5 C.F.R. Subpart H—Notice to Employee
Title 5 - Administrative Personnel
Title 5: Administrative Personnel
PART 351—REDUCTION IN FORCE
Subpart H—Notice to Employee
Source: 60 FR 2679, Jan. 11, 1995, unless otherwise noted.
§ 351.801 Notice period.
(a)(1) Each competing employee selected for release from a competitive level under this part is entitled to a specific written notice at least 60 full days before the effective date of release.
(2) At the same time an agency issues a notice to an employee, it must give a written notice to the exclusive representative(s), as defined in 5 U.S.C. 7103(a)(16), of each affected employee at the time of the notice. When a significant number of employees will be separated, an agency must also satisfy the notice requirements of §§351.803 (b) and (c).
(b) When a reduction in force is caused by circumstances not reasonably foreseeable, the Director of OPM, at the request of an agency head or designee, may approve a notice period of less than 60 days. The shortened notice period must cover at least 30 full days before the effective date of release. An agency request to OPM shall specify:
(1) The reduction in force to which the request pertains;
(2) The number of days by which the agency requests that the period be shortened;
(3) The reasons for the request; and
(4) Any other additional information that OPM may specify.
(c) The notice period begins the day after the employee receives the notice.
(d) When an agency retains an employee under §351.607 or §351.608, the notice to the employee shall cite the date on which the retention period ends as the effective date of the employee's release from the competitive level.
[60 FR 2678, Jan. 11, 1995, as amended at 60 FR 44254, Aug. 25, 1995; 63 FR 32594, June 15, 1998; 65 FR 25623, May 3, 2000]
§ 351.802 Content of notice.
(a)(1) The action to be taken, the reasons for the action, and its effective date;
(2) The employee's competitive area, competitive level, subgroup, service date, and three most recent ratings of record received during the last 4 years;
(3) The place where the employee may inspect the regulations and record pertinent to this case;
(4) The reasons for retaining a lower-standing employee in the same competitive level under §351.607 or §351.608;
(5) Information on reemployment rights, except as permitted by §351.803(a); and
(6) The employee's right, as applicable, to appeal to the Merit Systems Protection Board under the provisions of the Board's regulations or to grieve under a negotiated grievance procedure. The agency shall also comply with §1201.21 of this title.
(b) When an agency issues an employee a notice, the agency must, upon the employee's request, provide the employee with a copy of OPM's retention regulations found in part 351 of this chapter.
[60 FR 2678, Jan. 11, 1995, as amended at 60 FR 44254, Aug. 25, 1995; 62 FR 62502, Nov. 24, 1997; 63 FR 32595, June 15, 1998]
§ 351.803 Notice of eligibility for reemployment and other placement assistance.
(a) An employee who receives a specific notice of separation under this part must be given information concerning the right to reemployment consideration and career transition assistance under subparts B (Reemployment Priority List), F, and G (Career Transition Assistance Programs) of part 330 of this chapter. The employee must also be given a release to authorize, at his or her option, the release of his or her resume and other relevant employment information for employment referral to the State unit or entity established under title I of the Workforce Investment Act of 1998 and potential public or private sector employers. The employee must also be given information concerning how to apply both for unemployment insurance through the appropriate State program and benefits available under the State's Workforce Investment Act of 1998 programs, and an estimate of severance pay (if eligible).
(b) When 50 or more employees in a competitive area receive separation notices under this part, the agency must provide written notification of the action, at the same time it issues specific notices of separation to employees, to:
(1) The State or the entity designated by the State to carry out rapid response activities under title I of the Workforce Investment Act of 1998;
(2) The chief elected official of local government(s) within which these separations will occur; and
(3) OPM.
(c) The notice required by paragraph (b) of this section must include:
(1) The number of employees to be separated from the agency by reduction in force (broken down by geographic area or other basis specified by OPM);
(2) The effective date of the separations; and
(3) Any other information specified by OPM, including information needs identified from consultation between OPM and the Department of Labor to facilitate delivery of placement and related services.
[60 FR 2679, Jan. 11, 1995, as amended at 62 FR 62502, Nov. 24, 1997; 65 FR 64133, Oct. 26, 2000]
§ 351.804 Expiration of notice.
(a) A notice expires when followed by the action specified, or by an action less severe than specified, in the notice or in an amendment made to the notice before the agency takes the action.
(b) An agency may not take the action before the effective date in the notice; instead, the agency may cancel the reduction in force notice and issue a new notice subject to this subpart.
[62 FR 62502, Nov. 24, 1997]
§ 351.805 New notice required.
(a) An employee is entitled to a written notice of at least 60 full days if the agency decides to take an action more severe than first specified.
(b) An agency must give an employee an amended written notice if the reduction in force is changed to a later date. A reduction in force action taken after the date specified in the notice given to the employee is not invalid for that reason, except when it is challenged by a higher-standing employee in the competitive level who is reached out of order for a reduction in force action as a result of the change in dates.
(c) An agency must give an employee an amended written notice and allow the employee to decide whether to accept a better offer of assignment under subpart G of this part that becomes available before or on the effective date of the reduction in force. The agency must give the employee the amended notice regardless of whether the employee has accepted or rejected a previous offer of assignment, provided that the employee has not voluntarily separated from his or her official position.
[62 FR 62502, Nov. 24, 1997, as amended at 65 FR 25623, May 3, 2000]
§ 351.806 Status during notice period.
When possible, the agency shall retain the employee on active duty status during the notice period. When in an emergency the agency lacks work or funds for all or part of the notice period, it may place the employee on annual leave with or without his or her consent, or leave without pay with his or her consent, or in a nonpay status without his or her consent.
§ 351.807 Certification of Expected Separation.
(a) For the purpose of enabling otherwise eligible employees to be considered for eligibility to participate in dislocated worker programs under the Workforce Investment Act of 1998 administered by the U.S. Department of Labor, an agency may issue a Certificate of Expected Separation to a competing employee who the agency believes, with a reasonable degree of certainty, will be separated from Federal employment by reduction in force procedures under this part. A certification may be issued up to 6 months prior to the effective date of the reduction in force.
(b) This certification may be issued to a competing employee only when the agency determines:
(1) There is a good likelihood the employee will be separated under this part;
(2) Employment opportunities in the same or similar position in the local commuting area are limited or nonexistent;
(3) Placement opportunities within the employee's own or other Federal agencies in the local commuting area are limited or nonexistent; and
(4) If eligible for optional retirement, the employee has not filed a retirement application or otherwise indicated in writing an intent to retire.
(c) A certification is to be addressed to each individual eligible employee and must be signed by an appropriate agency official. A certification must contain the expected date of reduction in force, a statement that each factor in paragraph (b) of this section has been satisfied, and a description of Workforce Investment Act of 1998, title I, programs, the Interagency Placement Program, and the Reemployment Priority List.
(d) A certification may not be used to satisfy any of the notice requirements elsewhere in this subpart.
(e) An agency determination of eligibility for certification may not be appealed to OPM or the Merit Systems Protection Board.
(f) An agency may also enroll eligible employees on the agency's Reemployment Priority List up to 6 months in advance of a reduction in force. For requirements and criteria, see subpart B of part 330 of this chapter.
[60 FR 2678, Jan. 11, 1995, as amended at 60 FR 44254, Aug. 25, 1995; 65 FR 64134, Oct. 26, 2000; 66 FR 29896, June 4, 2001]
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