5 U.S. Code § 2302 - Prohibited personnel practices | U.S. Code | US Law | LII / Legal Information Institute

5 U.S. Code § 2302 - Prohibited personnel practices | U.S. Code | US Law | LII / Legal Information Institute
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5 U.S. Code § 2302 - Prohibited personnel practices
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(a)
(1)
For the purpose of this title, “
prohibited personnel practice
” means any action described in subsection (b).
(2)
For the purpose of this section—
(A)
personnel action
” means—
(i)
an appointment;
(ii)
a promotion;
(iii)
an action under
chapter 75 of this title
or other disciplinary or corrective action;
(iv)
a detail, transfer, or reassignment;
(v)
a reinstatement;
(vi)
a restoration;
(vii)
a reemployment;
(viii)
a performance evaluation under
chapter 43 of this title
or under title 38;
(ix)
a decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action described in this subparagraph;
(x)
a decision to order psychiatric testing or examination;
(xi)
the implementation or enforcement of any nondisclosure policy, form, or agreement; and
(xii)
any other significant change in duties, responsibilities, or working conditions;
with respect to an employee in, or applicant for, a
covered position
in an
agency,
and in the case of an alleged
prohibited personnel practice
described in subsection (b)(8), an employee or applicant for employment in a Government corporation as defined in
section 9101 of title 31
(B)
covered position
” means, with respect to any
personnel action,
any position in the competitive service, a career appointee position in the Senior Executive Service, or a position in the excepted service, but does not include any position which is, prior to the
personnel action—
(i)
excepted from the competitive service because of its confidential, policy-determining, policy-making, or policy-advocating character; or
(ii)
excluded from the coverage of this section by the President based on a determination by the President that it is necessary and warranted by conditions of good administration;
(C)
agency
” means an Executive
agency
and the Government Publishing Office, but does not include—
(i)
a Government corporation, except in the case of an alleged
prohibited personnel practice
described under subsection (b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D);
(ii)
(I)
the
Federal Bureau of Investigation
, the
Central Intelligence Agency
, the
Defense Intelligence Agency
, the
National Geospatial-Intelligence Agency
, the National Security
Agency,
the
Office of the Director of National Intelligence
, and the National Reconnaissance Office; and
(II)
as determined by the President, any executive
agency
or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities, provided that the determination be made prior to a
personnel action
; or
(iii)
the
Government Accountability Office
; and
(D)
disclosure
” means a formal or informal communication or transmission, but does not include a communication concerning policy decisions that lawfully exercise discretionary authority unless the employee or applicant providing the
disclosure
reasonably believes that the
disclosure
evidences—
(i)
any violation of any law, rule, or regulation; or
(ii)
gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
(b)
Any employee who has authority to take, direct others to take, recommend, or approve any
personnel action
, shall not, with respect to such authority—
(1)
discriminate for or against any employee or applicant for employment—
(A)
on the basis of race, color, religion, sex, or national origin, as prohibited under section 717 of the
Civil Rights Act of 1964
42 U.S.C. 2000e–16
);
(B)
on the basis of age, as prohibited under sections 12 and 15 of the
Age Discrimination in Employment Act of 1967
29 U.S.C. 631
, 633a);
(C)
on the basis of sex, as prohibited under section 6(d) of the
Fair Labor Standards Act of 1938
29 U.S.C. 206(d)
);
(D)
on the basis of handicapping condition, as prohibited under section 501 of the
Rehabilitation Act of 1973
29 U.S.C. 791
); or
(E)
on the basis of marital status or political affiliation, as prohibited under any law, rule, or regulation;
(2)
solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests or is under consideration for any
personnel action
unless such recommendation or statement is based on the personal knowledge or records of the person furnishing it and consists of—
(A)
an evaluation of the work performance, ability, aptitude, or general qualifications of such individual; or
(B)
an evaluation of the character, loyalty, or suitability of such individual;
(3)
coerce the political activity of any person (including the providing of any political contribution or service), or take any action against any employee or applicant for employment as a reprisal for the refusal of any person to engage in such political activity;
(4)
deceive or willfully obstruct any person with respect to such person’s right to compete for employment;
(5)
influence any person to withdraw from competition for any position for the purpose of improving or injuring the prospects of any other person for employment;
(6)
grant any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment (including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment;
(7)
appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position any individual who is a relative (as defined in
section 3110(a)(3) of this title
) of such employee if such position is in the
agency
in which such employee is serving as a public official (as defined in
section 3110(a)(2) of this title
) or over which such employee exercises jurisdiction or control as such an official;
(8)
take or fail to take, or threaten to take or fail to take, a
personnel action
with respect to any employee or applicant for employment because of—
(A)
any
disclosure
of information by an employee or applicant which the employee or applicant reasonably believes evidences—
(i)
any violation of any law, rule, or regulation, or
(ii)
gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety,
if such
disclosure
is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs;
(B)
any
disclosure
to the Special Counsel, or to the Inspector General of an
agency
or another employee designated by the head of the
agency
to receive such
disclosures
, of information which the employee or applicant reasonably believes evidences—
(i)
any violation (other than a violation of this section) of any law, rule, or regulation, or
(ii)
gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; or
(C)
any
disclosure
to
Congress
(including any committee of
Congress
) by any employee of an
agency
or applicant for employment at an
agency
of information described in subparagraph (B) that is—
(i)
not classified; or
(ii)
if classified—
(I)
has been classified by the head of an
agency
that is not an element of the intelligence community (as defined by section 3 of the
National Security Act of 1947
50 U.S.C. 3003
)); and
(II)
does not reveal intelligence sources and methods.
[1]
(9)
take or fail to take, or threaten to take or fail to take, any
personnel action
against any employee or applicant for employment because of—
(A)
the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation—
(i)
with regard to remedying a violation of paragraph (8); or
(ii)
other than with regard to remedying a violation of paragraph (8);
(B)
testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (A)(i) or (ii);
(C)
cooperating with or disclosing information to the Inspector General (or any other component responsible for internal investigation or review) of an
agency
, or the Special Counsel, in accordance with applicable provisions of law; or
(D)
refusing to obey an order that would require the individual to violate a law, rule, or regulation;
(10)
discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others; except that nothing in this paragraph shall prohibit an
agency
from taking into account in determining suitability or fitness any conviction of the employee or applicant for any crime under the laws of any State, of the District of Columbia, or of the United States;
(11)
(A)
knowingly take, recommend, or approve any
personnel action
if the taking of such action would violate a
veterans’ preference requirement
; or
(B)
knowingly fail to take, recommend, or approve any
personnel action
if the failure to take such action would violate a
veterans’ preference requirement
(12)
take or fail to take any other
personnel action
if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in
section 2301 of this title
(13)
implement or enforce any nondisclosure policy, form, or agreement, if such policy, form, or agreement—
(A)
does not contain the following statement: “These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to
Congress
, (3) the reporting to an Inspector General or the
Office of Special Counsel
of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.”; or
(B)
prohibits or restricts an employee or applicant for employment from disclosing to
Congress
, the Special Counsel, the Inspector General of an
agency,
or any other
agency
component responsible for internal investigation or review any information that relates to any violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or any other whistleblower protection; or
(14)
access the medical record of another employee or an applicant for employment as a part of, or otherwise in furtherance of, any conduct described in paragraphs (1) through (13).
This subsection shall not be construed to authorize the withholding of information from
Congress
or the taking of any
personnel action
against an employee who discloses information to
Congress
. For purposes of paragraph (8), (i) any presumption relating to the performance of a duty by an employee whose conduct is the subject of a
disclosure
as defined under subsection (a)(2)(D) may be rebutted by substantial evidence, and (ii) a determination as to whether an employee or applicant reasonably believes that such employee or applicant has disclosed information that evidences any violation of law, rule, regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety shall be made by determining whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee or applicant could reasonably conclude that the actions of the Government evidence such violations, mismanagement, waste, abuse, or danger.
(c)
(1)
In this subsection—
(A)
the term “
new employee
” means an individual—
(i)
appointed to a position as an employee on or after the date of enactment of this subsection; and
(ii)
who has not previously served as an employee; and
(B)
the term “
whistleblower protections
” means the protections against and remedies for a
prohibited personnel practice
described in paragraph (8) or subparagraph (A)(i), (B), (C), or (D) of paragraph (9) of subsection (b).
(2)
The head of each
agency
shall be responsible for—
(A)
preventing
prohibited personnel practices
(B)
complying with and enforcing applicable civil service laws, rules, and regulations and other aspects of personnel management; and
(C)
ensuring, in consultation with the Special Counsel and the Inspector General of the
agency
, that employees of the
agency
are informed of the rights and remedies available to the employees under this chapter and chapter 12, including—
(i)
information with respect to
whistleblower protections
available to
new employees
during a probationary period;
(ii)
the role of the
Office of Special Counsel
and the
Merit Systems Protection Board
with respect to
whistleblower protections;
and
(iii)
the means by which, with respect to information that is otherwise required by law or Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs, an employee may make a lawful
disclosure
of the information to—
(I)
the Special Counsel;
(II)
the Inspector General of an
agency
(III)
Congress
(including any committee of
Congress
with respect to information that is not classified or, if classified, has been classified by the head of an
agency
that is not an element of the intelligence community and does not reveal intelligence sources and methods); or
(IV)
another employee of the
agency
who is designated to receive such a
disclosure
(3)
The head of each
agency
shall ensure that the information described in paragraph (2) is provided to each
new employee
of the
agency
not later than 180 days after the date on which the
new employee
is appointed.
(4)
The head of each
agency
shall make available information regarding
whistleblower protections
applicable to employees of the
agency
on the public website of the
agency
and on any online portal that is made available only to employees of the
agency,
if such portal exists.
(5)
Any employee to whom the head of an
agency
delegates authority for any aspect of personnel management shall, within the limits of the scope of the delegation, be responsible for the activities described in paragraph (2).
(d)
This section shall not be construed to extinguish or lessen any effort to achieve equal employment opportunity through affirmative action or any right or remedy available to any employee or applicant for employment in the civil service under—
(1)
section 717 of the
Civil Rights Act of 1964
42 U.S.C. 2000e–16
), prohibiting discrimination on the basis of race, color, religion, sex, or national origin;
(2)
sections 12 and 15 of the
Age Discrimination in Employment Act of 1967
29 U.S.C. 631
, 633a), prohibiting discrimination on the basis of age;
(3)
under section 6(d) of the
Fair Labor Standards Act of 1938
29 U.S.C. 206(d)
), prohibiting discrimination on the basis of sex;
(4)
section 501 of the
Rehabilitation Act of 1973
29 U.S.C. 791
), prohibiting discrimination on the basis of handicapping condition; or
(5)
the provisions of any law, rule, or regulation prohibiting discrimination on the basis of marital status or political affiliation.
(e)
(1)
For the purpose of this section, the term “
veterans’ preference requirement
” means any of the following provisions of law:
(A)
Sections 2108, 3305(b), 3309, 3310, 3311, 3312, 3313, 3314, 3315, 3316, 3317(b), 3318, 3320, 3351, 3352, 3363, 3501, 3502(b), 3504, and 4303(e) and (with respect to a preference eligible referred to in section 7511(a)(1)(B)) subchapter II of chapter 75 and section 7701.
(B)
Sections 943(c)(2) and 1784(c) of title 10.
(C)
Section 1308(b) of the
Alaska National Interest Lands Conservation Act
(D)
Section 301(c) of the
Foreign Service Act of 1980
(E)
Sections 106(f),
[2]
7281(e), and 7802(5)
[2]
of title 38.
(F)
Section 1005(a) of title 39
(G)
Any other provision of law that the Director of the
Office of Personnel Management
designates in regulations as being a
veterans’ preference requirement
for the purposes of this subsection.
(H)
Any regulation prescribed under subsection (b) or (c) of section 1302 and any other regulation that implements a provision of law referred to in any of the preceding subparagraphs.
(2)
Notwithstanding any other provision of this title, no authority to order corrective action shall be available in connection with a
prohibited personnel practice
described in subsection (b)(11). Nothing in this paragraph shall be considered to affect any authority under section 1215 (relating to disciplinary action).
(f)
(1)
disclosure
shall not be excluded from subsection (b)(8) because—
(A)
the
disclosure
was made to a supervisor or to a person who participated in an activity that the employee or applicant reasonably believed to be covered by subsection (b)(8)(A)(i) and (ii);
(B)
the
disclosure
revealed information that had been previously disclosed;
(C)
of the employee’s or applicant’s motive for making the
disclosure
(D)
the
disclosure
was not made in writing;
(E)
the
disclosure
was made while the employee was off duty;
(F)
the
disclosure
was made before the date on which the individual was appointed or applied for appointment to a position; or
(G)
of the amount of time which has passed since the occurrence of the events described in the
disclosure
(2)
If a
disclosure
is made during the normal course of duties of an employee, the principal job function of whom is to regularly investigate and disclose wrongdoing (referred to in this paragraph as the “disclosing employee”), the
disclosure
shall not be excluded from subsection (b)(8) if the disclosing employee demonstrates that an employee who has the authority to take, direct other individuals to take, recommend, or approve any
personnel action
with respect to the disclosing employee took, failed to take, or threatened to take or fail to take a
personnel action
with respect to the disclosing employee in reprisal for the
disclosure
made by the disclosing employee.
(Added
Pub. L. 95–454, title I, § 101(a)
Oct. 13, 1978
92 Stat. 1114
; amended
Pub. L. 101–12, § 4
Apr. 10, 1989
103 Stat. 32
Pub. L. 101–474, § 5(d)
Oct. 30, 1990
104 Stat. 1099
Pub. L. 102–378, § 2(5)
Oct. 2, 1992
106 Stat. 1346
Pub. L. 103–94, § 8(c)
Oct. 6, 1993
107 Stat. 1007
Pub. L. 103–359, title V, § 501(c)
Oct. 14, 1994
108 Stat. 3429
Pub. L. 103–424, § 5
Oct. 29, 1994
108 Stat. 4363
Pub. L. 104–197, title III, § 315(b)(2)
Sept. 16, 1996
110 Stat. 2416
Pub. L. 104–201, div. A, title XI, § 1122(a)(1)
, title XVI, § 1615(b),
Sept. 23, 1996
110 Stat. 2687
, 2741;
Pub. L. 105–339, § 6(a)
, (b), (c)(2),
Oct. 31, 1998
112 Stat. 3187
, 3188;
Pub. L. 108–271, § 8(b)
July 7, 2004
118 Stat. 814
Pub. L. 110–417
, [div. A], title IX, § 931(a)(1),
Oct. 14, 2008
122 Stat. 4575
Pub. L. 112–199, title I
, §§ 101(a), (b)(1)(B), (2)(B), (C), 102–104(b)(1), 105, 112,
Nov. 27, 2012
126 Stat. 1465–1468
, 1472;
Pub. L. 112–277, title V, § 505(a)
Jan. 14, 2013
126 Stat. 2478
Pub. L. 113–235, div. H, title I, § 1301(b)
Dec. 16, 2014
128 Stat. 2537
Pub. L. 114–113, div. J, title II, § 238
Dec. 18, 2015
129 Stat. 2700
Pub. L. 115–40, § 2
June 14, 2017
131 Stat. 861
Pub. L. 115–73, title I
, §§ 103, 107(a)(1),
Oct. 26, 2017
131 Stat. 1236
, 1238;
Pub. L. 115–91, div. A, title X, § 1097(b)(1)(B)
, (c)(1),
Dec. 12, 2017
131 Stat. 1616
, 1618;
Pub. L. 116–92, div. E, title LVII, § 5721
Dec. 20, 2019
133 Stat. 2175
Pub. L. 116–283, div. A, title XI, § 1138
Jan. 1, 2021
134 Stat. 3905
.)
[1]
So in original. The period probably should be a semicolon.
[2]
See References in Text note below.
Editorial Notes
References in Text
Section 1308(b) of the
Alaska National Interest Lands Conservation Act
, referred to in subsec. (e)(1)(C), is classified to
section 3198(b) of Title 16
, Conservation.
Section 301(c) of the
Foreign Service Act of 1980
, referred to in subsec. (e)(1)(D), is classified to
section 3941(c) of Title 22
, Foreign Relations and Intercourse.
Section 106(f) of title 38
, referred to in subsec. (e)(1)(E), was enacted subsequent to the enactment of subsec. (e) of this section.
Section 7802(5) of title 38
, referred to in subsec. (e)(1)(E), was redesignated
section 7802(e) of title 38
by
Pub. L. 108–170, title III, § 304(b)(3)
Dec. 6, 2003
117 Stat. 2059
Amendments
2021—Subsec. (b)(13).
Pub. L. 116–283
substituted “agreement—” for “agreement”, designated remainder of existing provisions as subpar. (A), inserted “or the
Office of Special Counsel
” after “Inspector General”, and added subpar. (B).
2019—Subsec. (b)(8)(C).
Pub. L. 116–92, § 5721(1)
, added subpar. (C).
Subsec. (c)(2)(C)(iii)(III).
Pub. L. 116–92, § 5721(2)
, inserted “(including any committee of
Congress
with respect to information that is not classified or, if classified, has been classified by the head of an
agency
that is not an element of the intelligence community and does not reveal intelligence sources and methods)” after “
Congress
”.
2017—Subsec. (b)(9)(C).
Pub. L. 115–91, § 1097(c)(1)(A)
, inserted “(or any other component responsible for internal investigation or review)” after “Inspector General”.
Subsec. (b)(9)(D).
Pub. L. 115–40
struck out “for” after “(D)” and inserted “, rule, or regulation” after “a law”.
Subsec. (b)(14).
Pub. L. 115–73, § 103
, added par. (14).
Subsecs. (c) to (f).
Pub. L. 115–91, § 1097(b)(1)(B)
, added subsec. (c) and redesignated former subsecs. (c) to (e) as (d) to (f), respectively.
Pub. L. 115–73, § 107(a)(1)
, redesignated subsecs. (d) to (f) as (c) to (e), respectively, and struck out former subsec. (c) which read as follows: “The head of each
agency
shall be responsible for the prevention of
prohibited personnel practices,
for the compliance with and enforcement of applicable civil service laws, rules, and regulations, and other aspects of personnel management, and for ensuring (in consultation with the
Office of Special Counsel
) that
agency
employees are informed of the rights and remedies available to them under this chapter and chapter 12 of this title, including how to make a lawful
disclosure
of information that is specifically required by law or Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs to the Special Counsel, the Inspector General of an
agency,
Congress
, or other
agency
employee designated to receive such
disclosures.
Any individual to whom the head of an
agency
delegates authority for personnel management, or for any aspect thereof, shall be similarly responsible within the limits of the delegation.”
Subsec. (f)(1)(F), (G).
Pub. L. 115–91, § 1097(c)(1)(B)(i)
, added subpar. (F) and redesignated former subpar. (F) as (G).
Subsec. (f)(2).
Pub. L. 115–91, § 1097(c)(1)(B)(ii)
, added par. (2) and struck out former par. (2) which read as follows: “If a
disclosure
is made during the normal course of duties of an employee, the
disclosure
shall not be excluded from subsection (b)(8) if any employee who has authority to take, direct others to take, recommend, or approve any
personnel action
with respect to the employee making the
disclosure,
took, failed to take, or threatened to take or fail to take a
personnel action
with respect to that employee in reprisal for the
disclosure.
2015—Subsec. (a)(2)(A)(viii).
Pub. L. 114–113
inserted “or under title 38” after “chapter 43 of this title”.
2013—Subsec. (a)(2)(C)(ii).
Pub. L. 112–277
added cl. (ii) and struck out former cl. (ii) which read as follows:
“(I) the
Federal Bureau of Investigation
, the
Central Intelligence Agency
, the
Defense Intelligence Agency
, the
National Geospatial-Intelligence Agency
, the National Security
Agency,
the
Office of the Director of National Intelligence
, and the National Reconnaissance Office; and
“(II) as determined by the President, any Executive
agency
or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities, provided that the determination be made prior to a
personnel action
; or”.
2012—Subsec. (a)(2)(A)(xi), (xii).
Pub. L. 112–199, § 104(a)
, added cl. (xi) and redesignated former cl. (xi) as (xii).
Subsec. (a)(2)(C)(i).
Pub. L. 112–199, § 101(b)(1)(B)
, inserted “or section 2302(b)(9)(A)(i), (B), (C), or (D)” after “(b)(8)”.
Subsec. (a)(2)(C)(ii).
Pub. L. 112–199, § 105
, added cl. (ii) and struck out former cl. (ii) which read as follows: “the
Federal Bureau of Investigation
, the
Central Intelligence Agency
, the
Defense Intelligence Agency
, the
National Geospatial-Intelligence Agency
, the National Security
Agency,
and, as determined by the President, any Executive
agency
or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities; or”.
Subsec. (a)(2)(D).
Pub. L. 112–199, § 102
, added subpar. (D).
Subsec. (b).
Pub. L. 112–199, § 103
, amended concluding provisions generally. Prior to amendment, concluding provisions read as follows: “This subsection shall not be construed to authorize the withholding of information from the
Congress
or the taking of any
personnel action
against an employee who discloses information to the
Congress
.”
Subsec. (b)(8)(A)(i).
Pub. L. 112–199, § 101(a)(1)
, substituted “any violation” for “a violation”.
Subsec. (b)(8)(B)(i).
Pub. L. 112–199, § 101(a)(2)
, substituted “any violation (other than a violation of this section)” for “a violation”.
Subsec. (b)(9)(A).
Pub. L. 112–199, § 101(b)(2)(B)(i)
, added subpar. (A) and struck out former subpar. (A) read as follows: “the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation;”.
Subsec. (b)(9)(B).
Pub. L. 112–199, § 101(b)(2)(B)(ii)
, inserted “(i) or (ii)” after “subparagraph (A)”.
Subsec. (b)(13).
Pub. L. 112–199, § 104(b)(1)
, added par. (13).
Subsec. (c).
Pub. L. 112–199, § 112
, inserted “, including how to make a lawful
disclosure
of information that is specifically required by law or Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs to the Special Counsel, the Inspector General of an
agency,
Congress
, or other
agency
employee designated to receive such
disclosures”
after “chapter 12 of this title”.
Subsec. (f).
Pub. L. 112–199, § 101(b)(2)(C)
, added subsec. (f).
2008—Subsec. (a)(2)(C)(ii).
Pub. L. 110–417
substituted “
National Geospatial-Intelligence Agency
” for “National Imagery and Mapping
Agency”
2004—Subsec. (a)(2)(C)(iii).
Pub. L. 108–271
substituted “
Government Accountability Office
” for “General Accounting Office”.
1998—Subsec. (a)(1).
Pub. L. 105–339, § 6(c)(2)
, amended par. (1) generally. Prior to amendment, par. (1) read as follows: “For purposes of this title,
‘prohibited personnel practice’
means the following:
“(A) Any action described in subsection (b) of this section.
“(B) Any action or failure to act that is designated as a prohibited
personnel action
under
section 1599c(a) of title 10
.”
Subsec. (b)(10) to (12).
Pub. L. 105–339, § 6(a)
, struck out “or” at end of par. (10), added par. (11), and redesignated former par. (11) as (12).
Subsec. (e).
Pub. L. 105–339, § 6(b)
, added subsec. (e).
1996—Subsec. (a)(1).
Pub. L. 104–201, § 1615(b)
, amended par. (1) generally. Prior to amendment, par. (1) read as follows: “For the purpose of this title,
‘prohibited personnel practice’
means any action described in subsection (b) of this section.”
Subsec. (a)(2)(C)(ii).
Pub. L. 104–201, § 1122(a)(1)
, substituted “National Imagery and Mapping
Agency”
for “Central Imagery Office”.
Subsec. (b)(2).
Pub. L. 104–197
amended par. (2) generally. Prior to amendment, par. (2) read as follows: “solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests or is under consideration for any
personnel action
except as provided under section 3303(f);”.
1994—Subsec. (a)(2)(A).
Pub. L. 103–424, § 5(a)(3)
, in concluding provisions, inserted before semicolon “, and in the case of an alleged
prohibited personnel practice
described in subsection (b)(8), an employee or applicant for employment in a Government corporation as defined in
section 9101 of title 31
”.
Subsec. (a)(2)(A)(x), (xi).
Pub. L. 103–424, § 5(a)(1)
, (2), added cls. (x) and (xi) and struck out former cl. (x) which read as follows: “any other significant change in duties or responsibilities which is inconsistent with the employee’s salary or grade level;”.
Subsec. (a)(2)(B).
Pub. L. 103–424, § 5(b)
, amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: “
‘covered position’
means any position in the competitive service, a career appointee position in the Senior Executive Service, or a position in the excepted service, but does not include—
“(i) a position which is excepted from the competitive service because of its confidential, policy-determining, policy-making, or policy-advocating character; or
“(ii) any position excluded from the coverage of this section by the President based on a determination by the President that it is necessary and warranted by conditions of good administration.”
Subsec. (a)(2)(C)(i).
Pub. L. 103–424, § 5(c)
, inserted before semicolon “, except in the case of an alleged
prohibited personnel practice
described under subsection (b)(8)”.
Subsec. (a)(2)(C)(ii).
Pub. L. 103–359
inserted “the Central Imagery Office,” after “
Defense Intelligence Agency
,”.
Subsec. (c).
Pub. L. 103–424, § 5(d)
, inserted before period at end of first sentence “, and for ensuring (in consultation with the
Office of Special Counsel
) that
agency
employees are informed of the rights and remedies available to them under this chapter and chapter 12 of this title”.
1993—Subsec. (b)(2).
Pub. L. 103–94
amended par. (2) generally. Prior to amendment, par. (2) read as follows: “solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests or is under consideration for any
personnel action
unless such recommendation or statement is based on the personal knowledge or records of the person furnishing it and consists of—
“(A) an evaluation of the work performance, ability, aptitude, or general qualifications of such individual; or
“(B) an evaluation of the character, loyalty, or suitability of such individual;”.
1992—Subsec. (b)(8)(B).
Pub. L. 102–378
substituted “Special Counsel” for “Special Counsel of the
Merit Systems Protection Board
”.
1990—Subsec. (a)(2)(C).
Pub. L. 101–474
struck out “, the
Administrative Office of the United States Courts
,” after “means an Executive
agency”
1989—Subsec. (b)(8).
Pub. L. 101–12, § 4(a)
, in introductory provision inserted “, or threaten to take or fail to take,” after “fail to” and substituted “because of” for “as a reprisal for”, in subpar. (A) substituted “any
disclosure”
for “a
disclosure”
, in subpar. (A)(ii) inserted “gross” before “mismanagement”, in subpar. (B) substituted “any
disclosure”
for “a
disclosure”
, and in subpar. (B)(ii) inserted “gross” before “mismanagement”.
Subsec. (b)(9).
Pub. L. 101–12, § 4(b)
, amended par. (9) generally. Prior to amendment, par. (9) read as follows: “take or fail to take any
personnel action
against any employee or applicant for employment as a reprisal for the exercise of any appeal right granted by any law, rule, or regulation;”.
Statutory Notes and Related Subsidiaries
Change of Name
“Government Publishing Office” substituted for “
Government Printing Office
” in subsec. (a)(2)(C) on authority of
section 1301(b) of Pub. L. 113–235
, set out as a note preceding
section 301 of Title 44
, Public Printing and Documents.
Effective Date of 2012 Amendment
Amendment by
Pub. L. 112–199
effective 30 days after
Nov. 27, 2012
, see
section 202 of Pub. L. 112–199
, set out as a note under
section 1204 of this title
Effective Date of 1996 Amendment
Amendment by
section 1122(a)(1) of Pub. L. 104–201
effective
Oct. 1, 1996
, see
section 1124 of Pub. L. 104–201
, set out as a note under
section 193 of Title 10
, Armed Forces.
Pub. L. 104–197, title III, § 315(c)
Sept. 16, 1996
110 Stat. 2416
, provided that:
“This section [amending this section and
section 3303 of this title
] shall take effect 30 days after the date of the enactment of this Act [
Sept. 16, 1996
].”
Effective Date of 1993 Amendment; Savings Provision
Amendment by
Pub. L. 103–94
effective 120 days after
Oct. 6, 1993
, but not to release or extinguish any penalty, forfeiture, or liability incurred under amended provision, which is to be treated as remaining in force for purpose of sustaining any proper proceeding or action for enforcement of that penalty, forfeiture, or liability, and no provision of
Pub. L. 103–94
to affect any proceedings with respect to which charges were filed on or before 120 days after
Oct. 6, 1993
, with orders to be issued in such proceedings and appeals taken therefrom as if
Pub. L. 103–94
had not been enacted, see
section 12 of Pub. L. 103–94
, set out as an Effective Date; Savings Provision note under
section 7321 of this title
Effective Date of 1989 Amendment
Amendment by
Pub. L. 101–12
effective 90 days following
Apr. 10, 1989
, see
section 11 of Pub. L. 101–12
, set out as a note under
section 1201 of this title
Savings Provision
Pub. L. 112–199, title II, § 201
Nov. 27, 2012
126 Stat. 1475
, provided that:
“Nothing in this Act [see
section 1 of Pub. L. 112–199
, set out as a Short Title of 2012 Amendment note under
section 101 of this title
] shall be construed to imply any limitation on any protections afforded by any other provision of law to employees and applicants.”
Pub. L. 105–339, § 6(d)
Oct. 31, 1998
112 Stat. 3188
, provided that:
“This section [amending this section and repealing
section 1599c of Title 10
, Armed Forces] shall be treated as if it had never been enacted for purposes of any
personnel action
(within the meaning of
section 2302 of title 5
, United States Code) preceding the date of enactment of this Act [
Oct. 31, 1998
].”
Agency Websites
Pub. L. 112–199, title I, § 104(b)(2)
Nov. 27, 2012
126 Stat. 1467
, provided that:
“Agencies making use of any nondisclosure policy, form, or agreement shall also post the statement required under
section 2302(b)(13) of title 5
, United States Code (as added by this Act) on the
agency
website, accompanied by the specific list of controlling Executive orders and statutory provisions.”
Nondisclosure Policy, Form, or Agreement in Effect Before the Effective Date
Pub. L. 112–199, title I, § 104(b)(3)
Nov. 27, 2012
126 Stat. 1467
, provided that:
“With respect to a nondisclosure policy, form, or agreement that was in effect before the effective date of this Act [see Effective Date of 2012 Amendment note above], but that does not contain the statement required under
section 2302(b)(13) of title 5
, United States Code (as added by this Act) for implementation or enforcement—
“(A)
it shall not be a
prohibited personnel practice
to enforce that policy, form, or agreement with regard to a current employee if the
agency
gives such employee notice of the statement; and
“(B)
it shall not be a
prohibited personnel practice
to enforce that policy, form, or agreement after the effective date of this Act with regard to a former employee if the
agency
complies with paragraph (2) of this subsection [set out as a note above].”
Disclosure of Censorship Related to Research, Analysis, or Technical Information
Pub. L. 112–199, title I, § 110
Nov. 27, 2012
126 Stat. 1471
, as amended by
Pub. L. 115–73, title I, § 107(a)(2)(C)
Oct. 26, 2017
131 Stat. 1239
Pub. L. 115–91, div. A, title X, § 1097(b)(3)(C)
Dec. 12, 2017
131 Stat. 1618
, provided that:
“(a)
Definitions.—
In this subsection—
“(1)
the term ‘
agency
’ has the meaning given under
section 2302(a)(2)(C) of title 5
, United States Code;
“(2)
the term ‘applicant’ means an applicant for a
covered position
“(3)
the term ‘censorship related to research, analysis, or technical information’ means any effort to distort, misrepresent, or suppress research, analysis, or technical information;
“(4)
the term ‘
covered position
’ has the meaning given under
section 2302(a)(2)(B) of title 5
, United States Code;
“(5)
the term ‘employee’ means an employee in a
covered position
in an
agency;
and
“(6)
the term ‘
disclosure
’ has the meaning given under
section 2302(a)(2)(D) of title 5
, United States Code.
“(b)
Protected Disclosure.—
“(1)
In general.—
Any
disclosure
of information by an employee or applicant for employment that the employee or applicant reasonably believes is evidence of censorship related to research, analysis, or technical information—
“(A)
shall come within the protections of
section 2302(b)(8)(A) of title 5
, United States Code, if—
“(i)
the employee or applicant reasonably believes that the censorship related to research, analysis, or technical information is or will cause—
“(I)
any violation of law, rule, or regulation; or
“(II)
gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; and
“(ii)
such
disclosure
is not specifically prohibited by law or such information is not specifically required by Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs; and
“(B)
shall come within the protections of
section 2302(b)(8)(B) of title 5
, United States Code, if—
“(i)
the employee or applicant reasonably believes that the censorship related to research, analysis, or technical information is or will cause—
“(I)
any violation of law, rule, or regulation; or
“(II)
gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; and
“(ii)
the
disclosure
is made to the Special Counsel, or to the Inspector General of an
agency
or another person designated by the head of the
agency
to receive such
disclosures
, consistent with the protection of sources and methods.
“(2)
Disclosures not excluded.—
disclosure
shall not be excluded from paragraph (1) for any reason described under
section 2302(f)(1)
or (2) of title 5, United States Code.
“(3)
Rule of construction.—
Nothing in this section shall be construed to imply any limitation on the protections of employees and applicants afforded by any other provision of law, including protections with respect to any
disclosure
of information believed to be evidence of censorship related to research, analysis, or technical information.”
Nondisclosure Policies, Forms, and Agreements
Pub. L. 112–199, title I, § 115
Nov. 27, 2012
126 Stat. 1472
, provided that:
“(a)
In General.—
“(1)
Requirement.—
Each agreement in Standard Forms 312 and 4414 of the Government and any other nondisclosure policy, form, or agreement of the Government shall contain the following statement: ‘These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to
Congress
, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.’.
“(2)
Agency websites.—
Agencies making use of any nondisclosure policy, form, or agreement shall also post the statement required under paragraph (1) on the
agency
website, accompanied by the specific list of controlling Executive orders and statutory provisions.
“(3)
Enforceability.—
“(A)
In general.—
Any nondisclosure policy, form, or agreement described under paragraph (1) that does not contain the statement required under paragraph (1) may not be implemented or enforced to the extent such policy, form, or agreement is inconsistent with that statement.
“(B)
Nondisclosure policy, form, or agreement in effect before the effective date.—
With respect to a nondisclosure policy, form, or agreement that was in effect before the effective date of this Act [see Effective Date of 2012 Amendment note above], but that does not contain the statement required under paragraph (1) for implementation or enforcement—
“(i)
it shall not be a
prohibited personnel practice
to enforce that policy, form, or agreement with regard to a current employee if the
agency
gives such employee notice of the statement; and
“(ii)
it shall not be a
prohibited personnel practice
to enforce that policy, form, or agreement after the effective date of this Act with regard to a former employee if the
agency
complies with paragraph (2).
“(b)
Persons Other Than Government Employees.—
Notwithstanding subsection (a), a nondisclosure policy, form, or agreement that is to be executed by a person connected with the conduct of an intelligence or intelligence-related activity, other than an employee or officer of the United States Government, may contain provisions appropriate to the particular activity for which such document is to be used. Such policy, form, or agreement shall, at a minimum, require that the person will not disclose any classified information received in the course of such activity unless specifically authorized to do so by the United States Government. Such nondisclosure policy, form, or agreement shall also make it clear that such forms do not bar
disclosures
to
Congress
or to an authorized official of an executive
agency
or the
Department of Justice
that are essential to reporting a substantial violation of law, consistent with the protection of sources and methods.”
Executive Documents
Federal Benefits and Non-Discrimination
Memorandum of President of the United States,
June 17, 2009
, 74 F.R.
29393
, provided:
Memorandum for the Heads of Executive Departments and Agencies
Millions of hard-working, dedicated, and patriotic public servants are employed by the Federal Government as part of the civilian workforce, and many of these devoted Americans have same-sex domestic partners. Leading companies in the private sector are free to provide to same-sex domestic partners the same benefits they provide to married people of the opposite sex. Executive departments and agencies, however, may only provide benefits on that basis if they have legal authorization to do so. My Administration is not authorized by Federal law to extend a number of available Federal benefits to the same-sex partners of Federal employees. Within existing law, however, my Administration, in consultation with the Secretary of State, who oversees our Foreign Service employees, and the Director of the
Office of Personnel Management
, who oversees human resource management for our civil service employees, has identified areas in which statutory authority exists to achieve greater equality for the Federal workforce through extension to same-sex domestic partners of benefits currently available to married people of the opposite sex. Extending available benefits will help the Federal Government compete with the private sector to recruit and retain the best and the brightest employees.
I hereby request the following:
Section
1. Extension of Identified Benefits. The Secretary of State and the Director of the
Office of Personnel Management
shall, in consultation with the
Department of Justice
, extend the benefits they have respectively identified to qualified same-sex domestic partners of Federal employees where doing so can be achieved and is consistent with Federal law.
Sec
. 2. Review of Governmentwide Benefits. The heads of all other executive departments and agencies, in consultation with the
Office of Personnel Management
, shall conduct a review of the benefits provided by their respective departments and agencies to determine what authority they have to extend such benefits to same-sex domestic partners of Federal employees. The results of this review shall be reported within 90 days to the Director of the
Office of Personnel Management
, who, in consultation with the
Department of Justice
, shall recommend to me any additional measures that can be taken, consistent with existing law, to provide benefits to the same-sex domestic partners of Federal Government employees.
Sec
. 3. Promoting Compliance with Existing Law Requiring Federal Workplaces to be Free of Discrimination Based on Non-Merit Factors. The
Office of Personnel Management
shall issue guidance within 90 days to all executive departments and agencies regarding compliance with, and implementation of, the civil service laws, rules, and regulations, including
5 U.S.C. 2302(b)(10)
, which make it unlawful to discriminate against Federal employees or applicants for Federal employment on the basis of factors not related to job performance.
Sec
. 4. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:
(i) Authority granted by law or Executive Order to an
agency
, or the head thereof; or
(ii) Functions of the Director of the
Office of Management and Budget
relating to budgetary, administrative, or legislative proposals.
(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Sec
. 5. Publication. The Director of the
Office of Personnel Management
is hereby authorized and directed to publish this memorandum in the Federal Register.
Barack Obama.
Extension of Benefits to Same-Sex Domestic Partners of Federal Employees
Memorandum of President of the United States,
June 2, 2010
, 75 F.R.
32247
, provided:
Memorandum for the Heads of Executive Departments and Agencies
For far too long, many of our Government’s hard-working, dedicated LGBT employees have been denied equal access to the basic rights and benefits their colleagues enjoy. This kind of systemic inequality undermines the health, well-being, and security not just of our Federal workforce, but also of their families and communities. That is why, last June, I directed the heads of executive departments and agencies (agencies), in consultation with the
Office of Personnel Management
(OPM), to conduct a thorough review of the benefits they provide and to identify any that could be extended to LGBT employees and their partners and families. Although legislative action is necessary to provide full equality to LGBT Federal employees, the agencies have identified a number of benefits that can be extended under existing law. OPM, in consultation with the
Department of Justice
, has provided me with a report recommending that all of the identified benefits be extended.
Accordingly, I hereby direct the following:
Section
1. Immediate Actions To Extend Benefits. Agencies should immediately take the following actions, consistent with existing law, in order to extend benefits to the same-sex domestic partners of Federal employees, and, where applicable, to the children of same-sex domestic partners of Federal employees:
(a) The Director of OPM should take appropriate action to:
(i) clarify that the children of employees’ same-sex domestic partners fall within the definition of “child” for purposes of Federal child-care subsidies, and, where appropriate, for child-care services;
(ii) clarify that, for purposes of employee assistance programs, same-sex domestic partners and their children qualify as “family members”;
(iii) issue a proposed rule that would clarify that employees’ same-sex domestic partners qualify as “family members” for purposes of noncompetitive appointments made pursuant to Executive Order
12721
of
July 30, 1990
(iv) issue a proposed rule that would add a Federal retiree’s same-sex domestic partner to the list of individuals presumed to have an insurable interest in the employee pursuant to
5 U.S.C. 8339(k)(1)
, 8420;
(v) clarify that under appropriate circumstances, employees’ same-sex domestic partners and their children qualify as dependents for purposes of evacuation payments made under
5 U.S.C. 5522–552
3; Folio: 1632 [sic]
(vi) amend its guidance on implementing President Clinton’s
April 11, 1997
, memorandum to heads of executive departments and agencies on “Expanded Family and Medical Leave Policies” to specify that the 24 hours of unpaid leave made available to Federal employees in connection with (i) school and early childhood educational activities; (ii) routine family medical purposes; and (iii) elderly relatives’ health or care needs, may be used to meet the needs of an employee’s same-sex domestic partner or the same-sex domestic partner’s children; and
(vii) clarify that employees’ same-sex domestic partners qualify as dependents for purposes of calculating the extra allowance payable under
5 U.S.C. 5942a
to assist employees stationed on Johnston Island, subject to any limitations applicable to spouses.
(b) The Administrator of General Services should take appropriate action to amend the definitions of “immediate family” and “dependent” appearing in the Federal Travel Regulations, 41 C.F.R. Chs.
300
304
, to include same-sex domestic partners and their children, so that employees and their domestic partners and children can obtain the full benefits available under applicable law, including certain travel, relocation, and subsistence payments.
(c) All agencies offering any of the benefits specified by OPM in implementing guidance under section 3 of this memorandum, including credit union membership, access to fitness facilities, and access to planning and counseling services, should take all appropriate action to provide the same level of benefits that is provided to employees’ spouses and their children to employees’ same-sex domestic partners and their children.
(d) All agencies with authority to provide benefits to employees outside of the context of title 5, United States Code should take all appropriate actions to ensure that the benefits being provided to employees’ spouses and their children are also being provided, at an equivalent level wherever permitted by law, to their employees’ same-sex domestic partners and their children.
Sec
. 2. Continuing Obligation To Provide New Benefits. In the future, all agencies that provide new benefits to the spouses of Federal employees and their children should, to the extent permitted by law, also provide them to the same-sex domestic partners of their employees and those same-sex domestic partners’ children. This section applies to appropriated and nonappropriated fund instrumentalities of such agencies.
Sec
. 3. Monitoring and Guidance. The Director of OPM shall monitor compliance with this memorandum, and may instruct agencies to provide the Director with reports on the status of their compliance, and prescribe the form Folio: 1633 [sic] and manner of such reports. The Director of OPM shall also issue guidance to ensure consistent and appropriate implementation.
Sec
. 4. Reporting. By
April 1, 2011
, and annually thereafter, the Director of OPM shall provide the President with a report on the progress of the agencies in implementing this memorandum until such time as all recommendations have been appropriately implemented.
Sec
. 5. General Provisions. (a) Except as expressly stated herein, nothing in this memorandum shall be construed to impair or otherwise affect:
(i) authority granted by law or Executive Order to an
agency
, or the head thereof; or
(ii) functions of the Director of the
Office of Management and Budget
relating to budgetary, administrative, or legislative proposals.
(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Sec
. 6. Publication. The Director of OPM is hereby authorized and directed to publish this memorandum in the Federal Register.
Barack Obama.
CFR Title
Parts
300
315
335
337
410
537
900
1209
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