38 U.S.C. § 4302 — Relation to other law and plans or agree-

Page 998 TITLE 38—VETERANS’ BENEFITS § 4302 (c) allocate sufficient resources to effectively imple- ment the requirements of this memorandum, subject to the availability of appropriations. SEC. 4. General Provisions. (a) Nothing in this memo- randum shall be construed to impair or otherwise af- fect: (i) the authority granted by law to a department or agency, or the head thereof; or (ii) the functions of the Director of OMB relating to budgetary, administrative, or legislative proposals. (b) This memorandum shall be implemented con- sistent with applicable law and subject to the avail- ability of appropriations. (c) This memorandum is not intended to, and does not, create any right or benefit, substantive or proce- dural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. (d) Independent agencies are strongly encouraged to comply with the requirements of this memorandum. The Director of the Office of Personnel Management is hereby authorized and directed to publish this memo- randum in the Federal Register. BARACK OBAMA. § 4302. Relation to other law and plans or agree- ments (a) Nothing in this chapter shall supersede, nullify or diminish any Federal or State law (in- cluding any local law or ordinance), contract, agreement, policy, plan, practice, or other mat- ter that establishes a right or benefit that is more beneficial to, or is in addition to, a right or benefit provided for such person in this chap- ter. (b) This chapter supersedes any State law (in- cluding any local law or ordinance), contract, agreement, policy, plan, practice, or other mat- ter that reduces, limits, or eliminates in any manner any right or benefit provided by this chapter, including the establishment of addi- tional prerequisites to the exercise of any such right or the receipt of any such benefit. (Added Pub. L. 103–353, § 2(a), Oct. 13, 1994, 108 Stat. 3150.) Editorial Notes PRIOR PROVISIONS A prior section 4302, added Pub. L. 93–508, title IV, § 404(a), Dec. 3, 1974, 88 Stat. 1596, § 2022; amended Pub. L. 97–295, § 4(71), Oct. 12, 1982, 96 Stat. 1310; Pub. L. 98–620, title IV, § 402(36), Nov. 8, 1984, 98 Stat. 3360; re- numbered § 4302 and amended Pub. L. 102–568, title V, § 506(a), (c)(1), Oct. 29, 1992, 106 Stat. 4340, 4341, related to procedures to enforce reemployment rights, prior to the general amendment of this chapter by Pub. L. 103–353. This section, as in effect on the day before Oct. 13, 1994, continues 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. Another prior section 4302 was renumbered section 7602 of this title. 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. § 4303. Definitions For the purposes of this chapter— (1) The term ‘‘Attorney General’’ means the Attorney General of the United States or any person designated by the Attorney General to carry out a responsibility of the Attorney General under this chapter. (2) The term ‘‘benefit’’, ‘‘benefit of employ- ment’’, or ‘‘rights and benefits’’ means the terms, conditions, or privileges of employ- ment, including any advantage, profit, privi- lege, gain, status, account, or interest (includ- ing wages or salary for work performed) that accrues by reason of an employment contract or agreement or an employer policy, plan, or practice and includes rights and benefits under a pension plan, a health plan, an employee stock ownership plan, insurance coverage and awards, bonuses, severance pay, supplemental unemployment benefits, vacations, and the op- portunity to select work hours or location of employment. (3) The term ‘‘employee’’ means any person employed by an employer. Such term includes any person who is a citizen, national, or per- manent resident alien of the United States employed in a workplace in a foreign country by an employer that is an entity incorporated or otherwise organized in the United States or that is controlled by an entity organized in the United States, within the meaning of sec- tion 4319(c) of this title. (4)(A) Except as provided in subparagraphs (B) and (C), the term ‘‘employer’’ means any person, institution, organization, or other en- tity that pays salary or wages for work per- formed or that has control over employment opportunities, including— (i) a person, institution, organization, or other entity to whom the employer has dele- gated the performance of employment-re- lated responsibilities; (ii) the Federal Government; (iii) a State; (iv) any successor in interest to a person, institution, organization, or other entity re- ferred to in this subparagraph; and (v) a person, institution, organization, or other entity that has denied initial employ- ment in violation of section 4311. (B) In the case of a National Guard techni- cian employed under section 709 of title 32, the term ‘‘employer’’ means the adjutant general of the State in which the technician is em- ployed. (C) Except as an actual employer of employ- ees, an employee pension benefit plan de- scribed in section 3(2) of the Employee Retire- ment Income Security Act of 1974 (29 U.S.C. 1002(2)) shall be deemed to be an employer only with respect to the obligation to provide bene- fits described in section 4318. (D)(i) Whether the term ‘‘successor in inter- est’’ applies with respect to an entity de- scribed in subparagraph (A) for purposes of clause (iv) of such subparagraph shall be deter- mined on a case-by-case basis using a multi- factor test that considers the following fac- tors: (I) Substantial continuity of business oper- ations. (II) Use of the same or similar facilities. (III) Continuity of work force.