-CITE-

38 USC CHAPTER 43 - EMPLOYMENT AND REEMPLOYMENT RIGHTS OF

MEMBERS OF THE UNIFORMED SERVICES 01/06/03

-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

This chapter was originally added by Pub. L. 93-508, title IV,

Sec. 404(a), Dec. 3, 1974, 88 Stat. 1594, and amended by Pub. L.

94-286, May 14, 1976, 90 Stat. 517; Pub. L. 94-502, Oct. 15, 1976,

90 Stat. 2383; Pub. L. 96-466, Oct. 17, 1980, 94 Stat. 2171; Pub.

L. 97-295, Oct. 12, 1982, 96 Stat. 1287; Pub. L. 98-620, Nov. 8,

1984, 98 Stat. 3335; Pub. L. 99-576, Oct. 28, 1986, 100 Stat. 3248;

Pub. L. 102-12, Mar. 18, 1991, 105 Stat. 34; Pub. L. 102-25, Apr.

6, 1991, 105 Stat. 75; Pub. L. 102-568, Oct. 29, 1992, 106 Stat.

4320. This chapter is shown here, however, as having been added by

Pub. L. 103-353, Sec. 2(a), Oct. 13, 1994, 108 Stat. 3150, without

reference to those intervening amendments because of the general

amendment of this chapter by Pub. L. 103-353.

A 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.

-MISC2-

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 sections 300hh-11, 410; title 46

App. section 1132; title 50 App. section 593.

-End-

-CITE-

38 USC SUBCHAPTER I - GENERAL 01/06/03

-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

-End-

-CITE-

38 USC Sec. 4301 01/06/03

-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

-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, 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, related to reemployment rights of persons

inducted into the Armed Forces of the United States and benefits

protected, prior to the general amendment of this chapter by Pub.

L. 103-353. This section, as in effect on the day before Oct. 13,

1994, 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, as amended, set out as an Effective Date note below.

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 (Secs. 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, 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, 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."

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

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

-End-

-CITE-

38 USC Sec. 4302 01/06/03

-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

-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, 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, related to procedures

to enforce reemployment rights, prior to the general amendment of

this chapter by Pub. L. 103-353. This section, as in effect on the

day before Oct. 13, 1994, 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, as amended, set out as an

Effective Date under section 4301 of this title.

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.

-End-

-CITE-

38 USC Sec. 4303 01/06/03

-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

-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.

(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 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, 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, and a period for which a person

is absent from employment for the purpose of performing funeral

honors duty as authorized by section 12503 of title 10 or section

115 of title 32.

(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;

(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

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; Pub. L. 106-419, title III, Sec. 323(a), Nov. 1,

2000, 114 Stat. 1855; Pub. L. 107-14, Sec. 8(a)(11), (b)(2), June

5, 2001, 115 Stat. 35, 36.)

-MISC1-

PRIOR PROVISIONS

A prior section 4303, 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, related to reemployment by the

United States, by any territory, possession, or political

subdivision thereof, or by the District of Columbia, prior to the

general amendment of this chapter by Pub. L. 103-353. This section,

as in effect on the day before Oct. 13, 1994, 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, as

amended, set out as an Effective Date under section 4301 of this

title.

Another prior section 4303 was renumbered section 7603 of this

title.

AMENDMENTS

2001 - Par. (13). Pub. L. 107-14, Sec. 8(b)(2), made technical

amendment to directory language of Pub. L. 106-419, Sec. 323(a)(1).

See 2000 Amendment note below.

Pub. L. 107-14, Sec. 8(a)(11), struck out second period at end.

2000 - Par. (13). Pub. L. 106-419, Sec. 323(a)(2), inserted

before period at end ", and a period for which a person is absent

from employment for the purpose of performing funeral honors duty

as authorized by section 12503 of title 10 or section 115 of title

32."

Pub. L. 106-419, Sec. 323(a)(1), as amended by Pub. L. 107-14,

Sec. 8(b)(2), struck out "and" after "National Guard duty,".

1998 - Par. (3). Pub. L. 105-368 inserted at end "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."

1996 - Par. (16). Pub. L. 104-275 inserted "national" before

"emergency".

EFFECTIVE DATE OF 2001 AMENDMENT

Pub. L. 107-14, Sec. 8(b), June 5, 2001, 115 Stat. 34, provided

that the amendment made by section 8(b) is effective Nov. 1, 2000,

and as if included in the Veterans Benefits and Health Care

Improvement Act of 2000, Pub. L. 106-419, as enacted.

EFFECTIVE DATE OF 2000 AMENDMENT

Pub. L. 106-419, title III, Sec. 323(c), Nov. 1, 2000, 114 Stat.

1856, provided that: "The amendments made by subsections (a) and

(b) [amending this section and section 4316 of this title] shall

take effect 180 days after the date of the enactment of this Act

[Nov. 1, 2000]."

EFFECTIVE DATE OF 1998 AMENDMENT

Pub. L. 105-368, title II, Sec. 212(c), Nov. 11, 1998, 112 Stat.

3331, provided that: "The amendments made by this section [enacting

section 4319 of this title and amending this section] shall apply

only with respect to causes of action arising after the date of the

enactment of this Act [Nov. 11, 1998]."

EFFECTIVE DATE OF 1996 AMENDMENT

Amendment by Pub. L. 104-275 effective Oct. 13, 1994, see section

313 of Pub. L. 104-275, set out as a note under section 4301 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.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 2 section 1316; title 3

section 416.

-End-

-CITE-

38 USC Sec. 4304 01/06/03

-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. 4304. Character of service

-STATUTE-

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 service

with a dishonorable or bad conduct discharge.

(2) A separation of such person from such uniformed service

under other than honorable conditions, as characterized pursuant

to regulations prescribed by the Secretary concerned.

(3) A dismissal of such person permitted under section 1161(a)

of title 10.

(4) A dropping of such person from the rolls pursuant to

section 1161(b) of title 10.

-SOURCE-

(Added Pub. L. 103-353, Sec. 2(a), Oct. 13, 1994, 108 Stat. 3152.)

-MISC1-

PRIOR PROVISIONS

Prior sections 4304 to 4306 were omitted in the general amendment

of this chapter by Pub. L. 103-353. Those sections, as in effect on

the day before Oct. 13, 1994, continue 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, as amended, set out as an

Effective Date under section 4301 of this title.

Section 4304, 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, related to reemployment rights of

persons who enlist in the Armed Forces or enter upon active duty.

Another prior section 4304 was renumbered section 7604 of this

title.

Section 4305, 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,

directed the Secretary of Labor, through the Office of Veterans'

Reemployment Rights, to render assistance in obtaining

reemployment.

Section 4306, 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,

related to prior rights for reemployment in a case in which more

than one person is entitled to be reemployed.

A prior section 4307, 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

to repeal by Pub. L. 103-353, Sec. 8(d)(2), Oct. 13, 1994, 108

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

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.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 4312 of this title; title

2 section 1316; title 3 section 416.

-End-

-CITE-

38 USC SUBCHAPTER II - EMPLOYMENT AND REEMPLOYMENT RIGHTS

AND LIMITATIONS; PROHIBITIONS 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART III - READJUSTMENT AND RELATED BENEFITS

CHAPTER 43 - EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE

UNIFORMED SERVICES

SUBCHAPTER II - EMPLOYMENT AND REEMPLOYMENT RIGHTS AND LIMITATIONS;

PROHIBITIONS

-HEAD-

SUBCHAPTER II - EMPLOYMENT AND REEMPLOYMENT RIGHTS AND LIMITATIONS;

PROHIBITIONS

-SECREF-

SUBCHAPTER REFERRED TO IN OTHER SECTIONS

This subchapter is referred to in section 4303 of this title.

-End-

-CITE-

38 USC Sec. 4311 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART III - READJUSTMENT AND RELATED BENEFITS

CHAPTER 43 - EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE

UNIFORMED SERVICES

SUBCHAPTER II - EMPLOYMENT AND REEMPLOYMENT RIGHTS AND LIMITATIONS;

PROHIBITIONS

-HEAD-

Sec. 4311. Discrimination against persons who serve in the

uniformed services and acts of reprisal prohibited

-STATUTE-

(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

service, application for service, or obligation.

(b) An employer may not discriminate in employment against or

take any adverse employment action against any person because such

person (1) has taken an action to enforce a protection afforded any

person under this chapter, (2) has testified or otherwise made a

statement in or in connection with any proceeding under this

chapter, (3) has assisted or otherwise participated in an

investigation under this chapter, or (4) has exercised a right

provided for in this chapter. The prohibition in this subsection

shall apply with respect to a person regardless of whether that

person has performed service in the uniformed services.

(c) An employer shall be considered to have engaged in actions

prohibited -

(1) under subsection (a), 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, service, application for

service, or obligation for service; or

(2) under subsection (b), if the person's (A) action to enforce

a protection afforded any person under this chapter, (B)

testimony or making of a statement in or in connection with any

proceeding under this chapter, (C) assistance or other

participation in an investigation under this chapter, or (D)

exercise of a right provided for in this chapter, 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

person's enforcement action, testimony, statement, assistance,

participation, or exercise of a right.

(d) The prohibitions in subsections (a) and (b) shall apply to

any position of employment, including a position that is described

in section 4312(d)(1)(C) of this title.

-SOURCE-

(Added Pub. L. 103-353, Sec. 2(a), Oct. 13, 1994, 108 Stat. 3153;

amended Pub. L. 104-275, title III, Sec. 311(3), Oct. 9, 1996, 110

Stat. 3334.)

-MISC1-

PRIOR PROVISIONS

A prior section 4311 was renumbered section 7611 of this title.

AMENDMENTS

1996 - Subsec. (b). Pub. L. 104-275 added subsec. (b) and struck

out former subsec. (b) which read as follows: "An employer shall be

considered to have denied a person initial employment,

reemployment, retention in employment, promotion, 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."

Subsecs. (c), (d). Pub. L. 104-275 added subsecs. (c) and (d) and

struck out former subsec. (c) which read as follows:

"(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 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 and shall apply to any position of

employment, including a position that is described in section

4312(d)(1)(C)."

EFFECTIVE DATE OF 1996 AMENDMENT

Amendment by Pub. L. 104-275 effective Oct. 13, 1994, see section

313 of Pub. L. 104-275, set out as a note under section 4301 of

this title.

EFFECTIVE DATE

Section effective Oct. 13, 1994, except as otherwise provided,

see section 8 of Pub. L. 103-353, set out as a note under section

4301 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 4303, 4319 of this title;

title 2 section 1316; title 3 section 416.

-End-

-CITE-

38 USC Sec. 4312 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART III - READJUSTMENT AND RELATED BENEFITS

CHAPTER 43 - EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE

UNIFORMED SERVICES

SUBCHAPTER II - EMPLOYMENT AND REEMPLOYMENT RIGHTS AND LIMITATIONS;

PROHIBITIONS

-HEAD-

Sec. 4312. Reemployment rights of persons who serve in the

uniformed services

-STATUTE-

(a) Subject to subsections (b), (c), and (d) and to section 4304,

any person whose absence from a position of employment is

necessitated 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

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

uniformed 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 10147 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 development, or for completion of skill training or

retraining; or

(4) performed by a member of a uniformed service who is -

(A) ordered to or retained on active duty under section 688,

12301(a), 12301(g), 12302, 12304, or 12305 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 because of a war or

national emergency declared by the President or the Congress,

as determined by the Secretary concerned;

(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 12304 of title 10;

(D) ordered to active duty in support, as determined by the

Secretary concerned, of a critical mission or requirement 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 12406 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 employer'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

(C) the employment referred to in paragraph (1)(C) is for a

brief, nonrecurrent period and there is no 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

subsection (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

employment 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 regularly

scheduled work period on the first full calendar day following

the completion of the period of service and the expiration of

eight hours after a period allowing for the safe 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 submitting 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

performance 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 person's

control which make reporting within the period specified in

subparagraph (A) impossible or unreasonable.

(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 subsection

(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 satisfy 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 position 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 reemployment

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

displacement rights over any person with a superior claim under the

provisions of title 5, United States Code, relating to veterans and

other preference eligibles.

(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.

-SOURCE-

(Added Pub. L. 103-353, Sec. 2(a), Oct. 13, 1994, 108 Stat. 3153;

amended Pub. L. 104-275, title III, Sec. 311(4), Oct. 9, 1996, 110

Stat. 3334.)

-MISC1-

PRIOR PROVISIONS

A prior section 4312 was renumbered section 7612 of this title.

AMENDMENTS

1996 - Subsec. (a). Pub. L. 104-275, Sec. 311(4)(A), substituted

"whose absence from a position of employment is necessitated" for

"who is absent from a position of employment".

Subsec. (c)(3). Pub. L. 104-275, Sec. 311(4)(B)(i), substituted

"section 10147" for "section 270".

Subsec. (c)(4)(A). Pub. L. 104-275, Sec. 311(4)(B)(ii)(I),

substituted "section 688, 12301(a), 12301(g), 12302, 12304, or

12305" for "section 672(a), 672(g), 673, 673b, 673c, or 688".

Subsec. (c)(4)(B). Pub. L. 104-275, Sec. 311(4)(B)(ii)(II),

amended subpar. (B) generally. Prior to amendment, subpar. (B) read

as follows: "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;".

Subsec. (c)(4)(C). Pub. L. 104-275, Sec. 311(4)(B)(ii)(III),

substituted "section 12304" for "section 673b".

Subsec. (c)(4)(E). Pub. L. 104-275, Sec. 311(4)(B)(ii)(IV),

substituted "section 12406" for "section 3500 or 8500".

Subsec. (d)(2)(C). Pub. L. 104-275, Sec. 311(4)(C), substituted

"is for a brief, nonrecurrent period and there is no reasonable

expectation" for "is brief or for a nonrecurrent period and without

a reasonable expectation".

EFFECTIVE DATE OF 1996 AMENDMENT

Amendment by section 311(4)(A), (B)(ii)(II), (C) of Pub. L.

104-275 effective Oct. 13, 1994, and amendment by section

311(4)(B)(i), (ii)(I), (III), (IV) of Pub. L. 104-275 effective

Dec. 1, 1994, see section 313 of Pub. L. 104-275, set out as a note

under section 4301 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, and with provisions relating to

satisfaction of the notification requirement of subsec. (a)(1) of

this section, see section 8 of Pub. L. 103-353, set out as a note

under section 4301 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 4311, 4313, 4314, 4316,

4317, 4319 of this title; title 2 section 1316; title 3 section

416; title 42 section 300hh-11.

-End-

-CITE-

38 USC Sec. 4313 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART III - READJUSTMENT AND RELATED BENEFITS

CHAPTER 43 - EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE

UNIFORMED SERVICES

SUBCHAPTER II - EMPLOYMENT AND REEMPLOYMENT RIGHTS AND LIMITATIONS;

PROHIBITIONS

-HEAD-

Sec. 4313. Reemployment positions

-STATUTE-

(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 subparagraph (A) after reasonable

efforts by the employer to qualify the person.

(3) In the case of a person who has a disability incurred in,

or aggravated during, such service, and who (after reasonable

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 seniority,

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, status, 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 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 uniformed 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 which

is the nearest approximation to a position referred to first in

clause (A)(i) and then in clause (A)(ii) 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

person'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 circumstances

of such person's case, with full seniority.

-SOURCE-

(Added Pub. L. 103-353, Sec. 2(a), Oct. 13, 1994, 108 Stat. 3157;

amended Pub. L. 104-275, title III, Sec. 311(5), Oct. 9, 1996, 110

Stat. 3335.)

-MISC1-

PRIOR PROVISIONS

A prior section 4313 was renumbered section 7613 of this title.

AMENDMENTS

1996 - Subsec. (a)(4). Pub. L. 104-275 substituted "uniformed

services" for "uniform services" in cl. (A)(ii) and "which is the

nearest approximation to a position referred to first in clause

(A)(i) and then in clause (A)(ii) which" for "of lesser status and

pay which" in cl. (B).

EFFECTIVE DATE OF 1996 AMENDMENT

Amendment by Pub. L. 104-275 effective Oct. 13, 1994, see section

313 of Pub. L. 104-275, set out as a note under section 4301 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, except that subsec. (a)(3) of this

section applicable to reemployments initiated on or after Aug. 1,

1990, see section 8 of Pub. L. 103-353, set out as a note under

section 4301 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 4312, 4314, 4315, 4319 of

this title; title 2 section 1316; title 3 section 416.

-End-

-CITE-

38 USC Sec. 4314 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART III - READJUSTMENT AND RELATED BENEFITS

CHAPTER 43 - EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE

UNIFORMED SERVICES

SUBCHAPTER II - EMPLOYMENT AND REEMPLOYMENT RIGHTS AND LIMITATIONS;

PROHIBITIONS

-HEAD-

Sec. 4314. Reemployment by the Federal Government

-STATUTE-

(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 requirements

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

determines 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

(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 Management,

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).

-SOURCE-

(Added Pub. L. 103-353, Sec. 2(a), Oct. 13, 1994, 108 Stat. 3158.)

-MISC1-

PRIOR PROVISIONS

A prior section 4314 was renumbered section 7614 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.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 4313, 4319 of this title;

title 3 section 416.

-End-

-CITE-

38 USC Sec. 4315 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART III - READJUSTMENT AND RELATED BENEFITS

CHAPTER 43 - EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE

UNIFORMED SERVICES

SUBCHAPTER II - EMPLOYMENT AND REEMPLOYMENT RIGHTS AND LIMITATIONS;

PROHIBITIONS

-HEAD-

Sec. 4315. Reemployment by certain Federal agencies

-STATUTE-

(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 unreasonable 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 -

(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.

-SOURCE-

(Added Pub. L. 103-353, Sec. 2(a), Oct. 13, 1994, 108 Stat. 3159.)

-MISC1-

PRIOR PROVISIONS

A prior section 4315 was renumbered section 7615 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.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 4313, 4319, 4325 of this

title.

-End-

-CITE-

38 USC Sec. 4316 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART III - READJUSTMENT AND RELATED BENEFITS

CHAPTER 43 - EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE

UNIFORMED SERVICES

SUBCHAPTER II - EMPLOYMENT AND REEMPLOYMENT RIGHTS AND LIMITATIONS;

PROHIBITIONS

-HEAD-

Sec. 4316. Rights, benefits, and obligations of persons absent from

employment for service in a uniformed service

-STATUTE-

(a) A person who is reemployed under this chapter is entitled to

the seniority and other rights and benefits determined by seniority

that the person had on the date of the commencement of service in

the uniformed services plus the additional seniority and rights and

benefits that such person would have attained if the person had

remained 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 determined

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 uniformed

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

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 interrupted

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. No employer

may require any such person to use vacation, annual, or similar

leave during such period of service.

(e)(1) An employer shall grant an employee who is a member of a

reserve component an authorized leave of absence from a position of

employment to allow that employee to perform funeral honors duty as

authorized by section 12503 of title 10 or section 115 of title 32.

(2) For purposes of section 4312(e)(1) of this title, an employee

who takes an authorized leave of absence under paragraph (1) is

deemed to have notified the employer of the employee's intent to

return to such position of employment.

-SOURCE-

(Added Pub. L. 103-353, Sec. 2(a), Oct. 13, 1994, 108 Stat. 3160;

amended Pub. L. 104-275, title III, Sec. 311(6), Oct. 9, 1996, 110

Stat. 3335; Pub. L. 106-419, title III, Sec. 323(b), Nov. 1, 2000,

114 Stat. 1855.)

-MISC1-

PRIOR PROVISIONS

A prior section 4316 was renumbered section 7616 of this title.

AMENDMENTS

2000 - Subsec. (e). Pub. L. 106-419 added subsec. (e).

1996 - Subsec. (d). Pub. L. 104-275 inserted at end "No employer

may require any such person to use vacation, annual, or similar

leave during such period of service."

EFFECTIVE DATE OF 2000 AMENDMENT

Amendment by Pub. L. 106-419 effective 180 days after Nov. 1,

2000, see section 323(c) of Pub. L. 106-419, set out as a note

under section 4303 of this title.

EFFECTIVE DATE OF 1996 AMENDMENT

Amendment by Pub. L. 104-275 effective Oct. 13, 1994, see section

313 of Pub. L. 104-275, set out as a note under section 4301 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, except that the provisions concerning

insurance coverage (other than health) are effective with respect

to furloughs or leaves of absence initiated on or after Oct. 13,

1994, and subsec. (b)(2) of this section is applicable only to the

rights and benefits provided in subsec. (b)(1)(B) of this section

and to persons who leave a position of employment for service in

the uniformed services more than 60 days after Oct. 13, 1994, and

not applicable to any other right or benefit of a person under this

chapter, see section 8 of Pub. L. 103-353, set out as a note under

section 4301 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 4319 of this title; title

2 section 1316; title 3 section 416.

-End-

-CITE-

38 USC Sec. 4317 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART III - READJUSTMENT AND RELATED BENEFITS

CHAPTER 43 - EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE

UNIFORMED SERVICES

SUBCHAPTER II - EMPLOYMENT AND REEMPLOYMENT RIGHTS AND LIMITATIONS;

PROHIBITIONS

-HEAD-

Sec. 4317. Health plans

-STATUTE-

(a)(1) 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 employment, 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 -

(A) the 18-month period beginning on the date on which the

person's absence begins; or

(B) 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).

(2) 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.

(3) 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 -

(A) by the plan in such manner as the plan sponsor 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.

(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 exclusion

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.

-SOURCE-

(Added Pub. L. 103-353, Sec. 2(a), Oct. 13, 1994, 108 Stat. 3161;

amended Pub. L. 104-275, title III, Sec. 311(7), Oct. 9, 1996, 110

Stat. 3335.)

-REFTEXT-

REFERENCES IN TEXT

Sections 3(37) and 607(1) of the Employee Retirement Income

Security Act of 1974, referred to in subsec. (a)(1), (3), are

classified to sections 1002(37) and 1167(1), respectively, of Title

29, Labor.

Section 4980B(f)(4) of the Internal Revenue Code of 1986,

referred to in subsec. (a)(2), is classified to section 4980B(f)(4)

of Title 26, Internal Revenue Code.

-MISC1-

PRIOR PROVISIONS

A prior section 4317 was renumbered section 7617 of this title.

AMENDMENTS

1996 - Subsec. (a). Pub. L. 104-275 substituted "(a)(1) In" for

"(a)(1)(A) Subject to paragraphs (2) and (3), in", redesignated

cls. (i) and (ii) of par. (1) as subpars. (A) and (B),

respectively, redesignated former subpars. (B) and (C) as pars. (2)

and (3), respectively, and in par. (3), redesignated cls. (i) and

(ii) as subpars. (A) and (B), respectively, and subcls. (I) and

(II) as cls. (i) and (ii), respectively.

EFFECTIVE DATE OF 1996 AMENDMENT

Amendment by Pub. L. 104-275 effective Oct. 13, 1994, see section

313 of Pub. L. 104-275, set out as a note under section 4301 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, except that a person on active duty on

Oct. 13, 1994, or a family member or personal representative of

such person, may, after Oct. 13, 1994, elect to reinstate or

continue a health plan provided in this section, and 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 of lesser duration, see section

8 of Pub. L. 103-353, set out as a note under section 4301 of this

title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 4316, 4319 of this title;

title 2 section 1316; title 3 section 416.

-End-

-CITE-

38 USC Sec. 4318 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART III - READJUSTMENT AND RELATED BENEFITS

CHAPTER 43 - EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE

UNIFORMED SERVICES

SUBCHAPTER II - EMPLOYMENT AND REEMPLOYMENT RIGHTS AND LIMITATIONS;

PROHIBITIONS

-HEAD-

Sec. 4318. Employee pension benefit plans

-STATUTE-

(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 governmental employees, the right to pension benefits of a

person reemployed under this chapter shall be determined under this

section.

(B) In the case of benefits under the Thrift Savings Plan, the

rights of a person reemployed under this chapter shall be those

rights provided in section 8432b of title 5. The first sentence of

this subparagraph shall not be 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

constitute 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 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 liability 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 beginning with the date

of reemployment and whose duration is three times the period of the

person's service in the uniformed services, such payment period 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.

-SOURCE-

(Added Pub. L. 103-353, Sec. 2(a), Oct. 13, 1994, 108 Stat. 3162;

amended Pub. L. 104-275, title III, Sec. 311(8), Oct. 9, 1996, 110

Stat. 3335.)

-REFTEXT-

REFERENCES IN TEXT

Sections 3 and 515 of the Employee Retirement Income Security Act

of 1974, referred to in subsecs. (a)(1)(A), (b)(1), and (c), are

classified to sections 1002 and 1145, respectively, of Title 29,

Labor.

Section 402(g)(3) of the Internal Revenue Code of 1986, referred

to in subsec. (b)(2), is classified to section 402(g)(3) of Title

26, Internal Revenue Code.

-MISC1-

PRIOR PROVISIONS

A prior section 4318 was renumbered section 7618 of this title.

AMENDMENTS

1996 - Subsec. (b)(2). Pub. L. 104-275 substituted "services,

such payment period" for "services," in last sentence.

EFFECTIVE DATE OF 1996 AMENDMENT

Amendment by Pub. L. 104-275 effective Oct. 13, 1994, see section

313 of Pub. L. 104-275, set out as a note under section 4301 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, except that an employee pension

benefit plan not in compliance with this section or section 8(h)(1)

of Pub. L. 103-353 on Oct. 13, 1994, has two years to come into

compliance, see section 8 of Pub. L. 103-353, set out as a note

under section 4301 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 4303, 4312, 4316, 4319 of

this title; title 2 section 1316; title 3 section 416.

-End-

-CITE-

38 USC Sec. 4319 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART III - READJUSTMENT AND RELATED BENEFITS

CHAPTER 43 - EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE

UNIFORMED SERVICES

SUBCHAPTER II - EMPLOYMENT AND REEMPLOYMENT RIGHTS AND LIMITATIONS;

PROHIBITIONS

-HEAD-

Sec. 4319. Employment and reemployment rights in foreign countries

-STATUTE-

(a) Liability of Controlling United States Employer of Foreign

Entity. - If an employer controls an entity that is incorporated or

otherwise organized in a foreign country, any denial of employment,

reemployment, or benefit by such entity shall be presumed to be by

such employer.

(b) Inapplicability to Foreign Employer. - This subchapter does

not apply to foreign operations of an employer that is a foreign

person not controlled by an United States employer.

(c) Determination of Controlling Employer. - For the purpose of

this section, the determination of whether an employer controls an

entity shall be based upon the interrelations of operations, common

management, centralized control of labor relations, and common

ownership or financial control of the employer and the entity.

(d) Exemption. - Notwithstanding any other provision of this

subchapter, an employer, or an entity controlled by an employer,

shall be exempt from compliance with any of sections 4311 through

4318 of this title with respect to an employee in a workplace in a

foreign country, if compliance with that section would cause such

employer, or such entity controlled by an employer, to violate the

law of the foreign country in which the workplace is located.

-SOURCE-

(Added Pub. L. 105-368, title II, Sec. 212(b)(1), Nov. 11, 1998,

112 Stat. 3331.)

-MISC1-

EFFECTIVE DATE

Section applicable only with respect to causes of action arising

after Nov. 11, 1998, see section 212(c) of Pub. L. 105-368, set out

as an Effective Date of 1998 Amendment note under section 4303 of

this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 4303 of this title.

-End-

-CITE-

38 USC SUBCHAPTER III - PROCEDURES FOR ASSISTANCE,

ENFORCEMENT, AND INVESTIGATION 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART III - READJUSTMENT AND RELATED BENEFITS

CHAPTER 43 - EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE

UNIFORMED SERVICES

SUBCHAPTER III - PROCEDURES FOR ASSISTANCE, ENFORCEMENT, AND

INVESTIGATION

-HEAD-

SUBCHAPTER III - PROCEDURES FOR ASSISTANCE, ENFORCEMENT, AND

INVESTIGATION

-End-

-CITE-

38 USC Sec. 4321 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART III - READJUSTMENT AND RELATED BENEFITS

CHAPTER 43 - EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE

UNIFORMED SERVICES

SUBCHAPTER III - PROCEDURES FOR ASSISTANCE, ENFORCEMENT, AND

INVESTIGATION

-HEAD-

Sec. 4321. Assistance in obtaining reemployment or other employment

rights or benefits

-STATUTE-

The Secretary (through the Veterans' Employment and Training

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

assistance, the Secretary may request the assistance of existing

Federal and State agencies engaged in similar or related activities

and utilize the assistance of volunteers.

-SOURCE-

(Added Pub. L. 103-353, Sec. 2(a), Oct. 13, 1994, 108 Stat. 3164.)

-MISC1-

PRIOR PROVISIONS

A prior section 4321 was renumbered section 7621 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, except that provisions necessary for

implementation of section 4311 of this title are effective Oct. 13,

1994, see section 8 of Pub. L. 103-353, set out as a note under

section 4301 of this title.

-End-

-CITE-

38 USC Sec. 4322 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART III - READJUSTMENT AND RELATED BENEFITS

CHAPTER 43 - EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE

UNIFORMED SERVICES

SUBCHAPTER III - PROCEDURES FOR ASSISTANCE, ENFORCEMENT, AND

INVESTIGATION

-HEAD-

Sec. 4322. Enforcement of employment or reemployment rights

-STATUTE-

(a) A person who claims that -

(1) such person is entitled under this chapter to employment or

reemployment rights or benefits with respect to employment 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

subsection (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

assistance 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 attempt to 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 any complaint

filed under subsection (a) do not resolve the complaint, 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 or the

Office of Personnel Management).

(f) This subchapter does not apply to any action relating to

benefits to be provided under the Thrift Savings Plan under title

5.

-SOURCE-

(Added Pub. L. 103-353, Sec. 2(a), Oct. 13, 1994, 108 Stat. 3164;

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

Stat. 3335.)

-MISC1-

PRIOR PROVISIONS

A prior section 4322 was renumbered section 7622 of this title.

AMENDMENTS

1996 - Subsec. (d). Pub. L. 104-275, Sec. 311(9)(A), inserted

"attempt to" before "resolve".

Subsec. (e). Pub. L. 104-275, Sec. 311(9)(B)(i), substituted

"with respect to any complaint filed under subsection (a) do not

resolve the complaint," for "with respect to a complaint under

subsection (d) are unsuccessful," in introductory provisions.

Subsec. (e)(2). Pub. L. 104-275, Sec. 311(9)(B)(ii), inserted "or

the Office of Personnel Management" after "Federal executive

agency".

EFFECTIVE DATE OF 1996 AMENDMENT

Amendment by Pub. L. 104-275 effective Oct. 13, 1994, see section

313 of Pub. L. 104-275, set out as a note under section 4301 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, except that provisions necessary for

implementation of section 4311 of this title are effective Oct. 13,

1994, see section 8 of Pub. L. 103-353, set out as a note under

section 4301 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 4323, 4324, 4325 of this

title.

-End-

-CITE-

38 USC Sec. 4323 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART III - READJUSTMENT AND RELATED BENEFITS

CHAPTER 43 - EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE

UNIFORMED SERVICES

SUBCHAPTER III - PROCEDURES FOR ASSISTANCE, ENFORCEMENT, AND

INVESTIGATION

-HEAD-

Sec. 4323. Enforcement of rights with respect to a State or private

employer

-STATUTE-

(a) Action for Relief. - (1) A person who receives from the

Secretary a notification pursuant to section 4322(e) of this title

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 relief under this chapter for

such person. In the case of such an action against a State (as an

employer), the action shall be brought in the name of the United

States as the plaintiff in the action.

(2) A person may commence an action for relief with respect to a

complaint against a State (as an employer) or a private employer if

the person -

(A) has chosen not to apply to the Secretary for assistance

under section 4322(a) of this title;

(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 General

with respect to the complaint under such paragraph.

(b) Jurisdiction. - (1) In the case of an action against a State

(as an employer) or a private employer commenced by the United

States, the district courts of the United States shall have

jurisdiction over the action.

(2) In the case of an action against a State (as an employer) by

a person, the action may be brought in a State court of competent

jurisdiction in accordance with the laws of the State.

(3) In the case of an action against a private employer by a

person, the district courts of the United States shall have

jurisdiction of the action.

(c) Venue. - (1) In the case of an action by the United States

against a State (as an employer), the action may proceed in the

United States district court for any district in which the State

exercises any authority or carries out any function.

(2) In the case of an action against a private employer, the

action may proceed in the United States district court for any

district in which the private employer of the person maintains a

place of business.

(d) Remedies. - (1) In any action under this section, the court

may award relief as follows:

(A) The court may require the employer to comply with the

provisions of this chapter.

(B) The court may 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.

(C) The court may require the employer to pay the person an

amount equal to the amount referred to in subparagraph (B) as

liquidated damages, if the court determines that the employer's

failure to comply with the provisions of this chapter was

willful.

(2)(A) Any compensation awarded under subparagraph (B) or (C) of

paragraph (1) shall be in addition to, and shall not diminish, any

of the other rights and benefits provided for under this chapter.

(B) In the case of an action commenced in the name of the United

States for which the relief includes compensation awarded under

subparagraph (B) or (C) of paragraph (1), such compensation shall

be held in a special deposit account and shall be paid, on order of

the Attorney General, directly to the person. If the compensation

is not paid to the person because of inability to do so within a

period of 3 years, the compensation shall be covered into the

Treasury of the United States as miscellaneous receipts.

(3) A State shall be subject to the same remedies, including

prejudgment interest, as may be imposed upon any private employer

under this section.

(e) Equity Powers. - The court may use its full equity powers,

including temporary or permanent injunctions, temporary restraining

orders, and contempt orders, to vindicate fully the rights or

benefits of persons under this chapter.

(f) Standing. - An action under this chapter may be initiated

only by a person claiming rights or benefits under this chapter

under subsection (a) or by the United States under subsection

(a)(1).

(g) Respondent. - In any action under this chapter, only an

employer or a potential employer, as the case may be, shall be a

necessary party respondent.

(h) Fees, Court Costs. - (1) No fees or court costs may be

charged or taxed against any person claiming rights under this

chapter.

(2) 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.

(i) Inapplicability of State Statute of Limitations. - No State

statute of limitations shall apply to any proceeding under this

chapter.

(j) Definition. - In this section, the term "private employer"

includes a political subdivision of a State.

-SOURCE-

(Added Pub. L. 103-353, Sec. 2(a), Oct. 13, 1994, 108 Stat. 3165;

amended Pub. L. 104-275, title III, Sec. 311(10), Oct. 9, 1996, 110

Stat. 3335; Pub. L. 105-368, title II, Sec. 211(a), Nov. 11, 1998,

112 Stat. 3329.)

-MISC1-

PRIOR PROVISIONS

A prior section 4323 was renumbered section 7623 of this title.

AMENDMENTS

1998 - Pub. L. 105-368 amended section generally, substituting

present provisions for provisions which had: in subsec. (a),

authorized reference of complaint to Attorney General and

commencement of action for relief on behalf of person whose

complaint was referred; in subsec. (b), described appropriate

venues in cases where defendant is State or private employer; and

in subsec. (c), set forth provisions relating to jurisdiction,

abridgement of rights, court and attorney fees, equity power of

court, standing, respondents, statute of limitations, and remedies.

1996 - Subsec. (a)(1). Pub. L. 104-275, Sec. 311(10)(A), struck

out "of an unsuccessful effort to resolve a complaint" after

"notification pursuant to section 4322(e)".

Subsec. (a)(2)(A). Pub. L. 104-275, Sec. 311(10)(B), substituted

"under section 4322(a)" for "regarding the complaint under section

4322(c)".

EFFECTIVE DATE OF 1998 AMENDMENT

Pub. L. 105-368, title II, Sec. 211(b), Nov. 11, 1998, 112 Stat.

3330, provided that:

"(1) Section 4323 of title 38, United States Code, as amended by

subsection (a), shall apply to actions commenced under chapter 43

of such title on or after the date of the enactment of this Act

[Nov. 11, 1998], and shall apply to actions commenced under such

chapter before the date of the enactment of this Act that are not

final on the date of the enactment of this Act, without regard to

when the cause of action accrued.

"(2) In the case of any such action against a State (as an

employer) in which a person, on the day before the date of the

enactment of this Act [Nov. 11, 1998], is represented by the

Attorney General under section 4323(a)(1) of such title as in

effect on such day, the court shall upon motion of the Attorney

General, substitute the United States as the plaintiff in the

action pursuant to such section as amended by subsection (a)."

EFFECTIVE DATE OF 1996 AMENDMENT

Amendment by Pub. L. 104-275 effective Oct. 13, 1994, see section

313 of Pub. L. 104-275, set out as a note under section 4301 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, except that provisions necessary for

implementation of section 4311 of this title are effective Oct. 13,

1994, see section 8 of Pub. L. 103-353, set out as a note under

section 4301 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 4322, 4332 of this title;

title 2 section 1316; title 3 section 416.

-End-

-CITE-

38 USC Sec. 4324 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART III - READJUSTMENT AND RELATED BENEFITS

CHAPTER 43 - EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE

UNIFORMED SERVICES

SUBCHAPTER III - PROCEDURES FOR ASSISTANCE, ENFORCEMENT, AND

INVESTIGATION

-HEAD-

Sec. 4324. Enforcement of rights with respect to Federal executive

agencies

-STATUTE-

(a)(1) A person who receives from the Secretary a notification

pursuant to section 4322(e) may request that the Secretary refer

the complaint for litigation before the Merit Systems Protection

Board. The Secretary shall refer the complaint 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 Protection 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 executive

agency or the Office of Personnel Management under this subchapter

directly to the Merit Systems Protection Board if that person -

(1) has chosen not to apply to the Secretary for assistance

under section 4322(a);

(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), without regard as to whether the complaint accrued before,

on, or after October 13, 1994. A person who seeks a hearing or

adjudication by submitting such a complaint under this paragraph

may be represented at such hearing or adjudication in accordance

with the rules of the Board.

(2) If the Board determines that a Federal executive agency or

the Office of Personnel Management 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 Office 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.

(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

adjudication 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

represented by the Special Counsel before the Merit Systems

Protection Board regarding such order or decision.

-SOURCE-

(Added Pub. L. 103-353, Sec. 2(a), Oct. 13, 1994, 108 Stat. 3166;

amended Pub. L. 104-275, title III, Sec. 311(11), Oct. 9, 1996, 110

Stat. 3336; Pub. L. 105-368, title II, Sec. 213(a), Nov. 11, 1998,

112 Stat. 3331.)

-MISC1-

PRIOR PROVISIONS

A prior section 4324 was renumbered section 7624 of this title.

AMENDMENTS

1998 - Subsec. (c)(1). Pub. L. 105-368 inserted ", without regard

as to whether the complaint accrued before, on, or after October

13, 1994" before period at end of first sentence.

1996 - Subsec. (a)(1). Pub. L. 104-275, Sec. 311(11)(A), struck

out "of an unsuccessful effort to resolve a complaint relating to a

Federal executive agency" after "notification pursuant to section

4322(e)".

Subsec. (b). Pub. L. 104-275, Sec. 311(11)(B)(i), inserted "or

the Office of Personnel Management" after "Federal executive

agency" in introductory provisions.

Subsec. (b)(1). Pub. L. 104-275, Sec. 311(11)(B)(ii), substituted

"under section 4322(a)" for "regarding a complaint under section

4322(c)".

Subsec. (c)(2). Pub. L. 104-275, Sec. 311(11)(C), inserted "or

the Office of Personnel Management" after "Federal executive

agency" and substituted "Office to comply" for "employee to

comply".

EFFECTIVE DATE OF 1998 AMENDMENT

Pub. L. 105-368, title II, Sec. 213(b), Nov. 11, 1998, 112 Stat.

3332, provided that: "The amendment made by subsection (a)

[amending this section] shall apply to complaints filed with the

Merit Systems Protection Board on or after October 13, 1994."

EFFECTIVE DATE OF 1996 AMENDMENT

Amendment by Pub. L. 104-275 effective Oct. 13, 1994, see section

313 of Pub. L. 104-275, set out as a note under section 4301 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, except that provisions necessary for

implementation of section 4311 of this title are effective Oct. 13,

1994, see section 8 of Pub. L. 103-353, set out as a note under

section 4301 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 4322, 4332 of this title;

title 3 section 416.

-End-

-CITE-

38 USC Sec. 4325 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART III - READJUSTMENT AND RELATED BENEFITS

CHAPTER 43 - EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE

UNIFORMED SERVICES

SUBCHAPTER III - PROCEDURES FOR ASSISTANCE, ENFORCEMENT, AND

INVESTIGATION

-HEAD-

Sec. 4325. Enforcement of rights with respect to certain Federal

agencies

-STATUTE-

(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

resolution of allegations under subsection (b), the head of an

agency shall ensure, to the maximum extent practicable, that the

procedures 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 or information relating to the rights and

obligations of employees 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.

-SOURCE-

(Added Pub. L. 103-353, Sec. 2(a), Oct. 13, 1994, 108 Stat. 3167;

amended Pub. L. 104-275, title III, Sec. 311(12), Oct. 9, 1996, 110

Stat. 3336.)

-MISC1-

PRIOR PROVISIONS

A prior section 4325 was renumbered section 7625 of this title.

AMENDMENTS

1996 - Subsec. (d)(1). Pub. L. 104-275 struck out ", alternative

employment in the Federal Government under this chapter," before

"or information relating to the rights and obligations" and

substituted "employees and" for "employee and".

EFFECTIVE DATE OF 1996 AMENDMENT

Amendment by Pub. L. 104-275 effective Oct. 13, 1994, see section

313 of Pub. L. 104-275, set out as a note under section 4301 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, except that provisions necessary for

implementation of section 4311 of this title are effective Oct. 13,

1994, see section 8 of Pub. L. 103-353, set out as a note under

section 4301 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 4315 of this title.

-End-

-CITE-

38 USC Sec. 4326 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART III - READJUSTMENT AND RELATED BENEFITS

CHAPTER 43 - EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE

UNIFORMED SERVICES

SUBCHAPTER III - PROCEDURES FOR ASSISTANCE, ENFORCEMENT, AND

INVESTIGATION

-HEAD-

Sec. 4326. Conduct of investigation; subpoenas

-STATUTE-

(a) In carrying out any investigation under this chapter, the

Secretary's duly authorized representatives shall, at all

reasonable times, have reasonable access to and the right to

interview persons with information relevant to the investigation

and shall 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

investigation 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.

-SOURCE-

(Added Pub. L. 103-353, Sec. 2(a), Oct. 13, 1994, 108 Stat. 3167;

amended Pub. L. 104-275, title III, Sec. 311(13), Oct. 9, 1996, 110

Stat. 3336.)

-MISC1-

AMENDMENTS

1996 - Subsec. (a). Pub. L. 104-275 inserted "have reasonable

access to and the right to interview persons with information

relevant to the investigation and shall" after "at all reasonable

times,".

EFFECTIVE DATE OF 1996 AMENDMENT

Amendment by Pub. L. 104-275 effective Oct. 13, 1994, see section

313 of Pub. L. 104-275, set out as a note under section 4301 of

this title.

EFFECTIVE DATE

Section effective Oct. 13, 1994, and applicable to any matter

pending with Secretary of Labor under former section 4305 of this

title as of that date, see section 8(e) of Pub. L. 103-353, set out

as a note under section 4301 of this title.

-End-

-CITE-

38 USC SUBCHAPTER IV - MISCELLANEOUS PROVISIONS 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART III - READJUSTMENT AND RELATED BENEFITS

CHAPTER 43 - EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE

UNIFORMED SERVICES

SUBCHAPTER IV - MISCELLANEOUS PROVISIONS

-HEAD-

SUBCHAPTER IV - MISCELLANEOUS PROVISIONS

-End-

-CITE-

38 USC Sec. 4331 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART III - READJUSTMENT AND RELATED BENEFITS

CHAPTER 43 - EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE

UNIFORMED SERVICES

SUBCHAPTER IV - MISCELLANEOUS PROVISIONS

-HEAD-

Sec. 4331. Regulations

-STATUTE-

(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 chapter

with regard to the application of this chapter to Federal executive

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) (!1)

of title 5.

-SOURCE-

(Added Pub. L. 103-353, Sec. 2(a), Oct. 13, 1994, 108 Stat. 3168.)

-MISC1-

PRIOR PROVISIONS

A prior section 4331 was renumbered section 7631 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.

-FOOTNOTE-

(!1) So in original. Probably should be section "2302(a)(2)(C)(ii)".

-End-

-CITE-

38 USC Sec. 4332 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART III - READJUSTMENT AND RELATED BENEFITS

CHAPTER 43 - EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE

UNIFORMED SERVICES

SUBCHAPTER IV - MISCELLANEOUS PROVISIONS

-HEAD-

Sec. 4332. Reports

-STATUTE-

The Secretary shall, after consultation with the Attorney General

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, respectively,

during such fiscal year.

(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 pursuant to

paragraph (1), (2), or (3).

(5) An indication of whether there are any apparent patterns 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.

-SOURCE-

(Added Pub. L. 103-353, Sec. 2(a), Oct. 13, 1994, 108 Stat. 3168.)

-MISC1-

PRIOR PROVISIONS

A prior section 4332 was renumbered section 7632 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.

-End-

-CITE-

38 USC Sec. 4333 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART III - READJUSTMENT AND RELATED BENEFITS

CHAPTER 43 - EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE

UNIFORMED SERVICES

SUBCHAPTER IV - MISCELLANEOUS PROVISIONS

-HEAD-

Sec. 4333. Outreach

-STATUTE-

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.

-SOURCE-

(Added Pub. L. 103-353, Sec. 2(a), Oct. 13, 1994, 108 Stat. 3169.)

-MISC1-

PRIOR PROVISIONS

Prior sections 4333 to 4336, and 4351 to 4355 were renumbered

sections 7633 to 7636, and 7651 to 7655 of this title,

respectively.

Prior section 5001 was renumbered section 8101 of this title.

Another prior section 5001, Pub. L. 85-857, Sept. 2, 1958, 72

Stat. 1251; Pub. L. 88-450, Sec. 1, Aug. 19, 1964, 78 Stat. 500;

Pub. L. 89-311, Sec. 8, Oct. 31, 1965, 79 Stat. 1157; Pub. L.

93-82, title III, Sec. 301, Aug. 2, 1973, 87 Stat. 194; Pub. L.

94-581, title I, Sec. 114, title II, Secs. 206(a), 210(e)(1), Oct.

21, 1976, 90 Stat. 2852, 2859, 2864; Pub. L. 95-201, Sec. 4(c),

Nov. 23, 1977, 91 Stat. 1431, relating generally to the authority

of the Administrator to establish hospitals and domiciliary

facilities for veterans, was omitted in the general revision of

subchapter I of chapter 81 of this title by Pub. L. 96-22. See

section 8102 of this title.

Prior section 5002 was renumbered section 8102 of this title.

Another prior section 5002, Pub. L. 85-857, Sept. 2, 1958, 72

Stat. 1252; Pub. L. 94-581, title II, Sec. 210(e)(2), Oct. 21,

1976, 90 Stat. 2865, relating to the construction and repair of

hospitals, domiciliaries, and outpatient dispensary facilities, was

omitted in the general revision of subchapter I of chapter 81 of

this title by Pub. L. 96-22. See section 8103 of this title.

Prior section 5003 was renumbered section 8103 of this title.

Another prior section 5003, Pub. L. 85-857, Sept. 2, 1958, 72

Stat. 1252, relating to the use by the Veterans' Administration of

Armed Forces' facilities, was omitted in the general revision of

subchapter I of chapter 81 of this title by Pub. L. 96-22. See

section 8111 of this title.

Prior section 5004 was renumbered section 8104 of this title.

Another prior section 5004, Pub. L. 85-857, Sept. 2, 1958, 72

Stat. 152; Pub. L. 89-785, title II, Sec. 201(a), Nov. 7, 1966, 80

Stat. 1372; Pub. L. 94-581, title II, Sec. 210(e)(3), Oct. 21,

1976, 90 Stat. 2865, relating to garage and parking facilities, was

omitted in the general revision of subchapter I of chapter 81 of

this title by Pub. L. 96-22. See section 8109 of this title.

Prior section 5005 was renumbered section 8105 of this title.

Another prior section 5005, Pub. L. 85-857, Sept. 2, 1958, 72

Stat. 1252; Pub. L. 94-581, title II, Sec. 210(e)(4), Oct. 21,

1976, 90 Stat. 2865, relating to the acceptance by the President of

buildings, structures, equipment, or grounds from States or other

political subdivisions or from persons, was omitted in the general

revision of subchapter I of chapter 81 of this title by Pub. L.

96-22. See section 8115 of this title.

Prior section 5006 was renumbered section 8106 of this title.

Another prior section 5006, Pub. L. 85-857, Sept. 2, 1958, 72

Stat. 1253, relating to property formerly owned by the National

Home for Disabled Volunteer Soldiers, was omitted in the general

revision of subchapter I of chapter 81 of this title by Pub. L.

96-22. See section 8113 of this title.

Prior section 5007 was renumbered section 8107 of this title.

Another prior section 5007, added Pub. L. 93-82, title III, Sec.

302(1), Aug. 2, 1973, 87 Stat. 195, and amended Pub. L. 94-581,

title II, Sec. 210(e)(5), Oct. 21, 1976, 90 Stat. 2865, relating to

partial relinquishment of legislative jurisdiction, was omitted in

the general revision of subchapter I of chapter 81 of this title by

Pub. L. 96-22. See section 8112 of this title.

Prior sections 5008 to 5011 were renumbered sections 8108 to 8111

of this title, respectively.

Another prior section 5011 was renumbered section 5021 of this

title.

Prior sections 5011A and 5012 were renumbered sections 8111A and

8112 of this title, respectively.

Another prior section 5012 was renumbered section 5022 of this

title.

Prior section 5013 was renumbered section 8113 of this title.

Another prior section 5013 was renumbered section 5023 of this

title.

Prior section 5014 was renumbered section 8114 of this title.

Another prior section 5014 was renumbered section 5024 of this

title.

Prior sections 5015, 5016, 5021 to 5025, 5031 to 5037, and 5051

to 5056 were renumbered sections 8115, 8116, 8121 to 8125, 8131 to

8137, and 8151 to 8156 of this title, respectively.

Prior section 5057, added Pub. L. 89-785, title II, Sec. 203,

Nov. 7, 1966, 80 Stat. 1376, directed Administrator to submit to

Congress not more than sixty days after end of each fiscal year

separate reports on activities carried out under sections 5053 and

5054 of this title, prior to repeal by Pub. L. 99-576, title II,

Sec. 231(c)(2)(A), Oct. 28, 1986, 100 Stat. 3264.

Prior sections 5070, 5071 to 5074, 5081 to 5083, 5091 to 5093,

and 5096 were renumbered sections 8201, 8211 to 8214, 8221 to 8223,

8231 to 8233, and 8241 of this title, respectively.

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.

-End-

-CITE-

38 USC PART IV - GENERAL ADMINISTRATIVE PROVISIONS 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART IV - GENERAL ADMINISTRATIVE PROVISIONS

-HEAD-

PART IV - GENERAL ADMINISTRATIVE PROVISIONS

-MISC1-

Chap. Sec.

51. Claims, Effective Dates, and Payments 5100

53. Special Provisions Relating to Benefits 5301

55. Minors, Incompetents, and Other Wards 5501

57. Records and Investigations 5701

59. Agents and Attorneys 5901

61. Penal and Forfeiture Provisions 6101

AMENDMENTS

2002 - Pub. L. 107-330, title III, Sec. 308(g)(1)(A), Dec. 6,

2002, 116 Stat. 2828, substituted "5100" for "5101" in item for

chapter 51.

1991 - Pub. L. 102-40, title IV, Sec. 402(c)(2), May 7, 1991, 105

Stat. 239, substituted "5101" for "3001" in item for chapter 51,

"5301" for "3101" in item for chapter 53, "5501" for "3201" in item

for chapter 55, "5701" for "3301" in item for chapter 57, "5901"

for "3401" in item for chapter 59, and "6101" for "3501" in item

for chapter 61.

1988 - Pub. L. 100-687, div. A, title I, Sec. 103(c)(1), Nov. 18,

1988, 102 Stat. 4107, substituted "Claims" for "Applications" in

item for chapter 51.

-End-