5 C.F.R. § 535 – Critical Position Pay Authority



CHAPTER 600 – MISSION SUPPORT70 – Personnel70.11 Pay Setting 70.11.1 Abbreviations and Acronyms.BFS/ARC – Bureau of the Fiscal Service/Administrative Resource Center DIGMS/CFO– Deputy Inspector General for Mission Support or/Chief Financial Officer E-OPF – Electronic Official Personnel FolderGS– General ScheduleHCPS– Human Capital and Personnel SecurityHPR – Highest Previous Rate LEO– Law Enforcement OfficerMPR – Maximum Payable Rate TIGTA– Treasury Inspector General for Tax Administration70.11.2 Introduction.This section establishes policy for setting pay for employees paid under the General Schedule (GS), including the Law Enforcement (GL) pay code. The purpose of this policy is to implement uniform practices for setting pay for situations in which law, regulations or policy permits at Chapter (600)-70.16.70.11.3 Authorities.HYPERLINK ""5 U.S.C. § 3109 – Employment of Experts and Consultants; temporary or intermittent5 U.S.C. §§ 3132(a) (5) and (a) (6) – Definitions and exclusions5 U.S.C. § 5305 – Special Pay Authority5 U.S.C. § 5307 – Limitation on Certain Payments5 U.S.C. § 5333 – Minimum Rate for New Appointments 5 U.S.C. § 5334 – Rate on change of position or type of appointment; regulations5 U.S.C. § 5363 – Pay Retention 5 U.S.C. § 5754 – Retention Bonuses5 U.S.C. § 7701(b) (2) (a) – Appellate Procedures 38 U.S.C. § 7455 – Increases in Rates of Basic Pay 5 C.F.R. § 304 – Expert and Consultant Appointments 5 C.F.R. § 316.403 – Designation of Provisional Appointments5 C.F.R. § 330 – Recruitment, Selection, and Placement (General)5 C.F.R. § 335 – Promotion and Internal Placement 5 C.F.R. § 530 – Pay Rates and Systems 5 C.F.R. § 531.204 – Entitlement to other rates of pay5 C.F.R. § 531.212 – Superior qualifications and special needs pay-setting authority 5 C.F.R. § 531.216 – Setting pay when an employee moves from a Department of Defense or Coast Guard non-appropriated fund instrumentality.5 C.F.R. §§ 531.221-223 – Maximum Payable Rate Rule5 C.F.R. § 535 – Critical Position Pay Authority5 C.F.R. § 536(c) – Pay Retention5 C.F.R. § 575(c) – Retention Incentives5 C.F.R. § 575.305(d) – Applicability to Employees5 C.F.R. § 575.308 – Approval Criteria and Written Determination 5 C.F.R. §§ 575.309(c) and (d) – Payment of retention incentives70.11.4 Overview. Title 5, C.F.R. § 531.221 provides the framework under which the Maximum Payable Rule (MPR) rule may be implemented by agencies based on the employee’s highest previous rate. Application of the MPR rule is discretionary and allows TIGTA to set pay for employees at a higher rate than would normally be established, based on the Highest Previous Rate (HPR) previously received in another Federal job. TIGTA may use the MPR rule in various pay actions, including new hire, reemployment, transfer, reassignment, promotion, demotion, change in type of appointment, termination of a critical position pay authority under 5 C.F.R. § 535, movement from a non-GS pay system, or termination of grade or pay retention under 5 C.F.R. § 536. A TIGTA Function Head must request the use of HPR. The DIGMS/CFO will make these determinations on a case-by-case basis.70.11.4.1 Definition. Highest Previous Rate: The highest rate of basic pay received by an individual while employed in a civilian position with the Federal Government (including service with the government of the District of Columbia for employees first employed by that government before October 1, 1987), or the highest rate of basic pay in effect when a GS employee held his or her highest GS grade and step.Maximum Payable Rate: The MPR rule allows an agency to set pay for GS employees at a rate above that would be established using normal rules, based upon the employee having received a higher rate of pay in another Federal job. The pay set under this rule may not exceed the rate of step 10 of the GS grade or be less than the rate the employee would be entitled to under normal pay-setting rules. Rate of Basic Pay: The rate of pay fixed by law or administrative action for the position held by a GS employee including a GS rate, a law enforcement officer’s (LEO) special base rate, a special salary rate, a locality rate, and a retained rate.70.11.4.2 Maximum Payable Rate.Rates of pay that may be used as the highest previous rate:The highest rate of basic pay in effect when a GS employee held his or her highest GS grade and highest step within that grade.The rate of basic pay received by an employee while serving on a regular tour of duty (hours of the day or the days of the week during which the employee works).The rate of basic pay received by an employee while serving under an appointment not limited to 90 days or less; or for a continuous period of not less than 90 days under one or more appointments without a break in service.If the highest previous rate is a GS locality rate, the underlying GS rate or a LEO special base rate associated with that locality rate must be used as the highest previous rate in applying the MPR.TIGTA may use a GS employee's special rate established under 5 U.S.C. § 5305 and 5 C.F.R § 530(c), or 38 U.S.C. § 7455 as the highest previous rate when all of the following conditions apply:The employee is reassigned to another position in the same agency at the same grade level;The special rate is the employee's rate of basic pay immediately before the reassignment; andA Function Head finds that the need for the services of the employee, and the employee's contribution to the programs of TIGTA, will be greater in the position to which reassigned. The DIGMS/CFO will make determinations on a case-by-case basis. In each case, documentation is required of the determination to use the special rate as an employee's highest previous rate. The highest previous rate may not be based on the following:Erroneous rates; A rate received under an appointment as an expert or consultant under 5 U.S.C. § 3109;A rate received in a position to which the employee was temporarily promoted for less than 1 year, except upon permanent placement in a position at the same or higher grade;A rate received in a position from which the employee was reassigned or reduced in grade for failure to satisfactorily complete a probationary period as a supervisor or manager;A rate received by an individual while employed by the government of the District of Columbia who was first employed by that government on or after October 1, 1987;A rate received by an individual while employed by a Department of Defense or Coast Guard non-appropriated fund instrumentality;A rate received solely during a period of interim relief under 5 U.S.C. § 7701(b)(2)(A);A special rate established under 5 U.S.C. § 5305 and 5 C.F.R § 5309 (c), or 38 U.S.C. § 7455 (except as provided in § 531.222(c)); A rate received under a void appointment or a rate otherwise contrary to applicable law or regulation;A rate received as a member of the uniformed services; orA retained rate under 5 U.S.C. § 5363 or a similar rate under another legal authority.70.11.5 Superior Qualifications and Special Needs Pay-Setting Authority.TIGTA may set the rate of basic pay of a new appointment or reappointment (under 5 U.S.C. § 5333) of an employee at a rate above the minimum rate of the appropriate GS grade because of: (1) the superior qualifications of the candidate, or (2) a special need of the agency for the candidate's services. Requests for approval of superior qualifications appointments will be initiated by the selecting official and forwarded through the Function Head for concurrence. 70.11.5.1 New Appointment. A new appointment (first appointment, regardless of tenure, to the Federal Government) will be made at the minimum rate or the first step of the grade to which appointed) except for those new appointments made using the superior qualifications method described below.70.11.5.2 Reappointment. A reappointment is an assignment to a position after a break of 90 days or more. A reappointment is considered a new appointment under 5 U.S.C. § 5333 and when the employee does not have a break in service of at least 90 days but meets any of the following criteria: The previous employment was under a time-limited or nonpermanent; appointment in the competitive or excepted service;Employment under an appointment as an expert or consultant under 5 U.S.C. § 304; Employment under a provisional appointment designated under 5 C.F.R. § 316.403; orService as an employee of a non-appropriated fund instrumentality of the Department of Defense or United States Coast Guard is not considered employment by the Federal Government under 5 C.F.R. § 531.212 except for employees covered by 5 C.F.R. § 531.216. If the employee is covered by 5 C.F.R. § 531.216, upon appointment to a GS position they are not eligible to have the pay set under the superior qualifications or special needs authority since their Non Appropriated Funds Office employment is considered employment by the Federal Government.70.11.6 Justification.The determination to approve a superior qualifications and special needs request requires a justification memorandum from the Function Head. The memorandum must be forwarded to the Director, HCPS. The Director, HCPS, after conducting a technical review of the request, will forward the request to the DIGMS/CFO for final approval. The determination for superior qualifications cannot be made retroactively.The factors and supporting documentation include:An explanation of prior attempts to fill the vacancy.A copy of the position description.The applicant's resume, OF-612, or SF-171.A citation of the authority for the appointment.A statement addressing applicant's existing pay—consider income the candidate would earn in her/her current position or in a position for which he/she has a bona fide offer. A bona fide offer must be in writing and must contain specific information about the current offer of employment. Salary claims must be verified (Statement of Earnings or bona fide job offer). In addition to, or in lieu of, a current salary or bona fide offer, Human Capital may contact the Department of Labor to determine the average salary for the occupation/location of the position being filled. Earnings from outside employment that may be forfeited because of Federal employment may also be considered.A recommended salary level for the applicant.The importance of the position to be filled and the effect on TIGTA if the position is not filled or if there is a delay in filling the position.Other relevant factors – such as rate paid to similarly qualified employees and recentness of work experience.A statement detailing the reasons for setting pay using this authority instead of, or in addition to, a recruitment bonus.A candidate does not need to meet all of the criteria in order to be approved for a superior qualifications and special needs pay setting appointment. All documentation of the superior qualifications appointment will be retained by the BFS office in a case file for two years from the effective date of the action.A function must first consider the use of a recruitment incentive under 5 C.F.R. 575(a) before requesting a superior qualifications appointment. The decision to offer or not offer a recruitment incentive must be documented in the case file along with the memorandum requesting the superior qualifications and special pay setting. The offer must be in writing, along with the candidate's refusal to accept the position with the recruitment incentive, and must be documented in the memorandum requesting approval.70.11.7 Retention Incentives. 70.11.7.1 Nature and Purpose. This section establishes the procedures for making determinations concerning the payment of retention incentives. TIGTA policy authorizes a retention incentive when necessary in accordance with statutory and regulatory criteria for such payment. Coverage is as follows:Individual Incentive – TIGTA may pay a retention incentive of up to 25 percent of a current employee’s “rate of basic pay” if it is determined that (1) the unusually high or unique qualifications of the employee or TIGTA has a special need for the employee’s services makes it essential to retain the employee; AND (2) the employee would be likely to leave the Federal Service in the absence of an incentive. Both conditions must be met for an employee to be considered for a retention incentive.Group Incentive – TIGTA may pay a retention incentive of up to 10 percent to a group or a category of employees if it is determined that (1) the employees have unusually high or unique qualifications or TIGTA has a special need for the employees’ services that makes it essential to retain the employees in the group or category; AND (2) there is a high risk that a significant number of the employees in the group or category would be likely to leave the Federal service in the absence of a retention incentive. Both conditions must be met for a group of employees to be considered for retention incentives.Higher percentages for both individuals and groups may be established with prior approval from OPM.Note: “Rate of basic pay” for retention incentive establishment means the rate of pay fixed by law or administrative action for the position before deductions and including any special rate, or similar payment under other legal authority, and any locality-based comparability payment, or similar payment, but excluding additional pay of any other kind. In other words, generally, an employee’s salary as identified in OPM Locality or Special Rate Pay Tables for a geographic area or occupational series.70.11.7.2 Criteria. Each retention incentive will be determined on a case-by-case basis and will be based on a written justification stating the extent to which the employee’s departure will affect TIGTA’s ability to carry out an activity or perform a function that is deemed essential to its mission. In determining whether a retention incentive should be paid and in determining the amount of such payment. The factors to be considered are:Factors for authorizing a retention incentive for an individual employee:Employment trends and labor market factors such as the availability and quality of candidates in the labor market possessing the competencies required for the position and who, with minimal training, cost, or disruption of service to the public, could perform the full range of duties and responsibilities of the employee's position at the level performed by the employee; The quality and availability of the potential sources of employees that are identified in the TIGTA succession plan (e.g., succession plans required for leadership positions), who possess the competencies required for the position, and who, with minimal training, cost, and disruption of service to the public, could perform the full range of duties and responsibilities of the employee's position at the level performed by the employee; The success of recent efforts to recruit candidates and retain employees with competencies similar to those possessed by the employee for positions similar to the position held by the employee; Special or unique competencies required for the position;Efforts to use non-pay authorities to help retain the employee instead of or in addition to a retention incentive, such as special training and work scheduling flexibilities or improving working conditions; The desirability of the duties, work or organizational environment, or geographic location of the position; The extent to which the employee's departure would affect TIGTA’s ability to carry out an activity, perform a function, or complete a project that the agency deems essential to its mission;The salaries typically paid outside the Federal Government; and Other supporting factors. Factors for authorizing a retention incentive for a group or category of employees: TIGTA must consider the factors in paragraph (A) of this section as they relate to determining whether a group or category of employees:Has unusually high or unique qualifications (i.e., competencies) or that the agency has a special need for the employees' services that makes it essential to retain the employees in that category; and That it is reasonable to presume that there is a high risk that a significant number of employees in the targeted category would be likely to leave the Federal service in the absence of a retention incentive.TIGTA must narrowly define a targeted category of employees using factors that relate to the conditions described in this section. Factors that may be appropriate include the following: occupational series, grade level, distinctive job duties, unique competencies required for the position, assignment to a special project, minimum agency service requirements, organization or team designation, geographic location, and required rating of record. While a rating of record of “Successful” equivalent rating of record required by 5 C.F.R. § 575.305(d) may be a factor used in defining the targeted category, a rating of record by itself is not sufficient to justify a retention incentive. A rating of record may function as a supporting factor in authorizing an incentive or setting the incentive rate only to the extent it directly relates to the determination factors of this section.All Incentive determinations made by TIGTA must be documented in accordance with the requirements of 5 C.F.R. § 575.308.70.11.7.3 Eligibility. The following factors must apply to meet eligibility requirements:A retention incentive may be paid to an employee only if the employee has completed 60 days of continuous service with TIGTA; An employee must have been in a position requiring unusually high or unique qualifications for a period of at least 60 days prior to being paid a retention incentive. The Inspector General must approve all exceptions to this rule; andA “Successful” rating on the most recent rating of record is required, and the employee may not be serving under a Performance Improvement Plan.The following employees are not covered:A position to which an individual is appointed by the President, by and with the advice and consent of the Senate;A position in the SES as a non-career appointee or a position excepted from the competitive service by reason of its confidential, policy-determining, policy-making or policy-advocating character; and70.11.7.4 Payment Incentive. A retention incentive will be calculated as a percentage of the employee’s “rate of basic pay” (not to exceed 25 percent) and paid in the same manner and at the same time as basic pay, i.e., in equal bi-weekly installments. A retention incentive will not be considered part of the employee’s rate of basic pay for any other purpose such as retirement calculation. Retention incentives are also subject to the aggregate limitation on pay under 5 U.S.C. § 5307 and 5 C.F.R. § 530(b). The incentive may be paid in installments after the completion of specified periods of service within the full period of service required by the service agreement or in a single lump sum after completion of the full period of service required by the service agreement. TIGTA may not pay a retention incentive as an initial lump-sum payment at the start of a service period or in advance of fulfilling the service period for which the retention incentive is received. A retention incentive installment payment may be computed at the full retention incentive percentage rate or at a reduced rate with the excess deferred for payment at the end of the full service period. Explanations of how to compute retention incentive installment payments may be found at 5 C.F.R. §§ 575.309(c) and (d), and in the guidance on Retention Incentive Payment and Termination Calculations.70.11.7.5 Required Documentation. Section 70.11.7.6 describes the required documentation for application of individual and group incentive. The Retention Incentive Certification Worksheet forms are located in the Word/File/New/Mission Support/Recruitment templates.70.11.7.6 Service Agreement. Before receiving a retention incentive, an employee must sign a written agreement to complete a specified period of service (The service agreement period may vary based on the amount of the recruitment incentive an employee receives, but may be less than 6 months or more than 4 years in duration.) The service period must begin on the first day of a pay period and end on the last day of a pay period. The service agreement must specify the retention incentive percentage rate established for the employee, the method and timing of incentive payments, the conditions under which an agreement will be terminated by the agency, any agency obligations if a service agreement is terminated (including the conditions under which the agency must make an additional payment for partially completed service), and any other terms and conditions for receiving and retaining retention incentives. Individual IncentiveCompletion of the Retention Incentive Certification Worksheet including:A written justification that the employee meets the criteria as described in 70.11.6;The proposed retention incentive payment (up to 25 percent) with justification for that percentage;A determination that the competencies required for the position are crucial to the successful accomplishment of the mission; andThe expected duration of the retention incentive.70.11.7.7 Approval of Retention Incentive Requests. An employee’s immediate manager will make the determination of eligibility and recommendation for a retention incentive. Concurrence by the head of the function (i.e., DIG or Chief Counsel) is required. Once the function concurs, the memorandum is forwarded to the Director, HCPS. The Director, HCPS, after conducting a technical review of the request, will forward the request to the DIGMS/CFO for final determination.Approved retention incentives are returned to the Director, HCPS for forwarding to the appropriate Functional Head to obtain the employee’s signature on the Worksheet. Once the employee signs the Worksheet, the package is returned to the Director, HCPS for submission to BFS/ARC for processing.70.11.7.8 Certification and Reports. A Retention Incentive Certification Worksheet must be completed and approved for each employee or group of employees. All documentation and certifications used for payment of retention incentives will be maintained in the employee’s eOPF. 70.11.7.8.1 Annual Certification. The annual retention incentive period will be aligned with TIGTA’s performance rating cycle, i.e., fiscal year. Annually, TIGTA managers will review all existing retention incentives to determine if conditions still warrant the payment of the incentives. While new retention incentives may be initiated at any time as conditions warrant, all new incentives will end on September 30 of the appropriate year. If retention incentives are still warranted, the manager must submit a new Retention Incentive Certification Worksheet for approval. The Director, HCPS must receive these requests by September 1. The intent is to obtain approval of all certifications by October 1, to allow first-line managers the opportunity to discuss the retention incentive with the employee during the annual performance appraisal review.If retention incentives are no longer warranted, the manager will notify the Director, HCPS, who will submit the termination request to BFS/ARC for processing. The employee’s immediate manager will explain the reasons for the termination of the retention incentive during the employee’s annual performance appraisal review.70.11.7.9 Reduction or Termination of Retention Incentive. An incentive may be reduced or terminated at any time. If a determination is made by TIGTA that a smaller incentive or none at all, would be sufficient to retain an employee, or group of employees, the manager will be notified and is responsible to notify the affected employee(s) or groups. Factors to be considered include:Labor market conditions make it more likely to recruit candidates with the needed qualifications;The need of the services of the employee(s) has been reduced;Management needs require termination; andBudgetary considerations make it inappropriate to continue paying the incentive.The termination of a retention incentive is not grievable nor appealable by the employee. Employees will however be notified in writing by their immediate manager of termination of a retention incentive.70.11.7.9.1 Promotion, Demotion, or Reassignment on Retention Incentive. When an employee currently receiving a retention incentive is either permanently reassigned to another position or is promoted or demoted to another position, the employee’s manager will notify the Director, HCPS whom will initiate the termination of the retention incentive with BFS/ARC. When an employee is reassigned to another manager, the employee’s prior manager is responsible for terminating the retention incentive. Temporary promotions and/or reassignments of 120 calendar days or less will not cause the termination of an existing retention incentive. Once the employee has served in the new position for a minimum of 60 days, the manager may recommend a new retention incentive be established. The DIGMS/CFO must approve all exceptions to this rule. ................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download