(a) This section shall apply to-
(1) an Executive agency; and
(2) the Government Publishing Office.
(b) Federal personnel management should be implemented consistent with the following merit system principles:
(1) Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity.
(2) All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights.
(3) Equal pay should be provided for work of equal value, with appropriate consideration of both national and local rates paid by employers in the private sector, and appropriate incentives and recognition should be provided for excellence in performance.
(4) All employees should maintain high standards of integrity, conduct, and concern for the public interest.
(5) The Federal work force should be used efficiently and effectively.
(6) Employees should be retained on the basis of the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards.
(7) Employees should be provided effective education and training in cases in which such education and training would result in better organizational and individual performance.
(8) Employees should be-
(A) protected against arbitrary action, personal favoritism, or coercion for partisan political purposes, and
(B) prohibited from using their official authority or influence for the purpose of interfering with or affecting the result of an election or a nomination for election.
(9) Employees should be protected against reprisal for the lawful disclosure of information which the employees reasonably believe evidences-
(A) a violation of any law, rule, or regulation, or
(B) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
(c) In administering the provisions of this chapter-
(1) with respect to any agency (as defined in section 2302(a)(2)(C) of this title), the President shall, pursuant to the authority otherwise available under this title, take any action, including the issuance of rules, regulations, or directives; and
(2) with respect to any entity in the executive branch which is not such an agency or part of such an agency, the head of such entity shall, pursuant to authority otherwise available, take any action, including the issuance of rules, regulations, or directives;
which is consistent with the provisions of this title and which the President or the head, as the case may be, determines is necessary to ensure that personnel management is based on and embodies the merit system principles.
(Added
1990-Subsec. (a).
"Government Publishing Office" substituted for "Government Printing Office" in subsec. (a)(2) on authority of section 1301(b) of
Chapter effective 90 days after Oct. 13, 1978, see section 907 of
"(1) to employees appointed to supervisory positions in the agency who have not previously served as a supervisor; and
"(2) on an annual basis, to all employees of the agency serving in a supervisory position."
[For definitions of "agency" and "employee" as used in section 106 of
"(a)
"(b)
"Congress finds that-
"(1) Federal agencies cannot be run effectively if those agencies practice or tolerate discrimination;
"(2) Congress has heard testimony from individuals, including representatives of the National Association for the Advancement of Colored People and the American Federation of Government Employees, that point to chronic problems of discrimination and retaliation against Federal employees;
"(3) in August 2000, a jury found that the Environmental Protection Agency had discriminated against a senior social scientist, and awarded that scientist $600,000;
"(4) in October 2000, an Occupational Safety and Health Administration investigation found that the Environmental Protection Agency had retaliated against a senior scientist for disagreeing with that agency on a matter of science and for helping Congress to carry out its oversight responsibilities;
"(5) there have been several recent class action suits based on discrimination brought against Federal agencies, including the Federal Bureau of Investigation, the Bureau of Alcohol, Tobacco, and Firearms, the Drug Enforcement Administration, the Immigration and Naturalization Service, the United States Marshals Service, the Department of Agriculture, the United States Information Agency, and the Social Security Administration;
"(6) notifying Federal employees of their rights under discrimination and whistleblower laws should increase Federal agency compliance with the law;
"(7) requiring annual reports to Congress on the number and severity of discrimination and whistleblower cases brought against each Federal agency should enable Congress to improve its oversight over compliance by agencies with the law; and
"(8) requiring Federal agencies to pay for any discrimination or whistleblower judgment, award, or settlement should improve agency accountability with respect to discrimination and whistleblower laws.
"It is the sense of Congress that-
"(1) Federal agencies should not retaliate for court judgments or settlements relating to discrimination and whistleblower laws by targeting the claimant or other employees with reductions in compensation, benefits, or workforce to pay for such judgments or settlements;
"(2) the mission of the Federal agency and the employment security of employees who are blameless in a whistleblower incident should not be compromised;
"(3) Federal agencies should not use a reduction in force or furloughs as means of funding a reimbursement under this Act;
"(4)(A) accountability in the enforcement of employee rights is not furthered by terminating-
"(i) the employment of other employees; or
"(ii) the benefits to which those employees are entitled through statute or contract; and
"(B) this Act is not intended to authorize those actions;
"(5)(A) nor is accountability furthered if Federal agencies react to the increased accountability under this Act by taking unfounded disciplinary actions against managers or by violating the procedural rights of managers who have been accused of discrimination; and
"(B) Federal agencies should ensure that managers have adequate training in the management of a diverse workforce and in dispute resolution and other essential communication skills; and
"(6)(A) Federal agencies are expected to reimburse the General Fund of the Treasury within a reasonable time under this Act; and
"(B) a Federal agency, particularly if the amount of reimbursement under this Act is large relative to annual appropriations for that agency, may need to extend reimbursement over several years in order to avoid-
"(i) reductions in force;
"(ii) furloughs;
"(iii) other reductions in compensation or benefits for the workforce of the agency; or
"(iv) an adverse effect on the mission of the agency.
"For purposes of this Act-
"(1) the term 'applicant for Federal employment' means an individual applying for employment in or under a Federal agency;
"(2) the term 'basis of alleged discrimination' shall have the meaning given such term under section 303;
"(3) the term 'Federal agency' means an Executive agency (as defined in section 105 of title 5, United States Code), the United States Postal Service, or the Postal Regulatory Commission;
"(4) the term 'Federal employee' means an individual employed in or under a Federal agency;
"(5) the term 'former Federal employee' means an individual formerly employed in or under a Federal agency; and
"(6) the term 'issue of alleged discrimination' shall have the meaning given such term under section 303.
"This Act and the amendments made by this Act shall take effect on the 1st day of the 1st fiscal year beginning more than 180 days after the date of the enactment of this Act [May 15, 2002].
"(a)
"(1) any provision of law cited in subsection (c); or
"(2) any other provision of law which prohibits any form of discrimination, as identified under rules issued under section 204.
"(b)
"(c)
"(1) Section 2302(b) of title 5, United States Code, as applied to discriminatory conduct described in paragraphs (1) and (8), or described in paragraph (9) of such section as applied to discriminatory conduct described in paragraphs (1) and (8), of such section.
"(2) The provisions of law specified in section 2302(d) of title 5, United States Code.
"(a)
"(1) in accordance with otherwise applicable provisions of law; or
"(2) if, or to the extent that, no such notification would otherwise be required, in such time, form, and manner as shall under section 204 be required in order to carry out the requirements of this section.
"(b)
"(c)
"(a)
"(1) the number of cases arising under each of the respective provisions of law covered by paragraphs (1) and (2) of section 201(a) in which discrimination on the part of such agency was alleged;
"(2) the status or disposition of cases described in paragraph (1);
"(3) the amount of money required to be reimbursed by such agency under section 201 in connection with each of such cases, separately identifying the aggregate amount of such reimbursements attributable to the payment of attorneys' fees, if any;
"(4) the number of employees disciplined for discrimination, retaliation, harassment, or any other infraction of any provision of law referred to in paragraph (1);
"(5) the final year-end data posted under section 301(c)(1)(B) for such fiscal year (without regard to section 301(c)(2));
"(6) a detailed description of-
"(A) the policy implemented by that agency relating to appropriate disciplinary actions against a Federal employee who-
"(i) discriminated against any individual in violation of any of the laws cited under section 201(a)(1) or (2); or
"(ii) committed another prohibited personnel practice that was revealed in the investigation of a complaint alleging a violation of any of the laws cited under section 201(a)(1) or (2); and
"(B) with respect to each of such laws, the number of employees who are disciplined in accordance with such policy and the specific nature of the disciplinary action taken;
"(7) an analysis of the information described under paragraphs (1) through (6) (in conjunction with data provided to the Equal Employment Opportunity Commission in compliance with part 1614 of title 29 of the Code of Federal Regulations) including-
"(A) an examination of trends;
"(B) causal analysis;
"(C) practical knowledge gained through experience; and
"(D) any actions planned or taken to improve complaint or civil rights programs of the agency; and
"(8) any adjustment (to the extent the adjustment can be ascertained in the budget of the agency) to comply with the requirements under section 201.
"(b)
"(a)
"(1) rules to carry out this title;
"(2) rules to require that a comprehensive study be conducted in the executive branch to determine the best practices relating to the appropriate disciplinary actions against Federal employees who commit the actions described under clauses (i) and (ii) of section 203(a)(6)(A); and
"(3) based on the results of such study, advisory guidelines incorporating best practices that Federal agencies may follow to take such actions against such employees.
"(b)
"(1) whether such agency has adopted and will fully follow such guidelines;
"(2) if such agency has not adopted such guidelines; the reasons for the failure to adopt such guidelines; and
"(3) if such agency will not fully follow such guidelines, the reasons for the decision not to fully follow such guidelines and an explanation of the extent to which such agency will not follow such guidelines.
"Consistent with Federal law, nothing in this title shall prevent any Federal employee, former Federal employee, or applicant for Federal employment from exercising any right otherwise available under the laws of the United States.
"(a)
"(1)
"(A)
"(B)
"(i) expedite handling of allegations of such violations within Federal agencies and will streamline the complaint-filing process;
"(ii) affect the workload of the Commission;
"(iii) affect established alternative dispute resolution procedures in such agencies; and
"(iv) affect any other matters determined by the General Accounting Office [now Government Accountability Office] to be appropriate for consideration.
"(2)
"(b)
"(1)
"(2)
"(c)
"(1)
"(A) a study on the effects of section 201 on the operations of Federal agencies; and
"(B) a study on the effects of section 13 of the Contract Disputes Act of 1978 (41 U.S.C. 612) [now 41 U.S.C. 7108] on the operations of Federal agencies.
"(2)
"(A) a summary of the number of cases in which a payment was made in accordance with section 2414, 2517, 2672, or 2677 of title 28, United States Code, and under section 1304 of title 31, United States Code;
"(B) a summary of the length of time Federal agencies used to complete reimbursements of payments described under subparagraph (A); and
"(C) conclusions that assist in making determinations on how the reimbursements of payments described under subparagraph (A) will affect-
"(i) the operations of Federal agencies;
"(ii) funds appropriated on an annual basis;
"(iii) employee relations and other human capital matters;
"(iv) settlements; and
"(v) any other matter determined by the General Accounting Office [now Government Accountability Office] to be appropriate for consideration.
"(3)
"(d)
"(1)
"(A) this Act; and
"(B) the Contracts Dispute [Contract Disputes] Act of 1978 (41 U.S.C. 601 note [see 41 U.S.C. 7101 et seq.];
"(2)
"(a)
"(b)
"(1) The number of complaints filed with such agency in such fiscal year.
"(2) The number of individuals filing those complaints (including as the agent of a class).
"(3) The number of individuals who filed 2 or more of those complaints.
"(4) The number of complaints (described in paragraph (1)) in which each of the various bases of alleged discrimination is alleged.
"(5) The number of complaints (described in paragraph (1)) in which each of the various issues of alleged discrimination is alleged.
"(6) The average length of time, for each step of the process, it is taking such agency to process complaints (taking into account all complaints pending for any length of time in such fiscal year, whether first filed in such fiscal year or earlier). Average times under this paragraph shall be posted-
"(A) for all such complaints,
"(B) for all such complaints in which a hearing before an administrative judge of the Equal Employment Opportunity Commission is not requested, and
"(C) for all such complaints in which a hearing before an administrative judge of the Equal Employment Opportunity Commission is requested.
"(7) The total number of final agency actions rendered in such fiscal year involving a finding of discrimination and, of that number-
"(A) the number and percentage that were rendered without a hearing before an administrative judge of the Equal Employment Opportunity Commission, and
"(B) the number and percentage that were rendered after a hearing before an administrative judge of the Equal Employment Opportunity Commission.
"(8) Of the total number of final agency actions rendered in such fiscal year involving a finding of discrimination-
"(A) the number and percentage involving a finding of discrimination based on each of the respective bases of alleged discrimination, and
"(B) of the number specified under subparagraph (A) for each of the respective bases of alleged discrimination-
"(i) the number and percentage that were rendered without a hearing before an administrative judge of the Equal Employment Opportunity Commission, and
"(ii) the number and percentage that were rendered after a hearing before an administrative judge of the Equal Employment Opportunity Commission.
"(9) Of the total number of final agency actions rendered in such fiscal year involving a finding of discrimination-
"(A) the number and percentage involving a finding of discrimination in connection with each of the respective issues of alleged discrimination, and
"(B) of the number specified under subparagraph (A) for each of the respective issues of alleged discrimination-
"(i) the number and percentage that were rendered without a hearing before an administrative judge of the Equal Employment Opportunity Commission, and
"(ii) the number and percentage that were rendered after a hearing before an administrative judge of the Equal Employment Opportunity Commission.
"(10)(A) Of the total number of complaints pending in such fiscal year (as described in the parenthetical matter in paragraph (6)), the number that were first filed before the start of the then current fiscal year.
"(B) With respect to those pending complaints that were first filed before the start of the then current fiscal year-
"(i) the number of individuals who filed those complaints, and
"(ii) the number of those complaints which are at the various steps of the complaint process.
"(C) Of the total number of complaints pending in such fiscal year (as described in the parenthetical matter in paragraph (6)), the total number of complaints with respect to which the agency violated the requirements of section 1614.106(e)(2) of title 29 of the Code of Federal Regulations (as in effect on July 1, 2000, and amended from time to time) by failing to conduct within 180 days of the filing of such complaints an impartial and appropriate investigation of such complaints.
"(c)
"(1)
"(A) interim year-to-date data, updated quarterly, and
"(B) final year-end data.
"(2)
"(a)
"(1) hearings requested before an administrative judge of the Commission on complaints described in section 301, and
"(2) appeals filed with the Commission from final agency actions on complaints described in section 301.
"(b)
"(c)
"The Equal Employment Opportunity Commission shall issue any rules necessary to carry out this title."
[For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of Title 8, Aliens and Nationality.]
[For transfer of authorities, functions, personnel, and assets of the Bureau of Alcohol, Tobacco and Firearms, including the related functions of the Secretary of the Treasury, to the Department of Justice, see section 531(c) of Title 6, Domestic Security, and section 599A(c)(1) of Title 28, Judiciary and Judicial Procedure.]
[Memorandum of President of the United States, July 8, 2003, 68 F.R. 45155, delegated to Director of Office of Personnel Management authority of President under section 204(a) of