I

103D CONGRESS

1ST SESSION H. R. 995

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

and benefits of veterans and other benefits of employment of certain

members of the uniformed services, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

FEBRUARY 18, 1993

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

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

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

Affairs and Post Office and Civil Service

A BILL

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

of employment of certain members of the uniformed services, and for other purposes.

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’’.
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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 INVESTIGATION

‘‘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—
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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 practice, policy, agreement, plan,

21 or other matter provided by an employer which establishes

22 rights or benefits which are greater than or in addition

23 to those provided in this chapter.

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

25 any local law or ordinance), employer practices, policies,
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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.
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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
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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.
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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-
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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—
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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
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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
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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-
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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—
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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;
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1 ‘‘(C) ordered to active duty (other than for

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

4 which personnel have been ordered to active

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 judicial proceeding involving an issue of

24 whether—
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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) or

6 (3) would impose an undue hardship on the oper7 ation of 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
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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
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1 possible after such 90-day period if submitting such

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

4 ‘‘(2)(A) A person who is hospitalized for, or 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)
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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
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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-
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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—
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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—
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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.
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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 uniform services that requires reasonable ef21 forts 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
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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 not feasible for such employer to re19 employ 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 Di23 rector shall cause employment in such position to be of24 fered to such person.
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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 not feasible for such employer to re7 employ 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 not feasible to reemploy a person who was a

18 National Guard technician employed under section 709 of

19 title 32, and such person is otherwise eligible to acquire

20 a status for transfer to a position in the competitive serv21 ice in accordance with section 3304(d) of title 5, such per22 son shall, upon application to the Director of the Office

23 of Personnel Management, be considered for and offered

24 employment in an alternative position in the executive
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1 branch of the Federal Government on the same basis as

2 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, policy, or practice at the

19 commencement of such period of service or were estab20 lished while such person is performing such service. Such

21 person may be required to pay the employee cost, if any,

22 of any funded benefit continued pursuant to the preceding

23 sentence to the extent other employees on furlough or

24 leave of absence are so required.
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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
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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-
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•HR 995 IH

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.
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1 ‘‘(b)(1) An employer reemploying a person under this

2 chapter shall be liable to an employee pension benefit plan

3 for funding any obligation of the plan to provide the bene4 fits described in subsection (a)(2). For purposes of deter5 mining the amount of such liability and for purposes of

6 section 515 of the Employee Retirement Income Security

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

8 State law governing pension benefits for governmental em9 ployees, service in the uniformed services that is deemed

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

11 be deemed to be service with the employer under the terms

12 of the plan or any applicable collective bargaining agree13 ment. In the case of a multiemployer plan, as defined in

14 section 3(37) of the Employee Retirement Income Secu15 rity Act of 1974 (29 U.S.C. 1002(37)), any liability of

16 the plan described in this paragraph shall be allocated by

17 the plan in such manner as the sponsor maintaining the

18 plan shall provide.

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

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

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

22 employee contributions or elective deferrals (as defined in

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

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

25 with respect to such contributions or deferrals. No such
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1 payment may exceed the amount the person or employer

2 would have been permitted or required to contribute had

3 the person remained continuously employed by the em4 ployer throughout the period of service described in sub5 section (a)(2)(B). Any payment to the plan described in

6 this paragraph shall be made during any reasonable con7 tinuous period (beginning with the date of reemployment)

8 as the employer and the person may agree.

9 ‘‘(3) For purposes of computing an employer’s liabil10 ity under paragraph (1) or the employee’s contributions

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

12 the period of service described in subsection (a)(2)(B)—

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

14 employee received from the employer immediately

15 before such period; or

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

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

18 of the employee’s average rate of compensation dur19 ing the 12-month period immediately preceding such

20 period (or, if shorter, the period of employment im21 mediately preceding such period).

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

23 chapter and who is an employer contributing to a multiem24 ployer plan, as defined in section 3(37) of the Employee

25 Retirement Income Security Act of 1974 (29 U.S.C.
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•HR 995 IH

1 1002(37)), under which benefits are or may be payable

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

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

4 reemployment, provide information, in writing, of such re5 employment to the administrator of such plan.

6 ‘‘§ 4317. Character of service

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

8 by reason of the service of such person in one of the uni9 formed services terminates upon the occurrence of any of

10 the following events:

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

12 uniformed service with a dishonorable or bad con13 duct discharge.

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

15 uniformed service under other than honorable condi16 tions, as characterized pursuant to regulations pre17 scribed by the Secretary concerned.

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

19 under section 1161(a) of title 10.

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

21 pursuant to section 1161(b) of title 10.
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1 ‘‘SUBCHAPTER III—PROCEDURES FOR ASSIST2 ANCE, ENFORCEMENT, AND INVESTIGA3 TIONS

4 ‘‘§ 4321. Assistance in obtaining employment or reem5 ployment

6 ‘‘The Secretary (through the Veterans’ Employment

7 and Training Service) shall provide assistance to any per8 son with respect to employment and reemployment rights

9 and benefits to which such person is entitled under this

10 chapter. In providing such assistance, the Secretary may

11 request the assistance of existing Federal and State agen12 cies engaged in similar or related activities and utilize the

13 assistance of volunteers.

14 ‘‘§ 4322. Enforcement of employment or reemploy15 ment rights

16 ‘‘(a)(1) A person who claims that—

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

18 to employment or reemployment rights or benefits

19 with respect to employment by an employer; and

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

21 is about to fail or refuse, to comply with the provi22 sions of this chapter; or

23 ‘‘(ii) in the case that the employer is the Fed24 eral Government, such employer or the Office of

25 Personnel Management has failed or refused, or is
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•HR 995 IH

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

2 of this chapter,

3 may file a complaint with the Secretary in accordance with

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

5 complaint.

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

7 Government, subsection (a) of section 4323 shall be appli8 cable to such investigation but not subsections (b) and (c)

9 of such section.

10 ‘‘(3) This subsection does not apply to any action re11 lating to benefits to be provided by the Thrift Savings

12 Plan.

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

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

15 to the Secretary for assistance in asserting that complaint.

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

17 form as the Secretary may prescribe, include the name

18 and address of the employer against whom the complaint

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

20 form the basis for the complaint.

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

22 Secretary shall, upon request, provide technical assistance

23 to the potential claimant and, if the Secretary determines

24 it appropriate, to such claimant’s employer.
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1 ‘‘(c)(1)(A) Except as provided in paragraph (2), if

2 the Secretary, after investigation, is reasonably satisfied

3 that the employer has failed to comply with the provisions

4 of this chapter, if efforts to obtain voluntary compliance

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

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

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

8 General is reasonably satisfied that the person requesting

9 representation is entitled to the rights or benefits sought,

10 the Attorney General shall appear and act as attorney for

11 the claimant in the filing of a complaint and other appro12 priate motions and pleadings and the prosecution thereof

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

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

15 person after receiving a referral from the Secretary or if

16 a person chooses not to apply to the Secretary for assist17 ance or to utilize the Attorney General for representation

18 under this section, such person may be represented before

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

20 choice.

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

22 Government, if the Secretary, after investigation, is rea23 sonably satisfied that the employer has failed to comply

24 with the provisions of this chapter, if efforts to obtain vol25 untary compliance are not successful, and if the claimant
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1 requests in writing that the claim be referred for litigation,

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

3 Counsel, litigation shall be before the Merit Systems Pro4 tection Board, and if the Special Counsel is reasonably

5 satisfied that the person requesting representation is enti6 tled to the rights or benefits sought, the Special Counsel

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

8 an appeal to the Merit Systems Protection Board and in

9 pursuing that appeal.

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

11 person after receiving a referral from the Secretary or if

12 a person chooses not to apply to the Secretary for assist13 ance or to utilize the Special Counsel for representation

14 under this section, such person may be represented before

15 the Merit Systems Protection Board or on appeal by coun16 sel of the person’s choice.

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

18 a State or private employer.

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

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

21 be—

22 ‘‘(i) to comply with the provisions of this chap23 ter;

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

25 wages or benefits suffered by reason of such employ-
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•HR 995 IH

1 er’s failure to comply with the provisions of this

2 chapter; and

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

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

5 to such compensation as liquidated damages, if the

6 court determines that the employer’s failure to com7 ply with the provisions of this chapter was willful.

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

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

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

11 rights and benefits provided for in this chapter.

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

13 taxed against any person claiming rights or benefits under

14 this chapter.

15 ‘‘(B) In any action or proceeding to enforce a provi16 sion of this chapter by a person described in paragraph

17 (2) who obtained private counsel for such action or pro18 ceeding, the court, in its discretion, may award any such

19 person who prevails in such action or proceeding a reason20 able attorney’s fee, expert witness fees, and other litiga21 tion expenses.

22 ‘‘(4) The court may use its full equity powers, includ23 ing temporary or permanent injunctions and temporary

24 restraining orders, to vindicate fully the rights or benefits

25 of persons under this chapter.
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1 ‘‘(5) An action under this chapter may be initiated

2 only by a person claiming rights or benefits under this

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

4 other entity with obligations under this chapter.

5 ‘‘(6) In any action under this chapter, only the em6 ployer shall be deemed a necessary party respondent.

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

8 proceedings under this chapter.

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

10 including prejudgment interest, as may be imposed upon

11 any private employer under this section.

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

13 the Federal Government as employer.

14 ‘‘(2)(A) If the Merit Systems Protection Board con15 cludes that the Federal Government, as employer, has

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

17 the Director of the Office of Personnel Management has

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

19 shall enter an order specifically requiring the employing

20 agency or the Director to comply with such provisions and

21 to compensate such person for any loss of wages or bene22 fits suffered by reason of the employing agency’s or the

23 Director’s unlawful action.
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•HR 995 IH

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

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

3 rights or benefits provided for by this chapter.

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

5 the United States Court of Appeals for the Federal Circuit

6 to review a decision of the Merit Systems Protection

7 Board denying such claimant the relief sought, in whole

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

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

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

11 represent persons with respect to review of decisions of

12 the Merit Systems Protection Board under this chapter

13 in the United States Court of Appeals for the Federal Cir14 cuit or the Supreme Court.

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

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

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

18 represented by counsel of the person’s choice.

19 ‘‘§ 4323. Conduct of investigation; subpoenas

20 ‘‘(a) In carrying out investigations under this chap21 ter, the Secretary’s duly authorized representatives shall

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

23 examination, and the right to copy and receive, any docu24 ments of any person or employer.
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•HR 995 IH

1 ‘‘(b) Except as provided in section 4322(a)(2), in car2 rying out investigations under this chapter, the Secretary

3 may require by subpoena the attendance and testimony

4 of witnesses and the production of documents relating to

5 any matter under investigation. In case of disobedience of

6 the subpoena or contumacy and on request of the Sec7 retary, the Attorney General may apply to any district

8 court of the United States in whose jurisdiction such dis9 obedience or contumacy occurs for an order enforcing the

10 Secretary’s subpoena.

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

12 application, the district courts of the United States shall

13 have jurisdiction to issue writs commanding any person

14 or employer to comply with the subpoena of the Secretary

15 or to comply with any order of the Secretary made pursu16 ant to a lawful investigation under this chapter, and the

17 district courts shall have jurisdiction to punish failure to

18 obey a subpoena or other lawful order of the Secretary

19 as a contempt of court.

20 ‘‘SUBCHAPTER IV—MISCELLANEOUS

21 PROVISIONS

22 ‘‘§ 4331. Regulations

23 ‘‘(a) The Secretary (in consultation with the Sec24 retary of Defense) may prescribe regulations implement25 ing the provisions of this chapter with regard to the appli-
41

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1 cation of this chapter to States, local governments, and

2 private employers.

3 ‘‘(b)(1) The Director of the Office of Personnel Man4 agement (in consultation with the Secretary and the

5 Secretary of Defense) may prescribe regulations imple6 menting the provisions of this chapter with regard to the

7 application of this chapter to the Federal Government as

8 employer. Such regulations shall be consistent with the

9 regulations pertaining to the States and private employers,

10 except that employees of the Federal Government may be

11 given greater or additional rights. Nothing in this sub12 section constitutes authority for the Director to prescribe

13 any matter for which any regulation may be prescribed

14 under paragraph (2).

15 ‘‘(2) Regulations may be prescribed—

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

17 carry out its responsibilities under this chapter; and

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

19 out its responsibilities under this chapter.

20 ‘‘§ 4332. Reports

21 ‘‘The Secretary shall, after consultation with the At22 torney General and the Special Counsel referred to in sec23 tion 4322(b)(2) and no later than February 1, 1995, and

24 each February 1 thereafter, transmit to the Congress, a
42

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1 report containing the following matters for the fiscal year

2 ending before such February 1:

3 ‘‘(1) The number of cases reviewed by the De4 partment of Labor under this chapter during the fis5 cal year for which the report is made.

6 ‘‘(2) The number of cases referred to the Attor7 ney General or the Special Counsel pursuant to sec8 tion 4322(c)(1) or 4322(c)(2), respectively, during

9 such fiscal year.

10 ‘‘(3) The number of pleadings filed by the At11 torney General pursuant to section 4322(c)(1) dur12 ing such fiscal year.

13 ‘‘(4) The nature and status of each case re14 ported on pursuant to paragraph (1), (2), or (3).

15 ‘‘(5) An indication of whether there are any ap16 parent patterns of violation of the provisions of this

17 chapter, together with an explanation thereof.

18 ‘‘(6) Recommendations for administrative or

19 legislative action that the Secretary, the Attorney

20 General, or the Special Counsel considers necessary

21 for the effective implementation of this chapter, in22 cluding any action that could be taken to encourage

23 mediation, before claims are filed under this chapter,

24 between employers and persons seeking employment

25 or reemployment.
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1 ‘‘§ 4333. Outreach

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

3 Secretary of Veterans Affairs shall take such actions as

4 such Secretaries determine are appropriate to inform per5 sons entitled to rights and benefits under this chapter and

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

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

8 (b) CONFORMING AMENDMENTS.—

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

10 chapters at the beginning of title 38, United States

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

12 each amended by striking out the item relating to

13 chapter 43 and inserting in lieu thereof the follow14 ing:

‘‘43. Employment and reemployment rights of members of

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

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

16 1204(a)(1) of title 5, United States Code, is amend17 ed by striking out ‘‘section 4323’’ and inserting in

18 lieu thereof ‘‘chapter 43’’.

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

20 repealed.

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

22 title is amended by striking out the items relating to

23 subchapter II.
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•HR 995 IH

1 (3) AMENDMENT TO TITLE 10.—Section

2 706(c)(1) of title 10, United States Code, is amend3 ed by striking out ‘‘section 4321’’ and inserting in

4 lieu thereof ‘‘chapter 43’’.

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

6 28, United States Code, is amended—

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

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

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

10 (3) in subsection (j), as redesignated by para11 graph (2), by striking out ‘‘under the terms of’’ and

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

13 appears and inserting in lieu thereof ‘‘under chapter

14 43 of title 38,’’.

15 SEC. 3. EXEMPTION FROM MINIMUM SERVICE REQUIRE16 MENTS.

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

18 is amended—

19 (1) by striking out ‘‘or’’ at the end of subpara20 graph (E);

21 (2) by striking out the period at the end of sub22 paragraph (F) and inserting in lieu thereof ‘‘; or’’;

23 and

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

25 new subparagraph:
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•HR 995 IH

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

2 SEC. 4. THRIFT SAVINGS PLAN.

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

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

5 ‘‘§ 8432b. Contributions of persons who perform mili6 tary service

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

8 ‘‘(1) separates or enters leave-without-pay sta9 tus in order to perform military service; and

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

11 in a position which is subject to this chapter, pursu12 ant to chapter 43 of title 38.

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

14 may contribute to the Thrift Savings Fund, in accordance

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

16 described in paragraph (2).

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

18 contribute under this subsection is equal to—

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

20 which would have been made, over the period begin21 ning on date of separation or commencement of

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

23 on the day before the date of restoration or reem24 ployment (as applicable)—
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•HR 995 IH

1 ‘‘(i) assuming a contribution rate of 10

2 percent; and

3 ‘‘(ii) not counting any amounts which

4 would be attributable to any period during

5 which such employee was not or would not have

6 been eligible to contribute due to subparagraph

7 (A), (B), or (C) of section 8432(b)(2) (except

8 that section 8432(b)(2)(C) shall not be a basis

9 for discounting any amounts if the election to

10 terminate contributions involved is made within

11 2 months before commencing military service);

12 reduced by

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

14 actually made by such employee over the period de15 scribed in subparagraph (A) (in the matter before

16 clause (i) thereof).

17 ‘‘(3) Contributions under this subsection—

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

19 same manner as would any contributions under sec20 tion 8432(a);

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

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

23 and

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

25 then actually being made under section 8432(a).
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•HR 995 IH

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

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

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

4 contribute under this subsection with respect to any

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

6 and

7 ‘‘(B) the period of time over which the em8 ployee wishes to make contributions under this sub9 section (not shorter than the period referred to in

10 paragraph (2)(B) and not longer than 4 times such

11 period).

12 ‘‘(c) If an employee makes contributions under sub13 section (b), the employing agency shall make contributions

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

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

16 under section 8432(c)(2) if the employee contribu17 tions were being made under section 8432(a); and

18 ‘‘(2) disregarding any contributions then actu19 ally being made under section 8432(a) and any

20 agency contributions relating thereto.

21 ‘‘(d)(1) An employee to whom this section applies is

22 entitled to have contributed to the Thrift Savings Fund

23 on such employee’s behalf an amount equal to—
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•HR 995 IH

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

2 determined under subsection (e)) for the period re3 ferred to in subsection (b)(2)(B); reduced by

4 ‘‘(B) any contributions actually made on such

5 employee’s behalf under section 8432(c)(1) with re6 spect to the period referred to in subsection

7 (b)(2)(B).

8 ‘‘(2) An amount under this subsection shall be paid—

9 ‘‘(A) by the agency to which the employee is re10 stored or in which such employee is reemployed;

11 ‘‘(B) from the same source as would be the case

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

13 under section 8432(c); and

14 ‘‘(C) within the time prescribed by the Execu15 tive Director.

16 ‘‘(e) For purposes of any computation under this sec17 tion, an employee shall, with respect to the period referred

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

19 at the rate which would have been payable over such pe20 riod had such employee remained continuously employed

21 in the position which such employee last held before sepa22 rating or entering leave-without-pay status to perform

23 military service.

24 ‘‘(f)(1) For purposes of section 8432(g), in the case

25 of an employee to whom this section applies—
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•HR 995 IH

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

2 to perform the military service on which the employ3 ee’s restoration or reemployment rights are based

4 shall be disregarded; and

5 ‘‘(B) such employee shall be credited with a pe6 riod of civilian service equal to the period referred

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

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

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

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

11 such employee’s separation (described in subsection

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

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

14 within such period of time after restoration or reemploy15 ment (as the case may be) and otherwise in such manner

16 as the Executive Director prescribes.

17 ‘‘(g) The Executive Director shall prescribe regula18 tions to carry out this section.’’.

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

20 United States Code, is amended by inserting after the

21 item relating to section 8432a the following:

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

22 (b) PRESERVATION OF CERTAIN RIGHTS.—(1) Sec23 tion 8433(d) of title 5, United States Code, is amended

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

25 unless an election under section 8432b(f)(2) is made to
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1 treat such separation for purposes of this subsection as

2 if it had never occurred.’’.

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

4 each amended by striking the period at the end and insert5 ing ‘‘, or unless an election under section 8432b(f)(2) is

6 made to treat such separation for purposes of this para7 graph as if it had never occurred.’’.

8 (c) ELECTION TO RESUME REGULAR CONTRIBU9 TIONS UPON RESTORATION OR REEMPLOYMENT.—Sec10 tion 8432 of title 5, United States Code, is amended by

11 adding at the end the following:

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

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

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

15 absence from civilian service (as referred to in sec16 tion 8432b(b)(2)(B))—

17 ‘‘(i) is eligible to make an election de18 scribed in subsection (b)(1); or

19 ‘‘(ii) would be so eligible but for having ei20 ther elected to terminate individual contribu21 tions to the Thrift Savings Fund within 2

22 months before commencing military service or

23 separated in order to perform military service.

24 ‘‘(2) The Executive Director shall prescribe regula25 tions to ensure that any employee to whom this subsection
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1 applies shall, within a reasonable time after being restored

2 or reemployed (in the manner described in section

3 8432b(a)(2)), be afforded the opportunity to make, for

4 purposes of this section, any election which would be al5 lowable during a period described in subsection

6 (b)(1)(A).’’.

7 (d) APPLICABILITY TO EMPLOYEES UNDER CSRS.—

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

9 by adding at the end the following:

10 ‘‘(11) In applying section 8432b to an employee con11 tributing to the Thrift Savings Fund after being restored

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

13 pursuant to chapter 43 of title 38—

14 ‘‘(A) any reference in such section to contribu15 tions under section 8432(a) shall be considered a

16 reference to employee contributions under this sec17 tion;

18 ‘‘(B) the contribution rate assumed under sec19 tion 8432b(b)(2)(A)(i) shall be the maximum per20 centage allowable under subsection (b)(2) of this

21 section; and

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

23 shall be disregarded.’’.

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

25 and the amendments made by this section—
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1 (1) shall take effect on the date of enactment

2 of this Act; and

3 (2) shall apply to any employee whose release

4 from military service, discharge from hospitalization,

5 or other similar event making the individual eligible

6 to seek restoration or reemployment under chapter

7 43 of title 38, United States Code, occurs on or

8 after August 2, 1990.

9 (f) RULES FOR APPLYING AMENDMENTS TO EM10 PLOYEES RESTORED OR REEMPLOYED BEFORE EFFEC11 TIVE DATE.—In the case of any employee (described in

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

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

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

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

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

17 with their terms, subject to the following:

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

19 been reemployed or restored until—

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

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

22 reemployment or restoration on which such em23 ployee is or was eligible to make an election re24 lating to contributions to the Thrift Savings

25 Fund,
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1 whichever occurs or occurred first.

2 (2) If the employee changed agencies during the

3 period between date of actual reemployment or res4 toration and the date of enactment of this Act, the

5 employing agency as of such date of enactment shall

6 be considered the reemploying or restoring agency.

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

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

9 in accordance with subsection (e) of such section, ex10 cept that, with respect to the period described in

11 subparagraph (B), actual pay attributable to such

12 period shall be used.

13 (B) The period described in this subparagraph

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

15 applicable pay period beginning on or after the date

16 of the employee’s actual reemployment or restoration

17 and ending on the day before the date determined

18 under paragraph (1).

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

20 to be amended, in the matter before clause (i), by

21 striking ‘‘ending on the day before the date of res22 toration or reemployment (as applicable)’’ and in23 serting ‘‘ending on the date determined under sec24 tion 4(f)(1) of the Uniformed Services Employment

25 and Reemployment Rights Act of 1993’’.
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1 SEC. 5. TECHNICAL AMENDMENT.

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

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

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

5 SEC. 6. TRANSITION RULES AND EFFECTIVE DATES.

6 (a) REEMPLOYMENT.—(1) Except as otherwise pro7 vided in this Act, the amendments made by this Act shall

8 be effective with respect to reemployments initiated on or

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

10 the date of enactment of this Act.

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

12 States Code, in effect on the day before such date of enact13 ment, shall continue to apply to reemployments initiated

14 before the end of such 60-day period.

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

16 that may not be exceeded in an employee-employer rela17 tionship with respect to which a person seeks reemploy18 ment under chapter 43 of title 38, United States Code,

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

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

21 regard to whether the periods of service occurred before

22 or after such date of enactment unless the period of serv23 ice is exempted by the chapter 43 that is applicable, as

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

25 concerned.
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1 (4) A person who initiates reemployment under chap2 ter 43 of title 38, United States Code, during or after the

3 60-day period beginning on the date of enactment of this

4 Act and whose reemployment is made in connection with

5 a period of service in the uniform services that was initi6 ated before the end of such period shall be deemed to have

7 satisfied the notification requirement of section

8 4312(a)(1) of title 38, United States Code, as provided

9 in the amendments made by this Act, if the person com10 plied with any applicable notice requirement under chapter

11 43, United States Code, as in effect on the day before

12 the date of enactment of this Act.

13 (b) DISCRIMINATION.—The provisions of section

14 4311 of title 38, United States Code, as provided in the

15 amendments made by this Act, and the provisions of sub16 chapter III of chapter 43 of such title, as provided in the

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

18 implementation of such section 4311 shall become effec19 tive on the date of enactment of this Act.

20 (c) INSURANCE.—(1) Except as provided in para21 graph (2), the provisions of section 4315(c) of title 38,

22 United States Code, as provided in the amendments made

23 by this Act, concerning insurance coverage shall become

24 effective on the date of enactment of this Act.
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1 (2) A person on active duty on the date of enactment

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

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

4 Act, elect to reinstate or continue insurance coverage as

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

6 insurance coverage shall remain in effect for the remaining

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

8 of such person’s separation from civilian employment.

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

10 43 of title 38, United States Code, as provided in the

11 amendments made by this Act, shall apply to

12 reemployments initiated on or after August 1, 1990.

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

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

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

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

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

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

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

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

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

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

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

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

25 of enactment of this Act.
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1 (f) PREVIOUS ACTIONS.—Except as otherwise pro2 vided, the amendments made by this Act do not affect

3 reemployments that were initiated, rights, benefits, and

4 duties that matured, penalties that were incurred, and

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

6 period referred to in subsection (a).

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