II

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

NOVEMBER 8 (legislative day, NOVEMBER 2), 1993

Committee discharged

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’’.

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:
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1 ‘‘CHAPTER 43—EMPLOYMENT AND REEMPLOY2 MENT RIGHTS OF MEMBERS OF THE UNI3 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.

4 ‘‘SUBCHAPTER I—PURPOSES, RELATION TO

5 OTHER LAW, AND DEFINITIONS

6 ‘‘§ 4301. Purposes; sense of Congress

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

8 ‘‘(1) to encourage noncareer service in the uni9 formed services by eliminating or minimizing the dis10 advantages to civilian careers and employment which

11 can result from such service;
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1 ‘‘(2) to minimize the disruption to the lives of

2 persons performing service in the uniformed services

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

4 and their communities, by providing for the prompt

5 reemployment of such persons upon their completion

6 of such service under honorable conditions; and

7 ‘‘(3) to prohibit discrimination against persons

8 because of their service in the uniformed services.

9 ‘‘(b) It is the sense of Congress that the Federal Gov10 ernment should be a model employer in carrying out the

11 reemployment practices provided for in this chapter.

12 ‘‘§ 4302. Relation to other law and plans or agree13 ments

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

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

16 law or ordinance) or any contract, practice, policy, agree17 ment, plan, or other matter provided by an employer which

18 establishes rights or benefits which are greater than or

19 in addition to those provided in this chapter.

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

21 any local law or ordinance), employer practices, policies,

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

23 limit, or eliminate in any manner rights or benefits pro24 vided by this chapter, including the establishment of addi25 tional prerequisites to the exercise of such rights.
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1 ‘‘§ 4303. Definitions

2 ‘‘For the purposes of this chapter:

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

4 Attorney General of the United States or any person

5 designated by the Attorney General to carry out a

6 responsibility of the Attorney General under this

7 chapter.

8 ‘‘(2) The term ‘benefit’, ‘benefit of employ9 ment’, or ‘rights and benefits’ means any aspect of

10 the employment relationship, other than wages or

11 salary for work performed, provided by contract or

12 employer practice or custom, that offers advantage,

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

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

15 and payments, insurance coverage and awards, em16 ployee stock ownership plans, bonuses, severance

17 pay, supplemental unemployment benefits, vacations,

18 and selection of work hours or locations of employ19 ment.

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

21 employed by an employer.

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

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

24 institution, organization, or other entity that pays

25 salary or wages for work performed or that has con26 trol over employment opportunities, including—
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1 ‘‘(i) a person, institution, organization, or

2 other entity to whom the employer has dele3 gated the performance of employment-related

4 responsibilities;

5 ‘‘(ii) the Federal Government;

6 ‘‘(iii) a State;

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

8 institution, organization, or other entity re9 ferred to in this subparagraph; and

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

11 other entity that has denied initial employment

12 in violation of section 4311.

13 ‘‘(B) In the case of a National Guard techni14 cian employed under section 709 of title 32, the

15 term ‘employer’ means the adjutant general of the

16 State in which the technician is employed.

17 ‘‘(C) Except as an actual employer of employ18 ees, an employee pension benefit plan described in

19 section 3(2) of the Employee Retirement Income Se20 curity Act of 1974 (29 U.S.C. 1002(2)) shall be

21 deemed to be an employer only with respect to the

22 obligation to provide benefits described in section

23 4316.

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

25 the executive branch, the judicial branch, and the
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1 legislative branch, with the executive branch includ2 ing—

3 ‘‘(A) any department, administration,

4 agency, commission, board, or independent es5 tablishment in, or other part of, the executive

6 branch (including any executive agency as de7 fined in section 105 of title 5);

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

9 the Postal Rate Commission;

10 ‘‘(C) any nonappropriated fund activity of

11 the United States; and

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

13 United States.

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

15 policy or contract, medical or hospital service agree16 ment, membership or subscription contract, or other

17 arrangement under which health services for individ18 uals are provided or the expenses of such services

19 are paid.

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

21 subchapter II) any written or verbal notification of

22 an obligation or intention to perform service in the

23 uniformed services provided to an employer by the

24 employee who will perform such service or by the
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1 uniformed service in which such service is to be per2 formed.

3 ‘‘(8) The term ‘other than a temporary posi4 tion’ means a position of employment as to which

5 there is a reasonable expectation that it will continue

6 indefinitely.

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

8 ability to perform the essential tasks of an employ9 ment position.

10 ‘‘(10) The term ‘reasonable efforts’ means ac11 tions, including training provided by an employer,

12 that do not create an undue hardship on the em13 ployer.

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

15 ‘Secretary’ means the Secretary of Labor or any

16 person designated by such Secretary to carry out an

17 activity under this chapter.

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

19 employment together with any benefits of employ20 ment which accrue with, or are determined by, lon21 gevity in employment.

22 ‘‘(13) The term ‘service in the uniformed serv23 ices’ means the performance of duty on a voluntary

24 or involuntary basis in a uniformed service under

25 competent authority and includes active duty, active
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1 duty for training, initial active duty for training, in2 active duty training, full-time National Guard duty,

3 and a period for which a person is absent from a po4 sition of employment for the purpose of an examina5 tion to determine the fitness of the person to per6 form any such duty.

7 ‘‘(14) The term ‘State’ means each of the sev8 eral States of the United States, the District of Co9 lumbia, the Commonwealth of Puerto Rico, Guam,

10 the Virgin Islands, and other territories of the Unit11 ed States (including the agencies and political sub12 divisions thereof).

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

14 action requiring significant difficulty or expense,

15 when considered in light of the factors set forth in

16 subparagraph (B).

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

18 impose an undue hardship on an employer, factors

19 to be considered include—

20 ‘‘(i) the nature and cost of the action need21 ed under this chapter;

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

23 facility or facilities involved in the provision of

24 the action; the number of persons employed at

25 such facility; the effect on expenses and re-
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1 sources, or the impact otherwise of such action

2 upon the operation of the facility;

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

4 employer; the overall size of the business of an

5 employer with respect to the number of its em6 ployees; the number, type, and location of its

7 facilities; and

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

9 the employer, including the composition, struc10 ture, and functions of the work force of such

11 employer; the geographic separateness, adminis12 trative, or fiscal relationship of the facility or

13 facilities in question to the employer.

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

15 Armed Forces, the Army National Guard and the

16 Air National Guard when engaged in active duty for

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

18 Guard duty, the commissioned corps of the Public

19 Health Service, and any other category of persons

20 designated by the President in time of war or emer21 gency.
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1 ‘‘SUBCHAPTER II—EMPLOYMENT AND REEM2 PLOYMENT RIGHTS AND LIMITATIONS;

3 PROHIBITIONS

4 ‘‘§ 4311. Discrimination against persons who serve in

5 the uniformed services and acts of re6 prisal prohibited

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

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

9 or has an obligation to perform service in a uniformed

10 service shall not be denied initial employment, reemploy11 ment, retention in employment, promotion, or any benefit

12 of employment by an employer on the basis of that mem13 bership, application for membership, service, application

14 for service, or obligation.

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

16 a person initial employment, reemployment, retention in

17 employment, promotion, or a benefit of employment in vio18 lation of this section if the person’s membership, applica19 tion for membership, service, application for service, or ob20 ligation for service in the uniformed services is a motivat21 ing factor in the employer’s action, unless the employer

22 can demonstrate that the action would have been taken

23 in the absence of such membership, application for mem24 bership, service, application for service, or obligation.
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1 ‘‘(c)(1) An employer may not discriminate in employ2 ment against or take any adverse employment action

3 against any person because such person has taken an ac4 tion to enforce a protection afforded any person under this

5 chapter, has testified or otherwise made a statement in

6 or in connection with any proceeding under this chapter,

7 has assisted or otherwise participated in an investigation

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

9 in this chapter.

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

11 with respect to a person regardless of whether that person

12 has performed service in the uniformed services.

13 ‘‘§ 4312. Reemployment rights of persons who serve

14 in the uniformed services

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

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

17 of employment (other than a temporary position) by rea18 son of service in the uniformed services shall be entitled

19 to the reemployment rights and benefits and other employ20 ment benefits of this chapter if—

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

22 uniformed service in which such service is per23 formed) has given advance written or verbal notice

24 of such service to such person’s employer;
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1 ‘‘(2) except as provided in subsection (c), the

2 cumulative length of the absence and of all previous

3 absences from a position of employment with that

4 employer by reason of service in the uniformed serv5 ices does not exceed five years; and

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

7 person reports to, or submits an application for re8 employment to, such employer in accordance with

9 the provisions of subsection (e).

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

11 the giving of such notice is precluded by military necessity

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

13 such notice is otherwise impossible or unreasonable. A de14 termination of military necessity for the purposes of this

15 subsection shall be made pursuant to regulations pre16 scribed by the Secretary of Defense and shall not be sub17 ject to judicial review.

18 ‘‘(c) Subsection (a) shall apply if such person’s cumu19 lative period of service in the uniformed services, with re20 spect to the employer relationship for which a person seeks

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

22 such period of service shall not include any service—

23 ‘‘(1) that is required, beyond five years, to com24 plete an initial period of obligated service;
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1 ‘‘(2) during which such person was unable to

2 obtain orders releasing such person from a period of

3 service in the uniformed services before the expira4 tion of such five-year period and such inability was

5 through no fault of such person;

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

7 270 of title 10, under section 502(a) or 503 of title

8 32, or to fulfill additional training requirements de9 termined and certified in writing by the Secretary

10 concerned to be necessary for professional develop11 ment or for completion of skill training or retrain12 ing; or

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

14 service who is—

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

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

17 or 688 of title 10;

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

19 (other than for training) under any provision of

20 law during a war or during a national emer21 gency declared by the President or the Con22 gress;

23 ‘‘(C) ordered to active duty (other than for

24 training) in support, as determined by the Sec25 retary concerned, of an operational mission for
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1 which personnel have been ordered to active

2 duty under section 673b of title 10;

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

4 determined by the Secretary concerned, of a

5 critical mission or requirement of the uniformed

6 services; or

7 ‘‘(E) called into Federal service as a mem8 ber of the National Guard under chapter 15 of

9 title 10 or under section 3500 or 8500 of title

10 10.

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

12 person under this chapter if—

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

14 changed as to make such reemployment impossible

15 or unreasonable, or

16 ‘‘(B) in the case of a person entitled to reem17 ployment under section 4313 (a)(3), (a)(4), or

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

19 hardship on the operation of the employer.

20 ‘‘(2) In any administrative or judicial proceeding in21 volving an issue of whether—

22 ‘‘(A) any reemployment referred to in para23 graph (1) is impossible or unreasonable because of

24 a change in an employer’s circumstances, or
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1 ‘‘(B) any accommodation, training, or effort re2 ferred to in section 4313 (a)(3), (a)(4), or (b)(2)(B)

3 would impose an undue hardship on the operation of

4 the business of the employer,

5 the employer shall have the burden of proving the impos6 sibility or unreasonableness or undue hardship.

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

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

9 of service in the uniformed services, notify the employer

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

11 return to a position of employment with such employer

12 as follows:

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

14 service in the uniformed services was less than 31

15 days, by reporting to the employer—

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

17 first full regularly scheduled work period on the

18 first full calendar day following the completion

19 of the period of service and the expiration of

20 eight hours after a period allowing for the safe

21 transportation of the person from the place of

22 that service to the person’s residence; or

23 ‘‘(ii) as soon as possible after the expira24 tion of the eight-hour period referred to in

25 clause (i), if reporting within the period re-
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1 ferred to in such clause is impossible or unrea2 sonable through no fault of the person.

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

4 a position of employment for a period of any length

5 for the purposes of an examination to determine the

6 person’s fitness to perform service in the uniformed

7 services, by reporting in the manner and time re8 ferred to in subparagraph (A).

9 ‘‘(C) In the case of a person whose period of

10 service in the uniformed services was for more than

11 30 days but less than 181 days, by submitting an

12 application for reemployment with the employer not

13 later than 14 days after the completion of the period

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

15 period if submitting such application within such pe16 riod is impossible or unreasonable through no fault

17 of the person.

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

19 service in the uniformed services was for more than

20 180 days, by submitting an application for reemploy21 ment with the employer not later than 90 days after

22 the completion of the period of service or as soon as

23 possible after such 90-day period if submitting such

24 application within such period is impossible or un25 reasonable through no fault of the person.
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1 ‘‘(2)(A) A person who is hospitalized for, or con2 valescing from, an illness or injury incurred in, or aggra3 vated by, the performance of a period of service in the

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

5 necessary for the person to recover from such illness or

6 injury submit an application for reemployment with such

7 employer. Such period of recovery may not exceed two

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

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

10 minimum time required to accommodate the cir11 cumstances beyond such person’s control which make re12 porting within the time limit specified in subparagraph

13 (A) impossible or unreasonable.

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

15 reemployment within the time limits specified in sub16 section (e) does not automatically forfeit such person’s

17 right under subsection (a) but shall be subject to the con18 duct rules, established policy, and general practices of the

19 employer pertaining to explanations and discipline with re20 spect to absence from scheduled work.

21 ‘‘(g)(1) A person who submits an application for re22 employment in accordance with subparagraph (C) or (D)

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

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

25 documentation to establish that—
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1 ‘‘(A) the person’s application is timely;

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

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

4 permitted under subsection (c)); and

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

6 under this chapter has not terminated under section

7 4317.

8 ‘‘(2) Documentation of any matter referred to in

9 paragraph (1) that satisfies regulations prescribed by the

10 Secretary shall satisfy the documentation requirements in

11 such paragraph.

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

13 that satisfies regulations prescribed pursuant to para14 graph (2) shall not be a basis for denying reemployment

15 in accordance with the provisions of this chapter if the

16 failure occurs because such documentation does not exist

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

18 the employer. If, after such reemployment, documentation

19 becomes available that establishes that such person does

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

21 subparagraphs (A) through (C) of paragraph (1), the em22 ployer of such person may terminate the employment of

23 the person and the provision of any rights or benefits af24 forded the person under this chapter.
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1 ‘‘(4) It shall be unlawful for an employer to delay

2 or attempt to defeat a reemployment obligation by de3 manding documentation that does not then exist or is not

4 then readily available.

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

6 this section shall not entitle such person to retention, pref7 erence, or displacement rights over any person with a su8 perior claim under the provisions of title 5, United States

9 Code, relating to veterans and other preference eligibles.

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

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

12 and duration of the person’s training or service or the na13 ture of such training or service (including voluntary serv14 ice) in the uniformed services shall not be a basis for deny15 ing protection of such training or service if the service

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

17 and the notice requirements established in subsection

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

19 subsection (e) are met.

20 ‘‘§ 4313. Reemployment positions

21 ‘‘(a) Subject to subsection (b) in the case of any em22 ployee and subject to section 4314 in the case of reemploy23 ment by the Federal Government, a person entitled to re24 employment under section 4312 upon completion of a pe25 riod of service in the uniformed services shall be promptly
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1 reemployed in a position of employment in accordance

2 with the following priorities:

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

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

5 in the uniformed services was for less than 91

6 days—

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

8 which the person would have been employed if

9 the continuous employment of such person with

10 the employer had not been interrupted by such

11 service, the duties of which the person is quali12 fied to perform; or

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

14 which the person was employed on the date of

15 the commencement of the service in the uni16 formed services, only if the person is not quali17 fied to perform the duties of the position re18 ferred to in subparagraph (A) after reasonable

19 efforts by the employer to qualify the person.

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

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

22 in the uniformed services was for more than 90

23 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

4 and pay, the duties of which the person is quali5 fied to perform; or

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

7 which the person was employed on the date of

8 the commencement of the service in the uni9 formed services, or a position of like seniority,

10 status and pay, the duties of which the person

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

12 qualified to perform the duties of a position re13 ferred to in subparagraph (A) after reasonable

14 efforts by the employer to qualify the person.

15 ‘‘(3) In the case of a person who has a disabil16 ity incurred in, or aggravated by, a period of service

17 in the uniformed services, and if, after reasonable ef18 forts by the employer to accommodate the disability,

19 such person is not qualified due to such disability to

20 be employed in the position of employment in which

21 the person would have been employed if the continu22 ous employment of such person with the employer

23 had not 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 subpara7 graph (A) in terms of seniority, status, and pay

8 consistent with circumstances of such person’s

9 case.

10 ‘‘(4) In the case of a person who is not quali11 fied to be employed in the position of employment in

12 which the person would have been employed if the

13 continuous employment of such person with the em14 ployer had not been interrupted by such service or

15 in the position of employment in which such person

16 was employed on the date of the commencement of

17 the service in the uniform services for any reason

18 other than disability incurred in, or aggravated by,

19 a period of service in the uniformed services and

20 who cannot become qualified with reasonable efforts

21 by the employer, in any other position of lesser sta22 tus and pay which such person is qualified to per23 form, with full seniority.

24 ‘‘(b)(1) If two or more persons are entitled to reem25 ployment under section 4312 in the same position of em-
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1 ployment and more than one of them has reported for such

2 reemployment, the person who left the position first shall

3 have the prior right to reemployment in that position.

4 ‘‘(2) Any person entitled to reemployment under sec5 tion 4312 who is not reemployed in a position of employ6 ment by reason of paragraph (1) shall be entitled to reem7 ployment as follows:

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

9 in any other position of employment referred to in

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

11 the order of priority set out in the applicable sub12 section), that provides a similar status and pay to a

13 position of employment referred to in paragraph (1)

14 of this subsection, consistent with circumstances of

15 such person’s case, with full seniority.

16 ‘‘(B) In the case of a person who has a disabil17 ity incurred in, or aggravated by, a period of service

18 in the uniformed services that requires reasonable

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

20 perform the duties of the position of employment, in

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

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

23 that provides a similar status and pay to a position

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

2 with full seniority.

3 ‘‘§ 4314. Reemployment by the Federal Government

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

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

6 Government under section 4312, such person shall be re7 employed in a position of employment as described in sec8 tion 4313.

9 ‘‘(b) If the employer of a person described in sub10 section (a) was, at the time such person entered service

11 in the uniformed services, an agency in the executive

12 branch, and the Director of the Office of Personnel Man13 agement determines that—

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

15 functions have not been transferred to another part

16 of the executive branch; or

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

18 employer to reemploy such person,

19 the Director shall identify an alternative position of like

20 seniority, status, and pay for which such person is quali21 fied in another part of the executive branch, and the

22 Director shall cause employment in such position to be

23 offered to such person.

24 ‘‘(c) If the employer of a person described in sub25 section (a) was, at the time such person entered service
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1 in the uniformed services, a part of the judicial branch

2 or the legislative branch of the Federal Government, and

3 such employer determines that—

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

5 employer to reemploy such person; and

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

7 a status for transfer to a position in the competitive

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

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

10 Office of Personnel Management, be considered for and

11 offered employment in an alternative position in the execu12 tive branch on the same basis as described in subsection

13 (b).

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

15 that it is impossible or unreasonable to reemploy a person

16 who was a National Guard technician employed under sec17 tion 709 of title 32, and such person is otherwise eligible

18 to acquire a status for transfer to a position in the com19 petitive service in accordance with section 3304(d) of title

20 5, such person shall, upon application to the Director of

21 the Office of Personnel Management, be considered for

22 and offered employment in an alternative position in the

23 executive branch of the Federal Government on the same

24 basis as described in subsection (b).
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1 ‘‘§ 4315. Rights, benefits, and obligations of persons

2 absent from employment for service in a

3 uniformed service

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

5 is entitled to the seniority and other rights and benefits

6 determined by seniority that the person had on the date

7 of the commencement of service in the uniformed services

8 plus the additional seniority and rights and benefits that

9 such person would have attained if the person had re10 mained continuously employed.

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

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

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

14 other rights and benefits, not determined by seniority, re15 lating to other employees on furlough or leave of absence

16 which were in effect by contract, practice, policy, agree17 ment, or plan at the commencement of such period of serv18 ice or were established while such person is performing

19 such service. Such person may be required to pay the em20 ployee cost, if any, of any funded benefit continued pursu21 ant to the preceding sentence to the extent other employ22 ees on furlough or leave of absence are so required.

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

24 performs service in the uniformed services shall, at such

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

26 provided by such employer for up to 18 months. Such per-
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1 son may be required to pay the entire cost of any benefit

2 continued pursuant to the preceding sentence, except that

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

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

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

6 ‘‘(2) In the case of employer-sponsored health bene7 fits, an exclusion or waiting period may not be imposed

8 in connection with coverage of a health or physical condi9 tion of a person entitled to participate in these benefits,

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

11 connection with a health or physical condition of any other

12 person who is covered by the benefit by reason of the cov13 erage of such person, if—

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

15 person’s period of training or service in the uni16 formed services;

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

18 have been imposed for the condition during a period

19 of coverage resulting from participation by such per20 son in the benefits; and

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

22 determined by the Secretary of Veterans Affairs to

23 be service-connected.
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1 ‘‘(d) A person who is reemployed by an employer

2 under this chapter shall not be discharged from such em3 ployment, except for cause—

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

5 days or more, within one year;

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

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

8 months; or

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

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

11 to the period of service concerned.

12 ‘‘(e) Any person who is absent from or leaves a posi13 tion (other than a temporary position) in the employ of

14 any employer for voluntary or involuntary service in the

15 uniformed services may utilize, with respect to the em16 ployer and during any period of such service, accrued or

17 other leave which the person could have utilized if the per18 son had remained in such position.

19 ‘‘§ 4316. Employee pension benefit plans

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

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

22 pension benefit plan described in section 3(2) of the Em23 ployee Retirement Income Security Act of 1974 (29

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

25 or State law governing pension benefits for governmental
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1 employees, the right to pension benefits of a person reem2 ployed under this chapter shall be determined under this

3 section.

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

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

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

7 The first sentence of this subparagraph shall not be con8 strued to affect any other right or benefit under this

9 chapter.

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

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

12 the employer or employers maintaining the plan by reason

13 of such person’s period or periods of service in the uni14 formed services.

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

16 services shall, upon reemployment under this chapter, be

17 deemed to constitute service with the employer or employ18 ers maintaining the plan for purposes of determining the

19 nonforfeitability of the person’s accrued benefits and for

20 the purpose of determining the accrual of benefits under

21 the plan.

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

23 this chapter shall be liable to an employee pension benefit

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

25 benefits described in subsection (a)(2). For purposes of
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1 determining the amount of such liability and for purposes

2 of section 515 of the Employee Retirement Income Secu3 rity Act of 1974 (29 U.S.C. 1145) or any similar Federal

4 or State law governing pension benefits for governmental

5 employees, service in the uniformed services that is

6 deemed under subsection (a) to be service with the em7 ployer shall be deemed to be service with the employer

8 under the terms of the plan or any applicable collective

9 bargaining agreement. In the case of a multiemployer

10 plan, as defined in section 3(37) of the Employee Retire11 ment Income Security Act of 1974 (29 U.S.C. 1002(37)),

12 any liability of the plan described in this paragraph shall

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

14 maintaining the plan shall provide.

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

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

17 in subsection (a)(2)(B)—

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

19 an employer contribution in the same manner and to

20 the same extent as earnings are credited to other

21 employees during the period of service, subject to

22 paragraph (3), irrespective of when the contribution

23 is made;

24 ‘‘(ii) shall have allocated the amount of—
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1 ‘‘(I) any employer contribution that was

2 voluntary; and

3 ‘‘(II) any employer contribution the total

4 amount of which was determined without ref5 erence to the number of, or compensation of,

6 plan participants before being allocated to the

7 accounts of participants; and

8 ‘‘(iii) may have allocated the amount of any for9 feiture,

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

11 occurs for other employees during the period of service.

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

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

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

15 employee contributions or elective deferrals (as defined in

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

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

18 with respect to such contributions or deferrals. No such

19 payment may exceed the amount the person would have

20 been permitted or required to contribute had the person

21 remained continuously employed by the employer through22 out the period of service described in subsection (a)(2)(B).

23 Any payment to the plan described in this paragraph shall

24 be made during any reasonable continuous period (begin-
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1 ning with the date of reemployment) as the employer and

2 the person may agree.

3 ‘‘(3) For purposes of computing an employer’s liabil4 ity under paragraph (1)(A) or the employee’s contribu5 tions under paragraph (2), the employee’s compensation

6 during the period of service described in subsection

7 (a)(2)(B)—

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

9 employee received from the employer immediately

10 before such period; or

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

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

13 of the employee’s average rate of compensation dur14 ing the 12-month period immediately preceding such

15 period (or, if shorter, the period of employment im16 mediately preceding such period).

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

18 chapter and who is an employer contributing to a multiem19 ployer plan, as defined in section 3(37) of the Employee

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

21 1002(37)), under which benefits are or may be payable

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

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

24 reemployment, provide information, in writing, of such re25 employment to the administrator of such plan.
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1 ‘‘§ 4317. Character of service

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

3 by reason of the service of such person in one of the uni4 formed services terminates upon the occurrence of any of

5 the following events:

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

7 uniformed service with a dishonorable or bad con8 duct discharge.

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

10 uniformed service under other than honorable condi11 tions, as characterized pursuant to regulations pre12 scribed by the Secretary concerned.

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

14 under section 1161(a) of title 10.

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

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

17 ‘‘SUBCHAPTER III—PROCEDURES FOR ASSIST18 ANCE, ENFORCEMENT, AND INVESTIGA19 TIONS

20 ‘‘§ 4321. Assistance in obtaining employment or reem21 ployment

22 ‘‘The Secretary (through the Veterans’ Employment

23 and Training Service) shall provide assistance to any per24 son with respect to employment and reemployment rights

25 and benefits to which such person is entitled under this

26 chapter. In providing such assistance, the Secretary may
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1 request the assistance of existing Federal and State agen2 cies engaged in similar or related activities and utilize the

3 assistance of volunteers.

4 ‘‘§ 4322. Enforcement of employment or reemploy5 ment rights

6 ‘‘(a)(1) A person who claims that—

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

8 to employment or reemployment rights or benefits

9 with respect to employment by an employer; and

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

11 is about to fail or refuse, to comply with the provi12 sions of this chapter; or

13 ‘‘(ii) in the case that the employer is the Fed14 eral Government, such employer or the Office of

15 Personnel Management has failed or refused, or is

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

17 of this chapter,

18 may file a complaint with the Secretary in accordance with

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

20 complaint.

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

22 Government, subsection (a) of section 4323 shall be appli23 cable to such investigation but not subsections (b) and (c)

24 of such section.
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1 ‘‘(3) This subsection does not apply to any action re2 lating to benefits to be provided by the Thrift Savings

3 Plan.

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

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

6 to the Secretary for assistance in asserting that complaint.

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

8 form as the Secretary may prescribe, include the name

9 and address of the employer against whom the complaint

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

11 form the basis for the complaint.

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

13 Secretary shall, upon request, provide technical assistance

14 to the potential claimant and, if the Secretary determines

15 it appropriate, to such claimant’s employer.

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

17 the Secretary, after investigation, is reasonably satisfied

18 that the employer has failed to comply with the provisions

19 of this chapter, if efforts to obtain voluntary compliance

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

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

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

23 General is reasonably satisfied that the person requesting

24 representation is entitled to the rights or benefits sought,

25 the Attorney General shall appear and act as attorney for
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1 the claimant in the filing of a complaint and other appro2 priate motions and pleadings and the prosecution thereof

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

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

5 person after receiving a referral from the Secretary or if

6 a person chooses not to apply to the Secretary for assist7 ance or to utilize the Attorney General for representation

8 under this section, such person may be represented before

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

10 choice.

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

12 Government, if the Secretary, after investigation, is rea13 sonably satisfied that the employer has failed to comply

14 with the provisions of this chapter, if efforts to obtain vol15 untary compliance are not successful, and if the claimant

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

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

18 Counsel, litigation shall be before the Merit Systems Pro19 tection Board, and if the Special Counsel is reasonably

20 satisfied that the person requesting representation is enti21 tled to the rights or benefits sought, the Special Counsel

22 shall appear and act as attorney for the claimant in filing

23 an appeal to the Merit Systems Protection Board and in

24 pursuing that appeal.
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1 ‘‘(B) If the Special Counsel declines to represent a

2 person after receiving a referral from the Secretary or if

3 a person chooses not to apply to the Secretary for assist4 ance or to utilize the Special Counsel for representation

5 under this section, such person may be represented before

6 the Merit Systems Protection Board or on appeal by coun7 sel of the person’s choice.

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

9 a State or private employer.

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

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

12 be—

13 ‘‘(i) to comply with the provisions of this chap14 ter;

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

16 wages or benefits suffered by reason of such employ17 er’s failure to comply with the provisions of this

18 chapter; and

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

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

21 to such compensation as liquidated damages, if the

22 court determines that the employer’s failure to com23 ply with the provisions of this chapter was willful.

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

25 (ii) and (iii) of subparagraph (A) shall be in addition to,
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1 and shall not be deemed to diminish, any of the other

2 rights and benefits provided for in this chapter.

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

4 taxed against any person claiming rights or benefits under

5 this chapter.

6 ‘‘(B) In any action or proceeding to enforce a provi7 sion of this chapter by a person described in paragraph

8 (2) who obtained private counsel for such action or pro9 ceeding, the court, in its discretion, may award any such

10 person who prevails in such action or proceeding a reason11 able attorney’s fee, expert witness fees, and other litiga12 tion expenses.

13 ‘‘(4) The court may use its full equity powers, includ14 ing temporary or permanent injunctions and temporary

15 restraining orders, to vindicate fully the rights or benefits

16 of persons under this chapter.

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

18 only by a person claiming rights or benefits under this

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

20 other entity with obligations under this chapter.

21 ‘‘(6) In any action under this chapter, only the em22 ployer shall be deemed a necessary party respondent.

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

24 proceedings under this chapter.
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1 ‘‘(8) A State shall be subject to the same remedies,

2 including prejudgment interest, as may be imposed upon

3 any private employer under this section.

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

5 the Federal Government as employer.

6 ‘‘(2)(A) If the Merit Systems Protection Board con7 cludes that the Federal Government, as employer, has

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

9 the Director of the Office of Personnel Management has

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

11 shall enter an order specifically requiring the employing

12 agency or the Director to comply with such provisions and

13 to compensate such person for any loss of wages or bene14 fits suffered by reason of the employing agency’s or the

15 Director’s unlawful action.

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

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

18 rights or benefits provided for by this chapter.

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

20 the United States Court of Appeals for the Federal Circuit

21 to review a decision of the Merit Systems Protection

22 Board denying such claimant the relief sought, in whole

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

24 with the procedures set forth in section 7703 of title 5.
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1 ‘‘(B) The Secretary and the Special Counsel shall not

2 represent persons with respect to review of decisions of

3 the Merit Systems Protection Board under this chapter

4 in the United States Court of Appeals for the Federal Cir5 cuit or the Supreme Court.

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

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

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

9 represented by counsel of the person’s choice.

10 ‘‘§ 4323. Conduct of investigation; subpoenas

11 ‘‘(a) In carrying out investigations under this chap12 ter, the Secretary’s duly authorized representatives shall

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

14 examination, and the right to copy and receive, any docu15 ments of any person or employer.

16 ‘‘(b) Except as provided in section 4322(a)(2), in car17 rying out investigations under this chapter, the Secretary

18 may require by subpoena the attendance and testimony

19 of witnesses and the production of documents relating to

20 any matter under investigation. In case of disobedience of

21 the subpoena or contumacy and on request of the Sec22 retary, the Attorney General may apply to any district

23 court of the United States in whose jurisdiction such dis24 obedience or contumacy occurs for an order enforcing the

25 Secretary’s subpoena.
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1 ‘‘(c) Except as provided in section 4322(a)(2), upon

2 application, the district courts of the United States shall

3 have jurisdiction to issue writs commanding any person

4 or employer to comply with the subpoena of the Secretary

5 or to comply with any order of the Secretary made pursu6 ant to a lawful investigation under this chapter, and the

7 district courts shall have jurisdiction to punish failure to

8 obey a subpoena or other lawful order of the Secretary

9 as a contempt of court.

10 ‘‘SUBCHAPTER IV—MISCELLANEOUS

11 PROVISIONS

12 ‘‘§ 4331. Regulations

13 ‘‘(a) The Secretary (in consultation with the Sec14 retary of Defense) may prescribe regulations implement15 ing the provisions of this chapter with regard to the appli16 cation of this chapter to States, local governments, and

17 private employers.

18 ‘‘(b)(1) The Director of the Office of Personnel Man19 agement (in consultation with the Secretary and the

20 Secretary of Defense) may prescribe regulations imple21 menting the provisions of this chapter with regard to the

22 application of this chapter to the Federal Government as

23 employer. Such regulations shall be consistent with the

24 regulations pertaining to the States and private employers,

25 except that employees of the Federal Government may be
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1 given greater or additional rights. Nothing in this sub2 section constitutes authority for the Director to prescribe

3 any matter for which any regulation may be prescribed

4 under paragraph (2).

5 ‘‘(2) Regulations may be prescribed—

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

7 carry out its responsibilities under this chapter; and

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

9 out its responsibilities under this chapter.

10 ‘‘§ 4332. Reports

11 ‘‘The Secretary shall, after consultation with the At12 torney General and the Special Counsel referred to in sec13 tion 4322(b)(2) and no later than February 1, 1995, and

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

15 report containing the following matters for the fiscal year

16 ending before such February 1:

17 ‘‘(1) The number of cases reviewed by the De18 partment of Labor under this chapter during the fis19 cal year for which the report is made.

20 ‘‘(2) The number of cases referred to the Attor21 ney General or the Special Counsel pursuant to sec22 tion 4322(c)(1) or 4322(c)(2), respectively, during

23 such fiscal year.
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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.—
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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);
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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—
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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);
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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
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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
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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
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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-
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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:
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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-
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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
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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.
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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
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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
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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.

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