Rights, benefits, and obligations of persons absent from employment for service in a uniformed service

38 U.S.C. § 4316

• Title: 38 — Veterans' Benefits
• Chapter: SUBCHAPTER II—EMPLOYMENT AND REEMPLOYMENT RIGHTS AND LIMITATIONS; PROHIBITIONS

Text

(a) A person who is reemployed under this chapter is entitled to the seniority and other rights and benefits determined by seniority that the person had on the date of the commencement of service in the uniformed services plus the additional seniority and rights and benefits that such person would have attained if the person had remained continuously employed.
(b)(1) Subject to paragraphs (2) through (6), a person who is absent from a position of employment by reason of service in the uniformed services shall be—
(A) deemed to be on furlough or leave of absence while performing such service; and
(B) entitled to such other rights and benefits not determined by seniority as are generally provided by the employer of the person to employees having similar seniority, status, and pay who are on furlough or leave of absence under a contract, agreement, policy, practice, or plan in effect at the commencement of such service or established while such person performs such service.
(2)(A) Subject to subparagraph (B), a person who—
(i) is absent from a position of employment by reason of service in the uniformed services, and
(ii) knowingly provides written notice of intent not to return to a position of employment after service in the uniformed service,
is not entitled to rights and benefits under paragraph (1)(B).
(B) For the purposes of subparagraph (A), the employer shall have the burden of proving that a person knowingly provided clear written notice of intent not to return to a position of employment after service in the uniformed service and, in doing so, was aware of the specific rights and benefits to be lost under subparagraph (A).
(3) A person deemed to be on furlough or leave of absence under this subsection while serving in the uniformed services shall not be entitled under this subsection to any benefits to which the person would not otherwise be entitled if the person had remained continuously employed.
(4) Such person may be required to pay the employee cost, if any, of any funded benefit continued pursuant to paragraph (1) to the extent other employees on furlough or leave of absence are so required.
(5) The entitlement of a person to coverage under a health plan is provided for under section 4317.
(6) The entitlement of a person to a right or benefit under an employee pension benefit plan is provided for under section 4318.
(c) A person who is reemployed by an employer under this chapter shall not be discharged from such employment, except for cause—
(1) within one year after the date of such reemployment, if the person's period of service before the reemployment was more than 180 days; or
(2) within 180 days after the date of such reemployment, if the person's period of service before the reemployment was more than 30 days but less than 181 days.
(d) Any person whose employment with an employer is interrupted by a period of service in the uniformed services shall be permitted, upon request of that person, to use during such period of service any vacation, annual, or similar leave with pay accrued by the person before the commencement of such service. No employer may require any such person to use vacation, annual, or similar leave during such period of service.
(e)(1) An employer shall grant an employee who is a member of a reserve component an authorized leave of absence from a position of employment to allow that employee to perform funeral honors duty as authorized by section 12503 of title 10 or section 115 of title 32.
(2) For purposes of section 4312(e)(1) of this title, an employee who takes an authorized leave of absence under paragraph (1) is deemed to have notified the employer of the employee's intent to return to such position of employment.

History

(Added Pub. L. 103–353, §2(a), Oct. 13, 1994, 108 Stat. 3160; amended Pub. L. 104–275, title III, §311(6), Oct. 9, 1996, 110 Stat. 3335; Pub. L. 106–419, title III, §323(b), Nov. 1, 2000, 114 Stat. 1855.)

Editorial Notes

Editorial Notes

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

Amendments
2000—Subsec. (e). Pub. L. 106–419 added subsec. (e).
1996—Subsec. (d). Pub. L. 104–275 inserted at end "No employer may require any such person to use vacation, annual, or similar leave during such period of service."

Statutory Notes and Related Subsidiaries

Effective Date of 2000 Amendment
Amendment by Pub. L. 106–419 effective 180 days after Nov. 1, 2000, see section 323(c) of Pub. L. 106–419, set out as a note under section 4303 of this title.

Effective Date of 1996 Amendment
Amendment by Pub. L. 104–275 effective Oct. 13, 1994, see section 313 of Pub. L. 104–275, set out as a note under section 4301 of this title.

Effective Date
Section effective with respect to reemployments initiated on or after the first day after the 60-day period beginning Oct. 13, 1994, with transition rules, except that the provisions concerning insurance coverage (other than health) are effective with respect to furloughs or leaves of absence initiated on or after Oct. 13, 1994, and subsec. (b)(2) of this section is applicable only to the rights and benefits provided in subsec. (b)(1)(B) of this section and to persons who leave a position of employment for service in the uniformed services more than 60 days after Oct. 13, 1994, and not applicable to any other right or benefit of a person under this chapter, see section 8 of Pub. L. 103–353, set out as a note under section 4301 of this title.