[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. Con. Res. 77 Engrossed in Senate (ES)]

111th CONGRESS
  2d Session
S. CON. RES. 77

_______________________________________________________________________

                         CONCURRENT RESOLUTION

    Resolved by the Senate (the House of Representatives concurring), 
That the following regulations issued by the Office of Compliance on 
March 21, 2008, and stated in section 4, with the technical corrections 
described in section 3 and to the extent applied by section 2, are 
hereby approved:

SEC. 2. APPLICATION OF REGULATIONS.

    (a) In General.--For purposes of applying the issued regulations as 
a body of regulations required by section 304(a)(2)(B)(iii) of the 
Congressional Accountability Act of 1995 (2 U.S.C. 1384(a)(2)(B)(iii)), 
the portions of the issued regulations that are unclassified or 
classified with a ``C'' designation shall apply to all covered 
employees that are not employees of the House of Representatives or 
employees of the Senate, and employing offices that are not offices of 
the House of Representatives or the Senate.
    (b) Definitions.--In this section, the terms ``employee of the 
House of Representatives'', ``employee of the Senate'', ``covered 
employee'', and ``employing office'' have the meanings given the terms 
in section 101 of the Congressional Accountability Act of 1995 (2 
U.S.C. 1301), except as limited by the regulations (as corrected under 
section 3).

SEC. 3. TECHNICAL CORRECTIONS.

    (a) Current Names of Offices and Heads of Offices.--A reference in 
the issued regulations--
            (1) to the Capitol Guide Board or the Capitol Guide Service 
        (which no longer exist) shall be considered to be a reference 
        to the Office of Congressional Accessibility Services;
            (2) to the Capitol Police Board shall be considered to be a 
        reference to the Capitol Police;
            (3) to the Senate Restaurants (which are no longer public 
        entities) shall be disregarded; and
            (4) in sections 1.110(b) and 1.121(c), to the director of 
        an employing office shall be considered to be a reference to 
        the head of an employing office.
    (b) Cross References to Provisions of Regulations.--A reference in 
the issued regulations--
            (1) in paragraphs (l) and (m) of section 1.102, to 
        subparagraphs (3) through (8) of paragraph (g) of that section 
        shall be considered to be a reference to paragraph (g) of that 
        section;
            (2) in section 1.102(l), to subparagraphs (aa) through (dd) 
        of section 1.102(g) shall be considered to be a reference to 
        subparagraphs (aa) through (dd) of that section (as specified 
        in the regulations classified with an ``H'' classification);
            (3) in section 1.102(m), to subparagraphs (aa) through (ee) 
        of section 1.102(g) shall be considered to be a reference to 
        subparagraphs (aa) through (ee) of that section (as specified 
        in the regulations classified with an ``S'' classification);
            (4) in section 1.111(d), to section 1.102(o) shall be 
        considered to be a reference to section 1.102(p); and
            (5) in section 1.112, to section 1.102(h) shall be 
        considered to be a reference to section 1.102(i).
    (c) Cross References to Other Provisions of Law.--A reference in 
the issued regulations--
            (1) to the Veterans Employment Opportunities Act shall be 
        considered to be a reference to the Veterans Employment 
        Opportunities Act of 1998;
            (2) to 2 U.S.C. 43d(a) shall be considered to be a 
        reference to section 105(a) of the Second Supplemental 
        Appropriations Act, 1978;
            (3) to 2 U.S.C. 1316a(3) shall be considered to be a 
        reference to section 4(c)(3) of the Veterans Employment 
        Opportunities Act of 1998;
            (4) to 5 U.S.C. 2108(3)(c) shall be considered to be a 
        reference to section 2108(3)(C) of title 5, United States Code;
            (5) to the Americans with Disabilities Act shall be 
        considered to be a reference to the Americans with Disabilities 
        Act of 1990;
            (6) to the Soil Conservation and Allotment Act shall be 
        considered to be a reference to the Soil Conservation and 
        Domestic Allotment Act; and
            (7) to the Agricultural Adjustment Act shall be considered 
        to be a reference to the Agricultural Adjustment Act, reenacted 
        with amendments by the Agricultural Marketing Agreement Act of 
        1937.
    (d) Other Corrections.--In the issued regulations--
            (1) section 1.109 shall be considered to have an ``and'' 
        after paragraph (a);
            (2) the second sentence of section 1.116 shall be 
        disregarded;
            (3) section 1.118(b) shall be considered to have an ``and'' 
        after paragraph (2) rather than paragraph (1);
            (4) a reference in sections 1.118(c)(1) and 1.120(b)(1) to 
        veterans' ``preference eligible'' shall be considered to be a 
        reference to ``preference eligible'';
            (5) sections 1.118(c) and 1.120(b) shall be considered to 
        have an ``and'' after paragraph (1); and
            (6) section 1.121(b)(6)(B) shall be considered to have an 
        ``and'' at the end.

SEC. 4. REGULATIONS.

        When approved by the House of Representatives for the House of 
Representatives, these regulations will have the prefix ``H.'' When 
approved by the Senate for the Senate, these regulations will have the 
prefix ``S.'' When approved by Congress for the other employing offices 
covered by the CAA, these regulations will have the prefix ``C.''
        In this draft, ``H&S Regs'' denotes the provisions that would 
be included in the regulations applicable to be made applicable to the 
House and Senate, and ``C Reg'' denotes the provisions that would be 
included in the regulations to be made applicable to other employing 
offices.
        PART 1--Extension of Rights and Protections Relating to 
Veterans' Preference Under Title 5, United States Code, to Covered 
Employees of the Legislative Branch (section 4(c) of the Veterans 
Employment Opportunities Act of 1998)

    Subpart A--Matters of General Applicability to All Regulations 
                Promulgated under Section 4 of the VEOA

Sec.
1.101  Purpose and scope.
1.102  Definitions.
1.103  Adoption of regulations.
1.104  Coordination with section 225 of the Congressional 
                            Accountability Act.

SEC. 1.101. PURPOSE AND SCOPE.

    (a) Section 4(c) of the VEOA. The Veterans Employment Opportunities 
Act (VEOA) applies the rights and protections of sections 2108, 3309 
through 3312, and subchapter I of chapter 35 of title 5 U.S.C., to 
certain covered employees within the Legislative branch.
    (b) Purpose of regulations. The regulations set forth herein are 
the substantive regulations that the Board of Directors of the Office 
of Compliance has promulgated pursuant to section 4(c)(4) of the VEOA, 
in accordance with the rulemaking procedure set forth in section 304 of 
the CAA (2 U.S.C. Sec. 1384). The purpose of subparts B, C and D of 
these regulations is to define veterans' preference and the 
administration of veterans' preference as applicable to Federal 
employment in the Legislative branch. (5 U.S.C. Sec. 2108, as applied 
by the VEOA). The purpose of subpart E of these regulations is to 
ensure that the principles of the veterans' preference laws are 
integrated into the existing employment and retention policies and 
processes of those employing offices with employees covered by the 
VEOA, and to provide for transparency in the application of veterans' 
preference in covered appointment and retention decisions. Provided, 
nothing in these regulations shall be construed so as to require an 
employing office to reduce any existing veterans' preference rights and 
protections that it may afford to preference eligible individuals.
        H Regs:   (c) Scope of Regulations. The definition of ``covered 
employee'' in Section 4(c) of the VEOA limits the scope of the 
statute's applicability within the Legislative branch. The term 
``covered employee'' excludes any employee: (1) whose appointment is 
made by the President with the advice and consent of the Senate; (2) 
whose appointment is made by a Member of Congress within an employing 
office, as defined by Sec. 101 (9)(A-C) of the CAA, 2 U.S.C. Sec. 1301 
(9)(A-C) or; (3) whose appointment is made by a committee or 
subcommittee of either House of Congress or a joint committee of the 
House of Representatives and the Senate; or (4) who is appointed to a 
position, the duties of which are equivalent to those of a Senior 
Executive Service position (within the meaning of section 3132(a)(2) of 
title 5, United States Code). Accordingly, these regulations shall not 
apply to any employing office that only employs individuals excluded 
from the definition of covered employee.
        S Regs:  (c) Scope of Regulations. The definition of ``covered 
employee'' in Section 4(c) of the VEOA limits the scope of the 
statute's applicability within the Legislative branch. The term 
``covered employee'' excludes any employee: (1) whose appointment is 
made by the President with the advice and consent of the Senate; (2) 
whose appointment is made or directed by a Member of Congress within an 
employing office, as defined by Sec. 101(9)(A-C) of the CAA, 2 U.S.C. 
Sec. 1301 (9)(A-C) or; (3) whose appointment is made by a committee or 
subcommittee of either House of Congress or a joint committee of the 
House of Representatives and the Senate; (4) who is appointed pursuant 
to 2 U.S.C. Sec. 43d(a); or (5) who is appointed to a position, the 
duties of which are equivalent to those of a Senior Executive Service 
position (within the meaning of section 3132(a)(2) of title 5, United 
States Code). Accordingly, these regulations shall not apply to any 
employing office that only employs individuals excluded from the 
definition of covered employee.
        C Reg:  (c) Scope of Regulations. The definition of ``covered 
employee'' in Section 4(c) of the VEOA limits the scope of the 
statute's applicability within the Legislative branch. The term 
``covered employee'' excludes any employee: (1) whose appointment is 
made by the President with the advice and consent of the Senate; (2) 
whose appointment is made by a Member of Congress or by a committee or 
subcommittee of either House of Congress or a joint committee of the 
House of Representatives and the Senate; or (3) who is appointed to a 
position, the duties of which are equivalent to those of a Senior 
Executive Service position (within the meaning of section 3132(a)(2) of 
title 5, United States Code). Accordingly, these regulations shall not 
apply to any employing office that only employs individuals excluded 
from the definition of covered employee.

SEC. 1.102. DEFINITIONS.

        Except as otherwise provided in these regulations, as used in 
these regulations:
    (a) Accredited physician means a doctor of medicine or osteopathy 
who is authorized to practice medicine or surgery (as appropriate) by 
the State in which the doctor practices. The phrase ``authorized to 
practice by the State'' as used in this section means that the provider 
must be authorized to diagnose and treat physical or mental health 
conditions without supervision by a doctor or other health care 
provider.
    (b) Act or CAA means the Congressional Accountability Act of 1995, 
as amended (Pub. L. 104-1, 109 Stat. 3, 2 U.S.C. Sec. Sec. 1301-1438).
    (c) Active duty or active military duty means full-time duty with 
military pay and allowances in the armed forces, except (1) for 
training or for determining physical fitness and (2) for service in the 
Reserves or National Guard.
    (d) Appointment means an individual's appointment to employment in 
a covered position, but does not include any personnel action that an 
employing office takes with regard to an existing employee of the 
employing office.
    (e) Armed forces means the United States Army, Navy, Air Force, 
Marine Corps, and Coast Guard.
    (f) Board means the Board of Directors of the Office of Compliance.
        H Regs:  (g) Covered employee means any employee of (1) the 
House of Representatives; and (2) the Senate; (3) the Capitol Guide 
Board; (4) the Capitol Police Board; (5) the Congressional Budget 
Office; (6) the Office of the Architect of the Capitol; (7) the Office 
of the Attending Physician; and (8) the Office of Compliance, but does 
not include an employee (aa) whose appointment is made by the President 
with the advice and consent of the Senate; (bb) whose appointment is 
made by a Member of Congress; (cc) whose appointment is made by a 
committee or subcommittee of either House of Congress or a joint 
committee of the House of Representatives and the Senate; or (dd) who 
is appointed to a position, the duties of which are equivalent to those 
of a Senior Executive Service position (within the meaning of section 
3132(a)(2) of title 5, United States Code). The term covered employee 
includes an applicant for employment in a covered position and a former 
covered employee.
        S. Regs:  (g) Covered employee means any employees of (1) the 
House of Representatives; and (2) the Senate; (3) the Capitol Guide 
Board; (4) the Capitol Police Board; (5) the Congressional Budget 
Office; (6) the Office of the Architect of the Capitol; (7) the Office 
of the Attending Physician; and (8) the Office of Compliance, but does 
not include an employee (aa) whose appointment is made by the President 
with the advice and consent of the Senate; (bb) whose appointment is 
made or directed by a Member of Congress; (cc) whose appointment is 
made by a committee or subcommittee of either House of Congress or a 
joint committee of the House of Representatives and the Senate; (dd) 
who is appointed pursuant to 2 U.S.C. Sec. 43d(a); or (ee) who is 
appointed to a position, the duties of which are equivalent to those of 
a Senior Executive Service position (within the meaning of section 
3132(a)(2) of title 5, United States Code). The term covered employee 
includes an applicant for employment in a covered position and a former 
covered employee.
        C Reg: (g) Covered employee means any employee of (1) the 
Capitol Guide Service; (2) the Capitol Police; (3) the Congressional 
Budget Office; (4) the Office of the Architect of the Capitol; (5) the 
Office of the Attending Physician; or (6) the Office of Compliance, but 
does not include an employee: (aa) whose appointment is made by the 
President with the advice and consent of the Senate; or (bb) whose 
appointment is made by a Member of Congress or by a committee or 
subcommittee of either House of Congress or a joint committee of the 
House of Representatives and the Senate; or (cc) who is appointed to a 
position, the duties of which are equivalent to those of a Senior 
Executive Service position (within the meaning of section 3132(a)(2) of 
title 5, United States Code). The term covered employee includes an 
applicant for employment in a covered position and a former covered 
employee.
    (h) Covered position means any position that is or will be held by 
a covered employee.
    (i) Disabled veteran means a person who was separated under 
honorable conditions from active duty in the armed forces performed at 
any time and who has established the present existence of a service-
connected disability or is receiving compensation, disability 
retirement benefits, or pensions because of a public statute 
administered by the Department of Veterans Affairs or a military 
department.
    (j) Employee of the Office of the Architect of the Capitol includes 
any employee of the Office of the Architect of the Capitol, the Botanic 
Gardens, or the Senate Restaurants.
    (k) Employee of the Capitol Police Board includes any member or 
officer of the Capitol Police.
    (l) Employee of the House of Representatives includes an individual 
occupying a position the pay of which is disbursed by the Clerk of the 
House of Representatives, or another official designated by the House 
of Representatives, or any employment position in an entity that is 
paid with funds derived from the clerk-hire allowance of the House of 
Representatives but not any such individual employed by any entity 
listed in subparagraphs (3) through (8) of paragraph (g) above nor any 
individual described in subparagraphs (aa) through (dd) of paragraph 
(g) above.
    (m) Employee of the Senate includes any employee whose pay is 
disbursed by the Secretary of the Senate, but not any such individual 
employed by any entity listed in subparagraphs (3) through (8) of 
paragraph (g) above nor any individual described in subparagraphs (aa) 
through (ee) of paragraph (g) above.
        H Regs:  (n) Employing office means: (1) the personal office of 
a Member of the House of Representatives; (2) a committee of the House 
of Representatives or a joint committee of the House of Representatives 
and the Senate; or (3) any other office headed by a person with the 
final authority to appoint, hire, discharge, and set the terms, 
conditions, or privileges of the employment of an employee of the House 
of Representatives or the Senate.
        S Regs:  (n) Employing office means: (1) the personal office of 
a Senator; (2) a committee of the Senate or a joint committee of the 
House of Representatives and the Senate; or (3) any other office headed 
by a person with the final authority to appoint, or be directed by a 
Member of Congress to appoint, hire, discharge, and set the terms, 
conditions, or privileges of the employment of an employee of the House 
of Representatives or the Senate.
        C Reg:  (n) Employing office means: the Capitol Guide Board, 
the Capitol Police Board, the Congressional Budget Office, the Office 
of the Architect of the Capitol, the Office of the Attending Physician, 
and the Office of Compliance.
    (o) Office means the Office of Compliance.
    (p) Preference eligible means veterans, spouses, widows, widowers 
or mothers who meet the definition of ``preference eligible'' in 5 
U.S.C. Sec. 2108(3)(A)-(G).
    (q) Qualified applicant means an applicant for a covered position 
whom an employing office deems to satisfy the requisite minimum job-
related requirements of the position. Where the employing office uses 
an entrance examination or evaluation for a covered position that is 
numerically scored, the term ``qualified applicant'' shall mean that 
the applicant has received a passing score on the examination or 
evaluation.
    (r) Separated under honorable conditions means either an honorable 
or a general discharge from the armed forces. The Department of Defense 
is responsible for administering and defining military discharges.
    (s) Uniformed services means the armed forces, the commissioned 
corps of the Public Health Service, and the commissioned corps of the 
National Oceanic and Atmospheric Administration.
    (t) VEOA means the Veterans Employment Opportunities Act of 1998 
(Pub. L. 105-339, 112 Stat. 3182).
    (u) Veterans means persons as defined in 5 U.S.C. Sec. 2108(1), or 
any superseding legislation.

SEC. 1.103. ADOPTION OF REGULATIONS.

    (a) Adoption of regulations. Section 4(c)(4)(A) of the VEOA 
generally authorizes the Board to issue regulations to implement 
section 4(c). In addition, section 4(c)(4)(B) of the VEOA directs the 
Board to promulgate regulations that are ``the same as the most 
relevant substantive regulations (applicable with respect to the 
Executive branch) promulgated to implement the statutory provisions 
referred to in paragraph (2)'' of section 4(c) of the VEOA. Those 
statutory provisions are section 2108, sections 3309 through 3312, and 
subchapter I of chapter 35, of title 5, United States Code. The 
regulations issued by the Board herein are on all matters for which 
section 4(c)(4)(B) of the VEOA requires a regulation to be issued. 
Specifically, it is the Board's considered judgment based on the 
information available to it at the time of promulgation of these 
regulations, that, with the exception of the regulations adopted and 
set forth herein, there are no other ``substantive regulations 
(applicable with respect to the Executive branch) promulgated to 
implement the statutory provisions referred to in paragraph (2)'' of 
section 4(c) of the VEOA that need be adopted.
    (b) Modification of substantive regulations. As a qualification to 
the statutory obligation to issue regulations that are ``the same as 
the most substantive regulations (applicable with respect to the 
Executive branch)'', section 4(c)(4)(B) of the VEOA authorizes the 
Board to ``determine, for good cause shown and stated together with the 
regulation, that a modification of such regulations would be more 
effective for the implementation of the rights and protections under'' 
section 4(c) of the VEOA.
    (c) Rationale for Departure from the Most Relevant Executive Branch 
Regulations. The Board concludes that it must promulgate regulations 
accommodating the human resource systems existing in the Legislative 
branch; and that such regulations must take into account the fact that 
the Board does not possess the statutory and Executive Order based 
government-wide policy making authority underlying OPM's counterpart 
VEOA regulations governing the Executive branch. OPM's regulations are 
designed for the competitive service (defined in 5 U.S.C. 
Sec. 2102(a)(2)), which does not exist in the employing offices subject 
to this regulation. Therefore, to follow the OPM regulations would 
create detailed and complex rules and procedures for a workforce that 
does not exist in the Legislative branch, while providing no VEOA 
protections to the covered Legislative branch employees. We have chosen 
to propose specially tailored regulations, rather than simply to adopt 
those promulgated by OPM, so that we may effectuate Congress' intent in 
extending the principles of the veterans' preference laws to the 
Legislative branch through the VEOA.

SEC. 1.104. COORDINATION WITH SECTION 225 OF THE CONGRESSIONAL 
              ACCOUNTABILITY ACT.

        Statutory directive. Section 4(c)(4)(C) of the VEOA requires 
that promulgated regulations must be consistent with section 225 of the 
CAA. Among the relevant provisions of section 225 are subsection 
(f)(1), which prescribes as a rule of construction that definitions and 
exemptions in the laws made applicable by the CAA shall apply under the 
CAA, and subsection (f)(3), which states that the CAA shall not be 
considered to authorize enforcement of the CAA by the Executive branch.

          Subpart B--Veterans' Preference--General Provisions

Sec.
1.105 Responsibility for administration of veterans' preference.
1.106 Procedures for bringing claims under the VEOA.

SEC. 1.105. RESPONSIBILITY FOR ADMINISTRATION OF VETERANS' PREFERENCE.

        Subject to section 1.106, employing offices with covered 
employees or covered positions are responsible for making all veterans' 
preference determinations, consistent with the VEOA.

SEC. 1.106. PROCEDURES FOR BRINGING CLAIMS UNDER THE VEOA.

        Applicants for appointment to a covered position and covered 
employees may contest adverse veterans' preference determinations, 
including any determination that a preference eligible applicant is not 
a qualified applicant, pursuant to sections 401-416 of the CAA, 2 
U.S.C. Sec. Sec. 1401-1416, and provisions of law referred to therein; 
206a(3) of the CAA, 2 U.S.C. Sec. Sec. 1401, 1316a(3); and the Office's 
Procedural Rules.

            Subpart C--Veterans' Preference in Appointments

Sec.
1.107 Veterans' preference in appointments to restricted covered 
                            positions.
1.108 Veterans' preference in appointments to non-restricted covered 
                            positions.
1.109 Crediting experience in appointments to covered positions.
1.110 Waiver of physical requirements in appointments to covered 
                            positions.

SEC. 1.107. VETERANS' PREFERENCE IN APPOINTMENTS TO RESTRICTED 
              POSITIONS.

        In each appointment action for the positions of custodian, 
elevator operator, guard, and messenger (as defined below and 
collectively referred to in these regulations as restricted covered 
positions) employing offices shall restrict competition to preference 
eligible applicants as long as qualified preference eligible applicants 
are available. The provisions of sections 1.109 and 1.110 below shall 
apply to the appointment of a preference eligible applicant to a 
restricted covered position. The provisions of section 1.108 shall 
apply to the appointment of a preference eligible applicant to a 
restricted covered position, in the event that there is more than one 
preference eligible applicant for the position.
        Custodian--One whose primary duty is the performance of 
cleaning or other ordinary routine maintenance duties in or about a 
government building or a building under Federal control, park, 
monument, or other Federal reservation.
        Elevator operator--One whose primary duty is the running of 
freight or passenger elevators. The work includes opening and closing 
elevator gates and doors, working elevator controls, loading and 
unloading the elevator, giving information and directions to passengers 
such as on the location of offices, and reporting problems in running 
the elevator.
        Guard--One whose primary duty is the assignment to a station, 
beat, or patrol area in a Federal building or a building under Federal 
control to prevent illegal entry of persons or property; or required to 
stand watch at or to patrol a Federal reservation, industrial area, or 
other area designated by Federal authority, in order to protect life 
and property; make observations for detection of fire, trespass, 
unauthorized removal of public property or hazards to Federal personnel 
or property. The term guard does not include law enforcement officer 
positions of the Capitol Police Board.
        Messenger--One whose primary duty is the supervision or 
performance of general messenger work (such as running errands, 
delivering messages, and answering call bells).

SEC. 1.108. VETERANS' PREFERENCE IN APPOINTMENTS TO NON-RESTRICTED 
              COVERED POSITIONS.

    (a) Where an employing office has duly adopted a policy requiring 
the numerical scoring or rating of applicants for covered positions, 
the employing office shall add points to the earned ratings of those 
preference eligible applicants who receive passing scores in an 
entrance examination, in a manner that is proportionately comparable to 
the points prescribed in 5 U.S.C. Sec. 3309. For example, five 
preference points shall be granted to preference eligible applicants in 
a 100-point system, one point shall be granted in a 20-point system, 
and so on.
    (b) In all other situations involving appointment to a covered 
position, employing offices shall consider veterans' preference 
eligibility as an affirmative factor in the employing office's 
determination of who will be appointed from among qualified applicants.

SEC. 1.109. CREDITING EXPERIENCE IN APPOINTMENTS TO COVERED POSITIONS.

        When considering applicants for covered positions in which 
experience is an element of qualification, employing offices shall 
provide preference eligible applicants with credit:
    (a) for time spent in the military service (1) as an extension of 
time spent in the position in which the applicant was employed 
immediately before his/her entrance into the military service, or (2) 
on the basis of actual duties performed in the military service, or (3) 
as a combination of both methods. Employing offices shall credit time 
spent in the military service according to the method that will be of 
most benefit to the preference eligible applicant.
    (b) for all experience material to the position for which the 
applicant is being considered, including experience gained in 
religious, civic, welfare, service, and organizational activities, 
regardless of whether he/she received pay therefor.

SEC. 1.110. WAIVER OF PHYSICAL REQUIREMENTS IN APPOINTMENTS TO COVERED 
              POSITIONS.

    (a) Subject to (c) below, in determining qualifications of a 
preference eligible for appointment, an employing office shall waive:
            (1) with respect to a preference eligible applicant, 
        requirements as to age, height, and weight, unless the 
        requirement is essential to the performance of the duties of 
        the position; and
            (2) with respect to a preference eligible applicant to whom 
        it has made a conditional offer of employment, physical 
        requirements if, in the opinion of the employing office, on the 
        basis of evidence before it, including any recommendation of an 
        accredited physician submitted by the preference eligible 
        applicant, the preference eligible applicant is physically able 
        to perform efficiently the duties of the position;
    (b) Subject to (c) below, if an employing office determines, on the 
basis of evidence before it, including any recommendation of an 
accredited physician submitted by the preference eligible applicant, 
that an applicant to whom it has made a conditional offer of employment 
is preference eligible as a disabled veteran as described in 5 U.S.C. 
Sec. 2108(3)(c) and who has a compensable service-connected disability 
of 30 percent or more is not able to fulfill the physical requirements 
of the covered position, the employing office shall notify the 
preference eligible applicant of the reasons for the determination and 
of the right to respond and to submit additional information to the 
employing office, within 15 days of the date of the notification. The 
director of the employing office may, by providing written notice to 
the preference eligible applicant, shorten the period for submitting a 
response with respect to an appointment to a particular covered 
position, if necessary because of a need to fill the covered position 
immediately. Should the preference eligible applicant make a timely 
response, the highest ranking individual or group of individuals with 
authority to make employment decisions on behalf of the employing 
office shall render a final determination of the physical ability of 
the preference eligible applicant to perform the duties of the 
position, taking into account the response and any additional 
information provided by the preference eligible applicant. When the 
employing office has completed its review of the proposed 
disqualification on the basis of physical disability, it shall send its 
findings to the preference eligible applicant.
    (c) Nothing in this section shall relieve an employing office of 
any obligations it may have pursuant to the Americans with Disabilities 
Act (42 U.S.C. Sec. 12101 et seq.) as applied by section 102(a)(3) of 
the Act, 2 U.S.C. Sec. 1302(a)(3).

         Subpart D--Veterans' preference in reductions in force

Sec.
1.111. Definitions applicable in reductions in force.
1.112. Application of preference in reductions in force.
1.113. Crediting experience in reductions in force.
1.114. Waiver of physical requirements in reductions in force.
1.115. Transfer of functions.

SEC. 1.111. DEFINITIONS APPLICABLE IN REDUCTIONS IN FORCE.

    (a) Competing covered employees are the covered employees within a 
particular position or job classification, at or within a particular 
competitive area, as those terms are defined below.
    (b) Competitive area is that portion of the employing office's 
organizational structure, as determined by the employing office, in 
which covered employees compete for retention. A competitive area must 
be defined solely in terms of the employing office's organizational 
unit(s) and geographical location, and it must include all employees 
within the competitive area so defined. A competitive area may consist 
of all or part of an employing office. The minimum competitive area is 
a department or subdivision of the employing office within the local 
commuting area.
    (c) Position classifications or job classifications are determined 
by the employing office, and shall refer to all covered positions 
within a competitive area that are in the same grade, occupational 
level or classification, and which are similar enough in duties, 
qualification requirements, pay schedules, tenure (type of appointment) 
and working conditions so that an employing office may reassign the 
incumbent of one position to any of the other positions in the position 
classification without undue interruption.
    (d) Preference Eligibles. For the purpose of applying veterans' 
preference in reductions in force, except with respect to the 
application of section 1.114 of these regulations regarding the waiver 
of physical requirements, the following shall apply:
            (1) ``active service'' has the meaning given it by section 
        101 of title 37;
            (2) ``a retired member of a uniformed service'' means a 
        member or former member of a uniformed service who is entitled, 
        under statute, to retired, retirement, or retainer pay on 
        account of his/her service as such a member; and
            (3) a preference eligible covered employee who is a retired 
        member of a uniformed service is considered a preference 
        eligible only if
                    (A) his/her retirement was based on disability--
                            (i) resulting from injury or disease 
                        received in line of duty as a direct result of 
                        armed conflict; or
                            (ii) caused by an instrumentality of war 
                        and incurred in the line of duty during a 
                        period of war as defined by sections 101 and 
                        1101 of title 38;
                    (B) his/her service does not include twenty or more 
                years of full-time active service, regardless of when 
                performed but not including periods of active duty for 
                training; or
                    (C) on November 30, 1964, he/she was employed in a 
                position to which this subchapter applies and 
                thereafter he/she continued to be so employed without a 
                break in service of more than 30 days.
        The definition of ``preference eligible'' as set forth in 5 
U.S.C Sec. 2108 and section 1.102(o) of these regulations shall apply 
to waivers of physical requirements in determining an employee's 
qualifications for retention under section 1.114 of these regulations.
        H&S Regs:  (e) Reduction in force is any termination of a 
covered employee's employment or the reduction in pay and/or position 
grade of a covered employee for more than 30 days and that may be 
required for budgetary or workload reasons, changes resulting from 
reorganization, or the need to make room for an employee with 
reemployment or restoration rights. The term ``reduction in force'' 
does not encompass a termination or other personnel action: (1) 
predicated upon performance, conduct or other grounds attributable to 
an employee, or (2) involving an employee who is employed by the 
employing office on a temporary basis, or (3) attributable to a change 
in party leadership or majority party status within the House of 
Congress where the employee is employed.
        C Reg:  (e) Reduction in force is any termination of a covered 
employee's employment or the reduction in pay and/or position grade of 
a covered employee for more than 30 days and that may be required for 
budgetary or workload reasons, changes resulting from reorganization, 
or the need to make room for an employee with reemployment or 
restoration rights. The term ``reduction in force'' does not encompass 
a termination or other personnel action: (1) predicated upon 
performance, conduct or other grounds attributable to an employee, or 
(2) involving an employee who is employed by the employing office on a 
temporary basis.
    (f) Undue interruption is a degree of interruption that would 
prevent the completion of required work by a covered employee 90 days 
after the employee has been placed in a different position under this 
part. The 90-day standard should be considered within the allowable 
limits of time and quality, taking into account the pressures of 
priorities, deadlines, and other demands. However, work generally would 
not be considered to be unduly interrupted if a covered employee needs 
more than 90 days after the reduction in force to perform the optimum 
quality or quantity of work. The 90-day standard may be extended if 
placement is made under this part to a program accorded low priority by 
the employing office, or to a vacant position.

SEC. 1.112. APPLICATION OF PREFERENCE IN REDUCTIONS IN FORCE.

        Prior to carrying out a reduction in force that will affect 
covered employees, employing offices shall determine which, if any, 
covered employees within a particular group of competing covered 
employees are entitled to veterans' preference eligibility status in 
accordance with these regulations. In determining which covered 
employees will be retained, employing offices will treat veterans' 
preference as the controlling factor in retention decisions among such 
competing covered employees, regardless of length of service or 
performance, provided that the preference eligible employee's 
performance has not been determined to be unacceptable. Provided, a 
preference eligible employee who is a ``disabled veteran'' under 
section 1.102(h) above who has a compensable service-connected 
disability of 30 percent or more and whose performance has not been 
determined to be unacceptable by an employing office is entitled to be 
retained in preference to other preference eligible employees. 
Provided, this section does not relieve an employing office of any 
greater obligation it may be subject to pursuant to the Worker 
Adjustment and Retraining Notification Act (29 U.S.C. Sec. 2101 et 
seq.) as applied by section 102(a)(9) of the CAA, 2 U.S.C. 
Sec. 1302(a)(9).

SEC. 1.113. CREDITING EXPERIENCE IN REDUCTIONS IN FORCE.

        In computing length of service in connection with a reduction 
in force, the employing office shall provide credit to preference 
eligible covered employees as follows:
    (a) a preference eligible covered employee who is not a retired 
member of a uniformed service is entitled to credit for the total 
length of time in active service in the armed forces;
    (b) a preference eligible covered employee who is a retired member 
of a uniformed service is entitled to credit for:
            (1) the length of time in active service in the armed 
        forces during a war, or in a campaign or expedition for which a 
        campaign badge has been authorized; or
            (2) the total length of time in active service in the armed 
        forces if he is included under 5 U.S.C. Sec. 3501(a)(3)(A), 
        (B), or (C); and
    (c) a preference eligible covered employee is entitled to credit 
for:
            (1) service rendered as an employee of a county committee 
        established pursuant to section 8(b) of the Soil Conservation 
        and Allotment Act or of a committee or association of producers 
        described in section 10(b) of the Agricultural Adjustment Act; 
        and
            (2) service rendered as an employee described in 5 U.S.C. 
        Sec. 2105(c) if such employee moves or has moved, on or after 
        January 1, 1966, without a break in service of more than 3 
        days, from a position in a nonappropriated fund instrumentality 
        of the Department of Defense or the Coast Guard to a position 
        in the Department of Defense or the Coast Guard, respectively, 
        that is not described in 5 U.S.C. Sec. 2105(c).

SEC. 1.114. WAIVER OF PHYSICAL REQUIREMENTS IN REDUCTIONS IN FORCE.

    (a) If an employing office determines, on the basis of evidence 
before it, that a covered employee is preference eligible, the 
employing office shall waive, in determining the covered employee's 
retention status in a reduction in force:
            (1) requirements as to age, height, and weight, unless the 
        requirement is essential to the performance of the duties of 
        the position; and
            (2) physical requirements if, in the opinion of the 
        employing office, on the basis of evidence before it, including 
        any recommendation of an accredited physician submitted by the 
        employee, the preference eligible covered employee is 
        physically able to perform efficiently the duties of the 
        position.
    (b) If an employing office determines that a covered employee who 
is a preference eligible as a disabled veteran as described in 5 U.S.C. 
Sec. 2108(3)(c) and has a compensable service-connected disability of 
30 percent or more is not able to fulfill the physical requirements of 
the covered position, the employing office shall notify the preference 
eligible covered employee of the reasons for the determination and of 
the right to respond and to submit additional information to the 
employing office within 15 days of the date of the notification. Should 
the preference eligible covered employee make a timely response, the 
highest ranking individual or group of individuals with authority to 
make employment decisions on behalf of the employing office, shall 
render a final determination of the physical ability of the preference 
eligible covered employee to perform the duties of the covered 
position, taking into account the evidence before it, including the 
response and any additional information provided by the preference 
eligible. When the employing office has completed its review of the 
proposed disqualification on the basis of physical disability, it shall 
send its findings to the preference eligible covered employee.
    (c) Nothing in this section shall relieve an employing office of 
any obligation it may have pursuant to the Americans with Disabilities 
Act (42 U.S.C. Sec. 12101 et seq.) as applied by section 102(a)(3) of 
the CAA, 2 U.S.C. Sec. 1302(a)(3).

SEC. 1.115. TRANSFER OF FUNCTIONS.

    (a) When a function is transferred from one employing office to 
another employing office, each covered employee in the affected 
position classifications or job classifications in the function that is 
to be transferred shall be transferred to the receiving employing 
office for employment in a covered position for which he/she is 
qualified before the receiving employing office may make an appointment 
from another source to that position.
    (b) When one employing office is replaced by another employing 
office, each covered employee in the affected position classifications 
or job classifications in the employing office to be replaced shall be 
transferred to the replacing employing office for employment in a 
covered position for which he/she is qualified before the replacing 
employing office may make an appointment from another source to that 
position.

 Subpart E--Adoption of Veterans' preference policies, recordkeeping & 
                      informational requirements.

Sec.
1.116. Adoption of veterans' preference policy.
1.117. Preservation of records made or kept.
1.118. Dissemination of veterans' preference policies to applicants for 
                            covered positions.
1.119. Information regarding veterans' preference determinations in 
                            appointments.
1.120. Dissemination of veterans' preference policies to covered 
                            employees.
1.121. Written notice prior to a reduction in force.

SEC. 1.116. ADOPTION OF VETERANS' PREFERENCE POLICY.

        No later than 120 calendar days following Congressional 
approval of this regulation, each employing office that employs one or 
more covered employees or that seeks applicants for a covered position 
shall adopt its written policy specifying how it has integrated the 
veterans' preference requirements of the Veterans Employment 
Opportunities Act of 1998 and these regulations into its employment and 
retention processes. Upon timely request and the demonstration of good 
cause, the Executive Director, in his/her discretion, may grant such an 
employing office additional time for preparing its policy. Each such 
employing office will make its policies available to applicants for 
appointment to a covered position and to covered employees in 
accordance with these regulations. The act of adopting a veterans' 
preference policy shall not relieve any employing office of any other 
responsibility or requirement of the Veterans Employment Opportunity 
Act of 1998 or these regulations. An employing office may amend or 
replace its veterans' preference policies as it deems necessary or 
appropriate, so long as the resulting policies are consistent with the 
VEOA and these regulations.

SEC. 1.117. PRESERVATION OF RECORDS MADE OR KEPT.

        An employing office that employs one or more covered employees 
or that seeks applicants for a covered position shall maintain any 
records relating to the application of its veterans' preference policy 
to applicants for covered positions and to workforce adjustment 
decisions affecting covered employees for a period of at least one year 
from the date of the making of the record or the date of the personnel 
action involved or, if later, one year from the date on which the 
applicant or covered employee is notified of the personnel action. 
Where a claim has been brought under section 401 of the CAA against an 
employing office under the VEOA, the respondent employing office shall 
preserve all personnel records relevant to the claim until final 
disposition of the claim. The term ``personnel records relevant to the 
claim'', for example, would include records relating to the veterans' 
preference determination regarding the person bringing the claim and 
records relating to any veterans' preference determinations regarding 
other applicants for the covered position the person sought, or records 
relating to the veterans' preference determinations regarding other 
covered employees in the person's position or job classification. The 
date of final disposition of the charge or the action means the latest 
of the date of expiration of the statutory period within which the 
aggrieved person may file a complaint with the Office or in a U.S. 
District Court or, where an action is brought against an employing 
office by the aggrieved person, the date on which such litigation is 
terminated.

SEC. 1.118. DISSEMINATION OF VETERANS' PREFERENCE POLICIES TO 
              APPLICANTS FOR COVERED POSITIONS.

    (a) An employing office shall state in any announcements and 
advertisements it makes concerning vacancies in covered positions that 
the staffing action is governed by the VEOA.
    (b) An employing office shall invite applicants for a covered 
position to identify themselves as veterans' preference eligible 
applicants, provided that in doing so:
            (1) the employing office shall state clearly on any written 
        application or questionnaire used for this purpose or make 
        clear orally, if a written application or questionnaire is not 
        used, that the requested information is intended for use solely 
        in connection with the employing office's obligations and 
        efforts to provide veterans' preference to preference eligible 
        applicants in accordance with the VEOA; and
            (2) the employing office shall state clearly that disabled 
        veteran status is requested on a voluntary basis, that it will 
        be kept confidential in accordance with the Americans with 
        Disabilities Act (42 U.S.C. Sec. 12101 et seq.) as applied by 
        section 102(a)(3) of the CAA, 2 U.S.C. Sec. 1302(a)(3), that 
        refusal to provide it will not subject the individual to any 
        adverse treatment except the possibility of an adverse 
        determination regarding the individual's status as a preference 
        eligible applicant as a disabled veteran under the VEOA, and 
        that any information obtained in accordance with this section 
        concerning the medical condition or history of an individual 
        will be collected, maintained and used only in accordance with 
        the Americans with Disabilities Act (42 U.S.C. Sec. 12101 et 
        seq.) as applied by section 102(a)(3) of the CAA, 2 U.S.C. 
        Sec. 1302(a)(3).
            (3) the employing office shall state clearly that 
        applicants may request information about the employing office's 
        veterans' preference policies as they relate to appointments to 
        covered positions, and shall describe the employing office's 
        procedures for making such requests.
    (c) Upon written request by an applicant for a covered position, an 
employing office shall provide the following information in writing:
            (1) the VEOA definition of veterans' ``preference 
        eligible'' as set forth in 5 U.S.C. Sec. 2108 or any 
        superseding legislation, providing the actual, current 
        definition in a manner designed to be understood by applicants, 
        along with the statutory citation;
            (2) the employing office's veterans' preference policy or a 
        summary description of the employing office's veterans' 
        preference policy as it relates to appointments to covered 
        positions, including any procedures the employing office shall 
        use to identify preference eligible employees;
            (3) the employing office may provide other information to 
        applicants regarding its veterans' preference policies and 
        practices, but is not required to do so by these regulations.
    (d) Employing offices are also expected to answer questions from 
applicants for covered positions that are relevant and non-confidential 
concerning the employing office's veterans' preference policies and 
practices.

SEC. 1.119. INFORMATION REGARDING VETERANS' PREFERENCE DETERMINATIONS 
              IN APPOINTMENTS.

        Upon written request by an applicant for a covered position, 
the employing office shall promptly provide a written explanation of 
the manner in which veterans' preference was applied in the employing 
office's appointment decision regarding that applicant. Such 
explanation shall include at a minimum:
    (a) the employing office's veterans' preference policy or a summary 
description of the employing office's veterans' preference policy as it 
relates to appointments to covered positions; and
    (b) a statement as to whether the applicant is preference eligible 
and, if not, a brief statement of the reasons for the employing 
office's determination that the applicant is not preference eligible.

SEC. 1.120. DISSEMINATION OF VETERANS' PREFERENCE POLICIES TO COVERED 
              EMPLOYEES.

    (a) If an employing office that employs one or more covered 
employees provides any written guidance to such employees concerning 
employee rights generally or reductions in force more specifically, 
such as in a written employee policy, manual or handbook, such guidance 
must include information concerning veterans' preference under the 
VEOA, as set forth in subsection (b) of this regulation.
    (b) Written guidances described in subsection (a) above shall 
include, at a minimum:
            (1) the VEOA definition of veterans' ``preference 
        eligible'' as set forth in 5 U.S.C. Sec. 2108 or any 
        superseding legislation, providing the actual, current 
        definition along with the statutory citation;
            (2) the employing office's veterans' preference policy or a 
        summary description of the employing office's veterans' 
        preference policy as it relates to reductions in force, 
        including the procedures the employing office shall take to 
        identify preference eligible employees.
            (3) the employing office may provide other information in 
        its guidances regarding its veterans' preference policies and 
        practices, but is not required to do so by these regulations.
    (c) Employing offices are also expected to answer questions from 
covered employees that are relevant and non-confidential concerning the 
employing office's veterans' preference policies and practices.

SEC. 1.121. WRITTEN NOTICE PRIOR TO A REDUCTION IN FORCE.

    (a) Except as provided under subsection (c), a covered employee may 
not be released due to a reduction in force, unless the covered 
employee and the covered employee's exclusive representative for 
collective-bargaining purposes (if any) are given written notice, in 
conformance with the requirements of paragraph (b), at least 60 days 
before the covered employee is so released.
    (b) Any notice under paragraph (a) shall include--
            (1) the personnel action to be taken with respect to the 
        covered employee involved;
            (2) the effective date of the action;
            (3) a description of the procedures applicable in 
        identifying employees for release;
            (4) the covered employee's competitive area;
            (5) the covered employee's eligibility for veterans' 
        preference in retention and how that preference eligibility was 
        determined;
            (6) the retention status and preference eligibility of the 
        other employees in the affected position classifications or job 
        classifications within the covered employee's competitive area, 
        by providing:
                    (A) a list of all covered employee(s) in the 
                covered employee's position classification or job 
                classification and competitive area who will be 
                retained by the employing office, identifying those 
                employees by job title only and stating whether each 
                such employee is preference eligible, and
                    (B) a list of all covered employee(s) in the 
                covered employee's position classification or job 
                classification and competitive area who will not be 
                retained by the employing office, identifying those 
                employees by job title only and stating whether each 
                such employee is preference eligible.
            (7) a description of any appeal or other rights which may 
        be available.
    (c) The director of the employing office may, in writing, shorten 
the period of advance notice required under subsection (a), with 
respect to a particular reduction in force, if necessary because of 
circumstances not reasonably foreseeable.
    (d) No notice period may be shortened to less than 30 days under 
this subsection.

            Passed the Senate December 10, 2010.

            Attest:

                                                             Secretary.
111th CONGRESS

  2d Session

                            S. CON. RES. 77

_______________________________________________________________________

                         CONCURRENT RESOLUTION

 To provide for the approval of final regulations issued by the Office 
of Compliance to implement the Veterans Employment Opportunities Act of 
  1998 that apply to certain legislative branch employing offices and 
                        their covered employees.