5 C.F.R. Subpart F—Workforce Shaping
Title 5 - Administrative Personnel
This subpart contains the regulations implementing the provisions of 5 U.S.C. 9902(k) concerning the Department's system for realigning, reorganizing, and reshaping its workforce. This subpart applies to categories of positions and employees affected by such actions resulting from the planned elimination, addition, or redistribution of functions, duties, or skills within or among organizational units, including realigning, reshaping, delayering, and similar organizational-based restructuring actions. This subpart does not apply to actions involving the conduct and/or performance of individual employees, which are covered by subpart G of this part. When a specified category of employees is covered by the system established under this subpart, the provisions of 5 U.S.C. 3501 through 3503 (except with respect to veterans' preference) are modified and replaced with respect to that category, except as otherwise specified in this subpart. In accordance with §9901.105, the Secretary will prescribe implementing issuances to carry out the provisions of this subpart. In this subpart: Competing employee means a career employee (including an employee serving an initial probationary period), an employee serving on a term appointment, and other employees as identified in implementing issuances. Competitive area means the boundaries within which employees compete for retention under this subpart, based on factors described in §9901.605(a). Competitive group means employees within a competitive area who are on a common retention list for the purpose of exercising displacement rights. Displacement right means the right of an employee who is displaced from his or her present position because of position abolishment, or because of displacement resulting from the abolishment of a higher-standing employee on the retention list, to displace a lower-standing employee on the list on the basis of the retention factors. Modal rating means, for the purpose of reduction in force, the rating of record that occurs most frequently in a particular competitive group. Notice means a written communication to an individual employee stating that the employee will be displaced from his or her position as a result of a reduction in force action under this subpart. Rating of record has the meaning given that term in §9901.103. Retention factors means tenure, veterans' preference, performance, length of service, and such other factors as the Secretary considers necessary and appropriate to rank employees within a particular retention list. Retention list means a list of all competing employees occupying positions in the competitive area, who are grouped in the same competitive group on the basis of retention factors. While all positions in the competitive group are listed, only competing employees have retention standing. Tenure group means a group of employees with a given appointment type. In a reduction in force, employees are first placed in a tenure group and then ranked within that group according to other retention factors. Undue interruption means a degree of interruption that would prevent the completion of required work by an employee within 90 days after the employee has been placed in a different position. (a) Employees covered. The following employees and positions in DoD organizational and functional units are eligible for coverage under this subpart: (1) Employees and positions who would otherwise be covered by 5 U.S.C. chapter 35 (excluding members of the Senior Executive Service and employees who are excluded from coverage by other statutory authority); and (2) Such others designated by the Secretary as DoD may be authorized to include under 5 U.S.C. 9902. (b) Actions covered—(1) Reduction in force. This subpart will apply when a displacement action occurs within a retention list or when releasing a competing employee from a retention list by separation, reduction in band, or assignment involving displacement, and the release results from an action described in §9901.601. (2) Transfer of function. The Secretary will issue implementing issuances consistent with 5 U.S.C. 3503 prescribing procedures to be used when a function transfers from one competitive area to a different competitive area. (3) Furlough. The provisions in 5 CFR 351.604 will apply when furloughing a competing employee for more than 30 consecutive calendar days, or more than 22 workdays in 1 calendar year if done on a discontinuous basis, except as otherwise provided in this subpart. (c) Actions excluded. This subpart does not apply to— (1) The termination of a temporary promotion or temporary reassignment and the subsequent return of an employee to the position held before the temporary promotion or temporary reassignment (or to a position with comparable pay band, pay, status, and tenure); (2) A reduction in band based on the reclassification of an employee's position due to the application of new classification standards or the correction of a classification error or classification actions covered under §9901.222; (3) Placement of an employee serving on a seasonal basis in a nonpay, nonduty status in accordance with conditions established at time of appointment; (4) A change in an employee's work schedule from other-than-full-time to full-time; (5) A change in an employee's mixed tour work schedule in accordance with conditions established at time of appointment; (6) A change in the scheduled tour of duty of an other-than-full-time schedule; (7) A reduction in band based on the reclassification of an employee's position due to erosion of duties, except that this exclusion does not apply to such reclassification actions that will take effect after an agency has formally announced a reduction in force in the employee's competitive area and when the reduction in force will take effect within 180 days; or (8) Any other personnel action not covered by paragraph (b) of this section. (a) Basis for competitive area. The Secretary may establish a competitive area on the basis of one or more of the following considerations: (1) Geographical location(s); (2) Line(s) of business; (3) Product line(s); (4) Organizational unit(s); and (5) Funding line(s). (b) Employees included in competitive area. A competitive area will include all competing employees holding official positions of record in the defined competitive area. (c) Review of competitive area determinations. The Secretary will make all competitive area definitions available for review. (d) Change of competitive area. Competitive areas will be established for a minimum of 90 days before the effective date of a reduction in force. In implementing issuances, the Secretary will establish approval procedure requirements for any competitive area identified less than 90 days before the effective date of a reduction in force. (e) Limitations. The Secretary will establish a competitive area only on the basis of legitimate organizational reasons, and competitive areas will not be used for the purpose of targeting an individual employee for reduction in forces on the basis of nonmerit factors. (f) Bar on collective bargaining. Pursuant to 5 U.S.C. 9902(f)(4) and (m)(7), the establishment of a competitive area under the authority of this subpart is not subject to collective bargaining. (a) The Secretary will establish separate competitive groups for employees— (1) In the excepted and competitive service; (2) Under different excepted service appointment authorities; and (3) With different work schedules (e.g., full-time, part-time, seasonal, intermittent). (b) The Secretary may further define competitive groups on the basis of one or more of the following considerations: (1) Career group; (2) Pay schedule; (3) Occupational series or specialty; (4) Pay band; or (5) Trainee status. (c) An employee is placed into a competitive group based on the employee's official position of record. An employee's official position description may be supplemented with other applicable records that document the employee's actual duties and responsibilities. (d) The competitive group includes the official positions of employees on a detail or other nonpermanent assignment to a different position from the competitive group. (e) Pursuant to 5 U.S.C. 9902(f)(4) and (m)(7), the establishment of a competitive group under the authority of this subpart is not subject to collective bargaining. (a) Retention list. Within each competitive group, the Secretary will establish a retention list of competing employees in descending order based on the following: (1) Tenure, with career employees listed first, followed by employees serving an initial probationary period, and then followed by employees on term appointments and other employees as identified in implementing issuances; (2) Veterans' preference, in accordance with the preference requirements in 5 CFR 351.501(c) and (d), including the preference restrictions found in 5 U.S.C. 3501(a); (3) The ratings of record, as determined in accordance with implementing issuances; (4) Creditable civilian and/or uniformed service in accordance with 5 U.S.C. 3502(a)(A) and (B) and 5 CFR 351.503, but without regard to provisions covering additional service credit for performance in 5 CFR 351.503(c)(3) and (e); and (5) The Secretary may establish tie-breaking procedures when two or more employees have the same retention standing. (b) Active uniformed service member not on list. The retention list does not include the name of an employee who, on the effective date of the reduction in force, is on active duty in the uniformed services with a restoration right under 5 CFR part 353. (c) Access to retention list. An employee who received a specific reduction in force notice and the employee's representative have access to the applicable retention list in accordance with 5 CFR 351.505. Where 5 CFR 351.505 uses the terms “competitive level” or “retention register,” the term retention list (as defined in this subpart) is substituted. (a) Displacement to other positions on the retention list. (1) An employee who is displaced because of position abolishment, or because of displacement resulting from the abolishment of the position of a higher-standing employee on the retention list, may displace a lower-standing employee on the list if— (i) The higher-standing employee is qualified for the position consistent, as applicable, with 5 CFR 351.702, or the Department's own qualifications applied consistent with other requirements in 5 CFR 351.702; (ii) No undue interruption would result from the displacement; and (iii) The position of the lower-standing employee is in the same pay band, or in a lower pay band, as the position of the higher-standing employee. (2) A displacing employee retains his or her status and tenure. (b) Release from the retention list. (1) Employees are selected for release from the list on the basis of the ascending order of retention standing set forth in §9901.607(a). (2) A competing employee may not be released from a retention list that contains a position held by a temporary employee when the competing employee is qualified to perform in that position under §9901.608(a)(1)(i). (3) The release of an employee from the retention list may be temporarily postponed when appropriate under 5 CFR 351.506, 351.606, 351.607, and 351.608. Where part 351 uses the term “competitive level” in these four sections, the term retention list (as defined in this subpart) is substituted. (c) Placement in vacant positions. At the Secretary's option, an employee affected by §9901.608(a)(1) may be offered a vacant position within the competitive area in lieu of reduction in force, based on relative retention standing as specified in §9901.607(a). (d) Actions for employees with no offer. If a released employee does not receive an offer of another position under paragraph (c) of this section to a position on a different retention list, the Secretary may— (1) Separate the employee by reduction in force; or (2) Furlough the employee under §9901.604(b)(3). The Secretary will provide a specific written notice to each employee reached for an action in reduction in force competition at least 60 days before the reduction in force becomes effective. When a reduction in force is caused by circumstances not reasonably foreseeable, the Secretary, at the request of a Component 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. The content of the notice will be prescribed in implementing issuances. (a) The Secretary may— (1) Separate from the service any employee who volunteers to be separated even though the employee is not otherwise subject to separation due to a reduction in force; and (2) For each employee voluntarily separated under paragraph (a)(1) of this section, retain an employee in a similar position who would otherwise be separated due to a reduction in force. (b) The separation of an employee under paragraph (a) of this section will be treated as an involuntary separation due to a reduction in force. (a) An employee who believes the provisions of this subpart were not properly applied may appeal the reduction in force action to the Merit Systems Protection Board as provided for in 5 CFR 351.901 if the employee was— (1) Separated by reduction in force; (2) Reduced in band by reduction in force; or (3) Furloughed by reduction in force under §9901.604(b)(3). (b) Paragraph (a) of this section does not apply to actions taken under internal DoD placement programs, including the DoD Priority Placement Program.
Title 5: Administrative Personnel
PART 9901—DEPARTMENT OF DEFENSE HUMAN RESOURCES MANAGEMENT AND LABOR RELATIONS SYSTEMS
Subpart F—Workforce Shaping
§ 9901.601 Purpose and applicability.
§ 9901.602 Scope of authority.
§ 9901.603 Definitions.
§ 9901.604 Coverage.
§ 9901.605 Competitive area.
§ 9901.606 Competitive group.
§ 9901.607 Retention standing.
§ 9901.608 Displacement, release, and position offers.
§ 9901.609 Reduction in force notices.
§ 9901.610 Voluntary separation.
§ 9901.611 Reduction in force appeals.
