[Congressional Record Volume 157, Number 10 (Tuesday, January 25, 2011)]
[Senate]
[Pages S99-S104]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOTICE OF ISSUANCE
Mr. INOUYE. Mr. President, pursuant to section 304(d) of the
Congressional Accountability Act of 1995 (2 U.S.C. sec. 1384(d)), the
Office of Compliance, U.S. Congress, submitted a notice of issuance of
final regulations. The notice contains final regulations related to the
Veterans Employment Opportunities Act of 1998--Regulations under
section 4(c)(4) of that Act. The Congressional Accountability Act
requires this notice be printed in the Congressional Record; therefore
I ask unanimous consent that the notice be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Office of Compliance Text of Regulations for the Veterans Employment
Opportunities Act of 1998
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)
[[Page S100]]
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 section 105(a) of
the Second Supplemental Appropriations Act, 1978; 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 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 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,
Sec. 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
Office of Congressional Accessibility Services; (4) the
Capitol Police; (5) the Congressional Budget Office; (6) the
Office of the Architect of the Capitol; (7) the Office of the
Attending Physician; (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 employee of
(1) the House of Representatives; and (2) the Senate; (3) the
Office of Congressional Accessibility Services; (4) the
Capitol Police; (5) the Congressional Budget Office; (6) the
Office of the Architect of the Capitol; (7) the Office of the
Attending Physician; (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 section 105(a) of the Second
Supplemental Appropriations Act, 1978; 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 Regs: (g) ``Covered employee'' means any employee of (1)
the Office of Congressional Accessibility Services; (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 or the Botanic Gardens.
(k) Employee of the Capitol Police Board includes any
member or officer of the Capitol Police.
H Regs: (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) section
1.102 of the regulations classified with an ``H''
classification.
S Regs: (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
[[Page S101]]
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) section 1.102 of the regulations classified
with an ``H'' classification.
C Regs: (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 paragraph (g) above nor any individual
described in subparagraphs (aa) through (dd) of paragraph (g)
of section 1.102 of the regulations classified with an ``H''
classification.
H Regs: (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) of section 1.102 of the regulations classified
with an ``S'' classification.
S Regs: (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) of section 1.102 of the regulations classified
with an ``S'' classification.
C Regs: (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
paragraph (g) above nor any individual described in
subparagraphs (aa) through (ee) of paragraph (g) of section
1.102 of the regulations classified with an ``S''
classification.
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 Regs: (n) ``Employing office'' means: the Office of
Congressional Accessibility Services, the Capitol Police, 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, section 4(c)(3) of the Veterans
Employment Opportunities Act of 1998; 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.
[[Page S102]]
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.
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 applicant 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 2108 and section 1.102(p) 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 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.
(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
[[Page S103]]
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(i) 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, reenacted with amendments by the Agriculture
Marketing Agreement Act of 1937; 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. 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;
(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
[[Page S104]]
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); and
(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 ``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; and
(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; and
(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;
and
(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.
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