IB

103D CONGRESS

1ST SESSION H. R. 995

[Report No. 103–65, Part I]

To amend title 38, United States Code, to improve reemployment rights

and benefits of veterans and other benefits of employment of certain

members of the uniformed services, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

FEBRUARY 18, 1993

Mr. MONTGOMERY (for himself, Mr. STUMP, Mr. PENNY, Mr. SMITH of New

Jersey, Mr. SLATTERY, Mr. CLYBURN, and Mr. QUINN) introduced the

following bill; which was referred jointly to the Committees on Veterans’

Affairs and Post Office and Civil Service

APRIL 28, 1993

Additional sponsors: Mr. EVERETT, Mr. HEFNER, Mr. RICHARDSON, Mr.

STENHOLM, Mr. PAYNE of Virginia, Mr. PARKER, Ms. WATERS, Ms.

BROWN of Florida, and Mr. BISHOP

APRIL 28, 1993

Reported from the Committee on Veterans’ Affairs with an amendment

[Strike out all after the enacting clause and insert the part printed in italic]

[For text of the introduced bill, see copy of bill as introduced on February 18, 1993]

A BILL

To amend title 38, United States Code, to improve reemployment rights and benefits of veterans and other benefits

of employment of certain members of the uniformed services, and for other purposes.
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1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Uniformed Services Em5 ployment and Reemployment Rights Act of 1993’’.

6 SEC. 2. REVISION OF CHAPTER 43 OF TITLE 38.

7 (a) RESTATEMENT AND IMPROVEMENT OF EMPLOY8 MENT AND REEMPLOYMENT RIGHTS.—Chapter 43 of title

9 38, United States Code, is amended to read as follows:

10 ‘‘CHAPTER 43—EMPLOYMENT AND REEMPLOY11 MENT RIGHTS OF MEMBERS OF THE UNI12 FORMED SERVICES

‘‘SUBCHAPTER I—PURPOSES, RELATION TO OTHER LAW, AND

DEFINITIONS

‘‘Sec.

‘‘4301. Purposes; sense of Congress.

‘‘4302. Relation to other law and plans or agreements.

‘‘4303. Definitions.

‘‘SUBCHAPTER II—EMPLOYMENT AND REEMPLOYMENT RIGHTS

AND LIMITATIONS; PROHIBITIONS

‘‘4311. Discrimination against persons who serve in the uniformed services and

acts of reprisal prohibited.

‘‘4312. Reemployment rights of persons who serve in the uniformed services.

‘‘4313. Reemployment positions.

‘‘4314. Reemployment by the Federal Government.

‘‘4315. Rights, benefits, and obligations of persons absent from employment for

service in a uniformed service.

‘‘4316. Employee pension benefit plans.

‘‘4317. Character of service.

‘‘SUBCHAPTER III—PROCEDURES FOR ASSISTANCE, ENFORCEMENT,

AND INVESTIGATIONS

‘‘4321. Assistance in obtaining employment or reemployment.

‘‘4322. Enforcement of employment or reemployment rights.

‘‘4323. Conduct of investigation; subpoenas.
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‘‘SUBCHAPTER IV—MISCELLANEOUS PROVISIONS

‘‘4331. Regulations.

‘‘4332. Reports.

‘‘4333. Outreach.

1 ‘‘SUBCHAPTER I—PURPOSES, RELATION TO

2 OTHER LAW, AND DEFINITIONS

3 ‘‘§ 4301. Purposes; sense of Congress

4 ‘‘(a) The purposes of this chapter are—

5 ‘‘(1) to encourage noncareer service in the uni6 formed services by eliminating or minimizing the dis7 advantages to civilian careers and employment which

8 can result from such service;

9 ‘‘(2) to minimize the disruption to the lives of

10 persons performing service in the uniformed services

11 as well as to their employers, their fellow employees,

12 and their communities, by providing for the prompt

13 reemployment of such persons upon their completion

14 of such service under honorable conditions; and

15 ‘‘(3) to prohibit discrimination against persons

16 because of their service in the uniformed services.

17 ‘‘(b) It is the sense of Congress that the Federal Gov18 ernment should be a model employer in carrying out the

19 reemployment practices provided for in this chapter.

20 ‘‘§ 4302. Relation to other law and plans or agree21 ments

22 ‘‘(a) Nothing in this chapter shall supersede, nullify,

23 or diminish any Federal or State law (including any local
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1 law or ordinance) or any contract, practice, policy, agree2 ment, plan, or other matter provided by an employer which

3 establishes rights or benefits which are greater than or in

4 addition to those provided in this chapter.

5 ‘‘(b) This chapter supersedes State laws (including any

6 local law or ordinance), employer practices, policies, agree7 ments, and plans, and other matters that reduce, limit, or

8 eliminate in any manner rights or benefits provided by this

9 chapter, including the establishment of additional pre10 requisites to the exercise of such rights.

11 ‘‘§ 4303. Definitions

12 ‘‘For the purposes of this chapter:

13 ‘‘(1) The term ‘Attorney General’ means the At14 torney General of the United States or any person

15 designated by the Attorney General to carry out a re16 sponsibility of the Attorney General under this

17 chapter.

18 ‘‘(2) The term ‘benefit’, ‘benefit of employment’,

19 or ‘rights and benefits’ means any aspect of the em20 ployment relationship, other than wages or salary for

21 work performed, provided by contract or employer

22 practice or custom, that offers advantage, profit,

23 privilege, gain, status, account, or interest and in24 cludes, but is not limited to, pension plans and pay25 ments, insurance coverage and awards, employee stock
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1 ownership plans, bonuses, severance pay, supple2 mental unemployment benefits, vacations, and selec3 tion of work hours or locations of employment.

4 ‘‘(3) The term ‘employee’ means any person em5 ployed by an employer.

6 ‘‘(4)(A) Except as provided in subparagraphs

7 (B) and (C), the term ‘employer’ means any person,

8 institution, organization, or other entity that pays

9 salary or wages for work performed or that has con10 trol over employment opportunities, including—

11 ‘‘(i) a person, institution, organization, or

12 other entity to whom the employer has delegated

13 the performance of employment-related respon14 sibilities;

15 ‘‘(ii) the Federal Government;

16 ‘‘(iii) a State;

17 ‘‘(iv) any successor in interest to a person,

18 institution, organization, or other entity referred

19 to in this subparagraph; and

20 ‘‘(v) a person, institution, organization, or

21 other entity that has denied initial employment

22 in violation of section 4311.

23 ‘‘(B) In the case of a National Guard technician

24 employed under section 709 of title 32, the term ‘em-
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1 ployer’ means the adjutant general of the State in

2 which the technician is employed.

3 ‘‘(C) Except as an actual employer of employees,

4 an employee pension benefit plan described in section

5 3(2) of the Employee Retirement Income Security Act

6 of 1974 (29 U.S.C. 1002(2)) shall be deemed to be an

7 employer only with respect to the obligation to pro8 vide benefits described in section 4316.

9 ‘‘(5) The term ‘Federal Government’ includes the

10 executive branch, the judicial branch, and the legisla11 tive branch, with the executive branch including—

12 ‘‘(A) any department, administration, agen13 cy, commission, board, or independent establish14 ment in, or other part of, the executive branch

15 (including any executive agency as defined in

16 section 105 of title 5);

17 ‘‘(B) the United States Postal Service and

18 the Postal Rate Commission;

19 ‘‘(C) any nonappropriated fund activity of

20 the United States; and

21 ‘‘(D) any corporation wholly owned by the

22 United States.

23 ‘‘(6) The term ‘health plan’ means an insurance

24 policy or contract, medical or hospital service agree25 ment, membership or subscription contract, or other
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1 arrangement under which health services for individ2 uals are provided or the expenses of such services are

3 paid.

4 ‘‘(7) The term ‘notice’ means (with respect to

5 subchapter II) any written or verbal notification of

6 an obligation or intention to perform service in the

7 uniformed services provided to an employer by the

8 employee who will perform such service or by the uni9 formed service in which such service is to be per10 formed.

11 ‘‘(8) The term ‘other than a temporary position’

12 means a position of employment as to which there is

13 a reasonable expectation that it will continue indefi14 nitely.

15 ‘‘(9) The term ‘qualified’ means having the abil16 ity to perform the essential tasks of an employment

17 position.

18 ‘‘(10) The term ‘reasonable efforts’ means ac19 tions, including training provided by an employer,

20 that do not create an undue hardship on the em21 ployer.

22 ‘‘(11) Notwithstanding section 101, the term

23 ‘Secretary’ means the Secretary of Labor or any per24 son designated by such Secretary to carry out an ac25 tivity under this chapter.
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1 ‘‘(12) The term ‘seniority’ means longevity in

2 employment together with any benefits of employment

3 which accrue with, or are determined by, longevity in

4 employment.

5 ‘‘(13) The term ‘service in the uniformed serv6 ices’ means the performance of duty on a voluntary

7 or involuntary basis in a uniformed service under

8 competent authority and includes active duty, active

9 duty for training, initial active duty for training, in10 active duty training, full-time National Guard duty,

11 and a period for which a person is absent from a po12 sition of employment for the purpose of an examina13 tion to determine the fitness of the person to perform

14 any such duty.

15 ‘‘(14) The term ‘State’ means each of the several

16 States of the United States, the District of Columbia,

17 the Commonwealth of Puerto Rico, Guam, the Virgin

18 Islands, and other territories of the United States (in19 cluding the agencies and political subdivisions there20 of).

21 ‘‘(15)(A) The term ‘undue hardship’ means an

22 action requiring significant difficulty or expense,

23 when considered in light of the factors set forth in

24 subparagraph (B).
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1 ‘‘(B) In determining whether an action would

2 impose an undue hardship on an employer, factors to

3 be considered include—

4 ‘‘(i) the nature and cost of the action needed

5 under this chapter;

6 ‘‘(ii) the overall financial resources of the

7 facility or facilities involved in the provision of

8 the action; the number of persons employed at

9 such facility; the effect on expenses and resources,

10 or the impact otherwise of such action upon the

11 operation of the facility;

12 ‘‘(iii) the overall financial resources of the

13 employer; the overall size of the business of an

14 employer with respect to the number of its em15 ployees; the number, type, and location of its fa16 cilities; and

17 ‘‘(iv) the type of operation or operations of

18 the employer, including the composition, struc19 ture, and functions of the work force of such em20 ployer; the geographic separateness, administra21 tive, or fiscal relationship of the facility or fa22 cilities in question to the employer.

23 ‘‘(16) The term ‘uniformed services’ means the

24 Armed Forces, the Army National Guard and the Air

25 National Guard when engaged in active duty for
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1 training, inactive duty training, or full-time Na2 tional Guard duty, the commissioned corps of the

3 Public Health Service, and any other category of per4 sons designated by the President in time of war or

5 emergency.

6 ‘‘SUBCHAPTER II—EMPLOYMENT AND REEM7 PLOYMENT RIGHTS AND LIMITATIONS; PRO8 HIBITIONS

9 ‘‘§ 4311. Discrimination against persons who serve in

10 the uniformed services and acts of re11 prisal prohibited

12 ‘‘(a) A person who is a member of, applies to be a

13 member of, performs, has performed, applies to perform, or

14 has an obligation to perform service in a uniformed service

15 shall not be denied initial employment, reemployment, re16 tention in employment, promotion, or any benefit of em17 ployment by an employer on the basis of that membership,

18 application for membership, service, application for service,

19 or obligation.

20 ‘‘(b) An employer shall be considered to have denied

21 a person initial employment, reemployment, retention in

22 employment, promotion, or a benefit of employment in vio23 lation of this section if the person’s membership, applica24 tion for membership, service, application for service, or obli25 gation for service in the uniformed services is a motivating
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1 factor in the employer’s action, unless the employer can

2 demonstrate that the action would have been taken in the

3 absence of such membership, application for membership,

4 service, application for service, or obligation.

5 ‘‘(c)(1) An employer may not discriminate in employ6 ment against or take any adverse employment action

7 against any person because such person has taken an action

8 to enforce a protection afforded any person under this chap9 ter, has testified or otherwise made a statement in or in

10 connection with any proceeding under this chapter, has as11 sisted or otherwise participated in an investigation under

12 this chapter, or has exercised a right provided for in this

13 chapter.

14 ‘‘(2) The prohibition in paragraph (1) shall apply

15 with respect to a person regardless of whether that person

16 has performed service in the uniformed services.

17 ‘‘§ 4312. Reemployment rights of persons who serve in

18 the uniformed services

19 ‘‘(a) Subject to subsections (b), (c), and (d) and to sec20 tion 4317, any person who is absent from a position of em21 ployment (other than a temporary position) by reason of

22 service in the uniformed services shall be entitled to the re23 employment rights and benefits and other employment bene24 fits of this chapter if—
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1 ‘‘(1) the person (or an appropriate officer of the

2 uniformed service in which such service is performed)

3 has given advance written or verbal notice of such

4 service to such person’s employer;

5 ‘‘(2) except as provided in subsection (c), the cu6 mulative length of the absence and of all previous ab7 sences from a position of employment with that em8 ployer by reason of service in the uniformed services

9 does not exceed five years; and

10 ‘‘(3) except as provided in subsection (f), the per11 son reports to, or submits an application for reem12 ployment to, such employer in accordance with the

13 provisions of subsection (e).

14 ‘‘(b) No notice is required under subsection (a)(1) if

15 the giving of such notice is precluded by military necessity

16 or, under all of the relevant circumstances, the giving of

17 such notice is otherwise impossible or unreasonable. A deter18 mination of military necessity for the purposes of this sub19 section shall be made pursuant to regulations prescribed by

20 the Secretary of Defense and shall not be subject to judicial

21 review.

22 ‘‘(c) Subsection (a) shall apply if such person’s cumu23 lative period of service in the uniformed services, with re24 spect to the employer relationship for which a person seeks
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1 reemployment, does not exceed five years, except that any

2 such period of service shall not include any service—

3 ‘‘(1) that is required, beyond five years, to com4 plete an initial period of obligated service;

5 ‘‘(2) during which such person was unable to ob6 tain orders releasing such person from a period of

7 service in the uniformed services before the expiration

8 of such five-year period and such inability was

9 through no fault of such person;

10 ‘‘(3) performed as required pursuant to section

11 270 of title 10, under section 502(a) or 503 of title

12 32, or to fulfill additional training requirements de13 termined and certified in writing by the Secretary

14 concerned to be necessary for professional development

15 or for completion of skill training or retraining; or

16 ‘‘(4) performed by a member of a uniformed

17 service who is—

18 ‘‘(A) ordered to or retained on active duty

19 under section 672(a), 672(g), 673, 673b, 673c, or

20 688 of title 10;

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

22 (other than for training) under any provision of

23 law during a war or during a national emer24 gency declared by the President or the Congress;
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1 ‘‘(C) ordered to active duty (other than for

2 training) in support, as determined by the Sec3 retary concerned, of an operational mission for

4 which personnel have been ordered to active duty

5 under section 673b of title 10;

6 ‘‘(D) ordered to active duty in support, as

7 determined by the Secretary concerned, of a crit8 ical mission or requirement of the uniformed

9 services; or

10 ‘‘(E) called into Federal service as a mem11 ber of the National Guard under chapter 15 of

12 title 10 or under section 3500 or 8500 of title 10.

13 ‘‘(d)(1) An employer is not required to reemploy a per14 son under this chapter if—

15 ‘‘(A) the employer’s circumstances have so

16 changed as to make such reemployment impossible or

17 unreasonable, or

18 ‘‘(B) in the case of a person entitled to reemploy19 ment under section 4313 (a)(3), (a)(4), or (b)(2)(B),

20 such employment would impose an undue hardship

21 on the operation of the employer.

22 ‘‘(2) In any administrative or judicial proceeding in23 volving an issue of whether—
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1 ‘‘(A) any reemployment referred to in paragraph

2 (1) is impossible or unreasonable because of a change

3 in an employer’s circumstances, or

4 ‘‘(B) any accommodation, training, or effort re5 ferred to in section 4313 (a)(3), (a)(4), or (b)(2)(B)

6 would impose an undue hardship on the operation of

7 the business of the employer,

8 the employer shall have the burden of proving the impos9 sibility or unreasonableness or undue hardship.

10 ‘‘(e)(1) Subject to paragraph (2), a person referred to

11 in subsection (a) shall, upon the completion of a period of

12 service in the uniformed services, notify the employer re13 ferred to in such subsection of the person’s intent to return

14 to a position of employment with such employer as follows:

15 ‘‘(A) In the case of a person whose period of serv16 ice in the uniformed services was less than 31 days,

17 by reporting to the employer—

18 ‘‘(i) not later than the beginning of the first

19 full regularly scheduled work period on the first

20 full calendar day following the completion of the

21 period of service and the expiration of eight

22 hours after a period allowing for the safe trans23 portation of the person from the place of that

24 service to the person’s residence; or
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1 ‘‘(ii) as soon as possible after the expiration

2 of the eight-hour period referred to in clause (i),

3 if reporting within the period referred to in such

4 clause is impossible or unreasonable through no

5 fault of the person.

6 ‘‘(B) In the case of a person who is absent from

7 a position of employment for a period of any length

8 for the purposes of an examination to determine the

9 person’s fitness to perform service in the uniformed

10 services, by reporting in the manner and time re11 ferred to in subparagraph (A).

12 ‘‘(C) In the case of a person whose period of serv13 ice in the uniformed services was for more than 30

14 days but less than 181 days, by submitting an appli15 cation for reemployment with the employer not later

16 than 14 days after the completion of the period of

17 service or as soon as possible after such 14-day period

18 if submitting such application within such period is

19 impossible or unreasonable through no fault of the

20 person.

21 ‘‘(D) In the case of a person whose period of

22 service in the uniformed services was for more than

23 180 days, by submitting an application for reemploy24 ment with the employer not later than 90 days after

25 the completion of the period of service or as soon as
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1 possible after such 90-day period if submitting such

2 application within such period is impossible or un3 reasonable through no fault of the person.

4 ‘‘(2)(A) A person who is hospitalized for, or convalesc5 ing from, an illness or injury incurred in, or aggravated

6 by, the performance of a period of service in the uniformed

7 services shall, at the end of the period that is necessary for

8 the person to recover from such illness or injury submit an

9 application for reemployment with such employer. Such pe10 riod of recovery may not exceed two years, except as pro11 vided in subparagraph (B).

12 ‘‘(B) Such two-year period shall be extended by the

13 minimum time required to accommodate the circumstances

14 beyond such person’s control which make reporting within

15 the time limit specified in subparagraph (A) impossible or

16 unreasonable.

17 ‘‘(f) A person who fails to report for employment or

18 reemployment within the time limits specified in subsection

19 (e) does not automatically forfeit such person’s right under

20 subsection (a) but shall be subject to the conduct rules, estab21 lished policy, and general practices of the employer pertain22 ing to explanations and discipline with respect to absence

23 from scheduled work.

24 ‘‘(g)(1) A person who submits an application for reem25 ployment in accordance with subparagraph (C) or (D) of
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1 subsection (e)(1) or subsection (e)(2) shall provide to the

2 person’s employer (upon the request of such employer) docu3 mentation to establish that—

4 ‘‘(A) the person’s application is timely;

5 ‘‘(B) the person has not exceeded the service limi6 tations set forth in subsection (a)(2) (except as per7 mitted under subsection (c)); and

8 ‘‘(C) the person’s entitlement to the benefits

9 under this chapter has not terminated under section

10 4317.

11 ‘‘(2) Documentation of any matter referred to in para12 graph (1) that satisfies regulations prescribed by the Sec13 retary shall satisfy the documentation requirements in such

14 paragraph.

15 ‘‘(3) The failure of a person to provide documentation

16 that satisfies regulations prescribed pursuant to paragraph

17 (2) shall not be a basis for denying reemployment in accord18 ance with the provisions of this chapter if the failure occurs

19 because such documentation does not exist or is not readily

20 available at the time of the request of the employer. If, after

21 such reemployment, documentation becomes available that

22 establishes that such person does not meet one or more of

23 the requirements referred to in subparagraphs (A) through

24 (C) of paragraph (1), the employer of such person may ter25 minate the employment of the person and the provision of
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1 any rights or benefits afforded the person under this

2 chapter.

3 ‘‘(4) It shall be unlawful for an employer to delay or

4 attempt to defeat a reemployment obligation by demanding

5 documentation that does not then exist or is not then read6 ily available.

7 ‘‘(h) The right of a person to reemployment under this

8 section shall not entitle such person to retention, preference,

9 or displacement rights over any person with a superior

10 claim under the provisions of title 5, United States Code,

11 relating to veterans and other preference eligibles.

12 ‘‘(i) In any determination of a person’s entitlement to

13 protection under this chapter, the timing, frequency, and

14 duration of the person’s training or service or the nature

15 of such training or service (including voluntary service) in

16 the uniformed services shall not be a basis for denying pro17 tection of such training or service if the service does not

18 exceed the limitations set forth in subsection (c), and the

19 notice requirements established in subsection (a)(1) and the

20 notification requirements established in subsection (e) are

21 met.

22 ‘‘§ 4313. Reemployment positions

23 ‘‘(a) Subject to subsection (b) in the case of any em24 ployee and subject to section 4314 in the case of reemploy25 ment by the Federal Government, a person entitled to reem-
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1 ployment under section 4312 upon completion of a period

2 of service in the uniformed services shall be promptly reem3 ployed in a position of employment in accordance with the

4 following priorities:

5 ‘‘(1) Except as provided in paragraphs (3) and

6 (4), in the case of a person whose period of service in

7 the uniformed services was for less than 91 days—

8 ‘‘(A) in the position of employment in

9 which the person would have been employed if

10 the continuous employment of such person with

11 the employer had not been interrupted by such

12 service, the duties of which the person is quali13 fied to perform; or

14 ‘‘(B) in the position of employment in

15 which the person was employed on the date of the

16 commencement of the service in the uniformed

17 services, only if the person is not qualified to

18 perform the duties of the position referred to in

19 subparagraph (A) after reasonable efforts by the

20 employer to qualify the person.

21 ‘‘(2) Except as provided in paragraphs (3) and

22 (4), in the case of a person whose period of service in

23 the uniformed services was for more than 90 days—

24 ‘‘(A) in the position of employment in

25 which the person would have been employed if
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1 the continuous employment of such person with

2 the employer had not been interrupted by such

3 service, or a position of like seniority, status and

4 pay, the duties of which the person is qualified

5 to perform; or

6 ‘‘(B) in the position of employment in

7 which the person was employed on the date of the

8 commencement of the service in the uniformed

9 services, or a position of like seniority, status

10 and pay, the duties of which the person is quali11 fied to perform, only if the person is not quali12 fied to perform the duties of a position referred

13 to in subparagraph (A) after reasonable efforts

14 by the employer to qualify the person.

15 ‘‘(3) In the case of a person who has a disability

16 incurred in, or aggravated by, a period of service in

17 the uniformed services, and if, after reasonable efforts

18 by the employer to accommodate the disability, such

19 person is not qualified due to such disability to be

20 employed in the position of employment in which the

21 person would have been employed if the continuous

22 employment of such person with the employer had not

23 been interrupted by such service—

24 ‘‘(A) in any other position which is equiva25 lent in seniority, status, and pay, the duties of
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1 which the person is qualified to perform or

2 would become qualified to perform with reason3 able efforts by the employer; or

4 ‘‘(B) if not employed under subparagraph

5 (A), in a position which is the nearest approxi6 mation to a position referred to in subparagraph

7 (A) in terms of seniority, status, and pay con8 sistent with circumstances of such person’s case.

9 ‘‘(4) In the case of a person who is not qualified

10 to be employed in the position of employment in

11 which the person would have been employed if the

12 continuous employment of such person with the em13 ployer had not been interrupted by such service or in

14 the position of employment in which such person was

15 employed on the date of the commencement of the

16 service in the uniform services for any reason other

17 than disability incurred in, or aggravated by, a pe18 riod of service in the uniformed services and who can19 not become qualified with reasonable efforts by the

20 employer, in any other position of lesser status and

21 pay which such person is qualified to perform, with

22 full seniority.

23 ‘‘(b)(1) If two or more persons are entitled to reemploy24 ment under section 4312 in the same position of employ25 ment and more than one of them has reported for such reem-
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1 ployment, the person who left the position first shall have

2 the prior right to reemployment in that position.

3 ‘‘(2) Any person entitled to reemployment under sec4 tion 4312 who is not reemployed in a position of employ5 ment by reason of paragraph (1) shall be entitled to reem6 ployment as follows:

7 ‘‘(A) Except as provided in subparagraph (B),

8 in any other position of employment referred to in

9 subsection (a)(1) or (a)(2), as the case may be (in the

10 order of priority set out in the applicable subsection),

11 that provides a similar status and pay to a position

12 of employment referred to in paragraph (1) of this

13 subsection, consistent with circumstances of such per14 son’s case, with full seniority.

15 ‘‘(B) In the case of a person who has a disability

16 incurred in, or aggravated by, a period of service in

17 the uniformed services that requires reasonable efforts

18 by the employer for the person to be able to perform

19 the duties of the position of employment, in any other

20 position referred to in subsection (a)(3) (in the order

21 of priority set out in that subsection) that provides a

22 similar status and pay to a position referred to in

23 paragraph (1) of this subsection, consistent with cir24 cumstances of such person’s case, with full seniority.
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1 ‘‘§ 4314. Reemployment by the Federal Government

2 ‘‘(a) Except as provided in subsections (b), (c), and

3 (d), if a person is entitled to reemployment by the Federal

4 Government under section 4312, such person shall be reem5 ployed in a position of employment as described in section

6 4313.

7 ‘‘(b) If the employer of a person described in subsection

8 (a) was, at the time such person entered service in the uni9 formed services, an agency in the executive branch, and the

10 Director of the Office of Personnel Management determines

11 that—

12 ‘‘(1) such employer no longer exists and its func13 tions have not been transferred to another part of the

14 executive branch; or

15 ‘‘(2) it is impossible or unreasonable for such

16 employer to reemploy such person,

17 the Director shall identify an alternative position of like

18 seniority, status, and pay for which such person is qualified

19 in another part of the executive branch, and the Director

20 shall cause employment in such position to be offered to

21 such person.

22 ‘‘(c) If the employer of a person described in subsection

23 (a) was, at the time such person entered service in the uni24 formed services, a part of the judicial branch or the legisla25 tive branch of the Federal Government, and such employer

26 determines that—
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1 ‘‘(1) it is impossible or unreasonable for such

2 employer to reemploy such person; and

3 ‘‘(2) such person is otherwise eligible to acquire

4 a status for transfer to a position in the competitive

5 service in accordance with section 3304(c) of title 5,

6 such person shall, upon application to the Director of the

7 Office of Personnel Management, be considered for and of8 fered employment in an alternative position in the executive

9 branch on the same basis as described in subsection (b).

10 ‘‘(d) If the adjutant general of a State determines that

11 it is impossible or unreasonable to reemploy a person who

12 was a National Guard technician employed under section

13 709 of title 32, and such person is otherwise eligible to ac14 quire a status for transfer to a position in the competitive

15 service in accordance with section 3304(d) of title 5, such

16 person shall, upon application to the Director of the Office

17 of Personnel Management, be considered for and offered em18 ployment in an alternative position in the executive branch

19 of the Federal Government on the same basis as described

20 in subsection (b).

21 ‘‘§ 4315. Rights, benefits, and obligations of persons

22 absent from employment for service in a

23 uniformed service

24 ‘‘(a) A person who is reemployed under this chapter

25 is entitled to the seniority and other rights and benefits de-
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1 termined by seniority that the person had on the date of

2 the commencement of service in the uniformed services plus

3 the additional seniority and rights and benefits that such

4 person would have attained if the person had remained con5 tinuously employed.

6 ‘‘(b) A person who performs service in the uniformed

7 services is considered to be on furlough or leave of absence

8 while in the uniformed services and is also entitled to such

9 other rights and benefits, not determined by seniority, relat10 ing to other employees on furlough or leave of absence which

11 were in effect by contract, practice, policy, agreement, or

12 plan at the commencement of such period of service or were

13 established while such person is performing such service.

14 Such person may be required to pay the employee cost, if

15 any, of any funded benefit continued pursuant to the pre16 ceding sentence to the extent other employees on furlough

17 or leave of absence are so required.

18 ‘‘(c)(1) Notwithstanding subsection (b), a person who

19 performs service in the uniformed services shall, at such per20 son’s request, continue to be covered by any insurance pro21 vided by such employer for up to 18 months. Such person

22 may be required to pay the entire cost of any benefit contin23 ued pursuant to the preceding sentence, except that in the

24 case of persons ordered to training or service for fewer than
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1 31 days, such person may be required to pay only the em2 ployee share, if any, of the cost of such benefit.

3 ‘‘(2) In the case of employer-sponsored health benefits,

4 an exclusion or waiting period may not be imposed in con5 nection with coverage of a health or physical condition of

6 a person entitled to participate in these benefits, either

7 under paragraph (1) or upon reinstatement, or in connec8 tion with a health or physical condition of any other person

9 who is covered by the benefit by reason of the coverage of

10 such person, if—

11 ‘‘(A) the condition arose before or during that

12 person’s period of training or service in the uni13 formed services;

14 ‘‘(B) an exclusion or waiting period would not

15 have been imposed for the condition during a period

16 of coverage resulting from participation by such per17 son in the benefits; and

18 ‘‘(C) the condition of such person has not been

19 determined by the Secretary of Veterans Affairs to be

20 service-connected.

21 ‘‘(d) A person who is reemployed by an employer

22 under this chapter shall not be discharged from such em23 ployment, except for cause—

24 ‘‘(1) if such person’s period of service was 181

25 days or more, within one year;
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1 ‘‘(2) if such person’s period of service was 31

2 days or more but less than 181 days, within six

3 months; or

4 ‘‘(3) if such person’s period of service was less

5 than 31 days, within a period of time that is equal

6 to the period of service concerned.

7 ‘‘(e) Any person who is absent from or leaves a posi8 tion (other than a temporary position) in the employ of

9 any employer for voluntary or involuntary service in the

10 uniformed services may utilize, with respect to the employer

11 and during any period of such service, accrued or other

12 leave which the person could have utilized if the person had

13 remained in such position.

14 ‘‘§ 4316. Employee pension benefit plans

15 ‘‘(a)(1)(A) Except as provided in subparagraph (B),

16 in the case of a right provided pursuant to an employee

17 pension benefit plan described in section 3(2) of the Em18 ployee Retirement Income Security Act of 1974 (29 U.S.C.

19 1002(2)) or a right provided under any Federal or State

20 law governing pension benefits for governmental employees,

21 the right to pension benefits of a person reemployed under

22 this chapter shall be determined under this section.

23 ‘‘(B) In the case of benefits under the Thrift Savings

24 Plan, the rights of a person reemployed under this chapter

25 shall be those rights provided in section 8432b of title 5.
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1 The first sentence of this subparagraph shall not be con2 strued to affect any other right or benefit under this

3 chapter.

4 ‘‘(2)(A) A person reemployed under this chapter shall

5 be treated as not having incurred a break in service with

6 the employer or employers maintaining the plan by reason

7 of such person’s period or periods of service in the uni8 formed services.

9 ‘‘(B) Each period served by a person in the uniformed

10 services shall, upon reemployment under this chapter, be

11 deemed to constitute service with the employer or employers

12 maintaining the plan for purposes of determining the

13 nonforfeitability of the person’s accrued benefits and for the

14 purpose of determining the accrual of benefits under the

15 plan.

16 ‘‘(b)(1)(A) An employer reemploying a person under

17 this chapter shall be liable to an employee pension benefit

18 plan for funding any obligation of the plan to provide the

19 benefits described in subsection (a)(2). For purposes of de20 termining the amount of such liability and for purposes of

21 section 515 of the Employee Retirement Income Security

22 Act of 1974 (29 U.S.C. 1145) or any similar Federal or

23 State law governing pension benefits for governmental em24 ployees, service in the uniformed services that is deemed

25 under subsection (a) to be service with the employer shall
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1 be deemed to be service with the employer under the terms

2 of the plan or any applicable collective bargaining agree3 ment. In the case of a multiemployer plan, as defined in

4 section 3(37) of the Employee Retirement Income Security

5 Act of 1974 (29 U.S.C. 1002(37)), any liability of the plan

6 described in this paragraph shall be allocated by the plan

7 in such manner as the sponsor maintaining the plan shall

8 provide.

9 ‘‘(B) An employee entitled to pension benefits under

10 this chapter, with respect to a period of service described

11 in subsection (a)(2)(B)—

12 ‘‘(i) shall have earnings credited with respect to

13 an employer contribution in the same manner and to

14 the same extent as earnings are credited to other em15 ployees during the period of service, subject to para16 graph (3), irrespective of when the contribution is

17 made;

18 ‘‘(ii) shall have allocated the amount of—

19 ‘‘(I) any employer contribution that was

20 voluntary; and

21 ‘‘(II) any employer contribution the total

22 amount of which was determined without ref23 erence to the number of, or compensation of, plan

24 participants before being allocated to the ac25 counts of participants; and
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1 ‘‘(iii) may have allocated the amount of any for2 feiture,

3 in the same manner and to the same extent the allocation

4 occurs for other employees during the period of service.

5 ‘‘(2) A person reemployed under this chapter shall be

6 entitled to accrued benefits pursuant to subsection (a) that

7 are contingent on the making of, or derived from, employee

8 contributions or elective deferrals (as defined in section

9 402(g)(3) of the Internal Revenue Code of 1986) only to

10 the extent the person makes payment to the plan with re11 spect to such contributions or deferrals. No such payment

12 may exceed the amount the person would have been per13 mitted or required to contribute had the person remained

14 continuously employed by the employer throughout the pe15 riod of service described in subsection (a)(2)(B). Any pay16 ment to the plan described in this paragraph shall be made

17 during any reasonable continuous period (beginning with

18 the date of reemployment) as the employer and the person

19 may agree.

20 ‘‘(3) For purposes of computing an employer’s liability

21 under paragraph (1)(A) or the employee’s contributions

22 under paragraph (2), the employee’s compensation during

23 the period of service described in subsection (a)(2)(B)—
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1 ‘‘(A) shall be computed at the same rate as the

2 employee received from the employer immediately be3 fore such period; or

4 ‘‘(B) if the employee’s compensation was not

5 based on a fixed rate, shall be computed on the basis

6 of the employee’s average rate of compensation during

7 the 12-month period immediately preceding such pe8 riod (or, if shorter, the period of employment imme9 diately preceding such period).

10 ‘‘(c) Any employer who reemploys a person under this

11 chapter and who is an employer contributing to a multiem12 ployer plan, as defined in section 3(37) of the Employee

13 Retirement Income Security Act of 1974 (29 U.S.C.

14 1002(37)), under which benefits are or may be payable to

15 such person by reason of the obligations set forth in this

16 chapter, shall, within 30 days after the date of such reem17 ployment, provide information, in writing, of such reem18 ployment to the administrator of such plan.

19 ‘‘§ 4317. Character of service

20 ‘‘A person’s entitlement to the benefits of this chapter

21 by reason of the service of such person in one of the uni22 formed services terminates upon the occurrence of any of

23 the following events:
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1 ‘‘(1) A separation of such person from such uni2 formed service with a dishonorable or bad conduct

3 discharge.

4 ‘‘(2) A separation of such person from such uni5 formed service under other than honorable conditions,

6 as characterized pursuant to regulations prescribed by

7 the Secretary concerned.

8 ‘‘(3) A dismissal of such person permitted under

9 section 1161(a) of title 10.

10 ‘‘(4) A dropping of such person from the rolls

11 pursuant to section 1161(b) of title 10.

12 ‘‘SUBCHAPTER III—PROCEDURES FOR ASSIST13 ANCE, ENFORCEMENT, AND INVESTIGATIONS

14 ‘‘§ 4321. Assistance in obtaining employment or reem15 ployment

16 ‘‘The Secretary (through the Veterans’ Employment

17 and Training Service) shall provide assistance to any per18 son with respect to employment and reemployment rights

19 and benefits to which such person is entitled under this

20 chapter. In providing such assistance, the Secretary may

21 request the assistance of existing Federal and State agencies

22 engaged in similar or related activities and utilize the as23 sistance of volunteers.
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1 ‘‘§ 4322. Enforcement of employment or reemployment

2 rights

3 ‘‘(a)(1) A person who claims that—

4 ‘‘(A) such person is entitled under this chapter

5 to employment or reemployment rights or benefits

6 with respect to employment by an employer; and

7 ‘‘(B)(i) such employer has failed or refused, or is

8 about to fail or refuse, to comply with the provisions

9 of this chapter; or

10 ‘‘(ii) in the case that the employer is the Federal

11 Government, such employer or the Office of Personnel

12 Management has failed or refused, or is about to fail

13 or refuse, to comply with the provisions of this chap14 ter,

15 may file a complaint with the Secretary in accordance with

16 subsection (b), and the Secretary shall investigate such com17 plaint.

18 ‘‘(2) In the case that the employer is the Federal Gov19 ernment, subsection (a) of section 4323 shall be applicable

20 to such investigation but not subsections (b) and (c) of such

21 section.

22 ‘‘(3) This subsection does not apply to any action re23 lating to benefits to be provided by the Thrift Savings Plan.

24 ‘‘(b)(1) A person described in subsection (a) may file

25 a complaint in accordance with paragraph (2) and apply

26 to the Secretary for assistance in asserting that complaint.
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1 ‘‘(2) Such complaint shall be in writing, be in such

2 form as the Secretary may prescribe, include the name and

3 address of the employer against whom the complaint is

4 filed, and contain a summary of the allegations that form

5 the basis for the complaint.

6 ‘‘(3) Before the receipt of a written complaint, the Sec7 retary shall, upon request, provide technical assistance to

8 the potential claimant and, if the Secretary determines it

9 appropriate, to such claimant’s employer.

10 ‘‘(c)(1)(A) Except as provided in paragraph (2), if the

11 Secretary, after investigation, is reasonably satisfied that

12 the employer has failed to comply with the provisions of

13 this chapter, if efforts to obtain voluntary compliance are

14 not successful, and if the claimant requests in writing that

15 the claim be referred for litigation, the Secretary shall refer

16 the case to the Attorney General. If the Attorney General

17 is reasonably satisfied that the person requesting represen18 tation is entitled to the rights or benefits sought, the Attor19 ney General shall appear and act as attorney for the claim20 ant in the filing of a complaint and other appropriate mo21 tions and pleadings and the prosecution thereof in the dis22 trict courts of the United States and on appeal.

23 ‘‘(B) If the Attorney General declines to represent a

24 person after receiving a referral from the Secretary or if

25 a person chooses not to apply to the Secretary for assistance
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1 or to utilize the Attorney General for representation under

2 this section, such person may be represented before the dis3 trict court or on appeal by counsel of the person’s choice.

4 ‘‘(2)(A) In the case where the employer is the Federal

5 Government, if the Secretary, after investigation, is reason6 ably satisfied that the employer has failed to comply with

7 the provisions of this chapter, if efforts to obtain voluntary

8 compliance are not successful, and if the claimant requests

9 in writing that the claim be referred for litigation, the case

10 shall be referred to the Office of the Special Counsel, litiga11 tion shall be before the Merit Systems Protection Board, and

12 if the Special Counsel is reasonably satisfied that the person

13 requesting representation is entitled to the rights or benefits

14 sought, the Special Counsel shall appear and act as attor15 ney for the claimant in filing an appeal to the Merit Sys16 tems Protection Board and in pursuing that appeal.

17 ‘‘(B) If the Special Counsel declines to represent a per18 son after receiving a referral from the Secretary or if a per19 son chooses not to apply to the Secretary for assistance or

20 to utilize the Special Counsel for representation under this

21 section, such person may be represented before the Merit

22 Systems Protection Board or on appeal by counsel of the

23 person’s choice.

24 ‘‘(d)(1) This subsection applies only with respect to a

25 State or private employer.
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1 ‘‘(2)(A) The district courts of the United States may

2 require the State or private employer, as the case may be—

3 ‘‘(i) to comply with the provisions of this chap4 ter;

5 ‘‘(ii) to compensate the person for any loss of

6 wages or benefits suffered by reason of such employer’s

7 failure to comply with the provisions of this chapter;

8 and

9 ‘‘(iii) to pay, in addition to the compensation

10 paid under clause (ii), the person an amount equal

11 to such compensation as liquidated damages, if the

12 court determines that the employer’s failure to comply

13 with the provisions of this chapter was willful.

14 ‘‘(B) Any compensation and payment under clauses

15 (ii) and (iii) of subparagraph (A) shall be in addition to,

16 and shall not be deemed to diminish, any of the other rights

17 and benefits provided for in this chapter.

18 ‘‘(3)(A) No fees or court costs shall be charged or taxed

19 against any person claiming rights or benefits under this

20 chapter.

21 ‘‘(B) In any action or proceeding to enforce a provi22 sion of this chapter by a person described in paragraph (2)

23 who obtained private counsel for such action or proceeding,

24 the court, in its discretion, may award any such person

25 who prevails in such action or proceeding a reasonable at-
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1 torney’s fee, expert witness fees, and other litigation ex2 penses.

3 ‘‘(4) The court may use its full equity powers, includ4 ing temporary or permanent injunctions and temporary re5 straining orders, to vindicate fully the rights or benefits of

6 persons under this chapter.

7 ‘‘(5) An action under this chapter may be initiated

8 only by a person claiming rights or benefits under this

9 chapter, not by an employer, prospective employer, or other

10 entity with obligations under this chapter.

11 ‘‘(6) In any action under this chapter, only the em12 ployer shall be deemed a necessary party respondent.

13 ‘‘(7) No State statute of limitations shall apply to any

14 proceedings under this chapter.

15 ‘‘(8) A State shall be subject to the same remedies, in16 cluding prejudgment interest, as may be imposed upon any

17 private employer under this section.

18 ‘‘(e)(1) This subsection applies only with respect to the

19 Federal Government as employer.

20 ‘‘(2)(A) If the Merit Systems Protection Board con21 cludes that the Federal Government, as employer, has failed

22 to comply with the provisions of this chapter or that the

23 Director of the Office of Personnel Management has not met

24 an obligation set forth in section 4314, the Board shall enter

25 an order specifically requiring the employing agency or the
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1 Director to comply with such provisions and to compensate

2 such person for any loss of wages or benefits suffered by

3 reason of the employing agency’s or the Director’s unlawful

4 action.

5 ‘‘(B) Any such compensation shall be in addition to

6 and shall not be deemed to diminish any of the other rights

7 or benefits provided for by this chapter.

8 ‘‘(3)(A) A claimant under this chapter may petition

9 the United States Court of Appeals for the Federal Circuit

10 to review a decision of the Merit Systems Protection Board

11 denying such claimant the relief sought, in whole or in part,

12 subject to the conditions and in accordance with the proce13 dures set forth in section 7703 of title 5.

14 ‘‘(B) The Secretary and the Special Counsel shall not

15 represent persons with respect to review of decisions of the

16 Merit Systems Protection Board under this chapter in the

17 United States Court of Appeals for the Federal Circuit or

18 the Supreme Court.

19 ‘‘(C) If a person seeks such judicial review, or in any

20 case in which a person is involved in the Board’s decision

21 is being appealed by another party, such person may be

22 represented by counsel of the person’s choice.

23 ‘‘§ 4323. Conduct of investigation; subpoenas

24 ‘‘(a) In carrying out investigations under this chapter,

25 the Secretary’s duly authorized representatives shall at all
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1 reasonable times have access to, for the purpose of examina2 tion, and the right to copy and receive, any documents of

3 any person or employer.

4 ‘‘(b) Except as provided in section 4322(a)(2), in car5 rying out investigations under this chapter, the Secretary

6 may require by subpoena the attendance and testimony of

7 witnesses and the production of documents relating to any

8 matter under investigation. In case of disobedience of the

9 subpoena or contumacy and on request of the Secretary, the

10 Attorney General may apply to any district court of the

11 United States in whose jurisdiction such disobedience or

12 contumacy occurs for an order enforcing the Secretary’s

13 subpoena.

14 ‘‘(c) Except as provided in section 4322(a)(2), upon

15 application, the district courts of the United States shall

16 have jurisdiction to issue writs commanding any person or

17 employer to comply with the subpoena of the Secretary or

18 to comply with any order of the Secretary made pursuant

19 to a lawful investigation under this chapter, and the dis20 trict courts shall have jurisdiction to punish failure to obey

21 a subpoena or other lawful order of the Secretary as a con22 tempt of court.
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1 ‘‘SUBCHAPTER IV—MISCELLANEOUS PROVISIONS

2 ‘‘§ 4331. Regulations

3 ‘‘(a) The Secretary (in consultation with the Secretary

4 of Defense) may prescribe regulations implementing the

5 provisions of this chapter with regard to the application

6 of this chapter to States, local governments, and private em7 ployers.

8 ‘‘(b)(1) The Director of the Office of Personnel Manage9 ment (in consultation with the Secretary and the

10 Secretary of Defense) may prescribe regulations implement11 ing the provisions of this chapter with regard to the appli12 cation of this chapter to the Federal Government as em13 ployer. Such regulations shall be consistent with the regula14 tions pertaining to the States and private employers, except

15 that employees of the Federal Government may be given

16 greater or additional rights. Nothing in this subsection con17 stitutes authority for the Director to prescribe any matter

18 for which any regulation may be prescribed under para19 graph (2).

20 ‘‘(2) Regulations may be prescribed—

21 ‘‘(A) by the Merit Systems Protection Board to

22 carry out its responsibilities under this chapter; and

23 ‘‘(B) by the Office of Special Counsel to carry

24 out its responsibilities under this chapter.
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1 ‘‘§ 4332. Reports

2 ‘‘The Secretary shall, after consultation with the Attor3 ney General and the Special Counsel referred to in section

4 4322(b)(2) and no later than February 1, 1995, and each

5 February 1 thereafter, transmit to the Congress, a report

6 containing the following matters for the fiscal year ending

7 before such February 1:

8 ‘‘(1) The number of cases reviewed by the De9 partment of Labor under this chapter during the fis10 cal year for which the report is made.

11 ‘‘(2) The number of cases referred to the Attorney

12 General or the Special Counsel pursuant to section

13 4322(c)(1) or 4322(c)(2), respectively, during such fis14 cal year.

15 ‘‘(3) The number of pleadings filed by the Attor16 ney General pursuant to section 4322(c)(1) during

17 such fiscal year.

18 ‘‘(4) The nature and status of each case reported

19 on pursuant to paragraph (1), (2), or (3).

20 ‘‘(5) An indication of whether there are any ap21 parent patterns of violation of the provisions of this

22 chapter, together with an explanation thereof.

23 ‘‘(6) Recommendations for administrative or leg24 islative action that the Secretary, the Attorney Gen25 eral, or the Special Counsel considers necessary for

26 the effective implementation of this chapter, including
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1 any action that could be taken to encourage medi2 ation, before claims are filed under this chapter, be3 tween employers and persons seeking employment or

4 reemployment.

5 ‘‘§ 4333. Outreach

6 ‘‘The Secretary, the Secretary of Defense, and the Sec7 retary of Veterans Affairs shall take such actions as such

8 Secretaries determine are appropriate to inform persons en9 titled to rights and benefits under this chapter and employ10 ers of the rights, benefits, and obligations of such persons

11 and such employers under this chapter.’’.

12 (b) CONFORMING AMENDMENTS.—

13 (1) AMENDMENTS TO TITLE 38.—The tables of

14 chapters at the beginning of title 38, United States

15 Code, and the beginning of part III of such title are

16 each amended by striking out the item relating to

17 chapter 43 and inserting in lieu thereof the following:

‘‘43. Employment and reemployment rights of members of

the uniformed services ....................................................................... 4301’’.

18 (2) AMENDMENT TO TITLE 5.—(A) Section

19 1204(a)(1) of title 5, United States Code, is amended

20 by striking out ‘‘section 4323’’ and inserting in lieu

21 thereof ‘‘chapter 43’’.

22 (B) Subchapter II of chapter 35 of such title is

23 repealed.
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1 (C) The table of sections for chapter 35 of such

2 title is amended by striking out the heading relating

3 to subchapter II of such chapter and the item relating

4 to section 3551 of such chapter.

5 (3) AMENDMENT TO TITLE 10.—Section 706(c)(1)

6 of title 10, United States Code, is amended by strik7 ing out ‘‘section 4321’’ and inserting in lieu thereof

8 ‘‘chapter 43’’.

9 (c) AMENDMENTS TO TITLE 28.—Section 631 of title

10 28, United States Code, is amended—

11 (1) by striking out subsection (j);

12 (2) by redesignating subsections (k) and (l) as

13 subsections (j) and (k), respectively; and

14 (3) in subsection (j), as redesignated by para15 graph (2), by striking out ‘‘under the terms of’’ and

16 all that follows through ‘‘section,’’ the first place it

17 appears and inserting in lieu thereof ‘‘under chapter

18 43 of title 38,’’.

19 SEC. 3. EXEMPTION FROM MINIMUM SERVICE REQUIRE20 MENTS.

21 Section 5303A(b)(3) of title 38, United States Code,

22 is amended—

23 (1) by striking out ‘‘or’’ at the end of subpara24 graph (E);
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1 (2) by striking out the period at the end of sub2 paragraph (F) and inserting in lieu thereof ‘‘; or’’;

3 and

4 (3) by adding at the end thereof the following

5 new subparagraph:

6 ‘‘(G) to benefits under chapter 43 of this title.’’.

7 SEC. 4. THRIFT SAVINGS PLAN.

8 (a) IN GENERAL.—(1) Title 5, United States Code, is

9 amended by inserting after section 8432a the following:

10 ‘‘§ 8432b. Contributions of persons who perform mili11 tary service

12 ‘‘(a) This section applies to any employee who—

13 ‘‘(1) separates or enters leave-without-pay status

14 in order to perform military service; and

15 ‘‘(2) is subsequently restored to or reemployed in

16 a position which is subject to this chapter, pursuant

17 to chapter 43 of title 38.

18 ‘‘(b)(1) Each employee to whom this section applies

19 may contribute to the Thrift Savings Fund, in accordance

20 with this subsection, an amount not to exceed the amount

21 described in paragraph (2).

22 ‘‘(2) The maximum amount which an employee may

23 contribute under this subsection is equal to—

24 ‘‘(A) the contributions under section 8432(a)

25 which would have been made, over the period begin-
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1 ning on date of separation or commencement of leave2 without-pay status (as applicable) and ending on the

3 day before the date of restoration or reemployment (as

4 applicable); reduced by

5 ‘‘(B) any contributions under section 8432(a) ac6 tually made by such employee over the period de7 scribed in subparagraph (A).

8 ‘‘(3) Contributions under this subsection—

9 ‘‘(A) shall be made at the same time and in the

10 same manner as would any contributions under sec11 tion 8432(a);

12 ‘‘(B) shall be made over the period of time speci13 fied by the employee under paragraph (4)(B); and

14 ‘‘(C) shall be in addition to any contributions

15 then actually being made under section 8432(a).

16 ‘‘(4) The Executive Director shall prescribe the time,

17 form, and manner in which an employee may specify—

18 ‘‘(A) the total amount such employee wishes to

19 contribute under this subsection with respect to any

20 particular period referred to in paragraph (2)(B);

21 and

22 ‘‘(B) the period of time over which the employee

23 wishes to make contributions under this subsection.

24 The employing agency may place a maximum limit on the

25 period of time referred to in subparagraph (B), which can-
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1 not be shorter than two times the period referred to in para2 graph (2)(B) and not longer than four times such period.

3 ‘‘(c) If an employee makes contributions under sub4 section (b), the employing agency shall make contributions

5 to the Thrift Savings Fund on such employee’s behalf—

6 ‘‘(1) in the same manner as would be required

7 under section 8432(c)(2) if the employee contributions

8 were being made under section 8432(a); and

9 ‘‘(2) disregarding any contributions then actu10 ally being made under section 8432(a) and any agen11 cy contributions relating thereto.

12 ‘‘(d) An employee to whom this section applies is enti13 tled to have contributed to the Thrift Savings Fund on such

14 employee’s behalf an amount equal to—

15 ‘‘(1) 1 percent of such employee’s basic pay (as

16 determined under subsection (e)) for the period re17 ferred to in subsection (b)(2)(B); reduced by

18 ‘‘(2) any contributions actually made on such

19 employee’s behalf under section 8432(c)(1) with re20 spect to the period referred to in subsection (b)(2)(B).

21 ‘‘(e) For purposes of any computation under this sec22 tion, an employee shall, with respect to the period referred

23 to in subsection (b)(2)(B), be considered to have been paid

24 at the rate which would have been payable over such period

25 had such employee remained continuously employed in the
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1 position which such employee last held before separating or

2 entering leave-without-pay status to perform military

3 service.

4 ‘‘(f)(1) The employing agency shall be required to pay

5 lost earnings on contributions made pursuant to subsections

6 (c) and (d). Such earnings shall be calculated retroactively

7 to the date the contribution would have been made had the

8 employee not separated or entered leave without pay status

9 to perform military service.

10 ‘‘(2) Procedures for calculating and crediting the earn11 ings payable pursuant to paragraph (1) shall be prescribed

12 by the Executive Director.

13 ‘‘(g) Amounts paid under subsection (c), (d), or (f)

14 shall be paid—

15 ‘‘(1) by the agency to which the employee is re16 stored or in which such employee is reemployed;

17 ‘‘(2) from the same source as would be the case

18 under section 8432(e) with respect to sums required

19 under section 8432(c); and

20 ‘‘(3) within the time prescribed by the Executive

21 Director.

22 ‘‘(h)(1) For purposes of section 8432(g), in the case

23 of an employee to whom this section applies—

24 ‘‘(A) a separation from civilian service in order

25 to perform the military service on which the employ-
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1 ee’s restoration or reemployment rights are based

2 shall be disregarded; and

3 ‘‘(B) such employee shall be credited with a pe4 riod of civilian service equal to the period referred to

5 in subsection (b)(2)(B).

6 ‘‘(2)(A) An employee to whom this section applies may

7 elect, for purposes of section 8433(d), or paragraph (1) or

8 (2) of section 8433(h), as the case may be, to have such

9 employee’s separation (described in subsection (a)(1)) treat10 ed as if it had never occurred.

11 ‘‘(B) An election under this paragraph shall be made

12 within such period of time after restoration or reemploy13 ment (as the case may be) and otherwise in such manner

14 as the Executive Director prescribes.

15 ‘‘(i) The Executive Director shall prescribe regulations

16 to carry out this section.’’.

17 (2) The table of sections for chapter 84 of title 5, Unit18 ed States Code, is amended by inserting after the item relat19 ing to section 8432a the following:

‘‘8432b. Contributions of persons who perform military service.’’.

20 (b) PRESERVATION OF CERTAIN RIGHTS.—(1) Section

21 8433(d) of title 5, United States Code, is amended by strik22 ing ‘‘subsection (e).’’ and inserting ‘‘subsection (e), unless

23 an election under section 8432b(h)(2) is made to treat such

24 separation for purposes of this subsection as if it had never

25 occurred.’’.
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1 (2) Paragraphs (1) and (2) of section 8433(h) are each

2 amended by striking the period at the end and inserting

3 ‘‘, or unless an election under section 8432b(h)(2) is made

4 to treat such separation for purposes of this paragraph as

5 if it had never occurred.’’.

6 (c) ELECTION TO RESUME REGULAR CONTRIBUTIONS

7 UPON RESTORATION OR REEMPLOYMENT.—Section 8432 of

8 title 5, United States Code, is amended by adding at the

9 end the following:

10 ‘‘(i)(1) This subsection applies to any employee—

11 ‘‘(A) to whom section 8432b applies; and

12 ‘‘(B) who, during the period of such employee’s

13 absence from civilian service (as referred to in section

14 8432b(b)(2)(B))—

15 ‘‘(i) is eligible to make an election described

16 in subsection (b)(1); or

17 ‘‘(ii) would be so eligible but for having ei18 ther elected to terminate individual contributions

19 to the Thrift Savings Fund within 2 months be20 fore commencing military service or separated in

21 order to perform military service.

22 ‘‘(2) The Executive Director shall prescribe regulations

23 to ensure that any employee to whom this subsection applies

24 shall, within a reasonable time after being restored or reem25 ployed (in the manner described in section 8432b(a)(2)),
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1 be afforded the opportunity to make, for purposes of this

2 section, any election which would be allowable during a pe3 riod described in subsection (b)(1)(A).’’.

4 (d) APPLICABILITY TO EMPLOYEES UNDER CSRS.—

5 Section 8351(b) of title 5, United States Code, is amended

6 by adding at the end the following:

7 ‘‘(11) In applying section 8432b to an employee con8 tributing to the Thrift Savings Fund after being restored

9 to or reemployed in a position subject to this subchapter,

10 pursuant to chapter 43 of title 38—

11 ‘‘(A) any reference in such section to contribu12 tions under section 8432(a) shall be considered a ref13 erence to employee contributions under this section;

14 ‘‘(B) the contribution rate under section

15 8432b(b)(2)(A) shall be the maximum percentage al16 lowable under subsection (b)(2) of this section; and

17 ‘‘(C) subsections (c) and (d) of section 8432b

18 shall be disregarded.’’.

19 (e) EFFECTIVE DATE; APPLICABILITY.—This section

20 and the amendments made by this section—

21 (1) shall take effect on the date of enactment of

22 this Act; and

23 (2) shall apply to any employee whose release

24 from military service, discharge from hospitalization,

25 or other similar event making the individual eligible
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1 to seek restoration or reemployment under chapter 43

2 of title 38, United States Code, occurs on or after Au3 gust 2, 1990.

4 (f) RULES FOR APPLYING AMENDMENTS TO EMPLOY5 EES RESTORED OR REEMPLOYED BEFORE EFFECTIVE

6 DATE.—In the case of any employee (described in sub7 section (e)(2)) who is reemployed or restored (in the cir8 cumstances described in section 8432b(a) of title 5, United

9 States Code, as amended by this section) before the date of

10 enactment of this Act, the amendments made by this section

11 shall apply to such employee, in accordance with their

12 terms, subject to the following:

13 (1) The employee shall be deemed not to have

14 been reemployed or restored until—

15 (A) the date of enactment of this Act, or

16 (B) the first day following such employee’s

17 reemployment or restoration on which such em18 ployee is or was eligible to make an election re19 lating to contributions to the Thrift Savings

20 Fund,

21 whichever occurs or occurred first.

22 (2) If the employee changed agencies during the

23 period between date of actual reemployment or res24 toration and the date of enactment of this Act, the
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1 employing agency as of such date of enactment shall

2 be considered the reemploying or restoring agency.

3 (3)(A) For purposes of any computation under

4 section 8432b of such title, pay shall be determined in

5 accordance with subsection (e) of such section, except

6 that, with respect to the period described in subpara7 graph (B), actual pay attributable to such period

8 shall be used.

9 (B) The period described in this subparagraph is

10 the period beginning on the first day of the first ap11 plicable pay period beginning on or after the date of

12 the employee’s actual reemployment or restoration

13 and ending on the day before the date determined

14 under paragraph (1).

15 (4) Deem section 8432b(b)(2)(A) of such title to

16 be amended by striking ‘‘ending on the day before the

17 date of restoration or reemployment (as applicable)’’

18 and inserting ‘‘ending on the date determined under

19 section 4(f)(1) of the Uniformed Services Employment

20 and Reemployment Rights Act of 1993’’.

21 SEC. 5. TECHNICAL AMENDMENT.

22 Section 9(d) of Public Law 102–16 (105 Stat. 55) is

23 amended by striking out ‘‘Act’’ the first place it appears

24 and inserting in lieu thereof ‘‘section’’.
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1 SEC. 6. TRANSITION RULES AND EFFECTIVE DATES.

2 (a) REEMPLOYMENT.—(1) Except as otherwise pro3 vided in this Act, the amendments made by this Act shall

4 be effective with respect to reemployments initiated on or

5 after the first day after the 60-day period beginning on the

6 date of enactment of this Act.

7 (2) The provisions of chapter 43 of title 38, United

8 States Code, in effect on the day before such date of enact9 ment, shall continue to apply to reemployments initiated

10 before the end of such 60-day period.

11 (3) In determining the number of years of service that

12 may not be exceeded in an employee-employer relationship

13 with respect to which a person seeks reemployment under

14 chapter 43 of title 38, United States Code, as in effect before

15 or after the date of enactment of this Act, there shall be

16 included all years of service without regard to whether the

17 periods of service occurred before or after such date of enact18 ment unless the period of service is exempted by the chapter

19 43 that is applicable, as provided in paragraphs (1) and

20 (2), to the reemployment concerned.

21 (4) A person who initiates reemployment under chap22 ter 43 of title 38, United States Code, during or after the

23 60-day period beginning on the date of enactment of this

24 Act and whose reemployment is made in connection with

25 a period of service in the uniform services that was initiated

26 before the end of such period shall be deemed to have satis-
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1 fied the notification requirement of section 4312(a)(1) of

2 title 38, United States Code, as provided in the amendments

3 made by this Act, if the person complied with any applica4 ble notice requirement under chapter 43, United States

5 Code, as in effect on the day before the date of enactment

6 of this Act.

7 (b) DISCRIMINATION.—The provisions of section 4311

8 of title 38, United States Code, as provided in the amend9 ments made by this Act, and the provisions of subchapter

10 III of chapter 43 of such title, as provided in the amend11 ments made by this Act, that are necessary for the imple12 mentation of such section 4311 shall become effective on the

13 date of enactment of this Act.

14 (c) INSURANCE.—(1) Except as provided in paragraph

15 (2), the provisions of section 4315(c) of title 38, United

16 States Code, as provided in the amendments made by this

17 Act, concerning insurance coverage shall become effective on

18 the date of enactment of this Act.

19 (2) A person on active duty on the date of enactment

20 of this Act, or a family member or personal representative

21 of such person, may, after the date of enactment of this Act,

22 elect to reinstate or continue insurance coverage as provided

23 in such section 4315. If such an election is made, insurance

24 coverage shall remain in effect for the remaining portion
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1 of the 18-month period that began on the date of such per2 son’s separation from civilian employment.

3 (d) DISABILITY.—(1) Section 4313(a)(3) of chapter 43

4 of title 38, United States Code, as provided in the amend5 ments made by this Act, shall apply to reemployments initi6 ated on or after August 1, 1990.

7 (2) Effective as of August 1, 1990, section 4307 of title

8 38, United States Code (as in effect on the date of enactment

9 of this Act), is hereby repealed, and the table of sections

10 at the beginning of chapter 43 of such title (as in effect

11 on the date of enactment of this Act) is amended by striking

12 out the item relating to section 4307.

13 (e) REPORTS.—The reports made by the Secretary of

14 Labor pursuant to section 4332 of title 38, United States

15 Code, as provided in the amendments made by this Act,

16 shall be made with respect to cases pertaining to chapter

17 43 of such title without regard to whether a case originated

18 under such chapter before, on, or after the date of enactment

19 of this Act.

20 (f) PREVIOUS ACTIONS.—Except as otherwise pro21 vided, the amendments made by this Act do not affect

22 reemployments that were initiated, rights, benefits, and du23 ties that matured, penalties that were incurred, and pro24 ceedings that were begun before the end of the 60-day period

25 referred to in subsection (a).
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