[Senate Report 105-340]
[From the U.S. Government Publishing Office]
Calendar No. 592
105th Congress Report
SENATE
2d Session 105-340
_______________________________________________________________________
VETERANS EMPLOYMENT OPPORTUNITIES ACT OF 1998
_______
September 21, 1998.--Ordered to be printed
_______________________________________________________________________
Mr. Specter, from the Committee on Veterans' Affairs, submitted the
following
R E P O R T
[To accompany S. 1021]
The Committee on Veterans' Affairs, to which was referred
the bill (S. 1021) 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, reports favorably thereon with an
amendment in the form of a substitute, and recommends that the
bill, as amended, do pass.
Committee Amendments
The amendments are as follows:
Strike out all after the enacting clause as follows:
[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.]
Insert in lieu thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Veterans Employment Opportunities
Act of 1998''.
SEC. 2. IMPROVED REDRESS FOR PREFERENCE ELIGIBLES.
(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. Preference eligibles; administrative redress
``(a)(1) A preference eligible who alleges that an agency has
violated such individual's rights under any statute or regulation
relating to veterans'' preference may file a complaint with the
Secretary of Labor.
``(2)(A) A complaint under this subsection must be filed within 60
days after the date of the alleged violation.
``(B) Such complaint shall be in writing, be in such form as the
Secretary may prescribe, specify the agency against which the complaint
is filed, and contain a summary of the allegations that form the basis
for the complaint.
``(3) The Secretary shall, upon request, provide technical
assistance to a potential complainant with respect to a complaint under
this subsection.
``(b)(1) The Secretary of Labor shall investigate each complaint
under subsection (a).
``(2) In carrying out any investigation under this subsection, the
Secretary's duly authorized representatives shall, at all reasonable
times, have reasonable access to, for purposes of examination, and the
right to copy and receive, any documents of any person or agency that
the Secretary considers relevant to the investigation.
``(3) In carrying out any investigation under this subsection, the
Secretary may require by subpoena the attendance and testimony of
witnesses and the production of documents relating to any matter under
investigation. In case of disobedience of the subpoena or contumacy and
on request of the Secretary, the Attorney General may apply to any
district court of the United States in whose jurisdiction such
disobedience or contumacy occurs for an order enforcing the subpoena.
``(4) Upon application, the district courts of the United States
shall have jurisdiction to issue writs commanding any person or agency
to comply with the subpoena of the Secretary or to comply with any
order of the Secretary made pursuant to a lawful investigation under
this subsection and the district courts shall have jurisdiction to
punish failure to obey a subpoena or other lawful order of the
Secretary as a contempt of court.
``(c)(1)(A) If the Secretary of Labor determines as a result of an
investigation under subsection (b) that the action alleged in a
complaint under subsection (a) occurred, the Secretary shall attempt to
resolve the complaint by making reasonable efforts to ensure thatthe
agency specified in the complaint complies with applicable provisions
of statute or regulation relating to veterans' preference.
``(B) The Secretary of Labor shall make determinations referred to
in subparagraph (A) based on a preponderance of the evidence.
``(2) If the efforts of the Secretary under subsection (b) with
respect to a complaint under subsection (a) do not result in the
resolution of the complaint, the Secretary shall notify the person who
submitted the complaint, in writing, of the results of the Secretary's
investigation under subsection (b).
``(d)(1) If the Secretary of Labor is unable to resolve a complaint
under subsection (a) 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; or
``(B) later than 15 days after the date on which the
complainant receives written notification from the Secretary
under subsection (c)(2).
``(2) An appeal under this subsection may not be brought unless--
``(A) the complainant first provides written notification to
the Secretary 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 shall not continue to investigate or further attempt to
resolve the complaint to which the notification relates.
``(e)(1) 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.
``(2) A preference eligible may not pursue redress for an alleged
violation described in subsection (a) under this section at the same
time the preference eligible pursues redress for such violation under
any other law, rule, or regulation.
``Sec. 3330b. Preference eligibles; judicial redress
``(a) In lieu of continuing the administrative redress procedure
provided under section 3330a(d), a preference eligible 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(d); 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. Preference eligibles; 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 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:
``330a. Preference eligibles; administrative redress.
``330b. Preference eligibles; judicial redress.
``330c. Preference eligibles; remedy.''.
SEC. 3. 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 ``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 (applicablewith 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) and (3), the
Judicial Conference of the United States shall prescribe
procedures 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 for alleged violations of any rights
provided for under subparagraph (A).
(2) Procedures.--Under the procedures, a preference eligible
(as defined by section 2108 of title 5, United States Code)
shall be afforded preferences in a manner and to the extent
consistent with preferences afforded to preference eligibles in
the executive branch.
(3) Exclusions.--Nothing in the procedures shall apply with
respect to an applicant or employee--
(A) whose appointment is made by the President with
the advice and consent of the Senate;
(B) whose appointment is as a judicial officer;
(C) whose appointment is required by statute to be
made by or with the approval of a court or judicial
officer; or
(D) whose appointment is 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) Definitions.--For purposes of this subsection, 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.
(5) Submission to congress; effective date.--
(A) Submission to congress.--Not later than 12 months
after the date of enactment of this Act, the Judicial
Conference of the United States shall submit a copy of
the procedures 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 procedures prescribed under
this subsection shall take effect 13 months after the
date of enactment of this Act.
SEC. 4. 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--
(1) by striking ``and'' at the end of paragraph (6);
(2) by striking the period at the end of paragraph (7) and
inserting ``; and''; and
(3) by adding at the end the following:
``(8) sections 3501-3504, as such sections relate to
veterans' preference.''.
SEC. 5. 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) Section 1599c of title 10, united states code.--
(A) Repeal.--Section 1599c of title 10, United States
Code, is repealed.
(B) Clerical amendment.--The table of sections at the
beginning of chapter 81 of such title is amended by
striking out the item relating to section 1599c.
(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 enactment of this Act.
SEC. 6. EXPANSION AND IMPROVEMENT OF VETERANS' EMPLOYMENT EMPHASIS
UNDER FEDERAL CONTRACTS.
(a) Covered Veterans.--Section 4212 of title 38, United States
Code, is amended--
(1) in subsection (a), by striking out ``special disabled
veterans and veterans of the Vietnam era'' and inserting in
lieu thereof ``special disabled veterans, veterans of the
Vietnam era, and covered veterans of the Persian Gulf War'';
(2) in subsection (b), by striking out ``special disabled
veteran or veteran of the Vietnam era'' and inserting in lieu
thereof ``special disabled veteran, veteran of the Vietnam era,
or covered veteran of the Persian Gulf War'';
(3) in subsection (d)(1), by striking out ``veterans of the
Vietnam era or special disabled veterans'' both places it
appears and inserting in lieu thereof ``special disabled
veterans, veterans of the Vietnam era, or covered veterans of
the Persian Gulf War''; and
(4) by adding at the end the following:
``(e) For purposes of this section, the term `covered veteran of
the Persian Gulf War' means any veteran who served in the active
military, naval, or air service in the Southwest Asia theater of
operations during the period beginning on August 2, 1990, and ending on
January 2, 1992.''.
(b) Prohibition on Contracting With Entities Not Meeting Reporting
Requirements.--(1) Subchapter III of chapter 13 of title 31, United
States Code, is amended by adding at the end the following:
``Sec. 1354. Limitation on use of appropriated funds for contracts with
entities not meeting veterans' employment reporting
requirements
``(a)(1) Subject to paragraph (2), no agency may obligate or expend
funds appropriated for the agency for a fiscal year to enter into a
contract described in section 4212(a) of title 38 with a contractor
from which a report was required under section 4212(d) of that title
with respect to the preceding fiscal year if such contractor did not
submit such report.
``(2) Paragraph (1) shall cease to apply with respect to a
contractor otherwise covered by that paragraph on the date on which the
contractor submits the report required by such section 4212(d) for the
fiscal year concerned.
``(b) The Secretary of Labor shall take appropriate actions to
notify agencies in a timely manner of the contractors covered by
subsection (a).''.
(2) The table of sections at the beginning of chapter 13 of such
title is amended by adding at the end the following:
``1354. Limitation on use of appropriated funds for contracts with
entities not meeting veterans' employment reporting requirements.''.
SEC. 7. REQUIREMENT FOR ADDITIONAL INFORMATION IN ANNUAL REPORTS FROM
FEDERAL CONTRACTORS ON VETERANS EMPLOYMENT.
Section 4212(d)(1) of title 38, United States Code, as amended by
6(a)(3), is further amended--
(1) by striking out ``and'' at the end of subparagraph (A);
(2) by striking out the period at the end of subparagraph (B)
and inserting in lieu thereof ``; and'; and
(3) by adding at the end the following:
``(C) the maximum number and the minimum number of employees
of such contractor during the period covered by the report.''.
Introduction
On July 16, 1997, Senator Chuck Hagel introduced S. 1021
with the cosponsorship of Senator Max Cleland, Committee Member
Y. Tim Hutchinson, Senator Byron L. Dorgan, Senator Conrad
Burns, Senator William V. Roth, Jr., Senator Lauch Faircloth,
Senator Jesse Helms, Senator Daniel Patrick Moynihan, Senator
Mary L. Landrieu, Senator Harry Reid, and Committee Member Ben
Nighthorse Campbell. S. 1021 would have provided that
consideration could not be denied to preference eligibles
applying for certain positions in the competitive service.
On March 24, 1998, the Committee held a hearing on S. 1021.
Testimony was received from Senator Chuck Hagel, Senator Max
Cleland, and Representative John Mica, who introduced a
counterpart to S. 1021, H.R. 240, in the U.S. House of
Representatives. Testimony was also received from four
veterans' service organizations: The American Legion, the
Veterans of Foreign Wars, AMVETS, and the Non-Commissioned
Officers Association of the United States; two executive branch
agencies: the Department of Labor and the Office of Personnel
Management; the General Accounting Office; the United States
Postal Service; and two labor unions: the National Treasury
Employees Union and the American Federation of Government
Employees. Written testimony for the record was also received
from an additional 11 organizations.
Committee Meeting
After carefully reviewing the testimony and record from the
March 24, 1998, hearing, the Committee met in open session on
July 28, 1998, and voted unanimously to report S. 1021, as
amended with an amendment in the nature of a substitute.
Summary of S. 1021 as Reported
S. 1021 as reported (hereinafter referred to as the
``Committee bill'') contains freestanding provisions and
amendments to titles 3, 5 and 38, United States Code, that
would:
1. Establish new administrative and judicial redress
procedures and remedies for preference-eligible veterans who
assert that their veterans' preference rights have been
violated in a hiring decision or during a reduction-in-force
(section 2).
2. Remove an exemption previously in force with respect to
the General Accounting Office (GAO) and thereby allow
preference-eligible veterans to assert that status with respect
to GAO personnel actions (section 3(a)).
3. Require that veterans' preference laws be applied with
respect to personnel actions involving positions in the
Executive Office of the President, except those which the
President certifies are confidential or policy-making
positions, political positions, or positions that will be
vacated at or before the end of the President's term or terms
(section 3(b)).
4. Require that veterans' preference principles be applied
with respect to personnel actions involving positions in the
legislative branch, except those made by the President, those
made by a Member of Congress, those made to a committee or
subcommittee staff, and those made to positions with duties
which are equivalent to those of a Senior Executive Service
position (section 3(c)).
5. Require that veterans' preference principles be applied
with respect to personnel actions involving positions in the
judicial branch, except those made by the President, those
which are judicial officer positions (i.e., a justice, a judge,
or a magistrate judge), those whose appointment is required to
be made by or with the approval of a court or judicial officer,
and those with duties which are equivalent to those of a Senior
Executive Service position (section 3(d)).
6. Require the Federal Aviation Administration (FAA) to
recognize veterans' preference status during reductions-in-
force (section 4).
7. Designate a knowing violation of veterans' preference
requirements a prohibited personnel practice (section 5).
8. Expand veterans' employment opportunities with Federal
contractors by including Persian Gulf War theater veterans in
the definition of veterans to whom Federal contractors will
conduct outreach activities; by prohibiting Federal agencies
from contracting with entities which have not complied with
Department of Labor reporting requirements with respect to the
hiring of Vietnam-era, disabled, and Persian Gulf War veterans;
and by expanding Department of Labor reporting requirements
with respect to the hiring of veterans (sections 6 and 7).
Discussion
The Committee bill, which is derived from S. 1021, would
make various changes in law, as outlined below.
Background
The Veterans' Preference Act, which dates to 1944,
facilitates the readjustment of wartime and disabled veterans
to civilian life by providing preferences to those who seek
employment by the Nation's largest single employer: the
executive branch of the Federal Government. Pursuant to the
act, veterans who are disabled or who served in military
campaigns during specified time periods are ``preference
eligible'' veterans. Such veterans are entitled to preference
over non-veterans (and over non-preference-eligible veterans)
in decisions involving who will be hired by the Federal
Government, and who will be retained in Federal reductions-in-
force (RIF's). 5 U.S.C. Sec. Sec. 2108, Sec. 3502. Veterans'
preferences are given substance by the awarding of ``points''
to be taken into account in scoring calculations which
determine outcomes in Federal hiring or retention decision
making.
Testimony at the Committee's hearing on March 24, 1998,
revealed that veterans' preference laws appear to have been
effective in fostering the hiring, and retention, of
preference-eligible veterans in Federal employment. The General
Accounting Office testified that, from 1990 to 1997, the
percentage of veterans deemed ``preference eligible'' in the
Federal workforce was about twice as large as the percentage of
such persons in the civilian workforce. GAO's testimony
revealed, further, that Federal employees who are not
``preference eligible'' were four times more likely to lose
their jobs during a reduction-in-force than were those who had
veterans' preference status.
The Committee's hearing also revealed, however, that while
veterans as a group appear to be faring well in Federal
employment, individual cases reveal that there is a pressing
need for a uniform redress mechanism for the enforcement of
veterans' preference laws in both hiring and reductions-in-
force decisions. In addition, it revealed that there are areas
of Federal employment--employment at GAO, in the Executive
Office of the President, and in the legislative and judicial
branches--to which veterans' preference principles could
reasonably be extended. Finally, the Committee's hearing
revealed that Federal programs designed to encourage the hiring
of veterans by Federal contractors, and contractor reporting
requirements, are more limited in scope than they should be.
The Committee bill, the provisions of which are outlined below,
is intended to address these shortcomings of current law.
Committee bill
Section 1. Short Title. Section 1 of the Committee bill
would title the bill the ``Veterans Employment Opportunities
Act of 1998''.
Section 2. Improved Redress for Preference Eligibles.
Current provisions for the redress of violations of veterans'
preference laws are confusing, from the veteran's standpoint,
since different mechanisms are provided to address perceived
hiring and RIF violations. Veterans who believe that their
rights have been violated in hiring are directed to the
Department of Labor (DOL), which investigates the claim and
then sends the results of its investigation to the Office of
Personnel Management (OPM) for resolution. Veterans who believe
their preference rights have been violated in a reduction-in-
force are directed to the Merit Systems Protection Board (MSPB)
which itself renders adecision and remedial order which is, in
turn, appealable at the appropriate United States District Court. See 5
U.S.C. Sec. 7701.
Current veterans' preference procedures are not merely
confusing; they are unequal in the sense of procedural
opportunities presented. MSPB will resolve a RIF complaint
after it has afforded the complainant an opportunity to a
hearing. DOL provides no such opportunity to veterans who
allege veterans' preference violations in a hiring context.
Section 2 of the Committee bill would amend title 5 to
create a uniform redress mechanism, modeled after the
procedures established in the Uniformed Services Employment and
Reemployment Rights Act of 1994 for redress of alleged
violations of veterans' reemployment rights. Preference-
eligible veterans contending that their rights have been
violated in either a hiring or RIF setting would be directed to
file a complaint with DOL. DOL would conduct a formal
investigation and would have authority to subpoena witnesses or
documents. If DOL had not resolved the complaint within 60
days, the complainant could then appeal to the MSPB. If MSPB
had not issued a decision within 120 days, the aggrieved
veteran could then appeal to the appropriate United States
District Court.
Insofar as remedies are concerned, the Committee bill
provides that if MSPB, or a District Court, determines that an
agency has violated veterans' preference laws, MSPB or the
court would be empowered to order compliance, to award
compensation to the veteran for any loss of wages or benefits
suffered, and to award reasonable attorney's fees and other
litigation expenses. In cases where the MSPB or court found a
willful violation, they would be authorized to award an amount
equal to back pay as liquidated damages.
Section 3. Extension of Veterans' Preference. GAO is
currently exempted from veterans' preference laws. In addition,
employment opportunities in the Executive Office of the
President are not subject to veterans' preference laws.
Similarly, Federal employment in the legislative and judicial
branches is not covered by veterans' preference laws.
The entire government should participate, as possible, in
assisting preference-eligible veterans in making the transition
to civilian life. It is vital that the Federal Government open
to veterans as many employment opportunities as possible,
particularly in an era of Federal downsizing.
Section 3 of the Committee bill would require that
veterans' preference laws be applied to positions in the
General Accounting Office, and to non-confidential, non-policy,
and non-political positions in the Executive Office of the
President. It would also require that principles of veterans'
preference laws be applied to positions in the legislative
branch with respect to non-policy positions, and in the
judicial branch with respect to non-judicial officer positions
and positions appointed by such officers. The Committee notes
that the requirement that veterans' preference principles be
extended to the legislative and judicial branches does not
mandate the creation of civil service-type evaluation or
scoring systems by these hiring entities. It does require,
however, that they create systems that are consistent with the
underlying principles of veterans' preference laws.
Section 4. Veterans' Preference Required for Reductions In
Force in the Federal Aviation Administration. The Department of
Transportation and Related Agencies Appropriations Act of 1996,
Public Law 104-50, authorized the Federal Aviation
Administration (FAA) to establish an alterative Federal system
to govern its personnel operations, separate from the personnel
system which governs other executive agencies. Even so, Public
Law 104-50 requires that FAA adhere to veterans' preference
laws in hiring. It does not require, however, that FAA do so
during reductions-in-force.
Section 4 of the Committee bill would also require that FAA
adhere to veterans' preference laws during RIF's. It is
inconsistent to afford the full range of veterans' preference
rights to persons who seek to be hired by FAA and not to those
who have been hired and who later face potential reduction-in-
force actions.
Section 5. Prohibited Personnel Practices. Currently, the
actions of Federal employees, as they apply to personnel
decisions, may not deny fair treatment on the basis of race,
color, religion, sex, marital status, age, handicap or
political affiliation. Acts which deny fairness on these
grounds are ``prohibited personnel practices.'' 5 U.S.C.
Sec. 2302. Persons found by the MSPB to have knowingly
committed such practices may be removed or suspended from
Federal employment, or fined. 5 U.S.C. Sec. 1215.
Section 5 of the Committee bill would amend 5 U.S.C.
Sec. 2302 to add violations of veterans' preference laws to the
listing of prohibited personnel practices. Thus, persons who
knowingly fail to comply with veterans' preference requirements
could be disciplined in accordance with standards applicable to
prohibited personnel practices.
Sections 6 and 7. Expansion and Improvement of Veterans'
Employment Emphasis Under Federal Contracting, and Requirement
for Additional Information in Annual Reports from Federal
Contractors on Veterans Employment. The Vietnam Era Veterans'
Readjustment Assistance Act of 1974, as amended, 38 U.S.C.
Sec. 4212, requires employers with Federal contracts or
subcontracts valued at $10,000 or more take steps to employ and
advance Vietnam-era and disabled veterans. Covered contractors
are required to list job openings with appropriate State and
local employment service offices which, in turn,provide
Vietnam-era veterans and disabled veterans priority referrals to such
employment opportunities. In addition, Federal contractors are required
to submit an annual report, the ``VETS 100 form,'' to the Department of
Labor providing data with respect to compliance with these
requirements.
Section 6 of the Committee bill would amend the Vietnam-era
Veterans' Readjustment Assistance Act to require that Federal
contractors take steps to assist not just Vietnam Era and
disabled veterans, but also veterans who served in active
military, naval, or air service in the Southwest Asia theater
of operations during the period beginning August 2, 1990, and
ending on January 2, 1992. These veterans are no less deserving
of assistance than Vietnam-era veterans.
Section 6 of the Committee bill would further amend 38
U.S.C. Sec. 4212 to improve the tools by which the Department
of Labor secures the compliance of Federal contractors with
their reporting obligations under the statute. Federal agencies
would be barred from obligating or expending funds to enter
into contracts with entities which had not complied with their
reporting obligations. Thus, potential contractors would be
provided with added incentive to comply with the law in a
timely manner. Finally, section 7 would require the filing of
information concerning the contractor's total employee base so
that the Department of Labor could view currently supplied data
on the number of veterans employed and hired in proper
perspective.
Cost Estimate
In compliance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate, the Committee, based on
information supplied by the Congressional Budget Office (CBO),
estimates that the costs resulting from the enactment of the
Committee bill would not likely be significant. The bill would
not affect the budgets of State, local, or tribal governments.
The cost estimate provided by CBO, setting forth a detailed
breakdown of costs, follows:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 31, 1998.
Hon. Arlen Specter,
Chairman, Committee on Veterans' Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1021, the Veterans'
Employment Opportunities Act of 1998.
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.
S. 1021--Veterans' Employment Opportunities Act of 1998
Summary: S. 1021 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. Enacting
this bill would probably increase personnel and management
costs of the federal government, but CBO 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 besignificant.
Spending by the Postal Service is classified as off-budget and is not
subject to pay-as-you-go procedures.
S. 1021 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would not affect the budgets of state, local, or tribal
governments.
Estimated cost to the Federal Government: Several
provisions of S. 1021 would increase the costs to the federal
government 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 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 S. 1021 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, S. 1021 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, S.
1021 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.
In addition, the bill would extend veterans' preference to
certain, nonpolitical positions in the White House, the General
Accounting Office, the judicial branch, and the legislative
branch. In the case of the courts, it would exclude those
appointments that are required by statute to be made by or with
the approval of a court or judicial officer. For those
agencies--such as CBO and the Capitol Police--that support the
Congress, such an application would be difficult to implement.
(The provision would not apply to the Library of Congress.)
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
caused the agencies to institute 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 to provide veterans employed in the legislative and
judicial branch with redress procedures similar to those
available to executive branch employees. Thus, those agencies
could also face new, potentially costly litigation related to
grievances filed under this provision.
Finally, the bill would add veterans of the Persian Gulf
War to the list of veterans for whom contractors must agree to
take certain affirmative actions in order to receive federal
contracts of $10,000 or more. It would also require contractors
to include additional information in reports they currently
file annually with federal agencies. While these requirements
could increase the costs of federal contracts, CBO estimates
that any increase in costs would be largely one-time and
probably not significant.
Pay-as-you-go considerations: The Balanced Budget Emergency
Deficit Control Act sets up pay-as-you-go procedures for
legislation affecting direct spending or receipts. Because S.
1021 could increase direct spending by agencies not funded
through annual appropriations, pay-as-you-go procedures would
apply. 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 is classified as
off-budget and is not subject to pay-as-you-go procedures.
Intergovernmental and private-sector impact: S. 1021
contains no intergovernmental or private-sector mandates as
defined in UMRA and would not affect the budgets of state,
local, or tribal governments.
Estimate prepared by: John R. Righter.
Estimate approved by: Robert A. Sunshine, Deputy Assistant
Director for Budget Analysis.
Regulatory Impact Statement
In compliance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee on Veterans'
Affairs has made an evaluation of the regulatory impact which
would be incurred in carrying out the Committee bill. The
Committee finds that the Committee bill would not entail any
significant regulation of individuals or businesses or result
in any significant impact on the personal privacy of any
individuals, and that the paperwork resulting from enactment
would be minimal.
Tabulation of Votes Cast in Committee
In compliance with paragraph 7 of rule XXVI of the Standing
Rules of the Senate, the following is a tabulation of votes
cast in person or by proxy by members of the Committee on
Veterans' Affairs at its July 28, 1998, meeting. On that date,
the Committee, by unanimous voice vote, ordered S. 1021, as
amended, reported favorably to the Senate.
Agency Report
On March 24, 1998, the Committee held a hearing on S. 1021.
Testimony was received from two executive branch agencies, the
Department of Labor and the Office of Personnel Management.
Those statements are reprinted below:
Statement of Espiridion (Al) Borrego, Assistant Secretary For Veterans'
Employment And Training Service, Department of Labor, March 24, 1998
Mr. Chairman and Distinguished Members of the Senate
Veterans' Affairs Committee. It is an honor for me to be here
to present the views of the Veterans' Employment and Training
Service (VETS) regarding veterans' preference, priority of
referral in the Federal contractor program and the proposed
Veterans' Employment Opportunities Act of 1997, S. 1021.
Today, Veterans' preference serves as a recruitment tool
that provides Federal agencies with a resource to find well-
trained employee candidates. Veterans having veterans'
preference rights, do not, however, have any guarantee to
employment. Veterans' preference means that a fully qualified
veteran may be given preference in obtaining a position over
other eligible and qualified non-veteran candidates. Section 5
U.S.C. 2108 defines Preference Eligible veterans. Disabled
veterans and other special veterans are given consideration
over veterans who are not preference eligible.
Section 4214 of title 38 requires action of agencies to
``promote the maximum of employment and job advancement
opportunities within the Federal government for disabled
veterans and certain veterans of the Vietnam era,'' to provide
placement consideration under special noncompetitive hiring
authorities for 30 percent or more disabled veterans, ensure
that all veterans are considered for employment and advancement
under Merit System rules, and establish an affirmative action
plan for the hiring, placement and advancement of disabled
veterans.
By law, Section 5 U.S.C. 2108, United States veterans are
entitled to employment preference for Federal Civil Service
jobs, under certain eligibility conditions and criteria based
on time of service, duration of service, and service-connected
disability status. Veterans' preference entitles a veteran to
the addition of 5 or 10 points to examination scores if
specific eligibility requirements are met.
An excellent source of information on veterans' preference
is available on-line. The Veterans' Preference Adviser can be
accessed by clicking on ``elaws'' on the Department of Labor's
home page at www.dol.gov. By answering certain questions, a
user can learn whether he or she may be eligible for veterans'
preferences and the rights proceeding therefrom.
Within the current system, not all vacancies are subject to
the posting requirements of 5 U.S.C. 3327 (b). This provision
requires an agency to post with the State Employment Service
vacancies for which it ``seeks applications from persons
outside the Federal service.'' Job vacancies open to the public
are entered daily into OPM's Federal Job Opportunities List
(FJOL) data base and are made available to each State
Employment office through the America's Job Bank (AJB). The AJB
no longer receives, or provides to the states, the OPM Federal
Job Opportunity list. This information is now provided on the
Internet. The OPM site is www.usajobs.opm.gov. (Merit promotion
vacancies open to status candidates are not included in this
listing; they are listed separately with OPM and publicized
through printed reports in OPM's Job Information Centers, on
OPM's electronic bulletin board, and on automated telephone
lines.)
Many of the elements of the proposed bill will reenforce
existing law, and enhance the ability of veterans to compete
within the labor market. This change in Preference does not
constitute a guarantee of employment. As under current law, a
fully qualified veteran may be given preference in obtaining a
position over other equally qualified non-veteran candidates.
Under present law today, the Office of Personnel Management
(OPM) is the enforcement authority and VETS is the monitoring
authority. In administering the veteran redress process, VETS
provides direct assistance to veterans when they have
encountered difficulties in gaining preference during the
Federal hiring employment process, or have had their preference
entitlement violated by a Federal employer. Upon receipt of a
veterans' preference complaint, VETS will look into the
complaint to determine its validity and contact the agency
involved to attempt to achieve informal resolution. If the
situation is not resolved informally, VETS refers the case to
the Office of Personnel Management for formal investigation.
OPM is directly responsible for the policy issues governing
veterans' preference in the Federal government. OPM and VETS
have an established partnership to deal directly with these
issues. These procedures are spelled out in a March 1996
Memorandum of Understanding between VETS and OPM.
The administrative redress provisions of S. 1021 would have
an impact on the VETS. The investigative role now handled by
OPM would be turned over to VETS.
The administrative redress provisions in section 3330a of
S. 1021 would provide that a preference-eligible may file a
complaint with the Secretary of Labor if the individual
believes that an agency has violated that person's rights under
any statute or regulation relating to veterans' preference. The
legislation's redress procedures increase the investigator's
powers. The Secretary would provide technical assistance to a
potential complainant and, upon receipt of a formal complaint,
conduct a formal investigation that parallels in scope the
investigations currently conducted under the Uniformed Services
Employment and Reemployment Rights Act (USERRA, chapter 43 of
Title 38). In conducting the investigation, the Secretary would
have authority to require by subpoena the production of
witnesses or documents.
VETS has accumulated experience in investigating employment
claims through its administration of USERRA. I believe that
current VETS staff can handle about 200 to 300 additional cases
which may fall under VETS' jurisdiction if S. 1021 is passed.
With the availability of our new information tracking system,
VETS could report to you on the status of these cases.
Under S. 1021, a claimant would have the right to appeal to
the Merit Systems Protection Board (MSPB) if the Secretary of
Labor has not resolved a claim within 60 days after it is
filed. Likewise, if the Secretary notifies a claimant that the
case cannot be resolved, the individual would have the right to
file an appeal with the MSPB. If the MSPB issues a reviewable
decision, or if the case is not resolved within 120 days after
appeal to the MSPB, the claimant would have the right to file
an action with the United States district court having
jurisdiction.
The legislation would provide that redress for the
Legislative branch of government be provided under the
Congressional Accountability Act (Title 2). With respect to the
Judicial branch, the Judicial Conference of the United States
would be required to prescribe regulations providing for
veterans' preference and comparable redress procedures.
S. 1021 would provide that either the MSPB or the district
court, upon finding for the claimant, shall order the agency
involved to comply with the provision(s) violated and award
compensation for lost wages or benefits. If the violation is
found to be willful, the agency can be ordered to pay an amount
equal to back wages as liquidated damages. Additionally, a
claimant who prevails shall be awarded reasonable attorney and
witness fees and other court costs.
Under current law there are three tenure groups. Within
each group, there are subgroups based on veteran status:
Compensable service-connected disability of 30
percent or more;
Employees with derived preference; and
All employees not eligible for veterans' preference.
S. 1021 would provide additional retention rights for
employees who are considered preference eligible employees as
defined in 5 U.S.C. 2108.
S. 1021 further would require that an agency must place the
preference eligible veterans in a competitive level for which
the individual is qualified. If qualified for more than one
competitive level, the agency must place the individual in the
level containing the most positions.
At this point in my testimony, I would like to shift my
focus to a matter of interest to the committee. This is the
Federal Contractor Program (FCP). The purpose of the FCP is
two-fold: to provide Federal contractor award information to
the VETS field staff, the State lead for FCP, and the DVOPs/
LVERs and, secondly, to receive the annual VETS-100 reports
from Federal contractors. The VETS-100 provides numbers of
special disabled and Vietnam-era veterans who are identified
affirmative action by Federal Contractors. The VETS-100 reports
are used to assist the Office of Federal Contract Compliance
Programs (OFCCP) in its role of enforcement and to provide
information for the Annual Report to Congress. Any employer who
receives a Federal contract or sub-contract in the amount of
$10,000 or more in a given year is subject to the provisions of
the Federal Contractor Program.
For the most recent reporting period ending March 31, 1997,
Federal contractor VETS-100 reports submitted showed a total
55,238 special disabled veterans and 1,147,271 Vietnam-era
veterans noted as current employees. Among the new hires
reported by Federal contractors, 4161 were special disabled
veterans and 109,715 were Vietnam-era veterans.
Information on Federal contracts awarded and modified is
received from the Commerce Business Daily. To improve VETS data
collection and compliance with the law, we are adding
information gained from the Federal Procurement Data System to
our database. This information is provided to VETS field staff
and DVOPs/LVERs. The VETS field staff use the information to
determine if priority of service is being provided by staff of
the local employment service office for targeted veterans. The
DVOPs and LVERs use the information to contact Federal
contractors to remind them that they are required to list job
openings, with the exception of executive or top management
positions, with the local employment service and that the
employment office can provide qualified targeted veterans to
fill job openings. As Federal contractors provide job openings
to the local employment service, qualified targeted veterans
receive priority referral to these job openings. Priority
referral means that targeted veterans are referred to job
openings listed by Federal contractors before non-veterans.
This process increases employment opportunities for Special
Disabled veterans and veterans of the Vietnam Era.
Since we have discussed here benefits that veterans have
been accorded in Federal employment and with respect to Federal
contractors, I would like to take this opportunity to remind
the Committee that VETS is engaged in a program to inform the
Congress, all Federal departments and agencies, the veterans
service organizations, veterans and employers of the
protections in employment that veterans are accorded pursuant
to Section 4311 of USERRA.
Section 4311 of USERRA states that ``[a] person who is a
member of, applies to be a member of, performs, has performed,
applies to perform, or has an obligation to perform service in
a uniformed service shall not be denied initial employment,
reemployment, retention in employment, promotion, or any
benefit of employment by an employer on the basis of that
membership, application for membership, performance of service,
application for service or obligation.'' The Federal government
was called on to serve as a ``model employer'' under the Act.
Deputy Secretary Kathryn Higgins made a USERRA presentation
at the March meeting of the President's Management Council,
which is comprised the Chief Operating Officers of all Cabinet
level departments, usually the Deputy Secretaries.
This presentation is being followed up by distribution of a
memo from Secretary of Labor Alexis M. Herman to Department of
Labor employees, veterans service organization and Federal
departments and agencies, reminding them of the provisions of
Section 4311 and VETS' obligations to enforce the law. VETS
will further educate the public and private sector and veterans
about the anti-discrimination provisions of USERRA and do all
it can to provide veterans with the benefits of employment to
which they are uniquely deserving. Information on USERRA is
available online and can also be accessed on ``elaws'' (USERRA
Advisor) on the DOL home page at www.dol.gov.
This legislation would have an impact on protected veterans
including the following:
Provide that a preference eligible or other protected
veteran not be denied the opportunity to compete for a
competitive or excepted position in a Federal agency by
reason of either not having acquired competitive status
or not being an employee of the hiring agency;
Provide expanded ``bumping'' rights for preference
eligibles in a reduction in force; and
Provide more favorable criteria to determine a
preference eligible's qualifications to perform in a
new position in event of a RIF.
Thank you for the opportunity to speak about several
programs that are so vital to our nation's veterans.
Statement of Mary Lou Lindholm, Associate Director for Employment,
Office of Personnel Management, March 24, 1998
Mr. Chairman and Members of the Committee: Thank you for
inviting me here today to discuss veterans' preference in the
Federal Government and S. 1021, the ``Veterans' Employment
Opportunities Act of 1998.'' I welcome the opportunity to
restate the Clinton Administration's firm support for the
principle of veterans' preference embodied in the Veterans'
Preference Act of 1944 and in this bill.
The Office of Personnel Management (OPM) has long been at
the forefront of efforts to preserve and protect veterans'
preference in Federal employment. We share your view that the
Nation owes a debt of gratitude to its veterans. Veterans'
preference provides a measure of compensation to those brave
men and women who left the comforts of home, family, and
employment to answer the Nation's call to arms.
On many occasions, President Clinton has reaffirmed his
Administration's commitment to preserving and protecting
veterans' preference. Certainly, the Government has every right
to be proud of its record of hiring and retaining veterans. For
example, the Federal Government employs approximately twice the
percentage of veterans as in the civilian labor force, 3 times
the percentage of Vietnam-era veterans, 5 times the percentage
of disabled veterans and 8 times the percentage of 30 percent
or more disabled veterans.
Despite factors such as the reduction of more than 350,000
Federal jobs in just the past few years, the shrinkage of our
military forces and the continuing drop in the percentage of
veterans in the labor force, the employment of veterans in the
Federal service has remained remarkably constant: it declined
only from 28.8 percent in Fiscal Year 1992 to 26.2 percent in
Fiscal Year 1997. The good news is that agencies seem to
realize that hiring veterans is just good business. In FY 1997
fully 31.4 percent of new permanent full-time hires were
veterans.
OPM monitors the application of veterans' preference very
closely. We audit all the certificates issued to ensure that
veterans' preference has been properly applied, and carefully
control the delegated examining authority granted to agencies.
As part of our oversight responsibility, OPM audits agency
application of our rules and regulations, including veterans'
preference. Where we find a violation of veterans' preference,
OPM requires agencies to take prompt corrective action. For
example, last year we discovered during a review that one small
agency was purposely manipulating the examining system in order
to appoint favored candidates. OPM immediately decertified the
agency's delegated examining unit, stripped the agency of
authority to make any appointments at all, and referred all
evidence of prohibited personnel practices to the Office of the
Special Counsel. At present, we are closely monitoring the
agency as it offers jobs to the more than 50 veterans who were
denied consideration by this unlawful practice. Although we
obviously cannot monitor every personnel action before it
occurs, our prompt, decisive action will have a chilling effect
on any other officials who might be tempted to evade the law.
I want to emphasize, however, that such cases are
definitely the exception; Federal employees are generally very
conscientious about applying veterans' preference properly.
What errors we do find--and they are relatively few--are
usually due to misunderstandings of the law or regulations. To
help correct these, last year we issued a very comprehensive
policy handbook called VetGuide to give agency personnelists
detailed guidance on how to apply veterans' preference. The
reception from agencies has been very enthusiastic. Also, OPM
will soon issue a companion VetInfo Guide aimed at veterans
themselves. It will tell them how the Federal employment system
operates and how veterans' preference and special authorities
such as the Veterans' Readjustment Appointment (VRA) operate.
This is potentially very helpful because we have found that,
too often, veterans do not understand their entitlements and
how the Federal employment system works.
To ensure that veterans have access to a convenient, quick,
and impartial system for resolving complaints that agencies did
not properly accord them their preference, OPM established a
complaint procedure through a Memorandum of Understanding with
the Department of Labor. This procedure allows the veteran to
file a complaint with the local veterans' Federal employment
representative in the State employment office. That office will
gather the facts and present them to the agency for a decision.
If the veteran is not satisfied with the decision, the
complaint is referred to OPM for final decision. This procedure
allows prompt resolution of a complaint in a fair, cost-
effective manner that works very well.
Under existing law, veterans also have protection during
reductions in force, or RIFs, and these have worked well to
protect veterans during the ongoing downsizing of the
Government. For example, when the General Accounting Office
recently reviewed several RIFs within the U.S. Geological
Survey, it reported that veterans were significantly less
likely to be separated than nonveterans. The GAO report showed
that because of their preference entitlements, only about 2.5
percent of the veterans employed in the Geological Division of
the agency were separated by RIF compared to about 10 percent
of the agency's nonveteran population.
Your letter of invitation asked how S. 1021 would affect
veterans and non-veterans. This proposed legislation would
benefit veterans primarily in the area of RIF because it would
give them even greater protections than they enjoy under
existing law. I note that the Federal Aviation Administration
(FAA) will provide the Committee with details of how this
legislation would affect its efforts to implement veterans'
preference under FAA's reformed personnel system.
I would note that any change to RIF procedures should allow
agencies, both Defense and non-Defense, adequate time for
implementation. In its action on this bill, the House of
Representatives provided different time frames for
implementation of the reduction in force and reemployment
priority provisions of this legislation in Defense and non-
Defense agencies. These provisions are effective within 90 days
for non-Defense agencies and only after one year for Defense
agencies. We believe that these effective dates should be
established at one year for all agencies.
Since RIFs may be underway should the bill be enacted in
its present form, agencies will need this phase-in period.
Otherwise they would have to stop ongoing RIFs and start over
again, causing great disruption and increased administrative
expense.
Finally, you asked what the future trends for Federal
employment will be, and how these trends may affect veterans.
There is no question that the percentage of veterans in the
Federal service has been in a slow decline for many years and
this decline may accelerate with the retirement of the Vietnam-
era employees. This is due to a number of factors--primarily
the corresponding reduction of veterans in the civilian labor
force due to the retirement of the World War II and Korean
veterans and the overall reduction of our military forces.
It is important to note, however, that the Defense
Authorization Act for FY 1998, which was signed into law by
President Clinton on November 18, 1997, contains two provisions
that will greatly expand veterans' preference.
The first grants preference to everyone who served on
active duty during the Gulf War regardless of where they served
or for how long, provided they are otherwise eligible. The
Department of Defense estimates that approximately 2 million
present and former members of the Armed Forces will gain
eligibility for preference under this provision alone. Since
the law also authorizes the Armed Forces Expeditionary Medal
for individuals who have served in Bosnia since November 1995,
these recipients automatically acquire veterans' preference.
At the very least, these two provisions represent a major
increase in the numbers of veterans eligible for preference in
civil service employment and will have a significant impact on
the representation of veterans in the future workforce.
Mr. Chairman, thank you very much and I will be glad to
answer any questions you may have.
Changes in Existing Law Made by S. 1021 as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the Committee 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 3, UNITED STATES CODE
* * * * * * *
CHAPTER 2--OFFICE AND COMPENSATION OF PRESIDENT
Sec.
101. * * *
* * * * * * *
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) appliesshall be notified as to such expectation,
in writing, at the time of appointment to such position.
* * * * * * *
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) * * *
* * * * * * *
(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;
(4) * * *
* * * * * * *
Sec. 2302. Prohibited personnel practices
[(a)(1) For the purpose of this title, ``prohibited
personnel practice'' means any action described in subsection
(b) of this section.] (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) * * *
* * * * * * *
(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).
* * * * * * *
CHAPTER 33--EXAMINATION, SELECTION, AND PLACEMENT
Subchapter I--Examination, Certification, and Appointment
Sec.
3301. * * *
* * * * * * *
3330a. Preference eligibles; administrative redress.
3330b. Preference eligibles; judicial redress.
3330c. Preference eligibles; remedy.
* * * * * * *
Subchapter I--Examination, Certification, and Appointment
* * * * * * *
Sec. 3330a. Preference eligibles; administrative redress
(a)(1) A preference eligible who alleges that an agency has
violated such individual's rights under any statute or
regulation relating to veterans' preference may file a
complaint with the Secretary of Labor.
(2)(A) A complaint under this subsection must be filed
within 60 days after the date of the alleged violation.
(B) Such complaint shall be in writing, be in such form as
the Secretary may prescribe, specify the agency against which
the complaint is filed, and contain a summary of the
allegations that form the basis for the complaint.
(3) The Secretary shall, upon request, provide technical
assistance to a potential complainant with respect to a
complaint under this subsection.
(b)(1) The Secretary of Labor shall investigate each
complaint under subsection (a).
(2) In carrying out any investigation under this
subsection, the Secretary's duly authorized representatives
shall, at all reasonable times, have reasonable access to, for
purposes of examination, and the right to copy and receive, any
documents of any person or agency that the Secretary considers
relevant to the investigation.
(3) In carrying out any investigation under this
subsection, the Secretary may require by subpoena the
attendance and testimony of witnesses and the production of
documents relating to any matter under investigation. In case
of disobedience of the subpoena or contumacy and on request of
the Secretary, the Attorney General may apply to any district
court of the United States in whose jurisdiction such
disobedience or contumacy occurs for an order enforcing the
subpoena.
(4) Upon application, the district courts of the United
States shall have jurisdiction to issue writs commanding any
person or agency to comply with the subpoena of the Secretary
or to comply with any order of the Secretary made pursuant to a
lawful investigation under this subsection and the district
courts shall have jurisdiction to punish failure to obey a
subpoena or other lawful order of the Secretary as a contempt
of court.
(c)(1)(A) If the Secretary of Labor determines as a result
of an investigation under subsection (b) that the action
alleged in a complaint under subsection (a) occurred, the
Secretary shall attempt to resolve the complaint by making
reasonable efforts to ensure that the agency specified in the
complaint complies with applicable provisions of statute or
regulation relating to veterans' preference.
(B) The Secretary of Labor shall make determinations
referred to in subparagraph (A) based on a preponderance of the
evidence.
(2) If the efforts of the Secretary under subsection (b)
with respect to a complaint under subsection (a) do not result
in the resolution of the complaint, the Secretary shall notify
the person who submitted the complaint, in writing, of the
results of the Secretary's investigation under subsection (b).
(d)(1) If the Secretary of Labor is unable to resolve a
complaint under subsection (a) 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 theMerit 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; or
(B) later than 15 days after the date on which the
complainant receives written notification from the
Secretary under subsection (c)(2).
(2) An appeal under this subsection may not be brought
unless--
(A) the complainant first provides written
notification to the Secretary 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 shall not continue to investigate or further attempt
to resolve the complaint to which the notification relates.
(e)(1) 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.
(2) A preference eligible may not pursue redress for an
alleged violation described in subsection (a) under this
section at the same time the preference eligible pursues
redress for such violation under any other law, rule, or
regulation.
Sec. 3330b. Preference eligibles; judicial redress
(a) In lieu of continuing the administrative redress
procedure provided under section 3330a(d), a preference
eligible 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(d); 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. Preference eligibles; 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 who prevails in an action under
section 3330a or 3330b shall be awarded reasonable attorney
fees, expert witness fees, and other litigation expenses.
* * * * * * *
TITLE 10, UNITED STATES CODE
* * * * * * *
PART II--PERSONNEL
* * * * * * *
CHAPTER 81--CIVILIAN EMPLOYEES
Sec.
[1580. Repealed]
* * * * * * *
[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(e), 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.]
* * * * * * *
TITLE 31, UNITED STATES CODE
* * * * * * *
CHAPTER 13--APPROPRIATIONS
* * * * * * *
Subchapter III--Limitations, Exceptions, and Penalties
1341. * * *
* * * * * * *
1354. Limitation on use of appropriated funds for contracts with
entities not meeting veterans' employment reporting
requirements.
* * * * * * *
Subchapter III--Limitations, Exceptions, and Penalties
* * * * * * *
Sec. 1354. Limitation on use of appropriated funds for contracts with
entities not meeting veterans' employment reporting
requirements
(a)(1) Subject to paragraph (2), no agency may obligate or
expend funds appropriated for the agency for a fiscal year to
enter into a contract described in section 4212(a) of title 38
with a contractor from which a report was required under
section 4212(d) of that title with respect to the preceding
fiscal year if such contractor did not submit such report.
(2) Paragraph (1) shall cease to apply with respect to a
contractor otherwise covered by that paragraph on the date on
which the contractor submits the report required by such
section 4212(d) for the fiscal year concerned.
(b) The Secretary of Labor shall take appropriate actions
to notify agencies in a timely manner of the contractors
covered by subsection (a).
* * * * * * *
TITLE 38, UNITED STATES CODE
* * * * * * *
PART III--READJUSTMENT AND RELATED BENEFITS
CHAPTER 42--EMPLOYMENT AND TRAINING OF VETERANS
* * * * * * *
Sec. 4212. Veterans' employment emphasis under Federal contracts
(a) Any contract in the amount of $10,000 or more entered
into by any department or agency for the procurement of
personal property and non-personal services (including
construction) for the United States, shall contain a provision
requiring that the party contracting with the United States
shall take affirmative action to employ and advance in
employment qualified [special disabled veterans and veterans of
the Vietnam era] special disabled veterans, veterans of the
Vietnam era, and covered veterans of the Persian Gulf War. The
provisions of this section shall apply to any subcontract
entered into by a prime contractor in carrying out any contract
for the procurement of personal property and non-personal
services (including construction) for the United States. In
addition to requiring affirmative action to employ such
veterans under such contracts and subcontracts and in order to
promote the implementation of such requirement, the President
shall implement the provisions of this section by promulgating
regulations which shall require that (1) each such contractor
undertake in such contract to list immediately with the
appropriate local employment service office all of its
employment openings except that the contractor may exclude
openings for executive and top management positions, positions
which are to be filled from within the contractor's
organization, and positions lasting three days or less, and (2)
each such local office shall give such veterans priority in
referral to such employment openings.
(b) If any [special disabled veteran or veteran of the
Vietnam era] special disabled veterans, veterans of the Vietnam
era, or covered veterans of the Persian Gulf War believes any
contractor of the United States has failed to comply or refuses
to comply with the provisions of the contractor's contract
relating to the employment of veterans, the veteran may file a
complaint with the Secretary of Labor, who shall promptly
investigate such complaint and take appropriate action in
accordance with the terms of the contract and applicable laws
and regulations.
(c) * * *
(d)(1) Each contractor to whom subsection (a) of this
section applies shall, in accordance with regulations which the
Secretary of Labor shall prescribe, report at least annually to
the Secretary of Labor on--
(A) the number of employees in the work force of such
contractor, by job category and hiring location, who
are veterans of the Vietnam era or special disabled
veterans; [and]
(B) the total number of new employees hired by the
contractor during the period covered by the report and
the number of such employees who are [veterans of the
Vietnam era or special disabled veterans] special
disabled veterans, veterans of the Vietnam era, or
covered veterans of the Persian Gulf War[.]; and
(C) the maximum number and the minimum number of
employees of such contractor during the period covered
by the report.
(2) The Secretary of Labor shall ensure that the
administration of the reporting requirement under paragraph (1)
of this subsection is coordinated with respect to any
requirement for the contractor to make any other report to the
Secretary of Labor.
(e) For purposes of this section, the term ``covered
veteran of the Persian Gulf War'' means any veteran who served
in the active military, naval, or air service in the Southwest
Asia theater of operations during the period beginning on
August 2, 1990, and ending on January 2, 1992.
* * * * * * *
----------
DEPARTMENT OF TRANSPORTATION AND RELATED AGENCIES APPROPRIATIONS ACT,
1996
* * * * * * *
TITLE III
GENERAL PROVISIONS
(INCLUDING TRANSFERS OF FUNDS)
* * * * * * *
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) chapter 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.
* * * * * * *