US Code

Public Law 119-73 (01/23/2026)

5 U.S.C. § 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)
section 709(c) of title 32 an adjutant general designated by the Secretary concerned under ;
(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 , 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, Navy Ships Stores Program, 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)
section 7902 of this title subchapter I of chapter 81, chapter 84 (except to the extent specifically provided therein), and .
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 Regulatory 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. 89–55480 Stat. 409Pub. L. 90–486, § 482 Stat. 757Pub. L. 91–375, § 6(c)(4)84 Stat. 775Pub. L. 92–392, § 286 Stat. 573Pub. L. 95–454, title VII, § 703(c)(2)92 Stat. 1217Pub. L. 96–54, § 2(a)(5)93 Stat. 381Pub. L. 99–335, title II, § 207(a)100 Stat. 594Pub. L. 99–638, § 2(b)(1)100 Stat. 3536Pub. L. 101–508, title VII, § 7202(b)104 Stat. 1388–335Pub. L. 103–3, title II, § 201(b)107 Stat. 23Pub. L. 103–424, § 7108 Stat. 4364Pub. L. 104–201, div. A, title III, § 370(b)110 Stat. 2499Pub. L. 105–85, div. B, title XXVIII, § 2871(c)(2)111 Stat. 2015Pub. L. 109–435, title VI, § 604(f)120 Stat. 3242Pub. L. 113–66, div. A, title VI, § 642127 Stat. 787(, , ; , , ; , , ; , , ; , title IX, § 906(a)(2), , , 1224; , (6), , ; , , ; , , ; , , ; , , ; , , ; , , ; , , ; , , ; , , .)

Historical and Revision Notes

Derivation

U.S. Code

Revised Statutes and

Statutes at Large

(b)

[Uncodified].

Aug. 5, 1939, ch. 448, § 2, 53 Stat. 1210.

 

[Uncodified].

Dec. 3, 1945, ch. 510, § 2, 59 Stat. 590.

 

[Uncodified].

Dec. 28, 1945, ch. 593, § 2, 59 Stat. 660.

 

[Uncodified].

Dec. 28, 1945, ch. 594, § 2, 59 Stat. 660.

 

[Uncodified].

July 26, 1946, ch. 675, § 2 (last proviso), 60 Stat. 704.

(c)

5 U.S.C. 150k.

June 19, 1952, ch. 444, § 1, 66 Stat. 138.

(d)

5 U.S.C. 30r(d).

Aug. 10, 1956, ch. 1041, § 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.

Editorial Notes

References in Text

act June 25, 1938, ch. 67652 Stat. 1060section 201 of Title 29The Fair Labor Standards Act of 1938, referred to in subsec. (c)(1)(C), is , , which is classified generally to chapter 8 (§ 201 et seq.) of Title 29, Labor. For complete classification of this Act to the Code, see and Tables.

Amendments

Pub. L. 113–662013—Subsec. (c). substituted “Navy Ships Stores Program” for “Army and Air Force Motion Picture Service, Navy Ship’s Stores Ashore” in introductory provisions.

Pub. L. 109–4352006—Subsec. (e). substituted “Postal Regulatory Commission” for “Postal Rate Commission”.

Pub. L. 105–851997—Subsec. (b). inserted “(if any)” after “Academy dairy”.

Pub. L. 104–2011996—Subsec. (b). inserted “who is” after “An individual” and “and whose employment in such a position began before , and has been uninterrupted in such a position since that date” after “Academy dairy,”.

Pub. L. 103–4241994—Subsec. (f). added subsec. (f).

Pub. L. 103–31993—Subsec. (c)(1)(E). added subpar. (E).

Pub. L. 101–508, § 7202(b)(1)section 8332(b)(16) of this title1990—Subsec. (c)(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 , and sections 5550 and 7204 of this title) administered by the Office of Personnel Management; or”.

Pub. L. 101–508, § 7202(b)(2)Subsec. (c)(2). , inserted “(except to the extent specifically provided therein)” after “chapter 84”.

Pub. L. 99–638section 8332(b)(16) of this title1986—Subsec. (c)(1). inserted “of this title, subchapter III of chapter 83 of this title to the extent provided in ,”.

Pub. L. 99–335Subsec. (c)(2). substituted “chapter 81, chapter 84,” for “chapter 81”.

Pub. L. 96–54, § 2(a)(5)1979—Subsec. (a)(1)(F). , substituted “an adjutant” for “the adjutants” and struck out “, United States Code” after “32”.

Pub. L. 96–54, § 2(a)(6)section 703(c)(2) of Pub. L. 95–454Subsec. (c)(1). , amended subsec. (c)(1) in same manner as amendment by . See 1978 Amendment note set out below.

Pub. L. 95–454Pub. L. 95–454section 3302(2) of this titlePub. L. 95–454, § 703(c)(1)Pub. L. 95–454, § 703(c)(2)section 3302(2) of this title1978—Subsec. (c)(1). substituted “7204” for “7154”, and “Office of Personnel Management” for “Civil Service Commission”. Amendments by section 703(c)(1) and (c)(2) of 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 . However, the amendments specified by and (2), were impossible to execute literally. Thus, the amendment by was executed to this section, and the amendment by section 703(c)(1) was executed to as the probable intent of Congress.

Pub. L. 92–3921972—Subsec. (c)(1). substituted “laws (other than subchapter IV of chapter 53 and sections 5550 and 7154 of this title)” for “laws”.

Pub. L. 91–3751970—Subsec. (e). added subsec. (e).

Pub. L. 90–4861968—Subsec. (a)(1)(F). added subpar. (F).

Statutory Notes and Related Subsidiaries

Effective Date of 1996 Amendment

Pub. L. 104–201, div. A, title III, § 370(e)110 Stat. 2499

section 6971 of Title 10section 6970 of Title 10“The amendments made by this section [amending this section and , Armed Forces, and repealing ] shall take effect on .”
, , , provided that:

Effective Date of 1993 Amendment

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

Effective Date of 1990 Amendment

Pub. L. 101–508, title VII, § 7202(m)104 Stat. 1388–339

“(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 —
“(A)
section 2105(c) of title 5 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 , 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 , and before the date of enactment of this Act [], 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.”
, , , provided that:

Effective Date of 1986 Amendment

Pub. L. 99–335section 702(a) of Pub. L. 99–335section 8401 of this titleAmendment by effective , see , set out as an Effective Date note under .

Effective Date of 1979 Amendment

Pub. L. 96–54section 2(b) of Pub. L. 96–54section 305 of this titleAmendment by effective , see , set out as a note under .

Effective Date of 1978 Amendment

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

Effective Date of 1972 Amendment

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

Effective Date of 1970 Amendment

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

Effective Date of 1968 Amendment

Pub. L. 90–486section 11 of Pub. L. 90–486section 709 of Title 32Amendment by effective , 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 , see , set out as a note under , National Guard.

Transfer of Functions

section 542 of Title 6For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of , as modified, set out as a note under .

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

Pub. L. 101–508, title VII, § 7202(n)104 Stat. 1388–340Pub. L. 102–378, § 5(a)(2)106 Stat. 1358

“(1)
section 2101 of this titlesection 2105(c) of title 5 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 ], the term ‘nonappropriated fund instrumentality’ means a nonappropriated fund instrumentality of the Department of Defense or the Coast Guard, described in , United States Code.
“(2)
(A)
section 8347(q)(1) of title 5 If an individual makes an election under , 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)
section 8432 of title 5 Notwithstanding subsection (a) or (b) of , United States Code, any individual who, as of the date of enactment of this Act [], 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)
section 8461(n)(1) of title 5 If an individual makes an election under , 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)
section 8432 of title 5 Notwithstanding subsection (a) or (b) of , 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.”
, , , as amended by , , , provided that:

Pub. L. 102–378section 7202(n) of Pub. L. 101–508section 9(b)(6) of Pub. L. 102–378section 6303 of this title[Amendment by to , set out above, effective , see , set out as an Effective Date of 1992 Amendment note under .]

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

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