§5363 — Title 5 Government Organization and Employees | U.S. Code

Summary

Keeps an employee from losing pay when certain pay changes happen. It applies when an employee stops getting 2 years of special coverage, when a special rate or other pay rate is cut or ended, or when OPM says a pay cut should be covered. If the employee’s old pay is no more than the new top pay for the job, the employee gets the lowest step in the new grade that is at least as high as the old pay. If the old pay is higher than the new top pay, the employee gets either the old pay or 150 percent of the new top pay—whichever is less. The “old pay” means the last basic pay the person got before the change. If the top pay for the grade goes up later, the retained pay rises by half of each dollar increase in that top pay. When an employee moves to a place with a different pay schedule, first figure the pay they would have at the new location based on their old step or position, then apply the rules above using that amount as the old pay. A pay cut caused by that calculation does not create a new retention right. OPM will make rules about retained pay for moves. Retained pay counts as part of basic pay for many pay and benefits laws. Pay retention stops if the employee has a break in service of 1 workday or more, takes or is entitled to a job paying the same or more (or refuses a reasonable offer that pays the same or more), or is demoted for personal cause or at the employee’s request.

Title 5, §5363

Government Organization and Employees — Source: USLM XML via OLRC

(a)Any employee—

(1)who ceases to be entitled to the benefits of section 5362 of this title by reason of the expiration of the 2-year period of coverage provided under such section;

(2)who is in a position subject to this subchapter and who is subject to a reduction or termination of a special rate of pay established under section 5305 of this title (or corresponding prior provision of this title);

(3)who is in a position subject to this subchapter and who (but for this section) would be subject to a reduction in pay under circumstances prescribed by the Office of Personnel Management by regulation to warrant the application of this section; or

(4)who is in a position subject to this subchapter and who is subject to a reduction or termination of a rate of pay established under subchapter IX of chapter 53;

(b)(1)(A)If, as a result of any event described in subsection (a), the employee’s former rate of basic pay is less than or equal to the 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 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 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,

(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)For purposes of this subsection, the term “former rate of basic pay”, as used with respect to an employee in connection with an event described in subsection (a), means the rate of basic pay last received by such employee before the occurrence of such event.

(c)(1)Notwithstanding any other provision of this section, in the case of an employee who—

(A)moves to a new official duty station, and

(B)in conjunction with such move, becomes subject to both a different pay schedule and (disregarding this subsection) the preceding provisions of this section,

(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 the time of moving to a new official duty station at which different pay schedules apply shall be subject to regulations prescribed by the Office of Personnel Management consistent with the purposes of this section.

(d)A retained rate shall be considered part of basic pay for purposes of this subchapter and for purposes of subchapter III of chapter 83, chapters 84 and 87, subchapter V of chapter 55, section 5941, and for such other purposes as may be expressly provided for by law or as the Office of Personnel Management may by regulation prescribe. The Office shall, 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.

(e)This section shall not apply, or shall cease to apply, to an employee who—

(1)has a break in service of 1 workday or more;

(2)is entitled, by operation of this subchapter, chapter 51 or 53, or any other provision of law, to a rate of basic pay which is equal to or higher than, or declines a reasonable offer of a 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.

Notes & Related Subsidiaries

Editorial Notes

Prior Provisions

A prior section 5363, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 473, which related to limitation on pay fixed by administrative action, was renumbered section 5373 of this title by Pub. L. 95–454, title VIII, § 801(a)(3)(A)(ii), Oct. 13, 1978, 92 Stat. 1221.

Amendments

2004—Subsec. (a). Pub. L. 108–411, § 301(a)(5)(A), inserted concluding provisions and struck out former concluding provisions which read as follows: “is entitled to basic pay at a rate equal to (A) the employee’s allowable former rate of basic pay, plus (B) 50 percent of the amount of each increase in the maximum rate of basic pay payable for the grade of the employee’s position immediately after such reduction in pay if such allowable former rate exceeds such maximum rate for such grade.” Subsecs. (b) to (e). Pub. L. 108–411, § 301(a)(5)(B), added subsecs. (b) to (e) and struck out former subsecs. (b) and (c) which read as follows: “(b) For the purpose of subsection (a) of this section, ‘allowable former rate of basic pay’ means the lower of— “(1) the rate of basic pay payable to the employee immediately before the reduction in pay; or “(2) 150 percent of the maximum rate of basic pay payable for the grade of the employee’s position immediately after such reduction in pay. “(c) The preceding provisions of this section shall cease to apply to an employee who— “(1) has a break in service of one workday or more; “(2) is entitled by operation of this subchapter or chapter 51 or 53 of this title to a rate of basic pay which is equal to or higher than, or declines a reasonable offer of a position the rate of basic pay for which is equal to or higher than, the rate to which the employee is entitled under this section; or “(3) is demoted for personal cause or at the employee’s request.” 1993—Subsec. (c)(2). Pub. L. 103–89 substituted “chapter 51 or 53” for “chapter 51, 53, or 54”. 1990—Subsec. (a)(2) to (4). Pub. L. 101–509 substituted “5305 of this title (or corresponding prior provision of this title);” for “5303 of this title; or” in par. (2), inserted “or” at end of par. (3), and added par. (4).

Statutory Notes and Related Subsidiaries

Effective Date

of 2004 Amendment Pub. L. 108–411, title III, § 301(d), Oct. 30, 2004, 118 Stat. 2317, provided that: “(1)

Effective Date

.—This section [amending this section, section 4505a, 5302, 5305, 5334, 5361, and 5365 of this title, and provisions set out as a note under section 5305 of this title] shall take effect on the first day of the first applicable pay period beginning on or after the 180th day after the date of the enactment of this Act [Oct. 30, 2004]. “(2) Conversion rules.—“(A) Individuals receiving a retained rate or a rate greater than the maximum rate for the grade.—Subject to any

Regulations

the Office of Personnel Management may 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 section 5363 of title 5, United States Code, 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 shall have that rate converted as of the

Effective Date

of this section, and the employee shall be considered to be receiving a retained rate under section 5363 of such title (as amended by this section). The newly applicable retained rate shall equal the formerly applicable retained rate as adjusted to include any applicable locality-based payment under section 5304 of title 5, United States Code, or similar provision of law. “(B) Definition.—For purposes of this paragraph, the term ‘covered pay schedule’ has the meaning given such term by section 5361 of title 5, United States Code.”

Effective Date

of 1993 AmendmentAmendment by Pub. L. 103–89 effective Nov. 1, 1993, see section 3(c) of Pub. L. 103–89, set out as a note under section 3372 of this title.

Effective Date

of 1990 AmendmentAmendment by Pub. L. 101–509 effective on such date as the President shall determine, but not earlier than 90 days, and not later than 180 days, after Nov. 5, 1990, see section 529 [title III, § 305] of Pub. L. 101–509, set out as a note under section 5301 of this title.

§5363 Pay Retention

Summary

Title 5, §5363

Notes & Related Subsidiaries

Editorial Notes

Prior Provisions

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Effective Date

Regulations

Effective Date

Effective Date

Effective Date

Effective Date

Citations & Metadata