Notes on 38 U.S.C. § 4301 : US Code - Notes

Search Notes on 38 U.S.C. § 4301 : US Code - Notes

(Added Pub. L. 103-353, Sec. 2(a), Oct. 13, 1994, 108 Stat. 3150;
amended Pub. L. 104-275, title III, Sec. 311(1), Oct. 9, 1996, 110
Stat. 3333.)
PRIOR PROVISIONS
A prior section 4301, added Pub. L. 93-508, title IV, Sec.
404(a), Dec. 3, 1974, 88 Stat. 1594, Sec. 2021; amended Pub. L. 94-
502, title VI, Sec. 608(1), (2), Oct. 15, 1976, 90 Stat. 2405;
Pub. L. 99-576, title III, Sec. 331, Oct. 28, 1986, 100 Stat. 3279;
Pub. L. 102-12, Sec. 5(a), Mar. 18, 1991, 105 Stat. 36; Pub. L. 102-
25, title III, Sec. 340(a), Apr. 6, 1991, 105 Stat. 92; renumbered
Sec. 4301, Pub. L. 102-568, title V, Sec. 506(a), Oct. 29, 1992,
106 Stat. 4340, related to reemployment rights of persons inducted
into the Armed Forces of the United States and benefits protected,
prior to the general amendment of this chapter by Pub. L. 103-353.
This section, as in effect on the day before Oct. 13, 1994,
continues to apply to reemployments initiated before the end of the
60-day period beginning Oct. 13, 1994, see section 8 of Pub. L. 103-
353, as amended, set out as an Effective Date note below.
Another prior section 4301 was renumbered section 7601 of this
title.
AMENDMENTS
1996 - Subsec. (a)(2). Pub. L. 104-275 struck out "under
honorable conditions" after "upon their completion of such
service".
EFFECTIVE DATE OF 1996 AMENDMENT
Section 313 of Pub. L. 104-275 provided that:
"(a) In General. - Except as provided in subsection (b), the
amendments made by this subtitle [subtitle B (Secs. 311-313) of
title III of Pub. L. 104-275, amending this section, sections 4303,
4311 to 4313, 4316 to 4318, and 4322 to 4326 of this title, and
provisions set out as a note below] shall take effect as of October
13, 1994.
"(b) Reorganized Title 10 References. - The amendments made by
clause (i), and subclauses (I), (III), and (IV) of clause (ii), of
section 311(4)(B) [amending section 4312 of this title] shall take
effect as of December 1, 1994."
EFFECTIVE DATE
Section 8 of Pub. L. 103-353, as amended by Pub. L. 104-275,
title III, Sec. 312, Oct. 9, 1996, 110 Stat. 3336, provided that:
"(a) Reemployment. - (1) Except as otherwise provided in this Act
[see Short Title of 1994 Amendment note set out under section 101
of this title], the amendments made by this Act shall be effective
with respect to reemployments initiated on or after the first day
after the 60-day period beginning on the date of enactment of this
Act [Oct. 13, 1994].
"(2) The provisions of chapter 43 of title 38, United States
Code, in effect on the day before such date of enactment, shall
continue to apply to reemployments initiated before the end of such
60-day period.
"(3) In determining the number of years of service that may not
be exceeded in an employee-employer relationship with respect to
which a person seeks reemployment under chapter 43 of title 38,
United States Code, as in effect before or after the date of
enactment of this Act, there shall be included all years of service
without regard to whether the periods of service occurred before or
after such date of enactment unless the period of service is
exempted by the chapter 43 that is applicable, as provided in
paragraphs (1) and (2), to the reemployment concerned. Any service
begun up to 60 days after the date of the enactment of this Act,
which is served up to 60 days after the date of the enactment of
this Act pursuant to orders issued under section 502(f) of title
32, United States Code, shall be considered under chapter 43 of
title 38, United States Code, as in effect on the day before such
date of enactment. Any service pursuant to orders issued under such
section 502(f) served after 60 days after the date of the enactment
of this Act, regardless of when begun, shall be considered under
the amendments made by this Act.
"(4) A person who initiates reemployment under chapter 43 of
title 38, United States Code, during or after the 60-day period
beginning on the date of enactment of this Act and whose
reemployment is made in connection with a period of service in the
uniformed services that was initiated before the end of such 60-day
period shall be deemed to have satisfied the notification
requirement of section 4312(a)(1) of title 38, United States Code,
as provided in the amendments made by this Act, if the person
complied with any applicable notice requirement under chapter 43,
United States Code, as in effect on the day before the date of
enactment of this Act [Oct. 13, 1994].
"(b) Discrimination. - The provisions of section 4311 of title
38, United States Code, as provided in the amendments made by this
Act, and the provisions of subchapter III of chapter 43 of such
title, as provided in the amendments made by this Act, that are
necessary for the implementation of such section 4311 shall become
effective on the date of enactment of this Act [Oct. 13, 1994].
"(c) Insurance. - (1) The provisions of section 4316 of title 38,
United States Code, as provided in the amendments made by this Act,
concerning insurance coverage (other than health) shall become
effective with respect to furloughs or leaves of absence initiated
on or after the date of enactment of this Act [Oct. 13, 1994].
"(2) With respect to the provisions of section 4317 of title 38,
United States Code, as provided in the amendments made by this Act,
a person serving a period of service in the uniformed services on
the date of enactment of this Act, or a family member or personal
representative of such person, may, after the date of enactment of
this Act, elect to reinstate or continue a health plan as provided
in such section 4317. If such an election is made, the health plan
shall remain in effect for the remaining portion of the 18-month
period that began on the date of such person's separation from
civilian employment or the period of the person's service in the
uniformed service, whichever is the period of lesser duration.
"(d) Disability. - (1) Section 4313(a)(3) of chapter 43 of title
38, United States Code, as provided in the amendments made by this
Act, shall apply to reemployments initiated on or after August 1,
1990.
"(2) Effective as of August 1, 1990, section 4307 of title 38,
United States Code (as in effect on the date of enactment of this
Act [Oct. 13, 1994]), is repealed, and the table of sections at the
beginning of chapter 43 of such title (as in effect on the date of
enactment of this Act) is amended by striking out the item relating
to section 4307.
"(e) Investigations and Subpoenas. - The provisions of section
4326 of title 38, United States Code, as provided in the amendments
made by this Act, shall become effective on the date of the
enactment of this Act [Oct. 13, 1994] and apply to any matter
pending with the Secretary of Labor under section 4305 of title 38,
United States Code, as of that date.
"(f) Previous Actions. - Except as otherwise provided, the
amendments made by this Act do not affect reemployments that were
initiated, rights, benefits, and duties that matured, penalties
that were incurred, and proceedings that begin before the end of
the 60-day period referred to in subsection (a).
"(g) Rights and Benefits Relative to Notice of Intent Not To
Return. - Section 4316(b)(2) of title 38, United States Code, as
added by the amendments made by this Act, applies only to the
rights and benefits provided in section 4316(b)(1)(B) and does not
apply to any other right or benefit of a person under chapter 43 of
title 38, United States Code. Such section shall apply only to
persons who leave a position of employment for service in the
uniformed services more than 60 days after the date of enactment of
this Act [Oct. 13, 1994].
"(h) Employer Pension Benefit Plans. - (1) Nothing in this Act
shall be construed to relieve an employer of an obligation to
provide contributions to a pension plan (or provide pension
benefits), or to relieve the obligation of a pension plan to
provide pension benefits, which is required by the provisions of
chapter 43 of title 38, United States Code, in effect on the day
before this Act takes effect [probably means the day before Oct.
13, 1994].
"(2) If any employee pension benefit plan is not in compliance
with section 4318 of such title or paragraph (1) of this subsection
on the date of enactment of this Act [Oct. 13, 1994], such plan
shall have two years to come into compliance with such section and
paragraph.
"(i) Definition. - For the purposes of this section, the term
'service in the uniformed services' shall have the meaning given
such term in section 4303(13) of title 38, United States Code, as
provided in the amendments made by this Act."
DEMONSTRATION PROJECT FOR REFERRAL OF USERRA CLAIMS AGAINST FEDERAL
AGENCIES TO THE OFFICE OF SPECIAL COUNSEL
Pub. L. 108-454, title II, Sec. 204, Dec. 10, 2004, 118 Stat.
3606, provided that:
"(a) Establishment of Project. - The Secretary of Labor and the
Office of Special Counsel shall carry out a demonstration project
under which certain claims against Federal executive agencies under
the Uniformed Services Employment and Reemployment Rights Act [of
1994, Pub. L. 103-353, see Tables for classification] 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.
"(b) Referral of All Prohibited Personnel Action Claims to the
Office of Special Counsel. - (1) Under the demonstration project,
the Office of Special Counsel shall receive and investigate all
claims under the Uniformed Services Employment and Reemployment
Rights Act [of 1994] 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) 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 the Uniformed Services Employment and Reemployment
Rights Act [of 1994].
"(c) Referral of Other Claims Against Federal Executive Agencies.
- (1) 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) A claim referred to in paragraph (1) 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) 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) In the case of any claim referred [to], or otherwise
received by, to [sic] 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 a
reference to the 'Office of Special Counsel'.
"(3) 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) Period of Project. - The demonstration project shall be
carried out during the period beginning on the date that is 60 days
after the date of the enactment of this Act [Dec. 10, 2004], and
ending on September 30, 2007.
"(f) Evaluations and Report. - (1) The Comptroller General of the
United States shall conduct periodic evaluations of the
demonstration project under this section.
"(2) Not later than April 1, 2007, the Comptroller General shall
submit to Congress a report on the evaluations conducted under
paragraph (1). The report shall include the following information
and recommendations:
"(A) A description of the operation and results of the
demonstration program, including -
"(i) the number of claims described in subsection (c)
referred to, or otherwise received by, the Office of Special
Counsel, and the number of such claims referred to the
Secretary of Labor; and
"(ii) for each Federal executive agency, the number of claims
resolved, the type of corrective action obtained, the period of
time for final resolution of the claim, and the results
obtained.
"(B) An assessment of whether referral to the [O]ffice of
[S]pecial [C]ounsel of claims under the demonstration project -
"(i) improved services to servicemembers and veterans; or
"(ii) significantly reduced or eliminated duplication of
effort and unintended delays in resolving meritorious claims of
those servicemembers and veterans.
"(C) An assessment of the feasibility and advisability of
referring all claims under chapter 43 of title 38, United States
Code, against Federal executive agencies to the Office of Special
Counsel for investigation and resolution.
"(D) Such other recommendations for administrative action or
legislation as the Comptroller General determines appropriate.
"(g) Definitions. - In this section:
"(1) The term 'Office of Special Counsel' means the Office of
Special Counsel established by section 1211 of title 5, United
States Code.
"(2) The term 'Secretary' means the Secretary of Labor.
"(3) The term 'Federal executive agency' has the meaning given
that term in section 4303(5) of title 38, United States Code."