IB
103D CONGRESS
1ST SESSION
H. R. 995
[Report No. 103–65, Part I]
To amend title 38, United States Code, to improve reemployment rights
and benefits of veterans and other benefits of employment of certain
members of the uniformed services, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
FEBRUARY 18, 1993
Mr. MONTGOMERY (for himself, Mr. STUMP, Mr. PENNY, Mr. SMITH of New
Jersey, Mr. SLATTERY, Mr. CLYBURN, and Mr. QUINN) introduced the
following bill; which was referred jointly to the Committees on Veterans’
Affairs and Post Office and Civil Service
APRIL 28, 1993
Additional sponsors: Mr. EVERETT, Mr. HEFNER, Mr. RICHARDSON, Mr.
STENHOLM, Mr. PAYNE of Virginia, Mr. PARKER, Ms. WATERS, Ms.
BROWN of Florida, and Mr. BISHOP
APRIL 28, 1993
Reported from the Committee on Veterans’ Affairs with an amendment
[Strike out all after the enacting clause and insert the part printed in italic]
[For text of the introduced bill, see copy of bill as introduced on February 18, 1993]
A BILL
To amend title 38, United States Code, to improve reemploy-
ment rights and benefits of veterans and other benefits
of employment of certain members of the uniformed serv-
ices, and for other purposes.
‘‘SUBCHAPTER IV—MISCELLANEOUS PROVISIONS
‘‘4331. Regulations.
‘‘4332. Reports.
‘‘4333. Outreach.
‘‘SUBCHAPTER I—PURPOSES, RELATION TO
OTHER LAW, AND DEFINITIONS
‘‘§ 4301. Purposes; sense of Congress
‘‘(a) The purposes of this chapter are—
‘‘(1) to encourage noncareer service in the uni-
formed services by eliminating or minimizing the dis-
advantages to civilian careers and employment which
can result from such service;
‘‘(2) to minimize the disruption to the lives of
persons performing service in the uniformed services
as well as to their employers, their fellow employees,
and their communities, by providing for the prompt
reemployment of such persons upon their completion
of such service under honorable conditions; and
‘‘(3) to prohibit discrimination against persons
because of their service in the uniformed services.
‘‘(b) It is the sense of Congress that the Federal Gov-
ernment should be a model employer in carrying out the
reemployment practices provided for in this chapter.
‘‘§ 4302. Relation to other law and plans or agree-
ments
‘‘(a) Nothing in this chapter shall supersede, nullify,
or diminish any Federal or State law (including any local
law or ordinance) or any contract, practice, policy, agree-
ment, plan, or other matter provided by an employer which
establishes rights or benefits which are greater than or in
addition to those provided in this chapter.
‘‘(b) This chapter supersedes State laws (including any
local law or ordinance), employer practices, policies, agree-
ments, and plans, and other matters that reduce, limit, or
eliminate in any manner rights or benefits provided by this
chapter, including the establishment of additional pre-
requisites to the exercise of such rights.
‘‘§ 4303. Definitions
‘‘For the purposes of this chapter:
‘‘(1) The term ‘Attorney General’ means the At-
torney General of the United States or any person
designated by the Attorney General to carry out a re-
sponsibility of the Attorney General under this
chapter.
‘‘(2) The term ‘benefit’, ‘benefit of employment’,
or ‘rights and benefits’ means any aspect of the em-
ployment relationship, other than wages or salary for
work performed, provided by contract or employer
practice or custom, that offers advantage, profit,
privilege, gain, status, account, or interest and in-
cludes, but is not limited to, pension plans and pay-
ments, insurance coverage and awards, employee stock
ownership plans, bonuses, severance pay, supple-
mental unemployment benefits, vacations, and selec-
tion of work hours or locations of employment.
‘‘(3) The term ‘employee’ means any person em-
ployed by an employer.
‘‘(4)(A) Except as provided in subparagraphs
(B) and (C), the term ‘employer’ means any person,
institution, organization, or other entity that pays
salary or wages for work performed or that has con-
trol over employment opportunities, including—
‘‘(i) a person, institution, organization, or
other entity to whom the employer has delegated
the performance of employment-related respon-
sibilities;
‘‘(ii) the Federal Government;
‘‘(iii) a State;
‘‘(iv) any successor in interest to a person,
institution, organization, or other entity referred
to in this subparagraph; and
‘‘(v) a person, institution, organization, or
other entity that has denied initial employment
in violation of section 4311.
‘‘(B) In the case of a National Guard technician
employed under section 709 of title 32, the term ‘em-
ployer’ means the adjutant general of the State in
which the technician is employed.
‘‘(C) Except as an actual employer of employees,
an employee pension benefit plan described in section
3(2) of the Employee Retirement Income Security Act
of 1974 (29 U.S.C. 1002(2)) shall be deemed to be an
employer only with respect to the obligation to pro-
vide benefits described in section 4316.
‘‘(5) The term ‘Federal Government’ includes the
executive branch, the judicial branch, and the legisla-
tive branch, with the executive branch including—
‘‘(A) any department, administration, agen-
cy, commission, board, or independent establish-
ment in, or other part of, the executive branch
(including any executive agency as defined in
section 105 of title 5);
‘‘(B) the United States Postal Service and
the Postal Rate Commission;
‘‘(C) any nonappropriated fund activity of
the United States; and
‘‘(D) any corporation wholly owned by the
United States.
‘‘(6) The term ‘health plan’ means an insurance
policy or contract, medical or hospital service agree-
ment, membership or subscription contract, or other
arrangement under which health services for individ-
uals are provided or the expenses of such services are
paid.
‘‘(7) The term ‘notice’ means (with respect to
subchapter II) any written or verbal notification of
an obligation or intention to perform service in the
uniformed services provided to an employer by the
employee who will perform such service or by the uni-
formed service in which such service is to be per-
formed.
‘‘(8) The term ‘other than a temporary position’
means a position of employment as to which there is
a reasonable expectation that it will continue indefi-
nitely.
‘‘(9) The term ‘qualified’ means having the abil-
ity to perform the essential tasks of an employment
position.
‘‘(10) The term ‘reasonable efforts’ means ac-
tions, including training provided by an employer,
that do not create an undue hardship on the em-
ployer.
‘‘(11) Notwithstanding section 101, the term
‘Secretary’ means the Secretary of Labor or any per-
son designated by such Secretary to carry out an ac-
tivity under this chapter.
‘‘(12) The term ‘seniority’ means longevity in
employment together with any benefits of employment
which accrue with, or are determined by, longevity in
employment.
‘‘(13) The term ‘service in the uniformed serv-
ices’ means the performance of duty on a voluntary
or involuntary basis in a uniformed service under
competent authority and includes active duty, active
duty for training, initial active duty for training, in-
active duty training, full-time National Guard duty,
and a period for which a person is absent from a po-
sition of employment for the purpose of an examina-
tion to determine the fitness of the person to perform
any such duty.
‘‘(14) The term ‘State’ means each of the several
States of the United States, the District of Columbia,
the Commonwealth of Puerto Rico, Guam, the Virgin
Islands, and other territories of the United States (in-
cluding the agencies and political subdivisions there-
of).
‘‘(15)(A) The term ‘undue hardship’ means an
action requiring significant difficulty or expense,
when considered in light of the factors set forth in
subparagraph (B).
‘‘(B) In determining whether an action would
impose an undue hardship on an employer, factors to
be considered include—
‘‘(i) the nature and cost of the action needed
under this chapter;
‘‘(ii) the overall financial resources of the
facility or facilities involved in the provision of
the action; the number of persons employed at
such facility; the effect on expenses and resources,
or the impact otherwise of such action upon the
operation of the facility;
‘‘(iii) the overall financial resources of the
employer; the overall size of the business of an
employer with respect to the number of its em-
ployees; the number, type, and location of its fa-
cilities; and
‘‘(iv) the type of operation or operations of
the employer, including the composition, struc-
ture, and functions of the work force of such em-
ployer; the geographic separateness, administra-
tive, or fiscal relationship of the facility or fa-
cilities in question to the employer.
‘‘(16) The term ‘uniformed services’ means the
Armed Forces, the Army National Guard and the Air
National Guard when engaged in active duty for
factor in the employer’s action, unless the employer can
demonstrate that the action would have been taken in the
absence of such membership, application for membership,
service, application for service, or obligation.
‘‘(c)(1) An employer may not discriminate in employ-
ment against or take any adverse employment action
against any person because such person has taken an action
to enforce a protection afforded any person under this chap-
ter, has testified or otherwise made a statement in or in
connection with any proceeding under this chapter, has as-
sisted or otherwise participated in an investigation under
this chapter, or has exercised a right provided for in this
chapter.
‘‘(2) The prohibition in paragraph (1) shall apply
with respect to a person regardless of whether that person
has performed service in the uniformed services.
‘‘§ 4312. Reemployment rights of persons who serve in
the uniformed services
‘‘(a) Subject to subsections (b), (c), and (d) and to sec-
tion 4317, any person who is absent from a position of em-
ployment (other than a temporary position) by reason of
service in the uniformed services shall be entitled to the re-
employment rights and benefits and other employment bene-
fits of this chapter if—
‘‘(1) the person (or an appropriate officer of the
uniformed service in which such service is performed)
has given advance written or verbal notice of such
service to such person’s employer;
‘‘(2) except as provided in subsection (c), the cu-
mulative length of the absence and of all previous ab-
sences from a position of employment with that em-
ployer by reason of service in the uniformed services
does not exceed five years; and
‘‘(3) except as provided in subsection (f), the per-
son reports to, or submits an application for reem-
ployment to, such employer in accordance with the
provisions of subsection (e).
‘‘(b) No notice is required under subsection (a)(1) if
the giving of such notice is precluded by military necessity
or, under all of the relevant circumstances, the giving of
such notice is otherwise impossible or unreasonable. A deter-
mination of military necessity for the purposes of this sub-
section shall be made pursuant to regulations prescribed by
the Secretary of Defense and shall not be subject to judicial
review.
‘‘(c) Subsection (a) shall apply if such person’s cumu-
lative period of service in the uniformed services, with re-
spect to the employer relationship for which a person seeks
reemployment, does not exceed five years, except that any
such period of service shall not include any service—
‘‘(1) that is required, beyond five years, to com-
plete an initial period of obligated service;
‘‘(2) during which such person was unable to ob-
tain orders releasing such person from a period of
service in the uniformed services before the expiration
of such five-year period and such inability was
through no fault of such person;
‘‘(3) performed as required pursuant to section
270 of title 10, under section 502(a) or 503 of title
32, or to fulfill additional training requirements de-
termined and certified in writing by the Secretary
concerned to be necessary for professional development
or for completion of skill training or retraining; or
‘‘(4) performed by a member of a uniformed
service who is—
‘‘(A) ordered to or retained on active duty
under section 672(a), 672(g), 673, 673b, 673c, or
688 of title 10;
‘‘(B) ordered to or retained on active duty
(other than for training) under any provision of
law during a war or during a national emer-
gency declared by the President or the Congress;
‘‘(C) ordered to active duty (other than for
training) in support, as determined by the Sec-
retary concerned, of an operational mission for
which personnel have been ordered to active duty
under section 673b of title 10;
‘‘(D) ordered to active duty in support, as
determined by the Secretary concerned, of a crit-
ical mission or requirement of the uniformed
services; or
‘‘(E) called into Federal service as a mem-
ber of the National Guard under chapter 15 of
title 10 or under section 3500 or 8500 of title 10.
‘‘(d)(1) An employer is not required to reemploy a per-
son under this chapter if—
‘‘(A) the employer’s circumstances have so
changed as to make such reemployment impossible or
unreasonable, or
‘‘(B) in the case of a person entitled to reemploy-
ment under section 4313 (a)(3), (a)(4), or (b)(2)(B),
such employment would impose an undue hardship
on the operation of the employer.
‘‘(2) In any administrative or judicial proceeding in-
volving an issue of whether—
‘‘(A) any reemployment referred to in paragraph
(1) is impossible or unreasonable because of a change
in an employer’s circumstances, or
‘‘(B) any accommodation, training, or effort re-
ferred to in section 4313 (a)(3), (a)(4), or (b)(2)(B)
would impose an undue hardship on the operation of
the business of the employer,
the employer shall have the burden of proving the impos-
sibility or unreasonableness or undue hardship.
‘‘(e)(1) Subject to paragraph (2), a person referred to
in subsection (a) shall, upon the completion of a period of
service in the uniformed services, notify the employer re-
ferred to in such subsection of the person’s intent to return
to a position of employment with such employer as follows:
‘‘(A) In the case of a person whose period of serv-
ice in the uniformed services was less than 31 days,
by reporting to the employer—
‘‘(i) not later than the beginning of the first
full regularly scheduled work period on the first
full calendar day following the completion of the
period of service and the expiration of eight
hours after a period allowing for the safe trans-
portation of the person from the place of that
service to the person’s residence; or
‘‘(ii) as soon as possible after the expiration
of the eight-hour period referred to in clause (i),
if reporting within the period referred to in such
clause is impossible or unreasonable through no
fault of the person.
‘‘(B) In the case of a person who is absent from
a position of employment for a period of any length
for the purposes of an examination to determine the
person’s fitness to perform service in the uniformed
services, by reporting in the manner and time re-
ferred to in subparagraph (A).
‘‘(C) In the case of a person whose period of serv-
ice in the uniformed services was for more than 30
days but less than 181 days, by submitting an appli-
cation for reemployment with the employer not later
than 14 days after the completion of the period of
service or as soon as possible after such 14-day period
if submitting such application within such period is
impossible or unreasonable through no fault of the
person.
‘‘(D) In the case of a person whose period of
service in the uniformed services was for more than
180 days, by submitting an application for reemploy-
ment with the employer not later than 90 days after
the completion of the period of service or as soon as
possible after such 90-day period if submitting such
application within such period is impossible or un-
reasonable through no fault of the person.
‘‘(2)(A) A person who is hospitalized for, or convalesc-
ing from, an illness or injury incurred in, or aggravated
by, the performance of a period of service in the uniformed
services shall, at the end of the period that is necessary for
the person to recover from such illness or injury submit an
application for reemployment with such employer. Such pe-
riod of recovery may not exceed two years, except as pro-
vided in subparagraph (B).
‘‘(B) Such two-year period shall be extended by the
minimum time required to accommodate the circumstances
beyond such person’s control which make reporting within
the time limit specified in subparagraph (A) impossible or
unreasonable.
‘‘(f) A person who fails to report for employment or
reemployment within the time limits specified in subsection
(e) does not automatically forfeit such person’s right under
subsection (a) but shall be subject to the conduct rules, estab-
lished policy, and general practices of the employer pertain-
ing to explanations and discipline with respect to absence
from scheduled work.
‘‘(g)(1) A person who submits an application for reem-
ployment in accordance with subparagraph (C) or (D) of
subsection (e)(1) or subsection (e)(2) shall provide to the
person’s employer (upon the request of such employer) docu-
mentation to establish that—
‘‘(A) the person’s application is timely;
‘‘(B) the person has not exceeded the service limi-
tations set forth in subsection (a)(2) (except as per-
mitted under subsection (c)); and
‘‘(C) the person’s entitlement to the benefits
under this chapter has not terminated under section
4317.
‘‘(2) Documentation of any matter referred to in para-
graph (1) that satisfies regulations prescribed by the Sec-
retary shall satisfy the documentation requirements in such
paragraph.
‘‘(3) The failure of a person to provide documentation
that satisfies regulations prescribed pursuant to paragraph
(2) shall not be a basis for denying reemployment in accord-
ance with the provisions of this chapter if the failure occurs
because such documentation does not exist or is not readily
available at the time of the request of the employer. If, after
such reemployment, documentation becomes available that
establishes that such person does not meet one or more of
the requirements referred to in subparagraphs (A) through
(C) of paragraph (1), the employer of such person may ter-
minate the employment of the person and the provision of
any rights or benefits afforded the person under this
chapter.
‘‘(4) It shall be unlawful for an employer to delay or
attempt to defeat a reemployment obligation by demanding
documentation that does not then exist or is not then read-
ily available.
‘‘(h) The right of a person to reemployment under this
section shall not entitle such person to retention, preference,
or displacement rights over any person with a superior
claim under the provisions of title 5, United States Code,
relating to veterans and other preference eligibles.
‘‘(i) In any determination of a person’s entitlement to
protection under this chapter, the timing, frequency, and
duration of the person’s training or service or the nature
of such training or service (including voluntary service) in
the uniformed services shall not be a basis for denying pro-
tection of such training or service if the service does not
exceed the limitations set forth in subsection (c), and the
notice requirements established in subsection (a)(1) and the
notification requirements established in subsection (e) are
met.
‘‘§ 4313. Reemployment positions
‘‘(a) Subject to subsection (b) in the case of any em-
ployee and subject to section 4314 in the case of reemploy-
ment by the Federal Government, a person entitled to reem-
ployment under section 4312 upon completion of a period
of service in the uniformed services shall be promptly reem-
ployed in a position of employment in accordance with the
following priorities:
‘‘(1) Except as provided in paragraphs (3) and
(4), in the case of a person whose period of service in
the uniformed services was for less than 91 days—
‘‘(A) in the position of employment in
which the person would have been employed if
the continuous employment of such person with
the employer had not been interrupted by such
service, the duties of which the person is quali-
fied to perform; or
‘‘(B) in the position of employment in
which the person was employed on the date of the
commencement of the service in the uniformed
services, only if the person is not qualified to
perform the duties of the position referred to in
subparagraph (A) after reasonable efforts by the
employer to qualify the person.
‘‘(2) Except as provided in paragraphs (3) and
(4), in the case of a person whose period of service in
the uniformed services was for more than 90 days—
‘‘(A) in the position of employment in
which the person would have been employed if
the continuous employment of such person with
the employer had not been interrupted by such
service, or a position of like seniority, status and
pay, the duties of which the person is qualified
to perform; or
‘‘(B) in the position of employment in
which the person was employed on the date of the
commencement of the service in the uniformed
services, or a position of like seniority, status
and pay, the duties of which the person is quali-
fied to perform, only if the person is not quali-
fied to perform the duties of a position referred
to in subparagraph (A) after reasonable efforts
by the employer to qualify the person.
‘‘(3) In the case of a person who has a disability
incurred in, or aggravated by, a period of service in
the uniformed services, and if, after reasonable efforts
by the employer to accommodate the disability, such
person is not qualified due to such disability to be
employed in the position of employment in which the
person would have been employed if the continuous
employment of such person with the employer had not
been interrupted by such service—
‘‘(A) in any other position which is equiva-
lent in seniority, status, and pay, the duties of
which the person is qualified to perform or
would become qualified to perform with reason-
able efforts by the employer; or
‘‘(B) if not employed under subparagraph
(A), in a position which is the nearest approxi-
mation to a position referred to in subparagraph
(A) in terms of seniority, status, and pay con-
sistent with circumstances of such person’s case.
‘‘(4) In the case of a person who is not qualified
to be employed in the position of employment in
which the person would have been employed if the
continuous employment of such person with the em-
ployer had not been interrupted by such service or in
the position of employment in which such person was
employed on the date of the commencement of the
service in the uniform services for any reason other
than disability incurred in, or aggravated by, a pe-
riod of service in the uniformed services and who can-
not become qualified with reasonable efforts by the
employer, in any other position of lesser status and
pay which such person is qualified to perform, with
full seniority.
‘‘(b)(1) If two or more persons are entitled to reemploy-
ment under section 4312 in the same position of employ-
ment and more than one of them has reported for such reem-
ployment, the person who left the position first shall have
the prior right to reemployment in that position.
‘‘(2) Any person entitled to reemployment under sec-
tion 4312 who is not reemployed in a position of employ-
ment by reason of paragraph (1) shall be entitled to reem-
ployment as follows:
‘‘(A) Except as provided in subparagraph (B),
in any other position of employment referred to in
subsection (a)(1) or (a)(2), as the case may be (in the
order of priority set out in the applicable subsection),
that provides a similar status and pay to a position
of employment referred to in paragraph (1) of this
subsection, consistent with circumstances of such per-
son’s case, with full seniority.
‘‘(B) In the case of a person who has a disability
incurred in, or aggravated by, a period of service in
the uniformed services that requires reasonable efforts
by the employer for the person to be able to perform
the duties of the position of employment, in any other
position referred to in subsection (a)(3) (in the order
of priority set out in that subsection) that provides a
similar status and pay to a position referred to in
paragraph (1) of this subsection, consistent with cir-
cumstances of such person’s case, with full seniority.
‘‘§ 4314. Reemployment by the Federal Government
‘‘(a) Except as provided in subsections (b), (c), and
(d), if a person is entitled to reemployment by the Federal
Government under section 4312, such person shall be reem-
ployed in a position of employment as described in section
4313.
‘‘(b) If the employer of a person described in subsection
(a) was, at the time such person entered service in the uni-
formed services, an agency in the executive branch, and the
Director of the Office of Personnel Management determines
that—
‘‘(1) such employer no longer exists and its func-
tions have not been transferred to another part of the
executive branch; or
‘‘(2) it is impossible or unreasonable for such
employer to reemploy such person,
the Director shall identify an alternative position of like
seniority, status, and pay for which such person is qualified
in another part of the executive branch, and the Director
shall cause employment in such position to be offered to
such person.
‘‘(c) If the employer of a person described in subsection
(a) was, at the time such person entered service in the uni-
formed services, a part of the judicial branch or the legisla-
tive branch of the Federal Government, and such employer
determines that—
‘‘(1) it is impossible or unreasonable for such
employer to reemploy such person; and
‘‘(2) such person is otherwise eligible to acquire
a status for transfer to a position in the competitive
service in accordance with section 3304(c) of title 5,
such person shall, upon application to the Director of the
Office of Personnel Management, be considered for and of-
fered employment in an alternative position in the executive
branch on the same basis as described in subsection (b).
‘‘(d) If the adjutant general of a State determines that
it is impossible or unreasonable to reemploy a person who
was a National Guard technician employed under section
709 of title 32, and such person is otherwise eligible to ac-
quire a status for transfer to a position in the competitive
service in accordance with section 3304(d) of title 5, such
person shall, upon application to the Director of the Office
of Personnel Management, be considered for and offered em-
ployment in an alternative position in the executive branch
of the Federal Government on the same basis as described
in subsection (b).
‘‘§ 4315. Rights, benefits, and obligations of persons
absent from employment for service in a
uniformed service
‘‘(a) A person who is reemployed under this chapter
is entitled to the seniority and other rights and benefits de-
termined by seniority that the person had on the date of
the commencement of service in the uniformed services plus
the additional seniority and rights and benefits that such
person would have attained if the person had remained con-
tinuously employed.
‘‘(b) A person who performs service in the uniformed
services is considered to be on furlough or leave of absence
while in the uniformed services and is also entitled to such
other rights and benefits, not determined by seniority, relat-
ing to other employees on furlough or leave of absence which
were in effect by contract, practice, policy, agreement, or
plan at the commencement of such period of service or were
established while such person is performing such service.
Such person may be required to pay the employee cost, if
any, of any funded benefit continued pursuant to the pre-
ceding sentence to the extent other employees on furlough
or leave of absence are so required.
‘‘(c)(1) Notwithstanding subsection (b), a person who
performs service in the uniformed services shall, at such per-
son’s request, continue to be covered by any insurance pro-
vided by such employer for up to 18 months. Such person
may be required to pay the entire cost of any benefit contin-
ued pursuant to the preceding sentence, except that in the
case of persons ordered to training or service for fewer than
31 days, such person may be required to pay only the em-
ployee share, if any, of the cost of such benefit.
‘‘(2) In the case of employer-sponsored health benefits,
an exclusion or waiting period may not be imposed in con-
nection with coverage of a health or physical condition of
a person entitled to participate in these benefits, either
under paragraph (1) or upon reinstatement, or in connec-
tion with a health or physical condition of any other person
who is covered by the benefit by reason of the coverage of
such person, if—
‘‘(A) the condition arose before or during that
person’s period of training or service in the uni-
formed services;
‘‘(B) an exclusion or waiting period would not
have been imposed for the condition during a period
of coverage resulting from participation by such per-
son in the benefits; and
‘‘(C) the condition of such person has not been
determined by the Secretary of Veterans Affairs to be
service-connected.
‘‘(d) A person who is reemployed by an employer
under this chapter shall not be discharged from such em-
ployment, except for cause—
‘‘(1) if such person’s period of service was 181
days or more, within one year;
‘‘(2) if such person’s period of service was 31
days or more but less than 181 days, within six
months; or
‘‘(3) if such person’s period of service was less
than 31 days, within a period of time that is equal
to the period of service concerned.
‘‘(e) Any person who is absent from or leaves a posi-
tion (other than a temporary position) in the employ of
any employer for voluntary or involuntary service in the
uniformed services may utilize, with respect to the employer
and during any period of such service, accrued or other
leave which the person could have utilized if the person had
remained in such position.
‘‘§ 4316. Employee pension benefit plans
‘‘(a)(1)(A) Except as provided in subparagraph (B),
in the case of a right provided pursuant to an employee
pension benefit plan described in section 3(2) of the Em-
ployee Retirement Income Security Act of 1974 (29 U.S.C.
1002(2)) or a right provided under any Federal or State
law governing pension benefits for governmental employees,
the right to pension benefits of a person reemployed under
this chapter shall be determined under this section.
‘‘(B) In the case of benefits under the Thrift Savings
Plan, the rights of a person reemployed under this chapter
shall be those rights provided in section 8432b of title 5.
The first sentence of this subparagraph shall not be con-
strued to affect any other right or benefit under this
chapter.
‘‘(2)(A) A person reemployed under this chapter shall
be treated as not having incurred a break in service with
the employer or employers maintaining the plan by reason
of such person’s period or periods of service in the uni-
formed services.
‘‘(B) Each period served by a person in the uniformed
services shall, upon reemployment under this chapter, be
deemed to constitute service with the employer or employers
maintaining the plan for purposes of determining the
nonforfeitability of the person’s accrued benefits and for the
purpose of determining the accrual of benefits under the
plan.
‘‘(b)(1)(A) An employer reemploying a person under
this chapter shall be liable to an employee pension benefit
plan for funding any obligation of the plan to provide the
benefits described in subsection (a)(2). For purposes of de-
termining the amount of such liability and for purposes of
section 515 of the Employee Retirement Income Security
Act of 1974 (29 U.S.C. 1145) or any similar Federal or
State law governing pension benefits for governmental em-
ployees, service in the uniformed services that is deemed
under subsection (a) to be service with the employer shall
be deemed to be service with the employer under the terms
of the plan or any applicable collective bargaining agree-
ment. In the case of a multiemployer plan, as defined in
section 3(37) of the Employee Retirement Income Security
Act of 1974 (29 U.S.C. 1002(37)), any liability of the plan
described in this paragraph shall be allocated by the plan
in such manner as the sponsor maintaining the plan shall
provide.
‘‘(B) An employee entitled to pension benefits under
this chapter, with respect to a period of service described
in subsection (a)(2)(B)—
‘‘(i) shall have earnings credited with respect to
an employer contribution in the same manner and to
the same extent as earnings are credited to other em-
ployees during the period of service, subject to para-
graph (3), irrespective of when the contribution is
made;
‘‘(ii) shall have allocated the amount of—
‘‘(I) any employer contribution that was
voluntary; and
‘‘(II) any employer contribution the total
amount of which was determined without ref-
erence to the number of, or compensation of, plan
participants before being allocated to the ac-
counts of participants; and
‘‘(iii) may have allocated the amount of any for-
feiture,
in the same manner and to the same extent the allocation
occurs for other employees during the period of service.
‘‘(2) A person reemployed under this chapter shall be
entitled to accrued benefits pursuant to subsection (a) that
are contingent on the making of, or derived from, employee
contributions or elective deferrals (as defined in section
402(g)(3) of the Internal Revenue Code of 1986) only to
the extent the person makes payment to the plan with re-
spect to such contributions or deferrals. No such payment
may exceed the amount the person would have been per-
mitted or required to contribute had the person remained
continuously employed by the employer throughout the pe-
riod of service described in subsection (a)(2)(B). Any pay-
ment to the plan described in this paragraph shall be made
during any reasonable continuous period (beginning with
the date of reemployment) as the employer and the person
may agree.
‘‘(3) For purposes of computing an employer’s liability
under paragraph (1)(A) or the employee’s contributions
under paragraph (2), the employee’s compensation during
the period of service described in subsection (a)(2)(B)—
‘‘(A) shall be computed at the same rate as the
employee received from the employer immediately be-
fore such period; or
‘‘(B) if the employee’s compensation was not
based on a fixed rate, shall be computed on the basis
of the employee’s average rate of compensation during
the 12-month period immediately preceding such pe-
riod (or, if shorter, the period of employment imme-
diately preceding such period).
‘‘(c) Any employer who reemploys a person under this
chapter and who is an employer contributing to a multiem-
ployer plan, as defined in section 3(37) of the Employee
Retirement Income Security Act of 1974 (29 U.S.C.
1002(37)), under which benefits are or may be payable to
such person by reason of the obligations set forth in this
chapter, shall, within 30 days after the date of such reem-
ployment, provide information, in writing, of such reem-
ployment to the administrator of such plan.
‘‘§ 4317. Character of service
‘‘A person’s entitlement to the benefits of this chapter
by reason of the service of such person in one of the uni-
formed services terminates upon the occurrence of any of
the following events:
‘‘(1) A separation of such person from such uni-
formed service with a dishonorable or bad conduct
discharge.
‘‘(2) A separation of such person from such uni-
formed service under other than honorable conditions,
as characterized pursuant to regulations prescribed by
the Secretary concerned.
‘‘(3) A dismissal of such person permitted under
section 1161(a) of title 10.
‘‘(4) A dropping of such person from the rolls
pursuant to section 1161(b) of title 10.
‘‘SUBCHAPTER III—PROCEDURES FOR ASSIST-
ANCE, ENFORCEMENT, AND INVESTIGATIONS
‘‘§ 4321. Assistance in obtaining employment or reem-
ployment
‘‘The Secretary (through the Veterans’ Employment
and Training Service) shall provide assistance to any per-
son with respect to employment and reemployment rights
and benefits to which such person is entitled under this
chapter. In providing such assistance, the Secretary may
request the assistance of existing Federal and State agencies
engaged in similar or related activities and utilize the as-
sistance of volunteers.
‘‘§ 4322. Enforcement of employment or reemployment
rights
‘‘(a)(1) A person who claims that—
‘‘(A) such person is entitled under this chapter
to employment or reemployment rights or benefits
with respect to employment by an employer; and
‘‘(B)(i) such employer has failed or refused, or is
about to fail or refuse, to comply with the provisions
of this chapter; or
‘‘(ii) in the case that the employer is the Federal
Government, such employer or the Office of Personnel
Management has failed or refused, or is about to fail
or refuse, to comply with the provisions of this chap-
ter,
may file a complaint with the Secretary in accordance with
subsection (b), and the Secretary shall investigate such com-
plaint.
‘‘(2) In the case that the employer is the Federal Gov-
ernment, subsection (a) of section 4323 shall be applicable
to such investigation but not subsections (b) and (c) of such
section.
‘‘(3) This subsection does not apply to any action re-
lating to benefits to be provided by the Thrift Savings Plan.
‘‘(b)(1) A person described in subsection (a) may file
a complaint in accordance with paragraph (2) and apply
to the Secretary for assistance in asserting that complaint.