announce

-CITE-

38 USC CHAPTER 43 - EMPLOYMENT AND REEMPLOYMENT RIGHTS OF

MEMBERS OF THE UNIFORMED SERVICES 01/23/00

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART III - READJUSTMENT AND RELATED BENEFITS

CHAPTER 43 - EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE

UNIFORMED SERVICES

-HEAD-

CHAPTER 43 - EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE

UNIFORMED SERVICES

-MISC1-

SUBCHAPTER I - GENERAL

Sec.

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 service in a uniformed service.

4317. Health plans.

4318. Employee pension benefit plans.

4319. Employment and reemployment rights in foreign countries.

SUBCHAPTER III - PROCEDURES FOR ASSISTANCE, ENFORCEMENT, AND

INVESTIGATION

4321. Assistance in obtaining reemployment or other employment

rights or benefits.

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.

4332. Reports.

4333. Outreach.

-COD-

CODIFICATION

Chapter 43 was amended generally by Pub. L. 103-353, effective

with respect to reemployments initiated on or after the first day

after the 60-day period beginning Oct. 13, 1994, and is shown

herein as having been added by Pub. L. 103-353 without reference to

prior amendments. Former chapter 43 ''Veterans' Reemployment

Rights'' (Sec. 4301 to 4307), as in effect on the day before Oct.

13, 1994, set out below, continues to apply to reemployments

initiated before the end of the 60-day period beginning Oct. 13,

1994, see section 8 of Pub. L. 103-353, set out as an Effective

Date note under section 4301 of this title. Former chapter 43, as

so in effect, read as follows:

CHAPTER 43 - VETERANS' REEMPLOYMENT RIGHTS

Sec. 4301. Right to reemployment of inducted persons; benefits

protected

(a) In the case of any person who is inducted into the Armed

Forces of the United States under the Military Selective Service

Act (or under any prior or subsequent corresponding law) for

training and service and who leaves a position (other than a

temporary position) in the employ of any employer in order to

perform such training and service, and (1) receives a certificate

described in section 9(a) of the Military Selective Service Act

(relating to the satisfactory completion of military service), and

(2) makes application for reemployment within ninety days after

such person is relieved from such training and service or from

hospitalization continuing after discharge for a period of not more

than one year -

(A) if such position was in the employ of the United States

Government, its territories, or possessions, or political

subdivisions thereof, or the District of Columbia, such person

shall -

(i) if still qualified to perform the duties of such position

or able to become requalified with reasonable efforts by the

employer, be restored to such position or to a position of like

seniority, status, and pay; or

(ii) if not qualified to perform the duties of such position

or able to become requalified with reasonable efforts by the

employer, by reason of disability sustained during such

service, but qualified to perform the duties of any other

position in the employ of the employer, be offered employment

and, if such person so requests, be employed in such other

position the duties of which such person is qualified to

perform as will provide such person like seniority, status, and

pay, or the nearest approximation thereof consistent with the

circumstances in such person's case;

(B) if such position was in the employ of a State, or political

subdivision thereof, or a private employer, such person shall -

(i) if still qualified to perform the duties of such position

or able to become requalified with reasonable efforts by the

employer, be restored by such employer or the employer's

successor in interest to such position or to a position of like

seniority, status, and pay; or

(ii) if not qualified to perform the duties of such position

or able to become requalified with reasonable efforts by the

employer, by reason of disability sustained during such

service, but qualified to perform the duties of any other

position in the employ of such employer or the employer's

successor in interest, be offered employment and, if such

person so requests, be employed by such employer or the

employer's successor in interest in such other position the

duties of which such person is qualified to perform as will

provide such person like seniority, status, and pay, or the

nearest approximation thereof consistent with the circumstances

in such person's case,

unless the employer's circumstances have so changed as to make it

impossible or unreasonable to do so. Nothing in this chapter

shall excuse noncompliance with any statute or ordinance of a

State or political subdivision thereof establishing greater or

additional rights or protections than the rights and protections

established pursuant to this chapter.

(b)(1)(A) Any person who is restored to or employed in a position

in accordance with the provisions of clause (A) or (B) of

subsection (a) of this section shall be considered as having been

on furlough or leave of absence during such person's period of

training and service in the Armed Forces, shall be so restored or

reemployed without loss of seniority, shall be entitled to

participate in insurance or other benefits offered by the employer

pursuant to established rules and practices relating to employees

on furlough or leave of absence in effect with the employer at the

time such person was inducted into such forces, and shall not be

discharged from such position without cause within one year after

such restoration or reemployment.

(B) In the case of employer-offered health insurance, an

exclusion or waiting period may not be imposed in connection with

coverage of a health or physical condition of a person entitled to

participate in that insurance under subparagraph (A), or a health

or physical condition of any other person who is covered by the

insurance by reason of the coverage of such person, if -

(i) the condition arose before or during that person's period

of training or service in the Armed Forces;

(ii) an exclusion or waiting period would not have been imposed

for the condition during a period of coverage resulting from

participation by such person in the insurance; and

(iii) the condition of such person has not been determined by

the Secretary to be service-connected.

(2) It is hereby declared to be the sense of the Congress that

any person who is restored to or employed in a position in

accordance with the provisions of clause (A) or (B) of subsection

(a) of this section should be so restored or reemployed in such

manner as to give such person such status in the person's

employment as the person would have enjoyed if such person had

continued in such employment continuously from the time of such

person's entering the Armed Forces until the time of such person's

restoration to such employment, or reemployment.

(3) Any person who seeks or holds a position described in clause

(A) or (B) of subsection (a) of this section shall not be denied

hiring, retention in employment, or any promotion or other incident

or advantage of employment because of any obligation as a member of

a Reserve component of the Armed Forces.

to persons who left the employ of a State or political subdivision

thereof and were inducted into the Armed Forces shall not diminish

any rights such persons may have pursuant to any statute or

ordinance of such State or political subdivision establishing

greater or additional rights or protections.

(Added Pub. L. 93-508, title IV, Sec. 404(a), Dec. 3, 1974, 88

Stat. 1594, Sec. 2021; amended Pub. L. 94-502, title VI, Sec.

608(1), (2), Oct. 15, 1976, 90 Stat. 2405; Pub. L. 99-576, title

III, Sec. 331, Oct. 28, 1986, 100 Stat. 3279; Pub. L. 102-12, Sec.

5(a), Mar. 18, 1991, 105 Stat. 36; Pub. L. 102-25, title III, Sec.

340(a), Apr. 6, 1991, 105 Stat. 92; renumbered Sec. 4301, Pub. L.

102-568, title V, Sec. 506(a), Oct. 29, 1992, 106 Stat. 4340.)

-MISC3-

REFERENCES IN TEXT

The Military Selective Service Act, referred to in subsec. (a),

is act June 24, 1948, ch. 625, 62 Stat. 604, as amended, which is

classified principally to section 451 et seq. of Title 50,

Appendix, War and National Defense. Section 9(a) of such Act is

classified to section 459(a) of Title 50, Appendix. For complete

classification of this Act to the Code, see note set out under

section 451 of Title 50, Appendix, and Tables.

Sec. 4302. Enforcement procedures

If any employer, who is a private employer or a State or

political subdivision thereof, fails or refuses to comply with the

provisions of section 4321(a) (4301(a)), (b)(1), or (b)(3), or 4324

(4304) of this title, the district court of the United States for

any district in which such private employer maintains a place of

business, or in which such State or political subdivision thereof

exercises authority or carries out its functions, shall have the

power, upon the filing of a motion, petition, or other appropriate

pleading by the person entitled to the benefits of such provisions,

specifically to require such employer to comply with such

provisions and to compensate such person for any loss of wages or

benefits suffered by reason of such employer's unlawful action.

Any such compensation shall be in addition to and shall not be

deemed to diminish any of the benefits provided for in such

provisions. Upon application to the United States attorney or

comparable official for any district in which such private employer

maintains a place of business, or in which such State or political

subdivision thereof exercises authority or carries out its

functions, by any person claiming to be entitled to the benefits

provided for in such provisions, such United States attorney or

official, if reasonably satisfied that the person so applying is

entitled to such benefits, shall appear and act as attorney for

such person in the amicable adjustment of the claim or in the

filing of any motion, petition, or other appropriate pleading and

the prosecution thereof specifically to require such employer to

comply with such provisions. No fees or court costs shall be taxed

against any person who may apply for such benefits. In any such

action only the employer shall be deemed a necessary party

respondent. No State statute of limitations shall apply to any

proceedings under this chapter.

(Added Pub. L. 93-508, title IV, Sec. 404(a), Dec. 3, 1974, 88

Stat. 1596, Sec. 2022; amended Pub. L. 97-295, Sec. 4(71), Oct. 12,

1982, 96 Stat. 1310; Pub. L. 98-620, title IV, Sec. 402(36), Nov.

8, 1984, 98 Stat. 3360; renumbered Sec. 4302 and amended Pub. L.

102-568, title V, Sec. 506(a), (c)(1), Oct. 29, 1992, 106 Stat.

4340, 4341.)

RETURN TO TOP

Sec. 4303. Reemployment by the United States, territory,

possession, or the District of Columbia

(a) Any person who is entitled to be restored to or employed in a

position in accordance with the provisions of clause (A) of section

4321(a) (4301(a)) and who was employed, immediately before entering

the Armed Forces, by any agency in the executive branch of the

Government or by any territory or possession, or political

subdivision thereof, or by the District of Columbia, shall be so

restored or reemployed by such agency or the successor to its

functions, or by such territory, possession, political subdivision,

or the District of Columbia. In any case in which, upon appeal of

any person who was employed, immediately before entering the Armed

Forces, by any agency in the executive branch of the Government or

by the District of Columbia, the Director of the Office of

Personnel Management finds that -

(1) such agency is no longer in existence and its functions

have not been transferred to any other agency; or

(2) for any reason it is not feasible for such person to be

restored to employment by such agency or by the District of

Columbia;

the Director shall determine whether or not there is a position in

any other agency in the executive branch of the Government or in

the government of the District of Columbia for which such person is

qualified and which is either vacant or held by a person having a

temporary appointment thereto. In any case in which the Director

determines that there is such a position, such person shall be

offered employment and, if such person so requests, be employed in

such position by the agency in which such position exists or by the

government of the District of Columbia, as the case may be. The

Director is authorized and directed to issue regulations giving

full force and effect to the provisions of this section insofar as

they relate to persons entitled to be restored to or employed in

positions in the executive branch of the Government or in the

government of the District of Columbia, including persons entitled

to be reemployed under the last sentence of subsection (b) of this

section. The agencies in the executive branch of the Government

and the government of the District of Columbia shall comply with

such rules, regulations, and orders issued by the Director pursuant

to this subsection. The Director is authorized and directed when

the Director finds, upon appeal of the person concerned, that any

agency in the executive branch of the Government or the government

of the District of Columbia has failed or refuses to comply with

the provisions of this section, to issue an order specifically

requiring such agency or the government of the District of Columbia

to comply with such provisions and to compensate such person for

any loss of salary or wages suffered by reason of failure to comply

with such provisions, less any amounts received by such person

through other employment, unemployment compensation, or

readjustment allowances. Any such compensation ordered to be paid

by the Director shall be in addition to and shall not be deemed to

diminish any of the benefits provided for in such provisions, and

shall be paid by the head of the agency concerned or by the

government of the District of Columbia out of appropriations

currently available for salary and expenses of such agency or

government, and such appropriations shall be available for such

purpose. As used in this chapter, the term ''agency in the

executive branch of the Government'' means any department,

independent establishment, agency, or corporation in the executive

branch of the United States Government (including the United States

Postal Service and the Postal Rate Commission).

(b) Any person who is entitled to be restored to or employed in a

position in accordance with the provisions of clause (A) of section

4321(a) (4301(a)) of this title, and who was employed, immediately

before entering the Armed Forces, in the legislative branch of the

Government, shall be so restored or employed by the officer who

appointed such person to the position which such person held

immediately before entering the Armed Forces. In any case in which

it is not possible for any such person to be restored to or

employed in a position in the legislative branch of the Government

and 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, the Director of the Office of

Personnel Management shall, upon appeal of such person, determine

whether or not there is a position in the executive branch of the

Government for which such person is qualified and which is either

vacant or held by a person having a temporary appointment thereto.

In any case in which the Director determines that there is such a

position, such person shall be offered employment and, if such

person so requests, be employed in such position by the agency in

which such position exists.

position in accordance with the provisions of clause (A) of section

4321(a) (4301(a)) of this title and who was employed, immediately

before entering the Armed Forces, in the judicial branch of the

Government, shall be so restored or reemployed by the officer who

appointed such person to the position which such person held

immediately before entering the Armed Forces.

(Added Pub. L. 93-508, title IV, Sec. 404(a), Dec. 3, 1974, 88

Stat. 1596, Sec. 2023; amended Pub. L. 97-295, Sec. 4(72), Oct. 12,

1982, 96 Stat. 1310; renumbered Sec. 4303 and amended Pub. L.

102-568, title V, Sec. 506(a), (c)(2), Oct. 29, 1992, 106 Stat.

4340, 4341.)

RETURN TO TOP

Sec. 4304. Rights of persons who enlist or are called to active

duty; Reserves

(a) Any person who, after entering the employment on the basis of

which such person claims restoration or reemployment, enlists in

the Armed Forces of the United States (other than in a Reserve

component) shall be entitled upon release from service under

honorable conditions to all of the reemployment rights and other

benefits provided for by this chapter in the case of persons

inducted under the provisions of the Military Selective Service Act

(or prior or subsequent legislation providing for the involuntary

induction of persons into the Armed Forces), if the total of such

person's service performed between June 24, 1948, and August 1,

1961, did not exceed four years, and the total of any service,

additional or otherwise, performed by such person after August 1,

1961, does not exceed five years, and if the service in excess of

four years after August 1, 1961, is at the request and for the

convenience of the Federal Government (plus in each case any period

of additional service imposed pursuant to law).

(b)(1) Any person who, after entering the employment on the basis

of which such person claims restoration or reemployment, enters

upon active duty (other than for the purpose of determining

physical fitness and other than for training), whether or not

voluntarily, in the Armed Forces of the United States or the Public

Health Service in response to an order or call to active duty

shall, upon such person's relief from active duty under honorable

conditions, be entitled to all of the reemployment rights and

benefits provided for by this chapter in the case of persons

inducted under the provisions of the Military Selective Service Act

(or prior or subsequent legislation providing for the involuntary

induction of persons into the Armed Forces), if the total of such

active duty performed between June 24, 1948, and August 1, 1961,

did not exceed four years, and the total of any such active duty,

additional or otherwise, performed after August 1, 1961, does not

exceed four years (plus in each case any additional period in which

such person was unable to obtain orders relieving such person from

active duty).

(2) Any member of a Reserve component of the Armed Forces of the

United States who voluntarily or involuntarily enters upon active

duty (other than for the purpose of determining physical fitness

and other than for training) or whose active duty is voluntarily or

involuntarily extended during a period when the President is

authorized to order units of the Ready Reserve or members of a

Reserve component to active duty shall have the service limitation

governing eligibility for reemployment rights under subsection

(b)(1) of this section extended by such member's period of such

active duty, but not to exceed that period of active duty to which

the President is authorized to order units of the Ready Reserve or

members of a Reserve component. With respect to a member who

voluntarily enters upon active duty or whose active duty is

voluntarily extended, the provisions of this subsection shall apply

only when such additional active duty is at the request and for the

convenience of the Federal Government.

United States who is ordered to an initial period of active duty

for training of not less than twelve consecutive weeks shall, upon

application for reemployment within thirty-one days after (1) such

member's release from such active duty for training after

satisfactory service, or (2) such member's discharge from

hospitalization incident to such active duty for training, or one

year after such member's scheduled release from such training,

whichever is earlier, be entitled to all reemployment rights and

benefits provided by this chapter for persons inducted under the

provisions of the Military Selective Service Act (or prior or

subsequent legislation providing for the involuntary induction of

persons into the Armed Forces), except that (A) any person restored

to or employed in a position in accordance with the provisions of

this subsection shall not be discharged from such position without

cause within six months after that restoration, and (B) no

reemployment rights granted by this subsection shall entitle any

person to retention, preference, or displacement rights over any

veteran with a superior claim under those provisions of title 5

relating to veterans and other preference eligibles.

(d) Any employee not covered by subsection (c) of this section

who holds a position described in clause (A) or (B) of section

4321(a) (4301(a)) shall upon request be granted a leave of absence

by such person's employer for the period required to perform active

duty for training or inactive duty training in the Armed Forces of

the United States. Upon such employee's release from a period of

such active duty for training or inactive duty training, or upon

such employee's discharge from hospitalization incident to that

training, such employee shall be permitted to return to such

employee's position with such seniority, status, pay, and vacation

as such employee would have had if such employee had not been

absent for such purposes. Such employee shall report for work at

the beginning of the next regularly scheduled working period after

expiration of the last calendar day necessary to travel from the

place of training to the place of employment following such

employee's release, or within a reasonable time thereafter if

delayed return is due to factors beyond the employee's control.

Failure to report for work at such next regularly scheduled working

period shall make the employee subject to the conduct rules of the

employer pertaining to explanations and discipline with respect to

absence from scheduled work. If such an employee is hospitalized

incident to active duty for training or inactive duty training,

such employee shall be required to report for work at the beginning

of the next regularly scheduled work period after expiration of the

time necessary to travel from the place of discharge from

hospitalization to the place of employment, or within a reasonable

time thereafter if delayed return is due to factors beyond the

employee's control, or within one year after such employee's

release from active duty for training or inactive duty training,

whichever is earlier. If an employee covered by this subsection is

not qualified to perform the duties of such employee's position by

reason of disability sustained during active duty for training or

inactive duty training, but is qualified to perform the duties of

any other position in the employ of the employer or such employer's

successor in interest, such employee shall be offered employment

and, if such person so requests, be employed by that employer or

such employer's successor in interest in such other position the

duties of which such employee is qualified to perform as will

provide such employee like seniority, status, and pay, or the

nearest approximation thereof consistent with the circumstances in

such employee's case.

(e) Any employee not covered by subsection (c) of this section

who holds a position described in clause (A) or (B) of section

4321(a) (4301(a)) shall be considered as having been on leave of

absence during the period required to report for the purpose of

being inducted into, entering, or determining, by a preinduction or

other examination, physical fitness to enter the Armed Forces. Upon

such employee's rejection, upon completion of such employee's

preinduction or other examination, or upon such employee's

discharge from hospitalization incident to such rejection or

examination, such employee shall be permitted to return to such

employee's position in accordance with the provisions of subsection

(d) of this section.

(f) For the purposes of subsections (c) and (d) of this section,

full-time training or other full-time duty performed by a member of

the National Guard under section 316, 502, 503, 504, or 505 of

title 32 is considered active duty for training. For the purposes

of subsection (d) of this section, inactive duty training performed

by that member under section 502 of title 32 or section 206, 301,

309, 402, or 1002 of title 37 is considered inactive duty training.

(g) Any member of a Reserve component of the Armed Forces of the

United States who is ordered to active duty (other than for

training) under section 673b of title 10, United States Code,

whether or not voluntarily, shall be entitled to all reemployment

rights and benefits provided under subsection (c) of this section

for persons ordered to an initial period of active duty for

training of not less than twelve consecutive weeks; and shall have

the service limitation governing eligibility for reemployment

rights under subsections (a) and (b)(1) of this section extended by

the period of such active duty, including any period of extension

of active duty under section 673b of title 10.

(Added Pub. L. 93-508, title IV, Sec. 404(a), Dec. 3, 1974, 88

Stat. 1598, Sec. 2024; amended Pub. L. 94-286, Sec. 2, May 14,

1976, 90 Stat. 518; Pub. L. 94-502, title VI, Sec. 608(3), Oct. 15,

1976, 90 Stat. 2405; Pub. L. 96-466, title V, Sec. 511, Oct. 17,

1980, 94 Stat. 2207; Pub. L. 99-576, title VII, Sec. 701(60), Oct.

28, 1986, 100 Stat. 3296; Pub. L. 102-12, Sec. 8(a)(1), (b)(1),

Mar. 18, 1991, 105 Stat. 38; renumbered Sec. 4304 and amended Pub.

L. 102-568, title V, Sec. 506(a), (c)(3), Oct. 29, 1992, 106 Stat.

4340, 4341.)

REFERENCES IN TEXT

The Military Selective Service Act, referred to in subsecs. (a),

(b), and (c), is act June 24, 1948, ch. 625, 62 Stat. 604, as

amended, which is classified principally to section 451 et seq. of

Title 50, Appendix, War and National Defense. For complete

classification of this Act to the Code, see note set out under

section 451 of Title 50, Appendix, and Tables.

Section 309 of title 37, referred to in subsec. (f), was repealed

with respect to administrative functions performed after Sept. 30,

1980, by Pub. L. 96-107, title IV, Sec. 404(a)(1), (b), Nov. 9,

1979, 93 Stat. 808.

RETURN TO TOP

Sec. 4305. Assistance in obtaining reemployment

The Secretary of Labor, through the Office of Veterans'

Reemployment Rights, shall render aid in the replacement in their

former positions or reemployment of persons who have satisfactorily

completed any period of active duty in the Armed Forces or the

Public Health Service. In rendering such aid, the Secretary shall

use existing Federal and State agencies engaged in similar or

related activities and shall utilize the assistance of volunteers.

(Added Pub. L. 93-508, title IV, Sec. 404(a), Dec. 3, 1974, 88

Stat. 1600, Sec. 2025; renumbered Sec. 4305, Pub. L. 102-568, title

V, Sec. 506(a), Oct. 29, 1992, 106 Stat. 4340.)

Sec. 4306. Prior rights for reemployment

In any case in which two or more persons who are entitled to be

restored to or employed in a position under the provisions of this

chapter or of any other law relating to similar reemployment

benefits left the same position in order to enter the Armed Forces,

the person who left such position first shall have the prior right

to be restored thereto or reemployed on the basis thereof, without

prejudice to the reemployment rights of the other person or persons

to be restored or reemployed.

(Added Pub. L. 93-508, title IV, Sec. 404(a), Dec. 3, 1974, 88

Stat. 1600, Sec. 2026; renumbered Sec. 4306, Pub. L. 102-568, title

V, Sec. 506(a), Oct. 29, 1992, 106 Stat. 4340.)

(Sec. 4307. Repealed. Pub. L. 103-353, Sec. 8(d)(2), Oct. 13, 1994,

108 Stat. 3176, eff. Aug. 1, 1990)

Section, added Pub. L. 102-25, title III, Sec. 339(a), Apr. 6,

1991, 105 Stat. 91, Sec. 2027; renumbered Sec. 4307, Pub. L.

102-568, title V, Sec. 506(a), Oct. 29, 1992, 106 Stat. 4340,

related to qualification for employment position.

PRIOR PROVISIONS

Another prior chapter 43 ''Mustering-Out Payments'', Pub. L.

85-857, Sept. 2, 1958, 72 Stat. 1222, 1223, consisted of sections

2101 to 2105, prior to repeal by Pub. L. 89-50, Sec. 1(a), June 24,

1965, 79 Stat. 173.

AMENDMENTS

1998 - Pub. L. 105-368, title II, Sec. 212(b)(2), Nov. 11, 1998,

112 Stat. 3331, added item 4319.

-SECREF-

CHAPTER REFERRED TO IN OTHER SECTIONS

This chapter is referred to in sections 4102A, 4106, 5303A of

this title; title 2 sections 1302, 1361, 1371, 1434; title 3

sections 402, 435; title 5 sections 1204, 8331, 8334, 8351, 8401,

8422, 8432b; title 10 section 706; title 26 sections 414, 3121;

title 28 section 631; title 42 section 410; title 46 App. section

1132; title 50 App. section 593.

-CITE-

38 USC SUBCHAPTER I - GENERAL 01/23/00

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART III - READJUSTMENT AND RELATED BENEFITS

CHAPTER 43 - EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE

UNIFORMED SERVICES

SUBCHAPTER I - GENERAL

-HEAD-

SUBCHAPTER I - GENERAL

-CITE-

38 USC Sec. 4301 01/23/00

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART III - READJUSTMENT AND RELATED BENEFITS

CHAPTER 43 - EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE

UNIFORMED SERVICES

SUBCHAPTER I - GENERAL

-HEAD-

Sec. 4301. Purposes; sense of Congress

RETURN TO TOP

-STATUTE-

(a) The purposes of this chapter are -

(1) to encourage noncareer service in the uniformed services 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; 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.

-SOURCE-

(Added Pub. L. 103-353, Sec. 2(a), Oct. 13, 1994, 108 Stat. 3150;

amended Pub. L. 104-275, title III, Sec. 311(1), Oct. 9, 1996, 110

Stat. 3333.)

-MISC1-

PRIOR PROVISIONS

A prior section 4301, applicable to reemployments initiated

before the end of the 60-day period beginning Oct. 13, 1994, is

contained in chapter 43 set out as a note preceding this

subchapter.

Another prior section 4301 was renumbered section 7601 of this

title.

AMENDMENTS

1996 - Subsec. (a)(2). Pub. L. 104-275 struck out ''under

honorable conditions'' after ''upon their completion of such

service''.

EFFECTIVE DATE OF 1996 AMENDMENT

Section 313 of Pub. L. 104-275 provided that:

''(a) In General. - Except as provided in subsection (b), the

amendments made by this subtitle (subtitle B (Sec. 311-313) of

title III of Pub. L. 104-275, amending this section, sections 4303,

4311 to 4313, 4316 to 4318, and 4322 to 4326 of this title, and

provisions set out as a note below) shall take effect as of October

13, 1994.

''(b) Reorganized Title 10 References. - The amendments made by

clause (i), and subclauses (I), (III), and (IV) of clause (ii), of

section 311(4)(B) (amending section 4312 of this title) shall take

effect as of December 1, 1994.''

EFFECTIVE DATE

Section 8 of Pub. L. 103-353, as amended by Pub. L. 104-275,

title III, Sec. 312, Oct. 9, 1996, 110 Stat. 3336, provided that:

''(a) Reemployment. - (1) Except as otherwise provided in this

Act (see Short Title of 1994 Amendment note set out under section

101 of this title), 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 (Oct. 13, 1994).

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

Code, in effect on the day before such date of enactment (set out

as a note preceding this subchapter), 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. Any service

begun up to 60 days after the date of the enactment of this Act,

which is served up to 60 days after the date of the enactment of

this Act pursuant to orders issued under section 502(f) of title

32, United States Code, shall be considered under chapter 43 of

title 38, United States Code, as in effect on the day before such

date of enactment. Any service pursuant to orders issued under

such section 502(f) served after 60 days after the date of the

enactment of this Act, regardless of when begun, shall be

considered under the amendments made by this Act.

''(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

reemployment is made in connection with a period of service in the

uniformed services that was initiated before the end of such 60-day

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 amendments 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 (Oct. 13, 1994).

''(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 (Oct. 13, 1994).

''(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 (Oct. 13, 1994).

''(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 serving a period of service in the uniformed services 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, whichever is the period of lesser duration.

''(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 (Oct. 13, 1994)), 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

enactment of this Act (Oct. 13, 1994) and apply to any matter

pending with the Secretary of Labor under section 4305 of title 38,

United States Code (set out in a note preceding this subchapter),

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 (Oct. 13, 1994).

''(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

benefits), 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 (probably means the day before Oct.

13, 1994).

''(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 (Oct. 13, 1994), 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

such term in section 4303(13) of title 38, United States Code, as

provided in the amendments made by this Act.''

RETURN TO TOP

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 46 App. section 1132.

-CITE-

38 USC Sec. 4302 01/23/00

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART III - READJUSTMENT AND RELATED BENEFITS

CHAPTER 43 - EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE

UNIFORMED SERVICES

SUBCHAPTER I - GENERAL

-HEAD-

Sec. 4302. Relation to other law and plans or agreements

RETURN TO TOP

-STATUTE-

(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.

-SOURCE-

(Added Pub. L. 103-353, Sec. 2(a), Oct. 13, 1994, 108 Stat. 3150.)

-MISC1-

PRIOR PROVISIONS

A prior section 4302, applicable to reemployments initiated

before the end of the 60-day period beginning Oct. 13, 1994, is

contained in chapter 43 set out as a note preceding this

subchapter.

Another prior section 4302 was renumbered section 7602 of this

title.

EFFECTIVE DATE

Section effective with respect to reemployments initiated on or

after the first day after the 60-day period beginning Oct. 13,

1994, with transition rules, see section 8 of Pub. L. 103-353, set

out as a note under section 4301 of this title.

RETURN TO TOP

-CITE-

38 USC Sec. 4303 01/23/00

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART III - READJUSTMENT AND RELATED BENEFITS

CHAPTER 43 - EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE

UNIFORMED SERVICES

SUBCHAPTER I - GENERAL

-HEAD-

Sec. 4303. Definitions

RETURN TO TOP

-STATUTE-

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 employment'', or

''rights and benefits'' means any advantage, profit, privilege,

gain, status, 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 unemployment

benefits, vacations, and the opportunity to select work hours or

location of employment.

(3) The term ''employee'' means any person employed by an

employer. Such term includes any person who is a citizen,

national, or permanent resident alien of the United States

employed in a workplace in a foreign country by an employer that

is an entity incorporated or otherwise organized in the United

States or that is controlled by an entity organized in the United

States, within the meaning of section 4319(c) of this title.

(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 -

(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 subparagraph;

and

(v) a person, institution, organization, or other entity that

has denied initial employment in violation of section 4311.

(B) In the case of a National Guard technician employed under

section 709 of title 32, the term ''employer'' means the adjutant

general of the State in which the technician is employed.

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 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 Commonwealth 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 difficulty 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;

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

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 national emergency.

-SOURCE-

(Added Pub. L. 103-353, Sec. 2(a), Oct. 13, 1994, 108 Stat. 3150;

amended Pub. L. 104-275, title III, Sec. 311(2), Oct. 9, 1996, 110

Stat. 3334; Pub. L. 105-368, title II, Sec. 212(a), Nov. 11, 1998,

112 Stat. 3331.)

-MISC1-

PRIOR PROVISIONS

A prior section 4303, applicable to reemployments initiated

before the end of the 60-day period beginning Oct. 13, 1994, is

contained in chapter 43 set out as a note preceding this

subchapter.

Another prior section 4303 was renumbered section 7603 of this