Laws: Cases and Codes : U.S. Code : Title 29 : Section 623
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U.S. Code as of:
01/19/04
Section 623 - Notes
SOURCE
(Pub. L. 90-202, Sec. 4, Dec. 15, 1967, 81 Stat. 603; Pub. L.
95-256, Sec. 2(a), Apr. 6, 1978, 92 Stat. 189; Pub. L. 97-248,
title I, Sec. 116(a), Sept. 3, 1982, 96 Stat. 353; Pub. L. 98-369,
div. B, title III, Sec. 2301(b), July 18, 1984, 98 Stat. 1063; Pub.
L. 98-459, title VIII, Sec. 802(b), Oct. 9, 1984, 98 Stat. 1792;
Pub. L. 99-272, title IX, Sec. 9201(b)(1), (3), Apr. 7, 1986, 100
Stat. 171; Pub. L. 99-509, title IX, Sec. 9201, Oct. 21, 1986, 100
Stat. 1973; Pub. L. 99-514, Sec. 2, Oct. 22, 1986, 100 Stat. 2095;
Pub. L. 99-592, Secs. 2(a), (b), 3(a), Oct. 31, 1986, 100 Stat.
3342; Pub. L. 101-239, title VI, Sec. 6202(b)(3)(C)(i), Dec. 19,
1989, 103 Stat. 2233; Pub. L. 101-433, title I, Sec. 103, Oct. 16,
1990, 104 Stat. 978; Pub. L. 101-521, Nov. 5, 1990, 104 Stat. 2287;
Pub. L. 104-208, div. A, title I, Sec. 101(a) [title I, Sec.
119[1(b)]], Sept. 30, 1996, 110 Stat. 3009, 3009-23; Pub. L.
105-244, title IX, Sec. 941(a), (b), Oct. 7, 1998, 112 Stat. 1834,
1835.)
REFERENCES IN TEXT
Subparagraphs (C) and (D) of section 411(b)(2) of title 26,
referred to in subsec. (i)(7), were redesignated subpars. (B) and
(C) of section 411(b)(2) of Title 26, Internal Revenue Code, by
Pub. L. 101-239, title VII, Sec. 7871(a)(1), Dec. 19, 1989, 103
Stat. 2435.
Section 3(d)(2) of the Age Discrimination in Employment
Amendments of 1996, referred to in subsec. (j)(1), probably means
Pub. L. 104-208, div. A, title I, Sec. 101(a) [title I, Sec.
119[2(d)(2)]], Sept. 30, 1996, 110 Stat. 3009, 3009-23, 3009-25,
which is set out as a note under this section.
The Social Security Act, referred to in subsec. (l)(1)(B)(ii),
(2)(D)(i), (ii), is act Aug. 14, 1935, ch. 531, 49 Stat. 620, as
amended. Titles II and XVIII of the Act are classified generally to
subchapters II (Sec. 401 et seq.) and XVIII (Sec. 1395 et seq.),
respectively, of chapter 7 of Title 42, The Public Health and
Welfare. For complete classification of this Act to the Code, see
section 1305 of Title 42 and Tables.
AMENDMENTS
1998 - Subsec. (i)(6). Pub. L. 105-244, Sec. 941(b), inserted "or
it is a plan permitted by subsection (m) of this section." after
"accruals".
Subsec. (m). Pub. L. 105-244, Sec. 941(a), added subsec. (m).
1996 - Subsec. (j). Pub. L. 104-208, Sec. 101(a) [title I, Sec.
119[1(b)(1)]], reenacted subsec. (j) of this section, as in effect
immediately before Dec. 31, 1993.
Subsec. (j)(1). Pub. L. 104-208, Sec. 101(a) [title I, Sec.
119[1(b)(2)]], substituted ", the employer has complied with
section 3(d)(2) of the Age Discrimination in Employment Amendments
of 1996 if the individual was discharged after the date described
in such section, and the individual has attained -
"(A) the age of hiring or retirement, respectively, in effect
under applicable State or local law on March 3, 1983; or
"(B)(i) if the individual was not hired, the age of hiring in
effect on the date of such failure or refusal to hire under
applicable State or local law enacted after September 30, 1996;
or
"(ii) if applicable State or local law was enacted after
September 30, 1996, and the individual was discharged, the higher
of -
"(I) the age of retirement in effect on the date of such
discharge under such law; and
"(II) age 55; and" for "and the individual has attained the
age of hiring or retirement in effect under applicable State or
local law on March 3, 1983, and".
1990 - Subsec. (f)(2). Pub. L. 101-433, Sec. 103(1), added par.
(2) and struck out former par. (2) which read as follows: "to
observe the terms of a bona fide seniority system or any bona fide
employee benefit plan such as a retirement, pension, or insurance
plan, which is not a subterfuge to evade the purposes of this
chapter, except that no such employee benefit plan shall excuse the
failure to hire any individual, and no such seniority system or
employee benefit plan shall require or permit the involuntary
retirement of any individual specified by section 631(a) of this
title because of the age of such individual; or".
Subsecs. (i), (j). Pub. L. 101-433, Sec. 103(2), redesignated
subsec. (i), relating to employment as firefighter or law
enforcement officer, as (j).
Subsec. (k). Pub. L. 101-433, Sec. 103(3), added subsec. (k).
Subsec. (l). Pub. L. 101-521 added cl. (iii) in par. (2)(A), and
in par. (2)(D) inserted "and solely in order to make the deduction
authorized under this paragraph" after "For purposes of this
paragraph" and added cl. (iii).
Pub. L. 101-433, Sec. 103(3), added subsec. (l).
1989 - Subsec. (g). Pub. L. 101-239 struck out subsec. (g) which
read as follows:
"(1) For purposes of this section, any employer must provide that
any employee aged 65 or older, and any employee's spouse aged 65 or
older, shall be entitled to coverage under any group health plan
offered to such employees under the same conditions as any
employee, and the spouse of such employee, under age 65.
"(2) For purposes of paragraph (1), the term 'group health plan'
has the meaning given to such term in section 162(i)(2) of title
26."
1986 - Subsec. (g)(1). Pub. L. 99-272, Sec. 9201(b)(1), and Pub.
L. 99-592, Sec. 2(a), made identical amendments, substituting "or
older" for "through 69" in two places.
Subsec. (g)(2). Pub. L. 99-514 substituted "Internal Revenue Code
of 1986" for "Internal Revenue Code of 1954", which for purposes of
codification was translated as "title 26" thus requiring no change
in text.
Subsec. (h). Pub. L. 99-272, Sec. 9201(b)(3), and Pub. L. 99-592,
Sec. 2(b), made identical amendments, redesignating subsec. (g),
relating to practices of foreign corporations controlled by
American employers, as (h).
Subsec. (i). Pub. L. 99-592, Sec. 3, temporarily added subsec.
(i) which read as follows: "It shall not be unlawful for an
employer which is a State, a political subdivision of a State, an
agency or instrumentality of a State or a political subdivision of
a State, or an interstate agency to fail or refuse to hire or to
discharge any individual because of such individual's age if such
action is taken -
"(1) with respect to the employment of an individual as a
firefighter or as a law enforcement officer and the individual
has attained the age of hiring or retirement in effect under
applicable State or local law on March 3, 1983, and
"(2) pursuant to a bona fide hiring or retirement plan that is
not a subterfuge to evade the purposes of this chapter."
See Effective and Termination Dates of 1986 Amendments note below.
Pub. L. 99-509 added subsec. (i) relating to employee pension
benefit plans.
1984 - Subsec. (f)(1). Pub. L. 98-459, Sec. 802(b)(1), inserted
", or where such practices involve an employee in a workplace in a
foreign country, and compliance with such subsections would cause
such employer, or a corporation controlled by such employer, to
violate the laws of the country in which such workplace is
located".
Subsec. (g). Pub. L. 98-459, Sec. 802(b)(2), added subsec. (g)
relating to practices of foreign corporations controlled by
American employers.
Subsec. (g)(1). Pub. L. 98-369 inserted ", and any employee's
spouse aged 65 through 69," after "aged 65 through 69" and ", and
the spouse of such employee," after "as any employee", in subsec.
(g) relating to entitlement to coverage under group health plan.
1982 - Subsec. (g). Pub. L. 97-248 added subsec. (g) relating to
entitlement to coverage under group health plans.
1978 - Subsec. (f)(2). Pub. L. 95-256 provided that no seniority
system or employee benefit plan require or permit the involuntary
retirement of any individual specified by section 631(a) of this
title because of the age of the individual.
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, Sec. 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.
STUDY AND GUIDELINES FOR PERFORMANCE TESTS
Section 101(a) [title I, Sec. 119[2]] of Pub. L. 104-208 provided
that:
"(a) Study. - Not later than 3 years after the date of enactment
of this Act [Sept. 30, 1996], the Secretary of Health and Human
Services, acting through the Director of the National Institute for
Occupational Safety and Health (referred to in this section
[probably means section 101(a) [title I, Sec. 119[2]] of Pub. L.
104-208] as the 'Secretary'), shall conduct, directly or by
contract, a study, and shall submit to the appropriate committees
of Congress a report based on the results of the study that shall
include -
"(1) a list and description of all tests available for the
assessment of abilities important for the completion of public
safety tasks performed by law enforcement officers and
firefighters;
"(2) a list of the public safety tasks for which adequate tests
described in paragraph (1) do not exist;
"(3) a description of the technical characteristics that the
tests shall meet to be in compliance with applicable Federal
civil rights law and policies;
"(4) a description of the alternative methods that are
available for determining minimally acceptable performance
standards on the tests;
"(5) a description of the administrative standards that should
be met in the administration, scoring, and score interpretation
of the tests; and
"(6) an examination of the extent to which the tests are
cost-effective, are safe, and comply with the Federal civil
rights law and policies.
"(b) Consultation Requirement; Opportunity for Public Comment. -
"(1) Consultation. - The Secretary shall, during the conduct of
the study required by subsection (a), consult with -
"(A) the Deputy Administrator of the United States Fire
Administration;
"(B) the Director of the Federal Emergency Management Agency;
"(C) organizations that represent law enforcement officers,
firefighters, and employers of the officers and firefighters;
and
"(D) organizations that represent older individuals.
"(2) Public comment. - Prior to issuing the advisory guidelines
required in subsection (c), the Secretary shall provide an
opportunity for public comment on the proposed advisory
guidelines.
"(c) Advisory Guidelines. - Not later than 4 years after the date
of enactment of this Act [Sept. 30, 1996], the Secretary shall
develop and issue, based on the results of the study required by
subsection (a), advisory guidelines for the administration and use
of physical and mental fitness tests to measure the ability and
competency of law enforcement officers and firefighters to perform
the requirements of the jobs of the officers and firefighters.
"(d) Job Performance Tests. -
"(1) Identification of tests. - After issuance of the advisory
guidelines described in subsection (c), the Secretary shall issue
regulations identifying valid, nondiscriminatory job performance
tests that shall be used by employers seeking the exemption
described in section 4(j) of the Age Discrimination in Employment
Act of 1967 [29 U.S.C. 623(j)] with respect to firefighters or
law enforcement officers who have attained an age of retirement
described in such section 4(j).
"(2) Use of tests. - Effective on the date of issuance of the
regulations described in paragraph (1), any employer seeking such
exemption with respect to a firefighter or law enforcement
officer who has attained such age shall provide to each
firefighter or law enforcement officer who has attained such age
an annual opportunity to demonstrate physical and mental fitness
by passing a test described in paragraph (1), in order to
continue employment.
"(e) Development of Standards for Wellness Programs. - Not later
than 2 years after the date of enactment of this Act [Sept. 30,
1996], the Secretary shall propose advisory standards for wellness
programs for law enforcement officers and firefighters.
"(f) Authorization of Appropriations. - There is authorized to be
appropriated $5,000,000 to carry out this section."
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 626 of this title.
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