22 U.S.C. § 4010a — Reductions in force

Page 1464 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 4010a Editorial Notes AMENDMENTS 2024—Subsec. (c)(6). Pub. L. 118–159 substituted ‘‘this subsection’’ for ‘‘paragraph (1)(B)’’. 2022—Subsec. (a)(1). Pub. L. 117–263 struck out ‘‘decide to’’ after ‘‘The Secretary may’’ and inserted before pe- riod at end ‘‘, including upon receiving notification from the Bureau of Diplomatic Security that such member has engaged in criminal misconduct, such as murder, rape, or other sexual assault’’. 2021—Subsec. (c)(1). Pub. L. 117–81, § 5317(1), sub- stituted ‘‘indefinitely suspend without duties’’ for ‘‘sus- pend’’ in introductory provisions. Subsec. (c)(5), (6). Pub. L. 117–81, § 5317(3), added pars. (5) and (6). Former par. (5) redesignated (7). Subsec. (c)(7). Pub. L. 117–81, § 5317(2), (4), redesig- nated par. (5) as (7), struck out subpar. (A) designation before ‘‘The term’’, substituted ‘‘this subsection, the term’’ for ‘‘this subsection: The term’’, redesignated cls. (i) and (ii) as subpars. (A) and (B), realigned mar- gins, and struck out former subpar. (B) which read as follows: ‘‘The terms ‘suspend’ and ‘suspension’ mean placing a member of the Foreign Service in a tem- porary status without duties.’’ 2016—Pub. L. 114–323, § 415(a)(1), substituted ‘‘Separa- tion for cause; suspension’’ for ‘‘Separation for cause’’ in section catchline. Subsec. (c). Pub. L. 114–323, § 415(a)(2), added subsec. (c). 2002—Subsec. (a)(1). Pub. L. 107–228, § 314(a)(1), in- serted ‘‘decide to’’ after ‘‘may’’. Subsec. (a)(2) to (6). Pub. L. 107–228, § 314(a)(2), (3), added pars. (2) to (4) and struck out former pars. (2) to (6) which related to the rights of members of the Serv- ice to hearings before the Foreign Service Grievance Board prior to being separated from the Service, sus- pensions from the Service pending final resolution of the underlying matter, procedural rights of suspended members, review of suspensions by the Board, and leave without pay pending final resolution for members rec- ommended for separation. 1999—Subsec. (a)(6). Pub. L. 106–113 added par. (6). 1998—Subsec. (a)(2). Pub. L. 105–277, in first sentence, substituted ‘‘Except in the case of an individual who has been convicted of a crime for which a sentence of imprisonment of more than 1 year may be imposed, a member’’ for ‘‘A member’’. 1994—Subsec. (a)(2). Pub. L. 103–415 inserted ‘‘(other than a United States citizen employed under section 3951 of this title who is not a family member)’’ after ‘‘A member of the Service’’. 1991—Subsec. (a)(3). Pub. L. 102–138, § 143(a)(1), sub- stituted ‘‘a member has been convicted of a crime’’ for ‘‘there is reasonable cause to believe that a member has committed a crime’’. Subsec. (a)(4)(A). Pub. L. 102–138, § 143(a)(2), sub- stituted ‘‘suspension’’ for ‘‘suspension, including the grounds for reasonable cause to believe a crime has been committed’’. Subsec. (a)(5). Pub. L. 102–138, § 143(a)(3), substituted ‘‘the conviction requirements of subsection (a)(3) of this section have been fulfilled’’ for ‘‘there exists rea- sonable cause to believe a crime has been committed for which a sentence of imprisonment may be im- posed’’. 1990—Subsec. (a)(2). Pub. L. 101–246 inserted before pe- riod at end of first sentence ‘‘or, notwithstanding sec- tion 4136(8) of this title, unless the member has been convicted of a crime related to the cause for separa- tion, subject to reinstatement with back pay (for any period during which separation for cause had not been established by such a hearing) if such conviction is re- versed on appeal’’ and inserted sentence at end that section 4140 of this title apply to proceedings under this paragraph. 1989—Subsec. (a)(3) to (5). Pub. L. 101–167 added pars. (3) to (5). 1987—Subsec. (a)(2). Pub. L. 100–204 inserted after first sentence ‘‘If such cause is not established at such hear- ing, the Grievance Board shall have the authority to di- rect the Department to pay reasonable attorneys fees to the extent and in the manner provided by section 4137(b)(5) of this title.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1987 AMENDMENT Amendment by Pub. L. 100–204 not applicable with re- spect to any grievance in which the Board has issued a final decision pursuant to section 4137 of this title be- fore Dec. 22, 1987, see section 181(e) of Pub. L. 100–204, set out as a note under section 3946 of this title. UPDATE TO FOREIGN AFFAIRS MANUAL Pub. L. 117–263, div. I, title XCII, § 9202(b)(2), Dec. 23, 2022, 136 Stat. 3864, provided that: ‘‘The Director of Global Talent Management shall— ‘‘(A) update the ‘Grounds for Disciplinary Action’ and ‘List of Disciplinary Offenses and Penalties’ sec- tions of the Foreign Affairs Manual to reflect the amendments made under paragraph (1) [amending this section]; and ‘‘(B) communicate such updates to Department [of State] staff through publication in Department No- tices.’’ EXPEDITED SEPARATION OUT Pub. L. 105–277, div. G, subdiv. B, title XXIII, § 2311(b), Oct. 21, 1998, 112 Stat. 2681–826, provided that: ‘‘(1) SEPARATION OF LOWEST RANKED FOREIGN SERVICE MEMBERS.—Not later than 90 days after the date of en- actment of this Act [Oct. 21, 1998], the Secretary of State shall develop and implement procedures to iden- tify, and recommend for separation, any member of the Foreign Service ranked by promotion boards of the De- partment of State in the bottom 5 percent of his or her class for 2 or more of the 5 years preceding the date of enactment of this Act (in this subsection referred to as the ‘years of lowest ranking’) if the rating official for such member was not the same individual for any two of the years of lowest ranking. ‘‘(2) SPECIAL INTERNAL REVIEWS.—In any case where the member was evaluated by the same rating official in any 2 of the years of lowest ranking, an internal re- view of the member’s file shall be conducted to deter- mine whether the member should be considered for ac- tion leading to separation. ‘‘(3) PROCEDURES.—The Secretary of State shall de- velop procedures for the internal reviews required under paragraph (2).’’ DEFINITION OF ‘‘REASONABLE CAUSE’’ Pub. L. 101–167, title V, § 586(c), Nov. 21, 1989, 103 Stat. 1252, provided that for purposes of amendments by sec- tion 586(a) and (b) of Pub. L. 101–167, which amended this section and section 4136 of this title, reasonable cause to believe that a member has committed a crime for which a sentence of imprisonment may be imposed was to be defined as a member of the Service having been convicted of, and sentence of imprisonment hav- ing been imposed for, a job-related crime, prior to re- peal by Pub. L. 102–138, title I, § 143(c), Oct. 28, 1991, 105 Stat. 668. § 4010a. Reductions in force (a) Authorization and regulations The Secretary may conduct reductions in force and shall prescribe regulations for the sep- aration of members of the Service holding a ca- reer or career candidate appointment under sub- chapter III of this chapter, under such reduc- tions in force which give due effect to the fol- lowing: (1) Organizational changes. (2) Documented employee knowledge, skills, or competencies. Page 1465 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 4012a (3) Tenure of employment. (4) Documented employee performance. (5) Military preference, subject to section 3501(a)(3) of title 5. (b) Applicability of retirement benefits The provisions of section 4009 of this title shall be applicable to any member of the Service holding a career or career candidate appoint- ment under subchapter III of this chapter, who is separated under the provisions of this section. (c) Grievance procedure An employee against whom action is taken under this section may elect either to file a grievance under subchapter XI or to appeal to the Merit Systems Protection Board under pro- cedures prescribed by the Board. Grievances under subchapter XI shall be limited to cases of reprisal, interference in the conduct of an em- ployee’s official duties, or similarly inappro- priate use of the authority of this section. (Pub. L. 96–465, title I, § 611, as added Pub. L. 103–236, title I, § 181(a)(2), Apr. 30, 1994, 108 Stat. 417; amended Pub. L. 103–415, § 1(ii), Oct. 25, 1994, 108 Stat. 4303.) Editorial Notes PRIOR PROVISIONS A prior section 611 of Pub. L. 96–465 was renumbered section 612 and is classified to section 4011 of this title. AMENDMENTS 1994—Pub. L. 103–415 made technical amendment re- lating to style of section catchline. Statutory Notes and Related Subsidiaries EMPLOYMENT ASSISTANCE REFERRAL SYSTEM FOR CERTAIN MEMBERS OF FOREIGN SERVICE Pub. L. 103–236, title I, § 179, Apr. 30, 1994, 108 Stat. 415, as amended by Pub. L. 103–415, § 1(g), Oct. 25, 1994, 108 Stat. 4300, provided that: ‘‘(a) REFERRAL SYSTEM.—Certain members of the For- eign Service (as described in subsection (b)), may par- ticipate in the Office of Personnel Management’s Inter- agency Placement programs or any successor program. Such members of the Foreign Service shall be treated in the same manner as employees participating in such a program as of the effective date of this Act [Apr. 30, 1994]. ‘‘(b) CERTAIN MEMBERS OF THE FOREIGN SERVICE.—For purposes of this section, the term ‘members of the For- eign Service’ means any individuals holding career or career candidate appointments under chapter 3 of the Foreign Service Act of 1980 [22 U.S.C. 3941 et seq.].’’ CONSULTATION WITH DIRECTOR OF OFFICE OF PER- SONNEL MANAGEMENT PRIOR TO PRESCRIBING REGU- LATIONS FOR REDUCTIONS IN FORCE Pub. L. 103–236, title I, § 181(c), Apr. 30, 1994, 108 Stat. 418, as amended by Pub. L. 103–415, § 1(i), Oct. 25, 1994, 108 Stat. 4301, provided that: ‘‘The Secretary of State (or in the case of any other agency authorized by law to utilize the Foreign Service personnel system, the head of that agency) shall consult with the Director of the Office of Personnel Management before prescribing regulations for reductions in force under section 611 of the Foreign Service Act of 1980 [22 U.S.C. 4010a] (as added by subsection (a) of this section), and shall pub- lish such regulations.’’ § 4011. Termination of limited appointments Except as provided in section 4010(a)(2) of this title, the Secretary may terminate at any time the appointment of any member of the Service serving under a limited appointment who is in the Senior Foreign Service, who is assigned to a salary class in the Foreign Service Schedule or who is paid in accordance with section 3967 of this title or is a United States citizen paid under a compensation plan under section 3968 of this title. (Pub. L. 96–465, title I, § 612, formerly § 611, Oct. 17, 1980, 94 Stat. 2099; renumbered § 612 and amended Pub. L. 103–236, title I, §§ 180(a)(7), 181(a)(1), Apr. 30, 1994, 108 Stat. 416.) Editorial Notes PRIOR PROVISIONS A prior section 612 of Pub. L. 96–465 was renumbered section 613 and is classified to section 4012 of this title. AMENDMENTS 1994—Pub. L. 103–236, § 180(a)(7), substituted ‘‘or who is paid in accordance with section 3967 of this title or is a United States citizen paid under a compensation plan under section 3968 of this title.’’ for ‘‘, or who is a family member of a Government employee serving under a local compensation plan established under sec- tion 3968 of this title.’’ § 4012. Termination of appointments of consular agents and foreign national employees (a) The Secretary of State may terminate at any time the appointment of any consular agent in light of the criteria and procedures normally followed in the locality in similar cir- cumstances. (b) The Secretary may terminate at any time the appointment of any foreign national em- ployee in light of the criteria and procedures normally followed in the locality in similar cir- cumstances. (Pub. L. 96–465, title I, § 613, formerly § 612, Oct. 17, 1980, 94 Stat. 2099; renumbered § 613, Pub. L. 103–236, title I, § 181(a)(1), Apr. 30, 1994, 108 Stat. 416.) Editorial Notes PRIOR PROVISIONS A prior section 613 of Pub. L. 96–465 was renumbered section 614 and is classified to section 4013 of this title. § 4012a. Foreign national employees separation pay (a) Establishment There is established in the Treasury of the United States a fund to provide separation pay for foreign national employees of agencies of the United States Government, other than the De- partment of Defense. (b) Funding There shall be deposited in such account— (1) all amounts previously obligated for ac- crued separation pay of foreign national em- ployees of such agencies of the United States Government; and (2) amounts obligated for fiscal years after 1991 by such agencies for the current and fu- ture costs of separation pay of foreign na- tional employees.