IIA

103D CONGRESS

1ST SESSION H. R. 995

IN THE SENATE OF THE UNITED STATES

MAY 5 (legislative day, APRIL 19), 1993

Received; read twice and referred to the Committee on Veterans’ Affairs

AN ACT

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.

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

5 Employment and Reemployment Rights Act of 1993’’.
2

•HR 995 RFS

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

2 (a) RESTATEMENT AND IMPROVEMENT OF EMPLOY3 MENT AND REEMPLOYMENT RIGHTS.—Chapter 43 of title

4 38, United States Code, is amended to read as follows:

5 ‘‘CHAPTER 43—EMPLOYMENT AND REEMPLOY6 MENT RIGHTS OF MEMBERS OF THE UNI7 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.

‘‘SUBCHAPTER IV—MISCELLANEOUS PROVISIONS

‘‘4331. Regulations.

‘‘4332. Reports.

‘‘4333. Outreach.

8 ‘‘SUBCHAPTER I—PURPOSES, RELATION TO

9 OTHER LAW, AND DEFINITIONS

10 ‘‘§ 4301. Purposes; sense of Congress

11 ‘‘(a) The purposes of this chapter are—
3

•HR 995 RFS

1 ‘‘(1) to encourage noncareer service in the uni2 formed services by eliminating or minimizing the dis3 advantages to civilian careers and employment which

4 can result from such service;

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

6 persons performing service in the uniformed services

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

8 and their communities, by providing for the prompt

9 reemployment of such persons upon their completion

10 of such service under honorable conditions; and

11 ‘‘(3) to prohibit discrimination against persons

12 because of their service in the uniformed services.

13 ‘‘(b) It is the sense of Congress that the Federal Gov14 ernment should be a model employer in carrying out the

15 reemployment practices provided for in this chapter.

16 ‘‘§ 4302. Relation to other law and plans or agree17 ments

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

19 or diminish any Federal or State law (including any local

20 law or ordinance) or any contract, practice, policy, agree21 ment, plan, or other matter provided by an employer which

22 establishes rights or benefits which are greater than or

23 in addition to those provided in this chapter.

24 ‘‘(b) This chapter supersedes State laws (including

25 any local law or ordinance), employer practices, policies,
4

•HR 995 RFS

1 agreements, and plans, and other matters that reduce,

2 limit, or eliminate in any manner rights or benefits pro3 vided by this chapter, including the establishment of addi4 tional prerequisites to the exercise of such rights.

5 ‘‘§ 4303. Definitions

6 ‘‘For the purposes of this chapter:

7 ‘‘(1) The term ‘Attorney General’ means the

8 Attorney General of the United States or any person

9 designated by the Attorney General to carry out a

10 responsibility of the Attorney General under this

11 chapter.

12 ‘‘(2) The term ‘benefit’, ‘benefit of employ13 ment’, or ‘rights and benefits’ means any aspect of

14 the employment relationship, other than wages or

15 salary for work performed, provided by contract or

16 employer practice or custom, that offers advantage,

17 profit, privilege, gain, status, account, or interest

18 and includes, but is not limited to, pension plans

19 and payments, insurance coverage and awards, em20 ployee stock ownership plans, bonuses, severance

21 pay, supplemental unemployment benefits, vacations,

22 and selection of work hours or locations of employ23 ment.

24 ‘‘(3) The term ‘employee’ means any person

25 employed by an employer.
5

•HR 995 RFS

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

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

3 institution, organization, or other entity that pays

4 salary or wages for work performed or that has con5 trol over employment opportunities, including—

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

7 other entity to whom the employer has dele8 gated the performance of employment-related

9 responsibilities;

10 ‘‘(ii) the Federal Government;

11 ‘‘(iii) a State;

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

13 institution, organization, or other entity re14 ferred to in this subparagraph; and

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

16 other entity that has denied initial employment

17 in violation of section 4311.

18 ‘‘(B) In the case of a National Guard techni19 cian employed under section 709 of title 32, the

20 term ‘employer’ means the adjutant general of the

21 State in which the technician is employed.

22 ‘‘(C) Except as an actual employer of employ23 ees, an employee pension benefit plan described in

24 section 3(2) of the Employee Retirement Income Se25 curity Act of 1974 (29 U.S.C. 1002(2)) shall be
6

•HR 995 RFS

1 deemed to be an employer only with respect to the

2 obligation to provide benefits described in section

3 4316.

4 ‘‘(5) The term ‘Federal Government’ includes

5 the executive branch, the judicial branch, and the

6 legislative branch, with the executive branch includ7 ing—

8 ‘‘(A) any department, administration,

9 agency, commission, board, or independent es10 tablishment in, or other part of, the executive

11 branch (including any executive agency as de12 fined in section 105 of title 5);

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

14 the Postal Rate Commission;

15 ‘‘(C) any nonappropriated fund activity of

16 the United States; and

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

18 United States.

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

20 policy or contract, medical or hospital service agree21 ment, membership or subscription contract, or other

22 arrangement under which health services for individ23 uals are provided or the expenses of such services

24 are paid.
7

•HR 995 RFS

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

2 subchapter II) any written or verbal notification of

3 an obligation or intention to perform service in the

4 uniformed services provided to an employer by the

5 employee who will perform such service or by the

6 uniformed service in which such service is to be per7 formed.

8 ‘‘(8) The term ‘other than a temporary posi9 tion’ means a position of employment as to which

10 there is a reasonable expectation that it will continue

11 indefinitely.

12 ‘‘(9) The term ‘qualified’ means having the

13 ability to perform the essential tasks of an employ14 ment position.

15 ‘‘(10) The term ‘reasonable efforts’ means ac16 tions, including training provided by an employer,

17 that do not create an undue hardship on the em18 ployer.

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

20 ‘Secretary’ means the Secretary of Labor or any

21 person designated by such Secretary to carry out an

22 activity under this chapter.

23 ‘‘(12) The term ‘seniority’ means longevity in

24 employment together with any benefits of employ-
8

•HR 995 RFS

1 ment which accrue with, or are determined by, lon2 gevity in employment.

3 ‘‘(13) The term ‘service in the uniformed serv4 ices’ means the performance of duty on a voluntary

5 or involuntary basis in a uniformed service under

6 competent authority and includes active duty, active

7 duty for training, initial active duty for training, in8 active duty training, full-time National Guard duty,

9 and a period for which a person is absent from a po10 sition of employment for the purpose of an examina11 tion to determine the fitness of the person to per12 form any such duty.

13 ‘‘(14) The term ‘State’ means each of the sev14 eral States of the United States, the District of Co15 lumbia, the Commonwealth of Puerto Rico, Guam,

16 the Virgin Islands, and other territories of the Unit17 ed States (including the agencies and political sub18 divisions thereof).

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

20 action requiring significant difficulty or expense,

21 when considered in light of the factors set forth in

22 subparagraph (B).

23 ‘‘(B) In determining whether an action would

24 impose an undue hardship on an employer, factors

25 to be considered include—
9

•HR 995 RFS

1 ‘‘(i) the nature and cost of the action need2 ed under this chapter;

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

4 facility or facilities involved in the provision of

5 the action; the number of persons employed at

6 such facility; the effect on expenses and re7 sources, or the impact otherwise of such action

8 upon the operation of the facility;

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

10 employer; the overall size of the business of an

11 employer with respect to the number of its em12 ployees; the number, type, and location of its

13 facilities; and

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

15 the employer, including the composition, struc16 ture, and functions of the work force of such

17 employer; the geographic separateness, adminis18 trative, or fiscal relationship of the facility or

19 facilities in question to the employer.

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

21 Armed Forces, the Army National Guard and the

22 Air National Guard when engaged in active duty for

23 training, inactive duty training, or full-time National

24 Guard duty, the commissioned corps of the Public

25 Health Service, and any other category of persons
10

•HR 995 RFS

1 designated by the President in time of war or emer2 gency.

3 ‘‘SUBCHAPTER II—EMPLOYMENT AND REEM4 PLOYMENT RIGHTS AND LIMITATIONS;

5 PROHIBITIONS

6 ‘‘§ 4311. Discrimination against persons who serve in

7 the uniformed services and acts of re8 prisal prohibited

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

10 member of, performs, has performed, applies to perform,

11 or has an obligation to perform service in a uniformed

12 service shall not be denied initial employment, reemploy13 ment, retention in employment, promotion, or any benefit

14 of employment by an employer on the basis of that mem15 bership, application for membership, service, application

16 for service, or obligation.

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

18 a person initial employment, reemployment, retention in

19 employment, promotion, or a benefit of employment in vio20 lation of this section if the person’s membership, applica21 tion for membership, service, application for service, or ob22 ligation for service in the uniformed services is a motivat23 ing factor in the employer’s action, unless the employer

24 can demonstrate that the action would have been taken
11

•HR 995 RFS

1 in the absence of such membership, application for mem2 bership, service, application for service, or obligation.

3 ‘‘(c)(1) An employer may not discriminate in employ4 ment against or take any adverse employment action

5 against any person because such person has taken an ac6 tion to enforce a protection afforded any person under this

7 chapter, has testified or otherwise made a statement in

8 or in connection with any proceeding under this chapter,

9 has assisted or otherwise participated in an investigation

10 under this chapter, or has exercised a right provided for

11 in this chapter.

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

13 with respect to a person regardless of whether that person

14 has performed service in the uniformed services.

15 ‘‘§ 4312. Reemployment rights of persons who serve

16 in the uniformed services

17 ‘‘(a) Subject to subsections (b), (c), and (d) and to

18 section 4317, any person who is absent from a position

19 of employment (other than a temporary position) by rea20 son of service in the uniformed services shall be entitled

21 to the reemployment rights and benefits and other employ22 ment benefits of this chapter if—

23 ‘‘(1) the person (or an appropriate officer of the

24 uniformed service in which such service is per-
12

•HR 995 RFS

1 formed) has given advance written or verbal notice

2 of such service to such person’s employer;

3 ‘‘(2) except as provided in subsection (c), the

4 cumulative length of the absence and of all previous

5 absences from a position of employment with that

6 employer by reason of service in the uniformed serv7 ices does not exceed five years; and

8 ‘‘(3) except as provided in subsection (f), the

9 person reports to, or submits an application for re10 employment to, such employer in accordance with

11 the provisions of subsection (e).

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

13 the giving of such notice is precluded by military necessity

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

15 such notice is otherwise impossible or unreasonable. A de16 termination of military necessity for the purposes of this

17 subsection shall be made pursuant to regulations pre18 scribed by the Secretary of Defense and shall not be sub19 ject to judicial review.

20 ‘‘(c) Subsection (a) shall apply if such person’s cumu21 lative period of service in the uniformed services, with re22 spect to the employer relationship for which a person seeks

23 reemployment, does not exceed five years, except that any

24 such period of service shall not include any service—
13

•HR 995 RFS

1 ‘‘(1) that is required, beyond five years, to com2 plete an initial period of obligated service;

3 ‘‘(2) during which such person was unable to

4 obtain orders releasing such person from a period of

5 service in the uniformed services before the expira6 tion of such five-year period and such inability was

7 through no fault of such person;

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

9 270 of title 10, under section 502(a) or 503 of title

10 32, or to fulfill additional training requirements de11 termined and certified in writing by the Secretary

12 concerned to be necessary for professional develop13 ment or for completion of skill training or retrain14 ing; or

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

16 service who is—

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

18 under section 672(a), 672(g), 673, 673b, 673c,

19 or 688 of title 10;

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

21 (other than for training) under any provision of

22 law during a war or during a national emer23 gency declared by the President or the Con24 gress;
14

•HR 995 RFS

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

5 duty under section 673b of title 10;

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

7 determined by the Secretary concerned, of a

8 critical 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

13 10.

14 ‘‘(d)(1) An employer is not required to reemploy a

15 person under this chapter if—

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

17 changed as to make such reemployment impossible

18 or unreasonable, or

19 ‘‘(B) in the case of a person entitled to reem20 ployment under section 4313 (a)(3), (a)(4), or

21 (b)(2)(B), such employment would impose an undue

22 hardship on the operation of the employer.

23 ‘‘(2) In any administrative or judicial proceeding in24 volving an issue of whether—
15

•HR 995 RFS

1 ‘‘(A) any reemployment referred to in para2 graph (1) is impossible or unreasonable because of

3 a change 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

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

12 of service in the uniformed services, notify the employer

13 referred to in such subsection of the person’s intent to

14 return to a position of employment with such employer

15 as follows:

16 ‘‘(A) In the case of a person whose period of

17 service in the uniformed services was less than 31

18 days, by reporting to the employer—

19 ‘‘(i) not later than the beginning of the

20 first full regularly scheduled work period on the

21 first full calendar day following the completion

22 of the period of service and the expiration of

23 eight hours after a period allowing for the safe

24 transportation of the person from the place of

25 that service to the person’s residence; or
16

•HR 995 RFS

1 ‘‘(ii) as soon as possible after the expira2 tion of the eight-hour period referred to in

3 clause (i), if reporting within the period re4 ferred to in such clause is impossible or unrea5 sonable through no 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

13 service in the uniformed services was for more than

14 30 days but less than 181 days, by submitting an

15 application for reemployment with the employer not

16 later than 14 days after the completion of the period

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

18 period if submitting such application within such pe19 riod is impossible or unreasonable through no fault

20 of the 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
17

•HR 995 RFS

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 con5 valescing from, an illness or injury incurred in, or aggra6 vated by, the performance of a period of service in the

7 uniformed services shall, at the end of the period that is

8 necessary for the person to recover from such illness or

9 injury submit an application for reemployment with such

10 employer. Such period of recovery may not exceed two

11 years, except as provided in subparagraph (B).

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

13 minimum time required to accommodate the cir14 cumstances beyond such person’s control which make re15 porting within the time limit specified in subparagraph

16 (A) impossible or unreasonable.

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

18 reemployment within the time limits specified in sub19 section (e) does not automatically forfeit such person’s

20 right under subsection (a) but shall be subject to the con21 duct rules, established policy, and general practices of the

22 employer pertaining to explanations and discipline with re23 spect to absence from scheduled work.

24 ‘‘(g)(1) A person who submits an application for re25 employment in accordance with subparagraph (C) or (D)
18

•HR 995 RFS

1 of subsection (e)(1) or subsection (e)(2) shall provide to

2 the person’s employer (upon the request of such employer)

3 documentation to establish that—

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

5 ‘‘(B) the person has not exceeded the service

6 limitations set forth in subsection (a)(2) (except as

7 permitted 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

12 paragraph (1) that satisfies regulations prescribed by the

13 Secretary shall satisfy the documentation requirements in

14 such paragraph.

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

16 that satisfies regulations prescribed pursuant to para17 graph (2) shall not be a basis for denying reemployment

18 in accordance with the provisions of this chapter if the

19 failure occurs because such documentation does not exist

20 or is not readily available at the time of the request of

21 the employer. If, after such reemployment, documentation

22 becomes available that establishes that such person does

23 not meet one or more of the requirements referred to in

24 subparagraphs (A) through (C) of paragraph (1), the em25 ployer of such person may terminate the employment of
19

•HR 995 RFS

1 the person and the provision of any rights or benefits af2 forded the person under this chapter.

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

4 or attempt to defeat a reemployment obligation by de5 manding documentation that does not then exist or is not

6 then readily available.

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

8 this section shall not entitle such person to retention, pref9 erence, or displacement rights over any person with a su10 perior claim under the provisions of title 5, United States

11 Code, relating to veterans and other preference eligibles.

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

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

14 and duration of the person’s training or service or the na15 ture of such training or service (including voluntary serv16 ice) in the uniformed services shall not be a basis for deny17 ing protection of such training or service if the service

18 does not exceed the limitations set forth in subsection (c),

19 and the notice requirements established in subsection

20 (a)(1) and the notification requirements established in

21 subsection (e) are 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 re-
20

•HR 995 RFS

1 employment under section 4312 upon completion of a pe2 riod of service in the uniformed services shall be promptly

3 reemployed in a position of employment in accordance

4 with the following priorities:

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

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

7 in the uniformed services was for less than 91

8 days—

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

10 which the person would have been employed if

11 the continuous employment of such person with

12 the employer had not been interrupted by such

13 service, the duties of which the person is quali14 fied to perform; or

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

16 which the person was employed on the date of

17 the commencement of the service in the uni18 formed services, only if the person is not quali19 fied to perform the duties of the position re20 ferred to in subparagraph (A) after reasonable

21 efforts by the employer to qualify the person.

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

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

24 in the uniformed services was for more than 90

25 days—
21

•HR 995 RFS

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

2 which the person would have been employed if

3 the continuous employment of such person with

4 the employer had not been interrupted by such

5 service, or a position of like seniority, status

6 and pay, the duties of which the person is quali7 fied to perform; or

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

9 which the person was employed on the date of

10 the commencement of the service in the uni11 formed services, or a position of like seniority,

12 status and pay, the duties of which the person

13 is qualified to perform, only if the person is not

14 qualified to perform the duties of a position re15 ferred to in subparagraph (A) after reasonable

16 efforts by the employer to qualify the person.

17 ‘‘(3) In the case of a person who has a disabil18 ity incurred in, or aggravated by, a period of service

19 in the uniformed services, and if, after reasonable ef20 forts by the employer to accommodate the disability,

21 such person is not qualified due to such disability to

22 be employed in the position of employment in which

23 the person would have been employed if the continu24 ous employment of such person with the employer

25 had not been interrupted by such service—
22

•HR 995 RFS

1 ‘‘(A) in any other position which is equiva2 lent in seniority, status, and pay, the duties of

3 which the person is qualified to perform or

4 would become qualified to perform with reason5 able efforts by the employer; or

6 ‘‘(B) if not employed under subparagraph

7 (A), in a position which is the nearest approxi8 mation to a position referred to in subpara9 graph (A) in terms of seniority, status, and pay

10 consistent with circumstances of such person’s

11 case.

12 ‘‘(4) In the case of a person who is not quali13 fied to be employed in the position of employment in

14 which the person would have been employed if the

15 continuous employment of such person with the em16 ployer had not been interrupted by such service or

17 in the position of employment in which such person

18 was employed on the date of the commencement of

19 the service in the uniform services for any reason

20 other than disability incurred in, or aggravated by,

21 a period of service in the uniformed services and

22 who cannot become qualified with reasonable efforts

23 by the employer, in any other position of lesser sta24 tus and pay which such person is qualified to per25 form, with full seniority.
23

•HR 995 RFS

1 ‘‘(b)(1) If two or more persons are entitled to reem2 ployment under section 4312 in the same position of em3 ployment and more than one of them has reported for such

4 reemployment, the person who left the position first shall

5 have the prior right to reemployment in that position.

6 ‘‘(2) Any person entitled to reemployment under sec7 tion 4312 who is not reemployed in a position of employ8 ment by reason of paragraph (1) shall be entitled to reem9 ployment as follows:

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

11 in any other position of employment referred to in

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

13 the order of priority set out in the applicable sub14 section), that provides a similar status and pay to a

15 position of employment referred to in paragraph (1)

16 of this subsection, consistent with circumstances of

17 such person’s case, with full seniority.

18 ‘‘(B) In the case of a person who has a disabil19 ity incurred in, or aggravated by, a period of service

20 in the uniformed services that requires reasonable

21 efforts by the employer for the person to be able to

22 perform the duties of the position of employment, in

23 any other position referred to in subsection (a)(3)

24 (in the order of priority set out in that subsection)

25 that provides a similar status and pay to a position
24

•HR 995 RFS

1 referred to in paragraph (1) of this subsection, con2 sistent with circumstances of such person’s case,

3 with full seniority.

4 ‘‘§ 4314. Reemployment by the Federal Government

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

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

7 Government under section 4312, such person shall be re8 employed in a position of employment as described in sec9 tion 4313.

10 ‘‘(b) If the employer of a person described in sub11 section (a) was, at the time such person entered service

12 in the uniformed services, an agency in the executive

13 branch, and the Director of the Office of Personnel Man14 agement determines that—

15 ‘‘(1) such employer no longer exists and its

16 functions have not been transferred to another part

17 of the executive branch; or

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

19 employer to reemploy such person,

20 the Director shall identify an alternative position of like

21 seniority, status, and pay for which such person is quali22 fied in another part of the executive branch, and the

23 Director shall cause employment in such position to be

24 offered to such person.
25

•HR 995 RFS

1 ‘‘(c) If the employer of a person described in sub2 section (a) was, at the time such person entered service

3 in the uniformed services, a part of the judicial branch

4 or the legislative branch of the Federal Government, and

5 such employer determines that—

6 ‘‘(1) it is impossible or unreasonable for such

7 employer to reemploy such person; and

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

9 a status for transfer to a position in the competitive

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

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

12 Office of Personnel Management, be considered for and

13 offered employment in an alternative position in the execu14 tive branch on the same basis as described in subsection

15 (b).

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

17 that it is impossible or unreasonable to reemploy a person

18 who was a National Guard technician employed under sec19 tion 709 of title 32, and such person is otherwise eligible

20 to acquire a status for transfer to a position in the com21 petitive service in accordance with section 3304(d) of title

22 5, such person shall, upon application to the Director of

23 the Office of Personnel Management, be considered for

24 and offered employment in an alternative position in the
26

•HR 995 RFS

1 executive branch of the Federal Government on the same

2 basis as described in subsection (b).

3 ‘‘§ 4315. Rights, benefits, and obligations of persons

4 absent from employment for service in a

5 uniformed service

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

7 is entitled to the seniority and other rights and benefits

8 determined by seniority that the person had on the date

9 of the commencement of service in the uniformed services

10 plus the additional seniority and rights and benefits that

11 such person would have attained if the person had re12 mained continuously employed.

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

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

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

16 other rights and benefits, not determined by seniority, re17 lating to other employees on furlough or leave of absence

18 which were in effect by contract, practice, policy, agree19 ment, or plan at the commencement of such period of serv20 ice or were established while such person is performing

21 such service. Such person may be required to pay the em22 ployee cost, if any, of any funded benefit continued pursu23 ant to the preceding sentence to the extent other employ24 ees on furlough or leave of absence are so required.
27

•HR 995 RFS

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

2 performs service in the uniformed services shall, at such

3 person’s request, continue to be covered by any insurance

4 provided by such employer for up to 18 months. Such per5 son may be required to pay the entire cost of any benefit

6 continued pursuant to the preceding sentence, except that

7 in the case of persons ordered to training or service for

8 fewer than 31 days, such person may be required to pay

9 only the employee share, if any, of the cost of such benefit.

10 ‘‘(2) In the case of employer-sponsored health bene11 fits, an exclusion or waiting period may not be imposed

12 in connection with coverage of a health or physical condi13 tion of a person entitled to participate in these benefits,

14 either under paragraph (1) or upon reinstatement, or in

15 connection with a health or physical condition of any other

16 person who is covered by the benefit by reason of the cov17 erage of such person, if—

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

19 person’s period of training or service in the uni20 formed services;

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

22 have been imposed for the condition during a period

23 of coverage resulting from participation by such per24 son in the benefits; and
28

•HR 995 RFS

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

2 determined by the Secretary of Veterans Affairs to

3 be service-connected.

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

5 under this chapter shall not be discharged from such em6 ployment, except for cause—

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

8 days or more, within one year;

9 ‘‘(2) if such person’s period of service was 31

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

11 months; or

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

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

14 to the period of service concerned.

15 ‘‘(e) Any person who is absent from or leaves a posi16 tion (other than a temporary position) in the employ of

17 any employer for voluntary or involuntary service in the

18 uniformed services may utilize, with respect to the em19 ployer and during any period of such service, accrued or

20 other leave which the person could have utilized if the per21 son had remained in such position.

22 ‘‘§ 4316. Employee pension benefit plans

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

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

25 pension benefit plan described in section 3(2) of the Em-
29

•HR 995 RFS

1 ployee Retirement Income Security Act of 1974 (29

2 U.S.C. 1002(2)) or a right provided under any Federal

3 or State law governing pension benefits for governmental

4 employees, the right to pension benefits of a person reem5 ployed under this chapter shall be determined under this

6 section.

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

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

9 shall be those rights provided in section 8432b of title 5.

10 The first sentence of this subparagraph shall not be con11 strued to affect any other right or benefit under this

12 chapter.

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

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

15 the employer or employers maintaining the plan by reason

16 of such person’s period or periods of service in the uni17 formed services.

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

19 services shall, upon reemployment under this chapter, be

20 deemed to constitute service with the employer or employ21 ers maintaining the plan for purposes of determining the

22 nonforfeitability of the person’s accrued benefits and for

23 the purpose of determining the accrual of benefits under

24 the plan.
30

•HR 995 RFS

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

2 this chapter shall be liable to an employee pension benefit

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

4 benefits described in subsection (a)(2). For purposes of

5 determining the amount of such liability and for purposes

6 of section 515 of the Employee Retirement Income Secu7 rity Act of 1974 (29 U.S.C. 1145) or any similar Federal

8 or State law governing pension benefits for governmental

9 employees, service in the uniformed services that is

10 deemed under subsection (a) to be service with the em11 ployer shall be deemed to be service with the employer

12 under the terms of the plan or any applicable collective

13 bargaining agreement. In the case of a multiemployer

14 plan, as defined in section 3(37) of the Employee Retire15 ment Income Security Act of 1974 (29 U.S.C. 1002(37)),

16 any liability of the plan described in this paragraph shall

17 be allocated by the plan in such manner as the sponsor

18 maintaining the plan shall provide.

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

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

21 in subsection (a)(2)(B)—

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

23 an employer contribution in the same manner and to

24 the same extent as earnings are credited to other

25 employees during the period of service, subject to
31

•HR 995 RFS

1 paragraph (3), irrespective of when the contribution

2 is made;

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

4 ‘‘(I) any employer contribution that was

5 voluntary; and

6 ‘‘(II) any employer contribution the total

7 amount of which was determined without ref8 erence to the number of, or compensation of,

9 plan participants before being allocated to the

10 accounts of participants; and

11 ‘‘(iii) may have allocated the amount of any for12 feiture,

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

14 occurs for other employees during the period of service.

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

16 be entitled to accrued benefits pursuant to subsection (a)

17 that are contingent on the making of, or derived from,

18 employee contributions or elective deferrals (as defined in

19 section 402(g)(3) of the Internal Revenue Code of 1986)

20 only to the extent the person makes payment to the plan

21 with respect to such contributions or deferrals. No such

22 payment may exceed the amount the person would have

23 been permitted or required to contribute had the person

24 remained continuously employed by the employer through25 out the period of service described in subsection (a)(2)(B).
32

•HR 995 RFS

1 Any payment to the plan described in this paragraph shall

2 be made during any reasonable continuous period (begin3 ning with the date of reemployment) as the employer and

4 the person may agree.

5 ‘‘(3) For purposes of computing an employer’s liabil6 ity under paragraph (1)(A) or the employee’s contribu7 tions under paragraph (2), the employee’s compensation

8 during the period of service described in subsection

9 (a)(2)(B)—

10 ‘‘(A) shall be computed at the same rate as the

11 employee received from the employer immediately

12 before such period; or

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

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

15 of the employee’s average rate of compensation dur16 ing the 12-month period immediately preceding such

17 period (or, if shorter, the period of employment im18 mediately preceding such period).

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

20 chapter and who is an employer contributing to a multiem21 ployer plan, as defined in section 3(37) of the Employee

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

23 1002(37)), under which benefits are or may be payable

24 to such person by reason of the obligations set forth in

25 this chapter, shall, within 30 days after the date of such
33

•HR 995 RFS

1 reemployment, provide information, in writing, of such re2 employment to the administrator of such plan.

3 ‘‘§ 4317. Character of service

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

5 by reason of the service of such person in one of the uni6 formed services terminates upon the occurrence of any of

7 the following events:

8 ‘‘(1) A separation of such person from such

9 uniformed service with a dishonorable or bad con10 duct discharge.

11 ‘‘(2) A separation of such person from such

12 uniformed service under other than honorable condi13 tions, as characterized pursuant to regulations pre14 scribed by the Secretary concerned.

15 ‘‘(3) A dismissal of such person permitted

16 under section 1161(a) of title 10.

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

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

19 ‘‘SUBCHAPTER III—PROCEDURES FOR ASSIST20 ANCE, ENFORCEMENT, AND INVESTIGA21 TIONS

22 ‘‘§ 4321. Assistance in obtaining employment or reem23 ployment

24 ‘‘The Secretary (through the Veterans’ Employment

25 and Training Service) shall provide assistance to any per-
34

•HR 995 RFS

1 son with respect to employment and reemployment rights

2 and benefits to which such person is entitled under this

3 chapter. In providing such assistance, the Secretary may

4 request the assistance of existing Federal and State agen5 cies engaged in similar or related activities and utilize the

6 assistance of volunteers.

7 ‘‘§ 4322. Enforcement of employment or reemploy8 ment rights

9 ‘‘(a)(1) A person who claims that—

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

11 to employment or reemployment rights or benefits

12 with respect to employment by an employer; and

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

14 is about to fail or refuse, to comply with the provi15 sions of this chapter; or

16 ‘‘(ii) in the case that the employer is the Fed17 eral Government, such employer or the Office of

18 Personnel Management has failed or refused, or is

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

20 of this chapter,

21 may file a complaint with the Secretary in accordance with

22 subsection (b), and the Secretary shall investigate such

23 complaint.

24 ‘‘(2) In the case that the employer is the Federal

25 Government, subsection (a) of section 4323 shall be appli-
35

•HR 995 RFS

1 cable to such investigation but not subsections (b) and (c)

2 of such section.

3 ‘‘(3) This subsection does not apply to any action re4 lating to benefits to be provided by the Thrift Savings

5 Plan.

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

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

8 to the Secretary for assistance in asserting that complaint.

9 ‘‘(2) Such complaint shall be in writing, be in such

10 form as the Secretary may prescribe, include the name

11 and address of the employer against whom the complaint

12 is filed, and contain a summary of the allegations that

13 form the basis for the complaint.

14 ‘‘(3) Before the receipt of a written complaint, the

15 Secretary shall, upon request, provide technical assistance

16 to the potential claimant and, if the Secretary determines

17 it appropriate, to such claimant’s employer.

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

19 the Secretary, after investigation, is reasonably satisfied

20 that the employer has failed to comply with the provisions

21 of this chapter, if efforts to obtain voluntary compliance

22 are not successful, and if the claimant requests in writing

23 that the claim be referred for litigation, the Secretary shall

24 refer the case to the Attorney General. If the Attorney

25 General is reasonably satisfied that the person requesting
36

•HR 995 RFS

1 representation is entitled to the rights or benefits sought,

2 the Attorney General shall appear and act as attorney for

3 the claimant in the filing of a complaint and other appro4 priate motions and pleadings and the prosecution thereof

5 in the district courts of the United States and on appeal.

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

7 person after receiving a referral from the Secretary or if

8 a person chooses not to apply to the Secretary for assist9 ance or to utilize the Attorney General for representation

10 under this section, such person may be represented before

11 the district court or on appeal by counsel of the person’s

12 choice.

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

14 Government, if the Secretary, after investigation, is rea15 sonably satisfied that the employer has failed to comply

16 with the provisions of this chapter, if efforts to obtain vol17 untary compliance are not successful, and if the claimant

18 requests in writing that the claim be referred for litigation,

19 the case shall be referred to the Office of the Special

20 Counsel, litigation shall be before the Merit Systems Pro21 tection Board, and if the Special Counsel is reasonably

22 satisfied that the person requesting representation is enti23 tled to the rights or benefits sought, the Special Counsel

24 shall appear and act as attorney for the claimant in filing
37

•HR 995 RFS

1 an appeal to the Merit Systems Protection Board and in

2 pursuing that appeal.

3 ‘‘(B) If the Special Counsel declines to represent a

4 person after receiving a referral from the Secretary or if

5 a person chooses not to apply to the Secretary for assist6 ance or to utilize the Special Counsel for representation

7 under this section, such person may be represented before

8 the Merit Systems Protection Board or on appeal by coun9 sel of the person’s choice.

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

11 a State or private employer.

12 ‘‘(2)(A) The district courts of the United States may

13 require the State or private employer, as the case may

14 be—

15 ‘‘(i) to comply with the provisions of this chap16 ter;

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

18 wages or benefits suffered by reason of such employ19 er’s failure to comply with the provisions of this

20 chapter; and

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

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

23 to such compensation as liquidated damages, if the

24 court determines that the employer’s failure to com25 ply with the provisions of this chapter was willful.
38

•HR 995 RFS

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

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

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

4 rights and benefits provided for in this chapter.

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

6 taxed against any person claiming rights or benefits under

7 this chapter.

8 ‘‘(B) In any action or proceeding to enforce a provi9 sion of this chapter by a person described in paragraph

10 (2) who obtained private counsel for such action or pro11 ceeding, the court, in its discretion, may award any such

12 person who prevails in such action or proceeding a reason13 able attorney’s fee, expert witness fees, and other litiga14 tion expenses.

15 ‘‘(4) The court may use its full equity powers, includ16 ing temporary or permanent injunctions and temporary

17 restraining orders, to vindicate fully the rights or benefits

18 of persons under this chapter.

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

20 only by a person claiming rights or benefits under this

21 chapter, not by an employer, prospective employer, or

22 other entity with obligations under this chapter.

23 ‘‘(6) In any action under this chapter, only the em24 ployer shall be deemed a necessary party respondent.
39

•HR 995 RFS

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

2 proceedings under this chapter.

3 ‘‘(8) A State shall be subject to the same remedies,

4 including prejudgment interest, as may be imposed upon

5 any private employer under this section.

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

7 the Federal Government as employer.

8 ‘‘(2)(A) If the Merit Systems Protection Board con9 cludes that the Federal Government, as employer, has

10 failed to comply with the provisions of this chapter or that

11 the Director of the Office of Personnel Management has

12 not met an obligation set forth in section 4314, the Board

13 shall enter an order specifically requiring the employing

14 agency or the Director to comply with such provisions and

15 to compensate such person for any loss of wages or bene16 fits suffered by reason of the employing agency’s or the

17 Director’s unlawful action.

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

19 and shall not be deemed to diminish any of the other

20 rights or benefits provided for by this chapter.

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

22 the United States Court of Appeals for the Federal Circuit

23 to review a decision of the Merit Systems Protection

24 Board denying such claimant the relief sought, in whole
40

•HR 995 RFS

1 or in part, subject to the conditions and in accordance

2 with the procedures set forth in section 7703 of title 5.

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

4 represent persons with respect to review of decisions of

5 the Merit Systems Protection Board under this chapter

6 in the United States Court of Appeals for the Federal Cir7 cuit or the Supreme Court.

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

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

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

11 represented by counsel of the person’s choice.

12 ‘‘§ 4323. Conduct of investigation; subpoenas

13 ‘‘(a) In carrying out investigations under this chap14 ter, the Secretary’s duly authorized representatives shall

15 at all reasonable times have access to, for the purpose of

16 examination, and the right to copy and receive, any docu17 ments of any person or employer.

18 ‘‘(b) Except as provided in section 4322(a)(2), in car19 rying out investigations under this chapter, the Secretary

20 may require by subpoena the attendance and testimony

21 of witnesses and the production of documents relating to

22 any matter under investigation. In case of disobedience of

23 the subpoena or contumacy and on request of the Sec24 retary, the Attorney General may apply to any district

25 court of the United States in whose jurisdiction such dis-
41

•HR 995 RFS

1 obedience or contumacy occurs for an order enforcing the

2 Secretary’s subpoena.

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

4 application, the district courts of the United States shall

5 have jurisdiction to issue writs commanding any person

6 or employer to comply with the subpoena of the Secretary

7 or to comply with any order of the Secretary made pursu8 ant to a lawful investigation under this chapter, and the

9 district courts shall have jurisdiction to punish failure to

10 obey a subpoena or other lawful order of the Secretary

11 as a contempt of court.

12 ‘‘SUBCHAPTER IV—MISCELLANEOUS

13 PROVISIONS

14 ‘‘§ 4331. Regulations

15 ‘‘(a) The Secretary (in consultation with the Sec16 retary of Defense) may prescribe regulations implement17 ing the provisions of this chapter with regard to the appli18 cation of this chapter to States, local governments, and

19 private employers.

20 ‘‘(b)(1) The Director of the Office of Personnel Man21 agement (in consultation with the Secretary and the

22 Secretary of Defense) may prescribe regulations imple23 menting the provisions of this chapter with regard to the

24 application of this chapter to the Federal Government as

25 employer. Such regulations shall be consistent with the
42

•HR 995 RFS

1 regulations pertaining to the States and private employers,

2 except that employees of the Federal Government may be

3 given greater or additional rights. Nothing in this sub4 section constitutes authority for the Director to prescribe

5 any matter for which any regulation may be prescribed

6 under paragraph (2).

7 ‘‘(2) Regulations may be prescribed—

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

9 carry out its responsibilities under this chapter; and

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

11 out its responsibilities under this chapter.

12 ‘‘§ 4332. Reports

13 ‘‘The Secretary shall, after consultation with the At14 torney General and the Special Counsel referred to in sec15 tion 4322(b)(2) and no later than February 1, 1995, and

16 each February 1 thereafter, transmit to the Congress, a

17 report containing the following matters for the fiscal year

18 ending before such February 1:

19 ‘‘(1) The number of cases reviewed by the De20 partment of Labor under this chapter during the fis21 cal year for which the report is made.

22 ‘‘(2) The number of cases referred to the Attor23 ney General or the Special Counsel pursuant to sec24 tion 4322(c)(1) or 4322(c)(2), respectively, during

25 such fiscal year.
43

•HR 995 RFS

1 ‘‘(3) The number of pleadings filed by the At2 torney General pursuant to section 4322(c)(1) dur3 ing such fiscal year.

4 ‘‘(4) The nature and status of each case re5 ported on pursuant to paragraph (1), (2), or (3).

6 ‘‘(5) An indication of whether there are any ap7 parent patterns of violation of the provisions of this

8 chapter, together with an explanation thereof.

9 ‘‘(6) Recommendations for administrative or

10 legislative action that the Secretary, the Attorney

11 General, or the Special Counsel considers necessary

12 for the effective implementation of this chapter, in13 cluding any action that could be taken to encourage

14 mediation, before claims are filed under this chapter,

15 between employers and persons seeking employment

16 or reemployment.

17 ‘‘§ 4333. Outreach

18 ‘‘The Secretary, the Secretary of Defense, and the

19 Secretary of Veterans Affairs shall take such actions as

20 such Secretaries determine are appropriate to inform per21 sons entitled to rights and benefits under this chapter and

22 employers of the rights, benefits, and obligations of such

23 persons and such employers under this chapter.’’.

24 (b) CONFORMING AMENDMENTS.—
44

•HR 995 RFS

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

2 chapters at the beginning of title 38, United States

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

4 each amended by striking out the item relating to

5 chapter 43 and inserting in lieu thereof the follow6 ing:

‘‘43. Employment and reemployment rights of members of

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

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

8 1204(a)(1) of title 5, United States Code, is amend9 ed by striking out ‘‘section 4323’’ and inserting in

10 lieu thereof ‘‘chapter 43’’.

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

12 repealed.

13 (C) The table of sections for chapter 35 of such

14 title is amended by striking out the heading relating

15 to subchapter II of such chapter and the item relat16 ing to section 3551 of such chapter.

17 (3) AMENDMENT TO TITLE 10.—Section

18 706(c)(1) of title 10, United States Code, is amend19 ed by striking out ‘‘section 4321’’ and inserting in

20 lieu thereof ‘‘chapter 43’’.

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

22 28, United States Code, is amended—

23 (1) by striking out subsection (j);
45

•HR 995 RFS

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

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

3 (3) in subsection (j), as redesignated by para4 graph (2), by striking out ‘‘under the terms of’’ and

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

6 appears and inserting in lieu thereof ‘‘under chapter

7 43 of title 38,’’.

8 SEC. 3. EXEMPTION FROM MINIMUM SERVICE REQUIRE9 MENTS.

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

11 is amended—

12 (1) by striking out ‘‘or’’ at the end of subpara13 graph (E);

14 (2) by striking out the period at the end of sub15 paragraph (F) and inserting in lieu thereof ‘‘; or’’;

16 and

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

18 new subparagraph:

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

20 SEC. 4. THRIFT SAVINGS PLAN.

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

22 is amended by inserting after section 8432a the following:

23 ‘‘§ 8432b. Contributions of persons who perform mili24 tary service

25 ‘‘(a) This section applies to any employee who—
46

•HR 995 RFS

1 ‘‘(1) separates or enters leave-without-pay sta2 tus in order to perform military service; and

3 ‘‘(2) is subsequently restored to or reemployed

4 in a position which is subject to this chapter, pursu5 ant to chapter 43 of title 38.

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

7 may contribute to the Thrift Savings Fund, in accordance

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

9 described in paragraph (2).

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

11 contribute under this subsection is equal to—

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

13 which would have been made, over the period begin14 ning on date of separation or commencement of

15 leave-without-pay status (as applicable) and ending

16 on the day before the date of restoration or reem17 ployment (as applicable); reduced by

18 ‘‘(B) any contributions under section 8432(a)

19 actually made by such employee over the period de20 scribed in subparagraph (A).

21 ‘‘(3) Contributions under this subsection—

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

23 same manner as would any contributions under sec24 tion 8432(a);
47

•HR 995 RFS

1 ‘‘(B) shall be made over the period of time

2 specified by the employee under paragraph (4)(B);

3 and

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

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

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

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

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

9 contribute under this subsection with respect to any

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

11 and

12 ‘‘(B) the period of time over which the em13 ployee wishes to make contributions under this sub14 section.

15 The employing agency may place a maximum limit on the

16 period of time referred to in subparagraph (B), which can17 not be shorter than two times the period referred to in

18 paragraph (2)(B) and not longer than four times such pe19 riod.

20 ‘‘(c) If an employee makes contributions under sub21 section (b), the employing agency shall make contributions

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

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

24 under section 8432(c)(2) if the employee contribu25 tions were being made under section 8432(a); and
48

•HR 995 RFS

1 ‘‘(2) disregarding any contributions then actu2 ally being made under section 8432(a) and any

3 agency contributions relating thereto.

4 ‘‘(d) An employee to whom this section applies is enti5 tled to have contributed to the Thrift Savings Fund on

6 such employee’s behalf an amount equal to—

7 ‘‘(1) 1 percent of such employee’s basic pay (as

8 determined under subsection (e)) for the period re9 ferred to in subsection (b)(2)(B); reduced by

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

11 employee’s behalf under section 8432(c)(1) with re12 spect to the period referred to in subsection

13 (b)(2)(B).

14 ‘‘(e) For purposes of any computation under this sec15 tion, an employee shall, with respect to the period referred

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

17 at the rate which would have been payable over such pe18 riod had such employee remained continuously employed

19 in the position which such employee last held before sepa20 rating or entering leave-without-pay status to perform

21 military service.

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

23 lost earnings on contributions made pursuant to sub24 sections (c) and (d). Such earnings shall be calculated

25 retroactively to the date the contribution would have been
49

•HR 995 RFS

1 made had the employee not separated or entered leave

2 without pay status to perform military service.

3 ‘‘(2) Procedures for calculating and crediting the

4 earnings payable pursuant to paragraph (1) shall be pre5 scribed by the Executive Director.

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

7 shall be paid—

8 ‘‘(1) by the agency to which the employee is re9 stored or in which such employee is reemployed;

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

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

12 under section 8432(c); and

13 ‘‘(3) within the time prescribed by the Execu14 tive Director.

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

16 of an employee to whom this section applies—

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

18 to perform the military service on which the employ19 ee’s restoration or reemployment rights are based

20 shall be disregarded; and

21 ‘‘(B) such employee shall be credited with a pe22 riod of civilian service equal to the period referred

23 to in subsection (b)(2)(B).

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

25 may elect, for purposes of section 8433(d), or paragraph
50

•HR 995 RFS

1 (1) or (2) of section 8433(h), as the case may be, to have

2 such employee’s separation (described in subsection

3 (a)(1)) treated as if it had never occurred.

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

5 within such period of time after restoration or reemploy6 ment (as the case may be) and otherwise in such manner

7 as the Executive Director prescribes.

8 ‘‘(i) The Executive Director shall prescribe regula9 tions to carry out this section.’’.

10 (2) The table of sections for chapter 84 of title 5,

11 United States Code, is amended by inserting after the

12 item relating to section 8432a the following:

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

13 (b) PRESERVATION OF CERTAIN RIGHTS.—(1) Sec14 tion 8433(d) of title 5, United States Code, is amended

15 by striking ‘‘subsection (e).’’ and inserting ‘‘subsection (e),

16 unless an election under section 8432b(h)(2) is made to

17 treat such separation for purposes of this subsection as

18 if it had never occurred.’’.

19 (2) Paragraphs (1) and (2) of section 8433(h) are

20 each amended by striking the period at the end and insert21 ing ‘‘, or unless an election under section 8432b(h)(2) is

22 made to treat such separation for purposes of this para23 graph as if it had never occurred.’’.

24 (c) ELECTION TO RESUME REGULAR CONTRIBU25 TIONS UPON RESTORATION OR REEMPLOYMENT.—Sec-
51

•HR 995 RFS

1 tion 8432 of title 5, United States Code, is amended by

2 adding at the end the following:

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

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

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

6 absence from civilian service (as referred to in sec7 tion 8432b(b)(2)(B))—

8 ‘‘(i) is eligible to make an election de9 scribed in subsection (b)(1); or

10 ‘‘(ii) would be so eligible but for having

11 either elected to terminate individual contribu12 tions to the Thrift Savings Fund within 2

13 months before commencing military service or

14 separated in order to perform military service.

15 ‘‘(2) The Executive Director shall prescribe regula16 tions to ensure that any employee to whom this subsection

17 applies shall, within a reasonable time after being restored

18 or reemployed (in the manner described in section

19 8432b(a)(2)), be afforded the opportunity to make, for

20 purposes of this section, any election which would be al21 lowable during a period described in subsection

22 (b)(1)(A).’’.

23 (d) APPLICABILITY TO EMPLOYEES UNDER CSRS.—

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

25 by adding at the end the following:
52

•HR 995 RFS

1 ‘‘(11) In applying section 8432b to an employee con2 tributing to the Thrift Savings Fund after being restored

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

4 pursuant to chapter 43 of title 38—

5 ‘‘(A) any reference in such section to contribu6 tions under section 8432(a) shall be considered a

7 reference to employee contributions under this sec8 tion;

9 ‘‘(B) the contribution rate under section

10 8432b(b)(2)(A) shall be the maximum percentage al11 lowable under subsection (b)(2) of this section; and

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

13 shall be disregarded.’’.

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

15 and the amendments made by this section—

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

17 of this Act; and

18 (2) shall apply to any employee whose release

19 from military service, discharge from hospitalization,

20 or other similar event making the individual eligible

21 to seek restoration or reemployment under chapter

22 43 of title 38, United States Code, occurs on or

23 after August 2, 1990.

24 (f) RULES FOR APPLYING AMENDMENTS TO EM25 PLOYEES RESTORED OR REEMPLOYED BEFORE EFFEC-
53

•HR 995 RFS

1 TIVE DATE.—In the case of any employee (described in

2 subsection (e)(2)) who is reemployed or restored (in the

3 circumstances described in section 8432b(a) of title 5,

4 United States Code, as amended by this section) before

5 the date of enactment of this Act, the amendments made

6 by this section shall apply to such employee, in accordance

7 with their terms, subject to the following:

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

9 been reemployed or restored until—

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

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

12 reemployment or restoration on which such em13 ployee is or was eligible to make an election re14 lating to contributions to the Thrift Savings

15 Fund,

16 whichever occurs or occurred first.

17 (2) If the employee changed agencies during the

18 period between date of actual reemployment or res19 toration and the date of enactment of this Act, the

20 employing agency as of such date of enactment shall

21 be considered the reemploying or restoring agency.

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

23 section 8432b of such title, pay shall be determined

24 in accordance with subsection (e) of such section, ex25 cept that, with respect to the period described in
54

•HR 995 RFS

1 subparagraph (B), actual pay attributable to such

2 period shall be used.

3 (B) The period described in this subparagraph

4 is the period beginning on the first day of the first

5 applicable pay period beginning on or after the date

6 of the employee’s actual reemployment or restoration

7 and ending on the day before the date determined

8 under paragraph (1).

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

10 to be amended by striking ‘‘ending on the day before

11 the date of restoration or reemployment (as applica12 ble)’’ and inserting ‘‘ending on the date determined

13 under section 4(f)(1) of the Uniformed Services Em14 ployment and Reemployment Rights Act of 1993’’.

15 SEC. 5. TECHNICAL AMENDMENT.

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

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

18 and inserting in lieu thereof ‘‘section’’.

19 SEC. 6. TRANSITION RULES AND EFFECTIVE DATES.

20 (a) REEMPLOYMENT.—(1) Except as otherwise pro21 vided in this Act, the amendments made by this Act shall

22 be effective with respect to reemployments initiated on or

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

24 the date of enactment of this Act.
55

•HR 995 RFS

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

2 States Code, in effect on the day before such date of enact3 ment, shall continue to apply to reemployments initiated

4 before the end of such 60-day period.

5 (3) In determining the number of years of service

6 that may not be exceeded in an employee-employer rela7 tionship with respect to which a person seeks reemploy8 ment under chapter 43 of title 38, United States Code,

9 as in effect before or after the date of enactment of this

10 Act, there shall be included all years of service without

11 regard to whether the periods of service occurred before

12 or after such date of enactment unless the period of serv13 ice is exempted by the chapter 43 that is applicable, as

14 provided in paragraphs (1) and (2), to the reemployment

15 concerned.

16 (4) A person who initiates reemployment under chap17 ter 43 of title 38, United States Code, during or after the

18 60-day period beginning on the date of enactment of this

19 Act and whose reemployment is made in connection with

20 a period of service in the uniform services that was initi21 ated before the end of such period shall be deemed to have

22 satisfied the notification requirement of section

23 4312(a)(1) of title 38, United States Code, as provided

24 in the amendments made by this Act, if the person com25 plied with any applicable notice requirement under chapter
56

•HR 995 RFS

1 43, United States Code, as in effect on the day before

2 the date of enactment of this Act.

3 (b) DISCRIMINATION.—The provisions of section

4 4311 of title 38, United States Code, as provided in the

5 amendments made by this Act, and the provisions of sub6 chapter III of chapter 43 of such title, as provided in the

7 amendments made by this Act, that are necessary for the

8 implementation of such section 4311 shall become effec9 tive on the date of enactment of this Act.

10 (c) INSURANCE.—(1) Except as provided in para11 graph (2), the provisions of section 4315(c) of title 38,

12 United States Code, as provided in the amendments made

13 by this Act, concerning insurance coverage shall become

14 effective on the date of enactment of this Act.

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

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

17 of such person, may, after the date of enactment of this

18 Act, elect to reinstate or continue insurance coverage as

19 provided in such section 4315. If such an election is made,

20 insurance coverage shall remain in effect for the remaining

21 portion of the 18-month period that began on the date

22 of such person’s separation from civilian employment.

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

24 43 of title 38, United States Code, as provided in the
57

•HR 995 RFS

1 amendments made by this Act, shall apply to

2 reemployments initiated on or after August 1, 1990.

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

4 title 38, United States Code (as in effect on the date of

5 enactment of this Act), is hereby repealed, and the table

6 of sections at the beginning of chapter 43 of such title

7 (as in effect on the date of enactment of this Act) is

8 amended by striking out the item relating to section 4307.

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

10 of Labor pursuant to section 4332 of title 38, United

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

12 Act, shall be made with respect to cases pertaining to

13 chapter 43 of such title without regard to whether a case

14 originated under such chapter before, on, or after the date

15 of enactment of this Act.

16 (f) PREVIOUS ACTIONS.—Except as otherwise pro17 vided, the amendments made by this Act do not affect

18 reemployments that were initiated, rights, benefits, and

19 duties that matured, penalties that were incurred, and

20 proceedings that were begun before the end of the 60-day

21 period referred to in subsection (a).

Passed the House of Representatives May 4, 1993.

Attest: DONNALD K. ANDERSON,

Clerk.

HR 995 RFS——2

HR 995 RFS——3
58

•HR 995 RFS

HR 995 RFS——4

HR 995 RFS——5