§ 4212. — Veterans' employment emphasis under Federal contracts.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 38USC4212]
TITLE 38--VETERANS' BENEFITS
PART III--READJUSTMENT AND RELATED BENEFITS
CHAPTER 42--EMPLOYMENT AND TRAINING OF VETERANS
Sec. 4212. Veterans' employment emphasis under Federal contracts
(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 also 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.
(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. 12985 (61 Fed. Reg. 1209).
(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.
(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.
(Added Pub. L. 92-540, title V, Sec. 503(a), Oct. 24, 1972, 86 Stat.
1097, Sec. 2012; amended Pub. L. 93-508, title IV, Sec. 402, Dec. 3,
1974, 88 Stat. 1593; Pub. L. 94-502, title VI, Secs. 605, 607(2), Oct.
15, 1976, 90 Stat. 2405; Pub. L. 95-520, Sec. 6(a), Oct. 26, 1978, 92
Stat. 1821; Pub. L. 96-466, title V, Sec. 509, title VIII, Sec. 801(j),
Oct. 17, 1980, 94 Stat. 2206, 2217; Pub. L. 97-306, title III,
Sec. 310(a), Oct. 14, 1982, 96 Stat. 1442; renumbered Sec. 4212 and
amended Pub. L. 102-83, Secs. 4(b)(8), 5(a), (c)(1), Aug. 6, 1991, 105
Stat. 405, 406; Pub. L. 103-446, title VII, Sec. 702(a), Nov. 2, 1994,
108 Stat. 4674; Pub. L. 105-339, Secs. 7(a), 8, Oct. 31, 1998, 112 Stat.
3188, 3189; Pub. L. 106-419, title III, Sec. 322(a), (b), Nov. 1, 2000,
114 Stat. 1855; Pub. L. 107-288, Sec. 2(b)(1), (2)(A)-(C), Nov. 7, 2002,
116 Stat. 2034, 2035.)
References in Text
The Workforce Investment Act of 1998, referred to in subsec.
(a)(2)(A), is Pub. L. 105-220, Aug. 7, 1998, 112 Stat. 936, as amended.
For complete classification of this Act to the Code, see Short Title
note set out under section 9201 of Title 20, Education, and Tables.
Executive Order No. 12985, referred to in subsec. (a)(3)(A)(iii), is
set out as a note preceding section 1121 of Title 10, Armed Forces.
Amendments
2002--Subsec. (a). Pub. L. 107-288, Sec. 2(b)(1), amended subsec.
(a) generally. Prior to amendment, subsec. (a) read as follows: ``Any
contract in the amount of $25,000 or more entered into by any department
or agency for the procurement of personal property and non-personal
services (including construction) for the United States, shall contain a
provision requiring that the party contracting with the United States
shall take affirmative action to employ and advance in employment
qualified special disabled veterans, 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.''
Subsec. (c). Pub. L. 107-288, Sec. 2(b)(2)(A), struck out
``suitable'' before ``employment openings'' and substituted ``subsection
(a)(2)(B)'' for ``subsection (a)(2) of this section''.
Subsec. (d)(1). Pub. L. 107-288, Sec. 2(b)(2)(B)(i), struck out ``of
this section'' after ``subsection (a)'' in introductory provisions.
Subsec. (d)(1)(A), (B). Pub. L. 107-288, Sec. 2(b)(2)(B)(ii),
amended subpars. (A) and (B) generally. Prior to amendment, subpars. (A)
and (B) read as follows:
``(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''.
Subsec. (d)(2). Pub. L. 107-288, Sec. 2(b)(2)(C), struck out ``of
this subsection'' after ``paragraph (1)''.
2000--Subsec. (a). Pub. L. 106-419, Sec. 322(a), inserted ``recently
separated veterans,'' after ``veterans of the Vietnam era,'' in first
sentence.
Subsec. (d)(1)(A), (B). Pub. L. 106-419, Sec. 322(b), inserted
``recently separated veterans,'' after ``veterans of the Vietnam era,''.
1998--Subsec. (a). Pub. L. 105-339, Sec. 7(a)(1), in first sentence,
substituted ``$25,000'' for ``$10,000'' and ``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''.
Subsec. (b). Pub. L. 105-339, Sec. 7(a)(2), substituted ``veteran
covered by the first sentence of subsection (a)'' for ``special disabled
veteran or veteran of the Vietnam era''.
Subsec. (d)(1)(A), (B). Pub. L. 105-339, Sec. 7(a)(3), 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''.
Subsec. (d)(1)(C). Pub. L. 105-339, Sec. 8, added subpar. (C).
1994--Subsec. (a)(1). Pub. L. 103-446 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,''.
1991--Pub. L. 102-83, Sec. 5(a), renumbered section 2012 of this
title as this section.
Subsec. (c). Pub. L. 102-83, Sec. 5(c)(1), substituted ``4107(c)''
for ``2007(c)''.
Pub. L. 102-83, Sec. 4(b)(8), substituted ``Secretary of Labor'' for
``Secretary''.
Subsec. (d). Pub. L. 102-83, Sec. 4(b)(8), substituted ``Secretary
of Labor'' for ``Secretary'' wherever appearing.
1982--Subsec. (d). Pub. L. 97-306 added subsec. (d).
1980--Subsec. (a). Pub. L. 96-466, Sec. 801(j), inserted ``special''
after ``qualified'' and substituted ``regulations which shall require''
for ``regulations within 60 days after the date of enactment of this
section, which regulations shall require''.
Subsec. (b). Pub. L. 96-466, Sec. 509, among other changes,
substituted reference to a special disabled veteran for reference to a
disabled veteran, struck out provisions relating to the filing of a
complaint by any veteran entitled to disability compensation who
believed that a contractor had discriminated against such veteran
because such veteran was a handicapped individual within the meaning of
section 706(6) of title 29, and substituted provisions relating to the
filing of a complaint with the Secretary of Labor for provisions
relating to the filing of a complaint with the Veterans' Employment
Service of the Department of Labor and prompt referral of the complaint
to the Secretary.
1978--Subsec. (b). Pub. L. 95-520 authorized filing of a complaint
by a veteran entitled to disability compensation under laws administered
by the Veterans' Administration based on a contractor's discrimination
against the veteran because the veteran is handicapped.
1976--Subsec. (b). Pub. L. 94-502, Sec. 607(2), substituted ``the
contractor's'' for ``his''.
Subsec. (c). Pub. L. 94-502, Sec. 605, added subsec. (c).
1974--Subsec. (a). Pub. L. 93-508, Sec. 402(1), (2), substituted
``Any contract in the amount of $10,000 or more entered into'' for ``Any
contract entered into'', ``the party contracting with the United States
shall take affirmative action to employ and advance in employment'' for
``in employing persons to carry out such contract, the party contracting
with the United States shall give special emphasis to the employment
of'', and ``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'' for ``The
President shall''.
Subsec. (b). Pub. L. 93-508, Sec. 402(3), substituted ``relating to
the employment of veterans'' for ``relating to giving special emphasis
in employment to veterans''.
Effective Date of 2002 Amendment
Amendment by Pub. L. 107-288 applicable with respect to contracts
entered into on or after the first day of the first month that begins 12
months after Nov. 7, 2002, see section 2(b)(3) of Pub. L. 107-288, set
out as a note under section 4211 of this title.
Effective Date of 1980 Amendment
Amendment by section 509 of Pub. L. 96-466 effective Oct. 1, 1980,
see section 802(e) of Pub. L. 96-466, set out as a note under section
4101 of this title.
Amendment by section 801(j) of Pub. L. 96-466 effective Oct. 1,
1980, see section 802(h) of Pub. L. 96-466, set out as a note under
section 3452 of this title.
Effective Date of 1976 Amendment
Amendment by Pub. L. 94-502 effective Dec. 1, 1976, see section
703(c) of Pub. L. 94-502, set out as an Effective Date note under
section 3693 of this title.
Effective Date of 1974 Amendment
Amendment by Pub. L. 93-508 effective Dec. 3, 1974, see section 503
of Pub. L. 93-508, set out as a note under section 3452 of this title.
Effective Date
Section effective 90 days after Oct. 24, 1972, see section 601(b) of
Pub. L. 92-540, set out as an Effective Date of 1972 Amendment note
under section 4101 of this title.
Prescription of Regulations
Section 310(b) of Pub. L. 97-306 provided that: ``Within 90 days
after the date of the enactment of this Act [Oct. 14, 1982], the
Secretary of Labor shall prescribe regulations under subsection (d) of
section 2012 [now 4212] of title 38, United States Code, as added by the
amendment made by subsection (a).''
Ex. Ord. No. 11701. Employment of Veterans by Federal Agencies and
Government Contractors and Subcontractors
Ex. Ord. No. 11701, Jan. 24, 1973, 38 F.R. 2675, provided:
On June 16, 1971, I issued Executive Order No. 11598 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 92-540; 86
Stat. 1097) added a new section 2012 [now 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:
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 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 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 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. 11598 of June 16, 1971, is hereby
superseded.
Richard Nixon.
Section Referred to in Other Sections
This section is referred to in sections 3116, 4107, 4214 of this
title; title 31 section 1354.
