employers within the meaning of paragraph (1) or (2); or (4) has been chartered by a labor organization representing or actively seeking to represent employees within the meaning of paragraph (1) or (2) as the local or subordinate body through which such employees may enjoy membership or become affiliated with such labor organization; or (5) is a conference, general committee, joint or system board, or joint council subordinate to a national or international labor organization, which includes a labor organization engaged in an industry affecting commerce within the meaning of any of the preceding paragraphs of this subsection. (f) The term "employee" means an individual employed by any employer except that the term "employee" shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policymaking level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency, or political subdivision. (g) The term "commerce" means trade, traffic, commerce, transportation, transmission, or communication among the several States; or between a State and any place outside thereof; or within the District of Columbia, or a possession of the United States; or between points in the same State but through a point outside thereof. (h) The term "industry affecting commerce" means any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce and includes any activity or industry "affecting commerce" within the meaning of the Labor-Management Reporting and Disclosure Act of 1959 [29 U.S.C. 401 et seq.). (i) The term "State" includes a State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, and Outer Continental Shelf lands defined in the Outer Continental Shelf Lands Act [43 U.S.C. 1331 et seq.). (Pub. L. 90-202, § 11, Dec. 15, 1967, 81 Stat. 605; Pub. L. 93-259, § 28(a)(1)-(4), Apr. 8, 1974, 88 Stat. 74.) REFERENCES IN TEXT The National Labor Relations Act, referred to in subsec. (e)(1), is act July 5, 1935, ch. 372, 49 Stat. 452, as amended, which is classified generally to subchapter II (§ 151 et seq.) of chapter 7 of this title. For complete classification of this Act to the Code, see section 167 of this title and Tables. The Railway Labor Act, referred to in subsec. (e)(1), is act May 20, 1926, ch. 347, 44 Stat. 577, as amended, which is classified principally to chapter 8 (§ 151 et seq.) of Title 45, Railroads. For complete classification of this Act to the Code, see section 151 of Title 45 and Tables. The Labor-Management Reporting and Disclosure Act of 1959, referred to in subsec. (h), is Pub. L. 86-257, Sept. 14, 1959, 73 Stat. 519, as amended, which is classified principally to chapter 11 (§ 401 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 401 of this title, and Tables. For definition of Canal Zone, referred to in subsec. (i), see section 3602(b) of Title 22, Foreign Relations and Intercourse. The Outer Continental Shelf Lands Act, referred to in subsec. (i), is act Aug. 7, 1953, ch. 345, 67 Stat. 462, as amended, which is classified generally to subchapter III (§ 1331 et seq.) of chapter 29 of Title 43, Public Lands. For complete classification of this Act to the Code, see Short Title note set out under section 1331 of Title 43 and Tables. AMENDMENTS 1974-Subsec. (b). Pub. L. 93-259, § 28(a)(1), (2), substituted in first sentence "twenty" for "twenty-five" and, in second sentence, defined term "employer" to include a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, and deleted text excluding from such term a State or political subdivision thereof. Subsec. (c). Pub. L. 93-259, § 28(a)(3), deleted text excluding from term “employment agency" an agency of a State or political subdivision of a State, but including the United States Employment Service and the system of State and local employment services receiving Federal assistance. Subsec. (f). Pub. L. 93-259, § 28(a)(4), excepted from the term "employee" elected public officials, persons chosen by such officials for such officials' personal staff, appointees on policymaking level, and immediate advisers with respect to exercise of constitutional or legal powers of the public office but excluded from such exemption employees subject to civil laws of a State government, governmental agency, or political subdivision. EFFECTIVE DATE OF 1974 AMENDMENT Amendment by Pub. L. 93-259 effective May 1, 1974, see section 29(a) of Pub. L. 93-259, set out as a note under section 202 of this title. TRANSFER OF FUNCTIONS All functions vested by this section in the Secretary of Labor or the Civil Service Commission were transferred to the Equal Employment Opportunity Commission by Reorg. Plan No. 1 of 1978, § 2, 43 F.R. 19807, 92 Stat. 3781, set out in the Appendix to Title 5, Government Organization and Employees, effective Jan. 1, 1979, as provided by section 1-101 of Ex. Ord. No. 12106, Dec. 28, 1978, 44 F.R. 1053. CROSS REFERENCES Industry affecting commerce, see section 402 of this title. Outer Continental Shelf, see section 1331 of Title 43, Public Lands. § 631. Age limits (a) Individuals at least 40 but less than 70 years of age The prohibitions in this chapter shall be limited to individuals who are at least 40 years of age but less than 70 years of age. (b) Employees or applicants for employment in Federal Government In the case of any personnel action affecting employees or applicants for employment which is subject to the provisions of section 633a of this title, the prohibitions established in section 633a of this title shall be limited to individuals who are at least 40 years of age. (c) Bona fide executives or high policymakers (1) Nothing in this chapter shall be construed to prohibit compulsory retirement of any employee who has attained 65 years of age but not 70 years of age, and who, for the 2-year period immediately before retirement, is employed in a bona fide executive or a high policymaking position, if such employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan, or any combination of such plans, of the employer of such employee, which equals, in the aggregate, at least $27,000. (2) In applying the retirement benefit test of paragraph (1) of this subsection, if any such retirement benefit is in a form other than a straight life annuity (with no ancillary benefits), or if employees contribute to any such plan or make rollover contributions, such benefit shall be adjusted in accordance with regulations prescribed by the Equal Employment Opportunity Commission, after consultation with the Secretary of the Treasury, so that the benefit is the equivalent of a straight life annuity (with no ancillary benefits) under a plan to which employees do not contribute and under which no rollover contributions are made. (Pub. L. 90-202, § 12, Dec. 15, 1967, 81 Stat. 607; Pub. L. 95-256, § 3(a), (b)(3), Apr. 6, 1978, 92 Stat. 189, 190; 1978 Reorg. Plan No. 1, § 2, eff. Jan. 1, 1979, 43 F.R. 19807, 92 Stat. 3781.) AMENDMENTS 1978 Subsec. (a). Pub. L. 95-256, § 3(a), designated existing provisions as subsec. (a) and, in subsec. (a) as so designated, substituted "40 years of age but less than 70 years of age" for "forty years of age but less than sixty-five years of age". Subsecs. (b), (c). Pub. L. 95-256, § 3(a), added subsecs. (b) and (c). Subsec. (d). Pub. L. 95-256, § 3(b)(3), struck out subsec. (d), which related to employees serving under contracts of unlimited tenure at institutions of higher education effective July 1, 1982. See Effective and Termination Dates of 1978 Amendment note below. Pub. L. 95-256, § 3(a), added subsec. (d). EFFECTIVE AND TERMINATION DATES OF 1978 Section 3 of Pub. L. 95-256 provided that: "(1) Sections 12(a), 12(c), and 12(d) of the Age Discrimination in Employment Act of 1967, as amended by subsection (a) of this section [subsecs. (a), (c), and (d) of this section] shall take effect on January 1, 1979. "(2) Section 12(b) of such Act, as amended by subsection (a) of this section [subsec. (b) of this section], shall take effect on September 30, 1978. "(3) Section 12(d) of such Act, as amended by subsection (a) of this section [enacting subsec. (d) of this section], is repealed on July 1, 1982." TRANSFER OF FUNCTIONS "Equal Employment Opportunity Commission" was substituted for "Secretary", meaning the Secretary of Labor, in subsec. (c)(2) pursuant to Reorg. Plan No. 1 of 1978, § 2, 43 F.R. 19807, 92 Stat. 3781, set out in the Appendix to Title 5, Government Organization and Employees, which transferred all functions vested by this section in the Secretary of Labor to the Equal Employment Opportunity Commission, effective Jan. 1, 1979, as provided by section 1-101 of Ex. Ord. No. 12106, Dec. 28, 1978, 44 F.R. 1053. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 622, 623, 624, 633a of this title; title 5 sections 2302, 7702; title 22 section 3905. § 632. Annual report to Congress The Equal Employment Opportunity Commission shall submit annually in January a report to the Congress covering its activities for the preceding year and including such information, data and recommendations for further legislation in connection with the matters covered by this chapter as it may find advisable. Such report shall contain an evaluation and appraisal by the Commission of the effect of the minimum and maximum ages established by this chapter, together with its recommendations to the Congress. In making such evaluation and appraisal, the Commission shall take into consideration any changes which may have occurred in the general age level of the population, the effect of the chapter upon workers not covered by its provisions, and such other factors as it may deem pertinent. (Pub. L. 90-202, § 13, Dec. 15, 1967, 81 Stat. 607; 1978 Reorg. Plan No. 1, § 2, eff. Jan. 1, 1979, 43 F.R. 19807, 92 Stat. 3781.) TRANSFER OF FUNCTIONS "Equal Employment Opportunity Commission", "Commission", "it", and "its" were substituted for "Secretary", meaning the Secretary of Labor, "he", and "his", respectively, pursuant to Reorg. Plan No. 1 of 1978, § 2, 43 F.R. 19807, 92 Stat. 3781, set out in the Appendix to Title 5, Government Organization and Employees, which transferred all functions vested by this section in the Secretary of Labor to the Equal Employment Opportunity Commission, effective Jan. 1, 1979, as provided by section 1-101 of Ex. Ord. No. 12106, Dec. 28, 1978, 44 F.R. 1053. § 633. Federal-State relationship (a) Federal action superseding State action Nothing in this chapter shall affect the jurisdiction of any agency of any State performing like functions with regard to discriminatory employment practices on account of age except that upon commencement of action under this chapter such action shall supersede any State action. (b) Limitation of Federal action upon commencement of State proceedings In the case of an alleged unlawful practice occurring in a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice, no suit may be brought under section 626 of this title before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated: Provided, That such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective date of such State law. If any requirement for the commencement of such proceedings is imposed by a State authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State authority. (Pub. L. 90-202, § 14, Dec. 15, 1967, 81 Stat. 607.) TRANSFER OF FUNCTIONS All functions vested by this section in the Secretary of Labor or the Civil Service Commission were transferred to the Equal Employment Opportunity Commission by Reorg. Plan No. 1 of 1978, § 2, 43 F.R. 19807, 92 Stat. 3781, set out in the Appendix to Title 5, Government Organization and Employees, effective Jan. 1, 1979, as provided by section 1-101 of Ex. Ord. No. 12106, Dec. 28, 1978, 44 F.R. 1053. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 626 of this title. § 633a. Nondiscrimination on account of age in Federal Government employment (a) Federal agencies affected All personnel actions affecting employees or applicants for employment who are at least 40 years of age (except personnel actions with regard to aliens employed outside the limits of the United States) in military departments as defined in section 102 of title 5, in executive agencies as defined in section 105 of title 5 (including employees and applicants for employment who are paid from nonappropriated funds), in the United States Postal Service and the Postal Rate Commission, in those units in the government of the District of Columbia having positions in the competitive service, and in those units of the legislative and judicial branches of the Federal Government having positions in the competitive service, and in the Library of Congress shall be made free from any discrimination based on age. (b) Enforcement by Equal Employment Opportunity Commission and by Librarian of Congress in the Library of Congress; remedies; rules, regulations, orders, and instructions of Commission: compliance by Federal agencies; powers and duties of Commission; notification of final action on complaint of discrimination; exemptions: bona fide occupational qualification Except as otherwise provided in this subsection, the Equal Employment Opportunity Commission is authorized to enforce the provisions of subsection (a) of this section through appropriate remedies, including reinstatement or hiring of employees with or without backpay, as will effectuate the policies of this section. The Equal Employment Opportunity Commission shall issue such rules, regulations, orders, and instructions as it deems necessary and appropriate to carry out its responsibilities under this section. The Equal Employment Opportunity Commission shall (1) be responsible for the review and evaluation of the operation of all agency programs designed to carry out the policy of this section, periodically obtaining and publishing (on at least a semiannual basis) progress reports from each department, agency, or unit referred to in subsection (a) of this section; (2) consult with and solicit the recommendations of interested individuals, groups, and organizations relating to nondiscrimination in employment on account of age; and (3) provide for the acceptance and processing of complaints of discrimination in Federal employment on account of age. The head of each such department, agency, or unit shall comply with such rules, regulations, orders, and instructions of the Equal Employment Opportunity Commission which shall include a provision that an employee or applicant for employment shall be notified of any final action taken on any complaint of discrimination filed by him thereunder. Reasonable exemptions to the provisions of this section may be established by the Commission but only when the Commission has established a maximum age requirement on the basis of a determination that age is a bona fide occupational qualification necessary to the performance of the duties of the position. With respect to employment in the Library of Congress, authorities granted in this subsection to the Equal Employment Opportunity Commission shall be exercised by the Librarian of Congress. (c) Civil actions; jurisdiction; relief Any person aggrieved may bring a civil action in any Federal district court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter. (d) Notice to Commission; time of notice; Commission notification of prospective defendants; Commission elimination of unlawful practices When the individual has not filed a complaint concerning age discrimination with the Commission, no civil action may be commenced by any individual under this section until the individual has given the Commission not less than thirty days' notice of an intent to file such action. Such notice shall be filed within one hundred and eighty days after the alleged unlawful practice occurred. Upon receiving a notice of intent to sue, the Commission shall promptly notify all persons named therein as prospective defendants in the action and take any appropriate action to assure the elimination of any unlawful practice. (e) Duty of Government agency or official Nothing contained in this section shall relieve any Government agency or official of the responsibility to assure nondiscrimination on account of age in employment as required under any provision of Federal law. (f) Applicability of statutory provisions to personnel action of Federal departments, etc. Any personnel action of any department, agency, or other entity referred to in subsection (a) of this section shall not be subject to, or affected by, any provision of this chapter, other than the provisions of section 631(b) of this title and the provisions of this section. (g) Study and report to President and Congress by Equal Employment Opportunity Commission; scope (1) The Equal Employment Opportunity Commission shall undertake a study relating to the effects of the amendments made to this section by the Age Discrimination in Employment Act Amendments of 1978, and the effects of section 631(b) of this title. (2) The Equal Employment Opportunity Commission shall transmit a report to the President and to the Congress containing the findings of the Commission resulting from the study of the Commission under paragraph (1) of this subsection. Such report shall be transmitted no later than January 1, 1980. (Pub. L. 90-202, § 15, as added Pub. L. 93-259, § 28(b)(2), Apr. 8, 1974, 88 Stat. 74, and amended Pub. L. 95-256, § 5(a), (e), Apr. 6, 1978, 92 Stat. 191; 1978 Reorg. Plan No. 1, eff. Jan. 1, 1979, § 2, 43 F.R. 19807, 92 Stat. 3781.) REFERENCES IN TEXT The amendments made to this section by the Age Discrimination in Employment Act Amendments of 1978, referred to in subsec. (g)(1), are amendments by section 5(a) and (e) of Pub. L. 95-256, which amended subsecs. (a), (f), and (g) of this section. AMENDMENTS 1978-Subsec. (a). Pub. L. 95-256, § 5(a), added age requirement of at least 40 years of age, and "personnel actions" following "except". Subsecs. (f), (g). Pub. L. 95–256, § 5(e), added subsecs. (f) and (g). EFFECTIVE DATE OF 1978 AMENDMENT Section 5(f) of Pub. L. 95-256 provided that: "The amendments made by this section [amending this section and sections 8335 and 8339 of Title 5, Government Organization and Employees, and repealing section 3322 of Title 51 shall take effect on September 30, 1978, except that section 15(g) of the Age Discrimination in Employment Act of 1967, as amended by subsection (e) of this section [subsec. (g) of this section], shall take effect on the date of enactment of this Act. [Apr. 6, 1978]." EFFECTIVE DATE Section effective May 1, 1974, see section 29(a) of Pub. L. 93-259, set out as an Effective Date of 1974 Amendment note under section 202 of this title. TRANSFER OF FUNCTIONS "Equal Employment Opportunity Commission" was substituted for "Civil Service Commission" in subsecs. (b) and (g) pursuant to Reorg. Plan No. 1 of 1978, § 2, 43 F.R. 19807, 92 Stat. 3781, set out in the Appendix to Title 5, Government Organization and Employees, which transferred all functions vested by this section in the Civil Service Commission to the Equal Employment Opportunity Commission, effective Jan. 1, 1979, as provided by section 1-101 of Ex. Ord. No. 12106, Dec. 28, 1978, 44 F.R. 1053. CROSS REFERENCES Equal employment opportunities for Federal employees without discrimination because of race, color, religion, sex, or national origin, see section 7201 of Title 5, Government Organization and Employees. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 631 of this title; title 5 sections 2302, 7702, 7703; title 22 section 3905. 11-611 083 Vol. 12-65 QL 3 Sec. 657. (c) Use of services, facilities, and personnel of Federal, State, and local agencies; reimbursement; employment of experts and consultants or organizations; renewal of contracts; compensation; travel expenses. Inspections, investigations, and recordkeeping. (a) Authority of Secretary to enter, in- (c) Maintenance, preservation, and avail- (d) Obtaining of information. repre (f) Request for inspection by employees or representative of employees; grounds; procedure; determination of request; notification of Secretary or representative prior to or during any inspection of violations; procedure for review of refusal by representative of Secretary to issue citation for alleged violations. (g) Compilation, analysis, and publication of reports and information; rules and regulations. 658. Citations. 659. Enforcement procedures. (a) Notification of employer of proposed assessment of penalty subsequent to issuance of citation; time for notification of Secretary by employer of contest by employer of citation or proposed assessment; citation and proposed assessment as final order upon failure of employer to notify of contest and failure of employees to file notice. (b) Notification of employer of failure to correct in allotted time period violation for which citation was issued and proposed assessment of penalty for failure to correct; time for notification of Secretary by employer of contest by employer of notification of failure to correct or proposed assessment; notification or proposed assessment as final order upon failure of employer to notify of contest. (c) Advisement of Commission by Secretary of notification of contest by employer of citation or notification or of filing of notice by any employee or representative of employees; hearing by Commission; orders of Commission and Secretary; rules of procedure. Sec. 660. 661. 662. 663. 664. 665. 666. Page 994 Judicial review. (a) Filing of petition by persons adversely affected or aggrieved; orders subject to review; jurisdiction; venue; procedure; conclusiveness of record and findings of Commission; appropriate relief; finality of judgment. (b) Filing of petition by Secretary. orders subject to review; jurisdic tion; venue; procedure; conclusive ness of record and findings of Commission; enforcement of orders. contempt proceedings. (c) Discharge or discrimination against employee for exercise of rights under this chapter; prohibition; procedure for relief. Occupational Safety and Health Review Commission. (a) Establishment; membership; appointment; Chairman. (b) Terms of office; removal by President. (c) Omitted. (d) Principal office; hearings or other proceedings at other places. (e) Functions and duties of Chairman; appointment and compensation of administrative law judges and other employees. (f) Quorum; official action. (g) Hearings and records open to public; promulgation of rules; applicability of Federal Rules of Civil Procedure. (h) Depositions and production of documentary evidence; fees. (i) Investigatory powers. (j) Administrative law judges; determinations; report as final order of Commission. (k) Appointment and compensation of administrative law judges. Injunction proceedings. (a) Petition by Secretary to restrain im- (c) Notification of affected employees (d) Failure of Secretary to seek relief; Representation in civil litigation. Disclosure of trade secrets; protective orders. (a) Willful or repeated violation. (c) Citation for violation determined not (d) Failure to correct violation. (f) Giving advance notice of inspection. (h) Omitted. (i) Violation of posting requirements. (j) Authority of Commission to assess civil penalties. (k) Determination of serious violation. (1) Procedure for payment of civil penalties. |