In accordance with statutory changes in 5 U.S.C. § 5754, the Office of Personnel Management (OPM) has issued interim regulations, 70 Fed. Reg. 25732 (2005), modifying 5 CFR Part 575. OPM regulations, at 5 CFR § 575.307, require that an agency have a Retention Incentive Plan in effect in order to continue to issue retention incentives. This interim plan replaces chapter 2-6 of DOJ Order 1200.1 and the temporary memorandum of June 17, 2005. We will issue a permanent modification of this chapter, which will serve as the Department's permanent plan, following OPM's issuance of final regulations.
Citations in this plan to sections of 5 CFR Part 575 refer to the sections as listed in 70 Fed. Reg. 25732 (2005).
- This document is the Department's interim plan for paying retention incentives, consistent with 5 CFR § 575.307(a).
- Retention incentives may be paid to current Department employees in the categories of positions listed at 5 CFR § 575.303, including: General Schedule (GS) employees, Senior Level (SL) employees, career Senior Executive Service (SES) employees, members of the Federal Bureau of Investigation/Drug Enforcement Administration (FBI/DEA) SES, Executive Schedule (EX) employees, prevailing rate employees, law enforcement officers, Immigration Judges, Assistant U.S. Attorneys, and Assistant U.S. Trustees, except that retention incentives may not be paid to employees excluded by 5 CFR § 575.304, including Presidential appointees, non-career SES employees, U.S. Marshals, U.S. Attorneys, U.S. Trustees, and those positions excluded from the competitive service by reason of their confidential, policy making, policy determining, or policy advocating nature.
- Consistent with the provisions of this plan, the terms of 5 CFR Part 575, and the availability of funds for such purpose, an employee in a qualifying position may be paid a retention incentive when an appropriate approving official determines that the unusually high or unique qualifications of the employee or a special need for the employee's services make it essential to retain the employee and the employee would likely leave the Federal service in the absence of a retention incentive. Retention incentives may only be paid to employees who have a current performance rating at or above the "fully successful" level or its equivalent. Retention incentives may not be authorized for an employee during a period of time already covered by a recruitment incentive or relocation incentive service agreement. A relocation incentive may, however, be offered to an employee, and paid simultaneously, where an employee is already receiving a retention incentive.
- Recommending and approving officials must consider the following factors in determining whether a retention incentive should be paid, the amount of any such payment, and the length of any service agreement in addition to those specified in 5 CFR § 575.306:
- Funds available to pay an incentive to the employee under current consideration and for any future incentives that may be needed, and
- The employee's qualifications.
An approving official must make a written determination in accordance with 5 CFR § 575.308 and, except as provided in 5 CFR § 575.310(f), the employee must sign a service agreement before an incentive may be paid.
- Incentives may be paid in amounts of up to 25 percent (10 percent where the incentive is authorized for a group or category of employees) of the employee's basic pay (as defined by 5 CFR § 575.302 to include locality pay and special schedules), calculated as stated in 5 CFR § 575.309. (In cases of critical agency need, a waiver of this limitation may be sought from the Office of Personnel Management (OPM). Component heads, who find it necessary to obtain such a waiver in a specific situation, shall forward requests and the supporting documentation required by 5 CFR § 575.309(e) to the Assistant Attorney General for Administration (AAG/A) for review. The AAG/A will make the request to OPM.)
- Each determination to pay a retention incentive and the amount of the incentive must be approved by an official who is at a higher level than the official who made the initial determination, unless that official is the Deputy Attorney General or the Attorney General. An exception may be made where advance approval is granted for a group of employees as provided in 5 CFR § 575.307(b).
- The following officials may approve retention incentives for an individual or a group of positions when the requirements of 5 CFR §§ 575.305, 575.306, 575.308 and this plan are met.
- General Schedule and Prevailing Rate Positions (Except Attorneys and Law Clerks).
- Bureau heads may approve incentives for these employees. This authority may be redelegated. However, the approving official may not be at a level below the Bureau Personnel Officer.
- For Offices, Boards, and Divisions (OBD), the approving official is the AAG/A. Requests shall be submitted through the Human Resources Staff, Justice Management Division (JMD). OBD heads shall review requests before submission.
- Attorneys and Law Clerks. The Bureau General Counsel or OBD head shall approve incentive determinations for attorneys and law clerks, except SES, Executive Schedule, SL, FBI/DEA SES employees, and Immigration Judges. This authority may be redelegated in writing.
- SES, Executive Schedule, SL, and FBI-DEA SES employees, and Immigration Judges. The Deputy Attorney General or his or her designee retains authority to approve incentive determinations for all employees in these categories. Bureaus shall submit requests for review and approval of incentives for these positions through the AAG/A. Designations for these categories of employees may not be made on a group or category basis.
- Except as provided in 5 CFR § 575.310(f), an employee offered a retention incentive must sign a service agreement before any part of the retention incentive is paid. Payments may be made as a lump sum payment at the end of a service period or in installments over the course of the service period or a combination of both, but may not be provided in advance. The service agreement must contain the length of the service period as determined by the approving official, but may not be for less than six months or more than four years. Each bureau shall be as consistent as practicable in determining the length of service agreements and the amount of incentives for their employees in similar circumstances. Service agreements must be consistent with the requirements of 5 CFR § 575.310 and any requirements of this plan. Retention incentives are subject to the aggregate pay limitation under 5 CFR Part 530, subpart B.
- Each service agreement shall describe the rules governing the termination or reduction of a retention incentive, including the Department's right to unilaterally terminate or reduce the amount of such an agreement. Department policy is to apply the requirements of 5 CFR § 575.311 and other provisions of this plan. In addition, it is Department policy that movement between components of the Department shall terminate a service agreement unless the gaining component justifies and approves an allowance. Rejustified allowances may be at the same or different levels. However, a component shall avoid using offers of increased retention allowances as a means of recruiting Department employees from other components and should recognize that increased incentives are only warranted where the employee would likely leave the Federal service, but for the increase. Notices of termination or reduction of a retention incentive must be in writing. Termination or reduction of a retention incentive is not grievable or appealable.
C. Documentation and Reporting.
- Each component approving a determination to pay a retention incentive shall document its decision and shall retain sufficient documentation to justify the payment and to reconstruct the action. This documentation shall include a copy of the service agreement, the initial incentive determination, the employee's rating of record, and the following information:
- The criteria used to determine the need for paying the incentive and how the criteria in 5 CFR § 575.306 were applied;
- The criteria used to determine the amount of the incentive and how the criteria were applied;
- The qualifications of the employee in sufficient detail to demonstrate that he/she meets any special qualifications needed for the position or, where a justification is based upon the unusually high and unique qualifications of an employee, documentation of those high and unique qualifications;
- The length of the service agreement and the criteria used to make the determination; and
- Documentation supporting the belief that there is a high risk that the employee or, where appropriate, a group or category of employees would likely leave the Federal service in the absence of a retention incentive.
The documentation shall be made available upon request for review by the JMD Human Resources Staffor OPM.
- Upon approval, payment of the recruitment incentive shall be documented by preparing an SF-50 and filing it in the employee's Official Personnel Folder. Each component shall prepare a quarterly report on its use of the approved incentives, and submit the report to the AAG/A with a copy to the Director, Human Resources Staff, no later than the 15th day of the month following the end of the quarter. For example: The report for the first quarter (January 1st through March 31st) is due April 15th. See Attachment 1 (Human Resources Staffwebsite). The final report, due on January 15th , shall be cumulative, covering the use of the incentive for the entire calendar year. See Attachment 2 (Human Resources Staff website). Each report shall include:
- The number of employees to whom an incentive was offered at any point during the calendar year;
- The number and dollar amount of incentives paid by position title, series, grade or pay level, and geographical area (city and state, or country);
- The annual salary of each employee who was paid an incentive and the percentage of the incentive;
- The method of payment (initial or final lump sum, installment, or combination);
- The length of any service agreement related to each incentive; and
- A narrative discussion of the situations for which incentives were used, the effectiveness of the retention incentive authorities, and any recommendations for improving the use of the statutory authorities in terms of both regulatory change and Department requirements and flexibilities.
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Updated September 2, 2016