IIA
103D CONGRESS
1ST SESSION
H. R. 995
IN THE SENATE OF THE UNITED STATES
MAY 5 (legislative day, APRIL 19), 1993
Received; read twice and referred to the Committee on Veterans’ Affairs
AN ACT
To amend title 38, United States Code, to improve reemploy-
ment rights and benefits of veterans and other benefits
of employment of certain members of the uniformed serv-
ices, and for other purposes.
Be it enacted by the Senate and House of Representa-
tives 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 1993’’.
SEC. 2. REVISION OF CHAPTER 43 OF TITLE 38.
(a) RESTATEMENT AND IMPROVEMENT OF EMPLOY-
MENT 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—PURPOSES, RELATION TO OTHER LAW, AND
DEFINITIONS
‘‘Sec.
‘‘4301. Purposes; sense of Congress.
‘‘4302. Relation to other law and plans or agreements.
‘‘4303. Definitions.
‘‘SUBCHAPTER II—EMPLOYMENT AND REEMPLOYMENT RIGHTS
AND LIMITATIONS; PROHIBITIONS
‘‘4311. Discrimination against persons who serve in the uniformed services and
acts of reprisal prohibited.
‘‘4312. Reemployment rights of persons who serve in the uniformed services.
‘‘4313. Reemployment positions.
‘‘4314. Reemployment by the Federal Government.
‘‘4315. Rights, benefits, and obligations of persons absent from employment for
service in a uniformed service.
‘‘4316. Employee pension benefit plans.
‘‘4317. Character of service.
‘‘SUBCHAPTER III—PROCEDURES FOR ASSISTANCE,
ENFORCEMENT, AND INVESTIGATIONS
‘‘4321. Assistance in obtaining employment or reemployment.
‘‘4322. Enforcement of employment or reemployment rights.
‘‘4323. Conduct of investigation; subpoenas.
‘‘SUBCHAPTER IV—MISCELLANEOUS PROVISIONS
‘‘4331. Regulations.
‘‘4332. Reports.
‘‘4333. Outreach.
‘‘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,
agreements, and plans, and other matters that reduce,
limit, or eliminate in any manner rights or benefits pro-
vided by this chapter, including the establishment of addi-
tional prerequisites to the exercise of such rights.
‘‘§ 4303. Definitions
‘‘For the purposes of this chapter:
‘‘(1) The term ‘Attorney General’ means the
Attorney General 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 employ-
ment’, or ‘rights and benefits’ means any aspect of
the employment 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 includes, but is not limited to, pension plans
and payments, insurance coverage and awards, em-
ployee stock ownership plans, bonuses, severance
pay, supplemental unemployment benefits, vacations,
and selection of work hours or locations of employ-
ment.
‘‘(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 con-
trol over employment opportunities, including—
‘‘(i) a person, institution, organization, or
other entity to whom the employer has dele-
gated 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 re-
ferred 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 techni-
cian 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 employ-
ees, an employee pension benefit plan described in
section 3(2) of the Employee Retirement Income Se-
curity 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
4316.
‘‘(5) The term ‘Federal Government’ includes
the executive branch, the judicial branch, and the
legislative branch, with the executive branch includ-
ing—
‘‘(A) 
any 
department, 
administration,
agency, commission, board, or independent es-
tablishment in, or other part of, the executive
branch (including any executive agency as de-
fined 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
uniformed service in which such service is to be per-
formed.
‘‘(8) The term ‘other than a temporary posi-
tion’ means a position of employment as to which
there is a reasonable expectation that it will continue
indefinitely.
‘‘(9) The term ‘qualified’ means having the
ability to perform the essential tasks of an employ-
ment 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
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 employ-
ment which accrue with, or are determined by, lon-
gevity 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 per-
form any such duty.
‘‘(14) The term ‘State’ means each of the sev-
eral States of the United States, the District of Co-
lumbia, the Commonwealth of Puerto Rico, Guam,
the Virgin Islands, and other territories of the Unit-
ed States (including the agencies and political sub-
divisions thereof).
‘‘(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 need-
ed 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 re-
sources, 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
facilities; and
‘‘(iv) the type of operation or operations of
the employer, including the composition, struc-
ture, and functions of the work force of such
employer; the geographic separateness, adminis-
trative, or fiscal relationship of the facility or
facilities 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 emer-
gency.
‘‘SUBCHAPTER II—EMPLOYMENT AND REEM-
PLOYMENT 
RIGHTS 
AND 
LIMITATIONS;
PROHIBITIONS
‘‘§ 4311. Discrimination against persons who serve in
the uniformed services and acts of re-
prisal 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, reemploy-
ment, retention in employment, promotion, or any benefit
of employment by an employer on the basis of that mem-
bership, application for membership, service, application
for service, or obligation.
‘‘(b) An employer shall be considered to have denied
a person initial employment, reemployment, retention in
employment, promotion, or a benefit of employment in vio-
lation of this section if the person’s membership, applica-
tion for membership, service, application for service, or ob-
ligation for service in the uniformed services is a motivat-
ing 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 mem-
bership, 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 ac-
tion 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 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
section 4317, any person who is absent from a position
of employment (other than a temporary position) by rea-
son of service in the uniformed services shall be entitled
to the reemployment rights and benefits and other employ-
ment benefits of this chapter if—
‘‘(1) the person (or an appropriate officer of the
uniformed service in which such service is per-
formed) has given advance written or verbal notice
of such service to such person’s employer;
‘‘(2) except as provided in subsection (c), 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 serv-
ices does not exceed five years; and
‘‘(3) except as provided in subsection (f), the
person reports to, or submits an application for re-
employment 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 de-
termination of military necessity for the purposes of this
subsection shall be made pursuant to regulations pre-
scribed by the Secretary of Defense and shall not be sub-
ject 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—
the person and the provision of any rights or benefits af-
forded the person under this chapter.
‘‘(4) It shall be unlawful for an employer to delay
or attempt to defeat a reemployment obligation by de-
manding documentation that does not then exist or is not
then readily available.
‘‘(h) The right of a person to reemployment under
this section shall not entitle such person to retention, pref-
erence, or displacement rights over any person with a su-
perior 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 na-
ture of such training or service (including voluntary serv-
ice) in the uniformed services shall not be a basis for deny-
ing protection 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 re-
‘‘(c) If the employer of a person described in sub-
section (a) was, at the time such person entered service
in the uniformed services, a part of the judicial branch
or the legislative 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
offered employment in an alternative position in the execu-
tive 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 sec-
tion 709 of title 32, and such person is otherwise eligible
to acquire a status for transfer to a position in the com-
petitive 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 employment in an alternative position in the