[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. Res. 700 Agreed to Senate (ATS)]
111th CONGRESS
2d Session
S. RES. 700
To provide for the approval of final regulations issued by the Office
of Compliance to implement the Veterans Employment Opportunities Act of
1998 that apply to the Senate and employees of the Senate.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
December 10, 2010
Mr. Schumer (for himself and Mr. Bennett) submitted the following
resolution; which was considered and agreed to
_______________________________________________________________________
RESOLUTION
To provide for the approval of final regulations issued by the Office
of Compliance to implement the Veterans Employment Opportunities Act of
1998 that apply to the Senate and employees of the Senate.
Resolved, That the following regulations issued by the Office of
Compliance on March 21, 2008, and stated in section 4, with the
technical corrections described in section 3 and to the extent applied
by section 2, are hereby approved:
SEC. 2. APPLICATION OF REGULATIONS.
(a) In General.--For purposes of applying the issued regulations as
a body of regulations required by section 304(a)(2)(B)(i) of the
Congressional Accountability Act of 1995 (2 U.S.C. 1384(a)(2)(B)(i)),
the portions of the issued regulations that are unclassified or
classified with an ``S'' designation shall apply to the Senate and
employees of the Senate.
(b) Definition.--In this section, the term ``employee of the
Senate'' has the meaning given the term in section 101 of the
Congressional Accountability Act of 1995 (2 U.S.C. 1301), except as
limited by the regulations (as corrected under section 3).
SEC. 3. TECHNICAL CORRECTIONS.
(a) Current Names of Offices and Heads of Offices.--A reference in
the issued regulations--
(1) to the Capitol Guide Board or the Capitol Guide Service
(which no longer exist) shall be considered to be a reference
to the Office of Congressional Accessibility Services;
(2) to the Capitol Police Board shall be considered to be a
reference to the Capitol Police;
(3) to the Senate Restaurants (which are no longer public
entities) shall be disregarded; and
(4) in sections 1.110(b) and 1.121(c), to the director of
an employing office shall be considered to be a reference to
the head of an employing office.
(b) Cross References to Provisions of Regulations.--A reference in
the issued regulations--
(1) in paragraphs (l) and (m) of section 1.102, to
subparagraphs (3) through (8) of paragraph (g) of that section
shall be considered to be a reference to paragraph (g) of that
section;
(2) in section 1.102(l), to subparagraphs (aa) through (dd)
of section 1.102(g) shall be considered to be a reference to
subparagraphs (aa) through (dd) of that section (as specified
in the regulations classified with an ``H'' classification);
(3) in section 1.102(m), to subparagraphs (aa) through (ee)
of section 1.102(g) shall be considered to be a reference to
subparagraphs (aa) through (ee) of that section (as specified
in the regulations classified with an ``S'' classification);
(4) in section 1.111(d), to section 1.102(o) shall be
considered to be a reference to section 1.102(p); and
(5) in section 1.112, to section 1.102(h) shall be
considered to be a reference to section 1.102(i).
(c) Cross References to Other Provisions of Law.--A reference in
the issued regulations--
(1) to the Veterans Employment Opportunities Act shall be
considered to be a reference to the Veterans Employment
Opportunities Act of 1998;
(2) to 2 U.S.C. 43d(a) shall be considered to be a
reference to section 105(a) of the Second Supplemental
Appropriations Act, 1978;
(3) to 2 U.S.C. 1316a(3) shall be considered to be a
reference to section 4(c)(3) of the Veterans Employment
Opportunities Act of 1998;
(4) to 5 U.S.C. 2108(3)(c) shall be considered to be a
reference to section 2108(3)(C) of title 5, United States Code;
(5) to the Americans with Disabilities Act shall be
considered to be a reference to the Americans with Disabilities
Act of 1990;
(6) to the Soil Conservation and Allotment Act shall be
considered to be a reference to the Soil Conservation and
Domestic Allotment Act; and
(7) to the Agricultural Adjustment Act shall be considered
to be a reference to the Agricultural Adjustment Act, reenacted
with amendments by the Agricultural Marketing Agreement Act of
1937.
(d) Other Corrections.--In the issued regulations--
(1) in section 1.102(g)(1) (in the regulations classified
with an ``S'' classification), the ``and'' at the end shall be
disregarded;
(2) section 1.102(g)(7) (in the regulations classified with
an ``S'' classification) shall be considered to have an ``or''
at the end;
(3) section 1.109 shall be considered to have an ``and''
after paragraph (a);
(4) the second sentence of section 1.116 shall be
disregarded;
(5) section 1.118(b) shall be considered to have an ``and''
after paragraph (2) rather than paragraph (1);
(6) a reference in sections 1.118(c)(1) and 1.120(b)(1) to
veterans' ``preference eligible'' shall be considered to be a
reference to ``preference eligible'';
(7) sections 1.118(c) and 1.120(b) shall be considered to
have an ``and'' after paragraph (1); and
(8) section 1.121(b)(6)(B) shall be considered to have an
``and'' at the end.
SEC. 4. REGULATIONS.
When approved by the House of Representatives for the House of
Representatives, these regulations will have the prefix ``H.'' When
approved by the Senate for the Senate, these regulations will have the
prefix ``S.'' When approved by Congress for the other employing offices
covered by the CAA, these regulations will have the prefix ``C.''
In this draft, ``H&S Regs'' denotes the provisions that would
be included in the regulations applicable to be made applicable to the
House and Senate, and ``C Reg'' denotes the provisions that would be
included in the regulations to be made applicable to other employing
offices.
PART 1--Extension of Rights and Protections Relating to
Veterans' Preference Under Title 5, United States Code, to Covered
Employees of the Legislative Branch (section 4(c) of the Veterans
Employment Opportunities Act of 1998)
Subpart A--Matters of General Applicability to All Regulations
Promulgated under Section 4 of the VEOA
Sec.
1.101 Purpose and scope.
1.102 Definitions.
1.103 Adoption of regulations.
1.104 Coordination with section 225 of the Congressional
Accountability Act.
SEC. 1.101. PURPOSE AND SCOPE.
(a) Section 4(c) of the VEOA. The Veterans Employment Opportunities
Act (VEOA) applies the rights and protections of sections 2108, 3309
through 3312, and subchapter I of chapter 35 of title 5 U.S.C., to
certain covered employees within the Legislative branch.
(b) Purpose of regulations. The regulations set forth herein are
the substantive regulations that the Board of Directors of the Office
of Compliance has promulgated pursuant to section 4(c)(4) of the VEOA,
in accordance with the rulemaking procedure set forth in section 304 of
the CAA (2 U.S.C. Sec. 1384). The purpose of subparts B, C and D of
these regulations is to define veterans' preference and the
administration of veterans' preference as applicable to Federal
employment in the Legislative branch. (5 U.S.C. Sec. 2108, as applied
by the VEOA). The purpose of subpart E of these regulations is to
ensure that the principles of the veterans' preference laws are
integrated into the existing employment and retention policies and
processes of those employing offices with employees covered by the
VEOA, and to provide for transparency in the application of veterans'
preference in covered appointment and retention decisions. Provided,
nothing in these regulations shall be construed so as to require an
employing office to reduce any existing veterans' preference rights and
protections that it may afford to preference eligible individuals.
H Regs: (c) Scope of Regulations. The definition of ``covered
employee'' in Section 4(c) of the VEOA limits the scope of the
statute's applicability within the Legislative branch. The term
``covered employee'' excludes any employee: (1) whose appointment is
made by the President with the advice and consent of the Senate; (2)
whose appointment is made by a Member of Congress within an employing
office, as defined by Sec. 101 (9)(A-C) of the CAA, 2 U.S.C. Sec. 1301
(9)(A-C) or; (3) whose appointment is made by a committee or
subcommittee of either House of Congress or a joint committee of the
House of Representatives and the Senate; or (4) who is appointed to a
position, the duties of which are equivalent to those of a Senior
Executive Service position (within the meaning of section 3132(a)(2) of
title 5, United States Code). Accordingly, these regulations shall not
apply to any employing office that only employs individuals excluded
from the definition of covered employee.
S Regs: (c) Scope of Regulations. The definition of ``covered
employee'' in Section 4(c) of the VEOA limits the scope of the
statute's applicability within the Legislative branch. The term
``covered employee'' excludes any employee: (1) whose appointment is
made by the President with the advice and consent of the Senate; (2)
whose appointment is made or directed by a Member of Congress within an
employing office, as defined by Sec. 101(9)(A-C) of the CAA, 2 U.S.C.
Sec. 1301 (9)(A-C) or; (3) whose appointment is made by a committee or
subcommittee of either House of Congress or a joint committee of the
House of Representatives and the Senate; (4) who is appointed pursuant
to 2 U.S.C. Sec. 43d(a); or (5) who is appointed to a position, the
duties of which are equivalent to those of a Senior Executive Service
position (within the meaning of section 3132(a)(2) of title 5, United
States Code). Accordingly, these regulations shall not apply to any
employing office that only employs individuals excluded from the
definition of covered employee.
C Reg: (c) Scope of Regulations. The definition of ``covered
employee'' in Section 4(c) of the VEOA limits the scope of the
statute's applicability within the Legislative branch. The term
``covered employee'' excludes any employee: (1) whose appointment is
made by the President with the advice and consent of the Senate; (2)
whose appointment is made by a Member of Congress or by a committee or
subcommittee of either House of Congress or a joint committee of the
House of Representatives and the Senate; or (3) who is appointed to a
position, the duties of which are equivalent to those of a Senior
Executive Service position (within the meaning of section 3132(a)(2) of
title 5, United States Code). Accordingly, these regulations shall not
apply to any employing office that only employs individuals excluded
from the definition of covered employee.
SEC. 1.102. DEFINITIONS.
Except as otherwise provided in these regulations, as used in
these regulations:
(a) Accredited physician means a doctor of medicine or osteopathy
who is authorized to practice medicine or surgery (as appropriate) by
the State in which the doctor practices. The phrase ``authorized to
practice by the State'' as used in this section means that the provider
must be authorized to diagnose and treat physical or mental health
conditions without supervision by a doctor or other health care
provider.
(b) Act or CAA means the Congressional Accountability Act of 1995,
as amended (Pub. L. 104-1, 109 Stat. 3, 2 U.S.C. Sec. Sec. 1301-1438).
(c) Active duty or active military duty means full-time duty with
military pay and allowances in the armed forces, except (1) for
training or for determining physical fitness and (2) for service in the
Reserves or National Guard.
(d) Appointment means an individual's appointment to employment in
a covered position, but does not include any personnel action that an
employing office takes with regard to an existing employee of the
employing office.
(e) Armed forces means the United States Army, Navy, Air Force,
Marine Corps, and Coast Guard.
(f) Board means the Board of Directors of the Office of Compliance.
H Regs: (g) Covered employee means any employee of (1) the
House of Representatives; and (2) the Senate; (3) the Capitol Guide
Board; (4) the Capitol Police Board; (5) the Congressional Budget
Office; (6) the Office of the Architect of the Capitol; (7) the Office
of the Attending Physician; and (8) the Office of Compliance, but does
not include an employee (aa) whose appointment is made by the President
with the advice and consent of the Senate; (bb) whose appointment is
made by a Member of Congress; (cc) whose appointment is made by a
committee or subcommittee of either House of Congress or a joint
committee of the House of Representatives and the Senate; or (dd) who
is appointed to a position, the duties of which are equivalent to those
of a Senior Executive Service position (within the meaning of section
3132(a)(2) of title 5, United States Code). The term covered employee
includes an applicant for employment in a covered position and a former
covered employee.
S. Regs: (g) Covered employee means any employee of (1) the
House of Representatives; and (2) the Senate; (3) the Capitol Guide
Board; (4) the Capitol Police Board; (5) the Congressional Budget
Office; (6) the Office of the Architect of the Capitol; (7) the Office
of the Attending Physician; and (8) the Office of Compliance, but does
not include an employee (aa) whose appointment is made by the President
with the advice and consent of the Senate; (bb) whose appointment is
made or directed by a Member of Congress; (cc) whose appointment is
made by a committee or subcommittee of either House of Congress or a
joint committee of the House of Representatives and the Senate; (dd)
who is appointed pursuant to 2 U.S.C. Sec. 43d(a); or (ee) who is
appointed to a position, the duties of which are equivalent to those of
a Senior Executive Service position (within the meaning of section
3132(a)(2) of title 5, United States Code). The term covered employee
includes an applicant for employment in a covered position and a former
covered employee.
C Reg: (g) Covered employee means any employee of (1) the
Capitol Guide Service; (2) the Capitol Police; (3) the Congressional
Budget Office; (4) the Office of the Architect of the Capitol; (5) the
Office of the Attending Physician; or (6) the Office of Compliance, but
does not include an employee: (aa) whose appointment is made by the
President with the advice and consent of the Senate; or (bb) whose
appointment is made by a Member of Congress or by a committee or
subcommittee of either House of Congress or a joint committee of the
House of Representatives and the Senate; or (cc) who is appointed to a
position, the duties of which are equivalent to those of a Senior
Executive Service position (within the meaning of section 3132(a)(2) of
title 5, United States Code). The term covered employee includes an
applicant for employment in a covered position and a former covered
employee.
(h) Covered position means any position that is or will be held by
a covered employee.
(i) Disabled veteran means a person who was separated under
honorable conditions from active duty in the armed forces performed at
any time and who has established the present existence of a service-
connected disability or is receiving compensation, disability
retirement benefits, or pensions because of a public statute
administered by the Department of Veterans Affairs or a military
department.
(j) Employee of the Office of the Architect of the Capitol includes
any employee of the Office of the Architect of the Capitol, the Botanic
Gardens, or the Senate Restaurants.
(k) Employee of the Capitol Police Board includes any member or
officer of the Capitol Police.
(l) Employee of the House of Representatives includes an individual
occupying a position the pay of which is disbursed by the Clerk of the
House of Representatives, or another official designated by the House
of Representatives, or any employment position in an entity that is
paid with funds derived from the clerk-hire allowance of the House of
Representatives but not any such individual employed by any entity
listed in subparagraphs (3) through (8) of paragraph (g) above nor any
individual described in subparagraphs (aa) through (dd) of paragraph
(g) above.
(m) Employee of the Senate includes any employee whose pay is
disbursed by the Secretary of the Senate, but not any such individual
employed by any entity listed in subparagraphs (3) through (8) of
paragraph (g) above nor any individual described in subparagraphs (aa)
through (ee) of paragraph (g) above.
H Regs: (n) Employing office means: (1) the personal office of
a Member of the House of Representatives; (2) a committee of the House
of Representatives or a joint committee of the House of Representatives
and the Senate; or (3) any other office headed by a person with the
final authority to appoint, hire, discharge, and set the terms,
conditions, or privileges of the employment of an employee of the House
of Representatives or the Senate.
S Regs: (n) Employing office means: (1) the personal office of
a Senator; (2) a committee of the Senate or a joint committee of the
House of Representatives and the Senate; or (3) any other office headed
by a person with the final authority to appoint, or be directed by a
Member of Congress to appoint, hire, discharge, and set the terms,
conditions, or privileges of the employment of an employee of the House
of Representatives or the Senate.
C Reg: (n) Employing office means: the Capitol Guide Board,
the Capitol Police Board, the Congressional Budget Office, the Office
of the Architect of the Capitol, the Office of the Attending Physician,
and the Office of Compliance.
(o) Office means the Office of Compliance.
(p) Preference eligible means veterans, spouses, widows, widowers
or mothers who meet the definition of ``preference eligible'' in 5
U.S.C. Sec. 2108(3)(A)-(G).
(q) Qualified applicant means an applicant for a covered position
whom an employing office deems to satisfy the requisite minimum job-
related requirements of the position. Where the employing office uses
an entrance examination or evaluation for a covered position that is
numerically scored, the term ``qualified applicant'' shall mean that
the applicant has received a passing score on the examination or
evaluation.
(r) Separated under honorable conditions means either an honorable
or a general discharge from the armed forces. The Department of Defense
is responsible for administering and defining military discharges.
(s) Uniformed services means the armed forces, the commissioned
corps of the Public Health Service, and the commissioned corps of the
National Oceanic and Atmospheric Administration.
(t) VEOA means the Veterans Employment Opportunities Act of 1998
(Pub. L. 105-339, 112 Stat. 3182).
(u) Veterans means persons as defined in 5 U.S.C. Sec. 2108(1), or
any superseding legislation.
SEC. 1.103. ADOPTION OF REGULATIONS.
(a) Adoption of regulations. Section 4(c)(4)(A) of the VEOA
generally authorizes the Board to issue regulations to implement
section 4(c). In addition, section 4(c)(4)(B) of the VEOA directs the
Board to promulgate regulations that are ``the same as the most
relevant substantive regulations (applicable with respect to the
Executive branch) promulgated to implement the statutory provisions
referred to in paragraph (2)'' of section 4(c) of the VEOA. Those
statutory provisions are section 2108, sections 3309 through 3312, and
subchapter I of chapter 35, of title 5, United States Code. The
regulations issued by the Board herein are on all matters for which
section 4(c)(4)(B) of the VEOA requires a regulation to be issued.
Specifically, it is the Board's considered judgment based on the
information available to it at the time of promulgation of these
regulations, that, with the exception of the regulations adopted and
set forth herein, there are no other ``substantive regulations
(applicable with respect to the Executive branch) promulgated to
implement the statutory provisions referred to in paragraph (2)'' of
section 4(c) of the VEOA that need be adopted.
(b) Modification of substantive regulations. As a qualification to
the statutory obligation to issue regulations that are ``the same as
the most substantive regulations (applicable with respect to the
Executive branch)'', section 4(c)(4)(B) of the VEOA authorizes the
Board to ``determine, for good cause shown and stated together with the
regulation, that a modification of such regulations would be more
effective for the implementation of the rights and protections under''
section 4(c) of the VEOA.
(c) Rationale for Departure from the Most Relevant Executive Branch
Regulations. The Board concludes that it must promulgate regulations
accommodating the human resource systems existing in the Legislative
branch; and that such regulations must take into account the fact that
the Board does not possess the statutory and Executive Order based
government-wide policy making authority underlying OPM's counterpart
VEOA regulations governing the Executive branch. OPM's regulations are
designed for the competitive service (defined in 5 U.S.C.
Sec. 2102(a)(2)), which does not exist in the employing offices subject
to this regulation. Therefore, to follow the OPM regulations would
create detailed and complex rules and procedures for a workforce that
does not exist in the Legislative branch, while providing no VEOA
protections to the covered Legislative branch employees. We have chosen
to propose specially tailored regulations, rather than simply to adopt
those promulgated by OPM, so that we may effectuate Congress' intent in
extending the principles of the veterans' preference laws to the
Legislative branch through the VEOA.
SEC. 1.104. COORDINATION WITH SECTION 225 OF THE CONGRESSIONAL
ACCOUNTABILITY ACT.
Statutory directive. Section 4(c)(4)(C) of the VEOA requires
that promulgated regulations must be consistent with section 225 of the
CAA. Among the relevant provisions of section 225 are subsection
(f)(1), which prescribes as a rule of construction that definitions and
exemptions in the laws made applicable by the CAA shall apply under the
CAA, and subsection (f)(3), which states that the CAA shall not be
considered to authorize enforcement of the CAA by the Executive branch.
Subpart B--Veterans' Preference--General Provisions
Sec.
1.105 Responsibility for administration of veterans'
preference.
1.106 Procedures for bringing claims under the VEOA.
SEC. 1.105. RESPONSIBILITY FOR ADMINISTRATION OF VETERANS' PREFERENCE.
Subject to section 1.106, employing offices with covered
employees or covered positions are responsible for making all veterans'
preference determinations, consistent with the VEOA.
SEC. 1.106. PROCEDURES FOR BRINGING CLAIMS UNDER THE VEOA.
Applicants for appointment to a covered position and covered
employees may contest adverse veterans' preference determinations,
including any determination that a preference eligible applicant is not
a qualified applicant, pursuant to sections 401-416 of the CAA, 2
U.S.C. Sec. Sec. 1401-1416, and provisions of law referred to therein;
206a(3) of the CAA, 2 U.S.C. Sec. Sec. 1401, 1316a(3); and the Office's
Procedural Rules.
Subpart C--Veterans' Preference in Appointments
Sec.
1.107 Veterans' preference in appointments to restricted
covered positions.
1.108 Veterans' preference in appointments to non-restricted
covered positions.
1.109 Crediting experience in appointments to covered
positions.
1.110 Waiver of physical requirements in appointments to
covered positions.
SEC. 1.107. VETERANS' PREFERENCE IN APPOINTMENTS TO RESTRICTED
POSITIONS.
In each appointment action for the positions of custodian,
elevator operator, guard, and messenger (as defined below and
collectively referred to in these regulations as restricted covered
positions) employing offices shall restrict competition to preference
eligible applicants as long as qualified preference eligible applicants
are available. The provisions of sections 1.109 and 1.110 below shall
apply to the appointment of a preference eligible applicant to a
restricted covered position. The provisions of section 1.108 shall
apply to the appointment of a preference eligible applicant to a
restricted covered position, in the event that there is more than one
preference eligible applicant for the position.
Custodian--One whose primary duty is the performance of
cleaning or other ordinary routine maintenance duties in or about a
government building or a building under Federal control, park,
monument, or other Federal reservation.
Elevator operator--One whose primary duty is the running of
freight or passenger elevators. The work includes opening and closing
elevator gates and doors, working elevator controls, loading and
unloading the elevator, giving information and directions to passengers
such as on the location of offices, and reporting problems in running
the elevator.
Guard--One whose primary duty is the assignment to a station,
beat, or patrol area in a Federal building or a building under Federal
control to prevent illegal entry of persons or property; or required to
stand watch at or to patrol a Federal reservation, industrial area, or
other area designated by Federal authority, in order to protect life
and property; make observations for detection of fire, trespass,
unauthorized removal of public property or hazards to Federal personnel
or property. The term guard does not include law enforcement officer
positions of the Capitol Police Board.
Messenger--One whose primary duty is the supervision or
performance of general messenger work (such as running errands,
delivering messages, and answering call bells).
SEC. 1.108. VETERANS' PREFERENCE IN APPOINTMENTS TO NON-RESTRICTED
COVERED POSITIONS.
(a) Where an employing office has duly adopted a policy requiring
the numerical scoring or rating of applicants for covered positions,
the employing office shall add points to the earned ratings of those
preference eligible applicants who receive passing scores in an
entrance examination, in a manner that is proportionately comparable to
the points prescribed in 5 U.S.C. Sec. 3309. For example, five
preference points shall be granted to preference eligible applicants in
a 100-point system, one point shall be granted in a 20-point system,
and so on.
(b) In all other situations involving appointment to a covered
position, employing offices shall consider veterans' preference
eligibility as an affirmative factor in the employing office's
determination of who will be appointed from among qualified applicants.
SEC. 1.109. CREDITING EXPERIENCE IN APPOINTMENTS TO COVERED POSITIONS.
When considering applicants for covered positions in which
experience is an element of qualification, employing offices shall
provide preference eligible applicants with credit:
(a) for time spent in the military service (1) as an extension of
time spent in the position in which the applicant was employed
immediately before his/her entrance into the military service, or (2)
on the basis of actual duties performed in the military service, or (3)
as a combination of both methods. Employing offices shall credit time
spent in the military service according to the method that will be of
most benefit to the preference eligible applicant.
(b) for all experience material to the position for which the
applicant is being considered, including experience gained in
religious, civic, welfare, service, and organizational activities,
regardless of whether he/she received pay therefor.
SEC. 1.110. WAIVER OF PHYSICAL REQUIREMENTS IN APPOINTMENTS TO COVERED
POSITIONS.
(a) Subject to (c) below, in determining qualifications of a
preference eligible for appointment, an employing office shall waive:
(1) with respect to a preference eligible applicant,
requirements as to age, height, and weight, unless the
requirement is essential to the performance of the duties of
the position; and
(2) with respect to a preference eligible applicant to whom
it has made a conditional offer of employment, physical
requirements if, in the opinion of the employing office, on the
basis of evidence before it, including any recommendation of an
accredited physician submitted by the preference eligible
applicant, the preference eligible applicant is physically able
to perform efficiently the duties of the position;
(b) Subject to (c) below, if an employing office determines, on the
basis of evidence before it, including any recommendation of an
accredited physician submitted by the preference eligible applicant,
that an applicant to whom it has made a conditional offer of employment
is preference eligible as a disabled veteran as described in 5 U.S.C.
Sec. 2108(3)(c) and who has a compensable service-connected disability
of 30 percent or more is not able to fulfill the physical requirements
of the covered position, the employing office shall notify the
preference eligible applicant of the reasons for the determination and
of the right to respond and to submit additional information to the
employing office, within 15 days of the date of the notification. The
director of the employing office may, by providing written notice to
the preference eligible applicant, shorten the period for submitting a
response with respect to an appointment to a particular covered
position, if necessary because of a need to fill the covered position
immediately. Should the preference eligible applicant make a timely
response, the highest ranking individual or group of individuals with
authority to make employment decisions on behalf of the employing
office shall render a final determination of the physical ability of
the preference eligible applicant to perform the duties of the
position, taking into account the response and any additional
information provided by the preference eligible applicant. When the
employing office has completed its review of the proposed
disqualification on the basis of physical disability, it shall send its
findings to the preference eligible applicant.
(c) Nothing in this section shall relieve an employing office of
any obligations it may have pursuant to the Americans with Disabilities
Act (42 U.S.C. Sec. 12101 et seq.) as applied by section 102(a)(3) of
the Act, 2 U.S.C. Sec. 1302(a)(3).
Subpart D--Veterans' preference in reductions in force
Sec.
1.111. Definitions applicable in reductions in force.
1.112. Application of preference in reductions in force.
1.113. Crediting experience in reductions in force.
1.114. Waiver of physical requirements in reductions in force.
1.115. Transfer of functions.
SEC. 1.111. DEFINITIONS APPLICABLE IN REDUCTIONS IN FORCE.
(a) Competing covered employees are the covered employees within a
particular position or job classification, at or within a particular
competitive area, as those terms are defined below.
(b) Competitive area is that portion of the employing office's
organizational structure, as determined by the employing office, in
which covered employees compete for retention. A competitive area must
be defined solely in terms of the employing office's organizational
unit(s) and geographical location, and it must include all employees
within the competitive area so defined. A competitive area may consist
of all or part of an employing office. The minimum competitive area is
a department or subdivision of the employing office within the local
commuting area.
(c) Position classifications or job classifications are determined
by the employing office, and shall refer to all covered positions
within a competitive area that are in the same grade, occupational
level or classification, and which are similar enough in duties,
qualification requirements, pay schedules, tenure (type of appointment)
and working conditions so that an employing office may reassign the
incumbent of one position to any of the other positions in the position
classification without undue interruption.
(d) Preference Eligibles. For the purpose of applying veterans'
preference in reductions in force, except with respect to the
application of section 1.114 of these regulations regarding the waiver
of physical requirements, the following shall apply:
(1) ``active service'' has the meaning given it by section
101 of title 37;
(2) ``a retired member of a uniformed service'' means a
member or former member of a uniformed service who is entitled,
under statute, to retired, retirement, or retainer pay on
account of his/her service as such a member; and
(3) a preference eligible covered employee who is a retired
member of a uniformed service is considered a preference
eligible only if
(A) his/her retirement was based on disability--
(i) resulting from injury or disease
received in line of duty as a direct result of
armed conflict; or
(ii) caused by an instrumentality of war
and incurred in the line of duty during a
period of war as defined by sections 101 and
1101 of title 38;
(B) his/her service does not include twenty or more
years of full-time active service, regardless of when
performed but not including periods of active duty for
training; or
(C) on November 30, 1964, he/she was employed in a
position to which this subchapter applies and
thereafter he/she continued to be so employed without a
break in service of more than 30 days.
The definition of ``preference eligible'' as set forth in 5
U.S.C Sec. 2108 and section 1.102(o) of these regulations shall apply
to waivers of physical requirements in determining an employee's
qualifications for retention under section 1.114 of these regulations.
H&S Regs: (e) Reduction in force is any termination of a
covered employee's employment or the reduction in pay and/or position
grade of a covered employee for more than 30 days and that may be
required for budgetary or workload reasons, changes resulting from
reorganization, or the need to make room for an employee with
reemployment or restoration rights. The term ``reduction in force''
does not encompass a termination or other personnel action: (1)
predicated upon performance, conduct or other grounds attributable to
an employee, or (2) involving an employee who is employed by the
employing office on a temporary basis, or (3) attributable to a change
in party leadership or majority party status within the House of
Congress where the employee is employed.
C Reg: (e) Reduction in force is any termination of a covered
employee's employment or the reduction in pay and/or position grade of
a covered employee for more than 30 days and that may be required for
budgetary or workload reasons, changes resulting from reorganization,
or the need to make room for an employee with reemployment or
restoration rights. The term ``reduction in force'' does not encompass
a termination or other personnel action: (1) predicated upon
performance, conduct or other grounds attributable to an employee, or
(2) involving an employee who is employed by the employing office on a
temporary basis.
(f) Undue interruption is a degree of interruption that would
prevent the completion of required work by a covered employee 90 days
after the employee has been placed in a different position under this
part. The 90-day standard should be considered within the allowable
limits of time and quality, taking into account the pressures of
priorities, deadlines, and other demands. However, work generally would
not be considered to be unduly interrupted if a covered employee needs
more than 90 days after the reduction in force to perform the optimum
quality or quantity of work. The 90-day standard may be extended if
placement is made under this part to a program accorded low priority by
the employing office, or to a vacant position.
SEC. 1.112. APPLICATION OF PREFERENCE IN REDUCTIONS IN FORCE.
Prior to carrying out a reduction in force that will affect
covered employees, employing offices shall determine which, if any,
covered employees within a particular group of competing covered
employees are entitled to veterans' preference eligibility status in
accordance with these regulations. In determining which covered
employees will be retained, employing offices will treat veterans'
preference as the controlling factor in retention decisions among such
competing covered employees, regardless of length of service or
performance, provided that the preference eligible employee's
performance has not been determined to be unacceptable. Provided, a
preference eligible employee who is a ``disabled veteran'' under
section 1.102(h) above who has a compensable service-connected
disability of 30 percent or more and whose performance has not been
determined to be unacceptable by an employing office is entitled to be
retained in preference to other preference eligible employees.
Provided, this section does not relieve an employing office of any
greater obligation it may be subject to pursuant to the Worker
Adjustment and Retraining Notification Act (29 U.S.C. Sec. 2101 et
seq.) as applied by section 102(a)(9) of the CAA, 2 U.S.C.
Sec. 1302(a)(9).
SEC. 1.113. CREDITING EXPERIENCE IN REDUCTIONS IN FORCE.
In computing length of service in connection with a reduction
in force, the employing office shall provide credit to preference
eligible covered employees as follows:
(a) a preference eligible covered employee who is not a retired
member of a uniformed service is entitled to credit for the total
length of time in active service in the armed forces;
(b) a preference eligible covered employee who is a retired member
of a uniformed service is entitled to credit for:
(1) the length of time in active service in the armed
forces during a war, or in a campaign or expedition for which a
campaign badge has been authorized; or
(2) the total length of time in active service in the armed
forces if he is included under 5 U.S.C. Sec. 3501(a)(3)(A),
(B), or (C); and
(c) a preference eligible covered employee is entitled to credit
for:
(1) service rendered as an employee of a county committee
established pursuant to section 8(b) of the Soil Conservation
and Allotment Act or of a committee or association of producers
described in section 10(b) of the Agricultural Adjustment Act;
and
(2) service rendered as an employee described in 5 U.S.C.
Sec. 2105(c) if such employee moves or has moved, on or after
January 1, 1966, without a break in service of more than 3
days, from a position in a nonappropriated fund instrumentality
of the Department of Defense or the Coast Guard to a position
in the Department of Defense or the Coast Guard, respectively,
that is not described in 5 U.S.C. Sec. 2105(c).
SEC. 1.114. WAIVER OF PHYSICAL REQUIREMENTS IN REDUCTIONS IN FORCE.
(a) If an employing office determines, on the basis of evidence
before it, that a covered employee is preference eligible, the
employing office shall waive, in determining the covered employee's
retention status in a reduction in force:
(1) requirements as to age, height, and weight, unless the
requirement is essential to the performance of the duties of
the position; and
(2) physical requirements if, in the opinion of the
employing office, on the basis of evidence before it, including
any recommendation of an accredited physician submitted by the
employee, the preference eligible covered employee is
physically able to perform efficiently the duties of the
position.
(b) If an employing office determines that a covered employee who
is a preference eligible as a disabled veteran as described in 5 U.S.C.
Sec. 2108(3)(c) and has a compensable service-connected disability of
30 percent or more is not able to fulfill the physical requirements of
the covered position, the employing office shall notify the preference
eligible covered employee of the reasons for the determination and of
the right to respond and to submit additional information to the
employing office within 15 days of the date of the notification. Should
the preference eligible covered employee make a timely response, the
highest ranking individual or group of individuals with authority to
make employment decisions on behalf of the employing office, shall
render a final determination of the physical ability of the preference
eligible covered employee to perform the duties of the covered
position, taking into account the evidence before it, including the
response and any additional information provided by the preference
eligible. When the employing office has completed its review of the
proposed disqualification on the basis of physical disability, it shall
send its findings to the preference eligible covered employee.
(c) Nothing in this section shall relieve an employing office of
any obligation it may have pursuant to the Americans with Disabilities
Act (42 U.S.C. Sec. 12101 et seq.) as applied by section 102(a)(3) of
the CAA, 2 U.S.C. Sec. 1302(a)(3).
SEC. 1.115. TRANSFER OF FUNCTIONS.
(a) When a function is transferred from one employing office to
another employing office, each covered employee in the affected
position classifications or job classifications in the function that is
to be transferred shall be transferred to the receiving employing
office for employment in a covered position for which he/she is
qualified before the receiving employing office may make an appointment
from another source to that position.
(b) When one employing office is replaced by another employing
office, each covered employee in the affected position classifications
or job classifications in the employing office to be replaced shall be
transferred to the replacing employing office for employment in a
covered position for which he/she is qualified before the replacing
employing office may make an appointment from another source to that
position.
Subpart E--Adoption of Veterans' preference policies,
recordkeeping & informational requirements.
Sec.
1.116. Adoption of veterans' preference policy.
1.117. Preservation of records made or kept.
1.118. Dissemination of veterans' preference policies to
applicants for covered positions.
1.119. Information regarding veterans' preference
determinations in appointments.
1.120. Dissemination of veterans' preference policies to
covered employees.
1.121. Written notice prior to a reduction in force.
SEC. 1.116. ADOPTION OF VETERANS' PREFERENCE POLICY.
No later than 120 calendar days following Congressional
approval of this regulation, each employing office that employs one or
more covered employees or that seeks applicants for a covered position
shall adopt its written policy specifying how it has integrated the
veterans' preference requirements of the Veterans Employment
Opportunities Act of 1998 and these regulations into its employment and
retention processes. Upon timely request and the demonstration of good
cause, the Executive Director, in his/her discretion, may grant such an
employing office additional time for preparing its policy. Each such
employing office will make its policies available to applicants for
appointment to a covered position and to covered employees in
accordance with these regulations. The act of adopting a veterans'
preference policy shall not relieve any employing office of any other
responsibility or requirement of the Veterans Employment Opportunity
Act of 1998 or these regulations. An employing office may amend or
replace its veterans' preference policies as it deems necessary or
appropriate, so long as the resulting policies are consistent with the
VEOA and these regulations.
SEC. 1.117. PRESERVATION OF RECORDS MADE OR KEPT.
An employing office that employs one or more covered employees
or that seeks applicants for a covered position shall maintain any
records relating to the application of its veterans' preference policy
to applicants for covered positions and to workforce adjustment
decisions affecting covered employees for a period of at least one year
from the date of the making of the record or the date of the personnel
action involved or, if later, one year from the date on which the
applicant or covered employee is notified of the personnel action.
Where a claim has been brought under section 401 of the CAA against an
employing office under the VEOA, the respondent employing office shall
preserve all personnel records relevant to the claim until final
disposition of the claim. The term ``personnel records relevant to the
claim'', for example, would include records relating to the veterans'
preference determination regarding the person bringing the claim and
records relating to any veterans' preference determinations regarding
other applicants for the covered position the person sought, or records
relating to the veterans' preference determinations regarding other
covered employees in the person's position or job classification. The
date of final disposition of the charge or the action means the latest
of the date of expiration of the statutory period within which the
aggrieved person may file a complaint with the Office or in a U.S.
District Court or, where an action is brought against an employing
office by the aggrieved person, the date on which such litigation is
terminated.
SEC. 1.118. DISSEMINATION OF VETERANS' PREFERENCE POLICIES TO
APPLICANTS FOR COVERED POSITIONS.
(a) An employing office shall state in any announcements and
advertisements it makes concerning vacancies in covered positions that
the staffing action is governed by the VEOA.
(b) An employing office shall invite applicants for a covered
position to identify themselves as veterans' preference eligible
applicants, provided that in doing so:
(1) the employing office shall state clearly on any written
application or questionnaire used for this purpose or make
clear orally, if a written application or questionnaire is not
used, that the requested information is intended for use solely
in connection with the employing office's obligations and
efforts to provide veterans' preference to preference eligible
applicants in accordance with the VEOA; and
(2) the employing office shall state clearly that disabled
veteran status is requested on a voluntary basis, that it will
be kept confidential in accordance with the Americans with
Disabilities Act (42 U.S.C. Sec. 12101 et seq.) as applied by
section 102(a)(3) of the CAA, 2 U.S.C. Sec. 1302(a)(3), that
refusal to provide it will not subject the individual to any
adverse treatment except the possibility of an adverse
determination regarding the individual's status as a preference
eligible applicant as a disabled veteran under the VEOA, and
that any information obtained in accordance with this section
concerning the medical condition or history of an individual
will be collected, maintained and used only in accordance with
the Americans with Disabilities Act (42 U.S.C. Sec. 12101 et
seq.) as applied by section 102(a)(3) of the CAA, 2 U.S.C.
Sec. 1302(a)(3).
(3) the employing office shall state clearly that
applicants may request information about the employing office's
veterans' preference policies as they relate to appointments to
covered positions, and shall describe the employing office's
procedures for making such requests.
(c) Upon written request by an applicant for a covered position, an
employing office shall provide the following information in writing:
(1) the VEOA definition of veterans' ``preference
eligible'' as set forth in 5 U.S.C. Sec. 2108 or any
superseding legislation, providing the actual, current
definition in a manner designed to be understood by applicants,
along with the statutory citation;
(2) the employing office's veterans' preference policy or a
summary description of the employing office's veterans'
preference policy as it relates to appointments to covered
positions, including any procedures the employing office shall
use to identify preference eligible employees;
(3) the employing office may provide other information to
applicants regarding its veterans' preference policies and
practices, but is not required to do so by these regulations.
(d) Employing offices are also expected to answer questions from
applicants for covered positions that are relevant and non-confidential
concerning the employing office's veterans' preference policies and
practices.
SEC. 1.119. INFORMATION REGARDING VETERANS' PREFERENCE DETERMINATIONS
IN APPOINTMENTS.
Upon written request by an applicant for a covered position,
the employing office shall promptly provide a written explanation of
the manner in which veterans' preference was applied in the employing
office's appointment decision regarding that applicant. Such
explanation shall include at a minimum:
(a) the employing office's veterans' preference policy or a summary
description of the employing office's veterans' preference policy as it
relates to appointments to covered positions; and
(b) a statement as to whether the applicant is preference eligible
and, if not, a brief statement of the reasons for the employing
office's determination that the applicant is not preference eligible.
SEC. 1.120. DISSEMINATION OF VETERANS' PREFERENCE POLICIES TO COVERED
EMPLOYEES.
(a) If an employing office that employs one or more covered
employees provides any written guidance to such employees concerning
employee rights generally or reductions in force more specifically,
such as in a written employee policy, manual or handbook, such guidance
must include information concerning veterans' preference under the
VEOA, as set forth in subsection (b) of this regulation.
(b) Written guidances described in subsection (a) above shall
include, at a minimum:
(1) the VEOA definition of veterans' ``preference
eligible'' as set forth in 5 U.S.C. Sec. 2108 or any
superseding legislation, providing the actual, current
definition along with the statutory citation;
(2) the employing office's veterans' preference policy or a
summary description of the employing office's veterans'
preference policy as it relates to reductions in force,
including the procedures the employing office shall take to
identify preference eligible employees.
(3) the employing office may provide other information in
its guidances regarding its veterans' preference policies and
practices, but is not required to do so by these regulations.
(c) Employing offices are also expected to answer questions from
covered employees that are relevant and non-confidential concerning the
employing office's veterans' preference policies and practices.
SEC. 1.121. WRITTEN NOTICE PRIOR TO A REDUCTION IN FORCE.
(a) Except as provided under subsection (c), a covered employee may
not be released due to a reduction in force, unless the covered
employee and the covered employee's exclusive representative for
collective-bargaining purposes (if any) are given written notice, in
conformance with the requirements of paragraph (b), at least 60 days
before the covered employee is so released.
(b) Any notice under paragraph (a) shall include--
(1) the personnel action to be taken with respect to the
covered employee involved;
(2) the effective date of the action;
(3) a description of the procedures applicable in
identifying employees for release;
(4) the covered employee's competitive area;
(5) the covered employee's eligibility for veterans'
preference in retention and how that preference eligibility was
determined;
(6) the retention status and preference eligibility of the
other employees in the affected position classifications or job
classifications within the covered employee's competitive area,
by providing:
(A) a list of all covered employee(s) in the
covered employee's position classification or job
classification and competitive area who will be
retained by the employing office, identifying those
employees by job title only and stating whether each
such employee is preference eligible, and
(B) a list of all covered employee(s) in the
covered employee's position classification or job
classification and competitive area who will not be
retained by the employing office, identifying those
employees by job title only and stating whether each
such employee is preference eligible.
(7) a description of any appeal or other rights which may
be available.
(c) The director of the employing office may, in writing, shorten
the period of advance notice required under subsection (a), with
respect to a particular reduction in force, if necessary because of
circumstances not reasonably foreseeable.
(d) No notice period may be shortened to less than 30 days under
this subsection.
<all>