CHAPTER 97 —DEPARTMENT OF HOMELAND SECURITY
§9701. Establishment of human resources management system
(a)
(b)
(1) be flexible;
(2) be contemporary;
(3) not waive, modify, or otherwise affect—
(A) the public employment principles of merit and fitness set forth in section 2301, including the principles of hiring based on merit, fair treatment without regard to political affiliation or other nonmerit considerations, equal pay for equal work, and protection of employees against reprisal for whistleblowing;
(B) any provision of section 2302, relating to prohibited personnel practices;
(C)(i) any provision of law referred to in section 2302(b)(1), (8), and (9); or
(ii) any provision of law implementing any provision of law referred to in section 2302(b)(1), (8), and (9) by—
(I) providing for equal employment opportunity through affirmative action; or
(II) providing any right or remedy available to any employee or applicant for employment in the civil service;
(D) any other provision of this part (as described in subsection (c)); or
(E) any rule or regulation prescribed under any provision of law referred to in any of the preceding subparagraphs of this paragraph;
(4) ensure that employees may organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them, subject to any exclusion from coverage or limitation on negotiability established by law; and
(5) permit the use of a category rating system for evaluating applicants for positions in the competitive service.
(c)
(1) subparts A, B, E, G, and H of this part; and
(2) chapters 41, 45, 47, 55, 57, 59, 72, 73, and 79, and this chapter.
(d)
(1) to modify the pay of any employee who serves in—
(A) an Executive Schedule position under subchapter II of
(B) a position for which the rate of basic pay is fixed in statute by reference to a section or level under subchapter II of
(2) to fix pay for any employee or position at an annual rate greater than the maximum amount of cash compensation allowable under section 5307 of such title 5 in a year; or
(3) to exempt any employee from the application of such section 5307.
(e)
(1)
(A)
(i) provide to each employee representative representing any employees who might be affected, a written description of the proposed system or adjustment (including the reasons why it is considered necessary);
(ii) give each representative 30 calendar days (unless extraordinary circumstances require earlier action) to review and make recommendations with respect to the proposal; and
(iii) give any recommendations received from any such representatives under clause (ii) full and fair consideration in deciding whether or how to proceed with the proposal.
(B)
(i) notify Congress of those parts of the proposal, together with the recommendations of employee representatives;
(ii) meet and confer for not less than 30 calendar days with any representatives who have made recommendations, in order to attempt to reach agreement on whether or how to proceed with those parts of the proposal; and
(iii) at the Secretary's option, or if requested by a majority of the employee representatives who have made recommendations, use the services of the Federal Mediation and Conciliation Service during such meet and confer period to facilitate the process of attempting to reach agreement.
(C)
(i) Any part of the proposal as to which the representatives do not make a recommendation, or as to which their recommendations are accepted by the Secretary and the Director, may be implemented immediately.
(ii) With respect to any parts of the proposal as to which recommendations have been made but not accepted by the Secretary and the Director, at any time after 30 calendar days have elapsed since the initiation of the congressional notification, consultation, and mediation procedures set forth in subparagraph (B), if the Secretary determines, in the Secretary's sole and unreviewable discretion, that further consultation and mediation is unlikely to produce agreement, the Secretary may implement any or all of such parts, including any modifications made in response to the recommendations as the Secretary determines advisable.
(iii) The Secretary shall promptly notify Congress of the implementation of any part of the proposal and shall furnish with such notice an explanation of the proposal, any changes made to the proposal as a result of recommendations from employee representatives, and of the reasons why implementation is appropriate under this subparagraph.
(D)
(i) develop a method for each employee representative to participate in any further planning or development which might become necessary; and
(ii) give each employee representative adequate access to information to make that participation productive.
(2)
(A) in the case of employees within a unit with respect to which a labor organization is accorded exclusive recognition, representation by individuals designated or from among individuals nominated by such organization;
(B) in the case of any employees who are not within such a unit, representation by any appropriate organization which represents a substantial percentage of those employees or, if none, in such other manner as may be appropriate, consistent with the purposes of the subsection;
(C) the fair and expeditious handling of the consultation and mediation process described in subparagraph (B) of paragraph (1), including procedures by which, if the number of employee representatives providing recommendations exceeds 5, such representatives select a committee or other unified representative with which the Secretary and Director may meet and confer; and
(D) the selection of representatives in a manner consistent with the relative number of employees represented by the organizations or other representatives involved.
(f)
(1)
(A) employees of the Department are entitled to fair treatment in any appeals that they bring in decisions relating to their employment; and
(B) in prescribing regulations for any such appeals procedures, the Secretary and the Director of the Office of Personnel Management—
(i) should ensure that employees of the Department are afforded the protections of due process; and
(ii) toward that end, should be required to consult with the Merit Systems Protection Board before issuing any such regulations.
(2)
(A) shall be issued only after consultation with the Merit Systems Protection Board;
(B) shall ensure the availability of procedures which shall—
(i) be consistent with requirements of due process; and
(ii) provide, to the maximum extent practicable, for the expeditious handling of any matters involving the Department; and
(C) shall modify procedures under
(g)
(h)
(Added
Editorial Notes
References in Text
Section 842 of the Homeland Security Act of 2002, referred to in subsec. (g), is classified to
Section 1501 of the Homeland Security Act of 2002, referred to in subsec. (h), is classified to
Statutory Notes and Related Subsidiaries
Effective Date
Section effective 60 days after Nov. 25, 2002, see section 4 of