\ dhsfr \ DEPARTMENT OF HOMELAND SECURITY - FEDERAL REGISTER PUBLICATIONS \ DHS Federal Register Publications 2005 \ FEDERAL REGISTER FINAL REGULATIONS - 2005 \ Department of Homeland Security Human Resources Management System [70 FR 5272] [DHS 5-05] \ Subpart F--Adverse Actions
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Subpart F--Adverse Actions
This subpart contains regulations prescribing the requirements when employees are furloughed for 30 days or less, suspended, demoted, reduced in pay, or removed. DHS may issue implementing directives to carry out the provisions of this subpart.
When a specified category of employees is covered by the adverse action provisions established under this subpart, 5 U.S.C. 7501 through 7514 and 7531 through 7533 are waived with respect to that category of employees. The provisions in 5 U.S.C. 7521 and 7541 through 7543 are not waived.
In this subpart:
means a furlough for 30 days or less, a suspension, a demotion, a reduction in pay, or a removal.
means a work level or pay range within an occupational cluster.
means the measurable or observable knowledge, skills, abilities, behaviors, and other characteristics required by a position.
Current continuous service
means a period of service immediately preceding an adverse action in the same or similar positions without any break in Federal civilian employment.
means a calendar day.
means a reduction in grade, a reduction to a lower band within the same occupational cluster, or a reduction to a lower band in a different occupational cluster under rules prescribed by DHS pursuant to § 9701.355.
means the placement of an employee in a temporary status without duties and pay because of lack of work or funds or other non-disciplinary reasons.
means a level of work under a position classification or job grading system.
means the placement of an employee in a temporary status without duties and pay pending investigation, inquiry, or further Department action. An indefinite suspension continues for an indeterminate period of time and usually ends with either the employee returning to duty or the completion of any subsequent administrative action.
Initial service period (ISP)
means the 1 to 2 years employees must serve after selection (on or after the date this subpart becomes applicable, as determined under § 9701.102(b)) for a designated DHS position in the competitive service for the purpose of providing an employee the opportunity to demonstrate competencies in a specific occupation.
Mandatory removal offense (MRO)
means an offense that the Secretary determines, in his or her sole, exclusive, and unreviewable discretion, has a direct and substantial adverse impact on the Department's homeland security mission.
Mandatory Removal Panel (MRP)
means the three-person panel composed of officials appointed by the Secretary for fixed terms to decide appeals of removals based on a mandatory removal offense.
means the rate of basic pay fixed by law or administrative action for the position held by an employee before any deductions and exclusive of additional pay of any kind. For the purpose of this subpart, pay does not include locality-based comparability payments under 5 U.S.C. 5304, locality or special rate supplements under subpart C of this part, or other similar payments.
has the meaning given that term in 5 CFR 315.801.
means the involuntary separation of an employee from the Department.
means positions in which the duties performed are similar in nature and character and require substantially the same or similar qualifications, so that the incumbent could be moved from one position to another without significant training or undue interruption to the work.
means the temporary placement of an employee, for disciplinary reasons, in a nonduty/nonpay status.
has the meaning given that term in 5 CFR 316.304.
(a) Actions covered. This subpart covers furloughs of 30 days or less, suspensions, demotions, reductions in pay (including reductions in pay within a band), and removals.
(b) Actions excluded. This subpart does not cover--
(1) Any adverse action taken against an employee during a probationary, trial, or initial service period, except for an adverse action taken against a preference eligible employee in the competitive service who has completed the first year of an initial service period;
(2) The demotion of a supervisor or manager under 5 U.S.C. 3321;
(3) An action that terminates a temporary or term promotion and returns the employee to the position from which temporarily promoted, or to a different position of equivalent band and pay, if the employee was informed that the promotion was to be of limited duration;
(4) A reduction-in-force action under 5 U.S.C. 3502;
(5) An action under 5 U.S.C. 1215;
(6) An action against an administrative law judge under 5 U.S.C. 7521;
(7) A voluntary action by an employee;
(8) An action taken or directed by OPM based on suitability under 5 CFR part 731;
(9) Termination of appointment on the expiration date specified as a basic condition of employment at the time the appointment was made;
(10) Cancellation of a promotion to a position not classified prior to the promotion;
(11) Placement of an employee serving on an intermittent or seasonal basis in a temporary non-duty, non-pay status in accordance with conditions established at the time of appointment;
(12) Reduction of an employee's rate of basic pay from a rate that is contrary to law or regulation;
(13) An action taken under a provision of statute, other than one codified in title 5, U.S. Code, which excludes the action from 5 U.S.C. chapter 75 or this subpart;
(14) A classification determination, including a classification determination under subpart B of this part; and
(15) An action that entitles an employee to grade retention under 5 CFR part 536 and an action to terminate this entitlement.
(c) Employees covered. Subject to a determination by the Secretary or designee under § 9701.102(b), this subpart applies to DHS employees, except as excluded by paragraph (d) of this section.
(d) Employees excluded. This subpart does not apply to--
(1) An employee in the competitive service who is serving a probationary, trial, or initial service period, except for a preference eligible employee in the competitive service who has completed the first year of an initial service period;
(2) A preference eligible employee in the excepted service who has not completed 1 year of current continuous service in the same or similar positions in an Executive agency or in the United States Postal Service or Postal Rate Commission;
(3) An employee in the excepted service (other than a preference eligible) who has not completed 2 years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment of 2 years or less;
(4) A non-preference eligible employee who is serving a time-limited appointment (including a term appointment) of 2 years or less;
(5) Members of the Senior Executive Service;
(6) Administrative law judges;
(7) Employees who are terminated in accordance with terms specified as conditions of employment at the time the appointment was made;
(8) Employees whose appointments are made by and with the advice and consent of the Senate;
(9) Employees whose positions have been determined to be of a confidential, policy-determining, policy-making, or policy-advocating character by--
(i) The President, for a position that the President has excepted from the competitive service;
(ii) OPM, for a position that OPM has excepted from the competitive service; or
(iii) The President or the Secretary for a position excepted from the competitive service by statute;
(10) An employee whose appointment is made by the President;
(11) An employee who is receiving an annuity from the Civil Service Retirement and Disability Fund or the Foreign Service Retirement and Disability Fund based on the service of such employee;
(12) An employee who is an alien or non-citizen occupying a position outside the United States, as described in 5 U.S.C. 5102(c)(11);
(13) Members of the Homeland Security Labor Relations Board or the Mandatory Removal Panel;
(14) Employees against whom an adverse personnel action is taken or imposed under any statute or regulation other than this subpart (e.g., Transportation Security Administration employees); and
(15) Employees appointed and serving under a Schedule B excepted service appointment subject to conversion to career status pursuant to Executive Order 11203.
§ 9701.605 Initial service period.
(a) DHS may establish an initial service period of 1 to 2 years for certain designated occupations in order for employees in such occupations to demonstrate appropriate competencies. DHS will establish standard policies for determining the applicability and the length of the ISP for specific occupations.
(b) Employees must complete an ISP after selection for a designated DHS position in the competitive service before obtaining coverage under this subpart. All relevant prior Federal civilian service (including non-appropriated fund service), as determined by appropriate standards established by DHS, counts toward completion of this requirement.
(c) An employee who is removed during a probationary, trial, or initial service period must be removed in accordance with 5 CFR 315.804 or 315.805, except for a preference eligible employee in the competitive service who has completed the first year of an ISP.
Requirements for Furlough of 30 Days or Less, Suspension, Demotion, Reduction in Pay, or Removal
§ 9701.606 Standard for action.
The Department may take an adverse action under this subpart only for such cause as will promote the efficiency of the service. The standards for mandatory removal offenses and actions taken under the national security provisions are set forth in § § 9701.607 and 9701.613, respectively.
§ 9701.607 Mandatory removal offenses.
(a) The Secretary has the sole, exclusive, and unreviewable discretion to identify offenses that have a direct and substantial adverse impact on the Department's homeland security mission. Such offenses will be identified in advance as part of the Department's implementing directives, publicized via notice in the Federal Register, and made known to all employees on an annual basis.
(b) When a mandatory removal action is proposed under this section, employees will have the right to advance notice, an opportunity to respond, a written decision, and a review by the Mandatory Removal Panel as set forth in subpart G of this part.
(c) Prior to the issuance of a notice to the employee in question, the Secretary or designee will review and approve a proposed notice of removal on the grounds that the employee has committed a mandatory removal offense.
(d) The Secretary has the sole, exclusive, and unreviewable discretion to mitigate the removal penalty.
(e) Nothing in this section limits the discretion of the Department or any component thereof to remove employees for offenses other than those identified by the Secretary as mandatory removal offenses.
(f) Nothing in this subpart limits the discretion of the Department or any component thereof to remove an employee based on the revocation of that employee's security clearance.
An employee against whom an adverse action is proposed is entitled to the following:
(a) A proposal notice under § 9701.609;
(b) An opportunity to reply under § 9701.610; and
(c) A decision notice under § 9701.611.
§ 9701.609 Proposal notice.
(a) Notice period. The Department must provide at least 15 days advance written notice of a proposed adverse action. However, if there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, the Department must provide at least 5 days advance written notice.
(b) Contents of notice. (1) The proposal notice must inform the employee of the factual basis for the proposed action in sufficient detail to permit the employee to reply to the notice, and inform the employee of his or her right to review the Department's evidence supporting the proposed action. The Department may not use evidence that cannot be disclosed to the employee, his or her representative, or designated physician pursuant to 5 CFR 297.204.
(2) When some but not all employees in a given competitive level are being furloughed, the proposal notice must state the basis for selecting a particular employee for furlough, as well as the reasons for the furlough. The notice is not necessary for furlough without pay due to unforeseeable circumstances, such as sudden breakdowns in equipment, acts of God, or sudden emergencies requiring immediate curtailment of activities.
(c) Duty status during notice period. An employee will remain in a duty status in his or her regular position during the notice period. However, when the Department determines that the employee's continued presence in the workplace during the notice period may pose a threat to the employee or others, result in loss of or damage to Government property, or otherwise jeopardize legitimate Government interests, the Department may elect one or a combination of the following alternatives:
(1) Assign the employee to duties where the Department determines the employee is no longer a threat to safety, the Department's mission, or Government property;
(2) Allow the employee to take leave, or place him or her in an appropriate leave status (annual leave, sick leave, or leave without pay) or absence without leave if the employee has absented himself or herself from the worksite without approved leave; or
(3) Place the employee in a paid, non-duty status for such time as is necessary to effect the action.
§ 9701.610 Opportunity to reply.
(a) The Department must give employees at least 10 days, which must run concurrently with the notice period, to reply orally and/or in writing to a notice of proposed adverse action. However, if there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, the Department must give the employee at least 5 days, which must run concurrently with the notice period, to reply orally and/or in writing.
(b) The opportunity to reply orally does not include the right to a formal hearing with examination of witnesses.
(c) During the opportunity to reply, the Department must give the employee a reasonable amount of official time to review the Department's supporting evidence, and to furnish affidavits and other documentary evidence, if the employee is otherwise in an active duty status.
(d) The Department must designate an official to receive the employee's written and/or oral response. The official must have authority to make or recommend a final decision on the proposed adverse action.
(e) The employee may be represented by an attorney or other representative of the employee's choice and at the employee's expense, subject to paragraph (f) of this section. The employee must provide the Department with a written designation of his or her representative.
(f) The Department may disallow as an employee's representative--
(1) An individual whose activities as representative would cause a conflict between the interest or position of the representative and that of the Department,
(2) An employee of the Department whose release from his or her official position would give rise to unreasonable costs or whose work assignments preclude his or her release; or
(3) An individual whose activities as representative could compromise security.
(g)(1) An employee who wishes the Department to consider any medical condition that may be relevant to the proposed adverse action must provide medical documentation, as that term is defined at 5 CFR 339.104, during the opportunity to reply, whenever possible.
(2) When considering an employee's medical documentation, the Department may require or offer a medical examination pursuant to 5 CFR part 339, subpart C.
(3) When considering an employee's medical condition, the Department is not required to withdraw or delay a proposed adverse action. However, the Department must--
(i) Allow the employee to provide medical documentation during the opportunity to reply;
(ii) Comply with 29 CFR 1614.203 and relevant Equal Employment Opportunity Commission rules; and
(iii) Comply with 5 CFR 831.1205 when issuing a decision to remove.
§ 9701.611 Decision notice.
(a) In arriving at its decision on a proposed adverse action, the Department may not consider any reasons for the action other than those specified in the proposal notice.
(b) The Department must consider any response from the employee and the employee's representative, if the response is provided to the official designated under § 9701.610(d) during the opportunity to reply, and any medical documentation furnished under § 9701.610(g).
(c) The decision notice must specify in writing the reasons for the decision and advise the employee of any appeal or grievance rights under subparts E or G of this part.
(d) The Department must deliver the notice to the employee on or before the effective date of the action.
§ 9701.612 Departmental record.
(a) Document retention. The Department must keep a record of all relevant documentation concerning the action for a period of time pursuant to the General Records Schedule and the Guide to Personnel Recordkeeping. The record must include the following:
(1) A copy of the proposal notice;
(2) The employee's written response, if any, to the proposal;
(3) A summary of the employee's oral response, if any;
(4) A copy of the decision notice; and
(5) Any supporting material that is directly relevant and on which the action was substantially based.
(b) Access to the record. The Department must make the record available for review by the employee and furnish a copy of the record upon the employee's request or the request of the Merit Systems Protection Board or the MRP.
§ 9701.613 Suspension and removal.
(a) Notwithstanding other provisions of law or regulation, the Secretary may suspend an employee without pay when she or he considers suspension in the interests of national security. To the extent that the Secretary determines that the interests of national security permit, the suspended employee must be notified of the reasons for the suspension. Within 30 days after the notification, the suspended employee is entitled to submit to the official designated by the Secretary statements or affidavits to show
why he or she should be restored to duty.
(b) Subject to paragraph (c) of this section, the Secretary may remove an employee suspended under this section when, after investigation and review as the Secretary considers necessary, the Secretary determines that removal is necessary or advisable in the interests of national security. The determination of the Secretary is final.
(c) An employee suspended under this section who has a permanent or indefinite appointment, has completed his or her initial service period, probationary period, or trial period, and is a citizen of the United States is entitled, after suspension and before removal, to--
(1) A written statement of the charges against the employee within 30 days after suspension, which may be amended within 30 days thereafter, and which must be stated as specifically as security considerations permit;
(2) An opportunity within 30 days thereafter, plus an additional 30 days if the charges are amended, to answer the charges and submit affidavits;
(3) A hearing, at the request of the employee, by a Department authority duly constituted for this purpose;
(4) A review of his or her case by the Secretary or designee, before a decision adverse to the employee is made final; and
(5) A written decision from the Secretary.
§ 9701.614 Savings provision.
This subpart does not apply to adverse actions proposed prior to the date of an affected employee's coverage under this subpart.