[105th Congress Public Law 339]
[From the U.S. Government Printing Office]
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[DOCID: f:publ339.105]
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VETERANS EMPLOYMENT OPPORTUNITIES ACT OF 1998
[[Page 112 STAT. 3182]]
Public Law 105-339
105th Congress
An Act
To amend title 5, United States Code, to provide that consideration may
not be denied to preference eligibles applying for certain positions in
the competitive service, and for other purposes. <<NOTE: Oct. 31,
1998 - [S. 1021]>>
Be it enacted by the Senate and House of Representatives of the
United <<NOTE: Veterans Employment Opportunities Act of 1998.>> States
of America in Congress assembled,
SECTION 1. SHORT TITLE. <<NOTE: 5 USC 2101 note.>>
This Act may be cited as the ``Veterans Employment Opportunities Act
of 1998''.
SEC. 2. ACCESS FOR VETERANS.
Section 3304 of title 5, United States Code, is amended by adding at
the end the following:
``(f)(1) Preference eligibles or veterans who have been separated
from the armed forces under honorable conditions after 3 years or more
of active service may not be denied the opportunity to compete for
vacant positions for which the agency making the announcement will
accept applications from individuals outside its own workforce under
merit promotion procedures.
``(2) This subsection shall not be construed to confer an
entitlement to veterans' preference that is not otherwise required by
law.
``(3) The area of consideration for all merit promotion
announcements which include consideration of individuals of the Federal
workforce shall indicate that preference eligibles and veterans who have
been separated from the armed forces under honorable conditions after 3
years or more of active service are eligible to apply. The announcements
shall be publicized in accordance with section 3327.
``(4) The Office of Personnel Management shall establish an
appointing authority to appoint such preference eligibles and
veterans.''.
SEC. 3. 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) <<NOTE: Deadline.>> A complaint under this subsection must
be filed within 60 days after the date of the alleged violation.
[[Page 112 STAT. 3183]]
``(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) <<NOTE: Courts.>> 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) <<NOTE: Notification.>> 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--
[[Page 112 STAT. 3184]]
``(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) <<NOTE: Deadline.>> 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) <<NOTE: Regulations.>> 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. <<NOTE: Effective
date.>> 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:
``3330a. Preference eligibles; administrative redress.
``3330b. Preference eligibles; judicial redress.
``3330c. Preference eligibles; remedy.''.
[[Page 112 STAT. 3185]]
SEC. 4. 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 <<NOTE: Notification.>> 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.-- <<NOTE: 2 USC 1316a.>>
(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
[[Page 112 STAT. 3186]]
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.-- <<NOTE: 28 USC 601 note.>>
(1) <<NOTE: Procedures.>> 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;
[[Page 112 STAT. 3187]]
(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. 5. <<NOTE: 49 USC 106 note.>> 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. 6. 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
[[Page 112 STAT. 3188]]
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) <<NOTE: 5 USC 2302 note.>> 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. 7. 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)--
(A) by striking out ``$10,000'' and inserting in
lieu thereof ``$25,000''; and
(B) 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 any other veterans who served on active
duty during a war or in a campaign or expedition for
which a campaign badge has been authorized'';
(2) in subsection (b), by striking out ``special disabled
veteran or veteran of the Vietnam era'' and inserting in lieu
thereof ``veteran covered by the first sentence of subsection
(a)''; and
(3) in subsection (d)(1), by striking out ``veterans of the
Vietnam era or special disabled veterans'' both places it
appears
[[Page 112 STAT. 3189]]
and inserting in lieu thereof ``special disabled veterans,
veterans of the Vietnam era, or other veterans who served on
active duty during a war or in a campaign or expedition for
which a campaign badge has been authorized''.
(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) <<NOTE: Records.>> The Secretary of Labor shall make
available in a database a list of the contractors that have complied
with the provisions of such section 4212(d).''.
(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. 8. 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
section 7(a)(3) of this Act, 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
[[Page 112 STAT. 3190]]
(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.''.
Approved October 31, 1998.
LEGISLATIVE HISTORY--S. 1021 (H.R. 240):
---------------------------------------------------------------------------
HOUSE REPORTS: No. 105-40, Pt. 1 accompanying H.R. 240 (Comm. on
Government Reform and Oversight).
SENATE REPORTS: No. 105-340 (Comm. on Veterans' Affairs).
CONGRESSIONAL RECORD, Vol. 144 (1998):
Oct. 5, considered and passed Senate.
Oct. 8, considered and passed House.
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