
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 23, 2000]
[Document affected by Public Law 106-419 Section 323(b)]
[CITE: 38USC4316]

 
                      TITLE 38--VETERANS' BENEFITS
 
               PART III--READJUSTMENT AND RELATED BENEFITS
 
    CHAPTER 43--EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE 
                           UNIFORMED SERVICES
 
   SUBCHAPTER II--EMPLOYMENT AND REEMPLOYMENT RIGHTS AND LIMITATIONS; 
                              PROHIBITIONS
 
Sec. 4316. Rights, benefits, and obligations of persons absent 
        from employment for service in a uniformed service
        
    (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.

(Added Pub. L. 103-353, Sec. 2(a), Oct. 13, 1994, 108 Stat. 3160; 
amended Pub. L. 104-275, title III, Sec. 311(6), Oct. 9, 1996, 110 Stat. 
3335.)


                            Prior Provisions

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


                               Amendments

    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.''


                    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.

                  Section Referred to in Other Sections

    This section is referred to in section 4319 of this title; title 2 
section 1316; title 3 section 416.
