
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 5USC2105]

 
             TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
 
                           PART III--EMPLOYEES
 
                      Subpart A--General Provisions
 
                         CHAPTER 21--DEFINITIONS
 
Sec. 2105. Employee

    (a) For the purpose of this title, ``employee'', except as otherwise 
provided by this section or when specifically modified, means an officer 
and an individual who is--
        (1) appointed in the civil service by one of the following 
    acting in an official capacity--
            (A) the President;
            (B) a Member or Members of Congress, or the Congress;
            (C) a member of a uniformed service;
            (D) an individual who is an employee under this section;
            (E) the head of a Government controlled corporation; or
            (F) an adjutant general designated by the Secretary 
        concerned under section 709(c) of title 32;

        (2) engaged in the performance of a Federal function under 
    authority of law or an Executive act; and
        (3) subject to the supervision of an individual named by 
    paragraph (1) of this subsection while engaged in the performance of 
    the duties of his position.

    (b) An individual who is employed at the United States Naval Academy 
in the midshipmen's laundry, the midshipmen's tailor shop, the 
midshipmen's cobbler and barber shops, and the midshipmen's store, 
except an individual employed by the Academy dairy (if any), and whose 
employment in such a position began before October 1, 1996, and has been 
uninterrupted in such a position since that date is deemed an employee.
    (c) An employee paid from nonappropriated funds of the Army and Air 
Force Exchange Service, Army and Air Force Motion Picture Service, Navy 
Ship's Stores Ashore, Navy exchanges, Marine Corps exchanges, Coast 
Guard exchanges, and other instrumentalities of the United States under 
the jurisdiction of the armed forces conducted for the comfort, 
pleasure, contentment, and mental and physical improvement of personnel 
of the armed forces is deemed not an employee for the purpose of--
        (1) laws administered by the Office of Personnel Management, 
    except--
            (A) section 7204;
            (B) as otherwise specifically provided in this title;
            (C) the Fair Labor Standards Act of 1938;
            (D) for the purpose of entering into an interchange 
        agreement to provide for the noncompetitive movement of 
        employees between such instrumentalities and the competitive 
        service; or
            (E) subchapter V of chapter 63, which shall be applied so as 
        to construe references to benefit programs to refer to 
        applicable programs for employees paid from nonappropriated 
        funds; or

        (2) subchapter I of chapter 81, chapter 84 (except to the extent 
    specifically provided therein), and section 7902 of this title.

This subsection does not affect the status of these nonappropriated fund 
activities as Federal instrumentalities.
    (d) A Reserve of the armed forces who is not on active duty or who 
is on active duty for training is deemed not an employee or an 
individual holding an office of trust or profit or discharging an 
official function under or in connection with the United States because 
of his appointment, oath, or status, or any duties or functions 
performed or pay or allowances received in that capacity.
    (e) Except as otherwise provided by law, an employee of the United 
States Postal Service or of the Postal Rate Commission is deemed not an 
employee for purposes of this title.
    (f) For purposes of sections 1212, 1213, 1214, 1215, 1216, 1221, 
1222, 2302, and 7701, employees appointed under chapter 73 or 74 of 
title 38 shall be employees.

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 409; Pub. L. 90-486, Sec. 4, 
Aug. 13, 1968, 82 Stat. 757; Pub. L. 91-375, Sec. 6(c)(4), Aug. 12, 
1970, 84 Stat. 775; Pub. L. 92-392, Sec. 2, Aug. 19, 1972, 86 Stat. 573; 
Pub. L. 95-454, title VII, Sec. 703(c)(2), title IX, Sec. 906(a)(2), 
Oct. 13, 1978, 92 Stat. 1217, 1224; Pub. L. 96-54, Sec. 2(a)(5), (6), 
Aug. 14, 1979, 93 Stat. 381; Pub. L. 99-335, title II, Sec. 207(a), June 
6, 1986, 100 Stat. 594; Pub. L. 99-638, Sec. 2(b)(1), Nov. 10, 1986, 100 
Stat. 3536; Pub. L. 101-508, title VII, Sec. 7202(b), Nov. 5, 1990, 104 
Stat. 1388-335; Pub. L. 103-3, title II, Sec. 201(b), Feb. 5, 1993, 107 
Stat. 23; Pub. L. 103-424, Sec. 7, Oct. 29, 1994, 108 Stat. 4364; Pub. 
L. 104-201, div. A, title III, Sec. 370(b), Sept. 23, 1996, 110 Stat. 
2499; Pub. L. 105-85, div. B, title XXVIII, Sec. 2871(c)(2), Nov. 18, 
1997, 111 Stat. 2015.)

                      Historical and Revision Notes
------------------------------------------------------------------------
                                                    Revised Statutes and
     Derivation                U.S. Code             Statutes at Large
------------------------------------------------------------------------
(b)................  [Uncodified].                 Aug. 5, 1939, ch.
                                                    448, Sec.  2, 53
                                                    Stat. 1210.
                     [Uncodified].                 Dec. 3, 1945, ch.
                                                    510, Sec.  2, 59
                                                    Stat. 590.
                     [Uncodified].                 Dec. 28, 1945, ch.
                                                    593, Sec.  2, 59
                                                    Stat. 660.
                     [Uncodified].                 Dec. 28, 1945, ch.
                                                    594, Sec.  2, 59
                                                    Stat. 660.
                     [Uncodified].                 July 26, 1946, ch.
                                                    675, Sec.  2 (last
                                                    proviso), 60 Stat.
                                                    704.
(c)................  5 U.S.C. 150k.                June 19, 1952, ch.
                                                    444, Sec.  1, 66
                                                    Stat. 138.
(d)................  5 U.S.C. 30r(d).              Aug. 10, 1956, ch.
                                                    1041, Sec.  29(d),
                                                    70A Stat. 632.
------------------------------------------------------------------------

    Subsection (a) is supplied to avoid the necessity of defining 
``employee'' each time it appears in this title. The subsection is based 
on a definition worked out independently by the Civil Service Commission 
and the Department of Labor and in use by both for more than a decade.
    In subsection (b), the provisions of the source statutes which 
relate to credit for prior service and diminution of pay are executed, 
or, insofar as to be executed preserved by technical section 8.
    In subsection (d), the words ``officer or'' are omitted as included 
within ``employee''.
    Standard changes are made to conform with the definitions applicable 
and the style of this title as outlined in the preface to the report.

                       References in Text

    The Fair Labor Standards Act of 1938, referred to in subsec. 
(c)(1)(C), is act June 25, 1938, ch. 676, 52 Stat. 1060, as amended, 
which is classified generally to chapter 8 (Sec. 201 et seq.) of Title 
29, Labor. For complete classification of this Act to the Code, see 
section 201 of Title 29 and Tables.


                               Amendments

    1997--Subsec. (b). Pub. L. 105-85 inserted ``(if any)'' after 
``Academy dairy''.
    1996--Subsec. (b). Pub. L. 104-201 inserted ``who is'' after ``An 
individual'' and ``and whose employment in such a position began before 
October 1, 1996, and has been uninterrupted in such a position since 
that date'' after ``Academy dairy,''.
    1994--Subsec. (f). Pub. L. 103-424 added subsec. (f).
    1993--Subsec. (c)(1)(E). Pub. L. 103-3 added subpar. (E).
    1990--Subsec. (c)(1). Pub. L. 101-508, Sec. 7202(b)(1), amended par. 
(1) generally. Prior to amendment, par. (1) read as follows: ``laws 
(other than subchapter IV of chapter 53 of this title, subchapter III of 
chapter 83 of this title to the extent provided in section 8332(b)(16) 
of this title, and sections 5550 and 7204 of this title) administered by 
the Office of Personnel Management; or''.
    Subsec. (c)(2). Pub. L. 101-508, Sec. 7202(b)(2), inserted ``(except 
to the extent specifically provided therein)'' after ``chapter 84''.
    1986--Subsec. (c)(1). Pub. L. 99-638 inserted ``of this title, 
subchapter III of chapter 83 of this title to the extent provided in 
section 8332(b)(16) of this title,''.
    Subsec. (c)(2). Pub. L. 99-335 substituted ``chapter 81, chapter 
84,'' for ``chapter 81''.
    1979--Subsec. (a)(1)(F). Pub. L. 96-54, Sec. 2(a)(5), substituted 
``an adjutant'' for ``the adjutants'' and struck out ``, United States 
Code'' after ``32''.
    Subsec. (c)(1). Pub. L. 96-54, Sec. 2(a)(6), amended subsec. (c)(1) 
in same manner as amendment by section 703(c)(2) of Pub. L. 95-454. See 
1978 Amendment note set out below.
    1978--Subsec. (c)(1). Pub. L. 95-454 substituted ``7204'' for 
``7154'', and ``Office of Personnel Management'' for ``Civil Service 
Commission''. Amendments by section 703(c)(1) and (c)(2) of Pub. L. 95-
454 appear to have been inadvertently reversed. Subsec. (c)(1) purported 
to amend subsec. (c)(1) of this section, and subsec. (c)(2) purported to 
amend section 3302(2) of this title. However, the amendments specified 
by Pub. L. 95-454, Sec. 703(c)(1) and (2), were impossible to execute 
literally. Thus, the amendment by Pub. L. 95-454, Sec. 703(c)(2) was 
executed to this section, and the amendment by section 703(c)(1) was 
executed to section 3302(2) of this title as the probable intent of 
Congress.
    1972--Subsec. (c)(1). Pub. L. 92-392 substituted ``laws (other than 
subchapter IV of chapter 53 and sections 5550 and 7154 of this title)'' 
for ``laws''.
    1970--Subsec. (e). Pub. L. 91-375 added subsec. (e).
    1968--Subsec. (a)(1)(F). Pub. L. 90-486 added subpar. (F).


                    Effective Date of 1996 Amendment

    Section 370(e) of Pub. L. 104-201 provided that: ``The amendments 
made by this section [amending this section and section 6971 of Title 
10, Armed Forces, and repealing section 6970 of Title 10] shall take 
effect on October 1, 1996.''


                    Effective Date of 1993 Amendment

    Amendment by Pub. L. 103-3 effective 6 months after Feb. 5, 1993, 
see section 405(b)(1) of Pub. L. 103-3, set out as an Effective Date 
note under section 2601 of Title 29, Labor.


                    Effective Date of 1990 Amendment

    Section 7202(m) of Pub. L. 101-508 provided that:
    ``(1) The amendments made by this section [amending this section and 
sections 3502, 5334, 5335, 5365, 5551, 6308, 6312, 8331, 8347, 8401, 
8461, and 8901 of this title] shall apply with respect to any individual 
who, on or after January 1, 1987--
        ``(A) moves without a break in service of more than 3 days from 
    employment in a nonappropriated fund instrumentality of the 
    Department of Defense or the Coast Guard that is described in 
    section 2105(c) of title 5, United States Code, to employment in the 
    Department of Defense or the Coast Guard, respectively, that is not 
    described in such section 2105(c); or
        ``(B) moves without a break in service from employment in the 
    Department of Defense or the Coast Guard that is not described in 
    such section 2105(c) to employment in a nonappropriated fund 
    instrumentality of the Department of Defense or the Coast Guard, 
    respectively, that is described in such section 2105(c).
    ``(2) The Secretary of Defense, the Secretary of Transportation, the 
Director of the Office of Personnel Management, and the Executive 
Director of the Federal Retirement Thrift Investment Board, as 
applicable, shall take such actions as may be practicable to ensure that 
each individual who has moved as described under paragraph (1) on or 
after January 1, 1987, and before the date of enactment of this Act 
[Nov. 5, 1990], receives the benefit of the amendments made by this 
section as if such amendments had been in effect at the time such 
individual so moved. Each such individual who wishes to make an election 
of retirement coverage under the amendments made by subsection (j) or 
(k) of this section [amending sections 8331, 8347, 8401, and 8461 of 
this title] shall complete such election within 180 days after the date 
of enactment of this Act.''


                    Effective Date of 1986 Amendment

    Amendment by Pub. L. 99-335 effective Jan. 1, 1987, see section 
702(a) of Pub. L. 99-335, set out as an Effective Date note under 
section 8401 of this title.


                    Effective Date of 1979 Amendment

    Amendment by Pub. L. 96-54 effective July 12, 1979, see section 2(b) 
of Pub. L. 96-54, set out as a note under section 305 of this title.


                    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.


                    Effective Date of 1972 Amendment

    Amendment by Pub. L. 92-392 effective on first day of first 
applicable pay period beginning on or after 90th day after Aug. 19, 
1972, see section 15(a) of Pub. L. 92-392, set out as an Effective Date 
note under section 5341 of this title.


                    Effective Date of 1970 Amendment

    Amendment by Pub. L. 91-375 effective within 1 year after Aug. 12, 
1970, on date established therefor by Board of Governors of United 
States Postal Service and published by it in Federal Register, see 
section 15(a) of Pub. L. 91-375, set out as an Effective Date note 
preceding section 101 of Title 39, Postal Service.


                    Effective Date of 1968 Amendment

    Amendment by Pub. L. 90-486 effective Jan. 1, 1968, except that no 
deductions or withholding from salary which result therefrom shall 
commence before the first day of the first pay period that begins on or 
after Jan. 1, 1968, see section 11 of Pub. L. 90-486, set out as a note 
under section 709 of Title 32, National Guard.


  Treatment of Individuals Electing To Remain Subject to Their Former 
                            Retirement System

    Section 7202(n) of Pub. L. 101-508, as amended by Pub. L. 102-378, 
Sec. 5(a)(2), Oct. 2, 1992, 106 Stat. 1358, provided that:
    ``(1) For the purpose of this section [amending this section and 
sections 3502, 5334, 5335, 5365, 5551, 6308, 6312, 8331, 8347, 8401, 
8461, and 8901 of this title and enacting provisions set out as notes 
under this section and section 2101 of this title], the term 
`nonappropriated fund instrumentality' means a nonappropriated fund 
instrumentality of the Department of Defense or the Coast Guard, 
described in section 2105(c) of title 5, United States Code.
    ``(2)(A) If an individual makes an election under section 8347(q)(1) 
of title 5, United States Code, to remain covered by subchapter III of 
chapter 83 of such title, any nonappropriated fund instrumentality 
thereafter employing such individual shall deduct from such individual's 
pay and contribute to the Thrift Savings Fund such sums as are required 
for such individual in accordance with section 8351 of such title.
    ``(B) Notwithstanding subsection (a) or (b) of section 8432 of title 
5, United States Code, any individual who, as of the date of enactment 
of this Act [Nov. 5, 1990], becomes eligible to make an election under 
section 8347(q)(1) of such title may, within 30 days after such 
individual makes an election thereunder in accordance with subsection 
(m)(2) [set out as a note above], make any election described in section 
8432(b)(1)(A) of such title.
    ``(3)(A) If an individual makes an election under section 8461(n)(1) 
of title 5, United States Code, to remain covered by chapter 84 of such 
title, any nonappropriated fund instrumentality thereafter employing 
such individual shall deduct from such individual's pay and shall 
contribute to the Thrift Savings Fund the funds deducted, together with 
such other sums as are required for such individual under subchapter III 
of such chapter.
    ``(B) Notwithstanding subsection (a) or (b) of section 8432 of title 
5, United States Code, any individual who, as of the date of enactment 
of this Act, becomes eligible to make an election under section 
8461(n)(1) of such title may, within 30 days after such individual makes 
an election thereunder in accordance with subsection (m)(2), make any 
election described in section 8432(b)(1)(A) of such title.
    ``(4) If an individual makes an election under section 8347(q)(2) or 
8461(n)(2) of title 5, United States Code, to remain covered by a 
retirement system established for employees described in section 2105(c) 
of such title, any Government agency thereafter employing such 
individual shall, in lieu of any deductions or contributions for which 
it would otherwise be responsible with respect to such individual under 
chapter 83 or 84 of such title, make such deductions from pay and such 
contributions as would be required (under the retirement system for 
nonappropriated fund employees involved) if it were a nonappropriated 
fund instrumentality. Any such deductions and contributions shall be 
remitted to the Department of Defense or the Coast Guard, as applicable, 
for transmission to the appropriate retirement system.''
    [Amendment by Pub. L. 102-378 to section 7202(n) of Pub. L. 101-508, 
set out above, effective Nov. 5, 1990, see section 9(b)(6) of Pub. L. 
102-378, set out as an Effective Date of 1992 Amendment note under 
section 6303 of this title.]


       Prohibition of Decrease in Basic Pay Rate of Employees of 
                 Nonappropriated Fund Instrumentalities

    Amendments by Pub. L. 92-392 not to decrease basic pay rate of 
subsec. (c) employees in service before effective date of the amendments 
as to such employees, see section 9(a)(2) of Pub. L. 92-392, set out as 
a note under section 5343 of this title.

                  Section Referred to in Other Sections

    This section is referred to in sections 3502, 5334, 5335, 5342, 
5365, 5506, 5515, 5537, 5551, 5552, 5581, 5595, 5736, 5751, 5945, 5946, 
6103, 6104, 6121, 6301, 6308, 6322, 6323, 6385, 7103, 7119, 7342, 7905, 
8171, 8172, 8173, 8311, 8331, 8332, 8347, 8401, 8461, 8701, 8901, 9001 
of this title; title 10 sections 975, 1587; title 18 section 202; title 
19 section 2081; title 22 sections 3974, 4341, 4833; title 25 section 
450i; title 26 section 7608; title 41 sections 419, 423; title 42 
sections 3374, 14614; title 50 section 426.
