38 U.S.C. § 4311 — Discrimination against persons who serve

Page 1001 TITLE 38—VETERANS’ BENEFITS § 4311 absent from employment for the purpose of performing funeral honors duty as authorized by section 12503 of title 10 or section 115 of title 32.’’ Pub. L. 106–419, § 323(a)(1), as amended by Pub. L. 107–14, § 8(b)(2), struck out ‘‘and’’ after ‘‘National Guard duty,’’. 1998—Par. (3). Pub. L. 105–368 inserted at end ‘‘Such term includes any person who is a citizen, national, or permanent resident alien of the United States em- ployed in a workplace in a foreign country by an em- ployer that is an entity incorporated or otherwise orga- nized in the United States or that is controlled by an entity organized in the United States, within the mean- ing of section 4319(c) of this title.’’ 1996—Par. (16). Pub. L. 104–275 inserted ‘‘national’’ be- fore ‘‘emergency’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2010 AMENDMENT Pub. L. 111–275, title VII, § 701(b), Oct. 13, 2010, 124 Stat. 2887, provided that: ‘‘The amendment made by subsection (a) [amending this section] shall apply to— ‘‘(1) any failure to comply with a provision of or any violation of chapter 43 of title 38, United States Code, that occurs before, on, or after the date of the enactment of this Act [Oct. 13, 2010]; and ‘‘(2) all actions or complaints filed under such chap- ter 43 that are pending on or after the date of the en- actment of this Act.’’ Pub. L. 111–275, title VII, § 702(b), Oct. 13, 2010, 124 Stat. 2888, provided that: ‘‘The amendment made by subsection (a) [amending this section] shall apply to— ‘‘(1) any failure to comply with a provision of or any violation of chapter 43 of title 38, United States Code, that occurs before, on, or after the date of the enactment of this Act [Oct. 13, 2010]; and ‘‘(2) all actions or complaints filed under such chap- ter 43 that are pending on or after the date of the en- actment of this Act.’’ EFFECTIVE DATE OF 2001 AMENDMENT Pub. L. 107–14, § 8(b), June 5, 2001, 115 Stat. 36, pro- vided that the amendment made by section 8(b) is effec- tive Nov. 1, 2000, and as if included in the Veterans Ben- efits and Health Care Improvement Act of 2000, Pub. L. 106–419, as enacted. EFFECTIVE DATE OF 2000 AMENDMENT Pub. L. 106–419, title III, § 323(c), Nov. 1, 2000, 114 Stat. 1856, provided that: ‘‘The amendments made by sub- sections (a) and (b) [amending this section and section 4316 of this title] shall take effect 180 days after the date of the enactment of this Act [Nov. 1, 2000].’’ EFFECTIVE DATE OF 1998 AMENDMENT Pub. L. 105–368, title II, § 212(c), Nov. 11, 1998, 112 Stat. 3331, provided that: ‘‘The amendments made by this section [enacting section 4319 of this title and amend- ing this section] shall apply only with respect to causes of action arising after the date of the enactment of this Act [Nov. 11, 1998].’’ 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 ini- tiated on or after the first day after the 60-day period beginning Oct. 13, 1994, with transition rules, see sec- tion 8 of Pub. L. 103–353, set out as a note under section 4301 of this title. § 4304. Character of service A person’s entitlement to the benefits of this chapter by reason of the service of such person in one of the uniformed services terminates upon the occurrence of any of the following events: (1) A separation of such person from such uniformed service with a dishonorable or bad conduct discharge. (2) A separation of such person from such uniformed service under other than honorable conditions, as characterized pursuant to regu- lations prescribed by the Secretary concerned. (3) A dismissal of such person permitted under section 1161(a) of title 10. (4) A dropping of such person from the rolls pursuant to section 1161(b) of title 10. (Added Pub. L. 103–353, § 2(a), Oct. 13, 1994, 108 Stat. 3152.) Editorial Notes PRIOR PROVISIONS Prior sections 4304 to 4306 were omitted in the general amendment of this chapter by Pub. L. 103–353. Those sections, as in effect on the day before Oct. 13, 1994, continue 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 under section 4301 of this title. Section 4304, added Pub. L. 93–508, title IV, § 404(a), Dec. 3, 1974, 88 Stat. 1598, § 2024; amended Pub. L. 94–286, § 2, May 14, 1976, 90 Stat. 518; Pub. L. 94–502, title VI, § 608(3), Oct. 15, 1976, 90 Stat. 2405; Pub. L. 96–466, title V, § 511, Oct. 17, 1980, 94 Stat. 2207; Pub. L. 99–576, title VII, § 701(60), Oct. 28, 1986, 100 Stat. 3296; Pub. L. 102–12, § 8(a)(1), (b)(1), Mar. 18, 1991, 105 Stat. 38; renumbered § 4304 and amended Pub. L. 102–568, title V, § 506(a), (c)(3), Oct. 29, 1992, 106 Stat. 4340, 4341, related to reem- ployment rights of persons who enlist in the Armed Forces or enter upon active duty. Another prior section 4304 was renumbered section 7604 of this title. Section 4305, added Pub. L. 93–508, title IV, § 404(a), Dec. 3, 1974, 88 Stat. 1600, § 2025; renumbered § 4305, Pub. L. 102–568, title V, § 506(a), Oct. 29, 1992, 106 Stat. 4340, directed the Secretary of Labor, through the Office of Veterans’ Reemployment Rights, to render assistance in obtaining reemployment. Section 4306, added Pub. L. 93–508, title IV, § 404(a), Dec. 3, 1974, 88 Stat. 1600, § 2026; renumbered § 4306, Pub. L. 102–568, title V, § 506(a), Oct. 29, 1992, 106 Stat. 4340, related to prior rights for reemployment in a case in which more than one person is entitled to be reem- ployed. A prior section 4307, added Pub. L. 102–25, title III, § 339(a), Apr. 6, 1991, 105 Stat. 91, § 2027; renumbered § 4307, Pub. L. 102–568, title V, § 506(a), Oct. 29, 1992, 106 Stat. 4340, related to qualification for employment po- sition, prior to repeal by Pub. L. 103–353, § 8(d)(2), Oct. 13, 1994, 108 Stat. 3176, eff. Aug. 1, 1990. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective with respect to reemployments ini- tiated on or after the first day after the 60-day period beginning Oct. 13, 1994, with transition rules, see sec- tion 8 of Pub. L. 103–353, set out as a note under section 4301 of this title. SUBCHAPTER II—EMPLOYMENT AND RE- EMPLOYMENT RIGHTS AND LIMITA- TIONS; PROHIBITIONS § 4311. Discrimination against persons who serve in the uniformed services and acts of re- prisal prohibited (a) A person who is a member of, applies to be a member of, performs, has performed, applies to Page 1002 TITLE 38—VETERANS’ BENEFITS § 4312 perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in em- ployment, promotion, or any benefit of employ- ment by an employer on the basis of that mem- bership, application for membership, perform- ance of service, application for service, or obli- gation. (b) An employer may not discriminate in em- ployment against or take any adverse employ- ment action or other retaliatory action against any person because such person (1) has taken an action to enforce a protection afforded any per- son under this chapter, (2) has testified or other- wise made a statement in or in connection with any proceeding under this chapter, (3) has as- sisted or otherwise participated in an investiga- tion under this chapter, or (4) has exercised a right provided for in this chapter. The prohibi- tion 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 mem- bership, application for membership, service, application for service, or obligation for serv- ice in the uniformed services is a motivating factor in the employer’s action, unless the em- ployer can prove that the action would have been taken in the absence of such membership, application for membership, service, applica- tion 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) as- sistance or other participation in an investiga- tion under this chapter, or (D) exercise of a right provided for in this chapter, is a moti- vating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such per- son’s enforcement action, testimony, state- ment, assistance, participation, or exercise of a right. (d) The prohibitions in subsections (a) and (b) shall apply to any position of employment, in- cluding a position that is described in section 4312(d)(1)(C) of this title. (Added Pub. L. 103–353, § 2(a), Oct. 13, 1994, 108 Stat. 3153; amended Pub. L. 104–275, title III, § 311(3), Oct. 9, 1996, 110 Stat. 3334; Pub. L. 118–210, title II, § 221(b), Jan. 2, 2025, 138 Stat. 2778.) Editorial Notes PRIOR PROVISIONS A prior section 4311 was renumbered section 7611 of this title. AMENDMENTS 2025—Subsec. (b). Pub. L. 118–210 inserted ‘‘or other retaliatory action’’ after ‘‘employment action’’. 1996—Subsec. (b). Pub. L. 104–275 added subsec. (b) and struck out former subsec. (b) which read as follows: ‘‘An employer shall be considered to have denied a per- son initial employment, reemployment, retention in employment, promotion, or a benefit of employment in violation of this section if the person’s membership, ap- plication for membership, service, application for serv- ice, 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, applica- tion for membership, performance of service, applica- tion for service, or obligation.’’ Subsecs. (c), (d). Pub. L. 104–275 added subsecs. (c) and (d) and struck out former subsec. (c) which read as fol- lows: ‘‘(c)(1) An employer may not discriminate in employ- ment against or take any adverse employment action against any person because such person has taken an action to enforce a protection afforded any person under this chapter, has testified or otherwise made a statement in or in connection with any proceeding under this chapter, has assisted or otherwise partici- pated in an investigation under this chapter, or has ex- ercised a right provided for in this chapter. ‘‘(2) The prohibition in paragraph (1) shall apply with respect to a person regardless of whether that person has performed service in the uniformed services and shall apply to any position of employment, including a position that is described in section 4312(d)(1)(C).’’ Statutory Notes and Related Subsidiaries 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 Oct. 13, 1994, except as otherwise provided, see section 8 of Pub. L. 103–353, set out as a note under section 4301 of this title. § 4312. Reemployment rights of persons who serve in the uniformed services (a) Subject to subsections (b), (c), and (d) and to section 4304, any person whose absence from a position of employment is necessitated by rea- son of service in the uniformed services shall be entitled to the reemployment rights and bene- fits and other employment benefits of this chap- ter if— (1) the person (or an appropriate officer of the uniformed service in which such service is performed) has given advance written or verbal notice of such service to such person’s employer; (2) the cumulative length of the absence and of all previous absences from a position of em- ployment with that employer by reason of service in the uniformed services does not ex- ceed five years; and (3) except as provided in subsection (f), the person reports to, or submits an application for reemployment to, such employer in accord- ance with the provisions of subsection (e). (b)(1) No notice is required under subsection (a)(1) if the giving of such notice is precluded by military necessity or, under all of the relevant circumstances, the giving of such notice is oth- erwise impossible or unreasonable. (2) A determination of military necessity for purposes of paragraph (1) shall be made— (A) except as provided in subparagraphs (B) and (C), pursuant to regulations prescribed by the Secretary of Defense; (B) for persons performing service to the Federal Emergency Management Agency under section 327 of the Robert T. Stafford