trict of Columbia unless the Secretary of Labor certifies that no United States citizen or bona fide resident of one of the several States or the District of Columbia is available to fill the particular position. (Added Pub. L. 92-392, § 1(a), Aug. 19, 1972, 86 Stat. 564.)

CODIFICATION

A prior section 5342, Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 471, provided for crews of vessels and is now covered by section 5348 (a), (b) of this title.

EFFECTIVE DATE

Section effective on first day of first applicable pay period beginning on or after the 90th day after Aug. 19, 1972, except that in the case of employees referred to in subsec. (a) (2) (B) and (C) section effective on first day of first applicable pay period beginning on or after the 180th day after Aug. 19, 1972, or on such earlier date (not earlier than 90th day after Aug. 19, 1972) as Civil Service Commission may prescribe, see section 15(a) of Pub. L. 92-392, set out as a note under section 5341 of this title. SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 5343, 5550 of this title.

§ 5343. Prevailing rate determinations; wage schedules; night differentials

(a) The pay of prevailing rate employees shall be fixed and adjusted from time to time as nearly as is consistent with the public interest in accordance with prevailing rates. Subject to section 213(f) of title 29, the rates may not be less than the appropriate rates provided by section 206(a)(1) of title 29. To carry out this subsection

(1) the Civil Service Commission shall define, as appropriate

(A) with respect to prevailing rate employees other than prevailing rate employees under paragraphs (B) and (C) of section 5342 (a) (2) of this title, the boundaries of(i) individual local wage areas for prevailing rate employees having regular wage schedules and rates; and

(ii) wage areas for prevailing rate employees having special wage schedules and rates;

(B) with respect to prevailing rate employees under paragraphs (B) and (C) of section 5342 (a) (2) of this title, the boundaries of

(i) individual local wage areas for prevailing rate employees under such paragraphs having regular wage schedules and rates (but such boundaries shall shall not extend beyond the immediate locality in which the particular prevailing rate employees are employed); and

(i) wage areas for prevailing rate employees under such paragraphs having special wage schedules and rates; (2) the Civil Service Commission shall designate a lead agency for each wage area;

(3) subject to paragraph (5) of this subsection, and subsections (c) (1)–(3) and (d) of this section, a lead agency shall conduct wage surveys, analyze wage survey data, and develop and establish appropriate wage schedules and rates for prevailing rate employees;

(4) the head of each agency having prevailing rate employees in a wage area shall apply, to the prevailing rate employees of that agency in that area, the wage schedules and rates established by the lead agency, or by the Civil Service Commission, as appropriate, for prevailing rate employees in that area; and

(5) the Civil Service Commission shall establish wage schedules and rates for prevailing rate employees who are United States citizens employed in any area which is outside the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Canal Zone, the territories and possessions of the United States, and the Trust Territory of the Pacific Islands. (b) The Civil Service Commission shall schedule full-scale wage surveys every 2 years and shall schedule interim surveys to be conducted between each 2 consecutive full-scale wage surveys. The Commission may schedule more frequent surveys when conditions so suggest.

(c) The Civil Service Commission, by regulation, shall prescribe practices and procedures for conducting wage surveys, analyzing wage survey data, developing and establishing wage schedules and rates, and administering the prevailing rate system. The regulations shall provide―

(1) that, subject to subsection (d) of this section, wages surveyed be those paid by private employers in the wage area for similar work performed by regular full-time employees, except that, for prevailing rate employees under paragraphs (B) and (C) of section 5342 (a) (2) of this title, the wages surveyed shall be those paid by private employers to full-time employees in a representative number of retail, wholesale, service, and recreational establishments similar to those in which such prevailing rate employees are employed;

(2) for participation at all levels by representatives of organizations accorded recognition as the representatives of prevailing rate employees in every phase of providing an equitable system for fixing and adjusting the rates of pay for prevailing rate employees, including the planning of the surveys, the drafting of specifications, the selection of data collectors, the collection and the analysis of the data, and the submission or recommendations to the head of the lead agency for wage schedules and rates and for special wage schedules and rates where appropriate;

(3) for requirements for the accomplishment of wage surveys and for the development of wage schedules and rates for prevailing rate employees, including, but not limited to

(A) nonsupervisory and supervisory prevailing rate employees paid under regular wage schedules and rates;

(B) nonsupervisory and supervisory prevailing rate employees paid under special wage schedules and rates; and

(C) nonsupervisory and supervisory prevailing rate employees described under paragraphs (B) and (C) of section 5342(a) (2) of this title;

(4) for proper differentials, as determined by the Commission, for duty involving unusually severe working conditions or unusually severe hazards;

(5) rules governing the administration of pay for individual employees on appointment, transfer, promotion, demotion, and other similar changes in employment status; and

(6) for a continuing program of maintenance and improvement designed to keep the prevailing rate system fully abreast of changing conditions, practices, and techniques both in and out of the Government of the United States. (d) (1) A lead agency, in making a wage survey, shall determine whether there exists in the local wage area a number of comparable positions in private industry sufficient to establish wage schedules and rates for the principal types of positions for which the survey is made. The determination shall be in writing and shall take into consideration all relevant evidence, including evidence submitted by employee organizations recognized as representative of prevailing rate employees in that area.

(2) When a lead agency determines that there is a number of comparable positions in private industry insufficient to establish the wage schedules and rates, such agency shall establish those schedules and rates on the basis of

(A) local private industry rates; and

(B) rates paid for comparable positions in private industry in the nearest wage area that such agency determines is most similar in the nature of its population, employment, manpower, and industry to the local wage area for which the wage survey is being made.

(e) (1) Each grade of a regular wage schedule for nonsupervisor prevailing rate employees shall have 5 steps with—

(A) the first step at 96 percent of the prevailing rate;

(B) the second step at 100 percent of the prevailing rate;

(C) the third step at 104 percent of the prevailing rate;

(D) the fourth step at 108 percent of the prevailing rate; and

(E) the fifth step at 112 percent of the prevailing rate.

(2) A prevailing rate employee under a regular wage schedule who has a work performance rating of satisfactory or better, as determined by the head of the agency, shall advance automatically to the next higher step within the grade at the beginning of the first applicable pay period following his completion of

(A) 26 calendar weeks of service in step 1; (B) 78 calendar weeks of service in step 2; and

(C) 104 calendar weeks of service in each of steps 3 and 4.

(3) Under regulations prescribed by the Civil Service Commission, the benefits of successive step increases shall be preserved for prevailing rate employees under a regular wage schedule whose continuous service is interrupted in the public interest by service with the armed forces or by service in es

sential non-Government civilian employment during a period of war or national emergency.

(4) Supervisory wage schedules and special wage schedules authorized under subsection (c) (3) of this section may have single or multiple rates or steps according to prevailing practices in the industry on which the schedule is based.

(f) A prevailing rate employee is entitled to pay at his scheduled rate plus a night differential

(1) amounting to 72 percent of that scheduled rate for regularly scheduled nonovertime work a majority of the hours of which occur between 3 p.m. and midnight; and

(2) amounting to 10 percent of that scheduled rate for regularly scheduled nonovertime work a majority of the hours of which occur between 11 p.m. and 8 a.m.

A night differential under this subsection is a part of basic pay. (Added Pub. L. 92-392, § 1(a), Aug. 19, 1972, 86 Stat. 566.)

CODIFICATION

A prior section 5343, Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 471, related to effective date of pay increases and is now covered by section 5344 (a) of this title.

PRIOR PROVISIONS

Provisions similar to those comprising part of first sentence of subsec. (c) and subsec. (d) of this section were contained in Pub. L. 90-560, § 4, Oct. 12, 1968, 82 Stat. 997 (formerly classified to sections 5341 (c) of this title) prior to the general amendment of this subchapter by section 1(a) of Pub. L. 92-392.

EFFECTIVE DATE

Section other than subsec. (e) (1) (D), (E), (2) (C) of this section effective on first day of first applicable pay period beginning on or after the 90th day after Aug. 19, 1972, and such subsec. (a) (1) (D), (E), (2) (C) not effective until first day of first pay period commencing after the date on which the President ceases to exercise his authority under the Economic Stabilization Act of 1970 to stabilize wages and salaries, or Apr. 30, 1973, whichever occurs first, see section 15(a) of Pub. L. 92-392, set out as a note under section 5341 of this title.

CONVERSION RULES FOR WAGE SCHEDULE; SERVICE FOR ONE STEP INCREASE; PROHIBITION OF DECREASE IN BASIC PAY RATE; RETAINED PAY CONTINUED

Section 9(a) of Pub. L. 92-392 provided that: "(1) Except as provided by this subsection, an employee's initial rate of pay on conversion to a wage schedule established pursuant to the amendments made by this Act [see Effective Date note under section 5341 of this title] shall be determined under conversion rules prescribed by the Civil Service Commission. Service by an employee in a grade of a wage schedule performed before the effective date of the conversion of the employee to a wage schedule established pursuant to the amendments made by this Act shall be counted toward not to exceed one step increase under the time in step provisions of section 5343 (e) (2) of title 5, United States Code, as amended by the first section of this Act [subsec. (e) (2) of this section].

"(2) In the case of any employee described in section 2105(c), 5102(c) (7), (8), or (14) of title 5, United States Code, who is in the service as such an employee immediately before the effective date, with respect to him, of the amendments made by this Act [see Effective Date note under section 5341 of this title], such amendments shall not be construed to decrease his rate of basic pay in effect immediately before the date [see Effective Date note under section 5341 of this title] on which such amendments become effective with respect to him. In addition, if an employee is receiving retained pay by virtue of law or agency policy immediately before the date on which the first wage schedule applicable to him under this Act is

effective, he shall continue to retain that pay in accordance with the specific instructions under which the retained pay was granted until he leaves his position or until he becomes entitled to a higher rate."

LABOR CONTRACTS PERTAINING TO WAGES, TERMS AND CONDITIONS OF EMPLOYMENT, AND OTHER EMPLOYMENT BEN

EFITS

Section 9(b) of Pub. L. 92-392 provided that.

"The amendments made by this Act [enacting this subchapter and section 5550 of this title, amending sections 2105(c) (1), 5337, 5541(2)(xi), 5544(a), 5548, 6101(a)(1), 6101(a)(1), 7154(b), and 8704(d) (2) of this title, repealing section 6102 of this title, and enacting provisions set out as notes under sections 5341 and 5343 of this title and section 60a of Title 2] shall not be construed to

"(1) abrogate, modify, or otherwise affect in any way the provisions of any contract in effect on the date of enactment of this Act [Aug. 19, 1972] pertaining to the wages, the terms and conditions of employment, and other employment benefits, or any of the foregoing matters, for Government prevailing rate employees and resulting from negotiations between Government agencies and organizations of Government employees;

"(2) nullify, curtail, or otherwise impair in any way the right of any party to such contract to enter into negotiations after the date of enactment of this Act [Aug. 19, 1972] for the renewal, extension, modification, or improvement of the provisions of such contract or for the replacement of such contract with a new contract; or

“(3) nullify, change, or otherwise affect in any way after such date of enactment [Aug. 19, 1972] any agreement, arrangement, or understanding in effect on such date [Aug. 19, 1972] with respect to the various items of subject matter of the negotiations on which any such contract in effect on such date [Aug. 19, 1972] is based or prevent the inclusion of such items of subject matter in connection with the renegotiation of any such contract, or the replacement of such contract with a new contract, after such date [Aug. 19, 1972]."

WAGE SURVEY

Section 15 (b) of Pub. L. 92-392 provided that: "A wage survey conducted by an agency before the effective date (with respect to employees covered by that wage survey) of this Act [see note under section 5341 of this title], for a wage schedule which becomes effective after that effective date [Aug 19, 1972], is deemed to meet the requirement in this Act for a survey by a lead agency."

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 5544, 6101 of this title.

§ 5344. Effective date of wage increase; retroactive pay.

(a) Each increase in rates of basic pay granted, pursuant to a wage survey, to prevailing rate employees is effective not later than the first day of the first pay period which begins on or after the 45th day, excluding Saturdays and Sundays, following the date the wage survey is ordered to be made.

(b) Retroactive pay is payable by reason of an increase in rates of basic pay referred to in subsection (a) of this section only when

(1) the individual is in the service of the Government of the United States, including service in the armed forces, or the government of the District of Columbia on the date of the issuance of the order granting the increase; or

(2) the individual retired or died during the period beginning on the effective date of the increase and ending on the date of issuance of the order granting the increase, and only for services performed during that period.

For the purpose of this subsection, service in the armed forces includes the period provided by statute

for the mandatory restoration of the individual to a position in or under the Government of the United States or the government of the District of Columbia after he is relieved from training and service in the armed forces or discharged from hospitalization following that training and service. (Added Pub. L. 92– 392, § 1(a), Aug. 19, 1972, 86 Stat. 568.)

PRIOR PROVISIONS

Provisions similar to those comprising subsec. (a) of this section were contained in Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 471 (formerly classified to section 5343 of this title) prior to the general amendment of this subchapter by section 1(a) of Pub. L. 92-392.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 5349, 8704 of this title.

§ 5345. Retained rate of pay on reduction in grade or reassignment.

(a) Under regulations prescribed by the Civil Service Commision, and subject to the limitation in subsection (b) of this section, a prevailing rate employee

(1) who is reduced in grade or reassigned to a wage schedule position having an established maximum scheduled rate of pay which is less than the employee's then existing scheduled rate of pay;

(2) who holds a career or a career-conditional appointment in the competitive service, or an appointment of equivalent tenure in the excepted service;

(3) whose reduction in grade or reassignment is not (A) caused by a demotion for personal cause, (B) at his request, (C) effected in a reduction in force due to lack of funds or curtailment of work, or (D) with respect to a temporary promotion, a condition of the temporary promotion to a higher grade;

(4) who, for 2 continuous years immediately before the reduction in grade or reassignment, served (A) in the same agency and (B) in a grade or grades higher than the grade to which demoted; and

(5) whose work performance during the 2year period is satisfactory or better;

is entitled to basic pay at the scheduled rate to which he was entitled immediately before the reduction in grade or reassignment (including each increase in scheduled rate of pay granted pursuant to a wage survey) for a period of 2 years from the effective date of the reduction in grade or reassignment, so long as he

(A) continues in the same agency without a break in service of one workday or more; (B) is not entitled to a higher scheduled rate of pay by operation of this subchapter; and

(C) is not demoted or reassigned (i) for personal cause, (ii) at his request, or (iii) in a reduction in force due to a lack of funds or curtailment of work.

(b) The scheduled rate of pay to which a prevailing rate employee is entitled under subsection (a) of this section with respect to each reduction in grade or reassignment to which that subsection applies may not exceed the sum of

(1) the minimum scheduled rate of the grade to which he is reduced or reassigned under each reduction in grade or reassignment to which that subsection applies (including each increase in scheduled rate of pay granted pursuant to a wage survey); and

(2) the difference between his scheduled rate immediately before the first reduction in grade or reassignment to which that subsection applies (including each increase in scheduled rate of pay granted pursuant to a wage survey) and the minimum scheduled rate of that grade which is three grades lower than the grade from which he was reduced or reassigned under the first of the reductions in grade or reassignment (including each increase in the scheduled rate of pay granted pursuant to a wage survey).

(c) Under regulations prescribed by the Commission, a prevailing rate employee who is reduced in grade or reassigned to a wage schedule position from another local wage area, or from another wage schedule, or from a position not subject to this subchapter, is entitled to a retained scheduled rate of pay.

(d) The Commission may prescribe regulations governing the retention of the scheduled rate of pay of an employee who together with his position is brought under this subchapter. If an employee so entitled to a retained rate under these regulations is later demoted to a position under this subchapter, his scheduled rate of pay is determined under subsections (a) and (b) of this section. For the purpose of those subsections, service in the position which was brought under this subchapter is deemed service under this subchapter. (Added Pub. L. 92-392, § 1(a), Aug. 19, 1972, 86 Stat. 569.)

CODIFICATION

A prior section 5345, added Pub. L. 90-206, title II, § 223 (a), Dec. 16, 1967, 81 Stat. 641, provided for position classification appeals and is now covered by section 5346 (c) of this title.

EFFECTIVE DATE

Section effective on first day of first applicable pay period beginning on or after the 90th day after Aug. 19, 1972, see section 15 (a) of Pub L. 92-392, set out as a note under section 5341 of this title.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 5349 of this title.

§ 5346. Job grading system.

(a) The Civil Service Commission, after consulting with the agencies and with employee organizations, shall establish and maintain a job grading system for positions to which this subchapter applies. In carrying out this subsection, the Commission shall—

(1) establish the basic occupational alinement and grade structure or structures for the job grading system;

(2) establish and define individual occupations and the boundaries of each occupation; (3) establish job tities within occupations; (4) develop and publish job grading standards; and

(5) provide a method to assure consistency in the application of job standards.

(b) The Commission, from time to time, shall review such numbers of positions in each agency as will enable the Commission to determine whether the agency is placing positions in occupations and grades in conformance with or consistently with published job standards. When the Commission finds that a position is not placed in its proper occupation and grade in conformance with published standards or that a position for which there is no published standard is not placed in the occupation and grade consistently with published standards, it shall, after consultation with appropriate officials of the agency concerned, place the position in its appropriate occupation and grade and shall certify this action to the agency. The agency shall act in accordance with the certificate, and the certificate is binding on all administrative, certifying, payroll, disbursing, and accounting officials.

(c) On application, made in accordance with regulations prescribed by the Commission, by a prevailing rate employe for the review of the action of an employing agency in placing his position in an occupation and grade for pay purposes, the Commission shall

(1) ascertain currently the facts as to the duties, responsibilities, and qualification requirements of the position;

(2) decide whether the position has been placed in the proper occupation and grade; and (3) approve, disapprove, or modify, in accordance with its decision, the action of the employing agency in placing the position in an occupation and grade.

The Commission shall certify to the agency concerned its action under paragraph (3) of this subsection. The agency shall act in accordance with the certificate, and the certificate is binding on all administrative, certifying, payroll, disbursing, and accounting officials. (Pub. L. 89-554, § 5346, formerly § 5345, as added Pub. L. 90-206, title II, § 223(a), Dec. 16, 1967, 81 Stat. 641, renumbered and amended Pub. L. 92-392, § 1(a), Aug. 19, 1972, 86 Stat. 570.) AMENDMENTS

1972-Subsecs. (a), (b). Pub. L. 92-392 added subsecs. (a) and (b).

Subsec. (c). Pub. L. 92-392 designated existing provisions as subsec. (c) and substituted in introductory text "Commission", "a prevailing rate of employee" and "in placing his position in an occupation and grade" for "Civil Service Commission", "an employee subject to section 5341 (a) of this title" and "in classifying his position", in par. (2) "placed in the proper occupation and grade" for "properly classified", in par. (3) "in placing the position in an occupation and grade" for "in classifying the position" and in last sentence "subsection" for "section".

PRIOR PROVISIONS

Provisions similar to those comprising subsec. (c) of this section were contained in Pub. L. 90-206, title II, § 223 (a), Dec. 16, 1967, 81 Stat. 641 (formerly classified to section 5345 of this title) prior to the general amendment of this subchapter by section 1(a) of Pub. L. 92-392.

EFFECTIVE DATE OF 1972 AMENDMENT

Amendment by Pub. L. 92-392 effective on first day of first applicable pay period beginning on or after the 90th day after Aug. 19, 1972, see section 15(a) of Pub. L. 92-392, set out as a note under section 5341 of this title.

§ 5347. Federal Prevailing Rate Advisory Committee.

(a) There is established a Federal Prevailing Rate Advisory Committee composed of—

(1) the Chairman, who shall not hold any other office or position in the Government of the United States or the government of the District of Columbia, and who shall be appointed by the Chairman of the Civil Service Commission for a 4-year term;

(2) one member from the Office of the Secretary of Defense, designated by the Secretary of Defense;

(3) two members from the military departments, designated by the Chairman of the Civil Service Commission;

(4) one member, designated by the Chairman of the Civil Service Commission from time to time from an agency (other than the Department of Defense, a military department, and the Civil Service Commission);

(5) an employee of the Civil Service Commission, designated by the Chairman of the Civil Service Commission; and

(6) five members, designated by the Chairman of the Civil Service Commision, from among the employee organizations representing, under exclusive recognition of the Government of the United States, the largest numbers of prevailing rate employees.

(b) In designating members from among employee organizations under subsection (a) (6) of this section, the Chairman of the Civil Service Commission shall designate, as nearly as practicable, a number of members from a particular employee organization in the same proportion to the total number of employee representatives appointed to the Committee under subsection (a) (6) of this section as the number of prevailing rate employees represented by such organization is to the total number of prevailing rate employees. However, there shall not be more than two members from any one employee organization nor more than four members from a single council, federation, alliance, association, or affiliation of employee organizations.

(c) Every 2 years the Chairman of the Civil Service Commission shall review employee organization representation to determine adequate or proportional representation under the guidelines of subsection (b) of this section.

(d) The members from the employee organizations serve at the pleasure of the Chairman of the Civil Service Commission.

(e) The Committee shall study the prevailing rate system and other matters pertinent to the establishment of prevailing rates under this subchapter and, from time to time, advise the Civil Service Commission thereon. Conclusions and recommendations of the Committee shall be formulated by majority vote. The Chairman of the Committee may vote only to break a tie vote of the Committee. The Committee shall make an annual report to the Commission and the President for transmittal to Congress, including recommendations and other matters considered appropriate. Any member of the Committee may include in the annual report recommendations and other matters he considers appropriate.

(f) The Committee shall meet at the call of the Chairman. However, a special meeting shall be called by the Chairman if 5 members make a written request to the Chairman to call a special meeting to consider matters within the purview of the Committee.

(g) Members of the Committee described in paragraphs (2)-(5) of subsection (a) of this section serve without additional pay. The Chairman is entitled to a rate of pay equal to the maximum rate currently paid, from time to time, under the General Schedule. Members who represent employee organizations are not entitled to pay from the Government of the United States for services rendered to the Committee.

(h) The Civil Service Commission shall provide such clerical and professional personnel as the Chairman of the Committee considers appropriate and necessary to carry out its functions under this subchapter. Such personnel shall be responsible to the Chairman of the Committee. (Added Pub. L. 92392, § 1(a), Aug. 19, 1972, 86 Stat. 571.)

EFFECTIVE DATE

Section effective on first day of first applicable pay period beginning on or after the 90th day after Aug. 19, 1972, see section 15(a) of Pub. L. 92-392, set out as a note under section 5341 of this title.

§ 5348. Crews of vessels.

(a) Except as provided by subsections (b) and (c) of this section, the pay of officers and members of crews of vessels excepted from chapter 51 of this title by section 5102(c) (8) of this title shall be fixed and adjusted from time to time as nearly as is consistent with the public interest in accordance with prevailing rates and practices in the maritime industry.

(b) Vessel employees of the Panama Canal Company may be paid in accordance with the wage practices of the maritime industry.

(c) Vessel employees in an area where inadequate maritime industry practice exists and vessel employees of the Corps of Engineers shall have their pay fixed and adjusted under the provisions of this subchapter other than this section, as appropriate. (Pub. L. 89-544, Sept. 6, 1966, 80 Stat. 471, § 5384, formerly § 5342, renumbered and amended Pub. L. 92-393, § 1(a), Aug. 19, 1972, 86 Stat. 572.)

AMENDMENTS

1972 Subsec. (a). Pub. L. 92-392 inserted reference to subsection (c) of this section.

Subsec. (c). Pub. L. 92-392 added subsec. (c).

PRIOR PROVISIONS

Provisions similar to those comprising subsecs. (a) and (b) of this section were contained in Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 471 (formerly classified to section 5342 of this title) prior to the general amendment of this subchapter by section 1(a) of Pub. L. 92–392.

EFFECTIVE DATE OF 1972 AMENDMENT

Amendment by Pub. L. 92-392 effective on first day of first applicable pay period beginning on or after the 90th day after Aug. 19, 1972, see section 15(a) of Pub. L. 92392, set out as a note under section 5341 of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 5342 of this title. § 5349. Prevailing rate employees; legislative, judicial, Bureau of Engraving and Printing, and government of the District of Columbia.

(a) The pay of employees, described under section 5102(c) (7) of this title, in the Administrative Office