UNITED STATES CODE. *** CURRENT as of 5/29/03 *** TITLE 38. VETERANS' BENEFITS PART III. READJUSTMENT AND RELATED BENEFITS

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1 UNITED STATES CODE *** CURRENT as of 5/29/03 *** TITLE 38. VETERANS' BENEFITS PART III. READJUSTMENT AND RELATED BENEFITS CHAPTER 42. EMPLOYMENT AND TRAINING OF VETERANS 38 USCS prec 4201 (2003) Preceding 4201 HISTORY; ANCILLARY LAWS AND DIRECTIVES Amendments: Act Oct. 24, 1972, P.L , Title V, 503(a), 86 Stat (effective 90 days after 10/24/72, as provided by 601(b) of such Act) added the chapter heading and chapter analysis Act Dec. 3, 1974, P.L , Title IV, 403(b), 88 Stat (effective 12/3/74, as provided by 503 of such Act), amended the analysis of this chapter by adding item Act Oct. 17, 1980, P.L , Title VIII, 801(k)(2)(B), 94 Stat. 2217, amended the analysis of this chapter by substituting item 2013 for one which read: "2013. Eligibility requirements for veterans under certain Federal manpower training programs." Act March 22, 1991, P.L , 9(c)(1), 105 Stat. 55, applicable as provided by 9(d) of such Act, which appears as 38 USCS 2014 note, amended the chapter heading by deleting "DISABLED AND VIETNAM ERA" preceding "VETERANS". Act Aug. 6, 1991, P.L , 5(b)(1), 105 Stat. 406, revised the analysis of this Chapter by amending the section numbers in accordance with the redesignations made by 5(a) of such Act (see Table III preceding 38 USCS 101) Act Nov. 7, 2002, P.L , 2(a)(2), 116 Stat. 2034, amended the analysis of this chapter by adding item [ Transferred] 38 USCS 4201 (2003) HISTORY; ANCILLARY LAWS AND DIRECTIVES These sections ( Act Sept. 2, 1958, P.L , 1, 72 Stat. 1248; Act Sept. 2, 1958, P.L , 1, 72 Stat. 1248; July 28, 1959, P.L , 1, 73 Stat. 258; Oct. 21, 1976, P.L , Title II, 201(d), 90 Stat. 2864; Oct. 12, 1982, P.L , 4(88), 96 Stat. 1312; Oct. 28, 1986, P.L , Title VII, 702(13), 100 Stat. 3302; Act Sept. 2, 1958, P.L , 1, 72 Stat. 1249; Act Sept. 2, 1958, P.L , 1, 72 Stat. 1250; June 6, 1972, P.L , Title II, Part 1, 209, 86 Stat. 204; Oct. 28, 1986, P.L , Title VII, 702(14), 100 Stat. 3302; Act Sept. 2, 1958, P.L , 1, 72 Stat. 1250; May 20, 1988, P.L , Title IV, Part B, 414(a)(1), 102 Stat. 549; Act Sept. 2, 1958, P.L , 1, 72 Stat. 1250; Sept. 13, 1982, P.L , 3(k)(8), 96 Stat. 1065; May 20, 1988, P.L , Title IV, Part B, 414(a)(2), 102 Stat. 549; Act Sept. 2, 1958, P.L , 1, 72 Stat. 1250; Jan. 2, 1975, P.L , Title VII, 704, 88 Stat. 1964; Oct. 12, 1982, P.L , 4(89), 96 Stat. 1312; Jan. 12, 1983, P.L , 2(e)(3), 96 Stat. 2479; Act Sept. 2, 1958, P.L , 1, 72 Stat. 1250; Oct. 12, 1982, P.L , 4(90), 96 Stat. 1312; Act May 20, 1988, P.L , Title IV, Part B, 412(a), 102 Stat. 547; Act May 20, 1988, P.L , Title IV, Part B, 414(b)(1), 102 Stat. 549) were transferred by Act May 7, 1991, P.L , Title IV, 402(b)(1), 105 Stat. 238, and appear as 38 USCS 7801 et seq.

2 38 USCS 4211 (2003) Definitions As used in this chapter [38 USCS 4211 et seq.]-- (1) The term "special disabled veteran" means-- (A) a veteran who is entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Secretary for a disability (i) rated at 30 percent or more, or (ii) rated at 10 or 20 percent in the case of a veteran who has been determined under section 3106 of this title to have a serious employment handicap; or (B) a person who was discharged or released from active duty because of service-connected disability. (2) The term "veteran of the Vietnam era" means an eligible veteran any part of whose active military, naval, or air service was during the Vietnam era. (3) The term "disabled veteran" means (A) a veteran who is entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Secretary, or (B) a person who was discharged or released from active duty because of a service-connected disability. (4) The term "eligible veteran" means a person who-- (A) served on active duty for a period of more than 180 days and was discharged or released therefrom with other than a dishonorable discharge; (B) was discharged or released from active duty because of a service-connected disability; or (C) as a member of a reserve component under an order to active duty pursuant to section 12301(a), (d), or (g), 12302, or of title 10, served on active duty during a period of war or in a campaign or expedition for which a campaign badge is authorized and was discharged or released from such duty with other than a dishonorable discharge. (5) The term "department or agency" means any agency of the Federal Government or the District of Columbia, including any Executive agency as defined in section 105 of title 5 and the United States Postal Service and the Postal Rate Commission, and the term "department, agency, or instrumentality in the executive branch" includes the United States Postal Service and the Postal Rate Commission. (6) [Caution: For provisions of this paragraph applicable with respect to contracts entered into before Dec. 1, 2003, see note below relating to amendments made by Act Nov. 7, 2002.] The term "recently separated veteran" means any veteran during the three-year period beginning on the date of such veteran's discharge or release from active duty. HISTORY: (Added Oct. 24, 1972, P.L , Title V, 503(a), 86 Stat. 1097; Oct. 15, 1976, P.L , Title VI, 607(1), 90 Stat. 2405; Oct. 17, 1980, P.L , Title V, 508, 94 Stat. 2206; Oct. 14, 1982, P.L , Title III, 309, 96 Stat. 1441; March 2, 1984, P.L , Title II, 206, 98 Stat. 43; Dec. 18, 1989, P.L , Title IV, 407(a)(2), 103 Stat. 2082; March 22, 1991, P.L , 1, 105 Stat. 48; June 13, 1991, P.L , 14(c)(9), 105 Stat. 285; Aug. 6, 1991, P.L , 4(a)(1), 5(a), (c)(1), 105 Stat. 403, 406; Oct. 10, 1991, P.L , 5, 105 Stat. 622; Oct. 29, 1992, P.L , Title V, 502, 106 Stat. 4340; Feb. 10, 1996, P.L , Div A, Title XV, 1501(e)(2)(D), 110 Stat. 501.) (As amended Nov. 1, 2000, P.L , Title III, Subtitle C, 322(c), 114 Stat. 1855; Nov. 7, 2002, P.L , 2(b)(2)(D), 116 Stat ) HISTORY; ANCILLARY LAWS AND DIRECTIVES Explanatory notes: A prior 2011, contained in Subchapter II of former Chapter 41, was transferred to 38 USCS 2002 by Act Sept. 19, 1962, P.L , 1(a), 76 Stat. 558.

3 38 USCS 4211 Page 3 Effective date of section: Act Oct. 24, 1972, P.L , Title VI, 601(b), 86 Stat. 1099, provided that this section is effective 90 days after Oct. 24, Amendments: Act Oct. 15, 1976 (effective 12/1/76, as provided by 703(c) of such Act, which appears as 38 USCS 3693 note), in para. (2), substituted "the person's" for "his" Act Oct. 17, 1980 (effective 10/1/80, as provided by 802(e) of such Act, which appears as 38 USCS 4101 note), substituted new section for one which read: "As used in this chapter-- "(1) The term 'disabled veteran' means a person entitled to disability compensation under laws administered by the Veterans' Administration for a disability rated at 30 per centum or more, or a person whose discharge or release from active duty was for a disability incurred or aggravated in line of duty. "(2) The term 'veteran of the Vietnam era' means a person (A) who (i) served on active duty for a period of more than 180 days, any part of which occurred during the Vietnam era, and was discharged or released therefrom with other than a dishonorable discharge, or (ii) was discharged or released from active duty for a service-connected disability if any part of such active duty was performed during the Vietnam era, and (B) who was so discharged or released within the 48 months preceding the person's application for employment covered under this chapter. "(3) The term 'department and agency' means any department or agency of the Federal Government or any federally owned corporation." Act Oct. 14, 1982, in paras. (1) and (3), inserted "(or who but for the receipt of military retired pay would be entitled to compensation)"; and, in para. (5), inserted "and the United States Postal Service and the Postal Rate Commission, and the term 'department, agency, or instrumentality in the executive branch' includes the United States Postal Service and the Postal Rate Commission" Act March 2, 1984 substituted para. (1) for one which read: "The term 'special disabled veteran' means (A) a veteran who is entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Veterans' Administration for a disability rated at 30 percent or more, or (B) a person who was discharged or released from active duty because of a service-connected disability." Act Dec. 18, 1989 (effective 1/1/90 as provided by 407(c) of such Act, which appears as a note to this section), in para. (2)(B), inserted "except for purposes of section 2014 of this title" Act March 22, 1991, in para. (2)(B), substituted "1994" for "1991". Act June 13, 1991, in para. (2)(B), inserted a comma before "except for". Act Aug. 6, 1991, redesignated this section, formerly 38 USCS 2011, as 38 USCS 4211, and amended the references in this section to reflect the redesignations made by 5(a) of such Act (see Table III preceding 38 USCS 101). Such Act further, in paras. (1)(A) and (3), substituted "administered by the Secretary" for "administered by the Veterans' Administration". Act Oct. 10, 1991 substituted para. (4) for one which read: "The term 'eligible veteran' means a person who (A) served on active duty for a period of more than 180 days and was discharged or released therefrom with other than a dishonorable discharge, or (B) was discharged or released from active duty because of a service-connected disability." Act Oct. 29, 1992, in para. (2), substituted "The term" for "(A) Subject to subparagraph (B) of this paragraph, the term", and deleted subpara. (B), which read: "(B) No veteran may be considered to be a veteran of the Vietnam era under this paragraph after December 31, 1994, except for purposes of section 4214 of this title." Act Feb. 10, 1996 (effective as if included in Act Oct. 5, 1995, P.L , as enacted on Oct. 5, 1994, as provided by 1501(f)(3) of Act Feb. 10, 1996, which appears as 10 USCS 113 note), in para. (4)(C), substituted "section 12301(a), (d), or (g), 12302, or of title 10" for "section 672 (a), (d), or (g), 673, or 673b of title 10" Act Nov. 1, 2000 added para. (6) Act Nov. 7, 2002 (applicable to contracts entered into on or after 12/1/2003, as provided by 2(b)(3) of such Act, which appears as a note to this section), in para. (6), substituted "three-year period" for "one-year period". Other provisions: Effective date of Dec. 18, 1989 amendments. Act Dec. 18, 1989, P.L , Title IV, 407(c), 103 Stat. 2083, provides: "The amendments made by this section [amending 38 USCS 4211(2)(B) and 4214] shall take effect on January 1, 1990.".

4 38 USCS 4211 Page 4 Application of Nov. 7, 2002 amendments. Act Nov. 7, 2002, P.L , 2(b)(3), 116 Stat. 2036, provides: "The amendments made by this subsection [amending 38 USCS 4211(6) and 4212] shall apply with respect to contracts entered into on or after the first day of the first month that begins 12 months after the date of the enactment of this Act.". NOTES: CODE OF FEDERAL REGULATIONS Office of Federal Contract Compliance Programs, Equal Employment Opportunity; Department of Labor--Affirmative action obligations of contractors and subcontractors for disabled veterans of the Vietnam era, 41 CFR Part CROSS REFERENCES This section is referred to in 15 USCS 1022a: 38 USCS 4101, 4214; 42 USCS RESEARCH GUIDE Am Jur: 45A Am Jur 2d, Job Discrimination 21-26, , B Am Jur 2d, Job Discrimination Am Jur 2d, Veterans and Veterans' Laws 101, 102.

5 38 USCS 4212 Page 5 38 USCS 4212 (2003) Veterans' employment emphasis under Federal contracts [Caution: For provisions applicable with respect to contracts entered into before Dec. 1, 2003, see note below relating to amendments made by Act Nov. 7, 2002.] (a) (1) Any contract in the amount of $ 100,000 or more entered into by any department or agency of the United States for the procurement of personal property and nonpersonal services (including construction) for the United States, shall contain a provision requiring that the party contracting with the United States take affirmative action to employ and advance in employment qualified covered veterans. This section applies to any subcontract in the amount of $ 100,000 or more entered into by a prime contractor in carrying out any such contract. (2) In addition to requiring affirmative action to employ such qualified covered veterans under such contracts and subcontracts and in order to promote the implementation of such requirement, the Secretary of Labor shall prescribe regulations requiring that-- (A) each such contractor for each such contract shall immediately list all of its employment openings with the appropriate employment service delivery system (as defined in section 4101(7) of this title), and may als o list such openings with one-stop career centers under the Workforce Investment Act of 1998, other appropriate service delivery points, or America's Job Bank (or any additional or subsequent national electronic job bank established by the Department of Labor), except that the contractor may exclude openings for executive and senior management positions and positions which are to be filled from within the contractor's organization and positions lasting three days or less; (B) each such employment service delivery system shall give such qualified covered veterans priority in referral to such employment openings; and (C) each such employment service delivery system shall provide a list of such employment openings to States, political subdivisions of States, or any private entities or organizations under contract to carry out employment, training, and placement services under chapter 41 of this title [38 USCS 4100 et seq.]. (3) In this section: (A) The term "covered veteran" means any of the following veterans: (i) Disabled veterans. (ii) Veterans who served on active duty in the Armed Forces during a war or in a campaign or expedition for which a campaign badge has been authorized. (iii) Veterans who, while serving on active duty in the Armed Forces, participated in a United States military operation for which an Armed Forces service medal was awarded pursuant to Executive Order No (61 Fed. Reg. 1209) [10 USCS prec 1121 note]. (iv) Recently separated veterans. (B) The term "qualified", with respect to an employment position, means having the ability to perform the essential functions of the position with or without reasonable accommodation for an individual with a disability. (b) If any veteran covered by the first sentence of subsection (a) 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) The Secretary of Labor shall include as part of the annual report required by section 4107(c) of this title the number of complaints filed pursuant to subsection (b) of this section, the actions taken thereon and the resolutions thereof. Such report shall also include the number of contractors listing employment openings, the nature, types, and number of positions listed and the number of veterans receiving priority pursuant to subsection (a)(2)(b). (d) (1) Each contractor to whom subsection (a) 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 workforce of such contractor, by job category and hiring location, and the number of such employees, by job category and hiring location, who are qualified covered veterans; (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 qualified covered veterans; and (C) the maximum number and the minimum number of employees of such contractor during the period covered by the report.

6 38 USCS 4212 Page 6 (2) The Secretary of Labor shall ensure that the administration of the reporting requirement under paragraph (1) is coordinated with respect to any requirement for the contractor to make any other report to the Secretary of Labor. HISTORY: (Added Oct. 24, 1972, P.L , Title V, 503(a), 86 Stat. 1097; Dec. 3, 1974, P.L , Title IV, 402, 88 Stat. 1593; Oct. 15, 1976, P.L , Title VI, 605, 607(2), 90 Stat. 2405; Oct. 26, 1978, P.L , 6(a), 92 Stat. 1821; Oct. 17, 1980, P.L , Title V, 509, Title VIII, 801(j), 94 Stat. 2206, 2217; Oct. 14, 1982, P.L , Title III, 310(a), 96 Stat. 1442; Aug. 6, 1991, P.L , 4(b)(8), 5(a), (c)(1), 105 Stat. 405, 406; Nov. 2, 1994, P.L , Title VII, 702(a), 108 Stat ) (As amended Oct. 31, 1998, P.L , 7(a), 8, 112 Stat. 3188, 3189; Nov. 1, 2000, P.L , Title III, Subtitle C, 322(a), (b), 114 Stat. 1855; Nov. 7, 2002, P.L , 2(b)(1), (2)(A)-(C), 116 Stat ) HISTORY; ANCILLARY LAWS AND DIRECTIVES References in text: The "Workforce Investment Act of 1998", referred to in this section, is Act Aug. 7, 1998, P.L , which appears generally as 20 USCS 9201 et seq. and 29 USCS 2801 et seq. For full classification of such Act, consult USCS Tables volumes. Explanatory notes: A prior 2012, contained in Subchapter II of former Chapter 41, was transferred to 38 USCS 2003 by Act Sept. 19, 1962, P.L , 1(a), 76 Stat Effective date of section: Act Oct. 24, 1972, P.L , Title VI, 601(b), 86 Stat. 1099, provided that this section is effective 90 days after Oct. 24, Amendments: Act Dec. 3, 1974 (effective 12/3/74, as provided by 503 of such Act, which appears as 38 USCS 3452 note), in subsec. (a), inserted "in the amount of $ 10,000 or more", deleted ", in employing persons to carry out such contract," following "a provision requiring that", substituted "take affirmative action to employ and advance in employment" for "give special emphasis to the employment of", and substituted "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" for "The"; and in subsec. (b), substituted "the employment of" for "giving special emphasis in employment to" Act Oct. 15, 1976 (effective 12/1/76, as provided by 703(c) of such Act, which appears as 38 USCS 3693 note), in subsec. (b), substituted "the contractor's" for "his"; and added subsec. (c) Act Oct. 26, 1978, in subsec. (b), inserted ", or if any veteran who is entitled to disability compensation under the laws administered by the Veterans' Administration believes that any such contractor has discriminated against such veteran because such veteran is a handicapped individual within the meaning of section 7(6) of the Rehabilitation Act of 1973 (29 U.S.C. 706(6))" Act Oct. 17, 1980 (effective 10/1/80, as provided by 802(e), (h) of such Act), in subsec. (a), inserted "special", and substituted "which" for "within 60 days after the date of enactment of this section, which regulations"; and substituted new subsec. (b) for one which read: "(b) If any disabled veteran or veteran of the Vietnam era believes any contractor has failed or refuses to comply with the provisions of the contractor's contract with the United States, relating to the employment of veterans, or if any veteran who is entitled to disability compensation under the laws administered by the Veterans' Administration believes that any such contractor has discriminated against such veteran because such veteran is a handicapped individual within the meaning of section 7(6) of the Rehabilitation Act of 1973 (29 U.S.C. 706(6)), such veteran may file a complaint with the Veterans' Employment Service of the Department of Labor. Such complaint shall be promptly referred to the Secretary who shall promptly investigate such complaint and shall take such action thereon as the facts and circumstances warrant consistent with the terms of such contract and the laws and regulations applicable thereto." Act Oct. 14, 1982 added subsec. (d) Act Aug. 6, 1991, redesignated this section, formerly 38 USCS 2012, as 38 USCS 4212, amended the references in this section to reflect the redesignations made by 5(a) of such Act (see Table III preceding 38 USCS 101), and, in subsecs. (c) and (d), substituted "Secretary of Labor" for "Secretary" wherever appearing.

7 38 USCS 4212 Page Act Nov. 2, 1994, in subsec. (a), substituted "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," for "all of its suitable employment openings," Act Oct. 31, 1998, in subsec. (a), substituted "$ 25,000" for "$ 10,000" and substituted "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" for "special disabled veterans and veterans of the Vietnam era"; in subsec. (b), substituted "veteran covered by the first sentence of subsection (a)" for "special disabled veteran or veteran of the Vietnam era"; and, in subsec. (d)(1), in subpara. (A), substituted "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" for "veterans of the Vietnam era or special disabled veterans" and deleted "and" after the concluding semicolon, in subpara. (B), substituted "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" for "veterans of the Vietnam era or special disabled veterans" and substituted "; and" for a concluding period, and added subpara. (C) Act Nov. 1, 2000, in subsecs. (a) and (d)(1)(a) and (B), inserted "recently separated veterans," Act Nov. 7, 2002 (applicable with respect to contracts entered into on or after 12/1/2003, as provided by 2(b)(3) of such Act, which appears as 38 USCS 4211 note), substituted subsec. (a) for one which read: "(a) Any contract in the amount of $ 25,000 or more entered into by any department or agency for the procurement of personal property and nonpersonal 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, veterans of the Vietnam era, recently separated veterans, 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. 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."; in subsec. (c), deleted "suitable" preceding "employment", and substituted "subsection (a)(2)(b)" for "subsection (a)(2) of this section"; and, in subsec. (d), in para. (1), in the introductory matter, deleted "of this section" following "subsection (a)", and substituted subparas. (A) and (B) for ones which read: "(A) the number of employees in the work force of such contractor, by job category and hiring location, who are special disabled veterans, veterans of the Vietnam era, recently separated veterans, 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) 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 special disabled veterans, veterans of the Vietnam era, recently separated veterans, 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; and", and, in para. (2), deleted "of this subsection" following "paragraph (1)". Other provisions: Employment of veterans by federal agencies and government contractors and subcontractors. Ex. Or. No of Jan. 24, 1973, 38 Fed. Reg. 2675, provided: On June 16, 1971, I issued Executive Order No to facilitate the employment of returning veterans by requiring Federal agencies and Federal contractors and their subcontractors to list employment openings with the employment service systems. Section 503 of the Vietnam Era Veterans' Readjustment Assistance Act of 1972 (Public Law ; 86 Stat. 1097) added a new section 2012 [now section 4212] to Title 38 of the United States Code which, in effect, provides statutory authority to extend the program developed under that order with respect to Government contractors and their subcontractors. NOW, THEREFORE, by virtue of the authority vested in me by section 301 of Title 3 of the United States Code and as President of the United States, it is hereby ordered as follows:

8 38 USCS 4212 Page 8 Section 1. The Secretary of Labor shall issue rules and regulations requiring each department and agency of the executive branch of the Federal Government to list suitable employment openings with the appropriate office of the State Employment Service or the United States Employment Service. This section shall not be construed as requiring the employment of individuals referred by such office or as superseding any requirements of the Civil Service Laws. Rules, regulations, and orders to implement this section shall be developed in consultation with the Civil Service Commission. Sec. 2. The Secretary of Labor is hereby designated and empowered to exercise, without the approval, ratification, or other action of the President, the authority of the President under Section 2012 [now section 4212] of Title 38 of the United States Code. Sec. 3. The Secretary of Labor shall gather information on the effectiveness of the program established under this order and Section 2012 [now section 4212] of Title 38 of the United States Code and of the extent to which the employment service system is fulfilling the employment needs of veterans. The Secretary of Labor shall, from time to time, report to the President concerning his evaluation of the effectiveness of this order along with his recommendations for further action which the Secretary believes to be appropriate. Sec. 4. Appropriate departments and agencies shall, in consultation with the Secretary of Labor, issue such amendments or additions to procurement rules and regulations as may be necessary to carry out the purposes of this order and Section 2012 [now section 4212] of Title 38 of the United States Code. Except as otherwise provided by law, all executive departments and agencies are directed to cooperate with the Secretary of Labor, to furnish the Secretary of Labor with such information and assistance as he may require in the performance of his functions under this order, and to comply with rules, regulations, and orders of the Secretary. Sec. 5. Executive Order No of June 16, 1971, is hereby superseded. Secretary to prescribe regulations. Act Oct. 14, 1982, P.L , Title III, 310(b), 96 Stat. 1442, provides: "Within 90 days after the date of the enactment of this Act, the Secretary of Labor shall prescribe regulations under subsection (d) of section 2012 of Title 38, United States Code [subsec. (d) of this section], as added by the amendment made by subsection (a).". NOTES: CODE OF FEDERAL REGULATIONS Office of Federal Contract Compliance Programs, Equal Employment Opportunity; Department of Labor--Rules of practice for administrative proceedings to enforce equal opportunity under Executive Order 11246, 41 CFR Part Office of Federal Contract Compliance Programs, Equal Employment Opportunity; Department of Labor--Affirmative action obligations of contractors and subcontractors for disabled veterans of the Vietnam era, 41 CFR Part CROSS REFERENCES This section is referred to in 29 USCS 1755; 38 USCS 3116, 4102A, 4103, RESEARCH GUIDE Federal Procedure: 21 Fed Proc L Ed, Job Discrimination 50:474, 477, 486, 498, 547, 584. Am Jur: 45A Am Jur 2d, Job Discrimination 21-26, , , 390, B Am Jur 2d, Job Discrimination 760, 1365, 1369, 1374, 1675, Am Jur 2d, Veterans and Veterans' Laws 102, 107. Annotations: Availability of private right of action under 503 of Rehabilitation Act of 1973 (29 USCS 793), providing that certain federal contracts must contain provision requiring affirmative action to employ qualified handicapped individuals. 60 ALR Fed 329. Employee's inability to work particular hours due to disability as grounds for termination or refusal of employment, notwithstanding federal statute or regulation requiring employer to make reasonable accommodation of disability. 116 ALR Fed 485.

9 38 USCS 4212 Page 9 Law Review Articles: Choper. The Constitutionality of Affirmative Action: Views from the Supreme Court. 70 Kentucky L J 1, INTERPRETIVE NOTES AND DECISIONS 1. Generally 2. Application 3. Complaints 4. Private right of action 5. Judicial review 6. Miscellaneous 1. Generally While there is no obligation to make unreasonable efforts to accommodate handicapped employees under 38 USCS 2012 [now 38 USCS 4212], more than "evenhanded approach" is required; to determine whether federal contractor has violated 38 USCS 2012 [now 38 USCS 4212] consideration should be given whether handicapped individual is qualified to perform job in question despite existence of handicap and, if not, whether employee could with reasonable employer accommodation perform that job or some other job for same employer, whether requirements stated in official job description match those actually required to perform job, size of contractor, number of employees in job category which handicapped individual seeks to enter, and whether contractor's overall work-force is expanding or shrinking in numbers. OFCCP Policy Directive 80-34, Sep. 30, Discrimination in employment practices against handicapped veterans includes discrimination in hiring, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeships. OFCCP Order No. 720a1, April 5, Application For purposes of federal contract compliance laws, University of North Carolina system is single state agency and noncontracting campuses therefore must submit to compliance reviews regardless of whether they are direct participants in any federal contract. Board of Governors of University of North Carolina v United States Dep't of Labor (1990, CA4 NC) 917 F2d 812, 1 AD Cas 1704, 54 BNA FEP Cas 136, 135 BNA LRRM 2760, 36 CCF P 75959, 55 CCH EPD P 40370, cert den (1991) 500 US 916, 114 L Ed 2d 100, 111 S Ct 2013, 55 BNA FEP Cas 1104, 56 CCH EPD P Where 11 of 16 campuses in state university system had received federal contracts, campuses that did not enter contracts with federal government were nonetheless subject to affirmative action requirements of 29 USCS 793 and Vietnam Era Veterans Readjustment Assistance Act of 1974 (38 USCS 4212), since university system was single state agency of which non-contracting campuses were merely constituent parts. Board of Governors of University of North Carolina v United States Dep't of Labor (1990, CA4 NC) 917 F2d 812, 1 AD Cas 1704, 54 BNA FEP Cas 136, 135 BNA LRRM 2760, 36 CCF P 75959, 55 CCH EPD P 40370, cert den (1991) 500 US 916, 114 L Ed 2d 100, 111 S Ct 2013, 55 BNA FEP Cas 1104, 56 CCH EPD P Department of Labor's order canceling future government contracting with all University of North Carolina constituent institutions for failure of some institutions to comply with regulations implementing employment laws was not erroneous; both 29 USCS 793(a) and 38 USCS 2012 [now 38 USCS 4212], requiring affirmative action to employ handicapped and Vietnam veterans, apply to "parties contracting" with U.S., and for purposes of such laws the University of North Carolina system constitutes a single, unified state agency, and campuses which have not entered contracts with the federal government must, nontheless, submit to compliance review. Board of Governors of University of North Carolina v United States Dep't of Labor (1990, CA4 NC) 917 F2d 812, 1 AD Cas 1704, 54 BNA FEP Cas 136, 135 BNA LRRM 2760, 36 CCF P 75959, 55 CCH EPD P 40370, cert den (1991) 500 US 916, 114 L Ed 2d 100, 111 S Ct 2013, 55 BNA FEP Cas 1104, 56 CCH EPD P Plaintiff's employer fire department was not party to federal procurement contract so as to make provisions of Vietnam Era Veterans' Readjustment Assistance Act applicable to it; grant agreements are not procurement contracts, including that with Federal Emergency Management Agency, whose purpose was to carry out public purpose authorized by federal statute, not to procure property or services for direct benefit of U.S. government, and separate employment relationship between government and employees in event of catastrophe does not change FEMA agreement into procurement contract. Partridge v Reich (1998, CA9 Nev) 141 F3d 920, 98 CDOS 2500, 98 Daily Journal DAR 3459, 157 BNA LRRM Secretary of Labor does not have jurisdiction under 38 USCS 2012 [now 38 USCS 4212] to hear complaint that state division of employment security does not comply with provisions of Vietnam Era Veterans Readjustment

10 38 USCS 4212 Page 10 Assistance Act ( 2011 et seq. [now 4211 et seq.]), since agreements between state agency and Department of Labor constitute grants rather than contracts within meaning of 2012 [now 4212]. Hammond v Donovan (1982, WD Mo) 538 F Supp 1106, 113 BNA LRRM 3599, 30 CCF P 70266, 30 CCH EPD P Complaints must be filed with Office of Fedral Contract Compliance Programs within 180 days of date of alleged violation unless time for filing is extended for good cause shown; date of filing is date complaint is first received in writing by office, and request for complaint form of verbal notice of intent to file complaint is not sufficient is establish filing date; filing or processing of grievance under collective bargaining agreement does not extend filing period; date of alleged violation is date complainant knew or reasonably should have known of alleged discriminatory act or violation. OFCCP Order No. 630a5, March 10, Complaints Where veteran's complaint alleged that his employer violated 2012 [now 4212] by refusing to rehire him after he had voluntarily quit, allegation that employer tried to intimidate him from taking his complaint to Department of Labor was irrelevant to determination whether denial of complaint was abuse of discretion, since alleged intimidation came after refusal to rehire. Clementson v Donovan (1985, DC Hawaii) 608 F Supp 152, 121 BNA LRRM 3118, 36 CCH EPD P 35061, 102 CCH LC P 11429, affd (1986, CA9 Hawaii) 806 F2d 1402, 124 BNA LRRM 2422, 33 CCF P 74923, 42 CCH EPD P Private right of action Under 38 USCS 2012 [now 38 USCS 4212], Vietnam veteran did not have private right of action against private government contractor for failing to comply with hiring provisions of 2012 [now 4212], since review of legislative intent indicates Congress intended that enforcement and supervision of affirmative action hiring policy of 2012 [now 4212] is left to Department of Labor to which veteran could forward a complaint. Barron v Nightingale Roofing, Inc. (1988, CA1 Me) 842 F2d 20, 127 BNA LRRM 2996, 34 CCF P 75462, 46 CCH EPD P Vietnam Era Veterans' Readjustment Assistance Act does not expressly provide for private actions; veterans who believe themselves to be victims of discrimination may complain to labor secretary, who enforces act administratively. Harris v Adams (1989, CA6 Mich) 873 F2d 929, 1 AD Cas 1475, 49 BNA FEP Cas 1304, 131 BNA LRRM 2405, 50 CCH EPD P Scope of 38 USCS 2012 [now 38 USCS 4212], as it existed prior to amendment of December 3, 1974, was limited to assuring listing of job openings with state employment agencies and to preference of certain veterans in referrals by those agencies, and it imposed no duties and created no rights with respect to employer's decision to hire or not to hire; thus, disabled veteran could not maintain action under 38 USCS 2012 [now 38 USCS 4212], as it read prior to amendment by act December 3, 1974, against prospective employer for failure to be hired due to serviceconnected disability. Wood v Diamond State Tel. Co. (1977, DC Del) 440 F Supp 1003, 18 BNA FEP Cas 647, 16 CCH EPD P There is no private right of action for violation of 38 USCS 2012 [now 38 USCS 4212]. Butler v McDonnell- Douglas Saudi Arabia Corp. (1981, SD Ohio) 93 FRD 384, 110 BNA LRRM There is no private right of action under 38 USCS 2012 [now 38 USCS 4212], nor may state claim be maintained under third-party beneficiary theory. Stephens v Roadway Express Co. (1982, ND Ga) 37 BNA FEP Cas 1104, 119 BNA LRRM 2312, 29 CCH EPD P 32941, 95 CCH LC P USCS 2012 [now 38 USCS 4212] establishes no private cause of action and provides no authority for aggrieved veterans to file suit in federal court, but is designed to provide remedy, through Department of Labor, against contractors who discriminate against such veterans or that fail to comply with affirmative action provision embodied therein. De Leon Cruz v Loubriel (1982, DC Puerto Rico) 539 F Supp 250. University employee's claims against employer must be denied summarily, to extent they are based on noncompliance with university's conciliation agreement settling its alleged violations of 38 USCS 4212, because (1) evidence that he served in military only until July 1964 leaves him outside definition of "Vietnam era veteran," and (2) 4212 does not provide vehicle to assert violation of agreement, and neither do 42 USCS 1983 or Brace v Ohio State Univ. (1994, SD Ohio) 866 F Supp USCS 4212 does not create private right of action for veterans alleging employment discrimination. Stefanovic v University of Tennessee (1996, ED Tenn) 935 F.Supp. 944, remanded on other grounds (1998, CA6 Tenn) 1998 US App LEXIS Vietnam War veteran not hired to work as laborer on federal highway construction project has Vietnam Era Veterans Readjustment Assistance Act claim denied summarily, where it appears from language of statute that Congress intended

11 38 USCS 4212 Page 11 persons protected under this statute to file complaint with Labor Secretary, because there is no private right of action under 38 USCS Ledbetter v Koss Constr. Co. (1997, DC Kan) 981 F Supp Complaint alleging violation of 38 USCS 4212 is dismissed with prejudice, where veteran was terminated for alleged poor job performance on March 1, 1994 and claims he was discriminated against on basis of veteran status, even if such discrimination could be shown, because Congress chose not to create private right of action by which veterans may sue employers. Phillips v Merchants Ins. Group (1998, ND NY) 990 F Supp Judicial review In absence of abandonment of statutory responsiblity, Secretary of Labor's decision to forego enforcement action under 2012 [now 4212] against federal contractor who failed to rehire disabled Vietnam Veteran who had resigned his position and then reapplied for same position was immune from judicial review since enforcement decision is within agency discretion. Clementson v Brock (1986, CA9 Hawaii) 806 F2d 1402, 124 BNA LRRM 2422, 33 CCF P 74923, 42 CCH EPD P Record before court in veteran's suit seeking review of adverse determination by Department of Labor on his complaint asserting that employer violated 2012 [now 4212] was sufficient to support summary judgment notwithstanding that administrative record was not before court, where written complaints, agency's summary of evidence, and agency's recommended findings and reasons therefor were before court. Clementson v Donovan (1985, DC Hawaii) 608 F Supp 152, 121 BNA LRRM 3118, 36 CCH EPD P 35061, 102 CCH LC P 11429, affd (1986, CA9 Hawaii) 806 F2d 1402, 124 BNA LRRM 2422, 33 CCF P 74923, 42 CCH EPD P Review of Secretary of Labor's decision to forego further legal action on disabled Vietnam era veteran's complaint alleging that his employer's failure to rehire him after he voluntarily quit his position violated employer's affirmative action obligation under 2012 [now 4212] is not de novo; such decision is to be reviewed under limited standard of abuse of discretion. Clementson v Donovan (1985, DC Hawaii) 608 F Supp 152, 36 CCH EPD P 35061, 121 BNA LRRM 3118, 102 CCH LC P 11429, affd (1986, CA9 Hawaii) 806 F2d 1402, 124 BNA LRRM 2422, 33 CCF P 74923, 42 CCH EPD P Decision of Office of Federal Contract Compliance Program that employer had not violated its affirmative action obligation under 2012 [now 4212] did not fall within category of agency actions which, under 5 USCS 701(a), are actions committed to agency discretion by law and not subject to judicial review. Clementson v Donovan (1985, DC Hawaii) 608 F Supp 152, 121 BNA LRRM 3118, 36 CCH EPD P 35061, 102 CCH LC P 11429, affd (1986, CA9 Hawaii) 806 F2d 1402, 124 BNA LRRM 2422, 33 CCF P 74923, 42 CCH EPD P Disappointed applicant's court challenge to his disqualification from preapprenticeship training program on basis of low test score was dismissed, where federal agency concluded there was insufficient evidence that federal contractor violated Vietnam Era Veterans' Readjustment Assistance Act, because agency's decision to forego enforcement action under 2012 [now 4212] is immune from judicial review. Harris v McLaughlin (1989, ND Ohio) 732 F Supp 780, 133 BNA LRRM Miscellaneous Department of Labor's decision adverse to disabled Vietnam era veteran who claimed that his employer's failure to rehire him after he voluntarily quit violated 2012 [now 4212] was not arbitrary and capricious on ground of failure to consider whether employer had duty to transfer veteran to another job, where tenor of veteran's complaint was employer's refusal to rehire him for his old position, nor was failure to consider whether his service-induced ulcer made him tense and contributed to his turbulent relationship with his supervisor which in turn led to his quit or discharge arbitrary, where claim was not raised before agency and chain of causation was entirely too attenuated to require judicial relief. Clementson v Donovan (1985, DC Hawaii) 608 F Supp 152, 36 CCH EPD P 35061, 121 BNA LRRM 3118, 102 CCH LC P 11429, affd (1986, CA9 Hawaii) 806 F2d 1402, 124 BNA LRRM 2422, 33 CCF P 74923, 42 CCH EPD P Where only evidence before Office of Federal Contract Compliance showed that reason for veteran's quit or discharge was personality dispute with supervisor, fact that employer did not have valid affirmative action program in place was not grounds for setting aside summary judgment in favor of employer in veteran's action for review of adverse Department of Labor decision on his complaint alleging that employer violated 2012 [now 4212] by failing to rehire him after he quit. Clementson v Donovan (1985, DC Hawaii) 608 F Supp 152, 36 CCH EPD P 35061, 121 BNA LRRM 3118, 102 CCH LC P 11429, affd (1986, CA9 Hawaii) 806 F2d 1402, 124 BNA LRRM 2422, 33 CCF P 74923, 42 CCH EPD P

12 38 USCS 4213 Page USCS 4213 (2003) Eligibility requirements for veterans under Federal employment and training programs (a) Amounts and periods of time specified in subsection (b) shall be disregarded in determining eligibility under any of the following: (1) Any public service employment program. (2) Any emergency employment program. (3) Any job training program assisted under the Economic Opportunity Act of (4) Any employment or training program carried out under title I of the Workforce Investment Act of 1998 (29 U.S.C et seq.). (5) Any other employment or training (or related) program financed in whole or in part with Federal funds. (b) Subsection (a) applies with respect to the following amounts and periods of time: (1) Any amount received as pay or allowances by any person while serving on active duty. (2) Any period of time during which such person served on active duty. (3) Any amount received under chapters 11, 13, 30, 31, 32, and 36 of this title [38 USCS 1101 et seq., 1301 et seq., 3001 et seq., 3100 et seq., 3201 et seq., 3670 et seq.] by an eligible veteran. (4) Any amount received by an eligible person under chapters 13 and 35 of this title [38 USCS 1301 et seq., 3500 et seq.]. (5) Any amount received by an eligible member under chapter 106 of title 10 [10 USCS 2131 et seq.]. HISTORY: (Added Oct. 24, 1972, P.L , Title V, 503(a), 86 Stat. 1098; Oct. 17, 1980, P.L , Title VIII, 801(k)(1), (2)(A), 94 Stat. 2217; June 13, 1991, P.L , 14(c)(10), 105 Stat. 285; Aug. 6, 1991, P.L , 5(a), 105 Stat. 406; Nov. 2, 1994, P.L , Title VII, 702(b), 108 Stat ) (As amended Oct. 21, 1998, P.L , Div A, 101(f) [Title VIII, Subtitle IV, 405(d)(29)(C), (f)(21)(c)], 112 Stat , ; Nov. 1, 2000, Title IV, 404(a)(9), 114 Stat ) HISTORY; ANCILLARY LAWS AND DIRECTIVES References in text: The "Economic Opportunity Act of 1964", referred to in this section, is Act Aug. 20, 1964, P.L , which is generally classified to 42 USCS 2701 et seq. For full classification of such Act, consult USCS Tables volumes. "Title I of the Workforce Investment Act of 1998", referred to in this section, is Title I of Act Aug. 7, 1998, P.L , which appears generally as 29 USCS 2801 et seq. For full classification of such Title, consult USCS Tables volumes. Explanatory notes: A prior 2013, contained in Subchapter II of former Chapter 41, was transferred to 38 USCS 2004 [now 38 USCS 4104] by Act Sept. 19, 1962, P.L , 1(a), 76 Stat Effective date of section: Act Oct. 24, 1972, P.L , Title VI, 601(b), 86 Stat. 1099, provided that this section is effective 90 days after Oct. 24, Amendments: Act Oct. 17, 1980 (effective 10/1/80, as provided by 802(h) of such Act, which appears as 38 USCS 3452 note), substituted new catchline for one which read: " Eligibility requirements for veterans under certain Federal manpower training programs"; substituted "an eligible veteran" for "a veteran (as defined in section 101(2) of this title) who served on active duty for a period of more than 180 days or was discharged or released from active duty for a service-connected disability"; and substituted "any employment or training program assisted under the Comprehensive Employment and Training Act, or any other employment or" for "any manpower training program assisted under the Manpower Development and Training Act of 1962, or any other manpower".

13 38 USCS 4213 Page Act June 13, 1991 substituted "the Job Training Partnership Act (29 U.S.C et seq.)" for "the Comprehensive Employment and Training Act". Act Aug. 6, 1991, redesignated this section, formerly 38 USCS 2013, as 38 USCS Act Nov. 2, 1994 substituted "chapters 11, 13, 30, 31, 35, and 36 of this title by an eligible veteran," for "chapters 11, 13, 31, 34, 35, and 36 of this title by an eligible veteran and" and "eligibility under" for "the needs or qualifications of participants in"; and inserted "and any amounts received by an eligible person under chapter 106 of title 10," Act Oct. 21, 1998 (effective on enactment as provided by 405(g)(1) of Subtitle IV of Title VIII of 101(f) of Division A of such Act, which appears as 5 USCS 3502 note), substituted "program carried out under the Job Training Partnership Act or title I of the Workforce Investment Act of 1998," for "program assisted under the Job Training Partnership Act (29 U.S.C et seq.),". Act Oct. 21, 1998 (effective on 7/1/2000, as provided by 405(g)(2)(B) of Subtitle VIII of Title IV of 101(f) of Division A of such Act, which appears as 5 USCS 3502 note), deleted "the Job Training Partnership Act or" preceding "title I" Act Nov. 1, 2000 substituted the text of this section for text which read: "Any (1) amounts received as pay or allowances by any person while serving on active duty, (2) period of time during which such person served on such active duty, and (3) amounts received under chapters 11, 13, 30, 31, 35, and 36 of this title by an eligible veteran, any amounts received by an eligible person under chapters 13 and 35 of such title, and any amounts received by an eligible person under chapter 106 of title 10, shall be disregarded in determining eligibility under any public service employment program, any emergency employment program, any job training program assisted under the Economic Opportunity Act of 1964, any employment or training program carried out under title I of the Workforce Investment Act of 1998, or any other employment or training (or related) program financed in whole or in part with Federal funds.". NOTES: RESEARCH GUIDE Am Jur: 45A Am Jur 2d, Job Discrimination 21-26, B Am Jur 2d, Job Discrimination Am Jur 2d, Veterans and Veterans' Laws 114. INTERPRETIVE NOTES AND DECISIONS 38 USCS 2013 [now 38 USCS 4213] requires state agency to disregard employee's period of military service and to carry forward period of his pre-enlistment employment in determining his qualifications for trade readjustment allowance benefits under Trade Act of 1974 (19 USCS 2271 et seq.) Hulet v Review Bd. of Indiana Employment Sec. Div. (1980, Ind App) 412 NE2d 289, 105 BNA LRRM 3377.