38 U.S.C. § 4104

Local veterans’ employment representatives

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(a)Requirement for Employment by States of a Sufficient Number of Representatives.—Subject to approval by the Secretary, a State shall employ such full- and part-time local veterans’ employment representatives as the State determines appropriate and efficient to carry out employment, training, and placement services under this chapter.(b)Principal Duties.—As principal duties, local veterans’ employment representatives shall—(1) conduct outreach to employers in the area to assist veterans in gaining employment, including conducting seminars for employers and, in conjunction with employers, conducting job search workshops and establishing job search groups; and(2) facilitate employment, training, and placement services furnished to veterans in a State under the applicable State employment service delivery systems.(c)Requirement for Qualified Veterans and Eligible Persons.—A State shall, to the maximum extent practicable, employ qualified veterans or eligible persons to carry out the services referred to in subsection (a). Preference shall be accorded in the following order:(1) To qualified service-connected disabled veterans.(2) If no veteran described in paragraph (1) is available, to qualified eligible veterans.(3) If no veteran described in paragraph (1) or (2) is available, then to qualified eligible persons.(d)Part-Time Employees.—A part-time local veterans’ employment representative shall perform the functions of a local veterans’ employment representative under this section on a half-time basis.(e)Additional Requirements for Full-time Employees.—(1) A full-time local veterans’ employment representative shall perform only duties related to the employment, training, and placement services under this chapter, and shall not perform other non-veteran-related duties that detract from the representative’s ability to perform the representative’s duties related to employment, training, and placement services under this chapter.(2) The Secretary shall conduct regular audits to ensure compliance with paragraph (1). If, on the basis of such an audit, the Secretary determines that a State is not in compliance with paragraph (1), the Secretary may reduce the amount of a grant made to the State under section 4102A(b)(5) of this title.(f)Reporting.—Each local veterans’ employment representative shall be administratively responsible to the manager of the employment service delivery system and shall provide reports, not less frequently than quarterly, to the manager of such office and to the Director for Veterans’ Employment and Training for the State regarding compliance with Federal law and regulations with respect to special services and priorities for eligible veterans and eligible persons.(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1219, § 2013; renumbered § 2004, Pub. L. 87–675, § 1(a), Sept. 19, 1962, 76 Stat. 558; amended Pub. L. 89–358, § 6(c)(1), Mar. 3, 1966, 80 Stat. 27; Pub. L. 92–540, title V, § 502(a), Oct. 24, 1972, 86 Stat. 1095; Pub. L. 94–502, title VI, § 606(2), Oct. 15, 1976, 90 Stat. 2405; Pub. L. 100–323, § 3(a), May 20, 1988, 102 Stat. 560; Pub. L. 101–237, title IV, § 423(b)(8)(B), Dec. 18, 1989, 103 Stat. 2093; Pub. L. 102–16, § 10(a)(8), Mar. 22, 1991, 105 Stat. 56; renumbered § 4104 and amended Pub. L. 102–83, § 5(a), (c)(1), Aug. 6, 1991, 105 Stat. 406; Pub. L. 107–14, § 8(a)(10), June 5, 2001, 115 Stat. 35; Pub. L. 107–95, § 9(b), Dec. 21, 2001, 115 Stat. 920; Pub. L. 107–288, § 4(b)(2), Nov. 7, 2002, 116 Stat. 2043; Pub. L. 109–461, title VI, § 602(b), Dec. 22, 2006, 120 Stat. 3437; Pub. L. 112–56, title II, § 241(b), Nov. 21, 2011, 125 Stat. 728.)Editorial NotesPrior Provisions

Prior section 4104, Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1244; Pub. L. 89–785, title I, § 104, Nov. 7, 1966, 80 Stat. 1369; Pub. L. 94–123, § 5(a), Oct. 22, 1975, 89 Stat. 675; Pub. L. 94–581, title I, § 110(3), title II, §§ 209(a)(1), (2), 210(c)(3), Oct. 21, 1976, 90 Stat. 2848, 2860, 2863; Pub. L. 96–151, title III, § 302(a), Dec. 20, 1979, 93 Stat. 1096; Pub. L. 98–160, title II, § 201, Nov. 21, 1983, 97 Stat. 1000; Pub. L. 98–528, title I, § 108, Oct. 19, 1984, 98 Stat. 2690; Pub. L. 100–322, title II, § 211(a), May 20, 1988, 102 Stat. 513; Pub. L. 101–366, title I, § 102(a), Aug. 15, 1990, 104 Stat. 430, related to appointment of additional personnel for medical care of veterans, prior to repeal by Pub. L. 102–40, title IV, § 401(a)(3), May 7, 1991, 105 Stat. 210. See section 7401 of this title.

Provisions similar to those comprising this section were contained in former section 2003 of this title prior to the amendment of this chapter by Pub. L. 92–540.

Amendments

2011—Subsecs. (e), (f). Pub. L. 112–56 added subsec. (e) and redesignated former subsec. (e) as (f).

2006—Subsecs. (d), (e). Pub. L. 109–461 added subsec. (d) and redesignated former subsec. (d) as (e).

2002—Pub. L. 107–288 amended text generally, substituting subsecs. (a) to (d) for former subsecs. (a) to (c) relating to appointment, functions, and reporting requirements of local veterans’ employment representatives.

2001—Subsec. (a)(1). Pub. L. 107–14, § 8(a)(10)(A)(i), substituted “For any fiscal year,” for “Beginning with fiscal year 1988,” in introductory provisions.

Subsec. (a)(1)(B). Pub. L. 107–14, § 8(a)(10)(A)(ii), substituted “subparagraph (A)” for “clause (A)”.

Subsec. (a)(1)(C). Pub. L. 107–14, § 8(a)(10)(A)(iii), substituted “subparagraphs (A) and (B)” for “clauses (A) and (B)”.

Subsec. (a)(4). Pub. L. 107–14, § 8(a)(10)(B), struck out “on or after July 1, 1988” after “local veterans’ employment representatives”.

Subsec. (b). Pub. L. 107–14, § 8(a)(10)(C)(i), substituted “shall perform the following functions:” for “shall—” in introductory provisions.

Subsec. (b)(1) to (10). Pub. L. 107–14, § 8(a)(10)(C)(ii), (iii), capitalized the first letter of the first word and substituted a period for the semicolon at end.

Subsec. (b)(11). Pub. L. 107–95, § 9(b)(1), which directed that “and” be struck out at end, could not be executed because of the intervening amendment by Pub. L. 107–14, § 8(a)(10)(C)(iv). See below.

Pub. L. 107–14, § 8(a)(10)(C)(ii), (iv), capitalized the first letter of the first word and substituted a period for “; and” at end.

Subsec. (b)(12). Pub. L. 107–95, § 9(b)(2), substituted “; and” for period at end.

Pub. L. 107–14, § 8(a)(10)(C)(ii), capitalized the first letter of the first word.

Subsec. (b)(13). Pub. L. 107–95, § 9(b)(3), added par. (13).

1991—Pub. L. 102–83, § 5(a), renumbered section 2004 of this title as this section.

Subsec. (a)(1). Pub. L. 102–83, § 5(c)(1), substituted “4102A(b)(5)(A)(ii)” for “2002A(b)(5)(A)(ii)” in introductory provisions.

Pub. L. 102–16, § 10(a)(8)(A), (B), substituted “appointment” for “assignment” in two places in introductory provisions and in subpar. (C).

Subsec. (a)(4). Pub. L. 102–16, § 10(a)(8)(C), substituted “appointment” for “assigning”.

Subsec. (b)(6). Pub. L. 102–83, § 5(c)(1), substituted “4212” for “2012”.

Subsec. (b)(10). Pub. L. 102–83, § 5(c)(1), substituted “1712A” for “612A”.

Subsec. (d). Pub. L. 102–16, § 10(a)(8)(D), struck out subsec. (d) which read as follows: “Local veterans’ employment representatives shall be assigned, in accordance with this section, by the administrative head of the employment service in each State after consultation with the Director for Veterans’ Employment and Training.”

1989—Subsec. (b)(7). Pub. L. 101–237 substituted “Department of Veterans Affairs” for “Veterans’ Administration”.

1988—Pub. L. 100–323 substituted “Local veterans’ employment representatives” for “Employees of local offices” as section catchline and amended section generally. Prior to amendment, section read as follows: “Except as may be determined by the Secretary of Labor based on a demonstrated lack of need for such services, there shall be assigned by the administrative head of the employment service in each State one or more employees, preferably eligible veterans or eligible persons, on the staffs of local employment service offices, whose services shall be fully devoted to discharging the duties prescribed for the veterans’ employment representative and such representative’s assistants.”

1976—Pub. L. 94–502 substituted “eligible veterans or eligible persons” for “eligible veterans” and “such representative’s” for “his”.

1972—Pub. L. 92–540 substituted provisions relating to the assignment of employees of local offices for provisions relating to the cooperation of other Federal agencies. See section 2005 of this title.

1966—Pub. L. 89–358 inserted “or of service after January 31, 1955” after “veterans of any war”.

Statutory Notes and Related SubsidiariesEffective Date of 2006 Amendment

Subsec. (d) of this section as amended by Pub. L. 109–461 applicable with respect to pay periods beginning after the date that is 180 days after Dec. 22, 2006, see section 602(c) of Pub. L. 109–461, set out as a note under section 4103A of this title.

Effective Date of 2002 Amendment

Amendment by Pub. L. 107–288 effective Nov. 7, 2002, and applicable for program years under this chapter beginning on or after such date, see section 4(b)(3) of Pub. L. 107–288, set out as a note under section 4103A of this title.

Effective Date of 1988 Amendment

Amendment by Pub. L. 100–323 effective May 20, 1988, except that subsec. (a)(1) to (3) effective for all of fiscal year 1988 and subsequent fiscal years, see section 16(a), (b)(1)(C) of Pub. L. 100–323, set out as a note under section 3104 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 1972 Amendment

Amendment by Pub. L. 92–540 effective 90 days after Oct. 24, 1972, see section 601(b) of Pub. L. 92–540, set out as a note under section 4101 of this title.

Pilot Program To Integrate and Streamline Functions of Local Veterans’ Employment Representatives

Pub. L. 104–275, title III, § 303, Oct. 9, 1996, 110 Stat. 3332, as amended by Pub. L. 105–368, title X, § 1005(c)(1), Nov. 11, 1998, 112 Stat. 3366, provided that:“(a)Authority To Conduct Pilot Program.—In order to assess the effects on the timeliness and quality of services to veterans resulting from re-focusing the staff resources of local veterans’ employment representatives, the Secretary of Labor may conduct a pilot program under which the primary responsibilities of local veterans’ employment representatives will be case management and the provision and facilitation of direct employment and training services to veterans.“(b)Authorities Under Chapter 41.—To implement the pilot program, the Secretary of Labor may suspend or limit application of those provisions of chapter 41 of title 38, United States Code (other than subsections (b)(1) and (c) of section 4104) that pertain to the Local Veterans’ Employment Representative Program in States designated by the Secretary under subsection (d), except that the Secretary may use the authority of such chapter, as the Secretary may determine, in conjunction with the authority of this section, to carry out the pilot program. The Secretary may collect such data as the Secretary considers necessary for assessment of the pilot program. The Secretary shall measure and evaluate on a continuing basis the effectiveness of the pilot program in achieving its stated goals in general, and in achieving such goals in relation to their cost, their effect on related programs, and their structure and mechanisms for delivery of services.“(c)Targeted Veterans.—Within the pilot program, eligible veterans who are among groups most in need of intensive services, including disabled veterans, economically disadvantaged veterans, and veterans separated within the previous four years from active military, naval, or air service shall be given priority for service by local veterans’ employment representatives. Priority for the provision of service shall be given first to disabled veterans and then to the other categories of veterans most in need of intensive services in accordance with priorities determined by the Secretary of Labor in consultation with appropriate State labor authorities.“(d)States Designated.—The pilot program shall be limited to not more than five States to be designated by the Secretary of Labor.“(e)Reports to Congress.—(1) Not later than one year after the date of the enactment of this Act [Oct. 9, 1996], the Secretary of Labor shall submit to the Committees on Veterans’ Affairs of the Senate and the House of Representatives an interim report describing in detail the development and implementation of the pilot program on a State by State basis.“(2) Not later than 120 days after the expiration of this section under subsection (h), the Secretary of Labor shall submit to the Committees on Veterans’ Affairs of the Senate and the House of Representatives a final report evaluating the results of the pilot program and make recommendations based on the evaluation, which may include legislative recommendations.“(f)Definitions.—For the purposes of this section:“(1) The term ‘veteran’ has the meaning given such term by section 101(2) of title 38, United States Code.“(2) The term ‘disabled veteran’ has the meaning given such term by section 4211(3) of such title.“(3) The term ‘active military, naval, or air service’ has the meaning given such term by section 101(24) of such title.“(g)Allocation of Funds.—Any amount otherwise available for fiscal year 1997, 1998, or 1999 to carry out section 4102A(b)(5) of title 38, United States Code, with respect to a State designated by the Secretary of Labor pursuant to subsection (d) shall be available to carry out the pilot program during that fiscal year with respect to that State.“(h)Expiration Date.—The authority to carry out the pilot program under this section shall expire on October 1, 1999.”

Notes of Decisions

Cited in 28 cases (1 in the last 5 years), 1973–2023 · leading case: Brambley v. Principi, 17 Vet. App. 20 (Vet. App. 2003).

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Brambley v. Principi, 17 Vet. App. 20 (Vet. App. 2003). · cites it 2× “419, 425 (1991) (holding that under prior 38 U.S.C. §§ 4104 (d)(1) and 5107(a) VA is obligated to respond to specific "request for VA assistance one way or the other").”

Annamma A. Ezekiel & Al Ezekiel v. Jaime T. Michel & United States of Am., 66 F.3d 894 (7th Cir. 1995). “under 38 U.S.C. §§ 4104 , 4114 respectively, have [such an obligation], we hold that the strict control test — governmental authority to control the professional performance of his duties — is inappropriate in determining whether Congress intended that a section 4114 physician…”

Marc A. Stretten v. Wadsworth Vets. Hosp., 537 F.2d 361 (9th Cir. 1976). “” 38 U.S.C. § 4104 . 5 . “(b) The Administrator shall have authority to establish residencies and internships; to appoint qualified persons to such positions without regard to civil-service or classification laws, rules, or regulations; and to prescribe the conditions of such…”

Iqbal M. Khan v. United States, 201 F.3d 1375 (Fed. Cir. 2000). “Khan was appointed as a VHA physician under 38 U.S.C. § 4104 (1970), which was later recodified as 38 U.”

Marshall J. Orloff, M.D. v. Max Cleland, as Adm'r, of the Vets. Admin., 708 F.2d 372 (9th Cir. 1983). “These procedural rights are applicable only to physicians appointed under the authority of 38 U.S.C. § 4104 (1). They do not apply to part-time appointments, such as Orloff's, under § 4114(a)(1).”

Margaret J. Kenneth v. Paul Schmoll, Dir., 482 F.2d 90 (10th Cir. 1973). · cites it 4× “By statute, the initial hiring by the VA of a nurse, as well as a doctor or a dentist, as “additional personnel” under 38 U.S.C. §§ 4104 and 4106 is for a three-year probationary period.”

John P. Heaney, M.D. v. United States Vets. Admin., 756 F.2d 1215 (5th Cir. 1985). “1976); their appointments are more discretionary, 38 U.S.C. § 4104 (Supp.V.1976); and they are exempted from other civil service requirements for qualifications.”

Charles Quilico v. Sidney J. Kaplan & Samuel Solomon, 749 F.2d 480 (7th Cir. 1984). “Because both permanent and temporary physicians and surgeons appointed to the VA Department of Medicine and Surgery, under 38 U.S.C. §§ 4104 , 4114 respectively, have an ethical obligation to exercise independent judgment that prevents the VA from strictly controlling their…”

E. Stanton Maxey, M.D. v. Dan G. Kadrovach, David K. McAfee M.D., & the Vets. Admin., an Agency of the United States of Am., 890 F.2d 73 (8th Cir. 1990). “The appendix supplied to the court indicates that Maxey was initially hired by the VA Medical Center in Big Springs, Texas, as a staff surgeon in a "full time permanent, excepted” position, pursuant to 38 U.S.C. § 4104 (1). The appointment is noted to be subject to a two-year…”

Franks v. Nimmo, 683 F.2d 1290 (10th Cir. 1982). · cites it 5× “Franks received a permanent appointment as a VA doctor pursuant to 38 U.S.C. § 4104 1 and commenced serving the two-year probationary period required by 38 U.”

Franks v. Nimmo, 796 F.2d 1230 (10th Cir. 1986). “The appointment of permanent full-time physicians is made pursuant to 38 U.S.C. § 4104 (1982) and is governed by section 4106, which provides: “Such appointments as described in subsection (a) of this section shall be for a probationary period of two years and the record of each…”

Adib Zaky, M.D. v. United States Vets. Admin., James Woytassek, & Sun J. Guo, M.D., 793 F.2d 832 (7th Cir. 1986). “Adib Zaky, was employed as a cardiologist at the Veteran’s Administration Medical Center at Fort Wayne, Indiana, pursuant to 38 U.S.C. §§ 4104 and 4106. Dr. Zaky was appointed for a two year probationary period, as provided in § 4106.”

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