Part E—Human Resources Management

§411. Establishment of human resources management system

(a) Authority

(1) Sense of Congress

It is the sense of Congress that—

(A) it is extremely important that employees of the Department be allowed to participate in a meaningful way in the creation of any human resources management system affecting them;

(B) such employees have the most direct knowledge of the demands of their jobs and have a direct interest in ensuring that their human resources management system is conducive to achieving optimal operational efficiencies;

(C) the 21st century human resources management system envisioned for the Department should be one that benefits from the input of its employees; and

(D) this collaborative effort will help secure our homeland.

(2), (3) Omitted

(b) Effect on personnel

(1) Nonseparation or nonreduction in grade or compensation of full-time personnel and part-time personnel holding permanent positions

Except as otherwise provided in this chapter, the transfer under this chapter of full-time personnel (except special Government employees) and part-time personnel holding permanent positions shall not cause any such employee to be separated or reduced in grade or compensation for 1 year after the date of transfer to the Department.

(2) Positions compensated in accordance with Executive Schedule

Any person who, on the day preceding such person's date of transfer pursuant to this chapter, held a position compensated in accordance with the Executive Schedule prescribed in chapter 53 of title 5 and who, without a break in service, is appointed in the Department to a position having duties comparable to the duties performed immediately preceding such appointment shall continue to be compensated in such new position at not less than the rate provided for such position, for the duration of the service of such person in such new position.

(3) Coordination rule

Any exercise of authority under chapter 97 of title 5, including under any system established under such chapter, shall be in conformance with the requirements of this subsection.

(Pub. L. 107–296, title VIII, §841, Nov. 25, 2002, 116 Stat. 2229.)

Editorial Notes

References in Text

This chapter, referred to in subsec. (b)(1), (2), was in the original "this Act", meaning Pub. L. 107–296, Nov. 25, 2002, 116 Stat. 2135, known as the Homeland Security Act of 2002, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 101 of this title and Tables.

Codification

Section is comprised of section 841 of Pub. L. 107–296. Subsec. (a)(2), (3) of section 841 of Pub. L. 107–296 enacted chapter 97 (§9701) of Title 5, Government Organization and Employees.

Statutory Notes and Related Subsidiaries

Independent Investigation and Implementation Plan

Pub. L. 117–81, div. F, title LXIV, §6404, Dec. 27, 2021, 135 Stat. 2400, provided that:

"(a) In General.—Not later than 120 days after the date of the enactment of this Act [Dec. 27, 2021], the Comptroller General of the United States shall investigate whether the application in the Department of Homeland Security of discipline and adverse actions for managers and non-managers are administered in an equitable and consistent manner that results in the same or substantially similar disciplinary outcomes across the Department that are appropriately calibrated to address the identified misconduct, taking into account relevant aggravating and mitigating factors.

"(b) Consultation.—In carrying out the investigation described in subsection (a), the Comptroller General of the United States shall consult with the Under Secretary for Management of the Department of Homeland Security and the employee engagement steering committee established pursuant to subsection (b)(1) of section 711 of the Homeland Security Act of 2002 [6 U.S.C. 351(b)(1)] (as added by section 6401(a) of this Act).

"(c) Action by Under Secretary for Management.—Upon completion of the investigation described in subsection (a), the Under Secretary for Management of the Department of Homeland Security shall review the findings and recommendations of such investigation and implement a plan, in consultation with the employee engagement steering committee established pursuant to subsection (b)(1) of section 711 of the Homeland Security Act of 2002, to correct any relevant deficiencies identified by the Comptroller General of the United States in such investigation. The Under Secretary for Management shall direct the employee engagement steering committee to review such plan to inform committee activities and action plans authorized under such section 711 [6 U.S.C. 351]."

§412. Labor-management relations

(a) Limitation on exclusionary authority

(1) In general

No agency or subdivision of an agency which is transferred to the Department pursuant to this chapter shall be excluded from the coverage of chapter 71 of title 5 as a result of any order issued under section 7103(b)(1) of such title 5 after June 18, 2002, unless—

(A) the mission and responsibilities of the agency (or subdivision) materially change; and

(B) a majority of the employees within such agency (or subdivision) have as their primary duty intelligence, counterintelligence, or investigative work directly related to terrorism investigation.

(2) Exclusions allowable

Nothing in paragraph (1) shall affect the effectiveness of any order to the extent that such order excludes any portion of an agency or subdivision of an agency as to which—

(A) recognition as an appropriate unit has never been conferred for purposes of chapter 71 of such title 5; or

(B) any such recognition has been revoked or otherwise terminated as a result of a determination under subsection (b)(1).

(b) Provisions relating to bargaining units

(1) Limitation relating to appropriate units

Each unit which is recognized as an appropriate unit for purposes of chapter 71 of title 5 as of the day before the effective date of this chapter (and any subdivision of any such unit) shall, if such unit (or subdivision) is transferred to the Department pursuant to this chapter, continue to be so recognized for such purposes, unless—

(A) the mission and responsibilities of such unit (or subdivision) materially change; and

(B) a majority of the employees within such unit (or subdivision) have as their primary duty intelligence, counterintelligence, or investigative work directly related to terrorism investigation.

(2) Limitation relating to positions or employees

No position or employee within a unit (or subdivision of a unit) as to which continued recognition is given in accordance with paragraph (1) shall be excluded from such unit (or subdivision), for purposes of chapter 71 of such title 5, unless the primary job duty of such position or employee—

(A) materially changes; and

(B) consists of intelligence, counterintelligence, or investigative work directly related to terrorism investigation.

In the case of any positions within a unit (or subdivision) which are first established on or after the effective date of this chapter and any employees first appointed on or after such date, the preceding sentence shall be applied disregarding subparagraph (A).

(c) Waiver

If the President determines that the application of subsections (a), (b), and (d) would have a substantial adverse impact on the ability of the Department to protect homeland security, the President may waive the application of such subsections 10 days after the President has submitted to Congress a written explanation of the reasons for such determination.

(d) Coordination rule

No other provision of this chapter or of any amendment made by this chapter may be construed or applied in a manner so as to limit, supersede, or otherwise affect the provisions of this section, except to the extent that it does so by specific reference to this section.

(e) Rule of construction

Nothing in section 9701(e) of title 5 shall be considered to apply with respect to any agency or subdivision of any agency, which is excluded from the coverage of chapter 71 of title 5 by virtue of an order issued in accordance with section 7103(b) of such title 5 and the preceding provisions of this section (as applicable), or to any employees of any such agency or subdivision or to any individual or entity representing any such employees or any representatives thereof.

(Pub. L. 107–296, title VIII, §842, Nov. 25, 2002, 116 Stat. 2234.)

Editorial Notes

References in Text

This chapter, referred to in subsecs. (a)(1), (b)(1), and (d), was in the original "this Act", meaning Pub. L. 107–296, Nov. 25, 2002, 116 Stat. 2135, known as the Homeland Security Act of 2002, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 101 of this title and Tables.

The effective date of this chapter, referred to in subsec. (b), is 60 days after Nov. 25, 2002, see section 4 of Pub. L. 107–296, set out as an Effective Date note under section 101 of this title.

§413. Use of counternarcotics enforcement activities in certain employee performance appraisals

(a) In general

Each subdivision of the Department that is a National Drug Control Program Agency shall include as one of the criteria in its performance appraisal system, for each employee directly or indirectly involved in the enforcement of Federal, State, or local narcotics laws, the performance of that employee with respect to the enforcement of Federal, State, or local narcotics laws, relying to the greatest extent practicable on objective performance measures, including—

(1) the contribution of that employee to seizures of narcotics and arrests of violators of Federal, State, or local narcotics laws; and

(2) the degree to which that employee cooperated with or contributed to the efforts of other employees, either within the Department or other Federal, State, or local agencies, in counternarcotics enforcement.

(b) Definitions

For purposes of this section—

(1) the term "National Drug Control Program Agency" means—

(A) a National Drug Control Program Agency ¹, as defined in section 1701(7) ² of title 21 (as last in effect); and

(B) any subdivision of the Department that has a significant counternarcotics responsibility, as determined by—

(i) the counternarcotics officer, appointed under section 458 of this title; or

(ii) if applicable, the counternarcotics officer's successor in function (as determined by the Secretary); and

(2) the term "performance appraisal system" means a system under which periodic appraisals of job performance of employees are made, whether under chapter 43 of title 5, or otherwise.

(Pub. L. 107–296, title VIII, §843, as added Pub. L. 108–458, title VII, §7408(a), Dec. 17, 2004, 118 Stat. 3854.)

Editorial Notes

References in Text

Section 1701(7) of title 21, referred to in subsec. (b)(1)(A), was redesignated section 1701(11) of title 21 by Pub. L. 115–271, title VIII, §8216(4), Oct. 24, 2018, 132 Stat. 4117.

¹ So in original. Probably should be "agency".

² See References in Text note below.

§414. Homeland Security Rotation Program

(a) ¹ Establishment

(1) In general

Not later than 180 days after October 4, 2006, the Secretary shall establish the Homeland Security Rotation Program (in this section referred to as the "Rotation Program") for employees of the Department. The Rotation Program shall use applicable best practices, including those from the Chief Human Capital Officers Council.

(2) Goals

The Rotation Program established by the Secretary shall—

(A) be established in accordance with the Human Capital Strategic Plan of the Department;

(B) provide middle and senior level employees in the Department the opportunity to broaden their knowledge through exposure to other components of the Department;

(C) expand the knowledge base of the Department by providing for rotational assignments of employees to other components;

(D) build professional relationships and contacts among the employees in the Department;

(E) invigorate the workforce with exciting and professionally rewarding opportunities;

(F) incorporate Department human capital strategic plans and activities, and address critical human capital deficiencies, recruitment and retention efforts, and succession planning within the Federal workforce of the Department; and

(G) complement and incorporate (but not replace) rotational programs within the Department in effect on October 4, 2006.

(3) Administration

(A) In general

The Chief Human Capital Officer shall administer the Rotation Program.

(B) Responsibilities

The Chief Human Capital Officer shall—

(i) provide oversight of the establishment and implementation of the Rotation Program;

(ii) establish a framework that supports the goals of the Rotation Program and promotes cross-disciplinary rotational opportunities;

(iii) establish eligibility for employees to participate in the Rotation Program and select participants from employees who apply;

(iv) establish incentives for employees to participate in the Rotation Program, including promotions and employment preferences;

(v) ensure that the Rotation Program provides professional education and training;

(vi) ensure that the Rotation Program develops qualified employees and future leaders with broad-based experience throughout the Department;

(vii) provide for greater interaction among employees in components of the Department; and

(viii) coordinate with rotational programs within the Department in effect on October 4, 2006.

(4) Allowances, privileges, and benefits

All allowances, privileges, rights, seniority, and other benefits of employees participating in the Rotation Program shall be preserved.

(5) Reporting

Not later than 180 days after the date of the establishment of the Rotation Program, the Secretary shall submit a report on the status of the Rotation Program, including a description of the Rotation Program, the number of employees participating, and how the Rotation Program is used in succession planning and leadership development to the appropriate committees of Congress.

(Pub. L. 107–296, title VIII, §844, as added Pub. L. 109–295, title VI, §622(a), Oct. 4, 2006, 120 Stat. 1416.)

¹ So in original. There is no subsec. (b).

§415. Homeland Security Education Program

(a) Establishment

The Secretary, acting through the Administrator, shall establish a graduate-level Homeland Security Education Program in the National Capital Region to provide educational opportunities to senior Federal officials and selected State and local officials with homeland security and emergency management responsibilities. The Administrator shall appoint an individual to administer the activities under this section.

(b) Leveraging of existing resources

To maximize efficiency and effectiveness in carrying out the Program, the Administrator shall use existing Department-reviewed Master's Degree curricula in homeland security, including curricula pending accreditation, together with associated learning materials, quality assessment tools, digital libraries, exercise systems and other educational facilities, including the National Domestic Preparedness Consortium, the National Fire Academy, and the Emergency Management Institute. The Administrator may develop additional educational programs, as appropriate.

(c) Student enrollment

(1) Sources

The student body of the Program shall include officials from Federal, State, local, and tribal governments, and from other sources designated by the Administrator.

(2) Enrollment priorities and selection criteria

The Administrator shall establish policies governing student enrollment priorities and selection criteria that are consistent with the mission of the Program.

(3) Diversity

The Administrator shall take reasonable steps to ensure that the student body represents racial, gender, and ethnic diversity.

(d) Service commitment

(1) In general

Before any employee selected for the Program may be assigned to participate in the program, the employee shall agree in writing—

(A) to continue in the service of the agency sponsoring the employee during the 2-year period beginning on the date on which the employee completes the program, unless the employee is involuntarily separated from the service of that agency for reasons other than a reduction in force; and

(B) to pay to the Government the amount of the additional expenses incurred by the Government in connection with the employee's education if the employee is voluntarily separated from the service to the agency before the end of the period described in subparagraph (A).

(2) Payment of expenses

(A) Exemption

An employee who leaves the service of the sponsoring agency to enter into the service of another agency in any branch of the Government shall not be required to make a payment under paragraph (1)(B), unless the head of the agency that sponsored the education of the employee notifies that employee before the date on which the employee enters the service of the other agency that payment is required under that paragraph.

(B) Amount of payment

If an employee is required to make a payment under paragraph (1)(B), the agency that sponsored the education of the employee shall determine the amount of the payment, except that such amount may not exceed the pro rata share of the expenses incurred for the time remaining in the 2-year period.

(3) Recovery of payment

If an employee who is required to make a payment under this subsection does not make the payment, a sum equal to the amount of the expenses incurred by the Government for the education of that employee is recoverable by the Government from the employee or his estate by—

(A) setoff against accrued pay, compensation, amount of retirement credit, or other amount due the employee from the Government; or

(B) such other method as is provided by lay ¹ for the recovery of amounts owing to the Government.

(Pub. L. 107–296, title VIII, §845, as added Pub. L. 109–295, title VI, §623(a), Oct. 4, 2006, 120 Stat. 1418.)

Statutory Notes and Related Subsidiaries

Change of Name

The reference to the "Administrator" in text probably means the Administrator of the Federal Emergency Management Agency. Any reference to the Administrator of the Federal Emergency Management Agency in title VI of Pub. L. 109–295 or an amendment by title VI to be considered to refer and apply to the Director of the Federal Emergency Management Agency until Mar. 31, 2007, see section 612(f)(2) of Pub. L. 109–295, set out as a note under section 313 of this title.

¹ So in original. Probably should be "law".

§416. Use of protective equipment or measures by employees

None of the funds made available in this or any other Act for fiscal year 2013 and thereafter may be used to propose or effect a disciplinary or adverse action, with respect to any Department of Homeland Security employee who engages regularly with the public in the performance of his or her official duties solely because that employee elects to utilize protective equipment or measures, including but not limited to surgical masks, N95 respirators, gloves, or hand-sanitizers, where use of such equipment or measures is in accord with Department of Homeland Security policy, and Centers for Disease Control and Prevention and Office of Personnel Management guidance.

(Pub. L. 113–6, div. D, title V, §540, Mar. 26, 2013, 127 Stat. 373.)

Editorial Notes

References in Text

This Act, referred to in text, means div. D of Pub. L. 113–6, Mar. 26, 2013, 127 Stat. 342, known as the Department of Homeland Security Appropriations Act, 2013. For complete classification of this Act to the Code, see Tables.

Codification

Section was enacted as part of the Department of Homeland Security Appropriations Act, 2013, and not as part of the Homeland Security Act of 2002 which comprises this chapter.

§417. Rotational cybersecurity research program

To enhance the Department's cybersecurity capacity, the Secretary may establish a rotational research, development, and training program for—

(1) detail to the Cybersecurity and Infrastructure Security Agency (including the national cybersecurity and communications integration center authorized by section 659 of this title) of Coast Guard Academy graduates and faculty; and

(2) detail to the Coast Guard Academy, as faculty, of individuals with expertise and experience in cybersecurity who are employed by—

(A) the Agency (including the center);

(B) the Directorate of Science and Technology; or

(C) institutions that have been designated by the Department as a Center of Excellence for Cyber Defense, or the equivalent.

(Pub. L. 107–296, title VIII, §846, as added Pub. L. 116–283, div. G, title LVXXXII [LXXXII], §8278(a), Jan. 1, 2021, 134 Stat. 4687.)