[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1941 Introduced in House (IH)]







104th CONGRESS
  1st Session
                                H. R. 1941

To amend title 38, United States Code, to make clarifying and technical 
 amendments to further clarify the employment and reemployment rights 
 and responsibilities of members of the uniformed services, as well as 
        those of the employer community, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             June 28, 1995

Mr. Montgomery (for himself, Ms. Waters, Mr. Clyburn, Mr. Mascara, and 
  Mr. Evans) introduced the following bill; which was referred to the 
                     Committee on Veterans' Affairs

_______________________________________________________________________

                                 A BILL


 
To amend title 38, United States Code, to make clarifying and technical 
 amendments to further clarify the employment and reemployment rights 
 and responsibilities of members of the uniformed services, as well as 
        those of the employer community, and for other purposes.
    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,
SECTION 1. PURPOSES.

    Section 4301(a)(2) of title 38, United States Code, is amended by 
striking ``under honorable conditions''.

SEC. 2. DEFINITIONS.

    Section 4303 of title 38, United States Code, is amended--
            (1) in paragraph (2), by striking ``work performed'' and 
        inserting ``work not performed''; and
            (2) in paragraph (16), by inserting ``national'' before 
        ``emergency''.

SEC. 3. DISCRIMINATION AGAINST PERSONS WHO SERVE IN THE UNIFORMED 
              SERVICES AND ACTS OF REPRISAL PROHIBITED.

    Section 4311 of title 38, United States Code, is amended by 
striking subsections (b) and (c) and inserting the following:
    ``(b) An employer may not discriminate in employment against or 
take any adverse employment action against any person because such 
person (1) has taken an action to enforce a protection afforded any 
person under this chapter, (2) has testified or otherwise made a 
statement in or in connection with any proceeding under this chapter, 
(3) has assisted or otherwise participated in an investigation under 
this chapter, or (4) has exercised a right provided for in this 
chapter. The prohibition in this subsection shall apply with respect to 
a person regardless of whether that person has performed service in the 
uniformed services.
    ``(c) An employer shall be considered to have engaged in actions 
prohibited--
            ``(1) under subsection (a), if the person's membership, 
        application for membership, service, application for service, 
        or obligation for service in the uniformed services is a 
        motivating factor in the employer's action, unless the employer 
        can prove that the action would have been taken in the absence 
        of such membership, application for membership, service, 
        application for service, or obligation for service; or
            ``(2) under subsection (b), if the person's (A) action to 
        enforce a protection afforded any person under this chapter, 
        (B) testimony or making of a statement in or in connection with 
        any proceeding under this chapter, (C) assistance or other 
        participation in an investigation under this chapter, or (D) 
        exercise of a right provided for in this chapter, is a 
        motivating factor in the employer's action, unless the employer 
        can prove that the action would have been taken in the absence 
        of such person's enforcement action, testimony, statement, 
        assistance, participation, or exercise of a right.
    ``(d) The prohibitions in subsections (a) and (b) shall apply to 
any position of employment, including a position that is described in 
section 4312(d)(1)(C).''.

SEC. 4. REEMPLOYMENT RIGHTS OF PERSONS WHO SERVE IN THE UNIFORMED 
              SERVICES.

    (a) Inclusion of Preparation and Travel Time Prior to Service.--
Section 4312(a) of title 38, United States Code, is amended by striking 
``who is absent from a position of employment'' and inserting ``whose 
absence from a position of employment is necessitated''.
    (b) Limitation on Service Exemption to War or National Emergency.--
Section 4312(c)(4)(B) of such title is amended to read as follows:
                    ``(B) ordered to or retained on active duty (other 
                than for training) under any provision of law because 
                of a war or because of a national emergency declared by 
                the President or the Congress as determined by the 
                Secretary concerned;''.
    (c) Brief, Nonrecurrent Periods of Service.--Section 4312(d)(2)(C) 
of such title is amended by striking ``is brief or for a nonrecurrent 
period and without a reasonable expectation'' and inserting ``is for a 
brief, nonrecurrent period and there is no reasonable expectation''.
    (d) Conforming Amendments to Redes- ignations in Title 10.--Section 
4312(c) of such title is amended--
            (1) in paragraph (3), by striking ``section 270'' and 
        inserting ``section 10147''; and
            (2) in paragraph (4)--
                    (A) by striking ``section 672(a), 672(g), 673, 
                673b, 673c, or 688'' in subparagraph (A) and inserting 
                ``section 688, 12301(a), 12301(g), 12302, 12304, or 
                12305'';
                    (B) by striking ``section 673b'' in subparagraph 
                (C) and inserting ``section 12304''; and
                    (C) by striking ``section 3500 or 8500'' in 
                subparagraph (E) and inserting ``section 12406''.

SEC. 5. REEMPLOYMENT POSITIONS.

    Section 4313(a)(4) of title 38, United States Code, is amended--
            (1) by striking ``uniform services'' in clause (A)(ii) and 
        inserting ``uniformed services''; and
            (2) by striking ``of lesser status and pay which'' and 
        inserting ``which is the nearest approximation to a position 
        referred to first in clause (A)(i) and then in clause (A)(ii) 
        which''.

SEC. 6. HEALTH PLANS.

    Section 4317(a) of title 38, United States Code, is amended--
            (1) by striking ``(a)(1)(A) Subject to paragraphs (2) and 
        (3), in'' and inserting ``(a)(1) In'';
            (2) by redesignating clauses (i) and (ii) of paragraph (1) 
        (as amended by paragraph (1) of this section) as subparagraphs 
        (A) and (B), respectively;
            (3) by redesignating subparagraph (B) as paragraph (2); and
            (4) by redesignating subparagraph (C) as paragraph (3), and 
        in that paragraph by redesignating clauses (i) and (ii) as 
        subparagraphs (A) and (B), and by redesignating subclauses (I) 
        and (II) as clauses (i) and (ii), respectively.

SEC. 7. EMPLOYEE PENSION BENEFIT PLANS.

    The last sentence of section 4318(b)(2) of title 38, United States 
Code, is amended by striking ``services,'' and inserting ``services, 
such payment period''.

SEC. 8. ENFORCEMENT OF EMPLOYMENT OR REEMPLOYMENT RIGHTS.

    (a) Technical Amendment.--The second sentence of section 4322(d) of 
title 38, United States Code, is amended by inserting ``attempt to'' 
before ``resolve''.
    (b) Notification.--Section 4322(e) of such title is amended--
            (1) in the matter preceding paragraph (1), by striking 
        ``with respect to a complaint under subsection (d) are 
        unsuccessful,'' and inserting ``with respect to any complaint 
        filed under subsection (a) do not resolve the complaint,''; and
            (2) in paragraph (2), by inserting ``or the Office of 
        Personnel Management'' after ``Federal executive agency''.

SEC. 9. ENFORCEMENT OF RIGHTS WITH RESPECT TO A STATE OR PRIVATE 
              EMPLOYER.

    Section 4323(a) of title 38, United States Code, is amended--
            (1) in paragraph (1), by striking ``of an unsuccessful 
        effort to resolve a complaint''; and
            (2) in paragraph (2)(A), by striking ``regarding the 
        complaint under section 4322(c)'' and inserting ``under section 
        4322(a)''.

SEC. 10. ENFORCEMENT OF RIGHTS WITH RESPECT TO FEDERAL EXECUTIVE 
              AGENCIES.

    (a) Referral.--Section 4324(a)(1) of title 38, United States Code, 
is amended by striking ``of an unsuccessful effort to resolve a 
complaint relating to a Federal executive agency''.
    (b) Alternative Submission of Complaint.--Section 4324(b) of such 
title is amended--
            (1) in the matter preceding paragraph (1), by inserting 
        ``or the Office of Personnel Management'' after ``Federal 
        executive agency''; and
            (2) in paragraph (1), by striking ``regarding a complaint 
        under section 4322(c)'' and inserting ``under section 
        4322(a)''.
    (c) Relief.--Section 4324(c)(2) of such title is amended--
            (1) by inserting ``or the Office of Personnel Management'' 
        after ``Federal executive agency''; and
            (2) by striking ``employee'' and inserting ``Office''.

SEC. 11. ENFORCEMENT OF RIGHTS WITH RESPECT TO CERTAIN FEDERAL 
              AGENCIES.

    Section 4325(d)(1) of title 38, United States Code, is amended--
            (1) by striking ``, alternative employment in the Federal 
        Government under this chapter,''; and
            (2) by striking ``employee'' the last place it appears and 
        inserting ``employees''.

SEC. 12. CONDUCT OF INVESTIGATION; SUBPOENAS.

    Section 4326(a) of title 38, United States Code, is amended by 
inserting ``have reasonable access to and the right to interview 
persons with information relevant to the investigation and shall'' 
after ``at all reasonable times,''.

SEC. 13. TRANSITION RULES AND EFFECTIVE DATES.

    (a) Reemployment.--Section 8(a) of the Uniformed Services 
Employment and Reemployment Rights Act of 1994 (38 U.S.C. 4301 note) is 
amended--
            (1) in paragraph (3), by adding at the end thereof the 
        following: ``Any service begun up to 60 days after the date of 
        enactment of this Act, which is served up to 60 days after the 
        date of enactment of this Act pursuant to orders issued under 
        section 502(f) of chapter 5 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 section 502(f) of 
        chapter 5 of title 32, United States Code, served after 60 days 
        after the date of enactment of this Act, regardless of when 
        begun, shall be considered under the amendments made by this 
        Act.''; and
            (2) in paragraph (4), by striking ``such period'' and 
        inserting ``such 60-day period''.
    (b) Insurance.--Section 8(c)(2) of such Act is amended by striking 
``person on active duty'' and inserting ``person serving a period of 
service in the uniformed services''.

SEC. 14. EFFECTIVE DATES.

    (a) In General.--Except as provided in subsection (b), the 
amendments made by this Act shall take effect as of October 13, 1994.
    (b) Reorganized Title 10 References.--The amendments made by 
section 4(d) shall take effect as of December 1, 1994.
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