### §4302. Establishment of performance appraisal systems

(a) Each agency shall develop one or more performance appraisal systems which—

(1) provide for periodic appraisals of job performance of employees;

(2) encourage employee participation in establishing performance standards; and

(3) use the results of performance appraisals as a basis for training, rewarding, reassigning, promoting, reducing in grade, retaining, and removing employees.

(b)(1) The head of each agency, in consultation with the Director of the Office of Personnel Management and the Special Counsel, shall develop criteria that—

(A) the head of the agency shall use as a critical element for establishing the job requirements of a supervisory employee; and

(B) promote the protection of whistleblowers.

(2) The criteria required under paragraph (1) shall include—

(A) principles for the protection of whistleblowers, such as the degree to which supervisory employees—

(i) respond constructively when employees of the agency make disclosures described in subparagraph (A) or (B) of section 2302(b)(8);

(ii) take responsible actions to resolve the disclosures described in clause (i); and

(iii) foster an environment in which employees of the agency feel comfortable making disclosures described in clause (i) to supervisory employees or other appropriate authorities; and

(B) for each supervisory employee—

(i) whether the agency entered into an agreement with an individual who alleged that the supervisory employee committed a prohibited personnel practice; and

(ii) if the agency entered into an agreement described in clause (i), the number of instances in which the agency entered into such an agreement with respect to the supervisory employee.

(3) In this subsection—

(A) the term "agency" means any entity the employees of which are covered under paragraphs (8) and (9) of section 2302(b), without regard to whether any other provision of this section is applicable to the entity;

(B) the term "prohibited personnel practice" has the meaning given the term in section 2302(a)(1);

(C) the term "supervisory employee" means an employee who would be a supervisor, as defined in section 7103(a), if the agency employing the employee was an agency for purposes of chapter 71; and

(D) the term "whistleblower" means an employee who makes a disclosure described in section 2302(b)(8).

(c) Under regulations which the Office of Personnel Management shall prescribe, each performance appraisal system shall provide for—

(1) establishing performance standards which will, to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria (which may include the extent of courtesy demonstrated to the public) related to the job in question for each employee or position under the system;

(2) as soon as practicable, but not later than October 1, 1981, with respect to initial appraisal periods, and thereafter at the beginning of each following appraisal period, communicating to each employee the performance standards and the critical elements of the employee's position;

(3) evaluating each employee during the appraisal period on such standards;

(4) recognizing and rewarding employees whose performance so warrants;

(5) assisting employees in improving unacceptable performance; and

(6) reassigning, reducing in grade, or removing employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance.

(d) In accordance with regulations which the Office shall prescribe, the head of an agency may administer and maintain a performance appraisal system electronically.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 440; Pub. L. 95–454, title II, §203(a), Oct. 13, 1978, 92 Stat. 1132; Pub. L. 102–378, §2(18), Oct. 2, 1992, 106 Stat. 1347; Pub. L. 106–398, §1 [[div. A], title XI, §1104], Oct. 30, 2000, 114 Stat. 1654, 1654A–311; Pub. L. 115–91, div. A, title X, §1097(d)(1), Dec. 12, 2017, 131 Stat. 1619.)

| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
| --- | --- | --- |
| | 5 U.S.C. 2002. | Sept. 30, 1950, ch. 1123, §3, 64 Stat. 1098. |

Statutes at Large

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

#### **Editorial Notes**

#### Amendments

2017—Subsecs. (b) to (d). Pub. L. 115–91 added subsec. (b) and redesignated former subsecs. (b) and (c) as (c) and (d), respectively.

2000—Subsec. (c). Pub. L. 106–398 added subsec. (c).

1992—Subsec. (a)(3). Pub. L. 102–378 substituted a period for semicolon at end.

1978—Pub. L. 95–454 substituted "Establishment of performance appraisal systems" for "Performance-rating plans; establishment of" in section catchline and in text substituted provisions relating to the establishment of a performance appraisal system, for provisions relating to the establishment of performance-rating plans.

#### **Statutory Notes and Related Subsidiaries**

#### Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

#### Annual Report to Congress on Unacceptable Performance in Whistleblower Protection

Pub. L. 115–91, div. A, title X, §1097(d)(3), Dec. 12, 2017, 131 Stat. 1620, provided that:

"(A) Definitions.—In this paragraph, the terms 'agency' and 'whistleblower' have the meanings given the terms in section 4302(b)(3) of title 5, United States Code, as amended by paragraph (1).

"(B) Report.—Each agency shall annually submit to the Committee on Homeland Security and Governmental Affairs of the Senate, the Committee on Oversight and Government Reform [now Committee on Oversight and Accountability] of the House of Representatives, and each committee of Congress with jurisdiction over the agency a report that details—

"(i) the number of performance appraisals, for the year covered by the report, that determined that an employee of the agency failed to meet the standards for protecting whistleblowers that were established under section 4302(b) of title 5, United States Code, as amended by paragraph (1);

"(ii) the reasons for the determinations described in clause (i); and

"(iii) each performance-based or corrective action taken by the agency in response to a determination under clause (i)."