PART 432—PERFORMANCE BASED REDUCTION IN GRADE AND REMOVAL ACTIONS Authority: 5 U.S.C. 4303, 4305; E.O. 14284, 90 FR 17729. Source: 54 FR 26179, June 21, 1989, unless otherwise noted. § 432.101 Statutory authority. This part applies to reduction in grade and removal of employees covered by the provisions of this part based solely on performance at the unacceptable level. 5 U.S.C. 4305 authorizes the Office of Personnel Management to prescribe regulations to carry out the purposes of title 5, chapter 43, United States Code, including 5 U.S.C. 4303, which covers agency actions to reduce in grade or remove employees for unacceptable performance. (The provisions of 5 U.S.C. 7501 et seq., [58 FR 65533, Dec. 15, 1993] § 432.102 Coverage. (a) Actions covered. (b) Actions excluded. (1) The reduction in grade of a supervisor or manager who has not completed the probationary period under 5 U.S.C. 3321(a)(2) if such a reduction is based on supervisory or managerial performance and the reduction is to the grade held immediately before becoming a supervisor or manager in accordance with 5 U.S.C. 3321(b); (2) The reduction in grade or removal of an employee in the competitive service who is serving a probationary or trial period under an initial appointment; (3) The reduction in grade or removal of an employee in the competitive service serving in an appointment that requires no probationary or trial period who has not completed 1 year of current continuous employment in the same or similar position under other than a temporary appointment limited to 1 year or less; (4) The reduction in grade or removal of an employee in the excepted service who has not completed 1 year of current continuous employment in the same or similar positions; (5) An action imposed by the Merit Systems Protection Board under the authority of 5 U.S.C. 1206; (6) An action taken under 5 U.S.C. 7521 against an administrative law judge; (7) An action taken under 5 U.S.C. 7532 in the interest of national security; (8) An action taken under a provision of statute, other than one codified in title 5 of the U.S. Code, which excepts the action from the provisions of title 5 of the U.S. Code; (9) A removal from the Senior Executive Service to a civil service position outside the Senior Executive Service under part 359 of this chapter; (10) A reduction-in-force governed by part 351 of this chapter; (11) A voluntary action by the employee; (12) A performance-based action taken under part 752 of this chapter; (13) An action that terminates a temporary or term promotion and returns the employee to the position from which temporarily promoted, or to a different position of equivalent grade and pay if the agency informed the employee that it was to be of limited duration; (14) A termination in accordance with terms specified as conditions of employment at the time the appointment was made; (15) An involuntary retirement because of disability under part 831 of this chapter; and (16) An action against a technician in the National Guard concerning any activity under 32 U.S.C. 709(f)(4), except as provided by 32 U.S.C. 709(f)(5). (c) Agencies covered. (1) The executive departments listed at 5 U.S.C. 101; (2) The military departments listed at 5 U.S.C. 102; (3) Independent establishments in the executive branch as described at 5 U.S.C. 104, except for a Government corporation; and (4) The Government Printing Office. (d) Agencies excluded. (1) A Government corporation; (2) The Central Intelligence Agency; (3) The Defense Intelligence Agency; (4) The National Security Agency; (5) Any executive agency or unit thereof which is designated by the President and the principal function of which is the conduct of foreign intelligence or counterintelligence activities; (6) The General Accounting Office; (7) The U.S. Postal Service; and (8) The Postal Rate Commission. (e) Employees covered. (f) Employees excluded. (1) An employee in the competitive service who is serving a probationary period under an initial appointment; (2) An employee in the competitive service serving in an appointment that requires no probationary period, who has not completed 1 year of current continuous employment in the same or similar positions under other than a temporary appointment limited to 1 year or less; (3) A preference eligible employee in the excepted service who has not completed 1 year of current continuous employment in the same or similar positions; (4) A nonpreference eligible employee in the excepted service who has not completed 2 years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment (see 5 CFR 213.104(a)) limited to 2 years or less; (5) An employee outside the United States who is paid in accordance with local native prevailing wage rates for the area in which employed; (6) An individual in the Foreign Service of the United States; (7) An employee who holds a position with the Veterans Health Administration which has been excluded from the competitive service by or under a provision of title 38, United States Code, unless such employee was appointed to such a position under section 7401(3) of title 38; (8) An administrative law judge appointed under 5 U.S.C. 3105; (9) An individual in the Senior Executive Service; (10) An individual appointed by the President; (11) An employee occupying a position in Schedule C or Schedule Policy/Career as authorized under part 213 of this chapter; (12) A reemployed annuitant; (13) An individual occupying a position in the excepted service for which employment is not reasonably expected to exceed 120 calendar days in a consecutive 12 month period; and (14) A manager or supervisor returned to his or her previously held grade pursuant to 5 U.S.C. 3321 (a)(2) and (b). [54 FR 26179, June 21, 1989, as amended at 57 FR 10125, Mar. 24, 1992; 57 FR 20042, May 11, 1992; 58 FR 13192, Mar. 10, 1993; 58 FR 65533, Dec. 15, 1993; 87 FR 67782, Nov. 10, 2022; 89 FR 25047, Apr. 9, 2024; 91 FR 5655, Feb. 6, 2026; 91 FR 49111, Aug. 3, 2026] § 432.103 Definitions. For the purpose of this part— (a) Acceptable performance (b) Critical element (c) Current continuous employment (d) Opportunity to demonstrate acceptable performance (e) Reduction in grade (f) Removal Similar positions (h) Unacceptable performance [54 FR 26179, June 21, 1989, as amended at 54 FR 49076, Nov. 29, 1989; 55 FR 25950, June 26, 1990; 57 FR 23045, June 1, 1992; 57 FR 60717, Dec. 22, 1992; 58 FR 65534, Dec. 15, 1993; 60 FR 43946, Aug. 23, 1995; 85 FR 65982, Oct. 16, 2020] § 432.104 Addressing unacceptable performance. At any time during the performance appraisal cycle that an employee's performance is determined to be unacceptable in one or more critical elements, the agency shall notify the employee of the critical element(s) for which performance is unacceptable and inform the employee of the performance requirement(s) or standard(s) that must be attained in order to demonstrate acceptable performance in his or her position. The agency should also inform the employee that unless his or her performance in the critical element(s) improves to and is sustained at an acceptable level, the employee may be reduced in grade or removed. For each critical element in which the employee's performance is unacceptable, the agency shall afford the employee a reasonable opportunity to demonstrate acceptable performance, commensurate with the duties and responsibilities of the employee's position. As part of the employee's opportunity to demonstrate acceptable performance, the agency shall offer assistance to the employee in improving unacceptable performance. [87 FR 67782, Nov. 10, 2022] § 432.105 Proposing and taking action based on unacceptable performance. (a) Proposing action based on unacceptable performance. (1) Once an employee has been afforded a reasonable opportunity to demonstrate acceptable performance pursuant to § 432.104, an agency may propose a reduction-in-grade or removal action if the employee's performance during or following the opportunity to demonstrate acceptable performance is unacceptable in one or more of the critical elements for which the employee was afforded an opportunity to demonstrate acceptable performance. (2) If an employee has performed acceptably for 1 year from the beginning of an opportunity to demonstrate acceptable performance (in the critical element(s) for which the employee was afforded an opportunity to demonstrate acceptable performance), and the employee's performance again becomes unacceptable, the agency shall afford the employee an additional opportunity to demonstrate acceptable performance before determining whether to propose a reduction in grade or removal under this part. (3) A proposed action may be based on instances of unacceptable performance which occur within a 1 year period ending on the date of the notice of proposed action. (4) An employee whose reduction in grade or removal is proposed under this part is entitled to: (i) Advance notice. (B) An agency may extend this advance notice period for a period not to exceed 30 days under regulations prescribed by the head of the agency. An agency may extend this notice period further without prior OPM approval for the following reasons: ( 1 ( 2 ( 3 ( 4 ( 5 ( 6 (C) If an agency believes that an extension of the advance notice period is necessary for another reason, it may request prior approval for such extension from the Manager, Employee Accountability, Accountability and Workforce Relations, Employee Services, Office of Personnel Management, 1900 E Street NW, Washington, DC 20415. (ii) Opportunity to answer. (iii) Representation. (iv) Consideration of medical conditions. (b) Final written decision. [54 FR 26179, June 21, 1989. Redesignated and amended at 54 FR 49076, Nov. 29, 1989. Redesignated and amended at 58 FR 65534, Dec. 15, 1993; 85 FR 65982, Oct. 16, 2020; 87 FR 67782, Nov. 10, 2022] § 432.106 Appeal and grievance rights. (a) Appeal rights. (1) In the competitive service and has completed a probationary or trial period; (2) In the competitive service serving in an appointment which is not subject to a probationary or trial period, and has completed 1 year of current continuous employment in the same or similar position(s) under other than a temporary appointment limited to 1 year or less; (3) A preference eligible in the excepted service who has completed 1 year of current continuous employment in the same or similar position(s); or (4) A nonpreference eligible in the excepted service who is covered by subparts C and D of part 752 of this chapter. (b) Grievance rights. i.e., (i) In the competitive service and has completed a probationary or trial period. (ii) In the competitive service, serving in an appointment which is not subject to a probationary or trial period, and has completed 1 year of current continuous employment in the same or similar position(s) under other than a temporary appointment limited to 1 year or less; (iii) A preference eligible in the excepted service who has completed 1 year of current continuous employment in the same or similar position(s); or (iv) A nonpreference eligible in the excepted service who is covered by subparts C and D of part 752 of the chapter. (2) 5 U.S.C. 7114(a)(5) and 7121(b)(3), and the terms of an applicable collective bargaining agreement govern representation for employees in an exclusive bargaining unit who grieve a matter under this section through the negotiated grievance process. (c) Election of forum. [54 FR 26179, June 21, 1989. Redesignated at 54 FR 49076, Nov. 29, 1989; 57 FR 20043, May 11, 1992; 58 FR 13192, Mar. 10, 1993. Redesignated at 58 FR 65534, Dec. 15, 1993; 85 FR 65982, Oct. 16, 2020] § 432.107 Agency records. (a) When the action is effected. (b) When the action is not effected. [55 FR 25950, June 26, 1990, as amended at 58 FR 65534, Dec. 15, 1993; 85 FR 65982, Oct. 16, 2020]