AT THE SECOND SESSION: Begun and held
at the City of Washington on Tuesday, the twenty-fifth day of January, one
thousand nine hundred and ninety-four An Act To amend title 38, United States Code, to improve
reemployment rights and benefits of veterans and other benefits of
employment of certain members of the uniformed services, and for other
purposes. Be it enacted by the Senate and House of
Representatives of the United States of America in Congress
assembled, This Act may be cited as the "Uniformed Services
Employment and Reemployment Rights Act of 1994". (a) Restatement and Improvement of Employment and
Reemployment Rights: Chapter 43 of title 38, United States Code, is
amended to read as follows: 4301. Purposes; sense of Congress. 4311. Discrimination against persons who serve in the
uniformed services and acts of reprisal prohibited. 4321. Assistance in obtaining reemployment or other
employment rights or benefits. 4331. Regulations. (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. (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. 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. (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, and a period for which a person
is absent from a position of employment for the purpose of an examination
to determine the fitness of the person to perform any such
duty. (14) The term 'State' means each of the several
States of the United States, the District of Columbia, the Commonwealth of
Puerto Rico, Guam, the Virgin Islands, and other territories of the United
States (including the agencies and political subdivisions
thereof). (15) The term 'undue hardship', in the case of
actions taken by an employer, means actions requiring significant
difficulty or expense, when considered in light of-- (A) the nature and cost of the action needed under
this chapter; (B) the overall financial resources of the facility
or facilities involved in the provision of the action; the number of
persons employed at such facility; the effect on expenses and resources,
or the impact otherwise of such action upon the operation of the
facility; (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
emergency. 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. (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- (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. (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 a 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. (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 uniform services for any reason (other than disability
incurred in, or aggravated during, service in the uniformed services), and
(B) cannot become qualified with reasonable efforts by the employer, in
any other position 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. (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). (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. (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. (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. (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 theplan 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
applicablecollective 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, 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. 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. (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. (a)(1) A
person who receives from the Secretary a notification pursuant to section
4322(e) relating to a State (as an employer) or a private employer may
request that the Secretary refer the complaint to the Attorney General. If
the Attorney General is reasonably satisfied that the person on whose
behalf the complaint is referred is entitled to the rights or benefits
sought, the Attorney General may appear on behalf of, and act as attorney
for, the person on whose behalf the complaint is submitted and commence an
action for appropriate relief for such person in an appropriate United
States district court. (2) A
person may commence an action for relief with respect to a complaint if
that person-- (A) has
chosen not to apply to the Secretary for assistance under section
4322(a); (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) In the
case of an action against a State as an employer, the appropriate district
court is the court for any district in which the State exercises any
authority or carries out any function. In the case of a private employer
the appropriate district court is the district court for any district in
which the private employer of the person maintains a place of
business. (c)(1)(A)
The district courts of the United States shall have jurisdiction, upon the
filing of a complaint, motion, petition, or other appropriate pleading by
or on behalf of the person claiming a right or benefit under this
chapter-- (i) to
require the employer to comply with the provisions of this
chapter; (ii) to
require the employer to compensate the person for any loss of wages or
benefits suffered by reason of such employer's failure to comply with the
provisions of this chapter; and (iii) to
require the employer to pay the person an amount equal to the amount
referred to in clause (ii) as liquidated damages, if the court determines
that the employer's failure to comply with the provisions of this chapter
was willful. (B) Any
compensation under clauses (ii) and (iii) of subparagraph (A) shall be in
addition to, and shall not diminish, any of the other rights and benefits
provided for in this chapter. (2)(A) No
fees or court costs shall be charged or taxed against any person claiming
rights under this chapter. (B) In any
action or proceeding to enforce a provision of this chapter by a person
under subsection (a)(2) who obtained private counsel for such action or
proceeding, the court may award any such person who prevails in such
action or proceeding reasonable attorney fees, expert witness fees, and
other litigation expenses. (3) The
court may use its full equity powers, including temporary or permanent
injunctions, temporary restraining orders, and contempt orders, to
vindicate fully the rights or benefits of persons under this
chapter. (4) An
action under this chapter may be initiated only by a person claiming
rights or benefits under this chapter, not by an employer, prospective
employer, or other entity with obligations under this chapter. (5) In any
such action, only an employer or a potential employer, as the case may be,
shall be a necessary party respondent. (6) No
State statute of limitations shall apply to any proceeding under this
chapter. (7) A State
shall be subject to the same remedies, including prejudgment interest, as
may be imposed upon any private employer under this section. (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). 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. (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 employee and Federal agencies under this
chapter; or (2) as
prohibiting such an agency from voluntarily cooperating with or seeking
assistance in or of clarification from the Secretary or the Director of
the Office of Personnel Management of any matter arising under this
chapter. (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.One Hundred Third
Congress
of the
United States of America
SECTION 1. SHORT TITLE.
SEC. 2. REVISION OF CHAPTER 43 OF
TITLE 38.
CHAPTER 43--EMPLOYMENT AND
REEMPLOYMENT RIGHTS OF MEMBERS OF THE UNIFORMED SERVICES
SUBCHAPTER
I--GENERAL
4302. Relation to other law and plans or
agreements.
4303. Definitions.
4304. Character of service.SUBCHAPTER II--EMPLOYMENT AND REEMPLOYMENT RIGHTS
AND LIMITATIONS; PROHIBITIONS
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.SUBCHAPTER III--PROCEDURES FOR
ASSISTANCE, ENFORCEMENT, AND INVESTIGATION
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
4332.
Reports.
4333. Outreach.
SUBCHAPTER I--GENERAL
§ 4301. Purposes; sense of
Congress
§ 4302. Relation to other law and
plans or agreements
§ 4303. Definitions
§ 4304. Character of
service
SUBCHAPTER II--EMPLOYMENT AND REEMPLOYMENT RIGHTS
AND LIMITATIONS; PROHIBITIONS
§ 4311. Discrimination against
persons who serve in the uniformed services and acts of reprisal
prohibited
(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. § 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
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
(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) of title 5.
§ 4332. Reports
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.
§ 4333. Outreach
The Secretary, the Secretary of Defense, and the Secretary of Veterans Affairs shall take such actions as such Secretaries determine are appropriate to inform persons entitled to rights and benefits under this chapter and employers of the rights, benefits, and obligations of such persons and such employers under this chapter.'.
(b) Conforming Amendments:
(1) Amendments to title 38: The tables of chapters at the beginning of title 38, United States Code, and the beginning of part III of such title are each amended by striking out the item relating to chapter 43 and inserting in lieu thereof the following:
43. Employment and reemployment rights of members of the uniformed services ......................................... 4301.
(2) Amendment to title 5: (A) Section 1204(a)(1) of title 5, United States Code, is amended by striking out 'section 4323' and inserting in lieu thereof 'chapter 43'.
(B) Subchapter II of chapter 35 of such title is repealed.
(C) The table of sections for chapter 35 of such title is amended by striking out the heading relating to subchapter II of such chapter and the item relating to section 3551 of such chapter.
(3) Amendment to title 10: Section 706(c)(1) of title 10, United States Code, is amended by striking out 'section 4321' and inserting in lieu thereof 'chapter 43'.
(c) Amendments to Title 28: Section 631 of title 28, United States Code, is amended--
(1) by striking out subsection (j);
(2) by redesignating subsections (k) and (l) as subsections (j) and (k), respectively; and
(3) in subsection (j), as redesignated by paragraph (2), by striking out 'under the terms of' and all that follows through 'section,' the first place it appears and inserting in lieu thereof 'under chapter 43 of title 38,'.
SEC. 3. EXEMPTION FROM MINIMUM SERVICE REQUIREMENTS.
Section 5303A(b)(3) of title 38, United States Code, is amended--
(1) by striking out 'or' at the end of subparagraph (E);
(2) by striking out the period at the end of subparagraph (F) and inserting in lieu thereof '; or'; and
(3) by adding at the end thereof the following new subparagraph:
(G) to benefits under chapter 43 of this title..
SEC. 4. THRIFT SAVINGS PLAN.
(a) In General: (1) Title 5, United States Code, is amended by inserting after section 8432a the following:
§ 8432b. Contributions of persons who perform military service
(a) This section applies to any employee who--
(1) separates or enters leave-without-pay status in order to perform military service; and
(2) is subsequently restored to or reemployed in a position which is subject to this chapter, pursuant to chapter 43 of title 38.
(b)(1) Each employee to whom this section applies may contribute to the Thrift Savings Fund, in accordance with this subsection, an amount not to exceed the amount described in paragraph (2).
(2) The maximum amount which an employee may contribute under this subsection is equal to--
(A) the contributions under section 8432(a) which would have been made, over the period beginning on date of separation or commencement of leave-without-pay status (as applicable) and ending on the day before the date of restoration or reemployment (as applicable); reduced by
(B) any contributions under section 8432(a) actually made by such employee over the period described in subparagraph (A).
(3) Contributions under this subsection--
(A) shall be made at the same time and in the same manner as would any contributions under section 8432(a);
(B) shall be made over the period of time specified by the employee under paragraph (4)(B); and
(C) shall be in addition to any contributions then actually being made under section 8432(a).
(4) The Executive Director shall prescribe the time, form, and manner in which an employee may specify--
(A) the total amount such employee wishes to contribute under this subsection with respect to any particular period referred to in paragraph (2)(B); and
(B) the period of time over which the employee wishes to make contributions under this subsection.
The employing agency may place a maximum limit on the period of time referred to in subparagraph (B), which cannot be shorter than two times the period referred to in paragraph (2)(B) and not longer than four times such period.
(c) If an employee makes contributions under subsection (b), the employing agency shall make contributions to the Thrift Savings Fund on such employee's behalf--
(1) in the same manner as would be required under section 8432(c)(2) if the employee contributions were being made under section 8432(a); and
(2) disregarding any contributions then actually being made under section 8432(a) and any agency contributions relating thereto.
(d) An employee to whom this section applies is entitled to have contributed to the Thrift Savings Fund on such employee's behalf an amount equal to--
(1) 1 percent of such employee's basic pay (as determined under subsection (e)) for the period referred to in subsection (b)(2)(B); reduced by
(2) any contributions actually made on such employee's behalf under section 8432(c)(1) with respect to the period referred to in subsection (b)(2)(B).
(e) For purposes of any computation under this section, an employee shall, with respect to the period referred to in subsection (b)(2)(B), be considered to have been paid at the rate which would have been payable over such period had such employee remained continuously employed in the position which such employee last held before separating or entering leave-without-pay status to perform military service.
(f)(1) The employing agency may be required to pay lost earnings on contributions made pursuant to subsections (c) and (d). Such earnings, if required, shall be calculated retroactively to the date the contribution would have been made had the employee not separated or entered leave without pay status to perform military service.
(2) Procedures for calculating and crediting the earnings payable pursuant to paragraph (1) shall be prescribed by the Executive Director.
(g) Amounts paid under subsection (c), (d), or (f) shall be paid--
(1) by the agency to which the employee is restored or in which such employee is reemployed;
(2) from the same source as would be the case under section 8432(e) with respect to sums required under section 8432(c); and
(3) within the time prescribed by the Executive Director
(h)(1) For purposes of section 8432(g), in the case of an employee to whom this section applies--
(A) a separation from civilian service in order to perform the military service on which the employee's restoration or reemployment rights are based shall be disregarded; and
(B) such employee shall be credited with a period of civilian service equal to the period referred to in subsection (b)(2)(B).
(2)(A) An employee to whom this section applies may elect, for purposes of section 8433(d), or paragraph (1) or (2) of section 8433(h), as the case may be, to have such employee's separation (described in subsection (a)(1)) treated as if it had never occurred.
(B) An election under this paragraph shall be made within such period of time after restoration or reemployment (as the case may be) and otherwise in such manner as the Executive Director prescribes.
(i) The Executive Director shall prescribe regulations to carry out this section.
(2) The table of sections for chapter 84 of title 5, United States Code, is amended by inserting after the item relating to section 8432a the following:
8432b. Contributions of persons who perform military service.'.
(b) Preservation of Certain Rights: (1) Section 8433(d) of title 5, United States Code, is amended by striking 'subsection (e).' And inserting 'subsection (e), unless an election under section 8432b(h)(2) is made to treat such separation for purposes of this subsection as if it had never occurred.'.
(2) Paragraphs (1) and (2) of section 8433(h) are each amended by striking the period at the end and inserting ', or unless an election under section 8432b(h)(2) is made to treat such separation for purposes of this paragraph as if it had never occurred.'.
(c) Election To Resume Regular Contributions Upon Restoration or Reemployment: Section 8432 of title 5, United States Code, is amended by adding at the end the following:
(i)(1) This subsection applies to any employee--
(A) to whom section 8432b applies; and
(B) who, during the period of such employee's absence from civilian service (as referred to in section 8432b(b)(2)(B))--
(i) is eligible to make an election described in subsection (b)(1); or
(ii) would be so eligible but for having either elected to terminate individual contributions to the Thrift Savings Fund within 2 months before commencing military service or separated in order to perform military service.
(2) The Executive Director shall prescribe regulations to ensure that any employee to whom this subsection applies shall, within a reasonable time after being restored or reemployed (in the manner described in section 8432b(a)(2)), be afforded the opportunity to make, for purposes of this section, any election which would be allowable during a period described in subsection (b)(1)(A).'.
(d) Applicability to Employees Under CSRS: Section 8351(b) of title 5, United States Code, is amended by adding at the end the following:
(11) In applying section 8432b to an employee contributing to the Thrift Savings Fund after being restored to or reemployed in a position subject to this subchapter, pursuant to chapter 43 of title 38--
(A) any reference in such section to contributions under section 8432(a) shall be considered a reference to employee contributions under this section;
(B) the contribution rate under section 8432b(b)(2)(A) shall be the maximum percentage allowable under subsection (b)(2) of this section; and
(C) subsections (c) and (d) of section 8432b shall be disregarded.'.
(e) Effective Date; Applicability: This section and the amendments made by this section--
(1) shall take effect on the date of enactment of this Act; and
(2) shall apply to any employee whose release from military service, discharge from hospitalization, or other similar event making the individual eligible to seek restoration or reemployment under chapter 43 of title 38, United States Code, occurs on or after August 2, 1990.
(f) Rules for Applying Amendments to Employees Restored or Reemployed Before Effective Date: In the case of any employee (described in subsection (e)(2)) who is reemployed or restored (in the circumstances described in section 8432b(a) of title 5, United States Code, as amended by this section) before the date of enactment of this Act, the amendments made by this section shall apply to such employee, in accordance with their terms, subject to the following:
(1) The employee shall be deemed not to have been reemployed or restored until--
(A) the date of enactment of this Act, or
(B) the first day following such employee's reemployment or restoration on which such employee is or was eligible to make an election relating to contributions to the Thrift Savings Fund, whichever occurs or occurred first.
(2) If the employee changed agencies during the period between the date of actual reemployment or restoration and the date of enactment of this Act, the employing agency as of such date of enactment shall be considered the reemploying or restoring agency.
(3)(A) For purposes of any computation under section 8432b of such title, pay shall be determined in accordance with subsection (e) of such section, except that, with respect to the period described in subparagraph (B), actual pay attributable to such period shall be used.
(B) The period described in this subparagraph is the period beginning on the first day of the first applicable pay period beginning on or after the date of the employee's actual reemployment or restoration and ending on the day before the date determined under paragraph (1).
(4) Deem section 8432b(b)(2)(A) of such title to be amended by striking 'ending on the day before the date of restoration or reemployment (as applicable)' and inserting 'ending on the date determined under section 4(f)(1) of the Uniformed Services Employment and Reemployment Rights Act of 1994'.
SEC. 5. REVISION OF FEDERAL CIVIL SERVICE RETIREMENT BENEFIT PROGRAM FOR RESERVISTS.
(a) Creditable Military Service Under CSRS: Section 8331(13) of title 5, United States Code, is amended in the flush matter by inserting 'or full-time National Guard duty (as such term is defined in section 101(d) of title 10) if such service interrupts creditable civilian service under this subchapter and is followed by reemployment in accordance with chapter 43 of title 38 that occurs on or after August 1, 1990' before the semicolon.
(b) Pay Deductions for Military Service Under CSRS: Section 8334(j) of such title is amended--
(1) in paragraph (1)--
(A) by striking 'Each employee' and inserting '(A) Except as provided in subparagraph (B), each employee'; and
(B) by adding at the end the following:
(B) In any case where military service interrupts creditable civilian service under this subchapter and reemployment pursuant to chapter 43 of title 38 occurs on or after August 1, 1990, the deposit payable under this paragraph may not exceed the amount that would have been deducted and withheld under subsection (a)(1) from basic pay during civilian service if the employee had not performed the period of military service.'; and
(2) in paragraph (2), immediately before the comma at the end of subparagraph (B), by inserting 'following the period of military service for which such deposit is due'.
(c) Creditable Military Service Under FERS: Section 8401(31) of such title is amended in the flush matter by inserting 'or full-time National Guard duty (as such term is defined in section 101(d) of title 10) if such service interrupts creditable civilian service under this subchapter and is followed by reemployment in accordance with chapter 43 of title 38 that occurs on or after August 1, 1990' before the semicolon.
(d) Pay Deductions for Military Service Under FERS: Section 8422(e) of such title is amended--
(1) in paragraph (1)--
(A) by striking 'Each employee' and inserting '(A) Except as provided in subparagraph (B), each employee'; and
(B) by adding at the end the following:
(B) In any case where military service interrupts creditable civilian service under this subchapter and reemployment pursuant to chapter 43 of title 38 occurs on or after August 1, 1990, the deposit payable under this paragraph may not exceed the amount that would have been deducted and withheld under subsection (a)(1) from basic pay during civilian service if the employee had not performed the period of military service.'; and
(2) in paragraph (2), immediately before the comma at the end of subparagraph (B), by inserting 'following the period of military service for which such deposit is due'.
(e) Technical Amendments: Title 5, United States Code, is amended as follows:
(1) In section 8401(11), by striking out '1954' in the flush matter above clause (i) and inserting in lieu thereof '1986'.
(2) In section 8422(a)(2)(A)(ii), by striking out '1954' and inserting in lieu thereof '1986'.
(3) In section 8432(d), by striking out '1954' in the first sentence and inserting in lieu thereof '1986'.
(4) In section 8433(i)(4), by striking out '1954' and inserting in lieu thereof '1986'.
(5) In section 8440--
(A) by striking out '1954' in subsection (a) and inserting in lieu thereof '1986'; and
(B) by striking out '1954' in subsection (c) and inserting in lieu thereof '1986'.
SEC. 6. TECHNICAL AMENDMENT.
(a) Technical Amendment: Section 9(d) of Public Law 102-16 (105 Stat. 55) is amended by striking out 'Act' the first place it appears and inserting in lieu thereof 'section'.
(b) Effective Date: The amendment made by subsection (a) shall take effect as if included in Public Law 102-16 to which such amendment relates.
SEC. 7. INCREASE IN AMOUNT OF LOAN GUARANTY FOR LOANS FOR THE PURCHASE OR CONSTRUCTION OF HOMES.
Subparagraphs (A)(i)(IV) and (B) of section 3703(a)(1) of title 38, United States Code, are each amended by striking out '$46,000' and inserting in lieu thereof '$50,750'.
SEC. 8. TRANSITION RULES AND EFFECTIVE DATES.
(a) Reemployment: (1) Except as otherwise provided in this Act, the amendments made by this Act shall be effective with respect to reemployments initiated on or after the first day after the 60-day period beginning on the date of enactment of this Act.
(2) The provisions of chapter 43 of title 38, United States Code, in effect on the day before such date of enactment, shall continue to apply to reemployments initiated before the end of such 60-day period.
(3) In determining the number of years of service that may not be exceeded in an employee-employer relationship with respect to which a person seeks reemployment under chapter 43 of title 38, United States Code, as in effect before or after the date of enactment of this Act, there shall be included all years of service without regard to whether the periods of service occurred before or after such date of enactment unless the period of service is exempted by the chapter 43 that is applicable, as provided in paragraphs (1) and (2), to the reemployment concerned. 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 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.
(b) Discrimination: The provisions of section 4311 of title 38, United States Code, as provided in the amendments made by this Act, and the provisions of subchapter III of chapter 43 of such title, as provided in the amendments made by this Act, that are necessary for the implementation of such section 4311 shall become effective on the date of enactment of this Act.
(c) Insurance: (1) The provisions of section 4316 of title 38, United States Code, as provided in the amendments made by this Act, concerning insurance coverage (other than health) shall become effective with respect to furloughs or leaves of absence initiated on or after the date of enactment of this Act.
(2) With respect to the provisions of section 4317 of title 38, United States Code, as provided in the amendments made by this Act, 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), 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 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 notapply to any other right or benefit of a person under chapter 43 of title 38, United States Code. Such section shall apply only to persons who leave a position of employment for service in the uniformed services more than 60 days after the date of enactment of this Act.
(h) Employer Pension Benefit Plans: (1) Nothing in this Act shall be construed to relieve an employer of an obligation to provide contributions to a pension plan (or provide pension 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.
(2) If any employee pension benefit plan is not in compliance with section 4318 of such title or paragraph (1) of this subsection on the date of enactment of this Act, such plan shall have two years to come into compliance with such section and paragraph.
(i) Definition: For the purposes of this section, the term 'service in the uniformed services' shall have the meaning given such term in section 4303(13) of title 38, United States Code, as provided in the amendments made by this Act.
