29 U.S.C. § 633 — Federal-State relationship

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. Page 162 TITLE 29—LABOR § 633a (b) Limitation of Federal action upon commence- ment of State proceedings In the case of an alleged unlawful practice oc- curring in a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State author- ity to grant or seek relief from such discrimina- tory practice, no suit may be brought under sec- tion 626 of this title before the expiration of sixty days after proceedings have been com- menced under the State law, unless such pro- ceedings 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 author- ity 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 ap- propriate State authority. (Pub. L. 90–202, § 14, Dec. 15, 1967, 81 Stat. 607.) 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. § 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 re- gard to aliens employed outside the limits of the United States) in military departments as de- fined in section 102 of title 5, in executive agen- cies 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 Regulatory Commission, in those units in the government of the District of Columbia having positions in the competitive service, and in those units of the judicial branch of the Federal Government having positions in the competitive service, in the Smithsonian Institution, and in the Government Publishing Office, the Govern- ment Accountability Office, and the Library of Congress shall be made free from any discrimi- nation based on age. (b) Enforcement by Equal Employment Oppor- tunity Commission and by Librarian of Con- gress in the Library of Congress; remedies; rules, regulations, orders, and instructions of Commission: compliance by Federal agen- cies; powers and duties of Commission; noti- fication of final action on complaint of dis- crimination; exemptions: bona fide occupa- tional qualification Except as otherwise provided in this sub- section, the Equal Employment Opportunity Commission is authorized to enforce the provi- sions of subsection (a) through appropriate rem- edies, including reinstatement or hiring of em- ployees with or without backpay, as will effec- tuate the policies of this section. The Equal Em- ployment 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 evalua- tion of the operation of all agency programs designed to carry out the policy of this sec- tion, periodically obtaining and publishing (on at least a semiannual basis) progress reports from each department, agency, or unit re- ferred to in subsection (a); (2) consult with and solicit the recommenda- tions of interested individuals, groups, and or- ganizations relating to nondiscrimination in employment on account of age; and (3) provide for the acceptance and processing of complaints of discrimination in Federal em- ployment 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 Employ- ment Opportunity Commission which shall in- clude a provision that an employee or applicant for employment shall be notified of any final ac- tion taken on any complaint of discrimination filed by him thereunder. Reasonable exemptions to the provisions of this section may be estab- lished by the Commission but only when the Commission has established a maximum age re- quirement 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 Oppor- tunity Commission shall be exercised by the Li- brarian of Congress. (c) Civil actions; jurisdiction; relief Any person aggrieved may bring a civil action in any Federal district court of competent juris- diction for such legal or equitable relief as will effectuate the purposes of this chapter. (d) Notice to Commission; time of notice; Com- mission notification of prospective defend- ants; Commission elimination of unlawful practices When the individual has not filed a complaint concerning age discrimination with the Commis- sion, no civil action may be commenced by any individual under this section until the indi- vidual has given the Commission not less than thirty days’ notice of an intent to file such ac- tion. Such notice shall be filed within one hun- dred and eighty days after the alleged unlawful practice occurred. Upon receiving a notice of in- tent to sue, the Commission shall promptly no- tify all persons named therein as prospective de- fendants 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 re-