[House Report 105-40]
[From the U.S. Government Publishing Office]
105th Congress Rept. 105-40
HOUSE OF REPRESENTATIVES
1st Session Part 1
_______________________________________________________________________
VETERANS EMPLOYMENT OPPORTUNITIES ACT OF 1997
_______
March 20, 1997.--Ordered to be printed
_______
Mr. Burton, from the Committee on Government Reform and Oversight,
submitted the following
R E P O R T
[To accompany H.R. 240]
[Including cost estimate of the Congressional Budget Office]
The Committee on Government Reform and Oversight, to whom was
referred the bill (H.R. 240) to amend title 5, United States
Code, to provide that consideration may not be denied to
preference eligibles applying for certain positions in the
competitive service, and for other purposes, having considered
the same, report favorably thereon with an amendment and
recommend that the bill as amended do pass.
CONTENTS
Page
I. Background and Need for the Legislation..........................9
II. Legislative Hearings and Committee Actions......................13
III. Committee Hearings and Written Testimony........................13
IV. Explanation of the Bill.........................................16
V. Compliance with Rule XI.........................................19
VI. Budget Analysis and Projections.................................19
VII. Cost Estimate of the Congressional Budget Office................20
VIII.Specific Constitutional Authority for this Legislation..........22
IX. Changes in Existing Law.........................................22
X. Committee Recommendation........................................34
XI. Congressional Accountability Act; Public Law 104-1..............34
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Veterans Employment Opportunities
Act of 1997''.
SEC. 2. EQUAL ACCESS FOR VETERANS.
(a) Competitive Service.--Section 3304 of title 5, United States
Code, is amended by adding at the end the following:
``(f)(1) No preference eligible, and no individual (other than a
preference eligible) who has been separated from the armed forces under
honorable conditions after 3 or more years of active service, shall be
denied the opportunity to compete for an announced vacant position
within an agency, in the competitive service or the excepted service,
by reason of--
``(A) not having acquired competitive status; or
``(B) not being an employee of such agency.
``(2) Nothing in this subsection shall prevent an agency from
filling a vacant position (whether by appointment or otherwise) solely
from individuals on a priority placement list consisting of individuals
who have been separated from the agency due to a reduction in force and
surplus employees (as defined under regulations prescribed by the
Office).''.
(b) Civil Service Employment Information.--
(1) Vacant positions.--Section 3327(b) of title 5, United
States Code, is amended by striking ``and'' at the end of
paragraph (1), by redesignating paragraph (2) as paragraph (3),
and by inserting after paragraph (1) the following:
``(2) each vacant position in the agency for which
competition is restricted to individuals having competitive
status or employees of such agency, excluding any position
under paragraph (1), and''.
(2) Additional information.--Section 3327 of title 5, United
States Code, is amended by adding at the end the following:
``(c) Any notification provided under this section shall, for all
positions under subsection (b)(1) as to which section 3304(f) applies
and for all positions under subsection (b)(2), include a notation as to
the applicability of section 3304(f) with respect thereto.
``(d) In consultation with the Secretary of Labor, the Office shall
submit to Congress and the President, no less frequently than every 2
years, a report detailing, with respect to the period covered by such
report--
``(1) the number of positions listed under this section
during such period;
``(2) the number of preference eligibles and other
individuals described in section 3304(f)(1) referred to such
positions during such period; and
``(3) the number of preference eligibles and other
individuals described in section 3304(f)(1) appointed to such
positions during such period.''.
(c) Governmentwide Lists.--
(1) Vacant positions.--Section 3330(b) of title 5, United
States Code, is amended to read as follows:
``(b) The Office of Personnel Management shall cause to be
established and kept current--
``(1) a comprehensive list of all announcements of vacant
positions (in the competitive service and the excepted service,
respectively) within each agency that are to be filled by
appointment for more than 1 year and for which applications are
being or will soon be accepted from outside the agency's work
force; and
``(2) a comprehensive list of all announcements of vacant
positions within each agency for which applications are being
or will soon be accepted and for which competition is
restricted to individuals having competitive status or
employees of such agency, excluding any position required to be
listed under paragraph (1).''.
(2) Additional information.--Section 3330(c) of title 5,
United States Code, is amended by striking ``and'' at the end
of paragraph (2), by redesignating paragraph (3) as paragraph
(4), and by inserting after paragraph (2) the following:
``(3) for all positions under subsection (b)(1) as to which
section 3304(f) applies and for all positions under subsection
(b)(2), a notation as to the applicability of section 3304(f)
with respect thereto; and''.
(3) Conforming amendment.--Section 3330(d) of title 5, United
States Code, is amended by striking ``The list'' and inserting
``Each list under subsection (b)''.
(d) Provisions Relating to the United States Postal Service.--
(1) In general.--Subsection (a) of section 1005 of title 39,
United States Code, is amended by adding at the end the
following:
``(5)(A) The provisions of section 3304(f) of title 5 shall apply
with respect to the Postal Service in the same manner and under the
same conditions as if the Postal Service were an agency within the
meaning of such provisions.
``(B) Nothing in this subsection shall be considered to require the
application of section 3304(f) of title 5 in the case of any individual
who is not an employee of the Postal Service if--
``(i) the vacant position involved is to be filled pursuant
to a collective-bargaining agreement;
``(ii) the collective-bargaining agreement restricts
competition for such position to individuals employed in a
bargaining unit or installation within the Postal Service in
which the position is located;
``(iii) the collective-bargaining agreement provides that the
successful applicant shall be selected on the basis of
seniority or qualifications; and
``(iv) the position to be filled is within a bargaining unit.
``(C) The provisions of this paragraph shall not be modified by any
program developed under section 1004 of this title or any collective-
bargaining agreement entered into under chapter 12 of this title.''.
(2) Conforming amendment.--The first sentence of section
1005(a)(2) of title 39, United States Code, is amended by
striking ``title.'' and inserting ``title, subject to paragraph
(5) of this subsection.''.
SEC. 3. SPECIAL PROTECTIONS FOR PREFERENCE ELIGIBLES IN REDUCTIONS IN
FORCE.
(a) In General.--Section 3502 of title 5, United States Code, as
amended by section 1034 of the National Defense Authorization Act for
Fiscal Year 1996 (Public Law 104-106; 110 Stat. 430), is amended by
adding at the end the following:
``(g)(1) A position occupied by a preference eligible shall not be
placed in a single-position competitive level if the preference
eligible is qualified to perform the essential functions of any other
position at the same grade (or occupational level) in the competitive
area. In such cases, the preference eligible shall be entitled to be
placed in another competitive level for which such preference eligible
is qualified. If the preference eligible is qualified for more than one
competitive level, such preference eligible shall be placed in the
competitive level containing the most positions.
``(2) For purposes of paragraph (1)--
``(A) a preference eligible shall be considered qualified to
perform the essential functions of a position if, by reason of
experience, training, or education (and, in the case of a
disabled veteran, with reasonable accommodation), a reasonable
person could conclude that the preference eligible would be
able to perform those functions successfully within a period of
150 days; and
``(B) a preference eligible shall not be considered
unqualified solely because such preference eligible does not
meet the minimum qualification requirements relating to
previous experience in a specified grade (or occupational
level), if any, that are established for such position by the
Office of Personnel Management or the agency.
``(h) In connection with any reduction in force, a preference
eligible whose current or most recent performance rating is at least
fully successful (or the equivalent) shall have, in addition to such
assignment rights as are prescribed by regulation, the right, in lieu
of separation, to be assigned to any position within the agency
conducting the reduction in force--
``(1) for which such preference eligible is qualified under
subsection (g)(2)--
``(A) that is within the preference eligible's
commuting area and at the same grade (or occupational
level) as the position from which the preference
eligible was released, and that is then occupied by an
individual, other than another preference eligible, who
was placed in such position (whether by appointment or
otherwise) within 6 months before the reduction in
force if, within 12 months prior to the date on which
such individual was so placed in such position, such
individual had been employed in the same competitive
area as the preference eligible; or
``(B) that is within the preference eligible's
competitive area and that is then occupied by an
individual, other than another preference eligible, who
was placed in such position (whether by appointment or
otherwise) within 6 months before the reduction in
force; or
``(2) for which such preference eligible is qualified that is
within the preference eligible's competitive area and that is
not more than 3 grades (or pay levels) below that of the
position from which the preference eligible was released,
except that, in the case of a preference eligible with a
compensable service-connected disability of 30 percent or more,
this paragraph shall be applied by substituting `5 grades' for
`3 grades'.
In the event that a preference eligible is entitled to assignment to
more than 1 position under this subsection, the agency shall assign the
preference eligible to any such position requiring no reduction (or, if
there is no such position, the least reduction) in basic pay. A
position shall not, with respect to a preference eligible, be
considered to satisfy the requirements of paragraph (1) or (2), as
applicable, if it does not last for at least 12 months following the
date on which such preference eligible is assigned to such position
under this subsection.
``(i) A preference eligible may challenge the classification of any
position to which the preference eligible asserts assignment rights (as
provided by, or prescribed by regulations described in, subsection (h))
in an action before the Merit Systems Protection Board.
``(j)(1) Not later than 90 days after the date of the enactment of
the Veterans Employment Opportunities Act of 1997, each Executive
agency shall establish an agencywide priority placement program to
facilitate employment placement for employees who--
``(A)(i) are scheduled to be separated from service due to a
reduction in force under--
``(I) regulations prescribed under this section; or
``(II) procedures established under section 3595; or
``(ii) are separated from service due to such a reduction in
force; and
``(B)(i) have received a rating of at least fully successful
(or the equivalent) as the last performance rating of record
used for retention purposes; or
``(ii) occupy positions excluded from a performance appraisal
system by law, regulation, or administrative action taken by
the Office of Personnel Management.
``(2)(A) Each agencywide priority placement program under this
subsection shall include provisions under which a vacant position shall
not (except as provided in this paragraph or any other statute
providing the right of reemployment to any individual) be filled by the
appointment or transfer of any individual from outside of that agency
(other than an individual described in subparagraph (B)) if--
``(i) there is then available any individual described in
subparagraph (B) who is qualified for the position; and
``(ii) the position--
``(I) is at the same grade or pay level (or the
equivalent) or not more than 3 grades (or grade
intervals) below that of the position last held by such
individual before placement in the new position;
``(II) is within the same commuting area as the
individual's last-held position (as referred to in
subclause (I)) or residence; and
``(III) has the same type of work schedule (whether
full-time, part-time, or intermittent) as the position
last held by the individual.
``(B) For purposes of an agencywide priority placement program, an
individual shall be considered to be described in this subparagraph if
such individual--
``(i)(I) is an employee of such agency who is scheduled to be
separated, as described in paragraph (1)(A)(i); or
``(II) is an individual who became a former employee of such
agency as a result of a separation, as described in paragraph
(1)(A)(ii), excluding any individual who separated voluntarily
under subsection (f); and
``(ii) satisfies clause (i) or (ii) of paragraph (1)(B).
``(3)(A) If after a reduction in force the agency has no positions of
any type within the local commuting areas specified in this subsection,
the individual may designate a different local commuting area where the
agency has continuing positions in order to exercise reemployment
rights under this subsection. An agency may determine that such
designations are not in the interest of the Government for the purpose
of paying relocation expenses under subchapter II of chapter 57.
``(B) At its option, an agency may administratively extend
reemployment rights under this subsection to include other local
commuting areas.
``(4)(A) In selecting employees for positions under this subsection,
the agency shall place qualified present and former employees in
retention order by veterans' preference subgroup and tenure group.
``(B) An agency may not pass over a qualified present or former
employee to select an individual in a lower veterans' preference
subgroup within the tenure group, or in a lower tenure group.
``(C) Within a subgroup, the agency may select a qualified present or
former employee without regard to the individual's total creditable
service.
``(5) An individual is eligible for reemployment priority under this
subsection for 2 years from the effective date of the reduction in
force from which the individual will be, or has been, separated under
this section or section 3595, as the case may be.
``(6) An individual loses eligibility for reemployment priority under
this subsection when the individual--
``(A) requests removal in writing;
``(B) accepts or declines a bona fide offer under this
subsection or fails to accept such an offer within the period
of time allowed for such acceptance, or
``(C) separates from the agency before being separated under
this section or section 3595, as the case may be.
A present or former employee who declines a position with a
representative rate (or equivalent) that is less than the rate of the
position from which the individual was separated under this section
retains eligibility for positions with a higher representative rate up
to the rate of the individual's last position.
``(7) Whenever more than one individual is qualified for a position
under this subsection, the agency shall select the most highly
qualified individual, subject to paragraph (4).
``(8) The Office of Personnel Management shall issue regulations to
implement this subsection.''.
(b) Applicability.--
(1) In general.--Subject to paragraph (2), the amendments
made by this section shall apply with respect to--
(A) reductions in force taking effect after the end
of the 90-day period beginning on the date of the
enactment of this Act; or
(B) in the case of the Department of Defense,
reductions in force taking effect after the end of the
1-year period beginning on the date of the enactment of
this Act.
(2) Ongoing reductions in force.--If an agency has given
written notice of a reduction in force to any of its employees
within a competitive area, in accordance with section
3502(d)(1)(A) of title 5, United States Code, before the
effective date under subparagraph (A) or (B) of paragraph (1),
as applicable, then, for purposes of determining the rights of
any employee within such area in connection with such reduction
in force, the amendments made by this section shall be treated
as if they had never been enacted. Nothing in the preceding
sentence shall affect any rights under a priority placement
program under section 3502(j) of title 5, United States Code,
as amended by this section.
SEC. 4. IMPROVED REDRESS FOR VETERANS.
(a) In General.--Subchapter I of chapter 33 of title 5, United States
Code, is amended by adding at the end the following:
``Sec. 3330a. Administrative redress
``(a)(1) Any preference eligible or other individual described in
section 3304(f)(1) who alleges that an agency has violated such
individual's rights under any statute or regulation relating to
veterans' preference, or any right afforded such individual by section
3304(f), may file a complaint with the Secretary of Labor.
``(2) A complaint under this subsection must be filed within 60 days
after the date of the alleged violation, and the Secretary shall
process such complaint in accordance with sections 4322 (a) through
(e)(1) and 4326 of title 38.
``(b)(1) If the Secretary of Labor is unable to resolve the complaint
within 60 days after the date on which it is filed, the complainant may
elect to appeal the alleged violation to the Merit Systems Protection
Board in accordance with such procedures as the Merit Systems
Protection Board shall prescribe, except that in no event may any such
appeal be brought--
``(A) before the 61st day after the date on which the
complaint is filed under subsection (a); or
``(B) later than 15 days after the date on which the
complainant receives notification from the Secretary of Labor
under section 4322(e)(1) of title 38.
``(2) An appeal under this subsection may not be brought unless--
``(A) the complainant first provides written notification to
the Secretary of Labor of such complainant's intention to bring
such appeal; and
``(B) appropriate evidence of compliance with subparagraph
(A) is included (in such form and manner as the Merit Systems
Protection Board may prescribe) with the notice of appeal under
this subsection.
``(3) Upon receiving notification under paragraph (2)(A), the
Secretary of Labor shall not continue to investigate or further attempt
to resolve the complaint to which such notification relates.
``(c) This section shall not be construed to prohibit a preference
eligible from appealing directly to the Merit Systems Protection Board
from any action which is appealable to the Board under any other law,
rule, or regulation, in lieu of administrative redress under this
section.
``Sec. 3330b. Judicial redress
``(a) In lieu of continuing the administrative redress procedure
provided under section 3330a(b), a preference eligible or other
individual described in section 3304(f)(1) may elect, in accordance
with this section, to terminate those administrative proceedings and
file an action with the appropriate United States district court not
later than 60 days after the date of the election.
``(b) An election under this section may not be made--
``(1) before the 121st day after the date on which the appeal
is filed with the Merit Systems Protection Board under section
3330a(b); or
``(2) after the Merit Systems Protection Board has issued a
judicially reviewable decision on the merits of the appeal.
``(c) An election under this section shall be made, in writing, in
such form and manner as the Merit Systems Protection Board shall by
regulation prescribe. The election shall be effective as of the date on
which it is received, and the administrative proceeding to which it
relates shall terminate immediately upon the receipt of such election.
``Sec. 3330c. Remedy
``(a) If the Merit Systems Protection Board (in a proceeding under
section 3330a) or a court (in a proceeding under section 3330b)
determines that an agency has violated a right described in section
3330a, the Board or court (as the case may be) shall order the agency
to comply with such provisions and award compensation for any loss of
wages or benefits suffered by the individual by reason of the violation
involved. If the Board or court determines that such violation was
willful, it shall award an amount equal to backpay as liquidated
damages.
``(b) A preference eligible or other individual described in section
3304(f)(1) who prevails in an action under section 3330a or 3330b shall
be awarded reasonable attorney fees, expert witness fees, and other
litigation expenses.''.
(b) Clerical Amendment.--The table of sections at the beginning of
chapter 33 of title 5, United States Code, is amended by adding after
the item relating to section 3330 the following:
``3330a. Administrative redress.
``3330b. Judicial redress.
``3330c. Remedy.''.
SEC. 5. EXTENSION OF VETERANS' PREFERENCE.
(a) Amendment to Title 5, United States Code.--Paragraph (3) of
section 2108 of title 5, United States Code, is amended by striking
``the Federal Bureau of Investigation and Drug Enforcement
Administration Senior Executive Service, or the General Accounting
Office;'' and inserting ``or the Federal Bureau of Investigation and
Drug Enforcement Administration Senior Executive Service;''.
(b) Amendments to Title 3, United States Code.--
(1) In general.--Chapter 2 of title 3, United States Code, is
amended by adding at the end the following:
``Sec. 115. Veterans' preference
``(a) Subject to subsection (b), appointments under sections 105,
106, and 107 shall be made in accordance with section 2108, and
sections 3309 through 3312, of title 5.
``(b) Subsection (a) shall not apply to any appointment to a position
the rate of basic pay for which is at least equal to the minimum rate
established for positions in the Senior Executive Service under section
5382 of title 5 and the duties of which are comparable to those
described in section 3132(a)(2) of such title or to any other position
if, with respect to such position, the President makes certification--
``(1) that such position is--
``(A) a confidential or policy-making position; or
``(B) a position for which political affiliation or
political philosophy is otherwise an important
qualification; and
``(2) that any individual selected for such position is
expected to vacate the position at or before the end of the
President's term (or terms) of office.
Each individual appointed to a position described in the preceding
sentence as to which the expectation described in paragraph (2) applies
shall be notified as to such expectation, in writing, at the time of
appointment to such position.''.
(2) Clerical amendment.--The table of sections at the
beginning of chapter 2 of title 3, United States Code, is
amended by adding at the end the following:
``115. Veterans' preference.''.
(c) Legislative Branch Appointments.--
(1) Definitions.--For the purposes of this subsection, the
terms ``employing office'', ``covered employee'', and ``Board''
shall each have the meaning given such term by section 101 of
the Congressional Accountability Act of 1995 (2 U.S.C. 1301).
(2) Rights and protections.--The rights and protections
established under section 2108, sections 3309 through 3312, and
subchapter I of chapter 35, of title 5, United States Code,
shall apply to covered employees.
(3) Remedies.--
(A) In general.--The remedy for a violation of
paragraph (2) shall be such remedy as would be
appropriate if awarded under applicable provisions of
title 5, United States Code, in the case of a violation
of the relevant corresponding provision (referred to in
paragraph (2)) of such title.
(B) Procedure.--The procedure for consideration of
alleged violations of paragraph (2) shall be the same
as apply under section 401 of the Congressional
Accountability Act of 1995 (and the provisions of law
referred to therein) in the case of an alleged
violation of part A of title II of such Act.
(4) Regulations to implement subsection.--
(A) In general.--The Board shall, pursuant to section
304 of the Congressional Accountability Act of 1995 (2
U.S.C. 1384), issue regulations to implement this
subsection.
(B) Agency regulations.--The regulations issued under
subparagraph (A) shall be 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)
except insofar as the Board may 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 this subsection.
(C) Coordination.--The regulations issued under
subparagraph (A) shall be consistent with section 225
of the Congressional Accountability Act of 1995 (2
U.S.C. 1361).
(5) Applicability.--Notwithstanding any other provision of
this subsection, the term ``covered employee'' shall not, for
purposes of this subsection, include an employee--
(A) whose appointment is made by the President with
the advice and consent of the Senate;
(B) whose appointment is made by a Member of Congress
or by a committee or subcommittee of either House of
Congress; or
(C) 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).
(6) Effective date.--Paragraphs (2) and (3) shall be
effective as of the effective date of the regulations under
paragraph (4).
(d) Judicial Branch Appointments.--
(1) In general.--Subject to paragraphs (2) through (4), the
Judicial Conference of the United States shall prescribe
regulations to provide for--
(A) veterans' preference in the consideration of
applicants for employment, and in the conduct of any
reductions in force, within the judicial branch; and
(B) redress procedures for alleged violations of any
rights provided for under subparagraph (A).
(2) Regulations to be based on existing provisions.--Under
the regulations--
(A) a preference eligible (as defined by section 2108
of title 5, United States Code) shall be afforded
preferences similar to those under sections 3309
through 3312, and subchapter I of chapter 35, of such
title 5; and
(B) the redress procedures provided for shall be
similar to those under the amendments made by section
4.
(3) Exclusions.--Nothing in the regulations shall apply with
respect to--
(A) an appointment made by the President, with the
advice and consent of the Senate;
(B) an appointment as a judicial officer;
(C) an appointment as a law clerk or secretary to a
justice or judge of the United States; or
(D) an appointment 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).
(4) Consultation.--The regulations under this subsection
shall be prescribed by the Judicial Conference of the United
States, in consultation with--
(A) the largest congressionally chartered veterans'
service organization;
(B) 2 congressionally chartered veterans' service
organizations that represent former noncommissioned
officers;
(C) a congressionally chartered veterans' service
organization that represents veterans who have fought
in foreign wars;
(D) a congressionally chartered veterans' service
organization that represents veterans with service-
connected disabilities;
(E) a congressionally chartered veterans' service
organization that represents veterans of the Vietnam
era; and
(F) a congressionally chartered veterans' service
organization that represents veterans of World War II,
the Korean conflict, the Vietnam era, and the Persian
Gulf War.
(5) Definitions.--For purposes of this subsection--
(A) the term ``judicial officer'' means a justice,
judge, or magistrate judge listed in subparagraph (A),
(B), (F), or (G) of section 376(a)(1) of title 28,
United States Code; and
(B) the term ``justice or judge of the United
States'' has the meaning given such term by section 451
of such title 28.
(6) Submission to congress; effective date.--
(A) Submission to congress.--Within 5 months after
the date of the enactment of this Act, the Judicial
Conference of the United States shall submit a copy of
the regulations prescribed under this subsection to the
Committee on Government Reform and Oversight and the
Committee on the Judiciary of the House of
Representatives and the Committee on Governmental
Affairs and the Committee on the Judiciary of the
Senate.
(B) Effective date.--The regulations prescribed under
this subsection shall take effect 6 months after the
date of the enactment of this Act.
SEC. 6. VETERANS' PREFERENCE REQUIRED FOR REDUCTIONS IN FORCE IN THE
FEDERAL AVIATION ADMINISTRATION.
Section 347(b) of the Department of Transportation and Related
Agencies Appropriations Act, 1996 (109 Stat. 460) is amended by
striking ``and'' at the end of paragraph (6), by striking the period at
the end of paragraph (7) and inserting ``; and'', and by adding at the
end the following:
``(8) sections 3501-3504, as such sections relate to
veterans' preference.''.
SEC. 7. DEFINITIONAL AMENDMENT.
Subparagraph (A) of section 2108(1) of title 5, United States Code,
is amended by inserting ``during a military operation in a qualified
hazardous duty area (within the meaning of the first 2 sentences of
section 1(b) of Public Law 104-117) and in accordance with requirements
that may be prescribed in regulations of the Secretary of Defense,''
after ``for which a campaign badge has been authorized,''.
SEC. 8. FAILURE TO COMPLY WITH VETERANS' PREFERENCE REQUIREMENTS TO BE
TREATED AS A PROHIBITED PERSONNEL PRACTICE FOR
CERTAIN PURPOSES.
(a) In General.--Subsection (b) of section 2302 of title 5, United
States Code, is amended--
(1) by striking ``or'' at the end of paragraph (10);
(2) by redesignating paragraph (11) as paragraph (12); and
(3) by inserting after paragraph (10) the following:
``(11)(A) knowingly take, recommend, or approve any personnel
action if the taking of such action would violate a veterans'
preference requirement; or
``(B) knowingly fail to take, recommend, or approve any
personnel action if the failure to take such action would
violate a veterans' preference requirement; or''.
(b) Definition; Limitation.--Section 2302 of title 5, United States
Code, is amended by adding at the end the following:
``(e)(1) For the purpose of this section, the term `veterans'
preference requirement' means any of the following provisions of law:
``(A) Sections 2108, 3305(b), 3309, 3310, 3311, 3312, 3313,
3314, 3315, 3316, 3317(b), 3318, 3320, 3351, 3352, 3363, 3501,
3502(b), 3504, and 4303(e) and (with respect to a preference
eligible referred to in section 7511(a)(1)(B)) subchapter II of
chapter 75 and section 7701.
``(B) Sections 943(c)(2) and 1784(c) of title 10.
``(C) Section 1308(b) of the Alaska National Interest Lands
Conservation Act.
``(D) Section 301(c) of the Foreign Service Act of 1980.
``(E) Sections 106(f), 7281(e), and 7802(5) of title 38.
``(F) Section 1005(a) of title 39.
``(G) Any other provision of law that the Director of the
Office of Personnel Management designates in regulations as
being a veterans' preference requirement for the purposes of
this subsection.
``(H) Any regulation prescribed under subsection (b) or (c)
of section 1302 and any other regulation that implements a
provision of law referred to in any of the preceding
subparagraphs.
``(2) Notwithstanding any other provision of this title, no authority
to order corrective action shall be available in connection with a
prohibited personnel practice described in subsection (b)(11). Nothing
in this paragraph shall be considered to affect any authority under
section 1215 (relating to disciplinary action).''.
(c) Repeals.--
(1) Provisions of title 10, united states code.--Section
1599c of title 10, United States Code, and the item relating to
such section in the table of sections at the beginning of
chapter 81 of such title are repealed.
(2) Section 2302(a)(1) of title 5, united states code.--
Subsection (a)(1) of section 2302 of title 5, United States
Code, is amended to read as follows:
``(a)(1) For the purpose of this title, `prohibited personnel
practice' means any action described in subsection (b).''.
(d) Savings Provision.--This section shall be treated as if it had
never been enacted for purposes of any personnel action (within the
meaning of section 2302 of title 5, United States Code) preceding the
date of the enactment of this Act.
Short Summary of Legislation
H.R. 240, as amended, strengthens veterans' preference and
increases employment opportunities for veterans. It permits
preference eligibles and certain other veterans to overcome
artificial restrictions on the scope of competition for
announced vacancies, establishes an effective redress system
for veterans who believe their rights have been violated, makes
knowing violations of veterans' preference laws a prohibited
personnel practice, provides preference eligibles with
increased protections during reductions in force (RIF),
requires agencies to establish priority placement programs for
employees affected by a RIF and apply veterans' preference when
rehiring from the list, extends veterans' preference to certain
positions at the White House and in the legislative and
judicial branches of government, requires the Federal Aviation
Administration to apply veterans' preference in reductions in
force, and provides veterans' preference eligibility for
service in Bosnia, Croatia, and the Former Yugoslav Republic of
Macedonia.
I. Background and Need for the Legislation
In general, veterans preference laws give certain veterans
preference in appointment to civilian employment with the
Federal Government based upon their military service. Congress
has long recognized that this is an earned benefit, not a gift.
The statutory basis for today's veterans preference is the
Veterans' Preference Act of 1944, as subsequently amended.
Under that Act, veterans are given ``augmented scores'' of 5 or
10 points, depending upon their status, in examinations for
employment and retention preference in the event of a reduction
in force. The Act also prohibited adverse actions against
veterans without ``cause'' and required certain due process
protections, such as notice and an opportunity to be heard, as
well as appeals.
The Subcommittee on the Civil Service has held two hearings
related to this subject. The first hearing, which examined
veterans' preference in the Federal workplace, was held during
the 104th Congress on April 30, 1996. The second hearing was
held on February 26, 1997 to examine H.R. 240.
Testimony at these hearings revealed that veterans'
preference in the Federal workplace is often ignored or
circumvented and that its continued viability is threatened on
several fronts.
Veterans' employment in the Federal workforce is declining
at a rapid rate. Indeed, the government is approaching
historically low levels since the implementation of veterans'
preference. Although 27.5% of the government's employees are
veterans, as recently as 1984, veteran representation in the
Federal work force was nearly 38%. Veterans have borne a
disproportionate brunt of the government's downsizing. In part,
this reflects the concentration of veterans in the very
defense-related agencies that account for the vast majority of
the recent downsizing. The Office of Personnel Management's
(OPM) figures show that in September 1996, 65% of all veterans
were employed in the three military departments and two other
agencies. (In comparison, these agencies accounted for only 54%
of the overall Federal civilian workforce.) It may also reflect
the greater average age of veterans, who account for over 50%
of all retirements from Federal civil service in the last five
years. OPM's data also show that the percentage of veterans in
the workforce of some agencies, such as the Department of
Education and the Department of Health and Human services, is
far below the governmentwide figure.
threats to veterans preference.
Many in the veterans community have cited a variety of
strategies recently used by agencies that threaten veterans'
preference, whether that is their intended effect or not. A
prime example is increased usage of single position competitive
levels 1 in RIFs. In addition, evidence suggests a deep-
rooted resistance to veterans' preference in the bureaucracy. A
1992 GAO study of veterans' preference revealed that
certificates (the list of candidates from which agencies may
hire) headed by a veteran entitled to preference were returned
unused at almost 1.4 times the return rate of certificates
headed by nonveterans.2 According to another GAO study,
one quarter of selecting officials who returned a certificate
unused to their personnel office in 1992 did so when they could
not hire the candidate they wanted because a preference-
eligible 3 veteran was ranked higher.4
---------------------------------------------------------------------------
\1\ A ``competitive level'' consists of all positions in the
``competitive area'' that are essentially interchangeable. Jobs are
considered interchangeable if they are in the same grade level and
classification series and the individuals holding them could move from
one position to another ``without any loss of productivity beyond that
normally expected in the orientation of any new but fully qualified
employee.'' A ``competitive area'' is the organizational unit and
geographic area in which a RIF is conducted.
\2\ GAO, Federal Hiring: Does Veterans' Preference Need Updating?,
(March 1992), at 27. 70.6% of certificates headed by veterans were
returned unused versus only 50.8% of those headed by nonveterans.
\3\ ``Preference eligibles'' are veterans entitled to preference.
The term is defined to mean disabled veterans, those who served in the
military during wars, during specified periods of time, or in a
campaign or expedition for which a campaign badge has been authorized.
In addition, under certain circumstances, the spouses of disabled
veterans, unmarried widows or widowers of veterans, and the mothers of
individuals killed while in the military or of individuals with
service-connected permanent and total disabilities are considered
``preference eligibles.'' Special rules also apply to military
retirees. 5 U.S.C. Sec. Sec. 2108, 3501.
\4\ GAO, Federal Hiring: Reconciling Managerial Flexibility With
Veterans' Preference, at 32 (June 1995).
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The use of single-position competitive levels poses a
threat to veterans' preference because it effectively
eliminates the preference eligible's ability to compete for
retention at his or her grade level. The case of John Davis, a
decorated Vietnam veteran who testified at the subcommittee's
April 30, 1996 hearing, provides an example. Mr. Davis was
placed in a single-position competitive level during a RIF at
the Army Corps of Engineers, and consequently released from his
position. Many in the veterans' community believe the use of
this device undercut Mr. Davis's veterans' preference rights,
even though both the Merit Systems Protection Board and the
U.S. Court of Appeals for the Federal Circuit upheld the
agency's action.
On occasions the use of single-position competitive levels
is appropriate because positions are so truly unique that
employees cannot move between them without disrupting
productivity. However the potential for abuse is always
present, and agencies can use them to target individual
employees and circumvent veterans' preference. Unfortunately,
use of this device has proliferated in recent years. For
example, in a RIF recently conducted by the U.S. Geological
Survey 97.2% of 1,100 scientific or technical positions were
placed in unique competitive levels.
The Committee also believes it is necessary to provide
eligible veterans with stronger rights to move into other
positions if they are released from their own jobs during a
RIF. Again, the John Davis cases illustrates why such increased
protection is necessary. In that case, the evidence shows that
before it conducted the RIF the agency actually restructured
some positions to allow other employees to qualify for them and
escape the RIF.5
---------------------------------------------------------------------------
\5\ Davis v. Department of the Army, DC-0351-93-0543-I-2, initial
decision at 15 (MSPB February 4, 1994).
---------------------------------------------------------------------------
This legislation addresses these problems by making it more
difficult for agencies to place preference eligibles in single-
position competitive levels. Under it, preference eligibles
cannot be placed in such a competitive level if by reason of
their education, training, or experience a reasonable person
could conclude they would be able successfully to perform
another job at the same grade and in the same competitive level
within 150 days. In such cases, the preference eligible is to
be placed in another competitive level for which he or she
qualifies. And if the preference eligible qualifies for more
than one competitive level, he or she is entitled to be placed
in the competitive level with the most positions. In addition,
the legislation provides preference eligibles with enhanced
assignment rights to other positions and requires agencies to
establish priority placement programs for preference eligibles
who are separated or scheduled to be separated as a result of a
RIF.
Equal Access for Veterans
Not all of those who have served in the military are
entitled to veterans preference, even though they are commonly
thought of as veterans. Only those who meet the statutory
definition of ``preference eligible'' are entitled to veterans
preference. Today, most become eligible for veterans'
preference by receiving a campaign badge. Consequently, many
who have served in the armed forces do not have an advantage
when competing for Federal jobs. Even worse, however, because
agencies frequently restrict competition for positions to
``status'' candidates (primarily those who are already Federal
civilian employees) or, more narrowly, to those in the agency's
own workforce, these veterans are excluded from competition for
many government jobs.
The Committee believes this is wrong. In his memorial day
speech at Arlington National Cemetery on May 27, 1996,
President Clinton observed, ``As we honor the brave sacrifices
in battle that grace our nation's history, let us also remember
to honor those who served in times of peace, who preserve the
peace, protect our interests and project our values. Though
they are the best-trained, best-equipped military in the world,
they, too, face their share of dangers.'' Accordingly, the
Committee believes that it is incumbent upon the Federal
Government to recognize the valuable Federal service those
veterans have performed.
In order to address this problem, the legislation provides
that preference eligibles and other veterans who have served
honorably for at least three years cannot be prevented from
competing for government jobs because they do not have
``status'' or are not employees of the hiring agency. This
section of the bill (section 2) does not confer a preference on
anyone not otherwise entitled to one. Agencies are also
permitted to hire from a re-employment priority list consisting
solely of surplus and displaced employees without outside
competition.
This bill does not interfere with collectively bargained
job bidding and assignment procedures in the Postal Service. It
is not the Committee's intent to interfere with the
reassignment or transfer rights of postal employees. The
Committee recognizes that such employees have the right to
transfer to new locations, and that individuals who suffer
involuntary reassignment continue to be protected under the
respective collective-bargaining agreements. The Committee also
recognizes that postal employees who suffer job-related
disabilities have the right to ``limited duty'' positions, and
individuals who are injured off the job have the right to
``light duty'' positions. This bill is not intended to impair
or diminish these rights.
Lack of an adequate redress mechanism
Compounding the concerns of many veterans and veterans
groups is the lack of an adequate redress mechanism for
veterans whose rights are violated. There is a widespread
consensus in the veterans' community that existing redress
procedures do not provide real relief to affected veterans.
Indeed, testimony at the subcommittee's hearings identified
this as the central defect in veterans' preference today.
H.R. 240 corrects this problem by creating an effective,
yet user-friendly redress system for veterans. Veterans who
believe their veterans' preference rights or their right to
compete for positions under this Act have been violated may
file a complaint with the Secretary of Labor. The Secretary is
to investigate and attempt to resolve the complaint under
procedures established in the Uniformed Services Employment and
Reemployment Rights Act of 1994. The complainant may file an
appeal with the Merit Systems Protection Board if the Secretary
is unable to resolve the complaint or to do so within 60 days.
The veteran is required to exhaust administrative remedies
before the Board for a period of at least 120 days. However,
after 120 days, but before the Board has issued a judicially
reviewable decision on the merits of the case, the veteran may
terminate the administrative proceeding and file a complaint in
an appropriate United States district court. Under this
procedure, a veteran can escape the administrative process if
it becomes mired down, but cannot engage in forum shopping or
obtain more than ``one bite at the apple.''
In addition, under this bill knowing violations of
veterans' preference become a prohibited personnel practice for
the purpose of disciplinary actions. This authorizes the
Special Counsel to file a complaint against an employee who is
alleged to have knowingly violated veterans' preference laws
with the Merit Systems Protection Board. If the Merit Systems
Protection Board sustains these allegations, the employee is
subject to penalties that include removal, suspension, or a
$1,000 fine.
Other concerns
Many positions at the White House and in the legislative
and judicial branches of government are not covered by current
veterans' preference laws. The Committee believes this is
wrong. The debt our Nation owes to those who have fought its
battles should be acknowledged by all branches of government.
Accordingly, the legislation applies veterans' preference to
nonpolitical positions in the White House and the legislative
branch, as well as to many positions in the judicial branch.
Under the Department of Transportation and Related Agencies
Appropriations Act of 1996, the Federal Aviation Administration
was permitted to establish an alternative personnel system.
Although that Act required the FAA to follow veterans'
preference in hiring, it did not require it to do so in RIFs.
This has been of great concern to many veterans at the FAA, and
the Committee believes there is no reason to deprive those
veterans of the preference in RIFs they have earned.
Accordingly, the legislation requires the FAA to observe
veterans' preference in RIFs.
Finally, this legislation also extends veterans' preference
to those who serve in Bosnia, Croatia, and the Former Yugoslav
Republic of Macedonia.
II. Legislative Hearings and Committee Actions
H.R. 240 was introduced on January 7, 1997 by the Honorable
John L. Mica (R-FL), Chairman of the House Subcommittee on the
Civil Service. The bill was referred to the Committee on
Government Reform and Oversight on January 7, 1997, and it was
referred to the Subcommittee on the Civil Service on January
22, 1997. The subcommittee held a hearing and mark up on
February 26, 1997. No amendments were offered, and the measure
was ordered favorably reported to the full Committee by a voice
vote. On March 12, 1997, the Committee on Government Reform and
Oversight met to consider the bill. Representative Mica offered
an amendment in the nature of a substitute, which was approved
by voice vote. The Committee favorably reported the bill, as
amended, to the full House by voice vote.
III. Committee Hearings and Written Testimony
On February 26, 1997, the Subcommittee on the Civil Service
held formal hearings on H.R. 240. Witnesses at that hearing
were the Honorable James B. King, Director of the Office of
Personnel Management; Emil Naschinski, Assistant Director,
National Economics Commission, The American Legion; Sidney
Daniels, Director, National Veterans Employment Assistance
Service, Veterans of Foreign Wars of the United States; Charles
L. Calkins, National Executive Secretary, The Fleet Reserve
Association; Larry D. Rhea, Deputy Director of Legislative
Affairs, Non Commissioned Officers Association of the United
States of America. In addition, a written statement was
submitted by Ronald W. Drach, National Employment Director,
Disabled American Veterans.
Director King emphasized the Administration's strong
support for the principle of veterans' preference and agreed
that ``[s]trengthening employment opportunities for veterans is
a worthy goal.'' He lauded the success of the Clinton
Administration in hiring veterans during a time of government
downsizing. Director King also indicated that he had suggested
to veterans's service organizations an alternative to H.R.
240's RIF provisions. That alternative would have allowed
unlimited ``bumping'' and ``retreating'' rights for veterans
only. However, he also indicated that he would support any
approach that the organizations believed would work towards the
goal of strengthening veterans' preference in RIFs. Finally,
Director King recommended that Congress allow OPM sufficient
time to promulgate regulations implementing any changes in RIF
laws and to prevent against the disruption of RIFs that are
underway on the effective date of the legislation.
Mr. Naschinski testified that The American Legion supports
H.R. 240, which he called ``long overdue.'' He emphasized the
importance of the bill's redress mechanism to veterans in
providing an ``effective, efficient and user friendly'' appeals
system for veterans. The American Legion, according to Mr.
Naschinski, ``firmly believes that the major problem with
veterans' preference is that veterans do not have an adequate
redress system for instances of discrimination.'' The American
Legion also supports the bill because it would protect veterans
from such unfair personnel practices as single-person
competitive levels during RIFs and would provide veterans with
enhanced opportunities to find another job if RIFed. Mr.
Naschinski also took issue with the claim that veterans'
preference is unfair to women and minorities, pointing out that
it is completely neutral with regard to the veterans' gender
and ethnicity. He also testified that the percentage of
minorities serving in the armed forces is double the percentage
of minorities in the population. Finally, Mr. Naschinski
emphasized that veterans are among the more stable and
productive members of society, being familiar with leadership
and having an excellent work record.
Mr. Daniels testified that the VFW strongly supports H.R.
240, which is a priority item on the organization's legislative
agenda for 1997. In the view of the VFW, this legislation is
especially important to veterans who may be facing job loss due
to continuing downsizing of the Federal Government. In
particular, the VFW supports the legislation's curbs on the use
of single-position competitive levels and enhanced assignment
rights for preference eligibles, which will discourage the use
of ``designer RIFs'' that threaten veterans' preference. Mr.
Daniels also testified that the equal access provisions of the
bill will greatly assist many highly qualified veterans who are
potential candidates for Federal employment to apply and
compete for Federal jobs. Allowing qualified veterans to
compete for jobs that are currently open only to insiders, he
emphasized, will not only result in more women and minority
veterans obtaining employment, but also increase the pool of
highly qualified candidates and enhance the overall quality of
the Federal workforce. The VFW also fully supports the redress
mechanism in the legislation and making violations of veterans'
preference a prohibited personnel practice in all Federal
agencies.
Mr. Calkins testified that the Fleet Reserve Association
supports this legislation because it reinforces the Nation's
commitment to its veterans. He testified that while some
Federal agencies support veterans' preference in principle,
they circumvent it in practice and answer to no one. He pointed
out that an unsuccessful applicant who suspects discrimination
based on race, sex, or religion can appeal to the Equal
Employment Opportunity Commission for a remedy, but a bypassed
veteran now has no similar recourse. The Fleet Reserve
Association also supports making violations of veterans'
preference a prohibited personnel practice for disciplinary
purposes because it strengthens the enforcement of veterans'
preference laws. Mr. Calkins also rebutted the argument that
veterans' preference is unfair to women and minorities by
pointing out that more women and minorities are now recruited
for the armed services and that women are no longer restricted
to traditional roles outside of the combat theater.
Mr. Rhea testified that enacting this legislation is a high
priority of the Non Commissioned Officers Association (NCOA).
The NCOA believes this bill will provide key ingredients that
have been missing from veterans' preference law for 50 years,
an adequate and fair enforcement mechanism and protection for
veterans during RIFs. Veterans' preference, Mr. Rhea testified,
has become an `` `unfilled earned right' simply because
veterans' preference laws lack an effective enforcement
mechanism.'' He also emphasized that veterans' preference
creates a preference based upon honorable military service for
veterans of either sex.
In his written statement, Mr. Drach emphasized the support
of the Disabled American Veterans for the legislation's equal
access provisions and redress mechanism. With respect to the
equal access provision, he pointed out that veterans were in
fact Federal employees while in the military and made many
personal sacrifices to be a Federal employee. Accordingly, the
legislation appropriately prevents agencies from barring many
veterans from competing for civilian jobs simply because they
are not currently civilian employees. He also argued that
neither veterans nor veterans' service organizations have ever
had access to a meaningful redress system and characterized the
redress mechanism established in this bill as an ``extremely
important provision.''
During the previous Congress the subcommittee held a
hearing on April 30, 1996 to examine whether the employment
preferences accorded veterans by law are being faithfully
applied by the Federal Government and ways in which
opportunities can be improved. The testimony from that hearing
is described in House Report 104-675.
IV. Explanation of the Bill as Reported: Section-by-Section Analysis
Section 1. Short Title
The short title of this Act is ``The Veterans' Employment
Opportunities Act of 1997.''
Section 2. Equal Access for Veterans
Subsection (a) amends 5 U.S.C. Sec. 3304 by adding a new
subsection (f), which provides that a preference eligible or a
veteran who has been honorably discharged after three years'
service in the armed forces may not be barred from competition
for announced vacancies in the competitive or excepted service
because he or she has not acquired competitive status or is not
an employee of a particular agency. However, agencies are not
prohibited from filling vacant positions solely from a priority
placement list consisting of former employees who were
separated from the agency due to a reduction in force and
surplus employees.
Subsection (b) amends 5 U.S.C. Sec. 3327 to require OPM to
maintain and publicize to state employment services all
vacancies for which a veteran may apply under this section.
Subsection (c) amends 5 U.S.C. Sec. 3330(b) to require OPM
to maintain a comprehensive governmentwide list of vacant
positions for which veterans may apply and to make clear that
OPM may contract for this function.
Subsection (d) makes clear that the provisions of this
section do not interfere with the filling of vacancies under
collectively bargained job bidding and assignment procedures in
the Postal Service. Such collectively bargained rights of
postal employees as the right to transfer to new locations, the
right to be protected under the respective collective-
bargaining agreements in the event of an involuntary
reassignment, rights to ``limited duty'' or ``light duty''
positions, and promotions of part time flexible employees are
not impaired or diminished.
Section 3. Special Protections for Preference Eligibles in Reductions
in Force
Subsection (a). This subsection provides special
protections for preference eligible employees when their agency
is conducting a RIF. Because Congress recognizes that single-
position competitive levels pose a threat to veterans'
preference in RIFs, agencies are prohibited from placing any
position occupied by a preference eligible in such a
competitive level if the preference eligible is qualified (as
defined in this Act) to perform the essential functions of any
other position at the same grade and in the same competitive
area. In such cases the preference eligible is entitled to be
placed in another competitive level, and if the preference
eligible is qualified for more than one other competitive
level, he or she is entitled to be placed in the competitive
level containing the most positions.
Preference eligibles are also provided enhanced assignment
rights. A preference eligible whose current or most recent
performance rating is fully successful or better shall have
assignment rights to:
(1) any position for which he or she is qualified (as
defined in this Act) at the same grade level within the
agency conducting the RIF that is in the commuting area
and that is currently held by someone (other than
another preference eligible) who was placed in the
position within six months before the reduction in
force if, within 12 months prior to such placement,
that person had been employed in the same competitive
area as the preference eligible;
(2) any position in the competitive area for which
the preference eligible is qualified (as defined in
this Act) and that is then held by an individual, other
than another preference eligible, who was placed in the
position within 6 months before the RIF; or
(3) any position in the competitive area that is not
more than 3 grades or pay levels (5 grades or pay
levels in the case of a preference eligible with a
service-connected disability of 30% or more) below the
position from which the preference eligible was
released. The special test for determining
qualifications defined in this Act does not apply in
this situation.
These assignment rights are in addition to any assignment
rights positions prescribed by regulations issued by the Office
of Personnel Management.
For the purposes of determining whether a position may be
put in a single-position competitive level or certain
assignment rights of a preference eligible, the preference
eligible shall be considered qualified for another position if
by reason of experience, training, or education a reasonable
person could conclude that the preference eligible would be
able to perform the essential functions of the position
successfully within a period of 150 days.
A preference eligible may challenge the classification of
any position to which he asserts assignment rights in an action
before the Merit Systems Protection Board (MSPB).
Agencies are also required to establish agency wide
priority placement programs for employees who are scheduled to
be separated or are actually separated by a RIF and whose
current or most recent performance rating was at least fully
successful or the equivalent. The agency may not fill any
vacancy by appointment or transfer of any person from outside
or inside the agency (other than surplus or displaced
employees) if there is a qualified employee on the reemployment
priority placement list. Veterans'' preference must be applied
in filling positions from the list. An individual may remain on
the list for a maximum of 2 years, but may be removed earlier
under conditions specified in this section. These conditions
include the rejection of a bona fide offer of employment.
Subsection (b). The amendments made by this section apply
to RIFs taking effect more than 90 days (1 year in the case of
the Department of Defense) after the date of enactment. To
avoid disruption of ongoing RIFs, the amendments will not apply
to reductions in force for which the agency has issued specific
written notices in accordance with 5 U.S.C. Sec. 3502(D)(1)(A)
to employees in a competitive area before the effective dates
specified in this subsection.
Section 4. Improved Redress for Veterans
This section amends chapter 33 of title 5 by adding three
new sections (sections 3331-3333) to create a redress system
that is user-friendly, yet effective. This redress mechanism
covers preference eligibles and, for violations of the right to
compete created in section 2 of this Act, individuals honorably
discharged from the armed forces after three years'' service.
Under this system, the individual first must file a complaint
with the Secretary of Labor within 60 days of the alleged
violation. The Secretary will investigate and attempt to
resolve the complaint in accordance with provisions of the
Uniformed Services Employment and Reemployment Rights Act of
1994, 38 U.S.C. Sec. Sec. 4322(a)-(e)(1), 4326. The individual
may file an appeal with the MSPB if the Secretary is unable to
resolve the complaint within 60 days or if the Secretary
notifies the individual that he is unable to resolve the
complaint. An individual who elects to file an appeal with the
MSPB must notify the Secretary of this election, and the
Secretary is to discontinue his efforts to investigate or
resolve the complaint.
An individual who files an appeal with the MSPB under this
section must exhaust that remedy for at least 120 days. At any
time after that point, but before the MSPB issues a judicially
reviewable decision on the merits, the individual may terminate
the administrative proceeding and file an action with the
appropriate United States district court.
An individual who prevails is entitled to ``make-whole''
relief and, if the MSPB or district court determines that the
agency's violation was willful, liquidated damages equal to the
amount of back pay awarded. The MSPB or district court shall
award reasonable attorney's fees and litigation expenses to an
individual who prevails.
Section 5. Extension of Veterans' Preference
This section extends veterans' preference to certain
positions in the judicial branch and to non-political jobs at
the White House and in the legislative branch.
Subsection (a) amends 5 U.S.C. Sec. 2108 to require the
General Accounting Office to apply veterans' preference in
hiring. (GAO is already covered by veterans' preference with
respect to RIFs.)
Subsection (b) amends title 3 of the United States Code by
adding a new section 115 to positions at the White House.
Positions that are equivalent to positions in the Senior
Executive Service are exempt, as are positions that the
President certifies are confidential or policy-making positions
or for which political affiliation or political philosophy is
otherwise an important qualification.
Subsection (c) extends veterans' preference to positions in
the legislative branch. Positions for which the appointment is
made by the President with the advice and consent of the
Senate, appointments by Members of Congress, and positions
equivalent to Senior Executive Service positions are exempt.
The Board of Directors of the Office of Compliance is required
to establish a redress system for the legislative branch that
is substantially similar to the system established under
section 4 of this Act.
Subsection (d) applies veterans' preference to positions in
the judicial branch. It exempts positions for which the
appointment is made by the President with the advice and
consent of the Senate, judicial officers, appointments as law
clerks or secretaries to judges or Justices, and positions
equivalent to Senior Executive Service positions. The Judicial
Conference, in consultation with certain veterans' service
organizations, is required to prescribe regulations providing
veterans with preferences in employment and RIFs similar to
those in the executive branch and to establish a redress system
for the judicial branch that is similar to the system
established under section 4 of this Act. These regulations are
to be submitted to appropriate congressional committees within
5 months of the date of enactment of this Act and are to take
effect one month later.
Section 6. Veterans' Preference Required for RIFs in the FAA
This section amends section 347(b) of the Department of
Transportation and Related Agencies Appropriations Act, 1996
(109 Stat. 460) to require the Federal Aviation Administration
to apply veterans' preference in reductions in force. Current
law requires the FAA to apply veterans' preference in hiring.
Section 7. Veterans' Preference for Service in Bosnia, Croatia, or the
Former Yugoslav Republic of Macedonia
This section provides veterans' preference for service in
Bosnia, Croatia, and the Former Yugoslav Republic of Macedonia
while such areas are considered a ``qualified hazardous duty
area.''
Section 8. Violation of Veterans' Preference a Prohibited Personnel
Practice for Disciplinary Actions
This section permits the Special Counsel to bring a
disciplinary action before the Merit Systems Protection Board
under 5 U.S.C. Sec. 1215 against any Federal employee who
knowingly violates veterans' preference laws.
V. Compliance With Rule XI
Pursuant to rule XI, clause 2(l)(3)(A) of the Rules of the
House of Representatives, under the authority of rule X, clause
2(b)(1) and clause 3(f), the results and findings from
committee oversight activities are incorporated in the bill and
this report.
VI. Budget Analysis and Projections
H.R. 240, as amended, provides for no new authorization,
budget authority, or tax expenditures. Consequently, the
provisions of section 308(a)(1) of the Congressional Budget Act
of 1974 are not applicable.
VII. Cost Estimate of the Congressional Budget Office
U.S. Congress,
Congressional Budget Office,
Washington, DC, March 18, 1997.
Hon. Daniel Burton,
Chairman, Committee on Government Reform and Oversight, House of
Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 240, the Veterans'
Employment Opportunities Act of 1997.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is John R.
Righter.
Sincerely,
June E. O'Neill, Director.
Enclosure.
H.R. 240--Veterans' Employment Opportunities Act of 1997
CBO estimates that enacting this bill would increase
personnel and management costs of the federal government,
though we cannot estimate the amount of the added costs. For
most agencies, any increase in spending would be subject to the
availability of appropriated funds. The bill could also
increase direct spending by agencies not funded through annual
appropriations. Therefore, pay-as-you-go procedures would apply
to the bill. With the possible exception of costs for the U.S.
Postal Service, the bill's impact on direct spending is not
likely to be significant. Spending by the Postal Service,
however, is classified as off-budget and is not subject to pay-
as-you-go procedures.
H.R. 240 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act of 1995
and would not affect the budgets of state, local, or tribal
governments.
H.R. 240 would strengthen and broaden the applicability of
a set of laws popularly known as veterans' preference, which
afford certain veterans preferential treatment in obtaining and
keeping federal employment. For instance, the bill would
strengthen the ability of veterans to seek redress for any
alleged violations. The bill also would provide a federal
agency from excluding a veteran who was honorably discharged
after three years of service from competing for announced
vacancies because that veteran does not already work for the
hiring agency or have competitive status. Finally, the bill
would extend veterans' preference to certain positions in the
judicial branch and to non-political positions at the White
House and in the legislative branch.
Several provisions of H.R. 240 would increase the costs to
the federal to administer and enforce the laws governing
veterans' preference. However, because we have no way of
predicting the number of veterans who would be affected by the
bill's provisions, particularly the number of veterans who
might seek redress under the bill's expanded procedures, CBO
cannot estimate the amount of these additional costs. Areas of
potential costs resulting from the bill are described below.
The largest potential budgetary impact of the bill would
result from provisions that would allow veterans to appeal
hiring and reduction-in-force decisions to, first, the Merit
Systems Protection Board (MSPB) and, then, to a district court,
and that would increase the amount of redress that an eligible
veteran could receive for an affirmed violation. By expanding
the number of veterans eligible to appeal hiring decisions,
enacting H.R. 240 could significantly increase the workload--
and hence, the expenses--of the Department of Labor, which
would receive the initial complaints, as well as the MSPB and
the federal judiciary, which would handle any subsequent
appeals.
In cases where the complainant prevails, the bill would
require that the individual receive reasonable attorney fees,
expert witness fees, and other litigation expenses. Currently,
successful complainants are awarded only attorney fees. In
cases where a violation is deemed as willful, H.R. 240 also
would require the MSPB or district court to award damages in
addition to any lost wages or benefits. The amount of damages
would be limited to the amount of back pay owed by the agency.
Thus, H.R. 240 would likely result in the appeal of more cases,
particularly those related to grievances over hiring decisions,
and in the awarding of higher monetary judgments. CBO has no
basis for estimating the number or cost of these additional
appeals.
Second, the bill would require agencies to ensure that
eligible veterans, as defined by the bill, are not excluded
from competing for announced vacancies because they do not
already work for the hiring agency or have competitive status.
The provision would result in agencies adding to the Federal
Job Opportunities List positions that otherwise would be filled
by employees who work for the agency or elsewhere in the
federal government. Thus, the bill would require agencies to
transmit additional information to the Office of Personnel
Management and would force agencies to delay hiring individuals
for positions that they typically fill quickly. The extra time
needed to provide veterans with a reasonable opportunity to
apply and to process and consider additional applicants could
lengthen the time positions remain vacant, and could impair the
ability of some agencies to administer their programs and
operations. For some agencies, this delay could result in extra
overtime or contact costs; for others, the delay could reduce
the amount spent on salaries and expenses.
Finally, the bill would extend veterans' preference to
certain positions in the judicial branch and to non-political
positions at the White House and the legislative branch. For
those agencies, such as CBO, the Library of Congress, and the
Capitol Police, that support the Congress, such an application
would be difficult to implement. Because the employees of these
agencies are not part of the Civil Service and since the
agencies do not administer a test or use a numerical rating
system that lends itself to factoring in the additional points
required by law for preference-eligible veterans, it is
uncertain how these agencies would comply with the bill. If the
extension of veterans' preference resulted in the agencies
instituting a new system for judging and hiring applicants, the
associated costs could be significant. For the judicial branch,
the bill would require that the Judicial Conference of the
United States prescribe regulations that are similar to those
governing the executive branch. The bill also would direct the
Office of Compliance and the Judicial Conference of the United
States to establish procedures similar to those available to
executive branch employees. Thus, the agencies could also face
new, potentially costly litigation related to grievances filed
under this provision.
The CBO staff contact for this estimate is John R. Righter.
The estimate was approved by Robert A. Sunshine, Deputy
Assistant Director for Budget Analysis.
VIII. Specific Constitutional Authority for This Legislation
Clauses 1, 12, and 18 of Article 1, section 8 of the
Constitution grant Congress the power to enact this law.
IX. Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3 of rule XIII of the Rules of the
House of Representatives, changes in existing law made by the
bill, as reported, are shown as follows (existing law proposed
to be omitted is enclosed in black brackets, new matter is
printed in italic, existing law in which no change is proposed
is shown in roman):
TITLE 5, UNITED STATES CODE
* * * * * * *
PART III--EMPLOYEES
* * * * * * *
Subpart A--General Provisions
* * * * * * *
CHAPTER 21--DEFINITIONS
* * * * * * *
Sec. 2108. Veteran; disabled veteran; preference eligible
For the purpose of this title--
(1) ``veteran'' means an individual who--
(A) served on active duty in the armed forces
during a war, in a campaign or expedition for
which a campaign badge has been authorized,
during a military operation in a qualified
hazardous duty area (within the meaning of the
first 2 sentences of section 1(b) of Public Law
104-117) and in accordance with requirements
that may be prescribed in regulations of the
Secretary of Defense, during the period
beginning April 28, 1952, and ending July 1,
1955; or
* * * * * * *
(3) ``preference eligible'' means, except as provided
in paragraph (4) of this section--
(A) * * *
* * * * * * *
but does not include applicants for, or members of, the
Senior Executive Service, the Defense Intelligence
Senior Executive Service, the Senior Cryptologic
Executive Service, [the Federal Bureau of Investigation
and Drug Enforcement Administration Senior Executive
Service, or the General Accounting Office;] or the
Federal Bureau of Investigation and Drug Enforcement
Administration Senior Executive Service;
* * * * * * *
CHAPTER 23--MERIT SYSTEM PRINCIPLES
* * * * * * *
Sec. 2302. Prohibited personnel practices
[(a)(1) For purposes of this title, ``prohibited personnel
practice'' means the following:
[(A) Any action described in subsection (b) of this
section.
[(B) Any action or failure to act that is designated
as a prohibited personnel action under section 1599c(a)
of title 10.]
(a)(1) For the purpose of this title, ``prohibited personnel
practice'' means any action described in subsection (b).
* * * * * * *
(b) Any employee who has authority to take, direct others to
take, recommend, or approve any personnel action, shall not,
with respect to such authority--
(1) * * *
* * * * * * *
(10) discriminate for or against any employee or
applicant for employment on the basis of conduct which
does not adversely affect the performance of the
employee or applicant or the performance of others;
except that nothing in this paragraph shall prohibit an
agency from taking into account in determining
suitability or fitness any conviction of the employee
or applicant for any crime under the laws of any State,
of the District of Columbia, or of the United States;
[or]
(11)(A) knowingly take, recommend, or approve any
personnel action if the taking of such action would
violate a veterans' preference requirement; or
(B) knowingly fail to take, recommend, or approve any
personnel action if the failure to take such action
would violate a veterans' preference requirement; or
[(11)] (12) take or fail to take any other personnel
action if the taking of or failure to take such action
violates any law, rule, or regulation implementing, or
directly concerning, the merit system principles
contained in section 2301 of this title.
This subsection shall not be construed to authorize the
withholding of information from the Congress or the taking of
any personnel action against an employee who discloses
information to the Congress.
* * * * * * *
(e)(1) For the purpose of this section, the term ``veterans
preference requirement'' means any of the following provisions
of law:
(A) Sections 2108, 3305(b), 3309, 3310, 3311, 3312,
3313, 3314, 3315, 3316, 3317(b), 3318, 3320, 3351,
3352, 3363, 3501, 3502(b), 3504, and 4303(e) and (with
respect to a preference eligible referred to in section
7511(a)(1)(B)) subchapter II of chapter 75 and section
7701.
(B) Sections 943(c)(2) and 1784(c) of title 10.
(C) Section 1308(b) of the Alaska National Interest
Lands Conservation Act.
(D) Section 301(c) of the Foreign Service Act of
1980.
(E) Sections 106(f), 7281(e), and 7802(5) of title
38.
(F) Section 1005(a) of title 39.
(G) Any other provision of law that the Director of
the Office of Personnel Management designates in
regulations as being a veterans' preference requirement
for the purposes of this subsection.
(H) Any regulation prescribed under subsection (b) or
(c) of section 1302 and any other regulation that
implements a provision of law referred to in any of the
preceding subparagraphs.
(2) Notwithstanding any other provision of this title, no
authority to order corrective action shall be available in
connection with a prohibited personnel practice described in
subsection (b)(11). Nothing in this paragraph shall be
considered to affect any authority under section 1215 (relating
to disciplinary action).
* * * * * * *
Subpart B--Employment and Retention
* * * * * * *
CHAPTER 33--EXAMINATION, SELECTION, AND PLACEMENT
SUBCHAPTER I--EXAMINATION, CERTIFICATION, AND APPOINTMENT
3301. Civil service; generally.
3302. Competitive service; rules.
* * * * * * *
3330a. Administrative redress.
3330b. Judicial redress.
3330c. Remedy.
* * * * * * *
SUBCHAPTER I--EXAMINATION, CERTIFICATION, AND APPOINTMENT
* * * * * * *
Sec. 3304. Competitive service; examinations
(a) * * *
* * * * * * *
(f)(1) No preference eligible, and no individual (other than
a preference eligible) who has been separated from the armed
forces under honorable conditions after 3 or more years of
active service, shall be denied the opportunity to compete for
an announced vacant position within an agency, in the
competitive service or the excepted service, by reason of--
(A) not having acquired competitive status; or
(B) not being an employee of such agency.
(2) Nothing in this subsection shall prevent an agency from
filling a vacant position (whether by appointment or otherwise)
solely from individuals on a priority placement list consisting
of individuals who have been separated from the agency due to a
reduction in force and surplus employees (as defined under
regulations prescribed by the Office).
* * * * * * *
Sec. 3327. Civil service employment information
(a) * * *
(b) Subject to such regulations as the Office may issue, each
agency shall promptly notify the Office and the employment
offices of the United States Employment Service of--
(1) each vacant position in the agency which is in
the competitive service or the Senior Executive Service
and for which the agency seeks applications from
persons outside the Federal service, [and]
(2) each vacant position in the agency for which
competition is restricted to individuals having
competitive status or employees of such agency,
excluding any position under paragraph (1), and
[(2)] (3) the period during which applications will
be ac- cepted.
As used in this subsection, ``agency'' means an agency as
defined in section 5102(a)(1) of this title other than an
agency all the positions in which are excepted by statute from
the competitive service.
(c) Any notification provided under this section shall, for
all positions under subsection (b)(1) as to which section
3304(f) applies and for all positions under subsection (b)(2),
include a notation as to the applicability of section 3304(f)
with respect thereto.
(d) In consultation with the Secretary of Labor, the Office
shall submit to Congress and the President, no less frequently
than every 2 years, a report detailing, with respect to the
period covered by such report--
(1) the number of positions listed under this section
during such period;
(2) the number of preference eligibles and other
individuals described in section 3304(f)(1) referred to
such positions during such period; and
(3) the number of preference eligibles and other
individuals described in section 3304(f)(1) appointed
to such positions during such period.
* * * * * * *
Sec. 3330. Government-wide list of vacant positions
(a) * * *
[(b) The Office of Personnel Management shall establish and
keep current a comprehensive list of all announcements of
vacant positions in the competitive service within each agency
that are to be filled by appointment for more than one year and
for which applications are being (or will soon be) accepted
from outside the agency's work force.]
(b) The Office of Personnel Management shall cause to be
established and kept current--
(1) a comprehensive list of all announcements of
vacant positions (in the competitive service and the
excepted service, respectively) within each agency that
are to be filled by appointment for more than 1 year
and for which applications are being or will soon be
accepted from outside the agency's work force; and
(2) a comprehensive list of all announcements of
vacant positions within each agency for which
applications are being or will soon be accepted and for
which competition is restricted to individuals having
competitive status or employees of such agency,
excluding any position required to be listed under
paragraph (1).
(c) Included for any position listed shall be--
(1) * * *
(2) application procedures, including the period
within which applications may be submitted and
procedures for obtaining additional information; [and]
(3) for all positions under subsection (b)(1) as to
which section 3304(f) applies and for all positions
under subsection (b)(2), a notation as to the
applicability of section 3304(f) with respect thereto;
and
[(3)] (4) any other information which the Office
considers appropriate.
(d) [The list] Each list under subsection (b) shall be
available to members of the public.
* * * * * * *
Sec. 3330a. Administrative redress
(a)(1) Any preference eligible or other individual described
in section 3304(f)(1) who alleges that an agency has violated
such individual's rights under any statute or regulation
relating to veterans' preference, or any right afforded such
individual by section 3304(f), may file a complaint with the
Secretary of Labor.
(2) A complaint under this subsection must be filed within 60
days after the date of the alleged violation, and the Secretary
shall process such complaint in accordance with sections 4322
(a) through (e)(1) and 4326 of title 38.
(b)(1) If the Secretary of Labor is unable to resolve the
complaint within 60 days after the date on which it is filed,
the complainant may elect to appeal the alleged violation to
the Merit Systems Protection Board in accordance with such
procedures as the Merit Systems Protection Board shall
prescribe, except that in no event may any such appeal be
brought--
(A) before the 61st day after the date on which the
complaint is filed under subsection (a); or
(B) later than 15 days after the date on which the
complainant receives notification from the Secretary of
Labor under section 4322(e)(1) of title 38.
(2) An appeal under this subsection may not be brought
unless--
(A) the complainant first provides written
notification to the Secretary of Labor of such
complainant's intention to bring such appeal; and
(B) appropriate evidence of compliance with
subparagraph (A) is included (in such form and manner
as the Merit SystemsProtection Board may prescribe)
with the notice of appeal under this subsection.
(3) Upon receiving notification under paragraph (2)(A), the
Secretary of Labor shall not continue to investigate or further
attempt to resolve the complaint to which such notification
relates.
(c) This section shall not be construed to prohibit a
preference eligible from appealing directly to the Merit
Systems Protection Board from any action which is appealable to
the Board under any other law, rule, or regulation, in lieu of
administrative redress under this section.
Sec. 3330b. Judicial redress
(a) In lieu of continuing the administrative redress
procedure provided under section 3330a(b), a preference
eligible or other individual described in section 3304(f)(1)
may elect, in accordance with this section, to terminate those
administrative proceedings and file an action with the
appropriate United States district court not later than 60 days
after the date of the election.
(b) An election under this section may not be made--
(1) before the 121st day after the date on which the
appeal is filed with the Merit Systems Protection Board
under section 3330a(b); or
(2) after the Merit Systems Protection Board has
issued a judicially reviewable decision on the merits
of the appeal.
(c) An election under this section shall be made, in writing,
in such form and manner as the Merit Systems Protection Board
shall by regulation prescribe. The election shall be effective
as of the date on which it is received, and the administrative
proceeding to which it relates shall terminate immediately upon
the receipt of such election.
Sec. 3330c. Remedy
(a) If the Merit Systems Protection Board (in a proceeding
under section 3330a) or a court (in a proceeding under section
3330b) determines that an agency has violated a right described
in section 3330a, the Board or court (as the case may be) shall
order the agency to comply with such provisions and award
compensation for any loss of wages or benefits suffered by the
individual by reason of the violation involved. If the Board or
court determines that such violation was willful, it shall
award an amount equal to backpay as liquidated damages.
(b) A preference eligible or other individual described in
section 3304(f)(1) who prevails in an action under section
3330a or 3330b shall be awarded reasonable attorney fees,
expert witness fees, and other litigation expenses.
* * * * * * *
CHAPTER 35--RETENTION PREFERENCE, RESTORATION, AND REEMPLOYMENT
* * * * * * *
SUBCHAPTER I--RETENTION PREFERENCE
* * * * * * *
Sec. 3502. Order of retention
(a) * * *
* * * * * * *
(g)(1) A position occupied by a preference eligible shall not
be placed in a single-position competitive level if the
preference eligible is qualified to perform the essential
functions of any other position at the same grade (or
occupational level) in the competitive area. In such cases, the
preference eligible shall be entitled to be placed in another
competitive level for which such preference eligible is
qualified. If the preference eligible is qualified for more
than one competitive level, such preference eligible shall be
placed in the competitive level containing the most positions.
(2) For purposes of paragraph (1)--
(A) a preference eligible shall be considered
qualified to perform the essential functions of a
position if, by reason of experience, training, or
education (and, in the case of a disabled veteran, with
reasonable accommodation), a reasonable person could
conclude that the preference eligible would be able to
perform those functions successfully within a period of
150 days; and
(B) a preference eligible shall not be considered
unqualified solely because such preference eligible
does not meet the minimum qualification requirements
relating to previous experience in a specified grade
(or occupational level), if any, that are established
for such position by the Office of Personnel Management
or the agency.
(h) In connection with any reduction in force, a preference
eligible whose current or most recent performance rating is at
least fully successful (or the equivalent) shall have, in
addition to such assignment rights as are prescribed by
regulation, the right, in lieu of separation, to be assigned to
any position within the agency conducting the reduction in
force--
(1) for which such preference eligible is qualified
under subsection (g)(2)--
(A) that is within the preference eligible's
commuting area and at the same grade (or
occupational level) as the position from which
the preference eligible was released, and that
is then occupied by an individual, other than
another preference eligible, who was placed in
such position (whether by appointment or
otherwise) within 6 months before the reduction
in force if, within 12 months prior to the date
on which such individual was so placed in such
position, such individual had been employed in
the same competitive area as the preference
eligible; or
(B) that is within the preference eligible's
competitive area and that is then occupied by
an individual, other than another preference
eligible, who was placed in such position
(whether by appointment or otherwise) within 6
months before the reduction in force; or
(2) for which such preference eligible is qualified
that is within the preference eligible's competitive
area and that is not more than 3 grades (or pay levels)
below that of the position from which the preference
eligible was released, except that, inthe case of a
preference eligible with a compensable service-connected disability of
30 percent or more, this paragraph shall be applied by substituting ``5
grades'' for ``3 grades''.
In the event that a preference eligible is entitled to
assignment to more than 1 position under this subsection, the
agency shall assign the preference eligible to any such
position requiring no reduction (or, if there is no such
position, the least reduction) in basic pay. A position shall
not, with respect to a preference eligible, be considered to
satisfy the requirements of paragraph (1) or (2), as
applicable, if it does not last for at least 12 months
following the date on which such preference eligible is
assigned to such position under this subsection.
(i) A preference eligible may challenge the classification of
any position to which the preference eligible asserts
assignment rights (as provided by, or prescribed by regulations
described in, subsection (h)) in an action before the Merit
Systems Protection Board.
(j)(1) Not later than 90 days after the date of the enactment
of the Veterans Employment Opportunities Act of 1997, each
Executive agency shall establish an agencywide priority
placement program to facilitate employment placement for
employees who--
(A)(i) are scheduled to be separated from service due
to a reduction in force under--
(I) regulations prescribed under this
section; or
(II) procedures established under section
3595; or
(ii) are separated from service due to such a
reduction in force; and
(B)(i) have received a rating of at least fully
successful (or the equivalent) as the last performance
rating of record used for retention purposes; or
(ii) occupy positions excluded from a performance
appraisal system by law, regulation, or administrative
action taken by the Office of Personnel Management.
(2)(A) Each agencywide priority placement program under this
subsection shall include provisions under which a vacant
position shall not (except as provided in this paragraph or any
other statute providing the right of reemployment to any
individual) be filled by the appointment or transfer of any
individual from outside of that agency (other than an
individual described in subparagraph (B)) if--
(i) there is then available any individual described
in subparagraph (B) who is qualified for the position;
and
(ii) the position--
(I) is at the same grade or pay level (or the
equivalent) or not more than 3 grades (or grade
intervals) below that of the position last held
by such individual before placement in the new
position;
(II) is within the same commuting area as the
individual's last-held position (as referred to
in subclause (I)) or residence; and
(III) has the same type of work schedule
(whether full-time, part-time, or intermittent)
as the position last held by the individual.
(B) For purposes of an agencywide priority placement program,
an individual shall be considered to be described in this
subparagraph if such individual--
(i)(I) is an employee of such agency who is scheduled
to be separated, as described in paragraph (1)(A)(i);
or
(II) is an individual who became a former employee of
such agency as a result of a separation, as described
in paragraph (1)(A)(ii), excluding any individual who
separated voluntarily under subsection (f); and
(ii) satisfies clause (i) or (ii) of paragraph
(1)(B).
(3)(A) If after a reduction in force the agency has no
positions of any type within the local commuting areas
specified in this subsection, the individual may designate a
different local commuting area where the agency has continuing
positions in order to exercise reemployment rights under this
subsection. An agency may determine that such designations are
not in the interest of the Government for the purpose of paying
relocation expenses under subchapter II of chapter 57.
(B) At its option, an agency may administratively extend
reemployment rights under this subsection to include other
local commuting areas.
(4)(A) In selecting employees for positions under this
subsection, the agency shall place qualified present and former
employees in retention order by veterans' preference subgroup
and tenure group.
(B) An agency may not pass over a qualified present or former
employee to select an individual in a lower veterans'
preference subgroup within the tenure group, or in a lower
tenure group.
(C) Within a subgroup, the agency may select a qualified
present or former employee without regard to the individual's
total creditable service.
(5) An individual is eligible for reemployment priority under
this subsection for 2 years from the effective date of the
reduction in force from which the individual will be, or has
been, separated under this section or section 3595, as the case
may be.
(6) An individual loses eligibility for reemployment priority
under this subsection when the individual--
(A) requests removal in writing;
(B) accepts or declines a bona fide offer under this
subsection or fails to accept such an offer within the
period of time allowed for such acceptance, or
(C) separates from the agency before being separated
under this section or section 3595, as the case may be.
A present or former employee who declines a position with a
representative rate (or equivalent) that is less than the rate
of the position from which the individual was separated under
this section retains eligibility for positions with a higher
representative rate up to the rate of the individual's last
position.
(7) Whenever more than one individual is qualified for a
position under this subsection, the agency shall select the
most highly qualified individual, subject to paragraph (4).
(8) The Office of Personnel Management shall issue
regulations to implement this subsection.
----------
SECTION 1005 OF TITLE 39, UNITED STATES CODE
Sec. 1005. Applicability of laws relating to Federal employees
(a)(1) * * *
(2) The provisions of title 5 relating to a preference
eligible (as that term is defined under section 2108(3) of such
title) shall apply to an applicant for appointment and any
officer or employee of the Postal Service in the same manner
and under the same conditions as if the applicant, officer, or
employee were subject to the competitive service under such
[title.] title, subject to paragraph (5) of this subsection.
The provisions of this paragraph shall not be modified by any
program developed under section 1004 of this title or any
collective-bargaining agreement entered into under chapter 12
of this title.
* * * * * * *
(5)(A) The provisions of section 3304(f) of title 5 shall
apply with respect to the Postal Service in the same manner and
under the same conditions as if the Postal Service were an
agency within the meaning of such provisions.
(B) Nothing in this subsection shall be considered to require
the application of section 3304(f) of title 5 in the case of
any individual who is not an employee of the Postal Service
if--
(i) the vacant position involved is to be filled
pursuant to a collective-bargaining agreement;
(ii) the collective-bargaining agreement restricts
competition for such position to individuals employed
in a bargaining unit or installation within the Postal
Service in which the position is located;
(iii) the collective-bargaining agreement provides
that the successful applicant shall be selected on the
basis of seniority or qualifications; and
(iv) the position to be filled is within a bargaining
unit.
(C) The provisions of this paragraph shall not be modified by
any program developed under section 1004 of this title or any
collective-bargaining agreement entered into under chapter 12
of this title.
* * * * * * *
----------
TITLE 3, UNITED STATES CODE
* * * * * * *
CHAPTER 2--OFFICE AND COMPENSATION OF PRESIDENT
Sec.
101. Commencement of term of office.
* * * * * * *
115. Veterans' preference.
* * * * * * *
Sec. 115. Veterans' preference
(a) Subject to subsection (b), appointments under sections
105, 106, and 107 shall be made in accordance with section
2108, and sections 3309 through 3312, of title 5.
(b) Subsection (a) shall not apply to any appointment to a
position the rate of basic pay for which is at least equal to
the minimum rate established for positions in the Senior
Executive Service under section 5382 of title 5 and the duties
of which are comparable to those described in section
3132(a)(2) of such title or to any other position if, with
respect to such position, the President makes certification--
(1) that such position is--
(A) a confidential or policy-making position;
or
(B) a position for which political
affiliation or political philosophy is
otherwise an important qualification; and
(2) that any individual selected for such position is
expected to vacate the position at or before the end of
the President's term (or terms) of office.
Each individual appointed to a position described in the
preceding sentence as to which the expectation described in
paragraph (2) applies shall be notified as to such expectation,
in writing, at the time of appointment to such position.
* * * * * * *
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SECTION 347 OF THE DEPARTMENT OF TRANSPORTATION AND RELATED AGENCIES
APPROPRIATIONS ACT, 1996
Sec. 347. (a) * * *
(b) The provisions of title 5, United States Code, shall not
apply to the new personnel management system developed and
implemented pursuant to subsection (a), with the exception of--
(1) * * *
* * * * * * *
(6) chapter 81, relating to compensation for work
injury; [and]
(7) chapters 83-85, 87, and 89, relating to
retirement, unemployment compensation, and insurance
coverage[.]; and
(8) sections 3501-3504, as such sections relate to
veterans' preference.
* * * * * * *
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TITLE 10, UNITED STATES CODE
* * * * * * *
Subtitle A--General Military Law
* * * * * * *
PART II--PERSONNEL
* * * * * * *
CHAPTER 81--CIVILIAN EMPLOYEES
Sec.
1581. Foreign National Employees Separation Pay Account.
* * * * * * *
[1599c. Veterans' preference requirements: Department of Defense failure
to comply treated as a prohibited personnel practice.]
* * * * * * *
[Sec. 1599c. Veterans' preference requirements: Department of Defense
failure to comply treated as a prohibited personnel
practice
[(a) Prohibited Personnel Practice.--It is a prohibited
personnel practice for a person referred to in subsection (b)
who has authority described in that subsection--
[(1) knowingly to take, recommend, or approve any
personnel action with respect to such authority if the
taking of such action violates a veterans' preference;
or
[(2) knowingly to fail to take, recommend, or approve
any personnel action with respect to such authority, if
the failure to take such action violates a veterans'
preference.
[(b) Persons Covered.--Subsection (a) applies with respect
to--
[(1) an officer or employee of the Department of
Defense who has authority to take, direct others to
take, recommend, or approve a personnel action with
respect to an employee of the Department of Defense;
and
[(2) a member of the armed forces who has such
authority.
[(c) Veterans' Preference Defined.--(1) In this section, the
term ``veterans' preference'' means any of the following
provisions of law:
[(A) Sections 2108, 3305(b), 3309, 3310, 3311, 3312,
3313, 3314, 3315, 3316, 3317(b), 3318, 3320, 3351,
3352, 3363, 3501, 3502(b), 3504, and 4303(e) of title 5
and (with respect to a preference eligible referred to
in section 7511(a)(1)(B) of such title) subchapter II
of chapter 75 and section 7701 of such title.
[(B) Sections 943(c)(2) and 1784(c) of this title.
[(C) Section 1308(b) of the Alaska National Interest
Lands Conservation Act (16 U.S.C. 3198(b)).
[(D) Section 301(c) of the Foreign Service Act of
1980 (22 U.S.C. 3941(c)).
[(E) Section 3(a)(11) of the Administrative Office of
the United States Courts Personnel Act of 1990 (28
U.S.C. 602 note).
[(F) Sections 106(f), 7281(e), and 7802(5) of title
38.
[(G) Section 1005(a) of title 39.
[(H) Any other provision of law that the Director of
the Office of Personnel Management designates in
regulations as being a veterans' preference for the
purposes of this section.
[(2) For the purposes of this section, such term includes any
regulation prescribed under subsection (b) or (c) of section
1302 of title 5 and any other regulation that implements a
provision of law referred to in paragraph (1).
[(d) Personnel Action Defined.--In this section, the term
``personnel action'' has the meaning given that term in section
2302 of title 5.]
* * * * * * *
X. Committee Recommendation
On March 12, 1997, a quorum being present, the Committee on
Government Reform and Oversight ordered the bill, as amended,
favorably reported.
Committee on Government Reform and Oversight--105th Congress Rollcall
Date: March 12, 1997.
Final Passage of H.R. 240, as amended.
Offered by: Hon. Dan Burton (IN).
Voice Vote: Yea.
XI. Congressional Accountability Act; Public Law 104-1; Section
102(B)(3)
H.R. 240, as amended by the committee, requires the
legislative branch to apply veterans' preference in hiring and
reductions in force.