ARTICLE

37.

Section 1 - Definitions

A. Applicability - This Article applies to all General Schedule, Wage System, Title 38, and nonappropriated fund employees in the unit of recognition and will be used in conjunction with Article _____ on Performance Appraisal.

B. Definitions -

1. Acceptable Level of Competence - An employee will be considered to have attained an acceptable level of competence when he is currently performing at the fully successful/satisfactory level or better level under the performance appraisal/proficiency system, and such performance is documented by a rating of at least fully successful/satisfactory.

2. Waiting Period - The term waiting period refers to the minimum time requirement of creditable service to become eligible for a within-grade increase.

3. Within-Grade Increase - The term within-grade increase (WIGI) means a periodic increase in an employee's rate of basic pay from one step of the grade of his or her position to the next higher step.

4. Equivalent Increase - This term means an increase in an employee's rate of basic pay which is equal to or greater that the amount of one within-grade increase. An equivalent increase is based on the step rate held by the employee before her advancement to the next step of the grade of her position. An equivalent increase does not include:

a. A statutory pay adjustment,

b. The periodic adjustment of a wage schedule,

c. The establishment of special salary rates,

d. A quality step increase or other incentive award,

e. A temporary or term promotion when returned to the permanent grade or

step, or

f. An increase resulting from placement of an employee in a supervisory or management position who does not satisfactorily complete a probationary period under

5 USC S.3321(a)(2).

Section 2. Within-Grade Increases

A. The determination to grant or withhold a WIGI will be based on the employee's appraisal of record and his current performance under a performance plan for ninety (90) days or more.

B. The WIGI will be granted as soon as the employee is eligible if he has met an acceptable level of competence.

Section 3 - Performance/Competence Determination

A. Communication of Performance Requirements - Employees shall be informed of the specific performance requirements that constitute an acceptable level of competence within the time frames and means of communication of performance standards established under the performance appraisal system.

B. Acceptable Level of Competence Determinations

1. An acceptable level of competence determination shall be based on the current rating of record. This rating used as the basis for an acceptable level of competence determination must have been assigned no earlier than at the end of the most recently completed annual appraisal period. If the most recent rating is more than ninety (90) days old, the current performance will be reviewed to ensure that the rating of record reflects current performance.

2. When it is determined that current performance is not at an acceptable level, a special rating/proficiency must be prepared to document current performance.

C. Notification - Employees shall be provided with an acceptable level of competence determination as soon as possible after the completion of the required waiting period.

1. Favorable Determination - The SF-50B, Notification of Personnel Action, shall be used to advise employees that they have achieved an acceptable level of competence and will receive a within-grade increase.

2. Negative Determination - When it is determined that the employee's performance is not at an acceptable level of competence, the employee shall be given a written notice which includes the following:

a. The reasons for the negative determination and the respect in which the employee must improve his/her performance, and

b. Inform the employee of his/her right to request reconsideration of the negative determination.

D. Reconsideration

1. Time Limits - An employee or an employee's Union representative may file a written request for reconsideration not later than fifteen (15) days after receiving the notice of a negative determination. The time limit to request a reconsideration should be extended when the employee shows he was not notified of the time limit and was not otherwise aware of it or that the employee was prevented by circumstances beyond his control from requesting reconsideration within the time limit.

2. Reconsideration File - When an employee or her Union representative files a request for reconsideration, a reconsideration file shall be established which contains all pertinent documents relating to the negative determination including:

a. The written negative determination and the basis thereof,

b. The employee's written request for reconsideration,

c. The report of investigation, when an investigation is made,

d. The written summary or transcript of any Union presentation made, and

e. The final decision on the request for reconsideration.

3. Written Exceptions - The reconsideration file shall not contain any document that has not been made available to the employee or his representative. The employee will be given an opportunity to submit a written exception to any summary of the employee's personal presentation.

4. Preparation of Response - An employee in a duty status shall be granted a reasonable amount of time to review the material to support the negative determination and to prepare a response to the determination.

5. Final Decision - The employee will be provided a written decision within ten (10) workdays after receipt of the employee's response. For Title 5 employees, this decision will include the right to grieve under the negotiated grievance procedure. For Title 38 employees, the decision will refer to the appropriate Title 38 procedures.

Section 4 - Procedures for WIGI Determinations

A. Where an employee has been assigned a present supervisor for less than ninety (90) days, and that supervisor cannot adequately assess the employee's performance, he shall secure the written views of the employee's prior supervisor before making a performance determination. A copy of this document will be given to the employee.

B. Except in rare and unusual circumstances, the WIGI will be granted as soon as the employee is eligible unless the employee was informed in writing:

1. During the most recent progress review, or

2. In no event later than at least sixty (60) calendar days before the end of the statutory waiting period for eligibility for a WIGI that his performance is below an acceptable level of competence and, unless his performance improves, the WIGI will be denied.

C. In those rare and unusual circumstances when the supervisor does not give sixty (60) calendar days advance notice and the WIGI is delayed, the supervisor will reconsider the employee's level of competence not later than sixty (60) calendar days after the date on which the employee completed the required waiting period. If the employee's level of competence is acceptable, the WIGI will be made retroactively effective on its original due date.

D. If at the end of the sixty (60) calendar days, the employee's performance is not at an acceptable level of competence for the purpose of approving the WIGI, the employee will be given a written notice which will include:

1. An indication that the employee's work has been reviewed;

2. A statement that the employee's work has been determined to be of a less than acceptable level of competence;

3. An identification of those elements where the employee's performance has resulted in denial of the WIGI;

4. A statement that the employee has a right to request, in writing, a reconsideration of the negative determination, provided the request is made within fifteen (15) days of the employee's receipt of the negative determination;

5. The name of the reconsideration official to whom the employee may submit a request;

6. A statement that the employee may have a Union representative when presenting a request to the reconsideration official;

7. A statement that the employee may appeal via the appropriate procedure the basis for the negative determination in person and/or in writing; and

8. An explanation that the employee may be considered for a WIGI at any time during the next twenty-six (26) calendar weeks if the employee demonstrates an acceptable level of competence.

Section 5 - Exceptions

A. Delays of Acceptable Level of Competence Determinations. The employee shall be informed in writing whenever his or her acceptable level of competence determination is being delayed in accordance with OPM regulations. The employee shall be informed of the reasons for delay and the specific requirements for performance at the acceptable level of competence.

B. Waiver of Requirement to Make Acceptable Level of Competence Determinations. An acceptable level of competence determination shall be waived and a within-grade increase granted when a Title 5 employee had not served for at least ninety (90) days in any position under an applicable agency appraisal system during the final fifty-two (52) weeks of the waiting period for the reasons specified in 5 CFR 531.409(d).

Section 6 - Redeterminations

After a WIGI has been withheld, the Department may grant a WIGI at any time after it determines that the employee has demonstrated performance at an acceptable level of competence. In such cases, the WIGI will be effective the first day of the first pay period after the acceptable determination is made.