
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[CITE: 38USC4318]

 
                      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. 4318. Employee pension benefit plans

    (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 the plan 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 applicable collective 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, such 
payment period 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.

(Added Pub. L. 103-353, Sec. 2(a), Oct. 13, 1994, 108 Stat. 3162; 
amended Pub. L. 104-275, title III, Sec. 311(8), Oct. 9, 1996, 110 Stat. 
3335.)

                       References in Text

    Sections 3 and 515 of the Employee Retirement Income Security Act of 
1974, referred to in subsecs. (a)(1)(A), (b)(1), and (c), are classified 
to sections 1002 and 1145, respectively, of Title 29, Labor.
    Section 402(g)(3) of the Internal Revenue Code of 1986, referred to 
in subsec. (b)(2), is classified to section 402(g)(3) of Title 26, 
Internal Revenue Code.


                            Prior Provisions

    A prior section 4318 was renumbered section 7618 of this title.


                               Amendments

    1996--Subsec. (b)(2). Pub. L. 104-275 substituted ``services, such 
payment period'' for ``services,'' in last sentence.


                    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 an employee pension benefit plan not 
in compliance with this section or section 8(h)(1) of Pub. L. 103-353 on 
Oct. 13, 1994, has two years to come into compliance, 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 sections 4303, 4312, 4316, 4319 of 
this title; title 2 section 1316; title 3 section 416.
