5 U.S.C. § 9902 - Department of Defense personnel authorities

Cite as:5 U.S.C. § 9902
Currency:Current through P.L. 116-135 (03/26/2020)
 
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(a) PERFORMANCE MANAGEMENT AND WORKFORCE INCENTIVES.-

(1) The Secretary, in coordination with the Director, shall promulgate regulations providing for the following:

(A) A fair, credible, and transparent performance appraisal system for employees.

(B) A fair, credible, and transparent system for linking employee bonuses and other performance-based actions to performance appraisals of employees.

(C) A process for ensuring ongoing performance feedback and dialogue among supervisors, managers, and employees throughout the appraisal period and setting timetables for review.

(D) Development of attractive career paths.

(E) Development of "performance assistance plans" that are designed to give employees formal training, on-the-job training, counseling, mentoring, and other assistance.

(2) In developing the regulations required by this subsection, the Secretary, in coordination with the Director, may waive the requirements of chapter 43 (other than sections 4302 and 4303(e)) and the regulations implementing such chapter, to the extent necessary to achieve the objectives of this subsection.

(3)

(A) The Secretary may establish a fund, to be known as the "Department of Defense Civilian Workforce Incentive Fund" (in this paragraph referred to as the "Fund").

(B) The Fund shall consist of the following:

(i) Amounts appropriated to the Fund.

(ii) Amounts available for compensation of employees that are transferred to the Fund.

(C) Amounts in the Fund shall be available for the following:

(i) Incentive payments for employees based on team or individual performance (which payments shall be in addition to basic pay).

(ii) Incentive payments to attract or retain employees with particular or superior qualifications or abilities.

(D) The authority provided in this paragraph is in addition to, and does not supersede or replace, any authority or source of funding otherwise available to the Secretary to pay bonuses or make incentive payments to civilian employees of the Department.

(4)

(A) Any action taken by the Secretary under this subsection, or to implement this subsection, shall be subject to the requirements of subsection (c) and chapter 71.

(B) Any rules or regulations promulgated pursuant to this subsection shall be deemed an agency rule or regulation under section 7117(a)(2), and shall not be deemed a Government-wide rule or regulation under section 7117(a)(1).

(b) FLEXIBILITIES RELATING TO APPOINTMENTS.-

(1) The Secretary, in coordination with the Director, shall promulgate regulations to redesign the procedures which are applied by the Department of Defense in making appointments to positions within the competitive service in order to-

(A) better meet mission needs;

(B) respond to managers' needs and the needs of applicants;

(C) produce high-quality applicants;

(D) support timely decisions;

(E) uphold appointments based on merit system principles; and

(F) promote competitive job offers.

(2) In redesigning the process by which such appointments shall be made, the Secretary, in coordination with the Director, may waive the requirements of chapter 33, and the regulations implementing such chapter, to the extent necessary to achieve the objectives of this section, while providing for the following:

(A) Fair, credible, and transparent methods of establishing qualification requirements for, recruitment for, and appointments to positions.

(B) Fair and open competition and equitable treatment in the consideration and selection of individuals to positions.

(C) Fair, credible, and transparent methods of assigning, reassigning, detailing, transferring, or promoting employees.

(3) In implementing this subsection, the Secretary shall comply with the provisions of section 2302(b)(11), regarding veterans' preference requirements, in a manner consistent with that in which such provisions are applied under chapter 33.

(4)

(A) Any action taken by the Secretary under this subsection, or to implement this subsection, shall be subject to the requirements of subsection (c) and chapter 71.

(B) Any rules or regulations promulgated pursuant to this section shall be deemed an agency rule or regulation under section 7117(a)(2), and shall not be deemed a Government-wide rule or regulation under section 7117(a)(1).

(5) The Secretary shall develop a training program for Department of Defense human resource professionals to implement the requirements of this subsection.

(6) The Secretary shall develop indicators of effectiveness to determine whether appointment flexibilities under this subsection have achieved the objectives set forth in paragraph (1).

(c) CRITERIA FOR USE OF NEW PERSONNEL AUTHORITIES.-In establishing any new performance management and workforce incentive system under subsection (a) or utilizing appointment flexibilities under subsection (b), the Secretary shall-

(1) adhere to merit principles set forth in section 2301;

(2) include a means for ensuring employee involvement (for bargaining unit employees, through their exclusive representatives) in the design and implementation of such system;

(3) provide for adequate training and retraining for supervisors, managers, and employees in the implementation and operation of such system;

(4) develop-

(A) a comprehensive management succession program to provide training to employees to develop managers for the agency; and

(B) a program to provide training to supervisors on actions, options, and strategies a supervisor may use in administering such system;

(5) include effective transparency and accountability measures and safeguards to ensure that the management of such system is fair, credible, and equitable, including appropriate independent reasonableness reviews, internal assessments, and employee surveys;

(6) provide mentors to advise individuals on their career paths and opportunities to advance and excel within their fields;

(7) develop appropriate procedures for warnings during performance evaluations for employees who fail to meet performance standards;

(8) utilize the annual strategic workforce plan, required by section 115b 1 of title 10; and

(9) ensure that adequate agency resources are allocated for the design, implementation, and administration of such system.

(d) DEVELOPMENT OF TRAINING PROGRAM FOR SUPERVISORS.-

(1) The Secretary shall develop-

(A) a program to provide training to supervisors on use of the new authorities provided in this section, including the actions, options, and strategies a supervisor may use in-

(i) developing and discussing relevant goals and objectives with the employee, communicating and discussing progress relative to performance goals and objectives, and conducting performance appraisals;

(ii) mentoring and motivating employees, and improving employee performance and productivity;

(iii) fostering a work environment characterized by fairness, respect, equal opportunity, and attention to the quality of the work of employees;

(iv) effectively managing employees with unacceptable performance;

(v) addressing reports of a hostile work environment, reprisal, or harassment of or by another supervisor or employee; and

(vi) otherwise carrying out the duties and responsibilities of a supervisor;

(B) a program to provide training to supervisors on the prohibited personnel practices under section 2302 (particularly with respect to such practices described under subsections (b)(1) and (b)(8) of such section), employee collective bargaining and union participation rights, and the procedures and processes used to enforce employee rights; and

(C) a program under which experienced supervisors mentor new supervisors by-

(i) sharing knowledge and advice in areas such as communication, critical thinking, responsibility, flexibility, motivating employees, teamwork, leadership, and professional development; and

(ii) pointing out strengths and areas for development.

(2) Each supervisor shall be required to complete a program at least once every 3 years.

(e) PROVISIONS REGARDING NATIONAL LEVEL BARGAINING.-

(1) The Secretary may bargain with a labor organization which has been accorded exclusive recognition under chapter 71 at an organizational level above the level of exclusive recognition. The decision to bargain above the level of exclusive recognition shall not be subject to review. The Secretary shall consult with the labor organization before determining the appropriate organizational level of bargaining.

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