PART 754—COMPLAINT PROCEDURES, ADVERSE ACTIONS, AND APPEALS FOR CRIMINAL HISTORY INQUIRIES PRIOR TO CONDITIONAL OFFER Authority: 5 U.S.C. 554(a)(2), 1103(a)(5)(A), 1104(a)(2), 9201-9205, and Pub. L. 116-92, sec. 1122(b)(1). Source: 88 FR 60330, Sept. 1, 2023, unless otherwise noted. Subpart A—Complaint Procedures § 754.101 Coverage. (a) Actions covered. (b) Definitions. Agency, applicant, appointing authority, conditional offer, criminal history record information, employee § 754.102 Agency complaint process. (a) Complaint intake. (2) An applicant may submit a complaint, or any other information, to an agency within 30 calendar days of the date of the alleged non-compliance by an employee of an agency with section 9202 of title 5, United States Code and part 920 of this chapter. (3) The agency shall extend the 30-calendar-day time limit in paragraph (a)(2) of this section when the applicant shows that the applicant was not notified of the time limits and was not otherwise aware of them, that the applicant did not know and reasonably should not have known that the non-compliance with 5 U.S.C. 9202 and part 920 of this chapter occurred, to consider a reasonable accommodation of a disability, or for other proper and adequate reasons considered by the agency. (4) The agency must conduct outreach to inform an applicant of the procedure for submitting a complaint when it has reasonable cause to believe that the applicant is attempting to file a complaint. (b) Agency investigation. (2) In carrying out its delegated responsibilities under paragraph (b)(1) of this section, the agency shall develop an impartial and appropriate factual record adequate for OPM to make findings on the claims raised by any written complaint. An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether non-compliance with 5 U.S.C. 9202 and part 920 of this chapter occurred. Agencies have discretion to determine the appropriate fact-finding methods that efficiently and thoroughly address the matters at issue. (3) The agency must delegate to the investigator sufficient authority to secure the production, from agency employees and contractors, of documentary and testimonial evidence needed to investigate and report on the complaint. (4) The applicant or applicant's representative must be given a reasonable time to respond to a request for documentary and testimonial evidence. This time period will not exceed 10 calendar days under ordinary circumstances. However, in the agency's discretion, an agency may grant an extension under extenuating circumstances. (5) The agency shall complete its investigation within 60 calendar days of the date of the filing of the complaint. An agency may extend the investigation period when the agency has provided more than 10 calendar days for the applicant to respond to a request for documentary and testimonial evidence pursuant to paragraph (b)(4) of this section. Notwithstanding an extension, the agency shall complete the investigation as expeditiously as possible. (6) Within 30 calendar days of completing its investigation, the agency shall provide to OPM an administrative report. This report should include the applicant's complaint, or any other information submitted by the applicant, the agency's factual findings, a complete copy of all information gathered during the investigation, and any other information that the agency believes OPM should consider. The report should be submitted to the Manager, Employee Accountability, Accountability and Workforce Relations, Employee Services, Office of Personnel Management, 1900 E Street NW, Room 7H28, Washington, DC 20415 or [email protected]. (c) OPM adjudication. (2) OPM shall notify the agency and the subject(s) of the complaint in writing of its assessment of the complaint, including any decision to initiate adverse action proceedings under subpart B of this part. (d) OPM oversight. (2) OPM retains jurisdiction to make final determinations and take actions regarding the receipt and investigation of complaints, or any other information; record-keeping; and reporting related to an allegation of non-compliance with 5 U.S.C. 9202 and part 920 of this chapter. Paragraphs (a) and (b) of this section notwithstanding, OPM may, in its discretion, exercise its jurisdiction under this section in any case it deems necessary. (3) OPM may set forth policies, procedures, standards, and supplementary guidance for the implementation of this section in OPM issuances. § 754.103 Applicant representatives. An applicant may select a representative of the applicant's choice to assist the applicant during the complaint process. An agency may disallow as an applicant's representative an individual whose activities as a representative would cause a conflict of interest or position; an agency employee who cannot be released from official duties because of the priority needs of the Government; or an agency employee whose release would give rise to unreasonable costs to the Government. Subpart B—Adverse Actions § 754.201 Coverage. (a) Actions covered. (b) Employees covered. (c) Definitions. Civil penalty Day Director Suspension § 754.202 Penalty determination. (a) First violation. (b) Subsequent violations. (1) For a second violation, order a suspension of the employee for a period of not more than 7 days. (2) For a third violation, order a suspension of the employee for a period of more than 7 days. (3) For a fourth violation— (i) Order a suspension of the employee for a period of more than 7 days; and (ii) Order the employee's agency to collect a civil penalty against the employee in an amount that is not more than $250, and remit the penalty amount to the U.S. Department of Treasury for deposit in the Treasury. (4) For a fifth violation— (i) Order a suspension of the employee for a period of more than 7 days; and (ii) Order the employee's agency to collect a civil penalty against the employee in an amount that is not more than $500, and remit the penalty amount to the U.S. Department of Treasury for deposit in the Treasury. (5) For any subsequent violation— (i) Order a suspension of the employee for a period of more than 7 days; and (ii) Order the employee's agency to collect a civil penalty against the employee in an amount that is not more than $1,000, and remit the penalty amount to the U.S. Department of Treasury for deposit in the Treasury. (c) Duration of suspension and penalty amount. (d) Agency responsibilities. (1) The agency shall carry out the order of the Director to suspend the employee as soon as practicable. (2) The agency shall carry out the order of the Director to collect and remit a civil penalty as soon as practicable, unless the employee timely appeals the action under § 754.204, in which case the agency shall collect and remit the civil penalty as soon as practicable after the Merit Systems Protection Board issues a final decision sustaining the action. (e) Administrative law judges. § 754.203 Procedures. (a) Notice of proposed action. (b) Employee's answer. (2) The Director or Director's Designee may designate an Office of Personnel Management official to hear the employee's oral answer, and confer authority on that person to make or recommend a final decision on the proposed adverse action. (c) Representation. (d) OPM decision. (2) The decision notice must specify in writing the reasons for the decision and advise the employee of any appeal rights. (e) Administrative Law Judges. § 754.204 Appeal rights. (a) An employee against whom an action is taken by OPM under § 754.203 may appeal to the Merit Systems Protection Board, under the regulations of the Board, but only to the extent the action concerns suspensions for more than 14 days or combines a suspension and a civil penalty. An appeal must be filed by not later than 30 days after the effective date of the action. The procedures for filing an appeal with the Board are found at 5 CFR part 1201. (b) If the Board finds that one or more of the charges brought by OPM against the employee is supported by a preponderance of the evidence, regardless of whether all specifications are sustained, it must affirm OPM's action. The Board may neither review whether the adverse action is for such cause as will promote the efficiency of the service, nor mitigate the duration of a suspension or the amount of a civil penalty ordered under this part. (c) An appeal against OPM is the exclusive avenue of appeal. The employee has no right to file a separate appeal against the employing agency for processing a personnel action as ordered by OPM under § 754.202. (d) OPM's action under § 754.202 of this part is not subject to an agency's administrative grievance procedure or a negotiated grievance procedure under a collective bargaining agreement between an exclusive bargaining representative and any agency. § 754.205 Agency records. The complaint, the applicant's supporting material, the agency's administrative file, the notice of the proposed action, the employee's written reply, if any, summary or transcript of the employee's oral reply, if any, the notice of decision, and any order to the covered agency effecting the action together with any supporting material, must be maintained in the applicable Privacy Act system of records.