For other versions of this document, see http://wikileaks.org/wiki/CRS-RL31516 ------------------------------------------------------------------------------ Order Code RL31516 CRS Report for Congress Received through the CRS Web Federal Workforce Flexibilities: A Side-by-Side Comparison of S. 129 (108th Congress) with Current Law Updated June 30, 2004 Barbara L. Schwemle Analyst in American National Government Government and Finance Division Congressional Research Service ~ The Library of Congress Federal Workforce Flexibilities: A Side-by-Side Comparison of S. 129 (108th Congress) with Current Law Summary A bill related to the management of the federal workforce is being considered by the 108th Congress. S. 129, the Federal Workforce Flexibility Act of 2003, passed the Senate with an amendment by unanimous consent on April 8, 2004. In the House, the Subcommittee on Civil Service and Agency Organization forwarded S. 129 to the House Committee on Government Reform on May 18, 2004, after amending it by voice vote. On June 24, 2004, the House committee ordered the bill to be reported to the House of Representatives, after amending it, by voice vote. The bill was introduced by Senator George Voinovich on January 9, 2003. A similar bill, H.R. 1601, the Federal Workforce Flexibility Act of 2003, was introduced in the House of Representatives by Representative Jo Ann Davis on April 3, 2003. S. 129, as passed by the Senate and as ordered to be reported to the House, would amend current law provisions on critical pay, civil service retirement system computation for part-time service, agency training, and annual leave. The bill also would amend current law provisions on recruitment and relocation bonuses and retention allowances (which would be renamed bonuses). As ordered to be reported to the House, S. 129 would amend the current 5 U.S.C. §§5753 and 5754 language on such bonuses and allowances. As passed by the Senate, it would add new sections 5754a and 5754b on recruitment, relocation, and retention bonuses to Title 5 United States Code. Therefore, if S. 129, as passed by the Senate, were enacted, agencies would be able to use the current law provisions on recruitment and relocation bonuses and retention allowances at 5 U.S.C. §§5753 and 5754 and the enhanced authority for recruitment, relocation, and retention bonuses proposed at 5 U.S.C. §§5754a and 5754b. S. 129, as ordered to be reported to the House, would amend current law provisions on pay administration. These amendments were included in S. 129, as introduced, but they were dropped during Senate committee markup and are not included in the Senate-passed version of the bill. Provisions that would amend current law on retirement service credit for cadet or midshipman service and compensatory time off for travel were added to S. 129 during Senate committee markup and are included in the legislation as passed by the Senate and as ordered to be reported to the House. Added during Senate Committee markup as well were provisions on Senior Executive Service authority for the White House Office of Administration that are in the Senate-passed bill, but are not in the legislation as ordered to be reported to the House. Other provisions that would have amended current law provisions relating to contributions to the Thrift Savings Plan, annuity commencement dates, and retirement for air traffic controllers were included in S. 129, as forwarded by the House Civil Service and Agency Organization Subcommittee to the House Government Reform Committee, but were removed during the full committee markup. This report compares each of the provisions in S. 129, as passed by the Senate and as ordered to be reported to the House, with current law. Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Table 1. S. 129 Provisions Compared with Current Law . . . . . . . . . . . . . . . . . . . 5 Title 5 -- Government Organization and Employees . . . . . . . . . . . . . . . . . . 5 Chapter 41 -- Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Chapter 45 -- Incentive Awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Chapter 53 -- Pay Rates and Systems . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Chapter 55 -- Pay Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Chapter 57 -- Recruitment, Relocation, and Retention Bonuses . . . . 24 Chapter 63 -- Leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Chapter 83 -- Civil Service Retirement System; and Chapter 84 -- Federal Employees' Retirement System . . . . 44 Title 3 -- The President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Federal Workforce Flexibilities: A Side-by-Side Comparison of S. 129 (108th Congress) with Current Law Introduction As in the previous Congress, management of the federal workforce continues to be an issue of interest to the Senate and the House of Representatives in the 108th Congress. S. 129, the Federal Workforce Flexibility Act of 2003, passed the Senate with an amendment by unanimous consent on April 8, 2004. Senator George Voinovich introduced the bill on January 9, 2003, and it was referred to the Senate Committee on Governmental Affairs. On October 22, 2003, the committee ordered the bill to be reported with an amendment in the nature of a substitute; and it was reported on January 27, 2004.1 The committee substitute, as amended, was agreed to by unanimous consent on April 8, 2004. In the House of Representatives, the Subcommittee on Civil Service and Agency Organization of the House Committee on Government Reform marked up S. 129 on May 18, 2004. Before forwarding the legislation to the full committee, the subcommittee agreed by voice vote to an amendment in the nature of a substitute offered by Representative Jo Ann Davis and en bloc amendments offered by Representative Danny Davis. On June 24, 2004, the House committee ordered the bill to be reported to the House of Representatives by voice vote, after agreeing, by voice vote, to an amendment in the nature of a substitute offered by Representative Jo Ann Davis. Another bill related to management of the federal workforce was introduced in the House of Representatives on April 3, 2003. Representative Jo Ann Davis introduced H.R. 1601, the Federal Workforce Flexibility Act of 2003, and it was referred to the House Committee on Government Reform. As introduced, S. 129 and H.R. 1601 were identical except for one provision relating to personnel demonstration projects.2 On April 8, 2003, the Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia of the Senate Committee on Governmental Affairs, along with the Subcommittee on Civil Service and Agency Organization of the House Committee on Government Reform, conducted a joint hearing on the federal government's human capital 1 U.S. Congress, Senate Committee on Governmental Affairs, Federal Workforce Flexibility Act of 2003, report to accompany S. 129, 108th Cong., 2nd sess., S.Rept. 108-223 (Washington: GPO, 2004). 2 Under S. 129, as introduced, OPM would have submitted a recommendation to Congress as to whether a demonstration project should be made permanent before the end of five years. This provision was dropped from the bill during markup by the Senate Committee on Governmental Affairs on October 22, 2003. H.R. 1601 would require the recommendation to be made at or before the end of seven years. CRS-2 challenge.3 A hearing that included discussion of H.R. 1601 was conducted by the House Subcommittee on Civil Service and Agency Organization on February 11, 2004.4 Both S. 129 and H.R. 1601 include a number of the provisions that were in S. 2651, the Federal Workforce Improvement Act of 2002, introduced by Senator Voinovich in the 107th Congress. Several of the S. 2651 provisions, including those on agency Chief Human Capital Officers, alternative ranking and selection procedures, voluntary separation incentive payments, the repeal of recertification requirements for the Senior Executive Service, academic degree training, and modifications to the National Security Education Program, were enacted in P.L. 107- 296, Homeland Security Act of 2002, signed by President George Bush on November 25, 2002 and are applicable governmentwide.5 S. 129, as passed by the Senate and as ordered to be reported to the House, would amend current law provisions on critical pay, civil service retirement system computation for part-time service, agency training, and annual leave. The bill also would amend current law provisions on recruitment and relocation bonuses and retention allowances (which would be renamed bonuses). As ordered to be reported to the House, S. 129 would amend the current 5 U.S.C. §§5753 and 5754 language on such bonuses and allowances. As passed by the Senate, it would add new sections 5754a and 5754b on recruitment, relocation, and retention bonuses to Title 5 United States Code. Therefore, if S. 129, as passed by the Senate, were enacted, agencies would be able to use the current law provisions on recruitment and relocation bonuses and retention allowances at 5 U.S.C. §§5753 and 5754 and the enhanced authority for recruitment, relocation, and retention bonuses proposed at 5 U.S.C. §§5754a and 5754b.6 S. 129, as ordered to be reported to the House, would amend current law provisions on pay administration. These amendments were included in S. 129, as introduced, but they were dropped during Senate committee markup and are not included in the Senate-passed version of the bill. Provisions that would amend current law on retirement service credit for cadet or midshipman service and compensatory time off for travel were added to S. 129 during Senate committee markup and are included in the legislation as passed by the Senate and as ordered to 3 U.S. Congress, Senate Committee on Governmental Affairs, Subcommittee on Oversight of Government Management, the Federal Workforce and the District of Columbia and House Committee on Government Reform, Subcommittee on Civil Service and Agency Organization, The Human Capital Challenge: Offering Solutions and Delivering Results, hearing, 108th Cong., 1st sess., April 8, 2003 (Washington: GPO, 2003). 4 U.S. Congress, House Committee on Government Reform, Subcommittee on Civil Service and Agency Organization, Esprit de Corps: Recruiting and Retaining America's Best for the Federal Civil Service, Hearing, 108th Cong., 2nd sess., Feb. 11, 2004 (unpublished). 5 For a discussion of these provisions, see CRS Report RL31500, Homeland Security: Human Resources Management, by Barbara L. Schwemle. 6 According to staff of the Senate Committee on Governmental Affairs, the current authority at 5 U.S.C. 5753 and 5754 allows political appointees to be eligible for recruitment and relocation bonuses and retention allowances. S. 129, as passed by the Senate, would provide enhanced recruitment, relocation, and retention bonuses, but political appointees would be excluded from being eligible for the enhanced bonuses. CRS-3 be reported to the House. Added during Senate Committee markup as well were provisions on Senior Executive Service authority for the White House Office of Administration that are in the Senate-passed bill, but are not in the legislation as ordered to be reported to the House (the provisions were removed from the House version of the bill during the full House committee markup). Other provisions that would have amended current law provisions relating to contributions to the Thrift Savings Plan, annuity commencement dates, and retirement for air traffic controllers were included in S. 129, as forwarded by the House Civil Service and Agency Organization Subcommittee to the House Government Reform Committee, but were removed during the full committee markup. In the 107th Congress, Senator Voinovich introduced S. 1603, the Federal Human Capital Act of 2001, on October 31, 2001 and S. 1639, the Federal Employee Management Reform Act of 2001, on November 6, 2001. Senator Fred Thompson introduced S. 1612, the Managerial Flexibility Act of 2001, on November 1, 2001.7 The bills were referred to the Senate Committee on Governmental Affairs. Representative Constance Morella introduced H.R. 4580, the Good People, Good Government Act, on April 24, 2002, and it was referred to the House Committee on Government Reform. Earlier, on October 15, 2001, the Administration of President George W. Bush submitted a legislative proposal entitled The Managerial Flexibility Act of 2001 to Congress. The Office of Management and Budget (OMB) described the proposal as "a key component of the Bush Administration's `Freedom to Manage' initiative . . . to eliminate legal barriers to effective management."8 The proposal included provisions on personnel management flexibilities, including voluntary separation incentive payments, voluntary early retirement, recruitment and retention bonuses and relocation allowances, academic degrees, the Senior Executive Service, personnel management demonstration projects, and direct hire. On March 18 and 19, 2002, the Subcommittee on International Security, Proliferation, and Federal Services of the Senate Committee on Governmental Affairs conducted hearings on several of the civil service bills. Following the hearings, Senator Voinovich, joined by Senators Thompson and Cochran, revised some of the provisions in S. 1603 and S. 1639, as introduced, and merged them into one bill, S. 2651. As mentioned above, several of the S. 2651 provisions were enacted in P.L. 107-296. No further action was taken on any of the other 107th Congress bills. This report compares each of the provisions in S. 129, as passed by the Senate and as ordered to be reported to the House, with current law. The information in this report is presented according to the sequential organization of Title 5 United States 7 For a discussion of the provisions of S. 1603, S. 1639, and S. 1612, see CRS Memorandum, Civil Service Reform Proposals, coordinated by Sharon S. Gressle. Available from CRS. 8 U.S. Office of Management and Budget, OMB News Release 2001-47, "President Bush Proposes Legislation to Improve Management of Federal Agencies," Oct. 15, 2001. Available at [http://www.whitehouse.gov/omb/pubpress/2001-47.html], visited June 30, 2004. Senator Fred Thompson introduced S. 1613, the Freedom to Manage Act, on Nov. 1, 2001, and it was referred to the Senate Committee on Governmental Affairs. CRS-4 Code as current law. Patrick Purcell, Specialist in Social Legislation, Domestic Social Policy Division, Congressional Research Service (CRS), prepared the rows in Table 1 on retirement provisions under 5 U.S.C. Chapters 83 and 84. L. Elaine Halchin, Analyst in American National Government, Government and Finance Division, CRS, prepared the rows in Table 1 on Senior Executive Service Authority for the White House Office of Administration under 3 U.S.C. Chapter 2. CRS-5 Table 1. S. 129 Provisions Compared with Current Law Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate Title 5 -- Government Organization and Employees Chapter 41 -- Training Section 4103. Establishment of training Sec. 201, Agency Training Sec. 201, Agency Training programs. Sec. 201(a), Training to accomplish Sec. 201(a), Training to accomplish performance plans and strategic goals, performance plans and strategic goals would amend 5 U.S.C. §4103 by adding a Same provision, but does not include the new paragraph (c), which would provide words "on a regular basis." that each agency head would, on a regular basis, (1) evaluate each program or plan established, operated, or maintained under 5 U.S.C. §4103(a) with respect to accomplishing specific performance plans and strategic goals in performing the agency mission; and (2) modify such program or plan as needed to accomplish such plans and goals. Chapter 41 -- Training. No similar provision Sec. 201(b), Agency training officer; Authorizes training for federal employees. specific training programs, would amend 5 U.S.C. Chapter 41 by adding a new section: CRS-6 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate Sec. 4120, Agency training officer, would provide that each agency would appoint or designate a training officer who would be responsible for developing, coordinating, and administering training for the agency. Chapter 41 -- Training. Sec. 201(b), Specific training Sec. 201(b), Agency training officer; Authorizes training for federal employees. programs, would amend 5 U.S.C. Chapter specific training programs, would amend 41 by adding a new section: 5 U.S.C. Chapter 41 by adding a new section: Sec. 4121, Specific training programs, Sec. 4121, Specific training would provide that in consultation with programs, which would provide the same, OPM, each agency head would establish (1) except as noted. a comprehensive management succession program to provide training to employees to develop managers for the agency; and (2) a program to train managers on actions, options, and strategies a manager could use in (A) relating to employees with unacceptable performance; (B) mentoring employees and improving performance and productivity; and (C) conducting employee (C) No similar provision performance appraisals. CRS-7 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate Chapter 45 -- Incentive Awards Section 4505a. Performance-based cash Sec. 301(c), Repeal, would amend 5 No similar provision awards. U.S.C. §4505a(a)(2) by striking (B) For purposes of computing a percentage subparagraph (B). of a rate of basic pay under subparagraph (A), (on cash awards) the rate of basic pay used shall be determined without taking into account any locality-based comparability payment under 5 U.S.C. §5304. Chapter 53 -- Pay Rates and Systems Section 5302. Definitions. Sec. 301, Corrections Relating to Pay No similar provision Sec. 5302(8) defines terms on General Administration Schedule (GS) rates of pay as the rates set Sec. 301(a)(1) would amend 5 U.S.C. forth in the GS and, for an employee §5302(8) to provide that "rates of pay under receiving retained pay, the basic pay under 5 the General Schedule" (GS), "rates of pay U.S.C. §5363. for the GS," or "scheduled rates of basic pay" would mean the rates of basic pay under the GS as established by 5 U.S.C. §5332, excluding pay under 5 U.S.C. §5304 and any other additional pay of any kind. CRS-8 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate Section 5304. Locality-based Sec. 302, Technical Corrections No similar provision comparability payments. Sec. 302(a)(1) would amend (A) 5 Sec. 5304(g)(2)(A) provides that U.S.C. §5304(g)(2)(A) to provide that the Executive Schedule level III is the maximum provision would apply to senior-level, total pay for senior-level, Senior Executive Senior Executive Service (SES), and FBI Service (SES), FBI and DEA SES, and and DEA SES positions. administrative law judge positions. Sec. 302(a)(2) would provide that the amendments made by this subsection would take effect as if included in the enactment of P.L. 108-136. Section 5305. Special pay authority. Sec. 301(a)(2)(A) would amend 5 U.S.C. No similar provision Sec. 5305(a) authorizes the President to §5305(a) to provide that (a)(1) OPM could establish special pay rates. A minimum rate establish special pay rates. A minimum rate could not exceed the maximum statutory pay could not exceed the maximum basic pay rate for the grade or level by more than 30% rate (excluding locality-based comparability and no rate may exceed level V of the payments) for the grade or level by more Executive Schedule. The President may than 30% and no rate could exceed level IV delegate the authority to OPM, or to another of the Executive Schedule. For individuals agency for individuals not subject to Title 5. not subject to Title 5 provisions governing appointment in the competitive service, the President could designate another agency to authorize special rates under this section. (2) The agency head could determine that a category of agency employees would not be covered by a special rate authorization. The CRS-9 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate agency head would provide written notice to OPM (or other agency designated by the President to authorize special rates under the last sentence of paragraph (1)) which identifies the specific category or categories of employees that will not be covered by special rates. If the agency head removes a category of employees from coverage after the special rate authorization takes effect, the loss of coverage would take effect on the first day of the first pay period after the notice date. Sec. 5305(b)(4): any other circumstances Sec. 301(a)(2)(B) would amend 5 U.S.C. No similar provision which the President (or an agency duly §5305(b)(4) to read: (4) any other authorized or designated by the President in circumstances which OPM (or such other accordance with the last sentence of agency as the President may under the last subsection (a)) considers appropriate. sentence of subsection (a)(1) designate) considers appropriate. Sec. 5305(d): ... rates of pay established Sec. 301(a)(2)(C) would amend 5 U.S.C. No similar provision under this Sec. may be revised from time to §5305(d), (i) by striking "President" and time by the President or by such agency as he inserting "Office of Personnel may designate .... Management" and (ii) by striking "or by such agency as he may designate" and CRS-10 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate inserting "(or by such other agency as the President may designate under the last sentence of subsection (a)(1)." Sec. 5305(e): an increase in a rate of Sec. 301(a)(2)(D) would amend 5 U.S.C. No similar provision basic pay established under this section is not §5305(e) by striking "basic pay" and an equivalent increase in pay within the inserting "pay." meaning of Sec. 5335. Sec. 5305(f) covers adjustment of special Sec. 301(a)(2)(E) would amend 5 U.S.C. No similar provision pay rates, under conversion rules prescribed §5305(f) to provide that when special rates by the President or such agency he are adjusted under subsection (d), a covered designates, when statutory pay rates increase. employee's special rate would be adjusted in accordance with conversion rules prescribed by OPM (or by such other agency as the President may under the last sentence of subsection (a)(1) designate. Sec. 5305(g)(1): ... any comparability Sec. 301(a)(2)(F) would amend 5 U.S.C. No similar provision payments ... shall be available to individuals §5305(g)(1), (i) by striking "basic pay" and receiving rates of basic pay established under inserting "pay" and (ii) by striking this Sec. to such extent as the President (or "President (or his designated agency)" and his designated agency) considers inserting "Office of Personnel Management appropriate.... (or such other agency as the President may under the last sentence of subsection (a)(1) designate)." CRS-11 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate Sec. 5305(h): pay cannot be less than Sec. 301(a)(2)(G) would amend 5 U.S.C. No similar provision basic (including locality pay) payable if §5305(h) to provide that an employee special pay were not available. would not for any purpose be considered to be entitled to a rate of pay established under this section with respect to any period for which such employee is entitled to a higher rate of basic pay under any other provision of law. "Basic pay" would include any applicable locality-based comparability payment under 5 U.S.C. §5304 or similar provision of law. No similar provision Sec. 301(a)(2)(H) would amend 5 U.S.C. No similar provision §5305 by adding a new subsection (i) which would provide that if an employee who is receiving a rate of pay under this section becomes subject, by virtue of moving to a new official duty station, to a different pay schedule, such employee's new rate of pay would be initially established under conversion rules prescribed by OPM (or such other agency as the President may under the last sentence of subsection (a)(1) designate) in conformance with the following: CRS-12 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate (1) First, determine the pay rate to which such employee would be entitled at the new official duty station based on such employee's position, grade, and step (or relative position in the rate range) before the move. (2) Then, if (in addition to the change in pay schedule) the move also involves any personnel action or other change requiring a rate adjustment under any other provision of law, rule, or regulation, apply the applicable rate adjustment provisions, treating the rate determined under paragraph (1) as if it were the rate last received by the employee before the rate adjustment. No similar provision Sec. 301(a)(2)(H) would amend 5 U.S.C. No similar provision §5305 by adding a new subsection (j) which would provide that a rate determined under a special rates schedule would be part of basic pay for purposes of civil service retirement, federal employees' retirement system, life insurance, premium pay, miscellaneous allowances, and for such other purposes as may be expressly provided for by law or as OPM could prescribe by regulation. CRS-13 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate Section 5305, note: Sec. 301(b), Special rates for law No similar provision Federal Law Enforcement Pay Reform Act enforcement officers, would amend Sec. of 1990. 403(c) by striking the current language and ... in the same manner as rates established inserting: "and shall be basic pay for all under 5 U.S.C. §5305, as so amended, and purposes. The rates shall be adjusted at the may be increased in accordance with 5 U.S.C. time of adjustments in the General Schedule §5305(f). [Sec. 403(c) of the Federal to maintain the step linkage set forth in Employees Pay Comparability Act of 1990 subsection (b)(2)." (104 Stat. 1465; 5 U.S.C. §5305 note)] Sec. 5305, note: authorizes relocation Sec. 101(b), Relocation payments, No similar provision payments for law enforcement officers. [Sec. would repeal Sec. 407. 407 of the Federal Employees Pay Comparability Act of 1990 (104 Stat. 1467; 5 U.S.C. §5305 note)] Section 5314. Positions at level III Sec. 302(b) would amend 5 U.S.C. No similar provision (Executive Schedule). §5314 by adding: "Administrator of the Office of Electronic Government." Section 5334. Rate on change of position Sec. 301(a)(3)(A) would amend 5 U.S.C. No similar provision or type of appointment; regulations. (Pay) §5334(b), (A) by adding new text providing Sec. 5334(b) covers employee entitlement that if an employee's rate after promotion or to basic pay rates upon promotion or transfer transfer is greater than the maximum rate of to a higher grade. basic pay for his or her grade, that rate would be treated as a retained rate. OPM would prescribe regulations on the CRS-14 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate circumstances under which and the extent to which special rates or locality-adjusted rates would be considered to be basic pay in applying this subsection. No similar provision Sec. 301(a)(3)(B) would amend 5 U.S.C. No similar provision §5334, by adding a new subsection (g) providing that in the case of an employee who (1) moves to a new official duty station, and (2) by virtue of such move, becomes subject to a different pay schedule, any rate adjustment under the preceding provisions of this section, with respect to such employee in connection with such move, would be made (A) first, by determining the rate of pay to which such employee would be entitled at the new official duty station based on such employee's position, grade, and step (or relative position in the rate range) before the move, and (B) then, by applying the provisions of this section that would otherwise apply (if any), treating the rate determined under subparagraph (A) as if it were the rate last received by the employee before the rate adjustment. CRS-15 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate Subchapter VI -- Grade and Pay Sec. 301(a)(4)(A) would amend 5 U.S.C. No similar provision Retention. §5361 by amending paragraph (4) to Section 5361. Definitions. provide that "rate of basic pay" would mean (4) "Rate of basic pay" means, in the case of a (A) the rate of basic pay payable to an prevailing rate employee, the scheduled rate employee under law or regulations before of pay determined under 5 U.S.C. 5343. any deductions or additions of any kind, but including (i) any applicable locality-based comparability payment or (ii) any applicable special pay and (iii) subject to such regulations as OPM could prescribe, any applicable existing retained rate of pay; and (B) in the case of a prevailing rate employee, the scheduled rate of pay determined under 5 U.S.C. §5343. Sec. 301(a)(4)(D) would amend 5 U.S.C. §5361 by adding at the end the following: (8) "retained rate" would mean the rate of basic pay to which an employee is entitled under 5 U.S.C. §5363(b)(2). Section 5363. Pay Retention. Sec. 301(a)(5)(A) would amend 5 U.S.C. No similar provision Sec. 5363(a), matter following paragraph §5363(a) by striking the matter following (4): ... is entitled to basic pay at a rate equal paragraph (4) and inserting: "is entitled to a to (A) the employee's allowable former rate rate of basic pay in accordance with of basic pay, plus (B) 50 % of the amount of regulations prescribed by OPM in CRS-16 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate each increase in the maximum rate of basic conformity with the provisions of this pay payable for the grade of the employee's section." position immediately after such reduction in pay if such allowable former rate exceeds such maximum rate for such grade. Sec. 5363(b): For the purpose of Sec. 301(a)(5)(B) would amend 5 U.S.C. No similar provision subsection (a) of this section, "allowable §5363 by striking subsection (b) and former rate of basic pay" means the lower of inserting: "(b)(1)(A) If, as a result of any -- (1) the rate of basic pay payable to the event described in subsection (a), the employee immediately before the reduction in employee's former rate of basic pay is less pay; or (2) 150 % of the maximum rate of than or equal to the maximum rate of basic basic pay payable for the grade of the pay payable for the grade of the employee's employee's position immediately after such position immediately after the occurrence of reduction in pay. the event involved, the employee is entitled to basic pay at the lowest rate of basic pay payable for such grade that equals or exceeds such former rate of basic pay. (B) This section shall cease to apply to an employee to whom subparagraph (A) applies once the appropriate rate of basic pay has been determined for such employee under this paragraph." "(2)(A) If, as a result of any event described in subsection (a), the employee's former rate of basic pay is greater than the CRS-17 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate maximum rate of basic pay payable for the grade of the employee's position immediately after the occurrence of the event involved, the employee is entitled to basic pay at a rate equal to the lesser of (i) the employee's former rate of basic pay; or (ii) 150 percent of the maximum rate of basic pay payable for the grade of the employee's position immediately after the occurrence of the event involved, as adjusted by subparagraph (B). (B) A rate to which an employee is entitled under this paragraph shall be increased at the time of any increase in the maximum rate of basic pay payable for the grade of the employee's position by 50 percent of the dollar amount of each such increase." (3) "Former rate of basic pay," as used with respect to an employee in connection with an event described in subsection (a), would mean the rate of basic pay last received by such employee before the occurrence of such event. CRS-18 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate Sec. 5363(c) provides that pay retention Sec. 301(a)(5)(B) would amend 5 U.S.C. No similar provision ceases to apply to an employee who has a §5363 by striking subsection (c) and break in service of one workday or more; is inserting: "(c)(1) Notwithstanding any entitled to a basic pay rate which is equal to other provision of this section, in the case of or higher than, or declines a reasonable offer an employee who (A) moves to a new of a position whose basic pay rate is equal to official duty station, and (B) in conjunction or higher than, the rate to which the employee with such move, becomes subject to both a is entitled under pay retention; or is demoted different pay schedule and (disregarding for personal cause or at the employee's this subsection) the preceding provisions of request. this section, this section shall be applied (i) first, by determining the rate of pay to which such employee would be entitled at the new official duty station based on such employee's position, grade, and step (or relative position in the pay range) before the move, and (ii) then, by applying the provisions of this section that would apply (if any), treating the rate determined under clause (i) as if it were the rate last received by the employee before the application of this section. (2) A reduction in an employee's rate of basic pay resulting from a determination under paragraph (1)(ii) is not a basis for an entitlement under this section. (3) The rate of basic pay for an employee who is receiving a retained rate at CRS-19 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate the time of moving to a new official duty station at which different pay schedules apply shall be subject to regulations prescribed by OPM consistent with the purposes of this section." No similar provision Sec. 301(a)(5)(B) would add a new No similar provision subsection (d) at 5 U.S.C. §5363 to provide that a retained rate would be considered part of basic pay for purposes of this subchapter and for purposes of civil service retirement, federal employees' retirement system, life insurance, premium pay, miscellaneous allowances, and for such other purposes as could be expressly provided for by law or as OPM could prescribe by regulation. OPM would, for any purpose other than any of the purposes referred to in the preceding sentence, prescribe by regulation what constitutes basic pay for employees receiving a retained rate. Sec. 5363(c) provides that pay retention Sec. 301(a)(5)(B) would provide, at 5 No similar provision ceases to apply to an employee who has a U.S.C. §5363(e), that "This section shall break in service of one workday or more; is not apply, or shall cease to apply, to an entitled to a basic pay rate which is equal to employee who (1) has a break in service of CRS-20 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate or higher than, or declines a reasonable offer 1 workday or more; (2) is entitled, by of a position whose basic pay rate is equal to operation of this subchapter, chapter 51 or or higher than, the rate to which the employee 53, or any other provision of law, to a rate is entitled under pay retention; or is demoted of basic pay which is equal to or higher for personal cause or at the employee's than, or declines a reasonable offer of a request. position the rate of basic pay for which is equal to or higher than, the retained rate to which the employee would otherwise be entitled; or (3) is demoted for personal cause or at the employee's request." Section 5365. Regulations. Sec. 301(a)(6) would amend 5 U.S.C. No similar provision Authorizes OPM to prescribe regulations §5365(b) to provide that, under the to administer grade and pay retention. regulations, OPM could provide for the application of all or portions of the provisions on grade and pay retention (subject to any conditions or limitations OPM could establish). No similar provision Sec. 301, Effective Date; Conversion No similar provision Rules Sec. 301(d)(1) would provide that Section 301 would take effect on the first day of the first applicable pay period beginning on or after the 180th day after the act's enactment. CRS-21 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate Sec. 301(d)(2) would provide for conversion rules. (A) Individuals receiving a retained rate or a rate greater than the maximum rate for the grade, Subject to any regulations OPM could prescribe, an employee under a covered pay schedule who, on the day before the effective date of this section, is receiving a retained rate under 5 U.S.C. §5363, or is receiving under similar authority a rate of basic pay that is greater than the maximum rate of basic pay payable for the grade of the employee's position would have that rate converted as of the effective date of Section 301, and the employee would be considered to be receiving a retained rate under 5 U.S.C. §5363 (as amended by Section 301). The newly applicable retained rate would equal the formerly applicable retained rate as adjusted to include any applicable locality-based Section 5361. Definitions. comparability payment. (B) "Covered pay (5) "covered pay schedule" means the schedule" would have the meaning given General Schedule, any prevailing rate such term by 5 U.S.C. §5361. schedule, or a special occupational pay system. CRS-22 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate Section 5377. Pay Authority for Critical Sec. 102, Streamlined Critical Pay Sec. 102, Streamlined Critical Pay Positions. Authority Authority Sec. 5377(c) authorizes OMB, in Sec. 102(1) would amend 5 U.S.C. Same provision consultation with OPM, to, upon the request §5377(c) to provide that OPM, in of an agency head, grant authority to fix the consultation with OMB, would grant the basic pay rate for one or more positions in the authority. agency in accordance with critical pay. Sec. 5377(e)(1) provides that the authority Sec. 102(2) would amend 5 U.S.C. Same provision to fix the basic pay rate for a position §5377(e)(1) to substitute OPM for OMB. terminates whenever OMB determines (in accordance with such procedures and subject to such terms or conditions as OMB regulations prescribe) that one or more of the requirements for critical pay are no longer met. Sec. 5377(f) provides that OMB may not Sec. 102(2) would amend 5 U.S.C. Same provision authorize the exercise of critical pay authority §5377(f) to substitute OPM for OMB. for more than 800 positions at any time, of which not more than 30 may at any time, be positions which would otherwise be paid on the Executive Schedule. CRS-23 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate Sec. 5377(g) directs OMB to consult with Sec. 102(3) would amend 5 U.S.C. Same provision OPM before prescribing regulations or §5377(g) to provide that OPM would making any decision to grant or terminate any consult with OMB before making any critical pay authority. decision to grant or terminate any critical pay authority. The language relating to prescribing regulations would be struck. Sec. 5377(h) authorizes OMB to report Sec. 102(4) would amend 5 U.S.C. Same provision annually and in writing to the House §5377(h) to substitute OPM for OMB and Committee on Post Office and Civil Service the House Committee on Government and the Senate Committee on Governmental Reform for the House Committee on Post Affairs on the operation of critical pay. Office and Civil Service. Chapter 55 -- Pay Administration No similar provision Sec. 203, Compensatory Time Off for Sec. 203, Compensatory Time Off for Travel Travel Sec. 203(a) would amend 5 U.S.C. Sec. 203(a) would amend 5 U.S.C. Chapter 55, Subchapter V by adding a new Chapter 55, Subchapter V by adding a new Section 5550b at the end. Section 5550b at the end. Sec. 5550b, Compensatory time off for Same provision travel, would provide that (a) Section 5542. Overtime rates; Notwithstanding 5 U.S.C. §5542(b)(2), computation. each hour spent by an employee in travel Sec. 5542(b)(2) provides that time spent in status away from the his or her official duty a travel status away from the official-duty station, that is not otherwise compensable, station of an employee is not hours of would be treated as an hour of work or CRS-24 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate employment unless -- (A) the time spent is employment for purposes of calculating within the days and hours of the regularly compensatory time off. scheduled administrative workweek of the (b) An employee who has any hours treated employee, including regularly scheduled as hours of work or employment for overtime hours; or (B) the travel (i) involves purposes of calculating compensatory time the performance of work while traveling, (ii) would not be entitled to payment for any is incident to travel that involves the such hours that are unused as compensatory performance of work while traveling, (iii) is time. carried out under arduous conditions; or (iv) (c) OPM would prescribe implementing results from an event which could not be regulations not later than 30 days after scheduled or controlled administratively, enactment of the section. including travel by an employee to such an event and the return of the employee from the event to his or her official-duty station. Chapter 57 -- Recruitment, Relocation, and Retention Bonuses Section 5753. Recruitment and relocation Sec. 101, Recruitment, Relocation, and Sec. 101, Recruitment, Relocation, and bonuses. Retention Bonuses Retention Bonuses Sec. 101(a) would amend 5 U.S.C. Sec. 101(a) would amend 5 U.S.C. Chapter 57 by striking sections 5753 and Chapter 57 by inserting after section 5754 5754 and inserting the following. the following. See 5 U.S.C. §5753(a) below. 5 U.S.C. §5753, Recruitment and 5 U.S.C. §5754a, Recruitment and Sec. 5753(e) provides that the President, at relocation bonuses relocation bonuses. (Provisions are the the request of an executive agency head, may Sec. 5753(a)(1) would provide that the same as House version except as noted.) authorize application of the provisions to one section could be applied to (A) General (A) Sec. 5754a(b)(2) Generally, a bonus CRS-25 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate or more categories of employees within the Schedule employees; and (B) employees in could be paid only to a GS employee. agency who would not otherwise be covered. a category approved by OPM at the request (B) Sec. 5754a(h)(1) of an executive agency head. Political appointees are eligible for (a)(2) A bonus could not be paid to an (a)(2) Sec. 5754a(h)(2) recruitment and relocation bonuses. individual who is appointed to or who holds (A) a position to which an individual is appointed by the President, by and with the advice and consent of the Senate; (B) a position in the SES as a noncareer appointee (as such term is defined under 5 U.S.C. §3132(a)); or (C) a position which has been excepted from the competitive service by reason of its confidential, policy- determining, policy-making, or policy- advocating character. Sec. 5753(c)(1) defines "agency" and (a)(3) "employee" would have the same Sec. 5754a(a) "employee" to mean the same as in 5 U.S.C. meaning as in 5 U.S.C. §2105, including §5102. subsection (c) of that section. "Employee" "Employee" means an individual would mean (except as otherwise provided employed in or under an agency. by 5 U.S.C. §2105 or when specifically "Agency" means an executive agency, the modified): an officer and an individual who Library of Congress, the Botanic Garden, the is (1) appointed in the civil service by the Government Printing Office, the Office of the President; Member(s) of Congress, or the Architect of the Capitol, and the government Congress, a member of a uniformed service, CRS-26 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate of the District of Columbia. It does not an individual who is an employee under 5 include a government controlled corporation; U.S.C. §2105, the head of a government the Tennessee Valley Authority; the Central controlled corporation, or an adjutant Intelligence Agency; the National Security general; (2) engaged in the performance of a Agency; the General Accounting Office; the federal function under authority of law or Defense Intelligence Agency; the National an executive act; and (3) subject to the Imagery and Mapping Agency. supervision of an individual named under (1) above while engaged in the performance of the duties of his or her position. Certain individuals employed at the United States Naval Academy also are covered by the term (5 U.S.C. §2105). "Agency" would not be defined. Sec. 5753(a) provides that OPM may Sec. 5753(b) would amend 5 U.S.C. Sec. 5754a(b)(1) OPM could authorize authorize an agency head to pay a bonus to an §5753(a) to provide that OPM could an agency head to pay a bonus to an employee who is newly appointed to a authorize an agency head to pay a bonus to individual appointed or moved to a General Schedule (GS) position, or to an an individual only if (1) the position to position that is likely to be difficult to fill employee under the GS or any other pay which the individual is appointed (as in the absence of such a bonus, if the authority in the executive, legislative, or described in (2)(A) below) or to which he or individual (A)(i) is newly appointed as a judicial branch who must relocate to accept a she moves or must relocate (as described in federal employee; or (ii) is currently a GS position, if OPM determines that the (2)(B) below) is likely to be difficult to fill federal employee and moves to a new agency would be likely, in the absence of the in the absence of such a bonus; and (2) the position in the same geographic area under bonus, to encounter difficulty in filling the individual (A) is newly appointed as a circumstances described in OPM position. federal employee; or (B)(i) is a current regulations; or (B) is a current federal federal employee; and (ii)(I) moves to a employee and must relocate to accept a CRS-27 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate new position in the same geographic area position stationed in a different geographic under circumstances described in OPM area. regulations; or (II) must relocate to accept a position in a different geographic area. Sec. 5753(b)(2) provides that payment of a Sec. 5753(c)(1) would amend 5 U.S.C. Sec. 5754a(c) bonus is contingent upon the employee §5753(b) to provide that payment of a entering into an agreement with the agency to bonus would be contingent upon the complete a period of employment, with the employee entering into a written service required period determined by OPM agreement to complete a period of regulations. If the employee voluntarily fails employment with the agency, not longer to complete the service period or is separated than four years. OPM, by regulation, could from service before completing the period for prescribe a minimum service period. (2)(A) cause on misconduct or delinquency charges, The service agreement would include (i) the (i) the length of the required service period the employee must repay the bonus on a pro commencement and termination dates of the rata basis. required service period (or provisions for the determination thereof); (ii) the amount of the bonus; (iii) the method of payment; and (iv) other terms and conditions under which the bonus is payable, subject to the requirements of this section and OPM regulations. (B) The terms and conditions for paying a bonus, as specified in the service agreement, would include (i) the conditions under which the agreement could be terminated before the agreed-upon CRS-28 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate service period has been completed; and (ii) (3) The agreement would be made the effect of the termination. (C) The effective upon employment with the required service period would commence agency or movement to a new position or upon the commencement of service with the geographic area, as applicable, except that agency or movement to a new geographic a service agreement for a recruitment area, as applicable, unless the service bonus could be made effective at a later agreement provides for a later date under circumstances described in commencement date in circumstances and OPM regulations, such as when there is an to the extent allowable under OPM initial period of formal basic training. regulations, such as when there is an initial period of formal basic training. Sec. 5753(b)(1)(A) provides that the Sec. 5753(d)(1) would amend 5 U.S.C. Sec. 5754a(d)(1) Except as provided in amount of a bonus is determined by OPM §5753(b) to provide that, except as provided (e) below, a bonus would not exceed 25% regulations, but cannot exceed 25% of the in (e) below, a bonus would not exceed of the employee's annual basic pay rate at annual basic pay rate for the position to which 25% of the employee's annual basic pay the beginning of the service period the employee is being appointed or relocated. rate at the beginning of the service period multiplied by the number of years (or multiplied by the number of years fractions thereof) in the service period, not (including a fractional part of a year, as to exceed four years. determined under OPM regulations) in the required service period of the employee involved. (b)(3) provides that a bonus must be paid (d)(2) A bonus could be paid as an initial as a lump sum and is not part of basic pay. lump sum, in installments, as a final lump sum upon completion of the full service CRS-29 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate period required by the agreement, or in a combination of these. (d)(3) A bonus is not part of basic pay. Sec. 5753(b)(1)(B) provides that basic pay does not include locality pay. The current 5 U.S.C. §5753(b)(1)(B) provision would not be provided. Sec. 5753(b)(4) provides that a recruitment (d)(4) Under OPM regulations, a bonus may be paid before a newly hired recruitment bonus could be paid to an employee enters on duty, under OPM eligible individual before he or she enters regulations. on duty. No similar provision Sec. 5753(e) would add new text to Sec. 5754a(e) provide that OPM, subject to regulations it prescribes, could authorize an agency head to waive the 25% limitation based on a critical agency need. Under a waiver, the maximum bonus allowable would (1) be equal to the maximum that would be determined if subsection (d)(1) were applied by substituting 50% for 25%; but (2) in no event exceed 100% of the employee's annual basic pay rate at the beginning of the service period. CRS-30 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate Nothing in this section would be considered No similar provision to permit the waiver of any requirement under (c). No similar provision Sec. 5753(f) would add new text to Sec. 5754a(f) provide that OPM, subject to regulations it prescribes, would require that agencies establish plans for paying recruitment and relocation bonuses before paying such bonuses. Sec. 5753(d) authorizes OPM to prescribe Sec. 5753(g) would provide that OPM Sec. 5754a(g) regulations. could prescribe regulations to administer the section, including those related to repayment of a recruitment or relocation bonus in appropriate circumstances when the agreed-upon service period has not been completed. No similar provision Sec. 101(c), Reports Sec. 5754a(i)(1) OPM would submit an Sec. 101(c)(1), Recruitment and annual report on bonuses paid to the relocation bonuses, (A) OPM would Senate Committee on Governmental submit an annual report for each of the first Affairs and the House Committee on five years on recruitment and relocation Government Reform. (2) Each report bonuses to the Senate Committee on would include the use by each agency of Governmental Affairs and the House recruitment and relocation bonuses, Committee on Government Reform. including, with respect to each agency and CRS-31 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate (B) Each report would include a description each type of bonus, the number and of how the authority to pay recruitment and amount of bonuses by grade (including the relocation bonuses was used by the General Schedule, SES, and Executive respective agencies, including, with respect Schedule positions). to each such agency and each type of bonus (i) the number and dollar amount of bonuses paid (I) to individuals holding positions within each pay grade, pay level, or other pay classification; and (II) if applicable, to individuals who moved between positions that were in different agencies but the same geographic area (including the names of the agencies involved); and (ii) a determination of the extent to which such bonuses furthered the purposes of 5 U.S.C. 5753. No similar provision No similar provision Sec. 5754a(j)(1)(2) An individual could not be paid a recruitment or relocation bonus under the proposed Section 5754a and a recruitment or relocation bonus under 5 U.S.C. §5753. CRS-32 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate Section 5754. Retention allowances. Sec. 101, Recruitment, Relocation, and Sec. 101, Recruitment, Relocation, and Retention Bonuses Retention Bonuses 5 U.S.C. §5754, Retention bonuses 5 U.S.C. §5754b, Retention bonuses Sec. 5754(a)(1) would provide that the Would amend Title 5 to create a new section could be applied to section 5754b to be inserted after proposed new section 5754a. (Provisions are the same as House version except as noted.) Sec. 5754(a) authorizes allowances for GS (A) General Schedule employees; and (B) (A) Sec. 5754b(d) would provide that employees. employees in a category approved by OPM generally, a bonus could be paid only to a Sec. 5754(e): The President may at the request of an executive agency head. GS employee. authorize application of the Section to (B) Sec. 5754b(j)(1) employees otherwise not covered. Political appointees are eligible for (2) A bonus could not be paid to an (2) Sec. 5754b(j)(2) retention allowances. individual who is appointed to or who holds (A) a position to which an individual is appointed by the President, by and with the advice and consent of the Senate; (B) a position in the SES as a noncareer appointee (as such term is defined under 5 U.S.C. §3132(a)); or (C) a position which has been excepted from the competitive service by reason of its confidential, policy- determining, policy-making, or policy- advocating character. CRS-33 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate Sec. 5754(c)(1) defines "agency" and (3) "employee" would have the same Sec. 5754b(a) "employee" to mean the same as in 5 U.S.C. meaning as in 5 U.S.C. §2105, including §5102. (See 5 U.S.C. §5753(c)(1) above.) subsection (c) of that section. (See 5 U.S.C. §5753(a)(3) above.) "Agency" would not be defined. Sec. 5754(a) provides that OPM may Sec. 5754(b) would amend 5 U.S.C. Sec. 5754b(b) authorize an agency head to pay an allowance §5754(a) by renaming the allowances as to a GS employee if (1) the employee's bonuses and providing that OPM could unusually high or unique qualifications or the authorize an agency head to pay a retention agency's special need for the employee's bonus if (1) the employee's unusually high services makes it essential to retain the or unique qualifications or the agency's employee; and (2) the agency determines that special need for the employee's services the employee would be likely to leave in the makes it essential to retain the employee; absence of a retention allowance. and (2) the agency determines that, in the absence of a bonus, the employee would be likely to leave (A) the federal service; or (B) for a different federal government position under conditions described in OPM regulations. No similar provision Sec. 5754(c) would add new text to Sec. 5754b(c) provide that OPM could authorize an agency head to pay retention bonuses to a CRS-34 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate group of employees in one or more categories of positions in one or more geographic areas, subject to subsection (b)(1) above and OPM regulations, if there is a high risk that a significant portion of employees in the group would be likely to leave in the absence of bonuses. No similar provision Sec. 5754(d) would add new text to Sec. 5754b(e) provide that (1) payment of a retention bonus would be contingent upon the employee entering into a written service agreement to complete a period of employment with the agency. (2)(A)The service agreement would include (i) the length of the required service period; (ii) the amount of the bonus; (iii) the method of payment; and (iv) other terms and conditions under which the bonus is payable, subject to the requirements of this section and OPM regulations. (B) The terms and conditions for paying a bonus, as specified in the service agreement, would include (i) the conditions under which the agreement could be terminated before the agreed-upon service period has been CRS-35 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate completed; and (ii) the effect of the termination. (3)(A) Notwithstanding (1), a written service agreement would not be required if the retention bonus is paid in biweekly installments with the payment set at the full bonus percentage rate established for the employee with no portion of the bonus deferred. (B) In this case, if the agency makes a determination to terminate the payments, the agency would provide written notice to the employee of that determination. Except as provided in OPM regulations, the employee would continue to be paid the retention bonus through the end of the pay period in which the notice is provided. (4) A retention bonus could not be based on any period of service which is the basis for a recruitment or relocation bonus. Sec. 5754(b)(1) limits a retention Sec. 5754(e)(1) would provide that, Sec. 5754b(f) allowance to 25% of basic pay (excluding except as provided in (f) below, a retention locality pay). bonus would be stated as a percentage of the employee's basic pay for the service period associated with the bonus, and could not exceed (A) 25% of the employee's basic CRS-36 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate pay if paid to the employee individually or (B) 10% of the employee's basic pay if paid to the employee as part of a group. (2)(A) A bonus could be paid in installments after completion of specified periods of service or in a single lump sum at the end of the full period of service required by the agreement. (B) An installment payment would be derived by multiplying the amount of basic pay earned in the installment period by a percentage not to exceed the bonus percentage rate established for the employee. (C) If the installment payment percentage established for the employee is less than the bonus percentage rate established for the employee, the accrued but unpaid portion of the bonus is payable as part of the final installment payment to the employee after completion of the full service period under the terms of the service agreement. (D) The bonus percentage rate (D) No similar provision established for an employee would mean the bonus percentage rate established in accordance with (e)(1) or (f) below, as the case may be. CRS-37 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate Sec. 5754(b)(2) provides that a retention (3) A retention bonus would not be part allowance is not part of basic pay and its of basic pay. Would delete current law reduction or elimination is not appealable. provision on lack of appeal. Sec. 5754(b)(3) provides that a retention allowance is paid at the same time and in the same manner as basic pay. No similar provision Sec. 101(a)(1) would add new text at 5 Sec. 5754b(g) U.S.C. §5754(f) to provide that OPM, upon request of an agency head, could waive the 25% or 10% limitations and permit the agency head to pay bonuses of up to 50% of basic pay, based on a critical agency need, to otherwise eligible employees or categories of employees. No similar provision Sec. 101(a)(1) would add new text at 5 Sec. 5754b(h) U.S.C. §5754(g) to provide that OPM, subject to regulations it prescribes, would require that agencies establish a plan for paying retention bonuses before paying such bonuses. CRS-38 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate Sec. 5754(d) authorizes OPM to prescribe Sec. 101(a)(1) would place text at 5 Sec. 5754b(i) regulations. U.S.C. §5754(h) to provide that OPM could prescribe regulations to administer the section. No similar provision Sec. 101(a)(3), Sense of Congress, No similar provision would provide that it is the sense of Congress that the OPM Director (A) should, each time a bonus is paid to recruit or relocate a federal employee from one government agency to another within the same geographic area or to retain a federal employee who might otherwise leave one government agency for another within the same geographic area, be notified of that payment within 60 days after the date on which the bonus is paid; and (B) should monitor the payment of such bonuses (in the circumstances described in paragraph (A)) to ensure that they are an effective use of the federal government's funds and have not adversely affected the ability of those government agencies that lost employees to other government agencies (in such circumstances) to carry out their mission. CRS-39 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate No similar provision Sec. 101(c), Reports Sec. 5754b(k)(1) OPM would submit an Sec. 101(c)(2), Retention bonuses, (A) annual report on bonuses paid to the OPM would submit an annual report for Senate Committee on Governmental each of the first five years on retention Affairs and the House Committee on bonuses to the Senate Committee on Government Reform. (2) Each report Governmental Affairs and the House would include the use by each agency of Committee on Government Reform. (B) retention bonuses, including, with respect Each report would include a description of to each agency, the number and amount of how the authority to pay retention bonuses bonuses by grade (including the General was used by the respective agencies, Schedule, SES, and Executive Schedule including, with respect to each such agency positions). (i) the number and dollar amount of bonuses paid (I) to individuals holding positions within each pay grade, pay level, or other pay classification; and (II) if applicable, to prevent individuals from moving between positions that were in different agencies but the same geographic area (including the names of the agencies involved); and (ii) a determination of the extent to which such bonuses furthered the purposes of 5 U.S.C. 5754. CRS-40 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate No similar provision No similar provision Sec. 5754b(l) An employee could not be paid a retention bonus under the proposed Section 5754b and a retention allowance under 5 U.S.C. §5754. No similar provision Sec. 101(d)(1), Effective date, would Sec. 101(b), Effective date and provide that, except as stated immediately application, would provide that the below, Section 101 would take effect on the proposed Section 101 would be effective first day of the first applicable pay period on the first day of the first applicable pay beginning on or after the 180th day after the period beginning on or after 180 days after act's enactment. the act's enactment. No similar provision Sec. 101(d)(2), Application to No similar provision agreements, would provide that a recruitment or relocation bonus service agreement that was authorized under 5 U.S.C. §5753 before the effective date stated immediately above, would continue, until its expiration, to be subject to 5 U.S.C. §5753 as in effect on the day before such effective date. No similar provision Sec. 101(d)(3), Application to No similar provision allowances, would provide that payment of a retention allowance that was authorized under 5 U.S.C. §5754 before the effective date stated above, would continue to be CRS-41 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate subject to 5 U.S.C. §5754 as in effect on the day before such effective date, until the retention allowance is reauthorized or terminated (but no longer than one year after such effective date). Chapter 63 -- Leave Section 6303. Annual leave; accrual. Sec. 202, Annual Leave Enhancements Sec. 202, Annual Leave Enhancements No similar provision Sec. 202(a), Creditability of prior Sec. 202(a), Accrual of leave for nongovernmental service for purposes of newly hired federal employees with determining rate of leave accrual, would qualified experience, would amend 5 amend 5 U.S.C. §6303 by (1) adding a new U.S.C. §6303 by (1) adding a new paragraph (e) to provide that (1) Not later paragraph (e)(1) to provide that "period of than 180 days after this subsection's qualified non-federal career experience" enactment, OPM would prescribe would mean any equal period of service regulations under which, for purposes of performed by an individual that, (A) determining years of service under except for this subsection, would not subsection (a), credit would, in the case of a otherwise be service performed by an newly appointed employee, be given for employee for purposes of annual leave any prior service of such employee that accrual; and (B) was performed in a would not otherwise be creditable for such position (i) the duties of which were purposes if (A) such service (i) was directly related to the duties of the position performed in a position the duties of which in an agency that the individual holds and directly relate to the duties of the position to (ii) which meets such other conditions as which such employee is so appointed; and OPM would prescribe by regulation. CRS-42 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate (ii) meets such other requirements as OPM (e)(2) For purpose of annual leave accrual, may prescribe; and (B) in the judgment of an agency head could deem a period of the head of the appointing agency, the qualified non-federal career experience application of this subsection is necessary performed by an individual to be a period in order to achieve an important agency of service performed as an employee. mission or performance goal. (2) Service described in (1) above, (A) (2) This section would take effect 120 days would be creditable, for the purposes after the act's enactment and would apply described in (1), as of the effective date of only to an individual hired on or after the the employee's appointment; and (B) would effective date. not thereafter cease to be so creditable unless the employee fails to complete a full year of continuous service with the agency. (3) An employee would not be eligible for the application of paragraph (1) on the basis of any appointment if, within 90 days before the effective date of the appointment, he or she has held any position in the civil service. Section 6303. Annual leave; accrual. Sec. 202(a)(2) would amend the second No similar provision provides for calculation of annual leave sentence of 5 U.S.C. §6303(a) by striking accrued the period and inserting ",and for all service which is creditable by virtue of subsection (e)." CRS-43 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate Section 6303. Annual leave; accrual. Sec. 202(b), Other annual leave Sec. 202(b), Senior Executive Service Only employees who have at least 15 enhancements, would amend 5 U.S.C. annual leave enhancements, would years of service accrue one day of annual §6303 by adding after (e) (as added by Sec. amend 5 U.S.C. §6303(a) by (1) adding a leave for each full biweekly pay period. 202(a)(1)) a new paragraph (f) which would paragraph (4) to provide the following. provide that notwithstanding any other Employees in positions classified above provision of this section, the rate of accrual GS-15 or in scientific or professional of annual leave under subsection (a) would positions established under 5 U.S.C. be 1 day for each full biweekly pay period §3104, members of the Senior Executive in the case of any employee who holds Service, and employees in an equivalent positions classified above GS-15 or in category for which the minimum rate of scientific or professional positions basic pay is greater than GS-15, step 10, established under 5 U.S.C. §3104, members could accrue one day of annual leave for of the Senior Executive Service, and each full biweekly pay period. (2) OPM employees in an equivalent category, as would prescribe implementing regulations determined by OPM. not later than 120 days after the act's enactment. (3) The provision in paragraph 1 would take effect 120 days after the act's enactment. Sec. 202(c), Applicability, would No similar provision provide that none of the amendments made by Sec. 202(a) would apply in the case of any employee holding a position pursuant to an appointment made before the effective date of the regulations implementing such amendments. CRS-44 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate Chapter 83 -- Civil Service Retirement System; and Chapter 84 -- Federal Employees' Retirement System Employees covered by CSRS who work Section 211, Civil Service Retirement Same provision at Sec. 103. part-time can experience disproportionately System Computation for Part-Time large cuts in their retirement annuities as the Service result of a regulation adopted by OPM in Sec. 211 would amend 5 U.S.C. §8339 response to the Comprehensive Omnibus to clarify that CSRS retirement annuities Budget Reconciliation Act of 1986 (P.L. based in whole or in part on part-time 99-272). This law requires retirement service are to be prorated only for the annuities for a federal worker whose career period of service that was performed on a includes part-time employment to be based on part-time basis. the rate of pay that would be paid for full-time service, with the employee's service time prorated for the actual number of hours worked. In its regulation, however, OPM adopted an interpretation of this statute that also applies a lower rate of pay than would be applied if these individuals had worked full- time for their entire careers. Prior military service of a civilian federal Section 212, Retirement Service Credit Same provision at Sec. 104. employee is creditable under CSRS or FERS for Cadet or Midshipman Service provided that a required deposit is made to Sec. 212 of the bill would amend 5 the Civil Service Retirement and Disability U.S.C. §8331(13) and 5 U.S.C. §8401(31) Fund. (5 U.S.C. §8331(13) and 5 U.S.C. to include service as a cadet at the U.S. §8401(31)). Military Academy, the U.S. Air Force Academy, or the U.S. Coast Guard Academy, or as a midshipman at the U.S. CRS-45 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate Naval Academy in the definition of military service that can be creditable under CSRS or FERS. Title 3 -- The President Chapter 2 -- Office and Compensation of President Section 107. Domestic Policy Staff and No similar provision Sec. 105, Senior Executive Service Office of Administration; personnel. Authority for White House Office of Subsection (b)(2) authorizes the President, Administration or his designee, to employ individuals in the Subsection (1) would amend 3 U.S.C. Office of Administration in accordance with §107(b) by extending the President's the general authority to employ (5 U.S.C. authority to include the employment of §3101) and related provisions. Any senior executives. Employment of senior individual so employed is subject to the executives would be carried out in limitation specified in 3 U.S.C. §114. accordance with 5 U.S.C. §3132 and related provisions. Any permanent Senior Executive Service (SES) positions established under this provision would be career reserved positions. Section 114. General pay limitation. No similar provision Sec. 105, Senior Executive Service Notwithstanding any provision of law, Authority for White House Office of other than the provisions of this chapter, no Administration employee of the Vice President appointed Subsection (2) would amend 3 U.S.C. under 3 U.S.C. §106, the White House Office, §114, changing the limitation on basic pay the Executive Residence at the White House, to the maximum rate of basic pay currently the Domestic Policy Staff, or the Office of paid for GS-15 of the General Schedule CRS-46 Current Law 108th Congress Proposals U.S. Code Federal Workforce Flexibility Act of 2004: (Title 5, unless otherwise noted) S. 129, as ordered to be reported to the Federal Workforce Flexibility Act of 2003: House of Representatives S. 129, as passed by the Senate Administration may be paid a rate of basic and stating that this limitation would not pay that exceeds the minimum rate of basic apply to any senior executives appointed pay for GS-16 of the General Schedule. by the President under the authority in 3 Under 5 U.S.C. §5376, a GS-16 is a senior- U.S.C. §107(b)(2). level position for which basic pay may be set at a rate no less than 120% of GS-15, step 1, and not greater than level IV of the Executive Schedule. ------------------------------------------------------------------------------ For other versions of this document, see http://wikileaks.org/wiki/CRS-RL31516