Adverse actions based on performance or conduct

(a) In general Section 7513 of title 5, United States Code, is amended to read as follows: 7513. Cause and procedure for actions other than furlough (a) In general (1) Standard for certain adverse actions Under regulations prescribed by the Office of Personnel Management, an agency may take an action described in paragraphs (1) through (4) of section 7512 against an employee if the agency determines by a preponderance of the evidence that the performance or misconduct of the employee warrants such action. (2) Factors for initial decision When making an initial decision on an action described in paragraphs (1) through (4) of section 7512 with respect to an employee, the deciding employee of the agency shall exclusively apply the following factors: (A) The nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibilities, including whether the offense— (i) was intentional or technical or inadvertent; (ii) was committed maliciously or for gain; or (iii) was frequently repeated. (B) The employee’s job level and type of employment, including any supervisory or fiduciary role, and the prominence of the position. (C) The employee’s past disciplinary records. (D) The employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability. (E) Mitigating circumstances surrounding the offense, such as— (i) unusual job tensions, personality problems, or mental impairment; or (ii) harassment, bad faith, malice, or provocation on the part of others involved in the matter. (3) Standard of review The agency shall— (A) review the initial decision described in paragraph (2), without regard to whether the employee responds under subsection (e)(2); and (B) uphold the initial decision if it is supported by substantial evidence. (b) Pay of certain employees subject to a reduction in grade (1) Applicable rate of pay Notwithstanding any other provision of law, an employee subject to a reduction in grade shall, beginning on the date of the reduction in grade, receive the annual rate of pay applicable to the reduced grade. (2) No administrative leave, or pay without working or use of other leave, during appeal If an employee subject to a reduction in grade appeals the reduction in grade under this section, during the period during which the appeal is ongoing, the employee— (A) may not be placed on administrative leave; and (B) may only receive pay and benefits if the employee— (i) reports for duty; or (ii) is approved to use accrued unused annual, sick, family medical, military, or court leave. (3) Conditions on pay and benefits generally During any period other than a period described in paragraph (2), if an employee subject to a reduction in grade does not report for duty or receive approval to use accrued unused leave, the employee may not receive pay or benefits. (c) Procedure (1) Response period The period during which an employee may respond to a notice of an action described in paragraphs (1) through (4) of section 7512 in writing and furnish affidavits and other documentary evidence in support of the response, as provided under subsection (e)(2), shall be 7 business days. (2) Final decision (A) In general The agency shall issue a final decision with respect to an action described in paragraphs (1) through (4) of section 7512, with respect to an employee, not later than 15 business days after the agency provides notice, including a file containing all the evidence in support of the proposed action, to the employee, unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed. (B) Form and contents A final decision described in subparagraph (A) shall— (i) be in writing; and (ii) include the specific reasons therefor. (d) PIP The agency may carry out an action described in paragraphs (1) through (4) of section 7512 with respect to an employee without first placing the employee on a performance improvement plan. (e) Employee rights An employee against whom an action described in paragraphs (1) through (4) of section 7512 is proposed is entitled to— (1) a written notice stating the specific reasons for the proposed action; (2) respond in writing and furnish affidavits and other documentary evidence in support of the response; (3) be represented by an attorney or other representative; and (4) a written decision and the specific reasons therefor at the earliest practicable date. (f) Hearing An agency may provide, by regulation, for a hearing which may be in lieu of or in addition to the opportunity to respond provided under subsection (e)(2). (g) Appeal An employee against whom an action described in paragraphs (1) through (4) of section 7512 is taken is entitled to appeal to the Merit Systems Protection Board (referred to in this section as the Board) under section 7701 of this title not later than 10 business days after the effective date of the action. (h) Records (1) Agency records; provision to Board The agency shall maintain, and shall furnish to the Board upon request of the Board, copies of the notice of proposed action, the response of the employee when written, a summary thereof when made orally, the notice of decision and reasons therefor, and any order effecting an action described in paragraphs (1) through (4) of section 7512, together with any supporting material. (2) Provision to employee Upon the request of an affected employee, the agency shall furnish copies of the documents described in paragraph (1) to the employee, to the extent those documents were not provided under subsection (c).. (b) Discipline of supervisors based on retaliation against whistleblowers Section 7515(b)(2)(B) of title 5, United States Code, is amended— (1) in clause (i), by striking not later than 14 days and inserting not later than 7 business days; and (2) in clause (ii), by striking 14-day period and inserting 7-business-day period. (c) Application The amendments made by subsections (a) and (b) shall not apply to any action under section 7513 or 7515 of title 5, United States Code, as amended by those subsections, respectively, commenced before the effective date provided in section 12.