38 U.S.C. § 4301 — Purposes; sense of Congress

Page 994 TITLE 38—VETERANS’ BENEFITS § 4301 REQUIREMENT TO PROMPTLY ESTABLISH ONE-STOP EMPLOYMENT SERVICES Pub. L. 107–288, § 4(c), Nov. 7, 2002, 116 Stat. 2044, pro- vided that: ‘‘By not later than 18 months after the date of the enactment of this Act [Nov. 7, 2002], the Sec- retary of Labor shall provide one-stop services and as- sistance to covered persons electronically by means of the Internet, as defined in section 231(e)(3) of the Com- munications Act of 1934 [47 U.S.C. 231(e)(3)], and such other electronic means to enhance the delivery of such services and assistance.’’ CHAPTER 43—EMPLOYMENT AND REEM- PLOYMENT RIGHTS OF MEMBERS OF THE UNIFORMED SERVICES SUBCHAPTER I—GENERAL Sec. 4301. Purposes; sense of Congress. 4302. Relation to other law and plans or agree- ments. 4303. Definitions. 4304. Character of service. SUBCHAPTER II—EMPLOYMENT AND REEMPLOY- MENT RIGHTS AND LIMITATIONS; PROHIBI- TIONS 4311. Discrimination against persons who serve in the uniformed services and acts of reprisal prohibited. 4312. Reemployment rights of persons who serve in the uniformed services. 4313. Reemployment positions. 4314. Reemployment by the Federal Government. 4315. Reemployment by certain Federal agencies. 4316. Rights, benefits, and obligations of persons absent from employment for service in a uniformed service. 4317. Health plans. 4318. Employee pension benefit plans. 4319. Employment and reemployment rights in for- eign countries. SUBCHAPTER III—PROCEDURES FOR ASSIST- ANCE, ENFORCEMENT, AND INVESTIGATION 4321. Assistance in obtaining reemployment or other employment rights or benefits. 4322. Enforcement of employment or reemploy- ment rights. 4323. Enforcement of rights with respect to a State or private employer. 4324. Enforcement of rights with respect to Federal executive agencies. 4325. Enforcement of rights with respect to certain Federal agencies. 4326. Conduct of investigation; subpoenas. 4327. Noncompliance of Federal officials with dead- lines; inapplicability of statutes of limita- tions. SUBCHAPTER IV—MISCELLANEOUS PROVISIONS 4331. Regulations. 4332. Reports. 4333. Outreach. 4334. Notice of rights and duties. 4335. Training for Federal executive agency human resources personnel on employment and re- employment rights and limitations. Editorial Notes CODIFICATION This chapter was originally added by Pub. L. 93–508, title IV, § 404(a), Dec. 3, 1974, 88 Stat. 1594, and amended by Pub. L. 94–286, May 14, 1976, 90 Stat. 517; Pub. L. 94–502, Oct. 15, 1976, 90 Stat. 2383; Pub. L. 96–466, Oct. 17, 1980, 94 Stat. 2171; Pub. L. 97–295, Oct. 12, 1982, 96 Stat. 1287; Pub. L. 98–620, Nov. 8, 1984, 98 Stat. 3335; Pub. L. 99–576, Oct. 28, 1986, 100 Stat. 3248; Pub. L. 102–12, Mar. 18, 1991, 105 Stat. 34; Pub. L. 102–25, Apr. 6, 1991, 105 Stat. 75; Pub. L. 102–568, Oct. 29, 1992, 106 Stat. 4320. This chapter is shown here, however, as having been added by Pub. L. 103–353, § 2(a), Oct. 13, 1994, 108 Stat. 3150, without reference to those intervening amendments be- cause of the general amendment of this chapter by Pub. L. 103–353. A prior chapter 43 ‘‘Mustering-Out Payments’’, Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1222, 1223, consisted of sections 2101 to 2105, prior to repeal by Pub. L. 89–50, § 1(a), June 24, 1965, 79 Stat. 173. AMENDMENTS 2008—Pub. L. 110–389, title III, §§ 311(f)(2), 313(b), Oct. 10, 2008, 122 Stat. 4164, 4167, added items 4327 and 4335. 2004—Pub. L. 108–454, title II, § 203(b), Dec. 10, 2004, 118 Stat. 3606, added item 4334. 1998—Pub. L. 105–368, title II, § 212(b)(2), Nov. 11, 1998, 112 Stat. 3331, added item 4319. SUBCHAPTER I—GENERAL § 4301. Purposes; sense of Congress (a) The purposes of this chapter are— (1) to encourage service in the uniformed services by eliminating or minimizing the dis- advantages to civilian careers and employ- ment which can result from such service; (2) to minimize the disruption to the lives of persons performing service in the uniformed services as well as to their employers, their fellow employees, and their communities, by providing for the prompt reemployment of such persons upon their completion of such service; and (3) to prohibit discrimination against per- sons because of their service in the uniformed services. (b) It is the sense of Congress that the Federal Government should be a model employer in car- rying out the provisions of this chapter. (Added Pub. L. 103–353, § 2(a), Oct. 13, 1994, 108 Stat. 3150; amended Pub. L. 104–275, title III, § 311(1), Oct. 9, 1996, 110 Stat. 3333; Pub. L. 118–210, title II, § 221(a), Jan. 2, 2025, 138 Stat. 2778.) Editorial Notes PRIOR PROVISIONS A prior section 4301, added Pub. L. 93–508, title IV, § 404(a), Dec. 3, 1974, 88 Stat. 1594, § 2021; amended Pub. L. 94–502, title VI, § 608(1), (2), Oct. 15, 1976, 90 Stat. 2405; Pub. L. 99–576, title III, § 331, Oct. 28, 1986, 100 Stat. 3279; Pub. L. 102–12, § 5(a), Mar. 18, 1991, 105 Stat. 36; Pub. L. 102–25, title III, § 340(a), Apr. 6, 1991, 105 Stat. 92; renum- bered § 4301, Pub. L. 102–568, title V, § 506(a), Oct. 29, 1992, 106 Stat. 4340, related to reemployment rights of persons inducted into the Armed Forces of the United States and benefits protected, prior to the general amendment of this chapter by Pub. L. 103–353. This sec- tion, as in effect on the day before Oct. 13, 1994, con- tinues to apply to reemployments initiated before the end of the 60-day period beginning Oct. 13, 1994, see sec- tion 8 of Pub. L. 103–353, as amended, set out as an Ef- fective Date note below. Another prior section 4301 was renumbered section 7601 of this title. AMENDMENTS 2025—Subsec. (a)(1). Pub. L. 118–210 substituted ‘‘en- courage service in the uniformed services’’ for ‘‘encour- age noncareer service in the uniformed services’’. Page 995 TITLE 38—VETERANS’ BENEFITS § 4301 1996—Subsec. (a)(2). Pub. L. 104–275 struck out ‘‘under honorable conditions’’ after ‘‘upon their completion of such service’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1996 AMENDMENT Pub. L. 104–275, title III, § 313, Oct. 9, 1996, 110 Stat. 3336, provided that: ‘‘(a) IN GENERAL.—Except as provided in subsection (b), the amendments made by this subtitle [subtitle B (§§ 311–313) of title III of Pub. L. 104–275, amending this section, sections 4303, 4311 to 4313, 4316 to 4318, and 4322 to 4326 of this title, and provisions set out as a note below] shall take effect as of October 13, 1994. ‘‘(b) REORGANIZED TITLE 10 REFERENCES.—The amend- ments made by clause (i), and subclauses (I), (III), and (IV) of clause (ii), of section 311(4)(B) [amending section 4312 of this title] shall take effect as of December 1, 1994.’’ EFFECTIVE DATE Pub. L. 103–353, § 8, Oct. 13, 1994, 108 Stat. 3175, as amended by Pub. L. 104–275, title III, § 312, Oct. 9, 1996, 110 Stat. 3336, provided that: ‘‘(a) REEMPLOYMENT.—(1) Except as otherwise pro- vided in this Act [see Short Title of 1994 Amendment note set out under section 101 of this title], the amend- ments made by this Act shall be effective with respect to reemployments initiated on or after the first day after the 60-day period beginning on the date of enact- ment of this Act [Oct. 13, 1994]. ‘‘(2) The provisions of chapter 43 of title 38, United States Code, in effect on the day before such date of en- actment, shall continue to apply to reemployments ini- tiated before the end of such 60-day period. ‘‘(3) In determining the number of years of service that may not be exceeded in an employee-employer re- lationship with respect to which a person seeks reem- ployment under chapter 43 of title 38, United States Code, as in effect before or after the date of enactment of this Act, there shall be included all years of service without regard to whether the periods of service oc- curred before or after such date of enactment unless the period of service is exempted by the chapter 43 that is applicable, as provided in paragraphs (1) and (2), to the reemployment concerned. Any service begun up to 60 days after the date of the enactment of this Act, which is served up to 60 days after the date of the en- actment of this Act pursuant to orders issued under section 502(f) of title 32, United States Code, shall be considered under chapter 43 of title 38, United States Code, as in effect on the day before such date of enact- ment. Any service pursuant to orders issued under such section 502(f) served after 60 days after the date of the enactment of this Act, regardless of when begun, shall be considered under the amendments made by this Act. ‘‘(4) A person who initiates reemployment under chapter 43 of title 38, United States Code, during or after the 60-day period beginning on the date of enact- ment of this Act and whose reemployment is made in connection with a period of service in the uniformed services that was initiated before the end of such 60-day period shall be deemed to have satisfied the notifica- tion requirement of section 4312(a)(1) of title 38, United States Code, as provided in the amendments made by this Act, if the person complied with any applicable no- tice requirement under chapter 43, United States Code, as in effect on the day before the date of enactment of this Act [Oct. 13, 1994]. ‘‘(b) DISCRIMINATION.—The provisions of section 4311 of title 38, United States Code, as provided in the amendments made by this Act, and the provisions of subchapter III of chapter 43 of such title, as provided in the amendments made by this Act, that are necessary for the implementation of such section 4311 shall be- come effective on the date of enactment of this Act [Oct. 13, 1994]. ‘‘(c) INSURANCE.—(1) The provisions of section 4316 of title 38, United States Code, as provided in the amend- ments made by this Act, concerning insurance coverage (other than health) shall become effective with respect to furloughs or leaves of absence initiated on or after the date of enactment of this Act [Oct. 13, 1994]. ‘‘(2) With respect to the provisions of section 4317 of title 38, United States Code, as provided in the amend- ments made by this Act, a person serving a period of service in the uniformed services on the date of enact- ment of this Act, or a family member or personal rep- resentative of such person, may, after the date of en- actment of this Act, elect to reinstate or continue a health plan as provided in such section 4317. If such an election is made, the health plan shall remain in effect for the remaining portion of the 18-month period that began on the date of such person’s separation from ci- vilian employment or the period of the person’s service in the uniformed service, whichever is the period of lesser duration. ‘‘(d) DISABILITY.—(1) Section 4313(a)(3) of chapter 43 of title 38, United States Code, as provided in the amend- ments made by this Act, shall apply to reemployments initiated on or after August 1, 1990. ‘‘(2) Effective as of August 1, 1990, section 4307 of title 38, United States Code (as in effect on the date of en- actment of this Act [Oct. 13, 1994]), is repealed, and the table of sections at the beginning of chapter 43 of such title (as in effect on the date of enactment of this Act) is amended by striking out the item relating to section 4307. ‘‘(e) INVESTIGATIONS AND SUBPOENAS.—The provisions of section 4326 of title 38, United States Code, as pro- vided in the amendments made by this Act, shall be- come effective on the date of the enactment of this Act [Oct. 13, 1994] and apply to any matter pending with the Secretary of Labor under section 4305 of title 38, United States Code, as of that date. ‘‘(f) PREVIOUS ACTIONS.—Except as otherwise pro- vided, the amendments made by this Act do not affect reemployments that were initiated, rights, benefits, and duties that matured, penalties that were incurred, and proceedings that begin before the end of the 60-day period referred to in subsection (a). ‘‘(g) RIGHTS AND BENEFITS RELATIVE TO NOTICE OF IN- TENT NOT TO RETURN.—Section 4316(b)(2) of title 38, United States Code, as added by the amendments made by this Act, applies only to the rights and benefits pro- vided in section 4316(b)(1)(B) and does not apply to any other right or benefit of a person under chapter 43 of title 38, United States Code. Such section shall apply only to persons who leave a position of employment for service in the uniformed services more than 60 days after the date of enactment of this Act [Oct. 13, 1994]. ‘‘(h) EMPLOYER PENSION BENEFIT PLANS.—(1) Nothing in this Act shall be construed to relieve an employer of an obligation to provide contributions to a pension plan (or provide pension benefits), or to relieve the ob- ligation of a pension plan to provide pension benefits, which is required by the provisions of chapter 43 of title 38, United States Code, in effect on the day before this Act takes effect [probably means the day before Oct. 13, 1994]. ‘‘(2) If any employee pension benefit plan is not in compliance with section 4318 of such title or paragraph (1) of this subsection on the date of enactment of this Act [Oct. 13, 1994], such plan shall have two years to come into compliance with such section and paragraph. ‘‘(i) DEFINITION.—For the purposes of this section, the term ‘service in the uniformed services’ shall have the meaning given such term in section 4303(13) of title 38, United States Code, as provided in the amendments made by this Act.’’ DEMONSTRATION PROJECT FOR REFERRAL OF USERRA CLAIMS AGAINST FEDERAL AGENCIES TO THE OFFICE OF SPECIAL COUNSEL Pub. L. 111–275, title I, § 105, Oct. 13, 2010, 124 Stat. 2868, as amended by Pub. L. 112–234, § 2(d), Dec. 28, 2012, 126 Stat. 1624, provided that: ‘‘(a) ESTABLISHMENT OF PROJECT.—The Secretary of Labor and the Office of Special Counsel shall carry out Page 996 TITLE 38—VETERANS’ BENEFITS § 4301 a 36-month demonstration project under which certain claims against Federal executive agencies under chap- ter 43 of title 38, United States Code, are referred to, or otherwise received by, the Office of Special Counsel for assistance, including investigation and resolution of the claim as well as enforcement of rights with respect to the claim. The demonstration program shall begin not later than 60 days after the Comptroller General of the United States submits the report required under subsection (e)(3). ‘‘(b) REFERRAL OF ALL PROHIBITED PERSONNEL PRAC- TICE CLAIMS TO THE OFFICE OF SPECIAL COUNSEL.— ‘‘(1) IN GENERAL.—Under the demonstration project, the Office of Special Counsel shall receive and inves- tigate all claims under chapter 43 of title 38, United States Code, with respect to Federal executive agen- cies in cases where the Office of Special Counsel has jurisdiction over related claims pursuant to section 1212 of title 5, United States Code. ‘‘(2) RELATED CLAIMS.—For purposes of paragraph (1), a related claim is a claim involving the same Fed- eral executive agency and the same or similar factual allegations or legal issues as those being pursued under a claim under chapter 43 of title 38, United States Code. ‘‘(c) REFERRAL OF OTHER CLAIMS AGAINST FEDERAL EXECUTIVE AGENCIES.— ‘‘(1) IN GENERAL.—Under the demonstration project, the Secretary— ‘‘(A) shall refer to the Office of Special Counsel all claims described in paragraph (2) made during the period of the demonstration project; and ‘‘(B) may refer any claim described in paragraph (2) filed before the demonstration project that is pending before the Secretary at the beginning of the demonstration project. ‘‘(2) CLAIMS DESCRIBED.—A claim described in this paragraph is a claim under chapter 43 of title 38, United States Code, against a Federal executive agency by a claimant with a social security account number with an odd number as its terminal digit or, in the case of a claim that does not contain a social security account number, a case number assigned to the claim with an odd number as its terminal digit. ‘‘(d) ADMINISTRATION OF DEMONSTRATION PROJECT.— ‘‘(1) IN GENERAL.—The Office of Special Counsel shall administer the demonstration project. The Sec- retary shall cooperate with the Office of Special Counsel in carrying out the demonstration project. ‘‘(2) TREATMENT OF CERTAIN TERMS IN CHAPTER 43 OF TITLE 38, UNITED STATES CODE.—In the case of any claim referred to, or otherwise received by, the Office of Special Counsel under the demonstration project, any reference to the ‘Secretary’ in sections 4321, 4322, and 4326 of title 38, United States Code, is deemed to be a reference to the ‘Office of Special Counsel’. ‘‘(3) ADMINISTRATIVE JURISDICTION.—In the case of any claim referred to, or otherwise received by, the Office of Special Counsel under the demonstration project, the Office of Special Counsel shall retain ad- ministrative jurisdiction over the claim. ‘‘(e) DATA COMPARABILITY FOR REVIEWING AGENCY PERFORMANCE.— ‘‘(1) IN GENERAL.—To facilitate the review of the relative performance of the Office of Special Counsel and the Department of Labor during the demonstra- tion project, the Office of Special Counsel and the De- partment of Labor shall jointly establish methods and procedures to be used by both the Office and the Department during the demonstration project. Such methods and procedures shall include each of the fol- lowing: ‘‘(A) Definitions of performance measures, includ- ing— ‘‘(i) customer satisfaction; ‘‘(ii) cost (such as, but not limited to, average cost per claim); ‘‘(iii) timeliness (such as, but not limited to, av- erage processing time, case age); ‘‘(iv) capacity (such as, but not limited to, staff- ing levels, education, grade level, training re- ceived, caseload); and ‘‘(v) case outcomes. ‘‘(B) Definitions of case outcomes. ‘‘(C) Data collection methods and timing of col- lection. ‘‘(D) Data quality assurance processes. ‘‘(2) JOINT REPORT TO CONGRESS.—Not later than 90 days after the date of the enactment of this Act [Oct. 13, 2010], the Special Counsel and the Secretary of Labor shall jointly submit to the Committees on Vet- erans’ Affairs of the Senate and House of Representa- tives and to the Comptroller General of the United States a report describing the methods and proce- dures established under paragraph (1). ‘‘(3) COMPTROLLER GENERAL REPORT.—Not later than 30 days after the date of the submittal of the report under paragraph (2), the Comptroller General shall submit to the Committees on Veterans’ Affairs of the Senate and House of Representatives a report on the report submitted under paragraph (2) and may pro- vide recommendations for improving the methods and procedures described therein. ‘‘(f) AGENCY DATA TO GOVERNMENT ACCOUNTABILITY OFFICE.—The Office of Special Counsel and the Sec- retary of Labor shall submit to the Comptroller Gen- eral such information and data about the demonstra- tion project as may be required by the Comptroller General, from time to time during the course of the demonstration project and at the conclusion, in order for the Comptroller General to assess the reliability of the demonstration data maintained by both the Office of Special Counsel and the Department of Labor and to review the relative performance of the Office and De- partment under the demonstration project. ‘‘(g) GOVERNMENT ACCOUNTABILITY OFFICE REPORT.— The Comptroller General shall review the relative per- formance of the Office of Special Counsel and the De- partment of Labor under the demonstration project and— ‘‘(1) not later than one year after the commence- ment of the demonstration project submit to the Committees on Veterans’ Affairs of the Senate and House of Representatives an interim report on the demonstration project; and ‘‘(2) not later than 90 days after the conclusion of the demonstration project, submit to such commit- tees a final report that includes the findings and con- clusions of the Comptroller General regarding the relative performance of the Office and the Depart- ment under the demonstration project and such rec- ommendations as the Comptroller General deter- mines are appropriate.’’ Pub. L. 108–454, title II, § 204, Dec. 10, 2004, 118 Stat. 3606, required the Secretary of Labor and the Office of Special Counsel to carry out a demonstration project during the period beginning 60 days after Dec. 10, 2004, and ending on September 30, 2007, under which certain claims against Federal executive agencies under the Uniformed Services Employment and Reemployment Rights Act of 1994, Pub. L. 103–353, under this chapter were referred to, or otherwise received by, the Office of Special Counsel for assistance. Executive Documents ENSURING THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT (USERRA) PROTECTIONS Memorandum of President of the United States, July 19, 2012, 77 F.R. 43699, provided: Memorandum for the Heads of Executive Depart- ments and Agencies The Uniformed Services Employment and Reemploy- ment Rights Act of 1994 (USERRA) protects individuals performing, or who performed, uniformed service in ac- cordance with 38 U.S.C. 4301–4335 from adverse employ- ment discrimination on the basis of their uniformed service, and provides for their prompt restoration to ci- vilian employment when they return to civilian life. USERRA is intended to ensure that these service members are not disadvantaged in their civilian ca- Page 997 TITLE 38—VETERANS’ BENEFITS § 4301 reers because of their service; are promptly reemployed in their civilian jobs upon their return from duty; and are not discriminated against in employment because of their military status or obligations. This memo- randum will help ensure that Federal agencies improve compliance with USERRA through outreach, edu- cation, and oversight. The Administration strongly believes that every man or woman who has served in our country’s uniformed services deserves the full protection of our employment laws, including USERRA. No discrimination or unfair treatment based on one’s service will be tolerated. We must do our utmost to ensure that all service members’ employment and reemployment rights are respected. The Federal Government, as our Nation’s largest em- ployer, has a responsibility to adopt best practices with respect to employing returning service members. At- tracting and retaining the best talent means ensuring fair treatment for individuals who have served our country. Close attention must be paid to our returning service members to ensure that we protect their reem- ployment rights, and effectively manage their re- integration when they return from service. As a critical part of that effort, I am directing execu- tive departments and agencies (agencies) to take steps to ensure robust compliance with USERRA’s employ- ment and reemployment protections across the Federal Government through outreach, education, and over- sight. Ensuring agencies’ compliance with USERRA across the Federal Government will maintain our com- mitment to those who serve. This effort will build upon, and be in furtherance of, Executive Order 13518 of November 9, 2009 (Employment of Veterans in the Federal Government), which directed agencies to take steps to enhance recruitment of and promote employment opportunities for veterans within the executive branch. Over the last few years, the Fed- eral Government has made a concerted and successful effort to increase the hiring of military veterans and members of the National Guard and Reserves, and vet- erans now constitute a higher percentage of the Fed- eral workforce than they have in years. The Federal Government must continue to improve outreach to the uniformed services, veteran, Guard, and Reserve communities; improve agencies’ USERRA training and guidance; and ensure that service mem- bers and veterans in Federal employment receive the full extent of their employment protections, including USERRA protections. Therefore, by the authority vest- ed in me as President by the Constitution and the laws of the United States of America, I hereby direct the fol- lowing: SECTION 1. USERRA Employment Protection Working Group. There is established the USERRA Employment Protection Working Group (Working Group), to be co- chaired by the Assistant to the President for Domestic Policy and the Assistant to the President and National Security Advisor, or their designated representatives, which shall coordinate and review agency efforts to im- plement USERRA. (a) In addition to the Co-Chairs, the Working Group shall include representatives from: (i) the Department of Defense; (ii) the Department of Justice; (iii) the Department of Labor; (iv) the Department of Veterans Affairs; (v) the Office of Personnel Management; (vi) the Office of the Special Counsel; and (vii) such other agencies or offices as the Co-Chairs may designate. (b) In addition to coordinating and reviewing agency efforts to implement USERRA pursuant to this memo- randum, the Working Group shall: (i) collect data to better track the Federal Govern- ment’s performance in implementing USERRA protec- tions; (ii) coordinate agency efforts to implement best prac- tices, training, and procedures for any agency officials who are authorized to recommend, take, or approve any personnel action with respect to employees of the agen- cy in order to improve compliance with USERRA em- ployment and reemployment protections; and (iii) conduct outreach to veterans and members of the National Guard and Reserve and other members of the uniformed services to assist them in fully exercising their employment rights. (c) Within 30 days of the date of this memorandum, the head of each agency shall designate a senior agency official to act as a liaison between the agency and the Working Group. The agency liaison shall be responsible for providing the Working Group with information on agency efforts to implement this memorandum, as well as any other relevant information on service member employment that the Working Group may require. (d) Within 90 days of the date of this memorandum, the Working Group shall report to the President on Government-wide progress in implementing this memo- randum. SEC. 2. Federal USERRA Guidance. (a) Within 180 days of the date of this memorandum, the Director of the Of- fice of Personnel Management, in consultation with the Council on Veterans Employment established by Exec- utive Order 13518 and offices and agencies participating in the Working Group, as appropriate, shall issue guid- ance to agencies on Federal USERRA employment pro- tection, which shall describe specific steps agencies can take to improve USERRA employment and reemploy- ment protection policies and practices, including: (i) improving data collection procedures to help bet- ter track overall service member employment data in the Federal Government, including Guard and Reserve members; (ii) using appropriate metrics, as established by the Office of Personnel Management, to measure imple- mentation of this memorandum; (iii) using guidance and tools, as developed by the Of- fice of Personnel Management through collaboration with the Working Group and Council on Veterans Em- ployment, which draw upon best agency practices as well as practices and guidance from the private sector; and (iv) strengthening relationships between service members, stakeholder groups, and the agency, and pro- viding better information to service members so as to allow them to be reintegrated as quickly and effi- ciently as possible when they return to civilian life. (b) In the course of developing guidance pursuant to subsection (a), the Director of the Office of Personnel Management, in consultation with the Council on Vet- erans Employment and offices and agencies partici- pating in the Working Group as appropriate, shall re- view relevant statutes, regulations, policies, and agen- cy training and guidance to identify reforms that would facilitate improved implementation of and com- pliance with USERRA. The Director of the Office of Personnel Management, in consultation with the Direc- tor of the Office of Management and Budget (OMB), shall report to the President on this review, no later than 1 year from the date of this memorandum, and provide recommendations for changes to laws, regula- tions, and policies that would strengthen USERRA pro- tections. (c) In developing guidance pursuant to subsection (a), the Director of the Office of Personnel Management shall consult with affected agencies, interagency groups, and public stakeholders. (d) The Department of Defense and the Office of Per- sonnel Management shall work together to improve data collection procedures to help better track the overall veteran and service member employment data in the Federal Government, particularly Guard and Re- serve Members. SEC. 3. Ensuring USERRA Employment Protection. The head of each agency shall, as expeditiously as possible: (a) implement the guidance issued pursuant to sec- tion 2 of this memorandum; (b) ensure that the agency has prioritized policies and actions to implement USERRA employment protec- tions, including providing appropriate training and in- formation, as well as undertaking appropriate reem- ployment measures; and 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.