38 USC PART III, CHAPTER 43, SUBCHAPTER I: GENERAL

From Title 38—VETERANS' BENEFITSPART III—READJUSTMENT AND RELATED BENEFITSCHAPTER 43—EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE UNIFORMED SERVICES

SUBCHAPTER I—GENERAL

§4301. Purposes; sense of Congress

(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.

(Added Pub. L. 103–353, §2(a), Oct. 13, 1994, 108 Stat. 3150; amended Pub. L. 104–275, title III, §311(1), Oct. 9, 1996, 110 Stat. 3333.)

Editorial Notes

Prior Provisions

A prior section 4301, added Pub. L. 93–508, title IV, §404(a), Dec. 3, 1974, 88 Stat. 1594, §2021; amended Pub. L. 94–502, title VI, §608(1), (2), Oct. 15, 1976, 90 Stat. 2405; Pub. L. 99–576, title III, §331, Oct. 28, 1986, 100 Stat. 3279; Pub. L. 102–12, §5(a), Mar. 18, 1991, 105 Stat. 36; Pub. L. 102–25, title III, §340(a), Apr. 6, 1991, 105 Stat. 92; renumbered §4301, Pub. L. 102–568, title V, §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".

Statutory Notes and Related Subsidiaries

Effective Date of 1996 Amendment

Pub. L. 104–275, title III, §313, Oct. 9, 1996, 110 Stat. 3336, provided that:

"(a) In General.—Except as provided in subsection (b), the amendments made by this subtitle [subtitle B (§§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

Pub. L. 103–353, §8, Oct. 13, 1994, 108 Stat. 3175, as amended by Pub. L. 104–275, title III, §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."

Demonstration Project for Referral of USERRA Claims Against Federal Agencies to the Office of Special Counsel

Pub. L. 111–275, title I, §105, Oct. 13, 2010, 124 Stat. 2868, as amended by Pub. L. 112–234, §2(d), Dec. 28, 2012, 126 Stat. 1624, provided that:

"(a) Establishment of Project.—The Secretary of Labor and the Office of Special Counsel shall carry out a 36-month demonstration project under which certain claims against Federal executive agencies under chapter 43 of title 38, United States Code, are referred to, or otherwise received by, the Office of Special Counsel for assistance, including investigation and resolution of the claim as well as enforcement of rights with respect to the claim. The demonstration program shall begin not later than 60 days after the Comptroller General of the United States submits the report required under subsection (e)(3).

"(b) Referral of All Prohibited Personnel Practice Claims to the Office of Special Counsel.—

"(1) In general.—Under the demonstration project, the Office of Special Counsel shall receive and investigate all claims under chapter 43 of title 38, United States Code, with respect to Federal executive agencies in cases where the Office of Special Counsel has jurisdiction over related claims pursuant to section 1212 of title 5, United States Code.

"(2) Related claims.—For purposes of paragraph (1), a related claim is a claim involving the same Federal executive agency and the same or similar factual allegations or legal issues as those being pursued under a claim under chapter 43 of title 38, United States Code.

"(c) Referral of Other Claims Against Federal Executive Agencies.—

"(1) In general.—Under the demonstration project, the Secretary—

"(A) shall refer to the Office of Special Counsel all claims described in paragraph (2) made during the period of the demonstration project; and

"(B) may refer any claim described in paragraph (2) filed before the demonstration project that is pending before the Secretary at the beginning of the demonstration project.

"(2) Claims described.—A claim described in this paragraph is a claim under chapter 43 of title 38, United States Code, against a Federal executive agency by a claimant with a social security account number with an odd number as its terminal digit or, in the case of a claim that does not contain a social security account number, a case number assigned to the claim with an odd number as its terminal digit.

"(d) Administration of Demonstration Project.—

"(1) In general.—The Office of Special Counsel shall administer the demonstration project. The Secretary shall cooperate with the Office of Special Counsel in carrying out the demonstration project.

"(2) Treatment of certain terms in chapter 43 of title 38, united states code.—In the case of any claim referred to, or otherwise received by, the Office of Special Counsel under the demonstration project, any reference to the 'Secretary' in sections 4321, 4322, and 4326 of title 38, United States Code, is deemed to be a reference to the 'Office of Special Counsel'.

"(3) Administrative jurisdiction.—In the case of any claim referred to, or otherwise received by, the Office of Special Counsel under the demonstration project, the Office of Special Counsel shall retain administrative jurisdiction over the claim.

"(e) Data Comparability for Reviewing Agency Performance.—

"(1) In general.—To facilitate the review of the relative performance of the Office of Special Counsel and the Department of Labor during the demonstration project, the Office of Special Counsel and the Department of Labor shall jointly establish methods and procedures to be used by both the Office and the Department during the demonstration project. Such methods and procedures shall include each of the following:

"(A) Definitions of performance measures, including—

"(i) customer satisfaction;

"(ii) cost (such as, but not limited to, average cost per claim);

"(iii) timeliness (such as, but not limited to, average processing time, case age);

"(iv) capacity (such as, but not limited to, staffing levels, education, grade level, training received, caseload); and

"(v) case outcomes.

"(B) Definitions of case outcomes.

"(C) Data collection methods and timing of collection.

"(D) Data quality assurance processes.

"(2) Joint report to congress.—Not later than 90 days after the date of the enactment of this Act [Oct. 13, 2010], the Special Counsel and the Secretary of Labor shall jointly submit to the Committees on Veterans' Affairs of the Senate and House of Representatives and to the Comptroller General of the United States a report describing the methods and procedures established under paragraph (1).

"(3) Comptroller general report.—Not later than 30 days after the date of the submittal of the report under paragraph (2), the Comptroller General shall submit to the Committees on Veterans' Affairs of the Senate and House of Representatives a report on the report submitted under paragraph (2) and may provide recommendations for improving the methods and procedures described therein.

"(f) Agency Data to Government Accountability Office.—The Office of Special Counsel and the Secretary of Labor shall submit to the Comptroller General such information and data about the demonstration project as may be required by the Comptroller General, from time to time during the course of the demonstration project and at the conclusion, in order for the Comptroller General to assess the reliability of the demonstration data maintained by both the Office of Special Counsel and the Department of Labor and to review the relative performance of the Office and Department under the demonstration project.

"(g) Government Accountability Office Report.—The Comptroller General shall review the relative performance of the Office of Special Counsel and the Department of Labor under the demonstration project and—

"(1) not later than one year after the commencement of the demonstration project submit to the Committees on Veterans' Affairs of the Senate and House of Representatives an interim report on the demonstration project; and

"(2) not later than 90 days after the conclusion of the demonstration project, submit to such committees a final report that includes the findings and conclusions of the Comptroller General regarding the relative performance of the Office and the Department under the demonstration project and such recommendations as the Comptroller General determines are appropriate."

Pub. L. 108–454, title II, §204, Dec. 10, 2004, 118 Stat. 3606, required the Secretary of Labor and the Office of Special Counsel to carry out a demonstration project during the period beginning 60 days after Dec. 10, 2004, and ending on September 30, 2007, under which certain claims against Federal executive agencies under the Uniformed Services Employment and Reemployment Rights Act of 1994, Pub. L. 103–353, under this chapter were referred to, or otherwise received by, the Office of Special Counsel for assistance.

Executive Documents

Ensuring the Uniformed Services Employment and Reemployment Rights Act (USERRA) Protections

Memorandum of President of the United States, July 19, 2012, 77 F.R. 43699, provided:

Memorandum for the Heads of Executive Departments and Agencies

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) protects individuals performing, or who performed, uniformed service in accordance with 38 U.S.C. 4301–4335 from adverse employment discrimination on the basis of their uniformed service, and provides for their prompt restoration to civilian employment when they return to civilian life.

USERRA is intended to ensure that these service members are not disadvantaged in their civilian careers because of their service; are promptly reemployed in their civilian jobs upon their return from duty; and are not discriminated against in employment because of their military status or obligations. This memorandum will help ensure that Federal agencies improve compliance with USERRA through outreach, education, and oversight.

The Administration strongly believes that every man or woman who has served in our country's uniformed services deserves the full protection of our employment laws, including USERRA. No discrimination or unfair treatment based on one's service will be tolerated. We must do our utmost to ensure that all service members' employment and reemployment rights are respected.

The Federal Government, as our Nation's largest employer, has a responsibility to adopt best practices with respect to employing returning service members. Attracting and retaining the best talent means ensuring fair treatment for individuals who have served our country. Close attention must be paid to our returning service members to ensure that we protect their reemployment rights, and effectively manage their reintegration when they return from service.

As a critical part of that effort, I am directing executive departments and agencies (agencies) to take steps to ensure robust compliance with USERRA's employment and reemployment protections across the Federal Government through outreach, education, and oversight. Ensuring agencies' compliance with USERRA across the Federal Government will maintain our commitment to those who serve.

This effort will build upon, and be in furtherance of, Executive Order 13518 of November 9, 2009 (Employment of Veterans in the Federal Government), which directed agencies to take steps to enhance recruitment of and promote employment opportunities for veterans within the executive branch. Over the last few years, the Federal Government has made a concerted and successful effort to increase the hiring of military veterans and members of the National Guard and Reserves, and veterans now constitute a higher percentage of the Federal workforce than they have in years.

The Federal Government must continue to improve outreach to the uniformed services, veteran, Guard, and Reserve communities; improve agencies' USERRA training and guidance; and ensure that service members and veterans in Federal employment receive the full extent of their employment protections, including USERRA protections. Therefore, by the authority vested in me as President by the Constitution and the laws of the United States of America, I hereby direct the following:

Section 1. USERRA Employment Protection Working Group. There is established the USERRA Employment Protection Working Group (Working Group), to be co-chaired by the Assistant to the President for Domestic Policy and the Assistant to the President and National Security Advisor, or their designated representatives, which shall coordinate and review agency efforts to implement USERRA.

(a) In addition to the Co-Chairs, the Working Group shall include representatives from:

(i) the Department of Defense;

(ii) the Department of Justice;

(iii) the Department of Labor;

(iv) the Department of Veterans Affairs;

(v) the Office of Personnel Management;

(vi) the Office of the Special Counsel; and

(vii) such other agencies or offices as the Co-Chairs may designate.

(b) In addition to coordinating and reviewing agency efforts to implement USERRA pursuant to this memorandum, the Working Group shall:

(i) collect data to better track the Federal Government's performance in implementing USERRA protections;

(ii) coordinate agency efforts to implement best practices, training, and procedures for any agency officials who are authorized to recommend, take, or approve any personnel action with respect to employees of the agency in order to improve compliance with USERRA employment and reemployment protections; and

(iii) conduct outreach to veterans and members of the National Guard and Reserve and other members of the uniformed services to assist them in fully exercising their employment rights.

(c) Within 30 days of the date of this memorandum, the head of each agency shall designate a senior agency official to act as a liaison between the agency and the Working Group. The agency liaison shall be responsible for providing the Working Group with information on agency efforts to implement this memorandum, as well as any other relevant information on service member employment that the Working Group may require.

(d) Within 90 days of the date of this memorandum, the Working Group shall report to the President on Government-wide progress in implementing this memorandum.

Sec. 2. Federal USERRA Guidance. (a) Within 180 days of the date of this memorandum, the Director of the Office of Personnel Management, in consultation with the Council on Veterans Employment established by Executive Order 13518 and offices and agencies participating in the Working Group, as appropriate, shall issue guidance to agencies on Federal USERRA employment protection, which shall describe specific steps agencies can take to improve USERRA employment and reemployment protection policies and practices, including:

(i) improving data collection procedures to help better track overall service member employment data in the Federal Government, including Guard and Reserve members;

(ii) using appropriate metrics, as established by the Office of Personnel Management, to measure implementation of this memorandum;

(iii) using guidance and tools, as developed by the Office of Personnel Management through collaboration with the Working Group and Council on Veterans Employment, which draw upon best agency practices as well as practices and guidance from the private sector; and

(iv) strengthening relationships between service members, stakeholder groups, and the agency, and providing better information to service members so as to allow them to be reintegrated as quickly and efficiently as possible when they return to civilian life.

(b) In the course of developing guidance pursuant to subsection (a), the Director of the Office of Personnel Management, in consultation with the Council on Veterans Employment and offices and agencies participating in the Working Group as appropriate, shall review relevant statutes, regulations, policies, and agency training and guidance to identify reforms that would facilitate improved implementation of and compliance with USERRA. The Director of the Office of Personnel Management, in consultation with the Director of the Office of Management and Budget (OMB), shall report to the President on this review, no later than 1 year from the date of this memorandum, and provide recommendations for changes to laws, regulations, and policies that would strengthen USERRA protections.

(c) In developing guidance pursuant to subsection (a), the Director of the Office of Personnel Management shall consult with affected agencies, interagency groups, and public stakeholders.

(d) The Department of Defense and the Office of Personnel Management shall work together to improve data collection procedures to help better track the overall veteran and service member employment data in the Federal Government, particularly Guard and Reserve Members.

Sec. 3. Ensuring USERRA Employment Protection. The head of each agency shall, as expeditiously as possible:

(a) implement the guidance issued pursuant to section 2 of this memorandum;

(b) ensure that the agency has prioritized policies and actions to implement USERRA employment protections, including providing appropriate training and information, as well as undertaking appropriate reemployment measures; and

(c) allocate sufficient resources to effectively implement the requirements of this memorandum, subject to the availability of appropriations.

Sec. 4. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:

(i) the authority granted by law to a department or agency, or the head thereof; or

(ii) the functions of the Director of OMB relating to budgetary, administrative, or legislative proposals.

(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

(d) Independent agencies are strongly encouraged to comply with the requirements of this memorandum.

The Director of the Office of Personnel Management is hereby authorized and directed to publish this memorandum in the Federal Register.

Barack Obama.

§4302. Relation to other law and plans or agreements

(a) Nothing in this chapter shall supersede, nullify or diminish any Federal or State law (including any local law or ordinance), contract, agreement, policy, plan, practice, or other matter that establishes a right or benefit that is more beneficial to, or is in addition to, a right or benefit provided for such person in this chapter.

(b) This chapter supersedes any State law (including any local law or ordinance), contract, agreement, policy, plan, practice, or other matter that reduces, limits, or eliminates in any manner any right or benefit provided by this chapter, including the establishment of additional prerequisites to the exercise of any such right or the receipt of any such benefit.

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

Editorial Notes

Prior Provisions

A prior section 4302, added Pub. L. 93–508, title IV, §404(a), Dec. 3, 1974, 88 Stat. 1596, §2022; amended Pub. L. 97–295, §4(71), Oct. 12, 1982, 96 Stat. 1310; Pub. L. 98–620, title IV, §402(36), Nov. 8, 1984, 98 Stat. 3360; renumbered §4302 and amended Pub. L. 102–568, title V, §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.

Statutory Notes and Related Subsidiaries

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.

§4303. Definitions

For the purposes of this chapter—

(1) The term "Attorney General" means the Attorney General of the United States or any person designated by the Attorney General to carry out a responsibility of the Attorney General under this chapter.

(2) The term "benefit", "benefit of employment", or "rights and benefits" means the terms, conditions, or privileges of employment, including any advantage, profit, privilege, gain, status, account, or interest (including 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.

(D)(i) Whether the term "successor in interest" applies with respect to an entity described in subparagraph (A) for purposes of clause (iv) of such subparagraph shall be determined on a case-by-case basis using a multi-factor test that considers the following factors:

(I) Substantial continuity of business operations.

(II) Use of the same or similar facilities.

(III) Continuity of work force.

(IV) Similarity of jobs and working conditions.

(V) Similarity of supervisory personnel.

(VI) Similarity of machinery, equipment, and production methods.

(VII) Similarity of products or services.

(ii) The entity's lack of notice or awareness of a potential or pending claim under this chapter at the time of a merger, acquisition, or other form of succession shall not be considered when applying the multi-factor test under clause (i).

(5) The term "Federal executive agency"—

(A) except as provided in subparagraph (B), includes—

(i) the United States Postal Service;

(ii) the Postal Regulatory Commission;

(iii) any nonappropriated fund instrumentality of the United States;

(iv) any Executive agency (as defined in section 105 of title 5); and

(v) any military department (as defined in section 102 of title 5) with respect to the civilian employees of that department; and

(B) does not include—

(i) an agency referred to in section 2302(a)(2)(C)(ii) of title 5;

(ii) the National Oceanic and Atmospheric Administration with respect to members of the commissioned officer corps of the National Oceanic and Atmospheric Administration; or

(iii) the Public Health Service with respect to members of the Commissioned Corps of the Public Health Service serving on active duty, active duty for training, or inactive duty training.

(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, State active duty for a period of 14 days or more, State active duty in response to a national emergency declared by the President under the National Emergencies Act (50 U.S.C. 1601 et seq.), State active duty in response to a major disaster declared by the President under section 401 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170), 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, a period for which a System member of the National Urban Search and Rescue Response System is absent from a position of employment due to an appointment into Federal service under section 327 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, a period for which a person is absent from a position of employment due to an appointment into service in the Federal Emergency Management Agency as intermittent personnel under section 306(b)(1) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5149(b)(1)), 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 "State active duty" means training or other duty, other than inactive duty, performed by a member of the National Guard of a State—

(A) not under section 502 of title 32 or under title 10;

(B) in service to the Governor of a State; and

(16) 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.

(17) 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, the commissioned officer corps of the National Oceanic and Atmospheric Administration, System members of the National Urban Search and Rescue Response System during a period of appointment into Federal service under section 327 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, intermittent personnel who are appointed into Federal Emergency Management Agency service under section 306(b)(1) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5149(b)(1)) or to train for such service, and any other category of persons designated by the President in time of war or national emergency.

(Added Pub. L. 103–353, §2(a), Oct. 13, 1994, 108 Stat. 3150; amended Pub. L. 104–275, title III, §311(2), Oct. 9, 1996, 110 Stat. 3334; Pub. L. 105–368, title II, §212(a), Nov. 11, 1998, 112 Stat. 3331; Pub. L. 106–419, title III, §323(a), Nov. 1, 2000, 114 Stat. 1855; Pub. L. 107–14, §8(a)(11), (b)(2), June 5, 2001, 115 Stat. 35, 36; Pub. L. 109–435, title VI, §604(f), Dec. 20, 2006, 120 Stat. 3242; Pub. L. 111–275, title VII, §§701(a), 702(a), Oct. 13, 2010, 124 Stat. 2887; Pub. L. 112–56, title II, §251, Nov. 21, 2011, 125 Stat. 729; Pub. L. 114–326, §2(b)(2), Dec. 16, 2016, 130 Stat. 1972; Pub. L. 116–259, title II, §208, Dec. 23, 2020, 134 Stat. 1168; Pub. L. 116–315, title VII, §7004, Jan. 5, 2021, 134 Stat. 5058; Pub. L. 117–178, §3(a), Sept. 29, 2022, 136 Stat. 2110; Pub. L. 117–263, div. E, title LI, §5121, Dec. 23, 2022, 136 Stat. 3210.)

Editorial Notes

References in Text

The National Emergencies Act, referred to in par. (13), is Pub. L. 94–412, Sept. 14, 1976, 90 Stat. 1255, which is classified principally to chapter 34 (§1601 et seq.) of Title 50, War and National Defense. For complete classification of this Act to the Code, see Short Title note set out under section 1601 of Title 50 and Tables.

Section 327 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, referred to in pars. (13) and (17), is classified to section 5165f of Title 42, The Public Health and Welfare.

Prior Provisions

A prior section 4303, added Pub. L. 93–508, title IV, §404(a), Dec. 3, 1974, 88 Stat. 1596, §2023; amended Pub. L. 97–295, §4(72), Oct. 12, 1982, 96 Stat. 1310; renumbered §4303 and amended Pub. L. 102–568, title V, §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

2022—Par. (5). Pub. L. 117–263, §5121(a), amended par. (5) generally. Prior to amendment, par. (5) read as follows: "The term 'Federal executive agency' includes the United States Postal Service, the Postal Regulatory 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."

Par. (13). Pub. L. 117–178, §3(a)(1), inserted ", a period for which a person is absent from a position of employment due to an appointment into service in the Federal Emergency Management Agency as intermittent personnel under section 306(b)(1) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5149(b)(1))" before ", and a period".

Par. (16). Pub. L. 117–178, §3(a)(2), redesignated par. (16) defining "uniformed services" as (17).

Par. (17). Pub. L. 117–263, §5121(b), substituted "Commissioned Corps of the Public Health Service" for "commissioned corps of the Public Health Service".

Pub. L. 117–178, §3(a)(2), (3), redesignated par. (16) defining "uniformed services" as (17) and inserted "intermittent personnel who are appointed into Federal Emergency Management Agency service under section 306(b)(1) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5149(b)(1)) or to train for such service," before "and any other category".

2021—Par. (13). Pub. L. 116–315, §7004(1), inserted "State active duty for a period of 14 days or more, State active duty in response to a national emergency declared by the President under the National Emergencies Act (50 U.S.C. 1601 et seq.), State active duty in response to a major disaster declared by the President under section 401 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170)," after "full-time National Guard duty,".

Pars. (15), (16). Pub. L. 116–315, §7004(2), (3), added par. (15) and redesignated former par. (15) as (16) defining "undue hardship".

2020—Par. (16). Pub. L. 116–259 inserted "the commissioned officer corps of the National Oceanic and Atmospheric Administration," after "Public Health Service," in par. (16) defining "uniformed services".

2016—Par. (13). Pub. L. 114–326, §2(b)(2)(A), inserted ", a period for which a System member of the National Urban Search and Rescue Response System is absent from a position of employment due to an appointment into Federal service under section 327 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act" before ", and a period".

Par. (16). Pub. L. 114–326, §2(b)(2)(B), inserted "System members of the National Urban Search and Rescue Response System during a period of appointment into Federal service under section 327 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act," after "Public Health Service,".

2011—Par. (2). Pub. L. 112–56 inserted "the terms, conditions, or privileges of employment, including" after "means".

2010—Par. (2). Pub. L. 111–275, §701(a), substituted "(including" for "(other than".

Par. (4)(D). Pub. L. 111–275, §702(a), added subpar. (D).

2006—Par. (5). Pub. L. 109–435 substituted "Postal Regulatory Commission" for "Postal Rate Commission".

2001—Par. (13). Pub. L. 107–14, §8(b)(2), made technical amendment to directory language of Pub. L. 106–419, §323(a)(1). See 2000 Amendment note below.

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

2000—Par. (13). Pub. L. 106–419, §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, §323(a)(1), as amended by Pub. L. 107–14, §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".

Statutory Notes and Related Subsidiaries

Effective Date of 2010 Amendment

Pub. L. 111–275, title VII, §701(b), Oct. 13, 2010, 124 Stat. 2887, provided that: "The amendment made by subsection (a) [amending this section] shall apply to—

"(1) any failure to comply with a provision of or any violation of chapter 43 of title 38, United States Code, that occurs before, on, or after the date of the enactment of this Act [Oct. 13, 2010]; and

"(2) all actions or complaints filed under such chapter 43 that are pending on or after the date of the enactment of this Act."

Pub. L. 111–275, title VII, §702(b), Oct. 13, 2010, 124 Stat. 2888, provided that: "The amendment made by subsection (a) [amending this section] shall apply to—

"(2) all actions or complaints filed under such chapter 43 that are pending on or after the date of the enactment of this Act."

Effective Date of 2001 Amendment

Pub. L. 107–14, §8(b), June 5, 2001, 115 Stat. 36, 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, §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, §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

§4304. Character of service

A person's entitlement to the benefits of this chapter by reason of the service of such person in one of the uniformed services terminates upon the occurrence of any of the following events:

(1) A separation of such person from such uniformed 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.

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

Editorial Notes

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, §404(a), Dec. 3, 1974, 88 Stat. 1598, §2024; amended Pub. L. 94–286, §2, May 14, 1976, 90 Stat. 518; Pub. L. 94–502, title VI, §608(3), Oct. 15, 1976, 90 Stat. 2405; Pub. L. 96–466, title V, §511, Oct. 17, 1980, 94 Stat. 2207; Pub. L. 99–576, title VII, §701(60), Oct. 28, 1986, 100 Stat. 3296; Pub. L. 102–12, §8(a)(1), (b)(1), Mar. 18, 1991, 105 Stat. 38; renumbered §4304 and amended Pub. L. 102–568, title V, §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, §404(a), Dec. 3, 1974, 88 Stat. 1600, §2025; renumbered §4305, Pub. L. 102–568, title V, §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, §404(a), Dec. 3, 1974, 88 Stat. 1600, §2026; renumbered §4306, Pub. L. 102–568, title V, §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, §339(a), Apr. 6, 1991, 105 Stat. 91, §2027; renumbered §4307, Pub. L. 102–568, title V, §506(a), Oct. 29, 1992, 106 Stat. 4340, related to qualification for employment position, prior to repeal by Pub. L. 103–353, §8(d)(2), Oct. 13, 1994, 108 Stat. 3176, eff. Aug. 1, 1990.