleblowers, such as the degree to which supervisory employees— respond constructively when employees of the agency make disclosures described in subparagraph (A) or (B) of section 2302(b)(8); take responsible actions to resolve the disclosures described in clause (i); and foster an environment in which employees of the agency feel comfortable making disclosures described in clause (i) to supervisory employees or other appropriate authorities; and for each supervisory employee— whether the agency entered into an agreement with an individual who alleged that the supervisory employee committed a prohibited personnel practice; and if the agency entered into an agreement described in clause (i), the number of instances in which the agency entered into such an agreement with respect to the supervisory employee. In this subsection— the term “agency” means any entity the employees of which are covered under paragraphs (8) and (9) of section 2302(b), without regard to whether any other provision of this section is applicable to the entity; the term “prohibited personnel practice” has the meaning given the term in section 2302(a)(1); the term “supervisory employee” means an employee who would be a supervisor, as defined in section 7103(a), if the agency employing the employee was an agency for purposes of chapter 71; and the term “whistleblower” means an employee who makes a disclosure described in section 2302(b)(8).
(c) Under regulations which the Office of Personnel Management shall prescribe, each performance appraisal system shall provide for— establishing performance standards which will, to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria (which may include the extent of courtesy demonstrated to the public) related to the job in question for each employee or position under the system; as soon as practicable, but not later than October 1, 1981 , with respect to initial appraisal periods, and thereafter at the beginning of each following appraisal period, communicating to each employee the performance standards and the critical elements of the employee’s position; evaluating each employee during the appraisal period on such standards; recognizing and rewarding employees whose performance so warrants; assisting employees in improving unacceptable performance; and reassigning, reducing in grade, or removing employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance.
(d) In accordance with regulations which the Office shall prescribe, the head of an agency may administer and maintain a performance appraisal system electronically.
[§ 4302a Repealed. Pub. L. 103–89, § 3(b)(1)(B)(i), Sept. 30, 1993, 107 Stat. 981]
§ 4303 Actions based on unacceptable performance
(a) Subject to the provisions of this section, an agency may reduce in grade or remove an employee for unacceptable performance.
(b) An employee whose reduction in grade or removal is proposed under this section is entitled to— 30 days’ advance written notice of the proposed action which identifies— specific instances of unacceptable performance by the employee on which the proposed action is based; and the critical elements of the employee’s position involved in each instance of unacceptable performance; be represented by an attorney or other representative; a reasonable time to answer orally and in writing; and a written decision which— in the case of a reduction in grade or removal under this section, specifies the instances of unacceptable performance by the employee on which the reduction in grade or removal is based, and unless proposed by the head of the agency, has been concurred in by an employee who is in a higher position than the employee who proposed the action. An agency may, under regulations prescribed 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— shall be made within 30 days after the date of expiration of the notice period, and in the case of a reduction in grade or removal, may be based only on those instances of unacceptable performance by the employee— which occurred during the 1-year period ending on the date of the notice under subsection (b)(1)(A) of this section in connection with the decision; and for which the notice and other requirements of this section are complied with.
(d) If, because of performance improvement by the employee during the notice period, the employee is not reduced in grade or removed, and the employee’s performance continues to be acceptable for 1 year from the date of the advance written notice provided under subsection (b)(1)(A) of this section, any entry or other notation 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— a preference eligible; in the competitive service; or 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 action to the Merit Systems Protection Board under section 7701.
(f) This section does not apply to— the reduction to the grade previously held of a supervisor or manager who has not completed the probationary period under section 3321(a)(2) of this title , 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, the reduction in grade or removal of an employee in the excepted service who has not completed 1 year of current continuous employment in the same or similar positions, or any removal or demotion under section 714 of title 38 .
§ 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) The Office shall review each performance appraisal system developed by any agency under this section and determine whether the performance appraisal system meets the requirements of this subchapter. The Comptroller General shall from time to time review on a selected basis performance appraisal systems established under this subchapter to determine the extent to which any such system meets the requirements of this subchapter and shall periodically report its findings to the Office and to the Congress. 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 implement an appropriate system or to correct operations under the system, and any such agency shall take any action so required.
§ 4305 Regulations
The Office of Personnel Management may prescribe 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 .)
[§§ 4306 to 4308 Omitted]
§ 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 .)
§ 4312 Senior Executive Service performance appraisal systems
(a) Each agency shall, in accordance with standards established by the Office of Personnel Management, develop one or more performance appraisal systems designed to— permit the accurate evaluation of performance in any position on the basis of criteria which are related to the position and which specify the critical elements of the position; provide for systematic appraisals of performance of senior executives; encourage excellence in performance by senior executives; and provide a basis for making eligibility determinations for retention in the Senior Executive Service and for Senior Executive Service performance awards.
(b) Each performance appraisal system established by an agency under subsection (a) of this section shall provide— that, on or before the beginning of each rating period, performance requirements for each senior executive in the agency are established in consultation with the senior executive and communicated to the senior executive; that written appraisals of performance are based on the individual and organizational performance requirements established for the rating period involved; and that each senior executive in the agency is provided a copy of the appraisal and rating under section 4314 of this title and is given an opportunity to respond in writing and have the rating reviewed by an employee, or (with the consent of the senior executive) a commissioned officer in the uniformed services serving on active duty, in a higher level in the agency before the rating becomes final.
(c) The Office shall review each agency’s performance appraisal system under this section, and determine whether the agency performance appraisal system meets the requirements of this subchapter. The Comptroller General shall from time to time review performance appraisal systems under this section to determine the extent to which any such system meets the requirements under this subchapter and shall periodically report its findings to the Office and to each House of the Congress. If the Office determines that an agency performance appraisal system does not meet the requirements under this subchapter (including regulations prescribed under section 4315), the agency shall take such corrective action as may be required by the Office.
(d) A senior executive may not appeal any appraisal and rating under any performance appraisal system under this section.
§ 4313 Criteria for performance appraisals
Appraisals of performance in the Senior Executive Service shall be based on both individual and organizational performance, taking into account such factors as— improvements in efficiency, productivity, and quality of work or service, including any significant reduction in paperwork; cost efficiency; timeliness of performance; other indications of the effectiveness, productivity, and performance quality of the employees for whom the senior executive is responsible; meeting affirmative action goals, achievement of equal employment opportunity requirements, and compliance with the merit systems principles set forth under section 2301 of this title ; and protecting whistleblowers, as described in section 4302(b)(2). (Added Pub. L. 95–454, title IV, § 405(a) , Oct. 13, 1978 , 92 Stat. 1168 ; amended Pub. L. 103–424, § 6 , Oct. 29, 1994 , 108 Stat. 4364 ; Pub. L. 115–91, div. A, title X, § 1097(d)(2) , Dec. 12, 2017 , 131 Stat. 1620 .)
§ 4314 Ratings for performance appraisals
(a) Each performance appraisal system shall provide for annual summary ratings of levels of performance as follows: one or more fully successful levels, a minimally satisfactory level, and an unsatisfactory level.
(b) Each performance appraisal system shall provide that— any appraisal and any rating under such system— are made only after review and evaluation by a performance review board established under subsection (c) of this section; are conducted at least annually, subject to the limitation of subsection (c)(3) of this section; in the case of a career appointee, may not be made within 120 days after the beginning of a new Presidential administration; and are based on performance during a performance appraisal period the duration of which shall be determined under guidelines established by the Office of Personnel Management, but which may be terminated in any case in which the agency making an appraisal determines that an adequate basis exists on which to appraise and rate the senior executive’s performance; any career appointee receiving a rating at any of the fully successful levels under subsection (a)(1) of this section may be given a performance award under section 5384 of this title ; any senior executive receiving an unsatisfactory rating under subsection (a)(3) of this section shall be reassigned or transferred within the Senior Executive Service, or removed from the Senior Executive Service, but any senior executive who receives 2 unsatisfactory ratings in any period of 5 consecutive years shall be removed from the Senior Executive Service; and any senior executive who twice in any period of 3 consecutive years receives less than fully successful ratings shall be removed from the Senior Executive Service.
(c) Each agency shall establish, in accordance with regulations prescribed by the Office, one or more performance review boards, as appropriate. It is the function of the boards to make recommendations to the appropriate appointing authority of the agency relating to the performance of senior executives in the agency. The supervising official of the senior executive shall provide to the performance review board, an initial appraisal of the senior executive’s performance. Before making any recommendation with respect to the senior executive, the board shall review any response by the senior executive to the initial appraisal and conduct such further review as the board finds necessary. Performance appraisals under this subchapter with respect to any senior executive shall be made by the appointing authority only after considering the recommendations by the performance review board with respect to such senior executive under paragraph (1) of this subsection. Members of performance review boards shall be appointed in such a manner as to assure consistency, stability, and objectivity in performance appraisal. Notice of the appointment of an individual to serve as a member shall be published in the Federal Register. In the case of an appraisal of a career appointee, more than one-half of the members of the performance review board shall consist of career appointees. The requirement of the preceding sentence shall not apply in any case in which the Office determines that there exists an insufficient number of career appointees available to comply with the requirement.
§ 4315 Regulations
The Office of Personnel Management shall prescribe regulations to carry out the purpose of this subchapter. (Added Pub. L. 95–454, title IV, § 405(a) , Oct. 13, 1978 , 92 Stat. 1170 .)