29 U.S.C. § 631 — Age limits

Page 160 TITLE 29—LABOR § 631 nance and use of firefighting apparatus and equipment, including an employee engaged in this activity who is transferred to a supervisory or administrative position. (k) The term ‘‘law enforcement officer’’ means an employee, the duties of whose position are primarily the investigation, apprehension, or de- tention of individuals suspected or convicted of offenses against the criminal laws of a State, in- cluding an employee engaged in this activity who is transferred to a supervisory or adminis- trative position. For the purpose of this sub- section, ‘‘detention’’ includes the duties of em- ployees assigned to guard individuals incarcer- ated in any penal institution. (l) The term ‘‘compensation, terms, condi- tions, or privileges of employment’’ encom- passes all employee benefits, including such ben- efits provided pursuant to a bona fide employee benefit plan. (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; Pub. L. 98–459, title VIII, § 802(a), Oct. 9, 1984, 98 Stat. 1792; Pub. L. 99–592, § 4, Oct. 31, 1986, 100 Stat. 3343; Pub. L. 101–433, title I, § 102, Oct. 16, 1990, 104 Stat. 978.) Editorial Notes REFERENCES IN TEXT The National Labor Relations Act, referred to in sub- sec. (e)(1), is act July 5, 1935, ch. 372, 49 Stat. 452, 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, which is classi- fied 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, which is classified prin- cipally 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, which is classified generally to subchapter III (§ 1331 et seq.) of chapter 29 of Title 43, Public Lands. For complete clas- sification of this Act to the Code, see Short Title note set out under section 1301 of Title 43 and Tables. AMENDMENTS 1990—Subsec. (l). Pub. L. 101–433 added subsec. (l). 1986—Subsecs. (j), (k). Pub. L. 99–592 added subsecs. (j) and (k). 1984—Subsec. (f). Pub. L. 98–459 inserted provision de- fining ‘‘employee’’ as including any individual who is a citizen of the United States employed by an employer in a workplace in a foreign country. 1974—Subsec. (b). Pub. L. 93–259, § 28(a)(1), (2), sub- stituted 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 polit- ical subdivision thereof. Subsec. (c). Pub. L. 93–259, § 28(a)(3), struck out text excluding from term ‘‘employment agency’’ an agency of a State or political subdivision of a State, but in- cluding the United States Employment Service and the system of State and local employment services receiv- ing Federal assistance. Subsec. (f). Pub. L. 93–259, § 28(a)(4), excepted from the term ‘‘employee’’ elected public officials, persons cho- sen by such officials for such officials’ personal staff, appointees on policymaking level, and immediate ad- visers 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 subdivi- sion. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1990 AMENDMENT Amendment by Pub. L. 101–433 applicable only to any employee benefit established or modified on or after Oct. 16, 1990, and other conduct occurring more than 180 days after Oct. 16, 1990, except as otherwise provided, see section 105 of Pub. L. 101–433, set out as a note under section 623 of this title. EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99–592 effective Jan. 1, 1987, with certain exceptions, but not applicable with respect to any cause of action arising under this chapter as in effect before Jan. 1, 1987, see section 7 of Pub. L. 99–592, set out as an Effective and Termination Dates of 1986 Amendment note under section 623 of this title. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–459 effective Oct. 9, 1984, see section 803(a) of Pub. L. 98–459, set out as a note under section 3001 of Title 42, The Public Health and Welfare. 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. Executive Documents TRANSFER OF FUNCTIONS Functions vested by this section in Secretary of Labor or Civil Service Commission transferred to 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. § 631. Age limits (a) Individuals at least 40 years of age The prohibitions in this chapter shall be lim- ited to individuals who are at least 40 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 em- ployee who has attained 65 years of age and who, for the 2-year period immediately before retire- ment, is employed in a bona fide executive or a Page 161 TITLE 29—LABOR § 633 high policymaking position, if such employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit-shar- ing, savings, or deferred compensation plan, or any combination of such plans, of the employer of such employee, which equals, in the aggre- gate, at least $44,000. (2) In applying the retirement benefit test of paragraph (1) of this subsection, if any such re- tirement benefit is in a form other than a straight life annuity (with no ancillary bene- fits), or if employees contribute to any such plan or make rollover contributions, such ben- efit shall be adjusted in accordance with regula- tions prescribed by the Equal Employment Op- portunity Commission, after consultation with the Secretary of the Treasury, so that the ben- efit 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; Pub. L. 98–459, title VIII, § 802(c)(1), Oct. 9, 1984, 98 Stat. 1792; Pub. L. 99–272, title IX, § 9201(b)(2), Apr. 7, 1986, 100 Stat. 171; Pub. L. 99–592, §§ 2(c), 6(a), Oct. 31, 1986, 100 Stat. 3342, 3344; Pub. L. 101–239, title VI, § 6202(b)(3)(C)(ii), Dec. 19, 1989, 103 Stat. 2233.) Editorial Notes AMENDMENTS 1989—Subsec. (a). Pub. L. 101–239 struck out ‘‘(except the provisions of section 623(g) of this title)’’ after ‘‘in this chapter’’. 1986—Subsec. (a). Pub. L. 99–592, § 2(c)(1), which di- rected that ‘‘but less than seventy years of age’’ be struck out was executed by striking out ‘‘but less than 70 years of age’’ after ‘‘40 years of age’’ as the probable intent of Congress. Pub. L. 99–272 inserted ‘‘(except the provisions of sec- tion 623(g) of this title)’’ after ‘‘this chapter’’. Subsec. (c)(1). Pub. L. 99–592, § 2(c)(2), which directed that ‘‘but not seventy years of age,’’ be struck out was executed by striking out ‘‘but not 70 years of age,’’ after ‘‘65 years of age’’ as the probable intent of Con- gress. Subsec. (d). Pub. L. 99–592, § 6(a), (b), temporarily added subsec. (d) which read as follows: ‘‘Nothing in this chapter shall be construed to prohibit compulsory retirement of any employee who has attained 70 years of age, and who is serving under a contract of unlimited tenure (or similar arrangement providing for unlimited tenure) at an institution of higher education (as de- fined by section 1141(a) of title 20).’’ See Effective and Termination Dates of 1986 Amendments note below. 1984—Subsec. (c)(1). Pub. L. 98–459 substituted ‘‘$44,000’’ for ‘‘$27,000’’. 1978—Pub. L. 95–256, § 3(a), designated existing provi- sions as subsec. (a), 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’’, added subsecs. (b) and (c), and temporarily added subsec. (d). See Effec- tive and Termination Dates of 1978 Amendment note below. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1989 AMENDMENT Amendment by Pub. L. 101–239 applicable to items and services furnished after Dec. 19, 1989, see section 6202(b)(5) of Pub. L. 101–239, set out as a note under sec- tion 162 of Title 26, Internal Revenue Code. EFFECTIVE AND TERMINATION DATES OF 1986 AMENDMENTS Amendment by Pub. L. 99–592 effective Jan. 1, 1987, with certain exceptions, see section 7(a) of Pub. L. 99–592 set out as a note under section 623 of this title. Pub. L. 99–592, § 6(b), Oct. 31, 1986, 100 Stat. 3344, pro- vided that: ‘‘The amendment made by subsection (a) of this section [amending this section] is repealed Decem- ber 31, 1993.’’ Amendment by Pub. L. 99–272 effective May 1, 1986, see section 9201(d)(2) of Pub. L. 99–272, set out as an Ef- fective Date of 1986 Amendment note under section 1395p of Title 42, The Public Health and Welfare. EFFECTIVE DATE OF 1984 AMENDMENT Pub. L. 98–459, title VIII, § 802(c)(2), Oct. 9, 1984, 98 Stat. 1792, provided that: ‘‘The amendment made by paragraph (1) of this subsection [amending this section] shall not apply with respect to any individual who re- tires, or is compelled to retire, before the date of the enactment of this Act [Oct. 9, 1984].’’ EFFECTIVE AND TERMINATION DATES OF 1978 AMENDMENT Pub. L. 95–256, § 3(b), Apr. 6, 1978, 92 Stat. 190, provided that: ‘‘(1) Sections 12(a), 12(c), and 12(d) of the Age Dis- crimination 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 sub- section (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 sub- section (a) of this section [enacting subsec. (d) of this section], is repealed on July 1, 1982.’’ Executive Documents TRANSFER OF FUNCTIONS ‘‘Equal Employment Opportunity Commission’’ sub- stituted for ‘‘Secretary’’, meaning 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 Secretary of Labor to Equal Employment Oppor- tunity Commission, effective Jan. 1, 1979, as provided by section 1–101 of Ex. Ord. No. 12106, Dec. 28, 1978, 44 F.R. 1053. § 632. Omitted Editorial Notes CODIFICATION Section, 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, which required the Equal Employment Opportunity Commission to submit to Congress an an- nual report on the Commission’s activities including an evaluation and appraisal of the effect of the minimum and maximum ages established by this chapter, termi- nated, effective May 15, 2000, pursuant to section 3003 of Pub. L. 104–66, as amended, set out as a note under sec- tion 1113 of Title 31, Money and Finance. See, also, page 123 of House Document No. 103–7. § 633. Federal-State relationship (a) Federal action superseding State action Nothing in this chapter shall affect the juris- diction of any agency of any State performing like functions with regard to discriminatory em- ployment practices on account of age except that upon commencement of action under this chapter such action shall supersede any State action.