H. R. 995
One Hundred Third Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Tuesday,
the twenty-fifth day of January, one thousand nine hundred and ninety-four
An Act
To amend title 38, United States Code, to improve reemployment rights and benefits
of veterans and other benefits of employment of certain members of the uniformed
services, and for other purposes.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Uniformed Services Employment
and Reemployment Rights Act of 1994’’.
SEC. 2. REVISION OF CHAPTER 43 OF TITLE 38.
(a) RESTATEMENT
AND IMPROVEMENT
OF EMPLOYMENT
AND
REEMPLOYMENT RIGHTS.—Chapter 43 of title 38, United States
Code, is amended to read as follows:
‘‘CHAPTER 43—EMPLOYMENT AND REEMPLOY-
MENT RIGHTS OF MEMBERS OF THE UNI-
FORMED SERVICES
‘‘SUBCHAPTER I—GENERAL
‘‘4301. Purposes; sense of Congress.
‘‘4302. Relation to other law and plans or agreements.
‘‘4303. Definitions.
‘‘4304. Character of service.
‘‘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. Reemployment by certain Federal agencies.
‘‘4316. Rights, benefits, and obligations of persons absent from employment for serv-
ice in a uniformed service.
‘‘4317. Health plans.
‘‘4318. Employee pension benefit plans.
‘‘SUBCHAPTER III—PROCEDURES FOR ASSISTANCE, ENFORCEMENT, AND
INVESTIGATION
‘‘4321. Assistance in obtaining reemployment or other employment rights or bene-
fits.
‘‘4322. Enforcement of employment or reemployment rights.
‘‘4323. Enforcement of rights with respect to a State or private employer.
‘‘4324. Enforcement of rights with respect to Federal executive agencies.
‘‘4325. Enforcement of rights with respect to certain Federal agencies.
‘‘4326. Conduct of investigation; subpoenas.
‘‘SUBCHAPTER IV—MISCELLANEOUS PROVISIONS
‘‘4331. Regulations.
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‘‘4332. Reports.
‘‘4333. Outreach.
‘‘SUBCHAPTER I—GENERAL
‘‘§ 4301. Purposes; sense of Congress
‘‘(a) The purposes of this chapter are—
‘‘(1) to encourage noncareer service in the uniformed serv-
ices by eliminating or minimizing the disadvantages 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 condi-
tions; 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 Government
should be a model employer in carrying out the provisions of this
chapter.
‘‘§ 4302. Relation to other law and plans or agreements
‘‘(a) Nothing in this chapter shall supersede, nullify or diminish
any Federal or State law (including any local law or ordinance),
contract, agreement, policy, plan, practice, or other matter that
establishes a right or benefit that is more beneficial to, or is in
addition to, a right or benefit provided for such person in this
chapter.
‘‘(b) This chapter supersedes any State law (including any local
law or ordinance), contract, agreement, policy, plan, practice, or
other matter that reduces, limits, or eliminates in any manner
any right or benefit provided by this chapter, including the
establishment of additional prerequisites to the exercise of any
such right or the receipt of any such benefit.
‘‘§ 4303. Definitions
‘‘For the purposes of this chapter—
‘‘(1) The term ‘Attorney General’ means the Attorney Gen-
eral of the United States or any person designated by the
Attorney General to carry out a responsibility of the Attorney
General under this chapter.
‘‘(2) The term ‘benefit’, ‘benefit of employment’, or ‘rights
and benefits’ means any advantage, profit, privilege, gain, sta-
tus, account, or interest (other than wages or salary for work
performed) that accrues by reason of an employment contract
or agreement or an employer policy, plan, or practice and
includes rights and benefits under a pension plan, a health
plan, an employee stock ownership plan, insurance coverage
and awards, bonuses, severance pay, supplemental unemploy-
ment benefits, vacations, and the opportunity to select work
hours or location of employment.
‘‘(3) The term ‘employee’ means any person employed 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 control over employment opportunities, including—
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‘‘(i) a person, institution, organization, or other entity
to whom the employer has delegated the performance of
employment-related responsibilities;
‘‘(ii) the Federal Government;
‘‘(iii) a State;
‘‘(iv) any successor in interest to a person, institution,
organization, or other entity referred to in this subpara-
graph; 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 ‘employer’ 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 provide benefits described in section 4318.
‘‘(5) The term ‘Federal executive agency’ includes the
United States Postal Service, the Postal Rate Commission, any
nonappropriated fund instrumentality of the United States,
any Executive agency (as that term is defined in section 105
of title 5) other than an agency referred to in section
2302(a)(2)(C)(ii) of title 5, and any military department (as
that term is defined in section 102 of title 5) with respect
to the civilian employees of that department.
‘‘(6) The term ‘Federal Government’ includes any Federal
executive agency, the legislative branch of the United States,
and the judicial branch of the United States.
‘‘(7) The term ‘health plan’ means an insurance policy or
contract, medical or hospital service agreement, membership
or subscription contract, or other arrangement under which
health services for individuals are provided or the expenses
of such services are paid.
‘‘(8) 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 uniformed service in which such service is to be
performed.
‘‘(9) The term ‘qualified’, with respect to an employment
position, means having the ability to perform the essential
tasks of the position.
‘‘(10) The term ‘reasonable efforts’, in the case of actions
required of an employer under this chapter, means actions,
including training provided by an employer, that do not place
an undue hardship on the employer.
‘‘(11) Notwithstanding section 101, the term ‘Secretary’
means the Secretary of Labor or any person designated by
such Secretary to carry out an activity 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 services’ means
the performance of duty on a voluntary or involuntary basis
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in a uniformed service under competent authority and includes
active duty, active duty for training, initial active duty for
training, inactive duty training, full-time National Guard duty,
and a period for which a person is absent from a position
of employment for the purpose of an examination 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 Common-
wealth of Puerto Rico, Guam, the Virgin Islands, and other
territories of the United States (including the agencies and
political subdivisions thereof).
‘‘(15) The term ‘undue hardship’, in the case of actions
taken by an employer, means actions requiring significant dif-
ficulty or expense, when considered in light of—
‘‘(A) the nature and cost of the action needed under
this chapter;
‘‘(B) 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;
‘‘(C) the overall financial resources of the employer;
the overall size of the business of an employer with respect
to the number of its employees; the number, type, and
location of its facilities; and
‘‘(D) the type of operation or operations of the employer,
including the composition, structure, and functions of the
work force of such employer; the geographic separateness,
administrative, or fiscal relationship of the facility or facili-
ties 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 training, inactive duty training,
or full-time National Guard duty, the commissioned corps of
the Public Health Service, and any other category of persons
designated by the President in time of war or emergency.
‘‘§ 4304. 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 uniformed services
terminates upon the occurrence of any of the following events:
‘‘(1) A separation of such person from such uniformed serv-
ice with a dishonorable or bad conduct discharge.
‘‘(2) A separation of such person from such uniformed serv-
ice 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.
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‘‘SUBCHAPTER II—EMPLOYMENT AND REEMPLOYMENT
RIGHTS AND LIMITATIONS; PROHIBITIONS
‘‘§ 4311. Discrimination against persons who serve in the uni-
formed services and acts of reprisal prohibited
‘‘(a) A person who is a member of, applies to be a member
of, performs, has performed, applies to perform, or has an obligation
to perform service in a uniformed service shall not be denied initial
employment, reemployment, retention in employment, promotion,
or any benefit of employment by an employer on the basis of
that membership, application for membership, performance of serv-
ice, application for service, or obligation.
‘‘(b) An employer shall be considered to have denied a person
initial employment, reemployment, retention in employment, pro-
motion, or a benefit of employment in violation of this section
if the person’s membership, application for membership, service,
application for service, or obligation for service in the uniformed
services is a motivating factor in the employer’s action, unless
the employer can prove that the action would have been taken
in the absence of such membership, application for membership,
performance of service, application for service, or obligation.
‘‘(c)(1) An employer may not discriminate in employment
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 chapter, has testified or otherwise
made a statement in or in connection with any proceeding under
this chapter, has assisted or otherwise participated in an investiga-
tion 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 and shall apply to any position of employ-
ment, including a position that is described in section 4312(d)(1)(C).
‘‘§ 4312. Reemployment rights of persons who serve in the
uniformed services
‘‘(a) Subject to subsections (b), (c), and (d) and to section 4304,
any person who is absent from a position of employment by reason
of service in the uniformed services shall be entitled to the
reemployment rights and benefits and other employment benefits
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) the cumulative length of the absence and of all previous
absences from a position of employment with that employer
by reason of service in the uniformed services does not exceed
five years; and
‘‘(3) except as provided in subsection (f), the person reports
to, or submits an application for reemployment 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 determination of military necessity
for the purposes of this subsection shall be made pursuant to
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regulations prescribed by the Secretary of Defense and shall not
be subject to judicial review.
‘‘(c) Subsection (a) shall apply to a person who is absent from
a position of employment by reason of service in the uniformed
services if such person’s cumulative period of service in the uni-
formed services, with respect 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 complete an
initial period of obligated service;
‘‘(2) during which such person was unable to obtain 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 determined and certified in writing by
the Secretary concerned, to be necessary for professional devel-
opment, 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 or under
section 331, 332, 359, 360, 367, or 712 of title 14;
‘‘(B) ordered to or retained on active duty (other than
for training) under any provision of law during a war
or during a national emergency declared by the President
or the Congress;
‘‘(C) ordered to active duty (other than for training)
in support, as determined by the Secretary 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 critical mission or require-
ment of the uniformed services; or
‘‘(E) called into Federal service as a member 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 person under
this chapter if—
‘‘(A) the employer’s circumstances have so changed as to
make such reemployment impossible or unreasonable;
‘‘(B) in the case of a person entitled to reemployment under
subsection (a)(3), (a)(4), or (b)(2)(B) of section 4313, such
employment would impose an undue hardship on the employer;
or
‘‘(C) the employment from which the person leaves to serve
in the uniformed services is for a brief, nonrecurrent period
and there is no reasonable expectation that such employment
will continue indefinitely or for a significant period.
‘‘(2) In any proceeding involving an issue of whether—
‘‘(A) any reemployment referred to in paragraph (1) is
impossible or unreasonable because of a change in an employ-
er’s circumstances,
‘‘(B) any accommodation, training, or effort referred to in
subsection (a)(3), (a)(4), or (b)(2)(B) of section 4313 would
impose an undue hardship on the employer, or
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‘‘(C) the employment referred to in paragraph (1)(C) is
brief or for a nonrecurrent period and without a reasonable
expectation that such employment will continue indefinitely
or for a significant period,
the employer shall have the burden of proving the impossibility
or unreasonableness, undue hardship, or the brief or nonrecurrent
nature of the employment without a reasonable expectation of
continuing indefinitely or for a significant period.
‘‘(e)(1) Subject to paragraph (2), a person referred to in sub-
section (a) shall, upon the completion of a period of service in
the uniformed services, notify the employer referred to in such
subsection of the person’s intent to return to a position of employ-
ment with such employer as follows:
‘‘(A) In the case of a person whose period of service in
the uniformed services was less than 31 days, by reporting
to the employer—
‘‘(i) not later than the beginning of the first full regu-
larly 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 transportation 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 referred to in subparagraph (A).
‘‘(C) In the case of a person whose period of service in
the uniformed services was for more than 30 days but less
than 181 days, by submitting an application for reemployment
with the employer not later than 14 days after the completion
of the period of service or if submitting such application within
such period is impossible or unreasonable through no fault
of the person, the next first full calendar day when submission
of such application becomes possible.
‘‘(D) In the case of a person whose period of service in
the uniformed services was for more than 180 days, by submit-
ting an application for reemployment with the employer not
later than 90 days after the completion of the period of service.
‘‘(2)(A) A person who is hospitalized for, or convalescing from,
an illness or injury incurred in, or aggravated during, the perform-
ance 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, report to the person’s employer (in the case of a person
described in subparagraph (A) or (B) of paragraph (1)) or submit
an application for reemployment with such employer (in the case
of a person described in subparagraph (C) or (D) of such paragraph).
Except as provided in subparagraph (B), such period of recovery
may not exceed two years.
‘‘(B) Such two-year period shall be extended by the minimum
time required to accommodate the circumstances beyond such per-
son’s control which make reporting within the period specified in
subparagraph (A) impossible or unreasonable.
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‘‘(3) A person who fails to report or apply for employment
or reemployment within the appropriate period specified in this
subsection shall not automatically forfeit such person’s entitlement
to the rights and benefits referred to in subsection (a) but shall
be subject to the conduct rules, established policy, and general
practices of the employer pertaining to explanations and discipline
with respect to absence from scheduled work.
‘‘(f)(1) A person who submits an application for reemployment
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) documentation to establish that—
‘‘(A) the person’s application is timely;
‘‘(B) the person has not exceeded the service limitations
set forth in subsection (a)(2) (except as permitted under sub-
section (c)); and
‘‘(C) the person’s entitlement to the benefits under this
chapter has not been terminated pursuant to section 4304.
‘‘(2) Documentation of any matter referred to in paragraph
(1) that satisfies regulations prescribed by the Secretary shall sat-
isfy the documentation requirements in such paragraph.
‘‘(3)(A) Except as provided in subparagraph (B), 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 accordance 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), (B), and (C) of
paragraph (1), the employer of such person may terminate the
employment of the person and the provision of any rights or benefits
afforded the person under this chapter.
‘‘(B) An employer who reemploys a person absent from a posi-
tion of employment for more than 90 days may require that the
person provide the employer with the documentation referred to
in subparagraph (A) before beginning to treat the person as not
having incurred a break in service for pension purposes under
section 4318(a)(2)(A).
‘‘(4) An employer may not delay or attempt to defeat a reemploy-
ment obligation by demanding documentation that does not then
exist or is not then readily available.
‘‘(g) The right of a person to reemployment under this section
shall not entitle such person to retention, preference, or displace-
ment rights over any person with a superior claim under the provi-
sions of title 5, United States Code, relating to veterans and other
preference eligibles.
‘‘(h) 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 protection of this chapter 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.
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‘‘§ 4313. Reemployment positions
‘‘(a) Subject to subsection (b) (in the case of any employee)
and sections 4314 and 4315 (in the case of an employee of the
Federal Government), a person entitled to reemployment under
section 4312, upon completion of a period of service in the uniformed
services, shall be promptly reemployed in a position of employment
in accordance with the following order of priority:
‘‘(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 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, 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 qualified to perform, only if the person is not qualified
to perform the duties of a position referred to in subpara-
graph (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 during, such service, and who (after reason-
able efforts by the employer to accommodate the disability)
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 equivalent in senior-
ity, status, and pay, the duties of which the person is
qualified to perform or would become qualified to perform
with reasonable efforts by the employer; or
‘‘(B) if not employed under subparagraph (A), in a
position which is the nearest approximation to a position
referred to in subparagraph (A) in terms of seniority, sta-
tus, and pay consistent with circumstances of such person’s
case.
‘‘(4) In the case of a person who (A) is not qualified to
be employed in (i) the position of employment in which the
person would have been employed if the continuous employment
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of such person with the employer had not been interrupted
by such service, or (ii) 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 during, service in
the uniformed services), and (B) cannot 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 reemployment
under section 4312 in the same position of employment and more
than one of them has reported for such reemployment, the person
who left the position first shall have the prior right to reemployment
in that position.
‘‘(2) Any person entitled to reemployment under section 4312
who is not reemployed in a position of employment by reason
of paragraph (1) shall be entitled to be reemployed 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 the 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 during, 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 reemployed in a position
of employment as described in section 4313.
‘‘(b)(1) If the Director of the Office of Personnel Management
makes a determination described in paragraph (2) with respect
to a person who was employed by a Federal executive agency
at the time the person entered the service from which the person
seeks reemployment under this section, the Director shall—
‘‘(A) identify a position of like seniority, status, and pay
at another Federal executive agency that satisfies the require-
ments of section 4313 and for which the person is qualified;
and
‘‘(B) ensure that the person is offered such position.
‘‘(2) The Director shall carry out the duties referred to in
subparagraphs (A) and (B) of paragraph (1) if the Director deter-
mines that—
‘‘(A) the Federal executive agency that employed the person
referred to in such paragraph no longer exists and the functions
of such agency have not been transferred to another Federal
executive agency; or
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‘‘(B) it is impossible or unreasonable for the agency to
reemploy the person.
‘‘(c) If the employer of a person described in subsection (a)
was, at the time such person entered the service from which such
person seeks reemployment under this section, a part of the judicial
branch or the legislative branch of the Federal Government, and
such employer determines that it is impossible or unreasonable
for such employer to reemploy such person, such person shall,
upon application to the Director of the Office of Personnel Manage-
ment, be ensured an offer of employment in an alternative position
in a Federal executive agency on the basis 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, such person shall, upon application to the Director of the Office
of Personnel Management, be ensured an offer of employment in
an alternative position in a Federal executive agency on the basis
described in subsection (b).
‘‘§ 4315. Reemployment by certain Federal agencies
‘‘(a) The head of each agency referred to in section
2302(a)(2)(C)(ii) of title 5 shall prescribe procedures for ensuring
that the rights under this chapter apply to the employees of such
agency.
‘‘(b) In prescribing procedures under subsection (a), the head
of an agency referred to in that subsection shall ensure, to the
maximum extent practicable, that the procedures of the agency
for reemploying persons who serve in the uniformed services provide
for the reemployment of such persons in the agency in a manner
similar to the manner of reemployment described in section 4313.
‘‘(c)(1) The procedures prescribed under subsection (a) shall
designate an official at the agency who shall determine whether
or not the reemployment of a person referred to in subsection
(b) by the agency is impossible or unreasonable.
‘‘(2) Upon making a determination that the reemployment by
the agency of a person referred to in subsection (b) is impossible
or unreasonable, the official referred to in paragraph (1) shall
notify the person and the Director of the Office of Personnel
Management of such determination.
‘‘(3) A determination pursuant to this subsection shall not be
subject to judicial review.
‘‘(4) The head of each agency referred to in subsection (a)
shall submit to the Select Committee on Intelligence and the
Committee on Veterans’ Affairs of the Senate and the Permanent
Select Committee on Intelligence and the Committee on Veterans’
Affairs of the House of Representatives on an annual basis a report
on the number of persons whose reemployment with the agency
was determined under this subsection to be impossible or unreason-
able during the year preceding the report, including the reason
for each such determination.
‘‘(d)(1) Except as provided in this section, nothing in this section,
section 4313, or section 4325 shall be construed to exempt any
agency referred to in subsection (a) from compliance with any
other substantive provision of this chapter.
‘‘(2) This section may not be construed—
H. R. 995—12
‘‘(A) as prohibiting an employee of an agency referred to
in subsection (a) from seeking information from the Secretary
regarding assistance in seeking reemployment from the agency
under this chapter, alternative employment in the Federal
Government under this chapter, or information relating to the
rights and obligations of employee and Federal agencies under
this chapter; or
‘‘(B) as prohibiting such an agency from voluntarily
cooperating with or seeking assistance in or of clarification
from the Secretary or the Director of the Office of Personnel
Management of any matter arising under this chapter.
‘‘(e) The Director of the Office of Personnel Management shall
ensure the offer of employment to a person in a position in a
Federal executive agency on the basis described in subsection (b)
if—
‘‘(1) the person was an employee of an agency referred
to in section 2302(a)(2)(C)(ii) of title 5 at the time the person
entered the service from which the person seeks reemployment
under this section;
‘‘(2) the appropriate officer of the agency determines under
subsection (c) that reemployment of the person by the agency
is impossible or unreasonable; and
‘‘(3) the person submits an application to the Director for
an offer of employment under this subsection.
‘‘§ 4316. Rights, benefits, and obligations of persons absent
from employment for service in a uniformed serv-
ice
‘‘(a) A person who is reemployed under this chapter is entitled
to the seniority and other rights and benefits determined by senior-
ity 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 continuously employed.
‘‘(b)(1) Subject to paragraphs (2) through (6), a person who
is absent from a position of employment by reason of service in
the uniformed services shall be—
‘‘(A) deemed to be on furlough or leave of absence while
performing such service; and
‘‘(B) entitled to such other rights and benefits not deter-
mined by seniority as are generally provided by the employer
of the person to employees having similar seniority, status,
and pay who are on furlough or leave of absence under a
contract, agreement, policy, practice, or plan in effect at the
commencement of such service or established while such person
performs such service.
‘‘(2)(A) Subject to subparagraph (B), a person who—
‘‘(i) is absent from a position of employment by reason
of service in the uniformed services, and
‘‘(ii) knowingly provides written notice of intent not to
return to a position of employment after service in the uni-
formed service,
is not entitled to rights and benefits under paragraph (1)(B).
‘‘(B) For the purposes of subparagraph (A), the employer shall
have the burden of proving that a person knowingly provided clear
written notice of intent not to return to a position of employment
after service in the uniformed service and, in doing so, was aware
H. R. 995—13
of the specific rights and benefits to be lost under subparagraph
(A).
‘‘(3) A person deemed to be on furlough or leave of absence
under this subsection while serving in the uniformed services shall
not be entitled under this subsection to any benefits to which
the person would not otherwise be entitled if the person had
remained continuously employed.
‘‘(4) Such person may be required to pay the employee cost,
if any, of any funded benefit continued pursuant to paragraph
(1) to the extent other employees on furlough or leave of absence
are so required.
‘‘(5) The entitlement of a person to coverage under a health
plan is provided for under section 4317.
‘‘(6) The entitlement of a person to a right or benefit under
an employee pension benefit plan is provided for under section
4318.
‘‘(c) A person who is reemployed by an employer under this
chapter shall not be discharged from such employment, except
for cause—
‘‘(1) within one year after the date of such reemployment,
if the person’s period of service before the reemployment was
more than 180 days; or
‘‘(2) within 180 days after the date of such reemployment,
if the person’s period of service before the reemployment was
more than 30 days but less than 181 days.
‘‘(d) Any person whose employment with an employer is inter-
rupted by a period of service in the uniformed services shall be
permitted, upon request of that person, to use during such period
of service any vacation, annual, or similar leave with pay accrued
by the person before the commencement of such service.
‘‘§ 4317. Health plans
‘‘(a)(1)(A) Subject to paragraphs (2) and (3), in any case in
which a person (or the person’s dependents) has coverage under
a health plan in connection with the person’s position of employ-
ment, including a group health plan (as defined in section 607(1)
of the Employee Retirement Income Security Act of 1974), and
such person is absent from such position of employment by reason
of service in the uniformed services, the plan shall provide that
the person may elect to continue such coverage as provided in
this subsection. The maximum period of coverage of a person and
the person’s dependents under such an election shall be the lesser
of—
‘‘(i) the 18-month period beginning on the date on which
the person’s absence begins; or
‘‘(ii) the day after the date on which the person fails to
apply for or return to a position of employment, as determined
under section 4312(e).
‘‘(B) A person who elects to continue health-plan coverage under
this paragraph may be required to pay not more than 102 percent
of the full premium under the plan (determined in the same manner
as the applicable premium under section 4980B(f)(4) of the Internal
Revenue Code of 1986) associated with such coverage for the
employer’s other employees, except that in the case of a person
who performs service in the uniformed services for less than 31
days, such person may not be required to pay more than the
employee share, if any, for such coverage.
H. R. 995—14
‘‘(C) In the case of a health plan that is a multiemployer
plan, as defined in section 3(37) of the Employee Retirement Income
Security Act of 1974, any liability under the plan for employer
contributions and benefits arising under this paragraph shall be
allocated—
‘‘(i) by the plan in such manner as the plan sponsor shall
provide; or
‘‘(ii) if the sponsor does not provide—
‘‘(I) to the last employer employing the person before
the period served by the person in the uniformed services,
or
‘‘(II) if such last employer is no longer functional, to
the plan.
‘‘(b)(1) Except as provided in paragraph (2), in the case of
a person whose coverage under a health plan was terminated by
reason of service in the uniformed services, an exclusion or waiting
period may not be imposed in connection with the reinstatement
of such coverage upon reemployment under this chapter if an exclu-
sion or waiting period would not have been imposed under a health
plan had coverage of such person by such plan not been terminated
as a result of such service. This paragraph applies to the person
who is reemployed and to any individual who is covered by such
plan by reason of the reinstatement of the coverage of such person.
‘‘(2) Paragraph (1) shall not apply to the coverage of any illness
or injury determined by the Secretary of Veterans Affairs to have
been incurred in, or aggravated during, performance of service
in the uniformed services.
‘‘§ 4318. 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
(including those described in sections 3(2) and 3(33) of the Employee
Retirement Income Security Act of 1974) or a right provided under
any Federal or State law governing pension benefits for govern-
mental employees, the right to pension benefits of a person
reemployed under this chapter shall be determined under this sec-
tion.
‘‘(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 construed 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 uniformed services.
‘‘(B) Each period served by a person in the uniformed services
shall, upon reemployment under this chapter, be deemed to con-
stitute service with the employer or employers maintaining the
plan for the purpose 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) An employer reemploying a person under this chapter
shall, with respect to a period of service described in subsection
(a)(2)(B), be liable to an employee pension benefit plan for funding
any obligation of the plan to provide the benefits described in
subsection (a)(2) and shall allocate the amount of any employer
H. R. 995—15
contribution for the person in the same manner and to the same
extent the allocation occurs for other employees during the period
of service. For purposes of determining the amount of such liability
and any obligation of the plan, earnings and forfeitures shall not
be included. For purposes of determining the amount of such liabil-
ity and for purposes of section 515 of the Employee Retirement
Income Security Act of 1974 or any similar Federal or State law
governing pension benefits for governmental employees, 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 agreement. In the case of a multiemployer plan, as
defined in section 3(37) of the Employee Retirement Income Security
Act of 1974, any liability of the plan described in this paragraph
shall be allocated—
‘‘(A) by the plan in such manner as the sponsor maintaining
the plan shall provide; or
‘‘(B) if the sponsor does not provide—
‘‘(i) to the last employer employing the person before
the period served by the person in the uniformed services,
or
‘‘(ii) if such last employer is no longer functional, to
the plan.
‘‘(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 respect to such contributions or deferrals. No such
payment may exceed the amount the person would have been
permitted or required to contribute had the person remained
continuously employed by the employer throughout the period of
service described in subsection (a)(2)(B). Any payment to the plan
described in this paragraph shall be made during the period begin-
ning with the date of reemployment and whose duration is three
times the period of the person’s service in the uniformed services,
not to exceed five years.
‘‘(3) For purposes of computing an employer’s liability under
paragraph (1) or the employee’s contributions under paragraph
(2), the employee’s compensation during the period of service
described in subsection (a)(2)(B) shall be computed—
‘‘(A) at the rate the employee would have received but
for the period of service described in subsection (a)(2)(B), or
‘‘(B) in the case that the determination of such rate is
not reasonably certain, on the basis of the employee’s average
rate of compensation during the 12-month period immediately
preceding such period (or, if shorter, the period of employment
immediately preceding such period).
‘‘(c) Any employer who reemploys a person under this chapter
and who is an employer contributing to a multiemployer plan,
as defined in section 3(37) of the Employee Retirement Income
Security Act of 1974, 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 reemployment, provide
information, in writing, of such reemployment to the administrator
of such plan.
H. R. 995—16
‘‘SUBCHAPTER III—PROCEDURES FOR ASSISTANCE,
ENFORCEMENT, AND INVESTIGATION
‘‘§ 4321. Assistance in obtaining reemployment or other
employment rights or benefits
‘‘The Secretary (through the Veterans’ Employment and Train-
ing Service) shall provide assistance to any person with respect
to the employment and reemployment rights and benefits to which
such person is entitled under this chapter. In providing such assist-
ance, the Secretary may request the assistance of existing Federal
and State agencies engaged in similar or related activities and
utilize the assistance of volunteers.
‘‘§ 4322. Enforcement of employment or reemployment rights
‘‘(a) A person who claims that—
‘‘(1) such person is entitled under this chapter to employ-
ment or reemployment rights or benefits with respect to employ-
ment by an employer; and
‘‘(2)(A) such employer has failed or refused, or is about
to fail or refuse, to comply with the provisions of this chapter;
or
‘‘(B) in the case that the employer is a Federal executive
agency, 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 chapter,
may file a complaint with the Secretary in accordance with sub-
section (b), and the Secretary shall investigate such complaint.
‘‘(b) Such complaint shall be in writing, be in such form as
the Secretary may prescribe, include the name and address of
the employer against whom the complaint is filed, and contain
a summary of the allegations that form the basis for the complaint.
‘‘(c) The Secretary shall, upon request, provide technical assist-
ance to a potential claimant with respect to a complaint under
this subsection, and when appropriate, to such claimant’s employer.
‘‘(d) The Secretary shall investigate each complaint submitted
pursuant to subsection (a). If the Secretary determines as a result
of the investigation that the action alleged in such complaint
occurred, the Secretary shall resolve the complaint by making
reasonable efforts to ensure that the person or entity named in
the complaint complies with the provisions of this chapter.
‘‘(e) If the efforts of the Secretary with respect to a complaint
under subsection (d) are unsuccessful, the Secretary shall notify
the person who submitted the complaint of—
‘‘(1) the results of the Secretary’s investigation; and
‘‘(2) the complainant’s entitlement to proceed under the
enforcement of rights provisions provided under section 4323
(in the case of a person submitting a complaint against a
State or private employer) or section 4324 (in the case of
a person submitting a complaint against a Federal executive
agency).
‘‘(f) This subchapter does not apply to any action relating to
benefits to be provided under the Thrift Savings Plan under title
5.
H. R. 995—17
‘‘§ 4323. Enforcement of rights with respect to a State or
private employer
‘‘(a)(1) A person who receives from the Secretary a notification
pursuant to section 4322(e) of an unsuccessful effort to resolve
a complaint relating to a State (as an employer) or a private
employer may request that the Secretary refer the complaint to
the Attorney General. If the Attorney General is reasonably satisfied
that the person on whose behalf the complaint is referred is entitled
to the rights or benefits sought, the Attorney General may appear
on behalf of, and act as attorney for, the person on whose behalf
the complaint is submitted and commence an action for appropriate
relief for such person in an appropriate United States district
court.
‘‘(2) A person may commence an action for relief with respect
to a complaint if that person—
‘‘(A) has chosen not to apply to the Secretary for assistance
regarding the complaint under section 4322(c);
‘‘(B) has chosen not to request that the Secretary refer
the complaint to the Attorney General under paragraph (1);
or
‘‘(C) has been refused representation by the Attorney Gen-
eral with respect to the complaint under such paragraph.
‘‘(b) In the case of an action against a State as an employer,
the appropriate district court is the court for any district in which
the State exercises any authority or carries out any function. In
the case of a private employer the appropriate district court is
the district court for any district in which the private employer
of the person maintains a place of business.
‘‘(c)(1)(A) The district courts of the United States shall have
jurisdiction, upon the filing of a complaint, motion, petition, or
other appropriate pleading by or on behalf of the person claiming
a right or benefit under this chapter—
‘‘(i) to require the employer to comply with the provisions
of this chapter;
‘‘(ii) to require the employer to compensate the person
for any loss of wages or benefits suffered by reason of such
employer’s failure to comply with the provisions of this chapter;
and
‘‘(iii) to require the employer to pay the person an amount
equal to the amount referred to in clause (ii) as liquidated
damages, if the court determines that the employer’s failure
to comply with the provisions of this chapter was willful.
‘‘(B) Any compensation under clauses (ii) and (iii) of subpara-
graph (A) shall be in addition to, and shall not diminish, any
of the other rights and benefits provided for in this chapter.
‘‘(2)(A) No fees or court costs shall be charged or taxed against
any person claiming rights under this chapter.
‘‘(B) In any action or proceeding to enforce a provision of this
chapter by a person under subsection (a)(2) who obtained private
counsel for such action or proceeding, the court may award any
such person who prevails in such action or proceeding reasonable
attorney fees, expert witness fees, and other litigation expenses.
‘‘(3) The court may use its full equity powers, including tem-
porary or permanent injunctions, temporary restraining orders, and
contempt orders, to vindicate fully the rights or benefits of persons
under this chapter.
H. R. 995—18
‘‘(4) An action under this chapter may be initiated only by
a person claiming rights or benefits under this chapter, not by
an employer, prospective employer, or other entity with obligations
under this chapter.
‘‘(5) In any such action, only an employer or a potential
employer, as the case may be, shall be a necessary party respondent.
‘‘(6) No State statute of limitations shall apply to any proceeding
under this chapter.
‘‘(7) A State shall be subject to the same remedies, including
prejudgment interest, as may be imposed upon any private employer
under this section.
‘‘§ 4324. Enforcement of rights with respect to Federal execu-
tive agencies
‘‘(a)(1) A person who receives from the Secretary a notification
pursuant to section 4322(e) of an unsuccessful effort to resolve
a complaint relating to a Federal executive agency may request
that the Secretary refer the complaint for litigation before the
Merit Systems Protection Board. The Secretary shall refer the com-
plaint to the Office of Special Counsel established by section 1211
of title 5.
‘‘(2)(A) If the Special Counsel is reasonably satisfied that the
person on whose behalf a complaint is referred under paragraph
(1) is entitled to the rights or benefits sought, the Special Counsel
(upon the request of the person submitting the complaint) may
appear on behalf of, and act as attorney for, the person and initiate
an action regarding such complaint before the Merit Systems Protec-
tion Board.
‘‘(B) If the Special Counsel declines to initiate an action and
represent a person before the Merit Systems Protection Board under
subparagraph (A), the Special Counsel shall notify such person
of that decision.
‘‘(b) A person may submit a complaint against a Federal execu-
tive agency under this subchapter directly to the Merit Systems
Protection Board if that person—
‘‘(1) has chosen not to apply to the Secretary for assistance
regarding a complaint under section 4322(c);
‘‘(2) has received a notification from the Secretary under
section 4322(e);
‘‘(3) has chosen not to be represented before the Board
by the Special Counsel pursuant to subsection (a)(2)(A); or
‘‘(4) has received a notification of a decision from the Special
Counsel under subsection (a)(2)(B).
‘‘(c)(1) The Merit Systems Protection Board shall adjudicate
any complaint brought before the Board pursuant to subsection
(a)(2)(A) or (b). A person who seeks a hearing or adjudication
by submitting such a complaint under this paragraph may be rep-
resented at such hearing or adjudication in accordance with the
rules of the Board.
‘‘(2) If the Board determines that a Federal executive agency
has not complied with the provisions of this chapter relating to
the employment or reemployment of a person by the agency, the
Board shall enter an order requiring the agency or employee to
comply with such provisions and to compensate such person for
any loss of wages or benefits suffered by such person by reason
of such lack of compliance.
H. R. 995—19
‘‘(3) Any compensation received by a person pursuant to an
order under paragraph (2) shall be in addition to any other right
or benefit provided for by this chapter and shall not diminish
any such right or benefit.
‘‘(4) If the Board determines as a result of a hearing or adjudica-
tion conducted pursuant to a complaint submitted by a person
directly to the Board pursuant to subsection (b) that such person
is entitled to an order referred to in paragraph (2), the Board
may, in its discretion, award such person reasonable attorney fees,
expert witness fees, and other litigation expenses.
‘‘(d)(1) A person adversely affected or aggrieved by a final
order or decision of the Merit Systems Protection Board under
subsection (c) may petition the United States Court of Appeals
for the Federal Circuit to review the final order or decision. Such
petition and review shall be in accordance with the procedures
set forth in section 7703 of title 5.
‘‘(2) Such person may be represented in the Federal Circuit
proceeding by the Special Counsel unless the person was not rep-
resented by the Special Counsel before the Merit Systems Protection
Board regarding such order or decision.
‘‘§ 4325. Enforcement of rights with respect to certain Fed-
eral agencies
‘‘(a) This section applies to any person who alleges that—
‘‘(1) the reemployment of such person by an agency referred
to in subsection (a) of section 4315 was not in accordance
with procedures for the reemployment of such person under
subsection (b) of such section; or
‘‘(2) the failure of such agency to reemploy the person
under such section was otherwise wrongful.
‘‘(b) Any person referred to in subsection (a) may submit a
claim relating to an allegation referred to in that subsection to
the inspector general of the agency which is the subject of the
allegation. The inspector general shall investigate and resolve the
allegation pursuant to procedures prescribed by the head of the
agency.
‘‘(c) In prescribing procedures for the investigation and resolu-
tion of allegations under subsection (b), the head of an agency
shall ensure, to the maximum extent practicable, that the proce-
dures are similar to the procedures for investigating and resolving
complaints utilized by the Secretary under section 4322(d).
‘‘(d) This section may not be construed—
‘‘(1) as prohibiting an employee of an agency referred to
in subsection (a) from seeking information from the Secretary
regarding assistance in seeking reemployment from the agency
under this chapter, alternative employment in the Federal
Government under this chapter, or information relating to the
rights and obligations of employee and Federal agencies under
this chapter; or
‘‘(2) as prohibiting such an agency from voluntarily
cooperating with or seeking assistance in or of clarification
from the Secretary or the Director of the Office of Personnel
Management of any matter arising under this chapter.
‘‘§ 4326. Conduct of investigation; subpoenas
‘‘(a) In carrying out any investigation under this chapter, the
Secretary’s duly authorized representatives shall, at all reasonable
H. R. 995—20
times, have reasonable access to, for purposes of examination, and
the right to copy and receive, any documents of any person or
employer that the Secretary considers relevant to the investigation.
‘‘(b) In carrying out any investigation under this chapter, the
Secretary may require by subpoena the attendance and testimony
of witnesses and the production of documents relating to any matter
under investigation. In case of disobedience of the subpoena or
contumacy and on request of the Secretary, the Attorney General
may apply to any district court of the United States in whose
jurisdiction such disobedience or contumacy occurs for an order
enforcing the subpoena.
‘‘(c) Upon application, the district courts of the United States
shall have jurisdiction to issue writs commanding any person or
employer to comply with the subpoena of the Secretary or to comply
with any order of the Secretary made pursuant to a lawful investiga-
tion under this chapter and the district courts shall have jurisdiction
to punish failure to obey a subpoena or other lawful order of
the Secretary as a contempt of court.
‘‘(d) Subsections (b) and (c) shall not apply to the legislative
branch or the judicial branch of the United States.
‘‘SUBCHAPTER IV—MISCELLANEOUS PROVISIONS
‘‘§ 4331. Regulations
‘‘(a) The Secretary (in consultation with the Secretary of
Defense) may prescribe regulations implementing the provisions
of this chapter with regard to the application of this chapter to
States, local governments, and private employers.
‘‘(b)(1) The Director of the Office of Personnel Management
(in consultation with the Secretary and the Secretary of Defense)
may prescribe regulations implementing the provisions of this chap-
ter with regard to the application of this chapter to Federal execu-
tive agencies (other than the agencies referred to in paragraph
(2)) as employers. Such regulations shall be consistent with the
regulations pertaining to the States as employers and private
employers, except that employees of the Federal Government may
be given greater or additional rights.
‘‘(2) The following entities may prescribe regulations to carry
out the activities of such entities under this chapter:
‘‘(A) The Merit Systems Protection Board.
‘‘(B) The Office of Special Counsel.
‘‘(C) The agencies referred to in section 2303(a)(2)(C)(ii)
of title 5.
‘‘§ 4332. Reports
‘‘The Secretary shall, after consultation with the Attorney Gen-
eral and the Special Counsel referred to in section 4324(a)(1) and
no later than February 1, 1996, and annually thereafter through
2000, transmit to the Congress, a report containing the following
matters for the fiscal year ending before such February 1:
‘‘(1) The number of cases reviewed by the Department
of Labor under this chapter during the fiscal year for which
the report is made.
‘‘(2) The number of cases referred to the Attorney General
or the Special Counsel pursuant to section 4323 or 4324, respec-
tively, during such fiscal year.
H. R. 995—21
‘‘(3) The number of complaints filed by the Attorney General
pursuant to section 4323 during such fiscal year.
‘‘(4) The nature and status of each case reported on pursu-
ant to paragraph (1), (2), or (3).
‘‘(5) An indication of whether there are any apparent pat-
terns of violation of the provisions of this chapter, together
with an explanation thereof.
‘‘(6) Recommendations for administrative or legislative
action that the Secretary, the Attorney General, or the Special
Counsel considers necessary for the effective implementation
of this chapter, including any action that could be taken to
encourage mediation, before claims are filed under this chapter,
between employers and persons seeking employment or
reemployment.
‘‘§ 4333. Outreach
‘‘The Secretary, the Secretary of Defense, and the Secretary
of Veterans Affairs shall take such actions as such Secretaries
determine are appropriate to inform persons entitled to rights and
benefits under this chapter and employers of the rights, benefits,
and obligations of such persons and such employers under this
chapter.’’.
(b) CONFORMING AMENDMENTS.—
(1) AMENDMENTS TO TITLE 38.—The tables of chapters at
the beginning of title 38, United States Code, and the beginning
of part III of such title are each amended by striking out
the item relating to chapter 43 and inserting in lieu thereof
the following:
‘‘43. Employment and reemployment rights of members of the uni-
formed services ............................................................................................... 4301’’.
(2) AMENDMENT TO TITLE 5.—(A) Section 1204(a)(1) of title
5, United States Code, is amended by striking out ‘‘section
4323’’ and inserting in lieu thereof ‘‘chapter 43’’.
(B) Subchapter II of chapter 35 of such title is repealed.
(C) The table of sections for chapter 35 of such title is
amended by striking out the heading relating to subchapter
II of such chapter and the item relating to section 3551 of
such chapter.
(3) AMENDMENT TO TITLE 10.—Section 706(c)(1) of title 10,
United States Code, is amended by striking out ‘‘section 4321’’
and inserting in lieu thereof ‘‘chapter 43’’.
(c) AMENDMENTS TO TITLE 28.—Section 631 of title 28, United
States Code, is amended—
(1) by striking out subsection (j);
(2) by redesignating subsections (k) and (l) as subsections
(j) and (k), respectively; and
(3) in subsection (j), as redesignated by paragraph (2),
by striking out ‘‘under the terms of’’ and all that follows through
‘‘section,’’ the first place it appears and inserting in lieu thereof
‘‘under chapter 43 of title 38,’’.
SEC. 3. EXEMPTION FROM MINIMUM SERVICE REQUIREMENTS.
Section 5303A(b)(3) of title 38, United States Code, is
amended—
(1) by striking out ‘‘or’’ at the end of subparagraph (E);
H. R. 995—22
(2) by striking out the period at the end of subparagraph
(F) and inserting in lieu thereof ‘‘; or’’; and
(3) by adding at the end thereof the following new subpara-
graph:
‘‘(G) to benefits under chapter 43 of this title.’’.
SEC. 4. THRIFT SAVINGS PLAN.
(a) IN GENERAL.—(1) Title 5, United States Code, is amended
by inserting after section 8432a the following:
‘‘§ 8432b. Contributions of persons who perform military
service
‘‘(a) This section applies to any employee who—
‘‘(1) separates or enters leave-without-pay status in order
to perform military service; and
‘‘(2) is subsequently restored to or reemployed in a position
which is subject to this chapter, pursuant to chapter 43 of
title 38.
‘‘(b)(1) Each employee to whom this section applies may contrib-
ute to the Thrift Savings Fund, in accordance with this subsection,
an amount not to exceed the amount described in paragraph (2).
‘‘(2) The maximum amount which an employee may contribute
under this subsection is equal to—
‘‘(A) the contributions under section 8432(a) which would
have been made, over the period beginning on date of separation
or commencement of leave-without-pay status (as applicable)
and ending on the day before the date of restoration or
reemployment (as applicable); reduced by
‘‘(B) any contributions under section 8432(a) actually made
by such employee over the period described in subparagraph
(A).
‘‘(3) Contributions under this subsection—
‘‘(A) shall be made at the same time and in the same
manner as would any contributions under section 8432(a);
‘‘(B) shall be made over the period of time specified by
the employee under paragraph (4)(B); and
‘‘(C) shall be in addition to any contributions then actually
being made under section 8432(a).
‘‘(4) The Executive Director shall prescribe the time, form,
and manner in which an employee may specify—
‘‘(A) the total amount such employee wishes to contribute
under this subsection with respect to any particular period
referred to in paragraph (2)(B); and
‘‘(B) the period of time over which the employee wishes
to make contributions under this subsection.
The employing agency may place a maximum limit on the period
of time referred to in subparagraph (B), which cannot be shorter
than two times the period referred to in paragraph (2)(B) and
not longer than four times such period.
‘‘(c) If an employee makes contributions under subsection (b),
the employing agency shall make contributions to the Thrift Savings
Fund on such employee’s behalf—
‘‘(1) in the same manner as would be required under section
8432(c)(2) if the employee contributions were being made under
section 8432(a); and
H. R. 995—23
‘‘(2) disregarding any contributions then actually being
made under section 8432(a) and any agency contributions relat-
ing thereto.
‘‘(d) An employee to whom this section applies is entitled to
have contributed to the Thrift Savings Fund on such employee’s
behalf an amount equal to—
‘‘(1) 1 percent of such employee’s basic pay (as determined
under subsection (e)) for the period referred to in subsection
(b)(2)(B); reduced by
‘‘(2) any contributions actually made on such employee’s
behalf under section 8432(c)(1) with respect to the period
referred to in subsection (b)(2)(B).
‘‘(e) For purposes of any computation under this section, an
employee shall, with respect to the period referred to in subsection
(b)(2)(B), be considered to have been paid at the rate which would
have been payable over such period had such employee remained
continuously employed in the position which such employee last
held before separating or entering leave-without-pay status to per-
form military service.
‘‘(f)(1) The employing agency may be required to pay lost earn-
ings on contributions made pursuant to subsections (c) and (d).
Such earnings, if required, shall be calculated retroactively to the
date the contribution would have been made had the employee
not separated or entered leave without pay status to perform mili-
tary service.
‘‘(2) Procedures for calculating and crediting the earnings pay-
able pursuant to paragraph (1) shall be prescribed by the Executive
Director.
‘‘(g) Amounts paid under subsection (c), (d), or (f) shall be
paid—
‘‘(1) by the agency to which the employee is restored or
in which such employee is reemployed;
‘‘(2) from the same source as would be the case under
section 8432(e) with respect to sums required under section
8432(c); and
‘‘(3) within the time prescribed by the Executive Director.
‘‘(h)(1) For purposes of section 8432(g), in the case of an
employee to whom this section applies—
‘‘(A) a separation from civilian service in order to perform
the military service on which the employee’s restoration or
reemployment rights are based shall be disregarded; and
‘‘(B) such employee shall be credited with a period of
civilian service equal to the period referred to in subsection
(b)(2)(B).
‘‘(2)(A) An employee to whom this section applies may elect,
for purposes of section 8433(d), or paragraph (1) or (2) of section
8433(h), as the case may be, to have such employee’s separation
(described in subsection (a)(1)) treated as if it had never occurred.
‘‘(B) An election under this paragraph shall be made within
such period of time after restoration or reemployment (as the case
may be) and otherwise in such manner as the Executive Director
prescribes.
‘‘(i) The Executive Director shall prescribe regulations to carry
out this section.’’.
H. R. 995—24
(2) The table of sections for chapter 84 of title 5, United States
Code, is amended by inserting after the item relating to section
8432a the following:
‘‘8432b. Contributions of persons who perform military service.’’.
(b) PRESERVATION
OF CERTAIN RIGHTS.—(1) Section 8433(d)
of title 5, United States Code, is amended by striking ‘‘subsection
(e).’’ and inserting ‘‘subsection (e), unless an election under section
8432b(h)(2) is made to treat such separation for purposes of this
subsection as if it had never occurred.’’.
(2) Paragraphs (1) and (2) of section 8433(h) are each amended
by striking the period at the end and inserting ‘‘, or unless an
election under section 8432b(h)(2) is made to treat such separation
for purposes of this paragraph as if it had never occurred.’’.
(c) ELECTION TO RESUME REGULAR CONTRIBUTIONS UPON RES-
TORATION
OR REEMPLOYMENT.—Section 8432 of title 5, United
States Code, is amended by adding at the end the following:
‘‘(i)(1) This subsection applies to any employee—
‘‘(A) to whom section 8432b applies; and
‘‘(B) who, during the period of such employee’s absence
from civilian service (as referred to in section 8432b(b)(2)(B))—
‘‘(i) is eligible to make an election described in sub-
section (b)(1); or
‘‘(ii) would be so eligible but for having either elected
to terminate individual contributions to the Thrift Savings
Fund within 2 months before commencing military service
or separated in order to perform military service.
‘‘(2) The Executive Director shall prescribe regulations to ensure
that any employee to whom this subsection applies shall, within
a reasonable time after being restored or reemployed (in the manner
described in section 8432b(a)(2)), be afforded the opportunity to
make, for purposes of this section, any election which would be
allowable during a period described in subsection (b)(1)(A).’’.
(d) APPLICABILITY
TO
EMPLOYEES
UNDER
CSRS.—Section
8351(b) of title 5, United States Code, is amended by adding at
the end the following:
‘‘(11) In applying section 8432b to an employee contributing
to the Thrift Savings Fund after being restored to or reemployed
in a position subject to this subchapter, pursuant to chapter 43
of title 38—
‘‘(A) any reference in such section to contributions under
section 8432(a) shall be considered a reference to employee
contributions under this section;
‘‘(B) the contribution rate under section 8432b(b)(2)(A) shall
be the maximum percentage allowable under subsection (b)(2)
of this section; and
‘‘(C) subsections (c) and (d) of section 8432b shall be dis-
regarded.’’.
(e) EFFECTIVE DATE; APPLICABILITY.—This section and the
amendments made by this section—
(1) shall take effect on the date of enactment of this Act;
and
(2) shall apply to any employee whose release from military
service, discharge from hospitalization, or other similar event
making the individual eligible to seek restoration or reemploy-
ment under chapter 43 of title 38, United States Code, occurs
on or after August 2, 1990.
H. R. 995—25
(f) RULES FOR APPLYING AMENDMENTS TO EMPLOYEES RESTORED
OR REEMPLOYED BEFORE EFFECTIVE DATE.—In the case of any
employee (described in subsection (e)(2)) who is reemployed or
restored (in the circumstances described in section 8432b(a) of title
5, United States Code, as amended by this section) before the
date of enactment of this Act, the amendments made by this section
shall apply to such employee, in accordance with their terms, subject
to the following:
(1) The employee shall be deemed not to have been
reemployed or restored until—
(A) the date of enactment of this Act, or
(B) the first day following such employee’s reemploy-
ment or restoration on which such employee is or was
eligible to make an election relating to contributions to
the Thrift Savings Fund,
whichever occurs or occurred first.
(2) If the employee changed agencies during the period
between the date of actual reemployment or restoration and
the date of enactment of this Act, the employing agency as
of such date of enactment shall be considered the reemploying
or restoring agency.
(3)(A) For purposes of any computation under section 8432b
of such title, pay shall be determined in accordance with sub-
section (e) of such section, except that, with respect to the
period described in subparagraph (B), actual pay attributable
to such period shall be used.
(B) The period described in this subparagraph is the period
beginning on the first day of the first applicable pay period
beginning on or after the date of the employee’s actual
reemployment or restoration and ending on the day before
the date determined under paragraph (1).
(4) Deem section 8432b(b)(2)(A) of such title to be amended
by striking ‘‘ending on the day before the date of restoration
or reemployment (as applicable)’’ and inserting ‘‘ending on the
date determined under section 4(f)(1) of the Uniformed Services
Employment and Reemployment Rights Act of 1994’’.
SEC. 5. REVISION OF FEDERAL CIVIL SERVICE RETIREMENT BENEFIT
PROGRAM FOR RESERVISTS.
(a) CREDITABLE
MILITARY
SERVICE
UNDER
CSRS.—Section
8331(13) of title 5, United States Code, is amended in the flush
matter by inserting ‘‘or full-time National Guard duty (as such
term is defined in section 101(d) of title 10) if such service interrupts
creditable civilian service under this subchapter and is followed
by reemployment in accordance with chapter 43 of title 38 that
occurs on or after August 1, 1990’’ before the semicolon.
(b) PAY DEDUCTIONS FOR MILITARY SERVICE UNDER CSRS.—
Section 8334(j) of such title is amended—
(1) in paragraph (1)—
(A) by striking ‘‘Each employee’’ and inserting ‘‘(A)
Except as provided in subparagraph (B), each employee’’;
and
(B) by adding at the end the following:
‘‘(B) In any case where military service interrupts creditable
civilian service under this subchapter and reemployment pursu-
ant to chapter 43 of title 38 occurs on or after August 1,
1990, the deposit payable under this paragraph may not exceed
H. R. 995—26
the amount that would have been deducted and withheld under
subsection (a)(1) from basic pay during civilian service if the
employee had not performed the period of military service.’’;
and
(2) in paragraph (2), immediately before the comma at
the end of subparagraph (B), by inserting ‘‘following the period
of military service for which such deposit is due’’.
(c) CREDITABLE
MILITARY
SERVICE
UNDER
FERS.—Section
8401(31) of such title is amended in the flush matter by inserting
‘‘or full-time National Guard duty (as such term is defined in
section 101(d) of title 10) if such service interrupts creditable civilian
service under this subchapter and is followed by reemployment
in accordance with chapter 43 of title 38 that occurs on or after
August 1, 1990’’ before the semicolon.
(d) PAY DEDUCTIONS FOR MILITARY SERVICE UNDER FERS.—
Section 8422(e) of such title is amended—
(1) in paragraph (1)—
(A) by striking ‘‘Each employee’’ and inserting ‘‘(A)
Except as provided in subparagraph (B), each employee’’;
and
(B) by adding at the end the following:
‘‘(B) In any case where military service interrupts creditable
civilian service under this subchapter and reemployment pursu-
ant to chapter 43 of title 38 occurs on or after August 1,
1990, the deposit payable under this paragraph may not exceed
the amount that would have been deducted and withheld under
subsection (a)(1) from basic pay during civilian service if the
employee had not performed the period of military service.’’;
and
(2) in paragraph (2), immediately before the comma at
the end of subparagraph (B), by inserting ‘‘following the period
of military service for which such deposit is due’’.
(e) TECHNICAL AMENDMENTS.—Title 5, United States Code, is
amended as follows:
(1) In section 8401(11), by striking out ‘‘1954’’ in the flush
matter above clause (i) and inserting in lieu thereof ‘‘1986’’.
(2) In section 8422(a)(2)(A)(ii), by striking out ‘‘1954’’ and
inserting in lieu thereof ‘‘1986’’.
(3) In section 8432(d), by striking out ‘‘1954’’ in the first
sentence and inserting in lieu thereof ‘‘1986’’.
(4) In section 8433(i)(4), by striking out ‘‘1954’’ and insert-
ing in lieu thereof ‘‘1986’’.
(5) In section 8440—
(A) by striking out ‘‘1954’’ in subsection (a) and insert-
ing in lieu thereof ‘‘1986’’; and
(B) by striking out ‘‘1954’’ in subsection (c) and insert-
ing in lieu thereof ‘‘1986’’.
SEC. 6. TECHNICAL AMENDMENT.
(a) TECHNICAL AMENDMENT.—Section 9(d) of Public Law 102–
16 (105 Stat. 55) is amended by striking out ‘‘Act’’ the first place
it appears and inserting in lieu thereof ‘‘section’’.
(b) EFFECTIVE DATE.—The amendment made by subsection (a)
shall take effect as if included in Public Law 102–16 to which
such amendment relates.
H. R. 995—27
SEC. 7. INCREASE IN AMOUNT OF LOAN GUARANTY FOR LOANS FOR
THE PURCHASE OR CONSTRUCTION OF HOMES.
Subparagraphs (A)(i)(IV) and (B) of section 3703(a)(1) of title
38, United States Code, are each amended by striking out ‘‘$46,000’’
and inserting in lieu thereof ‘‘$50,750’’.
SEC. 8. TRANSITION RULES AND EFFECTIVE DATES.
(a) REEMPLOYMENT.—(1) Except as otherwise provided in this
Act, the amendments made by this Act shall be effective with
respect to reemployments initiated on or after the first day after
the 60-day period beginning on the date of enactment of this Act.
(2) The provisions of chapter 43 of title 38, United States
Code, in effect on the day before such date of enactment, shall
continue to apply to reemployments initiated before the end of
such 60-day period.
(3) In determining the number of years of service that may
not be exceeded in an employee-employer relationship with respect
to which a person seeks reemployment under chapter 43 of title
38, United States Code, as in effect before or after the date of
enactment of this Act, there shall be included all years of service
without regard to whether the periods of service occurred before
or after such date of enactment unless the period of service is
exempted by the chapter 43 that is applicable, as provided in
paragraphs (1) and (2), to the reemployment concerned.
(4) A person who initiates reemployment under chapter 43
of title 38, United States Code, during or after the 60-day period
beginning on the date of enactment of this Act and whose reemploy-
ment is made in connection with a period of service in the uniformed
services that was initiated before the end of such period shall
be deemed to have satisfied the notification requirement of section
4312(a)(1) of title 38, United States Code, as provided in the amend-
ments made by this Act, if the person complied with any applicable
notice requirement under chapter 43, United States Code, as in
effect on the day before the date of enactment of this Act.
(b) DISCRIMINATION.—The provisions of section 4311 of title
38, United States Code, as provided in the amendments made
by this Act, and the provisions of subchapter III of chapter 43
of such title, as provided in the amendments made by this Act,
that are necessary for the implementation of such section 4311
shall become effective on the date of enactment of this Act.
(c) INSURANCE.—(1) The provisions of section 4316 of title 38,
United States Code, as provided in the amendments made by this
Act, concerning insurance coverage (other than health) shall become
effective with respect to furloughs or leaves of absence initiated
on or after the date of enactment of this Act.
(2) With respect to the provisions of section 4317 of title 38,
United States Code, as provided in the amendments made by this
Act, a person on active duty on the date of enactment of this
Act, or a family member or personal representative of such person,
may, after the date of enactment of this Act, elect to reinstate
or continue a health plan as provided in such section 4317. If
such an election is made, the health plan shall remain in effect
for the remaining portion of the 18-month period that began on
the date of such person’s separation from civilian employment or
the period of the person’s service in the uniformed service, which-
ever is the period of lesser duration.
H. R. 995—28
(d) DISABILITY.—(1) Section 4313(a)(3) of chapter 43 of title
38, United States Code, as provided in the amendments made
by this Act, shall apply to reemployments initiated on or after
August 1, 1990.
(2) Effective as of August 1, 1990, section 4307 of title 38,
United States Code (as in effect on the date of enactment of this
Act), is repealed, and the table of sections at the beginning of
chapter 43 of such title (as in effect on the date of enactment
of this Act) is amended by striking out the item relating to section
4307.
(e) INVESTIGATIONS AND SUBPOENAS.—The provisions of section
4326 of title 38, United States Code, as provided in the amendments
made by this Act, shall become effective on the date of the enact-
ment of this Act and apply to any matter pending with the Secretary
of Labor under section 4305 of title 38, United States Code, as
of that date.
(f) PREVIOUS ACTIONS.—Except as otherwise provided, the
amendments made by this Act do not affect reemployments that
were initiated, rights, benefits, and duties that matured, penalties
that were incurred, and proceedings that begin before the end
of the 60-day period referred to in subsection (a).
(g) RIGHTS AND BENEFITS RELATIVE TO NOTICE OF INTENT NOT
TO RETURN.—Section 4316(b)(2) of title 38, United States Code,
as added by the amendments made by this Act, applies only to
the rights and benefits provided in section 4316(b)(1)(B) and does
not apply to any other right or benefit of a person under chapter
43 of title 38, United States Code. Such section shall apply only
to persons who leave a position of employment for service in the
uniformed services more than 60 days after the date of enactment
of this Act.
(h) EMPLOYER PENSION BENEFIT PLANS.—(1) Nothing in this
Act shall be construed to relieve an employer of an obligation
to provide contributions to a pension plan (or provide pension bene-
fits), or to relieve the obligation of a pension plan to provide pension
benefits, which is required by the provisions of chapter 43 of title
38, United States Code, in effect on the day before this Act takes
effect.
(2) If any employee pension benefit plan is not in compliance
with section 4318 of such title or paragraph (1) of this subsection
on the date of enactment of this Act, such plan shall have two
years to come into compliance with such section and paragraph.
(i) DEFINITION.—For the purposes of this section, the term
‘‘service in the uniformed services’’ shall have the meaning given
H. R. 995—29
such term in section 4303(13) of title 38, United States Code,
as provided in the amendments made by this Act.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.