Collapse to view only § 5342. Definitions; application
- § 5341. Policy
- § 5342. Definitions; application
- § 5343. Prevailing rate determinations; wage schedules; night differentials
- § 5344. Effective date of wage increase; retroactive pay
- [§ 5345. Repealed.
- § 5346. Job grading system
- § 5347. Federal Prevailing Rate Advisory Committee
- § 5348. Crews of vessels
- § 5349. Prevailing rate employees; legislative, judicial, Bureau of Engraving and Printing, and government of the District of Columbia
§ 5341. Policy
It is the policy of Congress that rates of pay of prevailing rate employees be fixed and adjusted from time to time as nearly as is consistent with the public interest in accordance with prevailing rates and be based on principles that—
(1) there will be equal pay for substantially equal work for all prevailing rate employees who are working under similar conditions of employment in all agencies within the same local wage area;
(2) there will be relative differences in pay within a local wage area when there are substantial or recognizable differences in duties, responsibilities, and qualification requirements among positions;
(3) the level of rates of pay will be maintained in line with prevailing levels for comparable work within a local wage area; and
(4) the level of rates of pay will be maintained so as to attract and retain qualified prevailing rate employees.
(Added Pub. L. 92–392, § 1(a), Aug. 19, 1972, 86 Stat. 564.)
§ 5342. Definitions; application
(a) For the purpose of this subchapter—
(1) “agency” means an Executive agency; but does not include—
(A) a Government controlled corporation;
(B) the Tennessee Valley Authority;
(C) the Virgin Islands Corporation;
(D) the Atomic Energy Commission;
(E) the Central Intelligence Agency;
(F) the National Security Agency, Department of Defense;
(G) the Bureau of Engraving and Printing, except for the purposes of section 5349 of this title;
(H) the Government Accountability Office; or 1
1 So in original. The word “or” probably should not appear.
(J)2
2 So in original. Subsec. (a)(1) does not contain a subpar. (I).
the Defense Intelligence Agency, Department of Defense; or(K) the National Geospatial-Intelligence Agency, Department of Defense;
(2) “prevailing rate employee” means—
(A) an individual employed in or under an agency in a recognized trade or craft, or other skilled mechanical craft, or in an unskilled, semiskilled, or skilled manual labor occupation, and any other individual, including a foreman and a supervisor, in a position having trade, craft, or laboring experience and knowledge as the paramount requirement;
(B) an employee of a nonappropriated fund instrumentality described by section 2105(c) of this title who is employed in a recognized trade or craft, or other skilled mechanical craft, or in an unskilled, semiskilled, or skilled manual labor occupation, and any other individual, including a foreman and a supervisor, in a position having trade, craft, or laboring experience and knowledge as the paramount requirement; and
(C) an employee of the Veterans’ Canteen Service, Department of Veterans Affairs, excepted from chapter 51 of this title by section 5102(c)(14) of this title who is employed in a recognized trade or craft, or other skilled mechanical craft, or in an unskilled, semiskilled, or skilled manual labor occupation, and any other individual, including a foreman and a supervisor, in a position having trade, craft, or labor experience and knowledge as the paramount requirement; and
(3) “position” means the work, consisting of duties and responsibilities, assignable to a prevailing rate employee.
(b)
(1) Except as provided by paragraphs (2) and (3) of this subsection, this subchapter applies to all prevailing rate employees and positions in or under an agency.
(2) This subchapter does not apply to employees and positions described by section 5102(c) of this title other than by—
(A) paragraph (7) of that section to the extent that such paragraph (7) applies to employees and positions other than employees and positions of the Bureau of Engraving and Printing; and
(B) paragraph (14) of that section.
(3) This subchapter, except section 5348, does not apply to officers and members of crews of vessels excepted from chapter 51 of this title by section 5102(c)(8) of this title.
(c) Each prevailing rate employee employed within any of the several States or the District of Columbia shall be a United States citizen or a bona fide resident of one of the several States or the District of Columbia unless the Secretary of Labor certifies that no United States citizen or bona fide resident of one of the several States or the District of Columbia is available to fill the particular position.
(Added Pub. L. 92–392, § 1(a), Aug. 19, 1972, 86 Stat. 564; amended Pub. L. 96–70, title III, § 3302(e)(1), Sept. 27, 1979, 93 Stat. 498; Pub. L. 96–191, § 8(d), Feb. 15, 1980, 94 Stat. 33; Pub. L. 97–468, title VI, § 615(b)(1)(D), Jan. 14, 1983, 96 Stat. 2578; Pub. L. 98–618, title V, § 502(b), Nov. 8, 1984, 98 Stat. 3303; Pub. L. 102–54, § 13(b)(1), June 13, 1991, 105 Stat. 274; Pub. L. 103–359, title V, § 501(h), Oct. 14, 1994, 108 Stat. 3429; Pub. L. 104–201, div. A, title XI, § 1122(a)(1), div. C, title XXXV, § 3548(a)(3)(A), Sept. 23, 1996, 110 Stat. 2687, 2868; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814; Pub. L. 110–417, [div. A], title IX, § 931(a)(1), Oct. 14, 2008, 122 Stat. 4575.)
§ 5343. Prevailing rate determinations; wage schedules; night differentials
(a) The pay of prevailing rate employees shall be fixed and adjusted from time to time as nearly as is consistent with the public interest in accordance with prevailing rates. Subject to section 213(f) of title 29, the rates may not be less than the appropriate rates provided by section 206(a)(1) of title 29. To carry out this subsection—
(1) the Office of Personnel Management shall define, as appropriate—
(A) with respect to prevailing rate employees other than prevailing rate employees under paragraphs (B) and (C) of
(i) individual local wage areas for prevailing rate employees having regular wage schedules and rates; and
(ii) wage areas for prevailing rate employees having special wage schedules and rates;
(B) with respect to prevailing rate employees under paragraphs (B) and (C) of section 5342(a)(2) of this title, the boundaries of—
(i) individual local wage areas for prevailing rate employees under such paragraphs having regular wage schedules and rates (but such boundaries shall not extend beyond the immediate locality in which the particular prevailing rate employees are employed); and
(ii) wage areas for prevailing rate employees under such paragraphs having special wage schedules and rates;
(2) the Office of Personnel Management shall designate a lead agency for each wage area;
(3) subject to paragraph (5) of this subsection, and subsections (c)(1)–(3) and (d) of this section, a lead agency shall conduct wage surveys, analyze wage survey data, and develop and establish appropriate wage schedules and rates for prevailing rate employees;
(4) the head of each agency having prevailing rate employees in a wage area shall apply, to the prevailing rate employees of that agency in that area, the wage schedules and rates established by the lead agency, or by the Office of Personnel Management, as appropriate, for prevailing rate employees in that area; and
(5) the Office of Personnel Management shall establish wage schedules and rates for prevailing rate employees who are United States citizens employed in any area which is outside the several States, the District of Columbia, the Commonwealth of Puerto Rico, the territories and possessions of the United States, and the Trust Territory of the Pacific Islands.
(b) The Office of Personnel Management shall schedule full-scale wage surveys every 2 years and shall schedule interim surveys to be conducted between each 2 consecutive full-scale wage surveys. The Office may schedule more frequent surveys when conditions so suggest.
(c) The Office of Personnel Management, by regulation, shall prescribe practices and procedures for conducting wage surveys, analyzing wage survey data, developing and establishing wage schedules and rates, and administering the prevailing rate system. The regulations shall provide—
(1) that, subject to subsection (d) of this section, wages surveyed be those paid by private employers in the wage area for similar work performed by regular full-time employees, except that, for prevailing rate employees under paragraphs (B) and (C) of section 5342(a)(2) of this title, the wages surveyed shall be those paid by private employers to full-time employees in a representative number of retail, wholesale, service, and recreational establishments similar to those in which such prevailing rate employees are employed;
(2) for participation at all levels by representatives of organizations accorded recognition as the representatives of prevailing rate employees in every phase of providing an equitable system for fixing and adjusting the rates of pay for prevailing rate employees, including the planning of the surveys, the drafting of specifications, the selection of data collectors, the collection and the analysis of the data, and the submission of recommendations to the head of the lead agency for wage schedules and rates and for special wage schedules and rates where appropriate;
(3) for requirements for the accomplishment of wage surveys and for the development of wage schedules and rates for prevailing rate employees, including, but not limited to—
(A) nonsupervisory and supervisory prevailing rate employees paid under regular wage schedules and rates;
(B) nonsupervisory and supervisory prevailing rate employees paid under special wage schedules and rates; and
(C) nonsupervisory and supervisory prevailing rate employees described under paragraphs (B) and (C) of section 5342(a)(2) of this title;
(4) for proper differentials, as determined by the Office, for duty involving unusually severe working conditions or unusually severe hazards, and for any hardship or hazard related to asbestos, such differentials shall be determined by applying occupational safety and health standards consistent with the permissible exposure limit promulgated by the Secretary of Labor under the Occupational Safety and Health Act of 1970;
(5) rules governing the administration of pay for individual employees on appointment, transfer, promotion, demotion, and other similar changes in employment status; and
(6) for a continuing program of maintenance and improvement designed to keep the prevailing rate system fully abreast of changing conditions, practices, and techniques both in and out of the Government of the United States.
(d)
(1) A lead agency, in making a wage survey, shall determine whether there exists in the local wage area a number of comparable positions in private industry sufficient to establish wage schedules and rates for the principal types of positions for which the survey is made. The determination shall be in writing and shall take into consideration all relevant evidence, including evidence submitted by employee organizations recognized as representative of prevailing rate employees in that area.
(2) When the lead agency determines that there is a number of comparable positions in private industry insufficient to establish the wage schedules and rates, such agency shall establish the wage schedules and rates on the basis of—
(A) local private industry rates; and
(B) rates paid for comparable positions in private industry in the nearest wage area that such agency determines is most similar in the nature of its population, employment, manpower, and industry to the local wage area for which the wage survey is being made.
(e)
(1) Each grade of a regular wage schedule for nonsupervisor prevailing rate employees shall have 5 steps with—
(A) the first step at 96 percent of the prevailing rate;
(B) the second step at 100 percent of the prevailing rate;
(C) the third step at 104 percent of the prevailing rate;
(D) the fourth step at 108 percent of the prevailing rate; and
(E) the fifth step at 112 percent of the prevailing rate.
(2) A prevailing rate employee under a regular wage schedule who has a work performance rating of satisfactory or better, as determined by the head of the agency, shall advance automatically to the next higher step within the grade at the beginning of the first applicable pay period following his completion of—
(A) 26 calendar weeks of service in step 1;
(B) 78 calendar weeks of service in step 2; and
(C) 104 calendar weeks of service in each of steps 3 and 4.
(3) Under regulations prescribed by the Office of Personnel Management, the benefits of successive step increases shall be preserved for prevailing rate employees under a regular wage schedule whose continuous service is interrupted in the public interest by service with the armed forces or by service in essential non-Government civilian employment during a period of war or national emergency.
(4) Supervisory wage schedules and special wage schedules authorized under subsection (c)(3) of this section may have single or multiple rates or steps according to prevailing practices in the industry on which the schedule is based.
(f) A prevailing rate employee is entitled to pay at his scheduled rate plus a night differential—
(1) amounting to 7½ percent of that scheduled rate for regularly scheduled nonovertime work a majority of the hours of which occur between 3 p.m. and midnight; and
(2) amounting to 10 percent of that scheduled rate for regularly scheduled nonovertime work a majority of the hours of which occur between 11 p.m. and 8 a.m.
A night differential under this subsection is a part of basic pay.
(Added Pub. L. 92–392, § 1(a), Aug. 19, 1972, 86 Stat. 566; amended Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 96–70, title III, § 3302(e)(10), Sept. 27, 1979, 93 Stat. 499; Pub. L. 99–145, title XII, § 1242(a), Nov. 8, 1985, 99 Stat. 735; Pub. L. 104–201, div. C, title XXXV, § 3548(a)(3)(B), Sept. 23, 1996, 110 Stat. 2868; Pub. L. 107–107, div. A, title XI, § 1113(a), Dec. 28, 2001, 115 Stat. 1239; Pub. L. 108–136, div. A, title XI, § 1122(a), Nov. 24, 2003, 117 Stat. 1636.)
§ 5344. Effective date of wage increase; retroactive pay
(a) Each increase in rates of basic pay granted, pursuant to a wage survey, to prevailing rate employees is effective not later than the first day of the first pay period which begins on or after the 45th day, excluding Saturdays and Sundays, following the date the wage survey is ordered to be made.
(b) Retroactive pay is payable by reason of an increase in rates of basic pay referred to in subsection (a) of this section only when—
(1) the individual is in the service of the Government of the United States, including service in the armed forces, or the government of the District of Columbia on the date of the issuance of the order granting the increase; or
(2) the individual retired or died during the period beginning on the effective date of the increase and ending on the date of issuance of the order granting the increase, and only for services performed during that period.
For the purpose of this subsection, service in the armed forces includes the period provided by statute for the mandatory restoration of the individual to a position in or under the Government of the United States or the government of the District of Columbia after he is relieved from training and service in the armed forces or discharged from hospitalization following that training and service.
(Added Pub. L. 92–392, § 1(a), Aug. 19, 1972, 86 Stat. 568.)
[§ 5345. Repealed. Pub. L. 95–454, title VIII, § 801(a)(2), Oct. 13, 1978, 92 Stat. 1221]
§ 5346. Job grading system
(a) The Office of Personnel Management, after consulting with the agencies and with employee organizations, shall establish and maintain a job grading system for positions to which this subchapter applies. In carrying out this subsection, the Office shall—
(1) establish the basic occupational alinement and grade structure or structures for the job grading system;
(2) establish and define individual occupations and the boundaries of each occupation;
(3) establish job titles within occupations;
(4) develop and publish job grading standards; and
(5) provide a method to assure consistency in the application of job standards.
(b) The Office, from time to time, shall review such numbers of positions in each agency as will enable the Office to determine whether the agency is placing positions in occupations and grades in conformance with or consistently with published job standards. When the Office finds that a position is not placed in its proper occupation and grade in conformance with published standards or that a position for which there is no published standard is not placed in the occupation and grade consistently with published standards, it shall, after consultation with appropriate officials of the agency concerned, place the position in its appropriate occupation and grade and shall certify this action to the agency. The agency shall act in accordance with the certificate, and the certificate is binding on all administrative, certifying, payroll, disbursing, and accounting officials.
(c) On application, made in accordance with regulations prescribed by the Office, by a prevailing rate employee for the review of the action of an employing agency in placing his position in an occupation and grade for pay purposes, the Office shall—
(1) ascertain currently the facts as to the duties, responsibilities, and qualification requirements of the position;
(2) decide whether the position has been placed in the proper occupation and grade; and
(3) approve, disapprove, or modify, in accordance with its decision, the action of the employing agency in placing the position in an occupation and grade.
The Office shall certify to the agency concerned its action under paragraph (3) of this subsection. The agency shall act in accordance with the certificate, and the certificate is binding on all administrative, certifying, payroll, disbursing, and accounting officials.
(Added Pub. L. 90–206, title II, § 223(a), Dec. 16, 1967, 81 Stat. 641, § 5345; renumbered § 5346 and amended Pub. L. 92–392, § 1(a), Aug. 19, 1972, 86 Stat. 570; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224.)
§ 5347. Federal Prevailing Rate Advisory Committee
(a) There is established a Federal Prevailing Rate Advisory Committee composed of—
(1) the Chairman, who shall not hold any other office or position in the Government of the United States or the government of the District of Columbia, and who shall be appointed by the Director of the Office of Personnel Management for a 4-year term;
(2) one member from the Office of the Secretary of Defense, designated by the Secretary of Defense;
(3) two members from the military departments, designated by the Director of the Office of Personnel Management;
(4) one member, designated by the Director of the Office of Personnel Management from time to time from an agency (other than the Department of Defense, a military department, and the Office of Personnel Management);
(5) an employee of the Office of Personnel Management, designated by the Director of the Office of Personnel Management; and
(6) five members, designated by the Director of the Office of Personnel Management, from among the employee organizations representing, under exclusive recognition of the Government of the United States, the largest numbers of prevailing rate employees.
(b) In designating members from among employee organizations under subsection (a)(6) of this section, the Director of the Office of Personnel Management shall designate, as nearly as practicable, a number of members from a particular employee organization in the same proportion to the total number of employee representatives appointed to the Committee under subsection (a)(6) of this section as the number of prevailing rate employees represented by such organization is to the total number of prevailing rate employees. However, there shall not be more than two members from any one employee organization nor more than four members from a single council, federation, alliance, association, or affiliation of employee organizations.
(c) Every 2 years the Director of the Office of Personnel Management shall review employee organization representation to determine adequate or proportional representation under the guidelines of subsection (b) of this section.
(d) The members from the employee organizations serve at the pleasure of the Director of the Office of Personnel Management.
(e) The Committee shall study the prevailing rate system and other matters pertinent to the establishment of prevailing rates under this subchapter and, from time to time, advise the Office of Personnel Management thereon. Conclusions and recommendations of the Committee shall be formulated by majority vote. The Chairman of the Committee may vote only to break a tie vote of the Committee.
(f) The Committee shall meet at the call of the Chairman. However, a special meeting shall be called by the Chairman if 5 members make a written request to the Chairman to call a special meeting to consider matters within the purview of the Committee.
(g)
(1) Except as provided in paragraph (2), members of the Committee described in paragraphs (2)–(5) of subsection (a) of this section serve without additional pay. Members who represent employee organizations are not entitled to pay from the Government of the United States for services rendered to the Committee.
(2) The position of Chairman shall be considered to be a Senior Executive Service position within the meaning of section 3132(a), and shall be subject to all provisions of this title relating to Senior Executive Service positions, including section 5383.
(h) The Office of Personnel Management shall provide such clerical and professional personnel as the Chairman of the Committee considers appropriate and necessary to carry out its functions under this subchapter. Such personnel shall be responsible to the Chairman of the Committee.
(Added Pub. L. 92–392, § 1(a), Aug. 19, 1972, 86 Stat. 571; amended Pub. L. 95–454, title IX, § 906(a)(1), (2), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 96–54, § 2(a)(15), Aug. 14, 1979, 93 Stat. 382; Pub. L. 102–378, § 2(30), Oct. 2, 1992, 106 Stat. 1350; Pub. L. 104–66, title II, § 2181(d), Dec. 21, 1995, 109 Stat. 732.)
§ 5348. Crews of vessels
(a) Except as provided by subsection (b) of this section, the pay of officers and members of crews of vessels excepted from chapter 51 of this title by section 5102(c)(8) of this title shall be fixed and adjusted from time to time as nearly as is consistent with the public interest in accordance with prevailing rates and practices in the maritime industry.
(b) Vessel employees in an area where inadequate maritime industry practice exists and vessel employees of the Corps of Engineers shall have their pay fixed and adjusted under the provisions of this subchapter other than this section, as appropriate.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 471, § 5348, formerly § 5342; renumbered and amended Pub. L. 92–392, § 1(a), Aug. 19, 1972, 86 Stat. 572; Pub. L. 96–70, title III, § 3302(e)(1), Sept. 27, 1979, 93 Stat. 498; Pub. L. 104–201, div. C, title XXXV, § 3548(a)(3)(C), Sept. 23, 1996, 110 Stat. 2868.)
§ 5349. Prevailing rate employees; legislative, judicial, Bureau of Engraving and Printing, and government of the District of Columbia
(a) The pay of employees, described under section 5102(c)(7) of this title, in the Library of Congress, the Botanic Garden, the Government Publishing Office, the Government Accountability Office, the Office of the Architect of the Capitol, the Bureau of Engraving and Printing, and the government of the District of Columbia, shall be fixed and adjusted from time to time as nearly as is consistent with the public interest in accordance with prevailing rates and in accordance with such provisions of this subchapter, including the provisions of section 5344, relating to retroactive pay, and subchapter VI of this chapter, relating to grade and pay retention, as the pay-fixing authority of each such agency may determine. Subject to section 213(f) of title 29, the rates may not be less than the appropriate rates provided for by section 206(a)(1) of title 29. If the pay-fixing authority concerned determines that the provisions of subchapter VI of this chapter should apply to any employee under his jurisdiction, then the employee concerned shall be deemed to have satisfied the requirements of section 5361(1) of this title if the tenure of his appointment is substantially equivalent to the tenure of any appointment referred to in such paragraph.
(b) Subsection (a) of this section does not modify or otherwise affect section 5102(d) of this title, section 305 of title 44, and section 5141 of title 31.
(Added Pub. L. 92–392, § 1(a), Aug. 19, 1972, 86 Stat. 572; amended Pub. L. 95–454, title VIII, § 801(a)(3)(H), Oct. 13, 1978, 92 Stat. 1222; Pub. L. 97–258, § 3(a)(11), Sept. 13, 1982, 96 Stat. 1063; Pub. L. 100–426, title III, § 301, Sept. 9, 1988, 102 Stat. 1602; Pub. L. 101–474, § 5(j), Oct. 30, 1990, 104 Stat. 1100; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814; Pub. L. 113–235, div. H, title I, § 1301(b), Dec. 16, 2014, 128 Stat. 2537.)