38 U.S.C. § 4319 — Employment and reemployment rights in

Page 1010 TITLE 38—VETERANS’ BENEFITS § 4319 tion for the person in the same manner and to the same extent the allocation occurs for other employees during the period of service. For pur- poses of determining the amount of such liabil- ity 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 Retire- ment Income Security Act of 1974 or any similar Federal or State law governing pension benefits for governmental employees, service in the uni- formed 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 collec- tive bargaining agreement. In the case of a mul- tiemployer 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 spon- sor maintaining the plan shall provide; or (B) if the sponsor does not provide— (i) to the last employer employing the per- son before the period served by the person in the uniformed services, or (ii) if such last employer is no longer func- tional, 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 mak- ing 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 re- mained 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 reemploy- ment and whose duration is three times the pe- riod 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 employ- ee’s compensation during the period of service described in subsection (a)(2)(B) shall be com- puted— (A) at the rate the employee would have re- ceived 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 com- pensation during the 12-month period imme- diately preceding such period (or, if shorter, the period of employment immediately pre- ceding such period). (c) Any employer who reemploys a person under this chapter and who is an employer con- tributing to a multiemployer plan, as defined in section 3(37) of the Employee Retirement In- come 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 reem- ployment, provide information, in writing, of such reemployment to the administrator of such plan. (Added Pub. L. 103–353, § 2(a), Oct. 13, 1994, 108 Stat. 3162; amended Pub. L. 104–275, title III, § 311(8), Oct. 9, 1996, 110 Stat. 3335.) Editorial Notes REFERENCES IN TEXT Sections 3 and 515 of the Employee Retirement In- come 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 ‘‘serv- ices, such payment period’’ for ‘‘services,’’ in last sen- tence. 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 with respect to reemployments ini- tiated 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 compli- ance with this section or section 8(h)(1) of Pub. L. 103–353 on Oct. 13, 1994, has two years to come into com- pliance, see section 8 of Pub. L. 103–353, set out as a note under section 4301 of this title. § 4319. Employment and reemployment rights in foreign countries (a) LIABILITY OF CONTROLLING UNITED STATES EMPLOYER OF FOREIGN ENTITY.—If an employer controls an entity that is incorporated or other- wise organized in a foreign country, any denial of employment, reemployment, or benefit by such entity shall be presumed to be by such em- ployer. (b) INAPPLICABILITY TO FOREIGN EMPLOYER.— This subchapter does not apply to foreign oper- ations of an employer that is a foreign person not controlled by an United States employer. (c) DETERMINATION OF CONTROLLING EM- PLOYER.—For the purpose of this section, the de- termination of whether an employer controls an entity shall be based upon the interrelations of operations, common management, centralized control of labor relations, and common owner- ship or financial control of the employer and the entity. (d) EXEMPTION.—Notwithstanding any other provision of this subchapter, an employer, or an entity controlled by an employer, shall be ex- empt from compliance with any of sections 4311 through 4318 of this title with respect to an em- ployee in a workplace in a foreign country, if Page 1011 TITLE 38—VETERANS’ BENEFITS § 4322 compliance with that section would cause such employer, or such entity controlled by an em- ployer, to violate the law of the foreign country in which the workplace is located. (Added Pub. L. 105–368, title II, § 212(b)(1), Nov. 11, 1998, 112 Stat. 3331.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section applicable only with respect to causes of ac- tion arising after Nov. 11, 1998, see section 212(c) of Pub. L. 105–368, set out as an Effective Date of 1998 Amend- ment note under section 4303 of this title. SUBCHAPTER III—PROCEDURES FOR AS- SISTANCE, ENFORCEMENT, AND INVES- TIGATION § 4321. Assistance in obtaining reemployment or other employment rights or benefits The Secretary (through the Veterans’ Employ- ment and Training Service) shall provide assist- ance to any person with respect to the employ- ment and reemployment rights and benefits to which such person is entitled under this chapter. In providing such assistance, the Secretary may request the assistance of existing Federal and State agencies engaged in similar or related ac- tivities and utilize the assistance of volunteers. (Added Pub. L. 103–353, § 2(a), Oct. 13, 1994, 108 Stat. 3164.) Editorial Notes PRIOR PROVISIONS A prior section 4321 was renumbered section 7621 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, except that provisions necessary for implementation of sec- tion 4311 of this title are effective Oct. 13, 1994, see sec- tion 8 of Pub. L. 103–353, set out as a note under section 4301 of this title. § 4322. Enforcement of employment or reemploy- ment rights (a) A person who claims that— (1) such person is entitled under this chapter to employment or reemployment rights or benefits with respect to employment by an employer; and (2)(A) such employer has failed or refused, or is about to fail or refuse, to comply with the provisions of this chapter; or (B) in the case that the employer is a Fed- eral executive agency, such employer or the Office of Personnel Management has failed or refused, or is about to fail or refuse, to comply with the provisions of this chapter, may file a complaint with the Secretary in ac- cordance with subsection (b), and the Secretary shall investigate such complaint. (b) Such complaint shall be in writing, be in such form as the Secretary may prescribe, in- clude the name and address of the employer against whom the complaint is filed, and con- tain a summary of the allegations that form the basis for the complaint. (c)(1) Not later than five days after the Sec- retary receives a complaint submitted by a per- son under subsection (a), the Secretary shall no- tify such person in writing of his or her rights with respect to such complaint under this sec- tion and section 4323 or 4324, as the case may be. (2) The Secretary shall, upon request, provide technical assistance to a potential claimant with respect to a complaint under this sub- section, and when appropriate, to such claim- ant’s employer. (d) The Secretary shall investigate each com- plaint submitted pursuant to subsection (a). If the Secretary determines as a result of the in- vestigation that the action alleged in such com- plaint occurred, the Secretary shall attempt to resolve the complaint by making reasonable ef- forts to ensure that the person or entity named in the complaint complies with the provisions of this chapter. (e) If the efforts of the Secretary with respect to any complaint filed under subsection (a) do not resolve the complaint, the Secretary shall notify the person who submitted the complaint in writing of— (1) the results of the Secretary’s investiga- tion; and (2) the complainant’s entitlement to proceed under the enforcement of rights provisions provided under section 4323 (in the case of a person submitting a complaint against a State or private employer) or section 4324 (in the case of a person submitting a complaint against a Federal executive agency or the Of- fice of Personnel Management). (f) Any action required by subsections (d) and (e) with respect to a complaint submitted by a person to the Secretary under subsection (a) shall be completed by the Secretary not later than 90 days after receipt of such complaint. (g) This subchapter does not apply to any ac- tion relating to benefits to be provided under the Thrift Savings Plan under title 5. (Added Pub. L. 103–353, § 2(a), Oct. 13, 1994, 108 Stat. 3164; amended Pub. L. 104–275, title III, § 311(9), Oct. 9, 1996, 110 Stat. 3335; Pub. L. 110–389, title III, § 311(a)–(c), Oct. 10, 2008, 122 Stat. 4162.) Editorial Notes PRIOR PROVISIONS A prior section 4322 was renumbered section 7622 of this title. AMENDMENTS 2008—Subsec. (c). Pub. L. 110–389, § 311(a), amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: ‘‘The Secretary shall, upon request, provide technical assistance to a potential claimant with respect to a complaint under this subsection, and when appropriate, to such claimant’s employer.’’ Subsec. (e). Pub. L. 110–389, § 311(b), inserted ‘‘in writ- ing’’ after ‘‘submitted the complaint’’ in introductory provisions. Subsecs. (f), (g). Pub. L. 110–389, § 311(c), added subsec. (f) and redesignated former subsec. (f) as (g). 1996—Subsec. (d). Pub. L. 104–275, § 311(9)(A), inserted ‘‘attempt to’’ before ‘‘resolve’’.