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Chapter 1. Availability Pay Interim order canceled by this chapter: Availability Pay Interim Order, Feb. 2, 1995. (See paragraph 6 of the Foreword.) There were no major changes in Department policy. Discussion of comments: A bureau recommended changing the last sentence of paragraph C.6. to make it clear that a decision to discontinue availability pay is not subject to Department-level approval. We changed the reference to the "Department" to the "bureau." We also corrected an erroneous cross-reference in paragraph B.4. Chapter 2. Highest Previous Rate Order canceled by this chapter: DOJ 1530.3A, Highest Previous Rate, June 16, 1982; also memoranda of June 21, 1990, and Aug. 17, 1990, on Special Salary Rate/Highes Previous Rate (See paragraph 6 of the Foreword.) Changes in Department policy: We changed the wording of the policy for a change to lower grade at an employee's request, so that when there is a probability of promotion as soon as possible under merit promotion rules, any windfall that could occur when the employee is promoted will be taken into consideration when setting the employee's pay at a rate in the lower grade. We removed language making the rate used to set the employee's pay dependent on whether or not the employee completed one-half of the waiting period for his or her next within-grade increase before changing to a lower grade. Also, we removed the requirement for Personnel Staff approval in inter-bureau reassignments involving special rates. Discussion of comments: We adopted a bureau suggestion to add CFR references on the use of the highest previous rate for prevailing rate (wage) employees (see 5 CFR 532.401 and 532.405). A division commented that the Civilian Personnel Law Manual (CPLM) issued by the General Accounting Office (GAO) is not helpful as guidance and requested more concise guidance. We plan to issue Department guidance on selected topics in the future. We have deleted the reference to the CPLM since the claims settlement functions performed by GAO were recently transferred to OPM. As suggested by one commenter, we have defined the term "appointing officer" in the dictionary and added it to key terms for this chapter. The definition is modeled after the definition of appointing officer in 5 CFR 210.102(b). Another commenter suggested that the term "rate of basic pay" be defined. Because there are several exceptions to consider in determining whether a rate of basic pay may or may not be used as the highest previous rate, we believe the determination is best made by applying the rules in 5 CFR parts 531 and 532, taking note of the rates on which the highest previous rate may not be based. For example, a special salary rate is an employee's rate of basic pay, but is limited for use as an employee's highest previous rate by 5 CFR 531.203(d)(2)(vii). An organization asked if this chapter replaces earlier written delegation of authority to Bureau Personnel Officers to use a special salary rate as the highest previous rate. The delegation in the new order, which delegates this authority to Bureau Heads who may redelegate it to Bureau Personnel Officers, replaces and is identical to the delegation made previously by the Assistant Attorney General for Administration in a memorandum dated August 17, 1990. For an employee who takes a demotion at his or her request with the probability of promotion as soon as possible, a bureau suggested that we include a statement that pay will be set at a rate in the lower grade so that, upon promotion, an employee will be placed in the rate of the higher grade which would have been attained had the employee not been demoted. Because of the large variety of circumstances under which an employee may request a downgrade, we have not adopted this suggestion. An organization asked whether a special salary rate could be used as highest previous rate when an employee takes a voluntary demotion for his/her own personal benefit with no probability of promotion as soon as possible. Use of a special salary rate as highest previous rate under the authority in 5 CFR 531.203(d)(2)(vii) is limited to reassignments and does not apply to demotions. We retained the requirement to document reasons for not paying an employee's highest previous rate as suggested by a bureau. This documentation and determinations to use a special salary rate as the highest previous rate must be filed on the right side of the official personnel folder. Chapter 3. Hourly Compensation For Overtime Work An update to this chapter is forthcoming to reflect revisions to OPM's regulations, effective May 14, 2007. Orders canceled by this chapter: DOJ 1551.1C, Compensatory Time, Jan. 10, 1977, and Jan. 28, 1992, memorandum on Compensatory Time; DOJ 1551.5, Fair Labor Standards Act, Sept. 20, 1976; DOJ 1500.2, Pay for Time Spent on Official Travel, Nov. 29, 1976; and DOJ 1551.3, Overtime and other Premium Pay, Nov. 15, 1971. (See paragraph 6 of the Foreword.) The July 29, 2002 revision aligned the Department's policy on minimum increments for recording overtime work with OPM's regulations. (See Change 12) Aug. 25, 1998 changes in Department policy: We changed the increments in which compensatory time may be taken from 1 hour to 1/4 hour. We included a requirement that a request for compensatory time by an exempt employee be made prior to the start of the third biweekly pay period before the end of the leave year following the year in which it was earned, in order for the employee to be paid for it should he/she fail to take it because of an exigency of the public service. Previously, the request had to be made between September 1 and September 30. Bureau Heads (and their designees, where applicable) have been delegated the authority to approve a prevailing rate (wage) employee's request for compensatory time off instead of overtime pay under either chapter 55 of title 5, United States Code, or the Fair Labor Standards Act of 1938, as amended (FLSA), for an equal amount of time spent in irregular or occasional overtime work. The authority for heads of agencies to approve compensatory time off requested by prevailing rate employees was provided by section 1610 of the National Defense Authorization Act for Fiscal Year 1997 (Public Law 104-208, September 30, 1996). For the first time, we have established a formal policy statement that the work period adopted by the Department is 14 days for nonexempt employees engaged in law enforcement activities. Also, for the first time, we have established a formal definition of official duty station for purposes of premium pay for travel. We have revised the Department's policy statement for title 5 overtime pay to say that good management involves the allocation of resources so that assigned work will be accomplished within the basic workweek.
Discussion of comments: Several organizations recommended that the four draft chapters dealing with hourly compensation for overtime work be combined for ease of reference and understanding. We combined the draft chapters dealing with compensatory time (chapter 3), the Fair Labor Standards Act (chapter 4), premium pay for travel (chapter 8), and title 5 overtime pay (chapter 11) into a single chapter. In a few instances, combining the chapters highlighted oversights in the draft order. For example, we added a statement to paragraph B.1.b. concerning payment increments for nonexempt employees. Fair Labor Standards Act. Combining these chapters afforded us an opportunity to add a brief introductory section that explains the relationship between title 5 and FLSA overtime rules. A bureau commented that the statutory reference for the FLSA (29 U.S.C. 201, et seq. (FLSA of 1938, as amended)) was overly broad. For consistency with OPM's regulations in 5 CFR 551.102, we have retained the statutory reference. Premium Pay for Travel. One commenter stated that the draft lacked essential information regarding premium pay for travel. Similar comments suggested development of a "primer" on overtime pay. Additional information on these topics that would repeat provisions of statute and regulation, provide examples, or discuss relevant case law is beyond the scope of this order. However, we will consider providing additional information on these and other topics in future Departmental guidance. Title 5 Overtime Pay. Several components felt that the overtime policy statement in paragraph B.1. of draft chapter 11 was less useful and less clear than the statement contained in recently canceled DOJ Order 1551.3. The revised policy statement in paragraph B.1.a. is similar to the statement in the canceled order. One component asked us to add a statement that had been contained in DOJ Order 1551.3 concerning approval of irregular and occasional overtime work. Since this statement is also contained in OPM's regulations, we have included it as a Note in paragraph B.1.a. Compensatory Time. An organization commented that the citation for section 1610 of the National Defense Authorization Act for Fiscal Year 1997, regarding wage-board compensatory time off, was incorrect. There are two sections numbered 1610 in title XVI of the Act. The section about wage-board compensatory time off is in section 1610 of Subtitle A of title XVI. We have eliminated this citation because it is now incorporated into 5 U.S.C. 5543 in the February 1997 Committee Print of title 5, U.S.C., printed by the U.S. Government Printing Office (see 5 U.S.C. 5543(b)). A bureau asked for an explanation of the compensatory time policy distinction between exempt and non-exempt employees and noted that non-exempt employees are not referenced in the paragraph on delegation to bureaus. We have revised the paragraph on delegation to bureaus to make clear that, at the option of a bureau, an exempt or nonexempt General Schedule (GS) or prevailing rate (wage) employee may request and the bureau may approve compensatory time off in lieu of overtime pay for irregular and occasional overtime work. We have also added authority, at the option of a bureau, for an exempt or nonexempt employee on a flexible work schedule who works regularly scheduled or irregular and occasional overtime work to request, and a bureau to approve, compensatory time off. A determination by a bureau that an employee who has not requested compensatory time will be compensated with compensatory time off in lieu of overtime pay may be made, at the option of the bureau, only for GS employees in exempt positions whose pay exceeds the maximum rate for GS-10. An organization requested that we specify which employees are included in exempt and nonexempt categories. We have not done this because FLSA exemption determinations are made on a position by position basis. Rules on FLSA exemptions are in 5 CFR 551, subpart B. We have added a note to paragraph B.2.b. regarding the application of the maximum earnings limitations to compensatory time, as suggested by a bureau. One commenter asked whether there is an official certification form or process required by the Department for authorization of overtime work. As provided in paragraph C.2.a., the certification that compensatory time off, rather than pay, is the authorized and allowable form of compensation must be made in writing; however, there is no Departmentwide form for this purpose. A division commented that the order should indicate that requests for compensatory time off made by employees in nonexempt positions should precede the overtime worked to avoid supervisory abuse, and that there should be no doubt that nonexempt employees are voluntarily relinquishing their right to paid overtime. We have not added such a requirement because we believe the regulations clearly state that compensatory time off granted to nonexempt employees must be at the request of an employee and that an agency may not require that a nonexempt employee be compensated with compensatory time off (see 5 CFR 551.531(a) (b), and (c)). Note: The requirement to issue reports on compensatory time earned, but not used during the preceding year, has been deleted. July 29, 2002 changes: Since there were no significant policy changes, component comments were not obtained. We merely aligned the chapter with OPM regulations by:
Chapter 4. Position Classification and Employee Placement Plan Order canceled by this chapter: DOJ 1511.6, Position Classification and Employee Placement Plan, Apr. 29, 1981. (See paragraph 6 of the Foreword.) The chapter was revised by the Oct. 3, 2000, installment (Change 6) to incorporate the Department's policy on consultation on significant position classification proposals into the chapter; the memorandum of Jan. 13, 1994, on this subject was canceled. (See paragraph 3 of Change 6.) There were no major changes in Department policy. Discussion of comments: We received comments on this chapter from one division. The division noted that the references did not include general citations for classification and that the term "position management" was not included in the body of the chapter. We have broadened the statutory reference to 5 U.S.C. chapter 51 since accurate classification is included in this chapter. We have not expanded the CFR reference to include 5 CFR Part 511 because that Part deals with Governmentwide procedures for classification appeals, which are not covered by this chapter. We included OPM's Classifiers' Handbook as guidance, and put the reference to OPM's Introduction to the Position Classification Standards in a separate category since this material is mandatory. The key term "position management" has been included in the policy section. In paragraphs requiring management action under this chapter, we have replaced the term "management" with "components," because the division objected to use of the term "management" and pointed out that this is not a collective bargaining agreement. The division commented that the meaning of "proper format" in the definition of "adequate position description" was unclear. We have changed "proper format" to "appropriate format" in the dictionary and in the chapter. There is no Departmentwide format requirement for position descriptions. OPM is revising the position classification standards and plans to focus on job family criteria, which will be presented in varying formats. Chapter 5. Recruitment and Relocation Bonuses Department Plan and memorandum canceled by this chapter: Department Plan for Recruitment and Relocation Bonuses, May 16, 1991, and memornadum on Changes in Regulations on Recruitment and Relocation Bonuses, and Retention Allowances, Jul. 20, 1995. (See paragraph 6 of the Foreword.) The Dec. 18, 2000, installment revised the annual reporting instructions and reflected a change in delegation of approval authority for payment to members of the SES and SL employees. (See Change 7.) Aug. 25, 1998, changes in Department policy: We incorporated changes in final regulations published by the Office of Personnel Management on June 28, 1995 (effective date July 28, 1995) into the order. We reduced the number of reports required each year from four to one. August 25, 1998, discussion of comments: We updated paragraph B.2. of this chapter, as well as chapter 6 on retention allowances, to reflect OPM's recent approval of authority to pay bonuses and allowances to immigration judges. We deleted from paragraph C.3. an inadvertent reference to quarterly reporting. We also revised paragraph B.7. to clarify routing of requests for approval submitted by the Offices, Boards and Divisions (OBDs). One commenter noted that readers may not know which organizational official is the "bureau head" for the OBDs. To call readers' attention to the definition of this term in Appendix 1, we added "bureau head" to the lists of key terms in chapters 5 and 6. Dec. 18, 2000: There were no major changes in Department policy. Dec. 18, 2000, discussion of comments:(Note: The comments below apply to the chapter on Recruitment and Relocation Bonuses and the chapter on Retention Allowances. Both chapters were revised effective Dec. 18, 2000.) Documentation and Reporting A bureau commented that several data elements in the annual reports could be computer-generated at the Department level, thereby relieving components of the responsibility for reporting those elements. However, the bureau acknowledged that certain other data elements, such as the length of a service agreement, could not be computer-generated. A reporting process in which some data elements are computer-generated and other elements are not computer-generated would introduce an artificial new requirement to match the non-computer-related elements to the corresponding computer-generated record. In addition, such a system would be heavily dependent on the accuracy and completeness of the corresponding computer records. We believe that the process of compiling and certifying an annual report affords component management a valuable opportunity to examine and reassess its bonus and allowance program. We have therefore retained the requirement for component submission of reports. A bureau recommended modification of the long-standing requirement to file the SF-50 documenting bonuses and allowances in the employee's Official Personnel Folder (OPF) to reflect recent OPM instructions concerning precisely where such documents should be filed in the OPF. Since OPM changes its processing instructions on a regular basis, we have not modified the policy itself, but we have added OPM's "Guide to Processing Personnel Actions" to the References sections of the chapters. A bureau recommended eliminating the requirement to report the number of bonus offers made. We believe that effective oversight of the bonus program requires knowledge of the extent to which component offers are being rejected. We have therefore retained the basic requirement to report the number of offers made, but deleted the requirement to report the salary percentages of each declined bonus offer. A bureau recommended that annual reports include information on the geographical area of each candidate/employee. Since the Office of Personnel Management has expressed increased interest in geographical variations in recruitment and retention experience, we believe such additional information will be helpful. Therefore, we have added a requirement to report the geographical area of each candidate/employee who receives a bonus or allowance. A bureau suggested adding a requirement to report the amount of each retention allowance. Since components must report the employee's salary and the percentage of the allowance, the amount of the allowance can easily be calculated. Additional Comments: Several components suggested that acronyms such as OBD and LEO be spelled out. The editorial convention for the Human Resources Order is that frequently-used acronyms, such as OBD and LEO, will be defined and spelled out once--in Appendix I, the Human Resources Dictionary–-rather than spelled out separately in each chapter of the Order. Several components made comments and suggestions that were unrelated to and beyond the scope of the proposed change in reporting requirements. These comments concerned: 1) approving authority in the Offices, Boards, and Divisions, 2) delegations of authority to waive recovery of overpayments, 3) procedural differences between group relocation bonuses and group retention allowances, and 4) authority to certify continuation of retention allowances. Before changing such policies, it would be necessary to provide all components with a reasonable opportunity to comment. We will consider adding such unrelated changes to future proposals. The Executive Office for Immigration Review (EOIR) recommended that Immigration Judges be specifically identified in the paragraphs delegating authorities to approving officials. We have made these changes in the applicable chapters and in Appendix II. EOIR also requested clarification of its bureau-level status for the purpose of the Human Resources Order. We note that EOIR is included in the definition of "bureau" in Appendix I, the Human Resources Dictionary. This revision also incorporates the redelegation of approval authority for recruitment and relocation bonuses under the Deputy Attorney General's memorandum "Delegation of Authority for Executive Resources," December 29, 1999. At a commenter's request, we added explanatory notes to paragraphs B.4.c. and B.5.d. of the retention allowance chapter to remind readers of the biweekly nature of retention allowances, and of the effect of the aggregate limitation on pay. Chapter 6. Retention Allowances Department plan and memoranda canceled by this chapter: Department Plan for Retention Allowances, May 16, 1991; memorandum on Changes in Regulations on Recruitment and Relocation Bonuses, and Retention Allowances, Jul. 20, 1995; and memorandum on Interim Retention Allowance Regulations, Jul. 30, 1998. (See paragraph 6 of the Foreword.) The Dec. 18, 2000, installment revised the annual reporting instructions. (See Change 7.) Aug. 25, 1998, changes in Department policy: We incorporated changes in final regulations published by the Office of Personnel Management on June 28, 1995 (effective date July 28, 1995) into the order. We reduced the number of reports required each year from four to one. In addition, we have added provisions for paying retention allowances to a group or category of employees in certain limited circumstances. Aug. 25, 1998, discussion of comments: We revised the chapter to incorporate a recent delegation of authority to pay retention allowances of up to ten percent of basic pay to a group or category of employees. The revised chapter also requires components to report on their use of this authority, and sets forth procedures for requesting authority to pay retention allowances of more than ten percent of basic pay to a group or category of employees. We revised paragraph B.9. to clarify routing of requests for approval submitted by OBDs and paragraph C.4. to clarify that the annual report of the number of retention allowances paid should include the number paid at any point during the fiscal year. Dec. 18, 2000: There were no major changes in Department policy. Dec. 18, 2000, discussion of comments: (Note: The comments on Dec. 18 2000, revision of the chapter on Recruitment and Relocation Bonuses, Chapter 5, include comments on the revision of the chapter on Retention Allowances, Chapter 6. Both chapters were revised effective Dec. 18, 2000. See Dec. 18, 2000, discussion of comments above under Recruitment and Relocation Bonuses, Chapter 5.) Chapter 7. Lump-Sum Payments For Annual Leave There was no previous order canceled by this chapter. This chapter was issued to meet requirements in new regulations issued by the Office of Personnel Management on July 8, 1999, which became effective on September 7, 1999. (See Change 2.) Discussion of comments: A commenter noted the somewhat disjointed nature of the provisions in the draft chapter, and requested that we add a statement that the chapter supplements the provisions of the statute and regulations. Since many relevant and substantive requirements are contained in the statute and regulations, we have added such a statement to paragraph B.1. A bureau commented that in order to avoid disparate treatment of employees receiving similar payments, the chapter should provide a definitive listing of each type of non-title 5 payment that a component has authority to make, and indicate whether or not each type of payment should be included in a lump-sum payment. Various Department components have authority to make a wide variety of payments under title 28, U.S. Code and other legal authorities. Since a specific non-title 5 authority is typically limited to a single component, delegating authority to determine whether a payment should be included in a lump-sum payment poses little danger of disparate treatment of employees in like circumstances. Moreover, we believe that the guidelines provided in paragraph B.3. will enable components to make accurate and fair determinations. Although we do not plan to publish a definitive listing, at the bureau's request, we have added an additional example to paragraph B.3. A commenter asked us to state that the amount of the lump-sum payment to be refunded upon reemployment is the gross amount before any deductions or withholdings. Paragraph B.4.a. was added in response to this comment. A bureau asked us to clarify the term "generally" in paragraph B.4.a.(1) of the draft chapter by stating under what circumstances a lump-sum debt of 15 percent of disposable pay or less will be collected via installment payments. We have modified the policy (and moved it to paragraph B.4.b.) To indicate that the decision as to whether to approve an installment agreement is left to the discretion of the "authorized official" under salary offset. We have added a definition of "authorized official" to the Human Resources Dictionary (Appendix I). Two components indicated that the 6-month limit on repayment via installment agreement in paragraph B.4.c. may impose a financial burden on the employee in the case of large lump-sum refunds. We have modified the policy (and moved it to paragraph B.4.d.) to allow Component heads or their designees to establish a maximum repayment period up to the 12-month maximum period permitted by the regulations. However, the policy provides that in no case may the repayment period exceed the expected period of reemployment. Appendix I. Human Resources Dictionary: As noted above, we have added a definition of "authorized official" for the purpose of approving an installment agreement for refunding a lump-sum payment for annual leave. Two commenters requested changes in the definition of "disposble pay." After consultation with the Justice Management Division's Finance Staff, we modified the definition by adopting the definition in 28 CFR 11.7(h), plus amounts deducted under a garnishment order. A commenter noted that the definition of the term "mixed tour of duty" differed slightly from the definition in section 550.1202 of the regulations. We modified the definition to agree with the definition in the regulations. Chapter 8. Foreign Language Awards Memorandum canceled by this chapter: Memorandum on Interim Guidelines for the Payment of Supervisory Differentials and Foreign Language Awards under FEPCA, July 25, 1991. (See paragraph 3 of Change 3.) There were no major changes in Department policy. Discussion of comments: A bureau commented that under a separate statutory authority, it has paid superior accomplishment awards to employees whose meritorious job performance involved use of a foreign language. This chapter discusses only foreign language awards authorized by 5 U.S.C. 4521–4523, which authorizes payment of foreign language awards to law enforcement officers. We have removed "implementation plan" as a key term since content requirements for implementation plans are included in the chapter and the term does not need to be defined in the dictionary. As suggested by a bureau, in paragraph B.1. we have expanded the note that there is no specific legal authority to pay foreign language awards to non-LEOs by adding the phrase "in the Department," since another Department has authority to pay foreign language awards to certain non-LEOs. In paragraph B.6.c.(3) on the level of language proficiency in criteria for selecting awardees, we changed "the level of language proficiency required" to "the level of language proficiency used" since foreign language awards are not paid when the foreign language capability is a condition of employment. Chapter 9. Supervisory Differentials Memorandum canceled by this chapter: Memorandum on Interim Guidelines for the Payment of Supervisory Differentials and Foreign Language Awards under FEPCA, July 25, 1991. (See paragraph 3 of Change 3.) There were no major changes in Department policy. Discussion of comments: A bureau commented that the Order should state that a supervisory differential is a discretionary payment. Paragraph B.2. of the draft Chapter states that "a supervisory differential may be paid." To further emphasize the discretionary nature of the payment, we have highlighted the word "may" in bold text. A bureau requested a policy statement on the effective date of a reduction or termination of a supervisory differential. For ease of administration, we recommend that bureaus make such changes effective as soon as possible, effective with the beginning or ending date (as appropriate) of a pay period. However, we see no reason to limit management's discretion by mandatory policy. A bureau requested clarification as to whether an employee's retained rate of pay and a rate received while subject to grade retention are considered part of continuing pay. Since 5 U.S.C. 5362(c) requires that an employee's retained grade be considered the employee's grade for all purposes (except for a few non-pay-related purposes), we have modified both definitions of "continuing pay" by including references to "a rate of basic pay received while subject to grade retention." Since OPM regulations include a retained rate of pay in the definition of a supervisor's continuing pay, but exclude a retained rate of pay from a subordinate's continuing pay, no substantive change is needed. However, to insure clarity, we have revised the continuing pay definitions by replacing the term "retained pay" with the term used in OPM's regulations: "retained rate of pay." The bureau correctly observed that when the "retained rate of pay" is excluded from consideration, the appropriate rate of basic pay is the applicable rate for step 10 of the grade the employee actually occupies. A bureau asked whether it is appropriate to add a policy statement regarding the discretionary nature of paying supervisory differentials to employees on temporary promotions. Since payment of any supervisory differential is a discretionary matter, an additional policy statement in this situation is not needed. A bureau asked whether the term "significant differences" in paragraph B.6. will be further defined. Because the purpose of this policy is to preclude administratively burdensome frequent pay adjustments, and because this has been the Department's long-standing policy, we believe that components are in the best positions to make such determinations. Chapter 10. Pay For Senior Level Positions Memoranda canceled by this chapter: Previous memoranda on senior level positions, except for the Dec. 29, 1999, memorandum from the Deputy Attorney General on Delegation of Authority for Executive Resources. (See paragraph 3 of Change 6.) There were no major changes in Department policy. Discussion of comments: A bureau suggested that we change the term "Rate Ranges" in paragraph B.2. to "Pay Ranges" to agree with the term "pay range" in 5 CFR 534.502. Since the regulatory term is used only in the section title, we do not think it is advisable to change terminology that has been used in the Department for nine years. A bureau asked whether the rate ranges in paragraph B.2. are really meant to exclude locality pay. Since SL positions may occur in any locality pay area or overseas, it is necessary to exclude locality pay from a Departmentwide pay-setting policy. After pay is set, the employee will also receive any applicable locality rate of pay. A bureau suggested that the requirement for a six percent pay increase upon promotion from a GS position to an SL position be identified as an exception to the policy in paragraphs B.3.a., b., and c. This policy states that initial SL appointments will normally be made at the SL-1 level. Under the "six-percent rule" (at 2000 rates), promotion into the SL system from GS-15, step 10 requires placement into the SL-2 level. To emphasize this point, we have modified the Note in paragraph B.3. A bureau suggested that we provide guidance as to the percentage increments "normally expected" in the periodic adjustments under paragraph B.5., and that we add a specific statement that pay may be reduced only after following adverse action procedures. Since paragraph B.7. provides specific mandatory pay-setting criteria that govern the granting of periodic adjustments, we do not believe that additional guidance is needed. With respect to the applicability of adverse action procedures, we believe that topic is best addressed in adverse action policy and guidance. A bureau asked that we emphasize the permissive nature of the periodic and annual adjustments under paragraphs B.5 and B.6. Since the term "may" is used throughout the Human Resources Order to indicate discretionary authorities, we do not believe that special emphasis is warranted in these instances. A bureau asked whether an annual adjustment under paragraph B.6. may exceed the applicable GS adjustment. An annual adjustment may exceed the GS adjustment, provided that the criteria in paragraph B.7. are applied, and the effect on eligibility for a periodic adjustment under paragraph B.5. is considered. Assuming that SES percentage adjustments do not exceed GS percentage adjustments, we anticipate that greater-than-GS adjustments would be rare. We have added paragraph B.8.c. in response to a bureau's request that the chapter incorporate the separate senior level (SL) pay-setting delegations for the FBI and the Drug Enforcement Administration. Chapter 11. GS Promotions--Special Salary Rate Positions There was no previous order canceled by this chapter. This chapter was issued at the request of a bureau that noted that the regulations on promotion and special rate positions issued by the Office of Personnel Management (OPM) could be subject to several interpretations when promoting a GS employee who is on a special rate for law enforcement officers and/or a special rate approved by OPM under 5 U.S.C. 5305 to a GS position that is also subject to one of these types of special rates. (See Change 8.) Discussion of comments: A bureau commented that in the Note following Paragraph B.1., a statement and citation should be added to cover LEO special salary rates. Since Office of Personnel Management staff has informed us that the cited regulation--5 CFR 530.306(f)--already applies to LEO special salary rates, we have not added an additional statement or citation. At a bureau's suggestion, we revised subparagraph B.2.d. to define "applicable schedule for the target grade" as a key term. This revision allowed us to drop "target grade" as a separate key term. We also made several editorial changes to improve the chapter's consistency and clarity. Chapter 12. Student Loan Repayment There was no previous order canceled by this chapter. (See Change 10.) This chapter was issued to establish Department policy for offering loan repayment benefits, in accordance with OPM regulations issued by the Office of Personnel Management on January 11, 2001, which became effective on February 12, 2001. The Jun. 17, 2005, installment updated the chapter to reflect the annual and aggregate limitations provided by the Federal Employee Student Loan Assistance Act (Public Law 108-123, Nov. 11, 2003). The Act increased the annual limitation on the amount that may be repaid from $6,000 to $10,000 per employee in any calendar year, and increased the aggregate limitation from $40,000 to $60,000 for any one employee. (See Change 22.) Discussion of comments: Paragraph B.1. At the request of an Office, we added a statement to the introductory paragraph regarding the requirement for a service agreement. Paragraph B.2.a. Two Litigating Divisions recommended adding a specific statement that attorneys and law clerks may receive student loan repayment benefits. They expressed some uncertainty as to whether the terms "permanent appointments" and "permanent employees," as used in 5 CFR 537.104, apply to attorneys who have been converted from temporary excepted appointments to non-temporary excepted appointments. The regulations use the term "permanent" to distinguish an appointment from one that has a time limitation or a total hours limitation, and are not intended to exclude excepted service appointments. OPM's guidance on the student loan repayment program notes, "Excepted service employees, except schedule C employees, may receive student loan repayment benefits, assuming they are otherwise eligible." Since several other categories of employees within the Department also receive excepted appointments without time or total hours limitations, we have clarified the term "permanent," rather than adding a specific mention of attorney and law clerk positions. A Bureau recommended adding a statement that only General Schedule employees are covered by the chapter. This change was not made because OPM's regulations have since been expanded to include additional categories of employees. We modified Paragraph B.6. to incorporate delegations of approval authority for the additional categories. Paragraph B.2.c. A Litigating Division asked whether components may repay previously-defaulted loans for which the employee has subsequently entered into a repayment agreement with the guaranty agency. Merely entering into such a repayment agreement does not generally remove a student loan from default status. If, however, an employee has complied with such a repayment agreement for a sufficient period of time to rehabilitate the loan, and formally remove it from default status, a component may agree to repay the loan. We have rephrased the ban on repayment of loans so that it applies to loans that are not "currently" in default. A Litigating Division recommended that repayment be permitted only for loans that are in "good standing," citing guidance issued by the Department's Security Officer. We discussed this recommendation with staff of the Justice Management Division's Security and Emergency Planning Staff. This issue does not arise with respect to new hires, because selectees must resolve any unpaid student loans before they are hired. The Department's desire that on-board employees' student loans be kept current is actually furthered by a component's decision to repay loans. We concluded that components should be permitted the flexibility to consider individual circumstances in deciding whether to repay non-defaulted loans. Paragraph B.3. A Litigating Division recommended that the term "Bureau" be replaced by the term "Component." Although the term "Bureau" as defined in Appendix I already encompasses all Department components, we rephrased this paragraph to eliminate any possible confusion. Paragraph B.3.a.(2) A Bureau requested additional criteria relating to the employee's performance of an activity/function deemed essential. Although we do not believe that it is advisable to attempt to prescribe additional Department-wide criteria, we have incorporated language on this point from 5 CFR 537.105(c). Paragraph B.3.a.(4) A Litigating Division claimed that it would be burdensome to require approving officials to explain the other pay flexibilities that were considered. The Division believes that "one should assume that managers will opt for the most cost effective recruitment tool available." The requirement parallels the requirements in the Department's bonus and allowance policies. We believe that such a requirement may be documented without undue burden, and that it encourages managers to examine the full range of available flexibilities. Paragraph B.3.b. A Litigating Division objected to the requirement, in recruitment situations, that repayment determinations be made before an employee enters on duty. Since this requirement is imposed by 5 CFR 537.105(b), and is merely restated in the chapter for emphasis, the Department has no discretion in the matter. Paragraph B.4. A Litigating Division recommended adding a mention of the merit system principles in 5 U.S.C. 2301. Since the Department operates its human resources programs in compliance with the merit system principles, it is not necessary to cite those principles in each policy statement. OPM has determined that student loan repayments are not subject to the aggregate limitation on pay in 5 U.S.C. 5307. The note at the end of this paragraph has been revised to reflect this determination. A Litigating Division commented that since the "payment criteria" are factors to be considered rather than specified criteria, it would be more accurate to say that such criteria are "considered" than to say that they are "met." We adopted this suggestion. Paragraph B.5.a. A Litigating Division and a Bureau objected to what the Division characterized as a three-level approval process (recommending official, first-level approving official, and second-level approving official). Because it is not our intent to require more than two levels of review (a recommending official and an approving official), we have changed the term "official who made the initial determination" to "recommending official," and added the term "recommending official" to the list of Key Terms. Paragraph B.6.a.(2) Several components asked that the chapter specifically address the delegation of approval authority for GS and prevailing rate (wage) positions (except attorneys and law clerks) in the Litigating Divisions. In recent years, the AAG/A has redelegated certain personnel authorities, including repayment approval authority, to the heads of the Litigating Divisions and the National Drug Intelligence Center. Normally, redelegations below the Bureau level (such as redelegations by the AAG/A) are not included in Departmentwide policy issuances. However, it is apparent that there is some confusion concerning these redelegations. Therefore, we have added a clarifying note. Paragraph B.6.b. A Bureau commented that delegations of approval authority should be identical for attorneys and non-attorneys to reduce the chance of disparate treatment within the component. The separate delegations were based on delegations of attorney personnel authority that have been in place for some time in program areas such as recruitment and relocation bonuses, and retention allowances. Delegating attorney personnel authority to Bureau General Counsels has generally worked well, and we believe that this approach will work equally well in the student loan repayment program. Paragraph B.7.a.(1) An Office recommended that components reimburse each other when an employee moves within the Department. A Litigating Division recommended that when a Department employee moves to another component during the term of a service agreement, the gaining component should be required to reimburse the losing component for any repayments previously made. We considered various approaches to the potential problems caused when employees move to other Department components during the term of a service agreement. We have tried to develop a policy that reflects a Department-wide perspective, while reflecting practical and budgetary realities. We concluded that it would be neither equitable nor practical to effectively bind the gaining component to the terms of a repayment agreement that was negotiated with the losing component. Components concerned about losing an employee during the term of a service agreement may wish to "backload" the repayment amounts. For example, a component could agree to repay one-third of the outstanding loan amount after each completed year of service. Paragraph B.7.a.(4) A Litigating Division requested a more specific definition of "acceptable level of job performance." Since OPM's regulations require that an employee receiving repayment benefits maintain "an acceptable level of performance, as determined under standards and procedures prescribed by the head of the agency," we have incorporated a reference to the "fully successful" performance level under 5 CFR Part 430 (or similar level under another performance management system) in this paragraph and in the sample service agreement. General comments. Several components requested additional guidance on the tax implications of repayments. Such guidance is beyond the scope of Department policy, but has been incorporated into OPM's Questions and Answers. A reference to this guidance has been added to section A of the chapter. A Bureau recommended that the chapter state that the signed service agreement be filed in the employee's Official Personnel Folder (OPF). Because OPM staff agreed that the service agreement may be filed in the OPF, we have added paragraph C.2. A Litigating Division recommended adding a specific statement that the chapter must be read in conjunction with OPM's regulations. Since the Human Resources Order's Foreword states that the Order "must be read in combination with the applicable laws and regulations," it is unnecessary to repeat this requirement in each chapter of the Order. Two components serviced by the National Finance Center asked for a chance to comment on the procedural aspects of student loan repayment. We have conveyed these concerns to the Justice Management Division's Human Resource Systems Analysis Group, the organization that is responsible for issuing such procedures. A Bureau requested clarification of the documentation that an employee is expected to provide. Since the Department will need to contact the loan source to verify the loan status (i.e., that it is not in default) and the outstanding loan amount, we have modified paragraph B.8. to provide that the employee is responsible for providing sufficient information about the loan to enable the Department to perform this verification. Sample service agreement (Guidance). An Office recommended that the sample service agreement state that if a loan enters default during the term of the agreement, no future repayments may be made on the loan. We have added such a provision, and as noted above, clarified paragraph B.2.c. The sample service agreement will be posted in the Guidance section of the Personnel Staff Web site. A Bureau recommended that the sample service agreement include a statement that employees will lose eligibility for continued loan repayment benefits when they move from one Department component to another. This statement may be true, but to leave open the possibility that the gaining Department component may enter into a new repayment agreement with the employee, we have clarified the sample service agreement by stating that the employee will lose continued eligibility "under the terms of this agreement." A Litigating Division suggested language for the sample agreement that commits a component to pay a specified amount for the first year, with an option to "renew" the agreement in subsequent years. The Division also requested the addition of other unspecified discretionary options. The sample agreement contains an optional provision for increasing the amount to be repaid. This language may be used to cover the scenario described by the Division. The sample agreement is not designed to specify every possible repayment schedule or restriction that a component may wish to incorporate. Jun. 17, 2005: The chapter was updated to reflect the increased annual and aggregate limitations provided by the Federal Employee Student Loan Assistance Act (Public Law 108-123, Nov. 11, 2003). The Act increased the annual limitation on the amount that may be repaid from $6,000 to $10,000 per employee in any calendar year, and increased the aggregate limitation from $40,000 to $60,000 for any one employee. Also, Department and Office of Personnel Management (OPM) Fact Sheets and OPM Questions and Answers on Tax Liability were added to the guidance on the references table. Chapter 13. Advance Payments to New Appointees This chapter canceled the June 17, 1992 memorandum on Advances in Pay. There were no major changes in Department policy. See Change 11. Discussion of comments: Paragraph B.3.d. A Litigating Division questioned the redelegation for attorneys and law clerks, noting that OARM reserves the right to approve certain personnel actions. The Director of OARM has redelegated the authority to approve advance payments via memorandum to be issued simultaneously with the chapter. A reference to this memorandum has been added to Appendix II. Paragraph B.4. A component recommended that the approval criteria be stated more broadly. Since, the existing criteria have been in place since 1992, and the vast majority of Department components are satisfied with them, we have retained them. The component also suggested that the chapter require supporting documentation that the approval criteria are met. Since the decision to make an advance payment is a matter of management discretion, approving officials may require appropriate documentation, but we do not believe that a blanket Department-wide requirement is needed. Paragraph B.5.b. A component commented that this paragraph requires that employees receive written notice of "the total amount, before deductions," but that the draft sample application asks only for the net amount advanced. We have added a block to the sample application that will notify the employee of the "Gross Amount Advanced." Paragraph B.5.d. A Bureau recommended adding a statement that no interest will accrue during the installment period. Since there is no legal or procedural basis for charging an employee interest on the repayment of the advance, it is not necessary to mention interest. Paragraph B.6. The JMD Human Resource Systems Analysis Group noted that the National Finance Center (NFC) no longer uses Form AD-343 to process a request for an advance payment. We revised paragraph B.6. to incorporate a reference to the current NFC processing system, the Special Payroll Processing System (SPPS), and to eliminate obsolete processing instructions. Paragraph B.6.c. A component questioned whether the amounts of deductions for benefits and allotments would be known at the time an advance payment is issued. Since OPM's regulations provide that an advance payment may be made as late as 60 days after the date of an appointment, the amounts of benefits and allotments may well be known at the time an advance payment is issued. Paragraph B.7. A Litigating Division asked what happens when salary withholding can not be completed within "the time allotted" because the employee takes a period of leave without pay. Because the recovery period for an advance payment is expressed in terms of "installments," rather than calendar time, a period of leave without pay would merely place the recovery process on a temporary hold. A component commented that no time frame is provided for lump sum recovery of an advance payment, and that it would be impossible to recover an advance of two pay periods from a single pay check. The procedural aspects of debt recovery are contained in DOJ Order 2120.3B, and are beyond the scope of this chapter. We agree that lump-sum recovery of an advance of two pay periods will require withholding from more than one pay check. However, no change in Department policy is needed. Paragraph B.8. A Litigating Division questioned whether component heads have authority to waive recovery of an advance payment. Paragraph 5.a. of DOJ Order 2120.4E on compromise of claims provides that the AAG/A may redelegate any retained claims compromise authority. The authority to waive recovery of advances in pay was first redelegated to certain component heads (i.e., those component heads who had not already received that delegated authority via DOJ Order 2120.4E) by the AAG/A via the interim Order on Advances in Pay, June 17, 1992. This paragraph merely continues the existing delegation. A component questioned whether the reference to "equity and good conscience" is appropriate since an advance payment "does not constitute overpayment." We are retaining this language since the term "equity and good conscience" is the precise term used by OPM's regulations (see 5 CFR 550.206). A component recommended that additional waiver criteria be provided citing OPM's reference to "criteria established by the agency" (see 5 CFR 550.206). The Department's "Guidelines for Processing Requests to Compromise Employment Related Debt" (10/08/87), issued pursuant to DOJ Order 2120.4E, prescribe appropriate criteria for a broad range of claims compromise decisions, including the waiver of recovery of an advance payment. Appendix I A Bureau commented that it may be difficult to compute the exact amount of an advance payment due to fluctuations in the rates of premium pay. Since the various premium pay provisions include provisions for determining applicable rates for new hires (e.g., see 5 CFR 550.184(a) with respect to law enforcement availability pay), components should compute the amount to be advanced by following those provisions. A Litigating Division commented that the chapter does not explicitly state who is covered by the policy. Paragraph B.2. states that an advance payment may be made to a "new appointee," a term that is defined in Appendix I. In response to this comment, we rephrased the definition of "new appointee" to make it more Department-specific. General Comments A Litigating Division requested a specific statement that an advance payment may not be issued until an employee has entered on duty. Since this statement is included in paragraph 550.203(c) of OPM's regulations, it unnecessary to repeat it in Department policy.A component asked whether making an advance in one Fiscal Year, and repaying it in the subsequent Fiscal Year created an issue with respect to availability of funds. After consultation with the JMD Budget Staff and Finance Staff, we do not believe that this scenario creates issues that need to be addressed in Department policy. A component requested that we add space to the Sample Application for an Advance Payment to a New Appointee so that the applicant may explain his or her financial need for the advance payment, as provided in paragraph B.4.c. We have modified the sample application to provide space for such an explanation. Chapter 14. Hostile Fire Pay This is a new chapter on the Department's policy on Hostile Fire Pay. It does not replace an existing order. See Change 15. Discussion of comments: Several components concurred with the draft chapter as written. A component recommended that the chapter specifically state who has authority to determine that a given incident is a hostile fire incident. Paragraph B.2. addresses this point. One component recommended that the Department ensure consistency among components by adopting a Department-wide policy as to whether hostile fire payments will be made. Since the vast majority of components prefer the flexibility to decide whether to pay hostile fire pay or not, we have retained the flexibility provided in the draft chapter. We note that the component characterized the draft policy as "Each component must submit its own written policy for approval." The chapter requires that Bureau head determinations be available for Departmental review, but it does not require that such determinations be submitted for Departmental approval. (See paragraph C.) A component asked whether hostile fire pay is subject to the aggregate limit on pay in 5 U.S.C. 5307. Hostile fire payments, which are authorized by 5 U.S.C. 5949, are not subject to the aggregate limit on pay since section 5307 does not apply to "any payment under . . . chapter 59 (other than section 5925, 5928, 5941(a)(2), or 5948)." The same component also asked whether hostile fire pay is payable to an employee during a period of active military duty. Active duty military personnel receive hostile fire pay under a separate section of law, i.e., 37 U.S.C. 310. Two components serviced by the National Finance Center requested guidance on systems processing of hostile fire payments. The JMD Human Resources Systems Analysis Group will be issuing such guidance. A component recommended that the chapter emphasize two requirements of the law: 1) that "hostile fire" does not cover threat situations in which the employees or other similarly-situated employees have not been exposed to actual hostile fire; and 2) that hostile fire pay may not be paid to employees who receive danger pay under 5 U.S.C. 5925. The component also requested the inclusion of illustrative examples. Since the Human Resources Order does not repeat requirements of law or include guidance, we do not plan to incorporate these points into the chapter, but we will develop illustrative examples if experience indicates they are needed. A component recommended that the chapter "include specific permission" for a component to establish a hostile fire policy at a later date. The delegation of authority in the chapter would permit, but not require, a Bureau head to authorize payment for a given incident. Therefore, there is no need to incorporate "specific permission" into the chapter. A component recommended that the chapter further define the term "hostile fire." Due to the absence of implementing regulations on the hostile fire statute, we have no additional clarification to add to the statutory language. Components that are unsure as to whether a given situation qualifies as "hostile fire" may consult with the JMD Personnel Staff. Finally, several changes were made to align the chapter with the wording of Attorney General Order No. 2670-2003. Chapter 15. Performance Management System for General Schedule and Prevailing Rate Employees This chapter canceled Chapters 2 and 3 of DOJ 1430.3A, Performance Management System (PMS) for General Schedule and Prevailing Rate Employees, April 14, 1987. See Change 17. Paragraph B.3.d.(4) of this chapter was revised by the xxxx, 2004, installment,Change 20,to clarify that Department policy continues to require review and approval at the next higher level of supervision above the immediate supervisor of all performance plans and ratings of record. Discussion of comments: Paragraph B.1.a. A component recommended that the term "line of sight" be defined. The term was deleted. Paragraph B.1.c. A bureau made a request that the Department provide for representation and consultation from DOJ components' information management systems staffs so that systems and software compatibility and issues of technical support can be coordinated during development of an automated system. This is not an issue to be addressed in the order, but we will take it into consideration as we explore the automation phase. Paragraph B.2. A Litigating Division said that references to "human capital objectives" and work plans that "cascade strategic goals" were vague and confusing and asked what these phrases mean in terms of establishing practical and achievable performance standards and whether guidance and/or examples will be issued to the Offices, Boards and Divisions (OBD's) to assist in drafting standards that comply with these requirements. We have removed the phrase "cascade strategic goals." Another Litigating Division commented that the third sentence of paragraph B.2. should read "The standards must stem from critical elements...," given that the performance standards are written to measure the work assignment or responsibility (the element). The component also commented that the requirement that the performance standards include critical elements which align with component objectives and strategic goals would require that such objectives trickle down to two or more elements in each work plan, but not each element, and that this would require components to rewrite some of existing elements, but not all. The language has been clarified. One component recommended inserting reference to group performance elements, that necessarily must be non-critical, to those standards which must align with the component's strategic plan. The component commented that, by regulation, group performance elements must be non-critical and that the draft chapter suggests that only critical elements which align with the component's strategic plan are acceptable. The component also supported linking performance to strategic plans and suggested that there are performance management scenarios where individuals participating in group efforts may best represent the performance connection with strategic plans, and necessarily, this link would be via non-critical performance elements. In addition, the component sees no reason to limit this link to critical performance elements only. We have not made changes, thus permitting the components to determine which elements should be critical vs. non-critical. Paragraph B3.a. The Justice Management Division's Office of the General Counsel suggested that the language be changed to correctly address the Bureau of Alcohol, Tobacco, Firearms, and Explosives coverage. The language has been changed. Paragraph B.3.b. A Litigating Division commented that there were two paragraphs in B.3.b. which should become subparagraphs (1) and (2) so that each paragraph can be easily referenced. The change was made. Paragraph B.3.c.(2). A Litigating Division found the reference in a chart comparing the old and new GS/Prevailing Rate Performance Management order troubling. The chart stated: "Five patterns of summary levels are permitted with possible reduction to two or three after renegotiation of union contracts." Retaining the ability to continue the two-level program is extremely important to the litigating division. The Division commented that its reduction in the number of rating levels has reduced grievances and has resulted in a greater portion of employees being rated on time. In addition, the Division has been able to effectively use its two-level program with a required narrative justification for award nominations to reward deserving employees. The Division did not read the proposed order chapter as precluding use of a two-level program and would be strongly opposed to any change that would prohibit use of a two-level system. We do not intend to discontinue the use of a two-level program. Another Litigating Division commented that while the use of the term "successful" for level three is an improvement from "satisfactory," there is still some concern that it is not descriptive enough, particularly for the two-level program where it is the only term to describe performance above the unacceptable level. The term "successful" will be used. The Division also commented that there may be further reduction in the number of patterns and was concerned that this could be done without components having the opportunity to comment on any further changes to the patterns available under the Department's system. There is only one official comment period, although, there have been several unofficial comment periods. The number of patterns proposed in the draft circulated for comment has not been reduced. Paragraph B.3.c.(4). A Litigating Division commented that there are a number of mandatory elements that are used by Departmental components for various positions, (i.e., a Managerial Accountability and Internal Controls element as well as an EEO element for managers/supervisors). With respect to the mandatory elements that may be issued by the Attorney General or the Deputy Attorney General, the Division asked if there would be a comprehensive set of mandatory elements or if the elements would be in addition to ones that have been mandated in the past. The Division commented that it would be extremely helpful and instructive if JMD would identify for the components the current mandatory elements and the requirements that precipitated their issuance in the past. The Division also questioned the practicality of the provision to make the mandatory elements effective for one performance rating period and expressed concern about the timing of the issuance of these mandatory elements given the following factors: (1) differences in rating periods among the components; (2) the appraisal cycle of the SES program; (3) the need to meet the requirement to issue work plans within 30 days after the beginning of the rating period; and (4) the requirement to have an employee working under a performance work plan for at least 90 days before issuing a performance rating. To identify the optimal time for the issuance of the mandatory elements and to minimize potential problems, the Division recommend that JMD look at the various performance cycles of the component plans so that the mandatory elements can be issued in sufficient time to enable the various components to include these elements in performance work plans issued at the beginning of the rating period. Also, the the Division commented that use of the term "may" indicated that the AG also has the option not to issue mandatory elements, and asked if the components would be notified in sufficient time to drop from their work plans any mandatory elements that may have been issued by prior AG direction. The Division also expressed concern about the need to re-write numerous work plans each year if the mandatory elements require preparation of new elements and work plans for front-line employees to ensure the direct "line of sight," which could result in a massive re-write of work plans each year and would have a chilling effect on the progress made over the last few years to ensure that managers issue work plans in a timely manner. A component commented that retaining the concept of "Mandatory Elements" is inconsistent with the principles of the Department's Human Capital Initiative, at least insofar as mandatory elements have been administered in the past; specifically, they have not been performance-based nor results-oriented. Instead, mandatory elements have served primarily as a forum for asserting management commitment to current initiatives. The component recommended deleting the paragraph on mandatory elements and commented that the draft order requires that all component performance management programs be performance-based and results-oriented. The same component commented that performance standards must clearly state the human capital objectives of the component, tie in with organizational goals and the desired results, and, in addition, cascade strategic goals down from senior and mid-level management through supervisors to employees. The component concurred fully that this is an appropriate approach to improving performance management. In addition, the component commented that mandatory performance elements, even those limited to the Attorney General and further limited to annual re-issue, are inconsistent at worst and redundant at best with the principles driving the revision of the Departments' performance management system. The component recommended incorporating Attorney General initiatives that might be considered as mandatory elements into each affected organization's strategic plan. In this way, each senior management official would set results-oriented goals and objectives for those affected subordinate organizations, and each organization supervisor would, in turn, set appropriate results-oriented performance standards in individual employee performance evaluation plan. By this process, there would be clear accountability for accomplishing the Attorney General's initiatives. The component also commented that, alternatively, mandatory elements set at the Attorney General's level typically lack clear accountability, have rarely, if ever, been issued in terms of specific results expected, and as a practical matter, have virtually no significant management commitment, based on the apparent total absence of any performance-based action in any component in the Department on failure to perform a mandatory element. Another component commented that components have different performance cycles and recommended that the order address when the mandatory element(s) would be effective. The component observed that though each component has a one-year cycle, they do not begin at the same time. We have revised paragraph B.c.(4), Mandatory Elements, to state: "The Attorney General or the Deputy Attorney General may issue mandatory elements which components must include in employees' performance plans." Paragraph B.3.c.(7). A Litigating Division commented that the Department's minimum period of performance that must be completed before a performance rating can be given is 90 days. The Division understands that this sets the bar for a minimum period of no less than 90 days, but does not preclude use of a minimum of 120 days, which was approved by the Department for the Division's attorneys and non-attorneys at the GS-13 level and above. The Division requested clarification if the language is intended to prohibit any other minimum period. The comment is correct. Ninety days is the minimum. Components may increase the period. Paragraph B.3.c.(8). A component recommended replacing "A progress review" with "At least one progress review" to give components the option of requiring more than one progress review. The component contended that regular evaluation of performance and providing feed-back to employees is critical to performance improvement, and that limiting components to one formal progress review is unnecessarily limiting. We agree and have made the recommended change. Paragraph B.3.d.(4). A Litigating Division commented that it read paragraph B.3.d.(4), "require review and approval at the next higher level of supervision above the immediate supervisor of all performance plans and of ratings of record for employees rated unacceptable," to mean that review and approval at the next higher level is required for all performance work plans, but such review is only required for a rating of "unacceptable." The Division is aware that 5 CFR 430.208(e) requires higher level review for "unacceptable" ratings, and wanted to confirm that it is the intent of the Department to require the same – higher level reviews for unacceptable ratings and not for any other ratings of record. The Department's policy is that all work plans must be reviewed and approved at the next higher level and all unacceptable ratings must, also, be reviewed and approved at the next higher level. Paragraph B.3.d.(5). A Litigating Division questioned the use of the term "summary" when describing the rating that should be prepared for an employee who is scheduled to be transferred or reassigned, and commented that "summary" is a term that is used in conjunction with the level of performance, rather than the type of rating. The Division believes that an appraisal of an employee's performance off-cycle that would be taken into consideration in deriving a subsequent rating of record should be defined as an "interim" rating. We agree and have made the recommended change. Paragraph B.3.d.(7). A Litigating Division commented that the records retention policy in this paragraph requires that performance ratings of record be retained for a minimum of four years and that the retention policy on SES performance appraisals requires no less than five years from date the rating is issued. The Department's records retention policy for performance ratings of record for GS and prevailing rate employees is a retention period of four years. (See 5 CFR 293, Subpart D.) Paragraph C.1 and C.2. A bureau reminded us of union implications. They noted that some of the changes proposed in the new policies are more than minimal (e.g., mandatory elements, changed retention time frame, 60-day time frame in which to complete the appraisal). Such changes to the bureau's performance management program will require union notification and "impact and implementation" (I&I) bargaining, which would occur after the final policy is issued. The bureau wanted to ensure that the DOJ Personnel Staff will handle the national consultation issues. Yes, the Workforce Relations Staff will forward the proposed final draft to the union for national consultation rights. General Comments One bureau noted that paragraphs B.1. and B.2. state that strategic goals must cascade from senior Department of Justice management to all employees of the component organizations. The bureau favors this policy and encouraged the Department to provide guidance and training for components on strategies for translating major Department of Justice and Attorney General goals into performance measures reaching all employees. The bureau said it would benefit from any guidance the Department can offer on best practices in this regard, and it is especially interested in ensuring proper coverage of strategic objectives affecting awards decisions under the proposed awards policy. Departmental guidance will be provided to assist the components in writing performance based, results-oriented standards. Chapter 16. Premium Pay Limitations This is a new chapter on the Department's policy on Premium Pay Limitations. It does not replace an existing order. See Change 18. Discussion of comments: One commenter recommended adding a statement that components must have internal control measures in place to ensure that the pay system coding which identifies the lifting of, and returning to, the biweekly cap on premium pay is accurate each pay period. We have not adopted this comment since components are generally responsible for maintaining adequate internal control measures for all pay system coding. Chapter 17. Position Classification Appeals This chapter canceled DOJ 1511.1B, Position Classification Appeals, Sept. 22, 1987. See Change 18. Discussion of comments: Paragraph A. References. A component requested that we add a reference to the Office Of Personnel Management (OPM) Position Classification Appeals Employee Fact Sheet as a source for the information OPM requires for position classification appeals. We have added this reference to the references table at the beginning of the chapter and to paragraph C.2. Paragraph B.3.a. and b. A component requested that we include our current requirement that employees in bureaus must first appeal to the head of their bureau before appealing to the Department, as well as the requirement that employees in an office, board, or division that does not have delegated classification authority direct an appeal to Assistant Attorney General for Administration. Paragraphs B.3.a. and b. state this. Paragraph B.4.a.(2) and b. Components requested an explanation of the provision that an appellant's representative can be disallowed by the component due to conflict of interest or conflict of position. We have clarified that such conflicts are apparent when the proposed representative is in a position which is part of the management chain over the appealed position, or when the proposed representative is in a position that exercises classification authority over the appealed position or others in the same organization. A component also requested that we require components to explain in writing to an appellant why his or her choice of a representative was disallowed. We have added this requirement. Paragraph B.5. As several components requested, we further define a "reasonable amount" of official time for an appellant to prepare an appeal as normally 8 hours or less. However, we indicate that the circumstances must be considered, and that it may be reasonable based on those circumstances to grant an employee more than 8 hours to prepare his or her appeal. The component must use judgment in making that decision. Paragraph B.6. A component commented we should not say in the order that some things which cannot be appealed could be addressed through the administrative grievance procedures or through the negotiated grievance process. The component does not believe it is appropriate to mention grievance procedures. We disagree and have kept this reference. OPM also includes it in its information on position classification appeals. The reason for including this point is to inform appellants that there are other administrative processes under which they can pursue some items which are not properly the subject of a position classification appeal. We are informing employees of their alternatives, not encouraging employees to pursue them. Paragraph B.6.a. Two components objected to the adjective "competent" in the phrase "competent management official." We agree, and have revised the phrase to read "authorized management official." Paragraph B.6.e. In the list of items which may not be appealed, we clarify that an employee who is temporarily promoted to a position for two or more years may appeal the classification of that position. Paragraph B.7. A bureau commented that the paragraph B.7., Classification Certificate, did not agree with the definition of "classification certificate" in Appendix I, Human Resources Dictionary. We have revised both the paragraph and dictionary definition to clarify this issue. Paragraph B.8. Components requested that we include the time limits for appealing to the Department and OPM and for requesting reconsideration from OPM of appeal decisions. We have added paragraph B.8. to address these time frames. Paragraph C.5. We have added a new paragraph, C.5, to indicate that employees can cancel their appeal before a decision has been issued, and must do so in writing. We also add that the Department will acknowledge the cancellation in writing to the employee and the component. Paragraph C.6. A component asked that we state that classification appeal decisions will provide guidance to employees concerning their options for continuing the appeal with OPM, as well as include information on what an appeal to OPM must include. This is covered in paragraph C.6. Currently, DOJ appeal decisions explain that employees have the right to continue an appeal to OPM, provide the address of the OPM regional office which would accept the appeal, and provide a copy of the OPM Position Classification Appeals Employee Fact Sheet which lists the information OPM requires. In addition, we now include the OPM Internet address for the position classification appeals Web site. General comments Some components requested that we include a time frame by which we will issue an appeal decision. While the old classification appeals order did specify when a decision could be expected, the current realities of the DOJ Personnel Staff make setting a specific time period by which a decision will be issued impractical. The size of the staff deciding position classification appeals is much smaller today than it was when the old order was written, and the complexity and priority of assignments carried out by the staff are variable and unpredictable. These conditions make it possible to determine the average number of days it took to issue decisions over a longer period of time (e.g., 1 year), but not to state with any certainty how long it will take to issue a decision for a given appeal. Thus, in consideration of the current level of staff devoted to classification appeals and the unpredictability of other assignments, we cannot promise the Department's position classification appeal decision to appellants within a specific number of days. One component requested that we mention "bureaus and other components" rather than just "components." Because there are many different organizations within the Department, in addition to our major bureaus, that have been granted personnel and/or position classification authority, we refer to "components" in order to be inclusive. This term "component" is defined in Appendix I of the Order, Human Resources Dictionary, and means an office, board, division, or bureau. Chapter 18. Agency Awards and Quality Step Increases This chapter canceled Chapters 4, 6, and 7 of DOJ 1430.3A, Performance Management System (PMS) for General Schedule and Prevailing Rate Employees, April 14, 1987; and Chapter 3 of DOJ 1451.1A, Incentive Awards Program, December 14, 1984. See Change 20. Discussion of comments: A litigating division noted that the current title is "Agency Awards and Quality Step Increases," and suggested changing the title to "Component Awards and Quality Step Increases" or "Component Award Programs." We have not adopted this suggestion. The title reflects the title of 5 CFR part 451, Subpart A, Agency Awards, and Part 531, Subpart E, Quality Step Increases. Paragraph A.A component suggested some editorial changes for the References table, which were made. Paragraph B.1. A litigating division suggested that we change Department to Component in the first sentence to make the policy statement consistent with the intent of the Chapter, which is for components to have award programs. We have not adopted this suggestion since the order is Department-wide policy. A component asked if the paragraph requires components with existing programs consistent with this Chapter to re-establish their programs? Components that have programs consistent with this new order are not required to re-establish their programs. Several litigating divisions had concerns about the draft statement regarding the granting of awards "at such a time when clear results can be determined," and about other language in paragraph B.1. The language has been amended. A component commented that paragraph B.1. reads as if the only time cash awards can be granted is if there is a specific tie to the strategic plan, and said that while this is relevant to performance awards, it would appear to limit or restrict the circumstances/criteria under which a Special Act award may be conveyed to an individual. The language was modified. Paragraph B.2. A litigating division suggested a re-write of this paragraph. The suggested changes were made. Paragraph B.3. A component commented that the draft states that senior-level (SL) employees are not covered, and since these are not SES employees (who are also excluded), "senior level" should be defined. No further clarification is needed. (See 5 U.S.C. 5376(a) for a definition of SL positions.) We have added United States Marshals to the positions excluded from coverage by this chapter; see discussion of paragraph B.8. below. A component asked why Senior Executive Service (SES) employees are excluded from this policy, and suggested that a reference be included in this chapter if they are excluded because Part 8, Chapter 1 of the Human Resources Order, Performance Management System for Senior Executive Service Employees is considered to cover SES awards sufficiently, or if SES awards will be addressed in some other chapter. We have not included a reference since this chapter does not apply to SES employees. Part 8, Chapter 1 of the Human Resources Order addresses awards for superior executive performance. A litigating division asked if this paragraph excludes SES employees from coverage under the chapter and asked if it is the intent of this chapter to remove component's ability to recognize, with non-monetary awards, SES employees as part of group awards? The chapter does not cover members of the SES. Components may recognize SES employees as part of a group award with a non-monetary award. Paragraph B.4. A litigating division requested an increase in the delegation to component heads to allow them to approve awards greater than $5000. This has not been approved. The authority is limited by 28 CFR 0.11. A component suggested that we clarify that component heads have the authority to grant awards for $5,000, by adding "and including" before "$5,000.00" at the end of the first sentence. The change was made. Several components commented that, as written, Schedule C employees are covered under this program, but component heads do not currently have delegated authority to approve monetary awards for Schedule C employees. They asked if it is the intent of the chapter to give component heads this delegation. No, it is not our intent to do so. We have added a statement to paragraph B.4. which states, "The Attorney General has retained the authority to approve cash awards and quality step increases for Schedule C employees." Paragraph B.5.a. As suggested by a litigating division, we added the word "generally" before "with a minimum of $250.00." The division pointed out that a definitive minimum would limit an organization's ability to manage its awards program in times of limited funds. A litigating division and a component commented that the statement "Cash awards that are based solely on performance ratings of record assigned at the end of the appraisal period." Should be changed to : "Cash awards that are based solely on performance as reflected in the employee's most recent rating of record assigned at the end of the appraisal period." This paragraph was re-worded. A component commented that awards are based solely on employees' performance ratings of record and intended to recognize sustained levels of "successful" performance, whereas the corresponding paragraph in the current Order notes that cash awards for performance are to be granted for employees whose performance clearly exceeds normal requirements. The component asked if it is the Department's intent to lower the bar for the granting of performance awards and the reasoning for doing so. Although the component is not opposed to the elimination of the title of "special achievement award for sustained superior performance" it believes that the intent to recognize performance above normal requirements should be preserved. Additionally, the component believes that these awards should not be based "solely" on the rating of record to the extent that such language implies that everyone who receives an Outstanding rating should receive an award. It is the intent of this order to permit awards for performance that is rated as "successful." There is no requirement to give an award for an "outstanding" performance rating. Paragraph B.5.b. A component commented that some criteria for the granting of special act or service awards must be included to provide consistency and they suggested some clarifying language about including individuals and groups, which was adopted. Several components commented that to be consistent with the other cash award categories under this subpart, there should be a statement under "Special Act or Service Awards" that indicates a performance rating is not required to justify this award. The change was made in paragraph B.5.b.(4). Paragraph B.5.c. A litigating division commented that it has not implemented the use of on-the-spot awards, but they would like to have the authority to require approval at the next supervisory level over the first line supervisor. We have revised this paragraph so that it does not restrict the level of review/approval to first-line supervisors. Regarding the total on-the-spot award per calendar year, a component commented that the first paragraph would be clearer if it read: "An employee cannot be granted more than four on-the-spot cash awards in a calendar year, and the total on-the-spot award amount for per employee per calendar year cannot exceed $2,000.00." We accepted the recommendation and made that change in paragraph B.5.c.(2), and some additional changes to clarify the language. A litigating division commented that we should change the time frame for granting awards from "within two weeks" to "within a reasonable time period after the occurrence..." The change was made in paragraph B.5.c.(3). A litigating division suggested the removal of the reference to non-monetary (certificate) recognition under on-the-spot awards. They noted that on-the-spot awards, by their nature, are monetary awards. The change was made. (See paragraph B.5.c.(3). A litigating division suggested the removal of the last sentence of the second paragraph in the draft under on-the-spot awards, stating that a rating is not used to justify the award. It duplicated the last sentence of the first paragraph in the draft. The change was made and this statement is in paragraph B.5.c.(4). We also included a requirement for a written justification in this paragraph as suggested by a component.
A component suggested that supervisors be permitted greater flexibility when making "on-the-spot" awards by allowing increases in the minimum award amount by whatever increment s/he deems appropriate. This suggestion was not adopted. A component suggested that it is not necessary to mandate that no more than four on-the-spot awards can be given to an employee in a calendar year. It is mandated. Paragraph B.6. As suggested by counsel and two components, the paragraph on quality step increases (QSIs) has become paragraph B.6. (It had been under paragraph B.5., cash awards, in the draft.) This was done because quality step increases are not treated the same as cash awards. Subsequent paragraphs have been renumbered. A component commented that QSIs are pay increases. The definition of a QSI has been amended to reflect this. A component questioned the meaning of a sentence in the draft stating that a QSI is not permitted within six months of receiving a promotion and another component suggested that we delete the requirement. The requirement remains; however, we have deleted the sentence since the requirement is included in another sentence, which requires that the employee must have been performing at his/her grade for a minimum of six months to be eligible for a QSI. A litigating division commented that for employees under a career ladder, the draft was too restrictive by spelling out the length of time (6 months) the employee is expected to continue the high level performance after receiving a QSI. They recommended that the requirement should state that there is every expectation that the high level of performance will continue. The six months requirement has been retained. Paragraph B.7. A litigating division commented that this paragraph on Time-Off Awards (TOAs) does not state who has the authority to grant the award. They recognized that Appendix II states who can grant it, but it is suggested that it may be helpful to include the information in the actual paragraph on time-off awards, also. No change has been made since the appendix addresses this point. A component recommended stating that a TOA may be used in lieu of, or in addition to, a cash award to recognize exemplary performance. Paragraph B.7. states that TOAs may be used to recognize sustained high-level performance. A litigating division commented that the last sentence of this paragraph which states that TOAs "must be based solely on the merit of the employee's job performance and shall NOT be used to compensate or reward employees for working outside of the basic workweek." is inconsistent. They state that while it is clear that time-off awards should not be based solely on the fact that an employee performed work outside the basic workweek, it is equally clear that working outside the basic workweek may be a factor in "the merit of the employee's job performance." They contend that they assume that JMD doesn't intend to deny this fact, and they suggest that the clause quoted above be changed to read: "be based solely on the merit of the employee's job performance and shall NOT be based solely on that fact that the employee performed work outside the basic workweek." The meaning is the same and the policy is correct as stated in the draft. As suggested by a component, we have added a statement that a TOA shall not be used in lieu of premium pay. A litigating division commented that this paragraph states that the maximum amount of a TOA is 120 hours per leave year. This statement should be clarified to reflect that 120 hours is the cumulative total that an employee can receive during a leave year. They can receive either one 120 hour award or several awards that total 120 hours in the leave year. The change was made. TOAs are made effective at the beginning of the pay period following approval of the award. Until it has been made effective, an employee can't use the award. Under the current wording in this paragraph, the award will expire based on the date it was approved, not the date it became effective and eligible for use. The change was made. A component requested the addition of a statement that a TOA may be retained if the employee is transferring to another DOJ component. A TOA may not be transferred to another DOJ component. Paragraph B.8. The U.S. Marshals Service commented that the Order should state more clearly what types of political appointees may not receive cash awards. Most of its political appointees are covered by non-career SES, Executive Schedule, and Senior Level designations, however, United States Marshal positions compensated at grade GS-15 of the General Schedule are filled by Presidential appointment. In paragraph B.3., we have added United States Marshals to the positions excluded from coverage by this chapter. Paragraph B.4. has been changed to reflect the fact that the Attorney General has retained authority to approve cash awards and quality step increases for Schedule C employees. (For more details, see the Award Policy for Noncareer Senior Executive Service (SES) and Schedule C Employees, September 11, 2002. It can be found on the Internet at http://www.usdoj.gov/jmd/ps/memawardsesschc.htm.) Finally, the Presidential election restriction found in paragraph B.8. is self explanatory and reflects a restriction found in 5 U.S.C. § 4508 and 5 C.F.R. § 451.105. Paragraph B.9. A litigating division and a component suggested that "gain-sharing awards" should be discussed and defined. Gain-sharing awards are not covered by the awards order and so negates the need for the definition. Several components noted that there is no mention of special act or service awards. We propose this type of award be added to the last sentence along with SES bonuses, gain-sharing awards, and on-the-spot awards. The language remains unchanged and will be clarified when operating procedures are developed. Appendix II A litigating division commented that on- the-spot awards are not included in the table of delegations. They are covered under "approval of cash awards up to $5,000." Paragraph C.1., C.2., and C.3. The Office of General Counsel and a litigating division made comments about restructuring these paragraphs. The suggested changes were made. Paragraph C.2. Several components proposed that this paragraph also indicate what information will be required on annual reports so that components can ensure that the required information is collected. The required reporting information has yet to be determined. APPENDIX I. HUMAN RESOURCES DICTIONARY As suggested by a component, we have added a definition for "Quality Step Increase (QSI)." It was also suggested that we add a definition for "gain-sharing." We have not added a definition for gain-sharing since it is not covered by this order. Chapter 19. Extended Assignment Incentives This is a new chapter See Change 21. Discussion of comments: Paragraph B.2.b. As suggested by a bureau, we have revised paragraph B.2.b. to clarify that prior to payment of an extended assignment incentive, an employee must have completed at least two years of continuous service immediately before the commencement of the service agreement in one or more civil service positions located in the appropriate location. Paragraph B.2.c. We have clarified that payment of an extended assignment incentive is prohibited if an otherwise eligible employee has not fulfilled the requirements of a service agreement for a recruitment or relocation bonus or is receiving a retention allowance. Paragraph B.5.a. We have added U.S. Marshals to the exclusions from this paragraph. Paragraph B.5.b. As requested by the Office of Attorney Recruitment and Management (OARM), we have clarified that Bureau General Counsels and Heads of Offices, Boards, and Divisions (OBDs) are approving officials for attorneys pursuant to a delegation of authority from the Director, OARM, and we have deleted the term "law clerk" from this paragraph since law clerks can serve only one 14-month appointment and would not be assigned to a location for two years. Paragraph B.6.b.(6). As suggested by a bureau, we have clarified the language in paragraph B.6.b.(6) by revising the phrase "Length of previous service periods" to read "Length of previous covered service periods." Paragraph B.5.a.(2). As suggested by a component, we have clarified that the Heads of OBDs that have delegated personnel authority may approve extended assignment incentives. Paragraph B.6.c.(3). A component asked how an employee could retain an unpaid incentive payment. We have revised this paragraph to clarify that where an employee leaves before completing a service agreement, and the portion of the service period worked exceeds the pro rata share of the incentive payments paid to the employee, the employee will receive all or part of the remaining payment attributable to the time period actually worked. Paragraph C.2. A bureau commented that it would be helpful to include the nature of action code, legal authority, and comment block instruction for the Standard Form (SF) 50. A Human Resources System Notice will provide interim guidance on this topic and be updated when OPM and NFC finalize specific procedures. Paragraph C.3. A component asked if the OBDs have any reporting requirements. We have revised paragraph C.3. to require that each OBD having delegated personnel authority submit an annual report. A bureau suggested we add a requirement to submit information documenting repayment debt incurred and recovered, ongoing collection efforts, and debt waived or written off. Such a documentation requirement has been incorporated in Paragraph C.3.b. General comments. A bureau suggested that we consider including the maximum limit of the incentive. The maximum amount is specified in the regulations and was not reflected in this instruction. Another bureau commented that the chapter should include information on the amount that can be awarded. This determination will be left to bureau discretion, based on mission critical need for the incentive in assuring retention of critical human resources. The bureau commented that the chapter should address eligibility and asked if all employees, including those hired locally, are eligible, or just those assigned from the continental United Sates. We have likewise allowed bureaus flexibility in addressing this issue. The bureau also asked if the employee must be on a mobility agreement. The requirement is for a service agreement, components may determine whether mobility is a valid factor in their determinations for approval. A component asked who will monitor the payback of the incentive if an employee separates prior to completion of the service period. The reporting requirements reflect that the component that was the employing office when the incentive was approved is responsible for tracking the liability until resolved (and will reflect such on annual reports). SAMPLE ANNUAL REPORT (GUIDANCE) A bureau suggested that the sample annual report include a line on which to enter the Fiscal Year (FY) to prevent components from reporting data based on the calendar year. We have incorporated the FY in the sample. The bureau also suggested that the report be revised to consolidate the input for each employee who is offered an extended assignment incentive, with the appropriate columns to reflect declination, acceptance, incentive amount, and length of service agreement. We have not revised the sample annual report; however, since the sample annual report is provided as guidance, components may revise the format as appropriate, provided that the reporting requirements in paragraph C.3. of the order chapter are met. |
Last Updated: May 17, 2007
usdoj/jmd/ps/WDT
