I

104TH CONGRESS

1ST SESSION H. R. 1941

To amend title 38, United States Code, to make clarifying and technical

amendments to further clarify the employment and reemployment rights

and responsibilities of members of the uniformed services, as well as

those of the employer community, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

JUNE 28, 1995

Mr. MONTGOMERY (for himself, Ms. WATERS, Mr. CLYBURN, Mr. MASCARA,

and Mr. EVANS) introduced the following bill; which was referred to the

Committee on Veterans’ Affairs

A BILL

To amend title 38, United States Code, to make clarifying

and technical amendments to further clarify the employment and reemployment rights and responsibilities of

members of the uniformed services, as well as those

of the employer community, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. PURPOSES.

4 Section 4301(a)(2) of title 38, United States Code,

5 is amended by striking ‘‘under honorable conditions’’.
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1 SEC. 2. DEFINITIONS.

2 Section 4303 of title 38, United States Code, is

3 amended—

4 (1) in paragraph (2), by striking ‘‘work per5 formed’’ and inserting ‘‘work not performed’’; and

6 (2) in paragraph (16), by inserting ‘‘national’’

7 before ‘‘emergency’’.

8 SEC. 3. DISCRIMINATION AGAINST PERSONS WHO SERVE IN

9 THE UNIFORMED SERVICES AND ACTS OF RE10 PRISAL PROHIBITED.

11 Section 4311 of title 38, United States Code, is

12 amended by striking subsections (b) and (c) and inserting

13 the following:

14 ‘‘(b) An employer may not discriminate in employ15 ment against or take any adverse employment action

16 against any person because such person (1) has taken an

17 action to enforce a protection afforded any person under

18 this chapter, (2) has testified or otherwise made a state19 ment in or in connection with any proceeding under this

20 chapter, (3) has assisted or otherwise participated in an

21 investigation under this chapter, or (4) has exercised a

22 right provided for in this chapter. The prohibition in this

23 subsection shall apply with respect to a person regardless

24 of whether that person has performed service in the uni25 formed services.
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1 ‘‘(c) An employer shall be considered to have engaged

2 in actions prohibited—

3 ‘‘(1) under subsection (a), if the person’s mem4 bership, application for membership, service, applica5 tion for service, or obligation for service in the uni6 formed services is a motivating factor in the employ7 er’s action, unless the employer can prove that the

8 action would have been taken in the absence of such

9 membership, application for membership, service,

10 application for service, or obligation for service; or

11 ‘‘(2) under subsection (b), if the person’s (A)

12 action to enforce a protection afforded any person

13 under this chapter, (B) testimony or making of a

14 statement in or in connection with any proceeding

15 under this chapter, (C) assistance or other participa16 tion in an investigation under this chapter, or (D)

17 exercise of a right provided for in this chapter, is a

18 motivating factor in the employer’s action, unless

19 the employer can prove that the action would have

20 been taken in the absence of such person’s enforce21 ment action, testimony, statement, assistance, par22 ticipation, or exercise of a right.

23 ‘‘(d) The prohibitions in subsections (a) and (b) shall

24 apply to any position of employment, including a position

25 that is described in section 4312(d)(1)(C).’’.
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1 SEC. 4. REEMPLOYMENT RIGHTS OF PERSONS WHO SERVE

2 IN THE UNIFORMED SERVICES.

3 (a) INCLUSION OF PREPARATION AND TRAVEL TIME

4 PRIOR TO SERVICE.—Section 4312(a) of title 38, United

5 States Code, is amended by striking ‘‘who is absent from

6 a position of employment’’ and inserting ‘‘whose absence

7 from a position of employment is necessitated’’.

8 (b) LIMITATION ON SERVICE EXEMPTION TO WAR OR

9 NATIONAL EMERGENCY.—Section 4312(c)(4)(B) of such

10 title is amended to read as follows:

11 ‘‘(B) ordered to or retained on active duty

12 (other than for training) under any provision of

13 law because of a war or because of a national

14 emergency declared by the President or the

15 Congress as determined by the Secretary con16 cerned;’’.

17 (c) BRIEF, NONRECURRENT PERIODS OF SERVICE.—

18 Section 4312(d)(2)(C) of such title is amended by striking

19 ‘‘is brief or for a nonrecurrent period and without a rea20 sonable expectation’’ and inserting ‘‘is for a brief,

21 nonrecurrent period and there is no reasonable expecta22 tion’’.

23 (d) CONFORMING AMENDMENTS TO REDES24 IGNATIONS IN TITLE 10.—Section 4312(c) of such title

25 is amended—
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1 (1) in paragraph (3), by striking ‘‘section 270’’

2 and inserting ‘‘section 10147’’; and

3 (2) in paragraph (4)—

4 (A) by striking ‘‘section 672(a), 672(g),

5 673, 673b, 673c, or 688’’ in subparagraph (A)

6 and inserting ‘‘section 688, 12301(a),

7 12301(g), 12302, 12304, or 12305’’;

8 (B) by striking ‘‘section 673b’’ in subpara9 graph (C) and inserting ‘‘section 12304’’; and

10 (C) by striking ‘‘section 3500 or 8500’’ in

11 subparagraph (E) and inserting ‘‘section

12 12406’’.

13 SEC. 5. REEMPLOYMENT POSITIONS.

14 Section 4313(a)(4) of title 38, United States Code,

15 is amended—

16 (1) by striking ‘‘uniform services’’ in clause

17 (A)(ii) and inserting ‘‘uniformed services’’; and

18 (2) by striking ‘‘of lesser status and pay which’’

19 and inserting ‘‘which is the nearest approximation to

20 a position referred to first in clause (A)(i) and then

21 in clause (A)(ii) which’’.

22 SEC. 6. HEALTH PLANS.

23 Section 4317(a) of title 38, United States Code, is

24 amended—
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1 (1) by striking ‘‘(a)(1)(A) Subject to para2 graphs (2) and (3), in’’ and inserting ‘‘(a)(1) In’’;

3 (2) by redesignating clauses (i) and (ii) of para4 graph (1) (as amended by paragraph (1) of this sec5 tion) as subparagraphs (A) and (B), respectively;

6 (3) by redesignating subparagraph (B) as para7 graph (2); and

8 (4) by redesignating subparagraph (C) as para9 graph (3), and in that paragraph by redesignating

10 clauses (i) and (ii) as subparagraphs (A) and (B),

11 and by redesignating subclauses (I) and (II) as

12 clauses (i) and (ii), respectively.

13 SEC. 7. EMPLOYEE PENSION BENEFIT PLANS.

14 The last sentence of section 4318(b)(2) of title 38,

15 United States Code, is amended by striking ‘‘services,’’

16 and inserting ‘‘services, such payment period’’.

17 SEC. 8. ENFORCEMENT OF EMPLOYMENT OR REEMPLOY18 MENT RIGHTS.

19 (a) TECHNICAL AMENDMENT.—The second sentence

20 of section 4322(d) of title 38, United States Code, is

21 amended by inserting ‘‘attempt to’’ before ‘‘resolve’’.

22 (b) NOTIFICATION.—Section 4322(e) of such title is

23 amended—

24 (1) in the matter preceding paragraph (1), by

25 striking ‘‘with respect to a complaint under sub-
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1 section (d) are unsuccessful,’’ and inserting ‘‘with

2 respect to any complaint filed under subsection (a)

3 do not resolve the complaint,’’; and

4 (2) in paragraph (2), by inserting ‘‘or the Of5 fice of Personnel Management’’ after ‘‘Federal exec6 utive agency’’.

7 SEC. 9. ENFORCEMENT OF RIGHTS WITH RESPECT TO A

8 STATE OR PRIVATE EMPLOYER.

9 Section 4323(a) of title 38, United States Code, is

10 amended—

11 (1) in paragraph (1), by striking ‘‘of an unsuc12 cessful effort to resolve a complaint’’; and

13 (2) in paragraph (2)(A), by striking ‘‘regarding

14 the complaint under section 4322(c)’’ and inserting

15 ‘‘under section 4322(a)’’.

16 SEC. 10. ENFORCEMENT OF RIGHTS WITH RESPECT TO

17 FEDERAL EXECUTIVE AGENCIES.

18 (a) REFERRAL.—Section 4324(a)(1) of title 38, Unit19 ed States Code, is amended by striking ‘‘of an unsuccess20 ful effort to resolve a complaint relating to a Federal exec21 utive agency’’.

22 (b) ALTERNATIVE SUBMISSION OF COMPLAINT.—

23 Section 4324(b) of such title is amended—
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1 (1) in the matter preceding paragraph (1), by

2 inserting ‘‘or the Office of Personnel Management’’

3 after ‘‘Federal executive agency’’; and

4 (2) in paragraph (1), by striking ‘‘regarding a

5 complaint under section 4322(c)’’ and inserting

6 ‘‘under section 4322(a)’’.

7 (c) RELIEF.—Section 4324(c)(2) of such title is

8 amended—

9 (1) by inserting ‘‘or the Office of Personnel

10 Management’’ after ‘‘Federal executive agency’’; and

11 (2) by striking ‘‘employee’’ and inserting ‘‘Of12 fice’’.

13 SEC. 11. ENFORCEMENT OF RIGHTS WITH RESPECT TO

14 CERTAIN FEDERAL AGENCIES.

15 Section 4325(d)(1) of title 38, United States Code,

16 is amended—

17 (1) by striking ‘‘, alternative employment in the

18 Federal Government under this chapter,’’; and

19 (2) by striking ‘‘employee’’ the last place it ap20 pears and inserting ‘‘employees’’.

21 SEC. 12. CONDUCT OF INVESTIGATION; SUBPOENAS.

22 Section 4326(a) of title 38, United States Code, is

23 amended by inserting ‘‘have reasonable access to and the

24 right to interview persons with information relevant to the

25 investigation and shall’’ after ‘‘at all reasonable times,’’.
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1 SEC. 13. TRANSITION RULES AND EFFECTIVE DATES.

2 (a) REEMPLOYMENT.—Section 8(a) of the Uniformed

3 Services Employment and Reemployment Rights Act of

4 1994 (38 U.S.C. 4301 note) is amended—

5 (1) in paragraph (3), by adding at the end

6 thereof the following: ‘‘Any service begun up to 60

7 days after the date of enactment of this Act, which

8 is served up to 60 days after the date of enactment

9 of this Act pursuant to orders issued under section

10 502(f) of chapter 5 of title 32, United States Code,

11 shall be considered under chapter 43 of title 38,

12 United States Code, as in effect on the day before

13 such date of enactment. Any service pursuant to or14 ders issued under section 502(f) of chapter 5 of title

15 32, United States Code, served after 60 days after

16 the date of enactment of this Act, regardless of

17 when begun, shall be considered under the amend18 ments made by this Act.’’; and

19 (2) in paragraph (4), by striking ‘‘such period’’

20 and inserting ‘‘such 60-day period’’.

21 (b) INSURANCE.—Section 8(c)(2) of such Act is

22 amended by striking ‘‘person on active duty’’ and inserting

23 ‘‘person serving a period of service in the uniformed serv24 ices’’.
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1 SEC. 14. EFFECTIVE DATES.

2 (a) IN GENERAL.—Except as provided in subsection

3 (b), the amendments made by this Act shall take effect

4 as of October 13, 1994.

5 (b) REORGANIZED TITLE 10 REFERENCES.—The

6 amendments made by section 4(d) shall take effect as of

7 December 1, 1994.

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