38 U.S.C. § 4303

Current through P.L. 118-106 (published on www.congress.gov on 10/04/2024)

Section 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 employment", or "rights and benefits" means the terms, conditions, or privileges of employment, including any advantage, profit, privilege, gain, status, account, or interest (including 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 opportunity 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 permanent 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 section 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 entity that pays salary or wages for work performed or that has control over employment opportunities, including-

(i) a person, institution, organization, or other entity to whom the employer has delegated the performance of employment-related responsibilities;

(ii) the Federal Government;

(iii) a State;

(iv) any successor in interest to a person, institution, organization, or other entity referred to in this subparagraph; and

(v) a person, institution, organization, or other entity that has denied initial employment in violation of section 4311.

(B) In the case of a National Guard technician employed under section 709 of title 32, the term "employer" means the adjutant general of the State in which the technician is employed.

(C) Except as an actual employer of employees, an employee pension benefit plan described in section 3(2) of the Employee Retirement 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 benefits described in section 4318.

(D)

(i) Whether the term "successor in interest" applies with respect to an entity described in subparagraph (A) for purposes of clause (iv) of such subparagraph shall be determined on a case-by-case basis using a multi-factor test that considers the following factors:

(I) Substantial continuity of business operations.

(II) Use of the same or similar facilities.

(III) Continuity of work force.

(IV) Similarity of jobs and working conditions.

(V) Similarity of supervisory personnel.

(VI) Similarity of machinery, equipment, and production methods.

(VII) Similarity of products or services.

(ii) The entity's lack of notice or awareness of a potential or pending claim under this chapter at the time of a merger, acquisition, or other form of succession shall not be considered when applying the multi-factor test under clause (i).

(5) The term "Federal executive agency"-

(A) except as provided in subparagraph (B), includes-

(i) the United States Postal Service;

(ii) the Postal Regulatory Commission;

(iii) any nonappropriated fund instrumentality of the United States;

(iv) any Executive agency (as defined in section 105 of title 5); and

(v) any military department (as defined in section 102 of title 5) with respect to the civilian employees of that department; and

(B) does not include-

(i) an agency referred to in section 2302(a)(2)(C)(ii) of title 5;

(ii) the National Oceanic and Atmospheric Administration with respect to members of the commissioned officer corps of the National Oceanic and Atmospheric Administration; or

(iii) the Public Health Service with respect to members of the Commissioned Corps of the Public Health Service serving on active duty, active duty for training, or inactive duty training.

(6) The term "Federal Government" includes any Federal executive agency, the legislative branch of the United States, and the judicial branch of the United States.

(7) The term "health plan" means an insurance policy or contract, medical or hospital service agreement, membership or subscription contract, or other arrangement under which health services for individuals are provided or the expenses of such services are paid.

(8) The term "notice" means (with respect to subchapter II) any written or verbal notification of an obligation or intention to perform service in the uniformed services provided to an employer by the employee who will perform such service or by the uniformed service in which such service is to be performed.

(9) The term "qualified", with respect to an employment position, means having the ability to perform the essential tasks of the position.

(10) The term "reasonable efforts", in the case of actions required of an employer under this chapter, means actions, including training provided by an employer, that do not place an undue hardship on the employer.

(11) Notwithstanding section 101, the term "Secretary" means the Secretary of Labor or any person designated by such Secretary to carry out an activity under this chapter.

(12) The term "seniority" means longevity in employment together with any benefits of employment which accrue with, or are determined by, longevity in employment.

(13) The term "service in the uniformed services" means the performance of duty on a voluntary or involuntary basis in a uniformed service under competent authority and includes active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, State active duty for a period of 14 days or more, State active duty in response to a national emergency declared by the President under the National Emergencies Act (50 U.S.C. 1601 et seq.), State active duty in response to a major disaster declared by the President under section 401 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170), a period for which a person is absent from a position of employment for the purpose of an examination to determine the fitness of the person to perform any such duty, a period for which a System member of the National Urban Search and Rescue Response System is absent from a position of employment due to an appointment into Federal service under section 327 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, a period for which a person is absent from a position of employment due to an appointment into service in the Federal Emergency Management Agency as intermittent personnel under section 306(b)(1) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5149(b)(1)), and a period for which a person is 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.

(14) The term "State" means each of the several States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, and other territories of the United States (including the agencies and political subdivisions thereof).

(15) The term "State active duty" means training or other duty, other than inactive duty, performed by a member of the National Guard of a State-

(A) not under section 502 of title 32 or under title 10;

(B) in service to the Governor of a State; and

(C) for which the member is not entitled to pay from the Federal Government.

(16) The term "undue hardship", in the case of actions taken by an employer, means actions requiring significant difficulty or expense, when considered in light of-

(A) the nature and cost of the action needed under this chapter;

(B) the overall financial resources of the facility or facilities involved in the provision of the action; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility;

(C) the overall financial resources of the employer; the overall size of the business of an employer with respect to the number of its employees; the number, type, and location of its facilities; and

(D) the type of operation or operations of the employer, including the composition, structure, and functions of the work force of such employer; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the employer.

(17) The term "uniformed services" means the Armed Forces, the Army National Guard and the Air National Guard when engaged in active duty for training, inactive duty training, or full-time National Guard duty, the Commissioned Corps of the Public Health Service, the commissioned officer corps of the National Oceanic and Atmospheric Administration, System members of the National Urban Search and Rescue Response System during a period of appointment into Federal service under section 327 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, intermittent personnel who are appointed into Federal Emergency Management Agency service under section 306(b)(1) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5149(b)(1)) or to train for such service, and any other category of persons designated by the President in time of war or national emergency.

38 U.S.C. § 4303

Added Pub. L. 103-353, §2(a), Oct. 13, 1994, 108 Stat. 3150; amended Pub. L. 104-275, title III, §311(2), Oct. 9, 1996, 110 Stat. 3334; Pub. L. 105-368, title II, §212(a), Nov. 11, 1998, 112 Stat. 3331; Pub. L. 106-419, title III, §323(a), Nov. 1, 2000, 114 Stat. 1855; Pub. L. 107-14, §8(a)(11), (b) (2), June 5, 2001, 115 Stat. 35, 36; Pub. L. 109-435, title VI, §604(f), Dec. 20, 2006, 120 Stat. 3242; Pub. L. 111-275, title VII, §§701(a), Oct. 13, 2010, 702, Oct. 13, 2010, 124 Stat. 2887; Pub. L. 112-56, title II, §251, Nov. 21, 2011, 125 Stat. 729; Pub. L. 114-326, §2(b)(2), Dec. 16, 2016, 130 Stat. 1972; Pub. L. 116-259, title II, §208, Dec. 23, 2020, 134 Stat. 1168; Pub. L. 116-315, title VII, §70047004,, 134 Stat. 5058; Pub. L. 117-178, §3(a), Sept. 29, 2022, 136 Stat. 2110; Pub. L. 117-263, div. E, title LI, §51215121,, 136 Stat. 3210.

EDITORIAL NOTES

REFERENCES IN TEXTThe National Emergencies Act, referred to in par. (13), is Pub. L. 94-412, Sept. 14, 1976, 90 Stat. 1255, which is classified principally to chapter 34 (§1601 et seq.) of Title 50, War and National Defense. For complete classification of this Act to the Code, see Short Title note set out under section 1601 of Title 50 and Tables.Section 327 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, referred to in pars. (13) and (17), is classified to section 5165f of Title 42, The Public Health and Welfare.

PRIOR PROVISIONSA prior section 4303, added Pub. L. 93-508, title IV, §404(a), Dec. 3, 1974, 88 Stat. 1596, §2023; amended Pub. L. 97-295, §4(72), Oct. 12, 1982, 96 Stat. 1310; renumbered §4303 and amended Pub. L. 102-568, title V, §506(a), (c) (2), Oct. 29, 1992, 106 Stat. 4340, 4341, related to reemployment by the United States, by any territory, possession, or political subdivision thereof, or by the District of Columbia, 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 4303 was renumbered section 7603 of this title.

AMENDMENTS2022-Par. (5). Pub. L. 117-263, §5121(a), amended par. (5) generally. Prior to amendment, par. (5) read as follows: "The term 'Federal executive agency' includes the United States Postal Service, the Postal Regulatory Commission, any nonappropriated fund instrumentality of the United States, any Executive agency (as that term is defined in section 105 of title 5) other than an agency referred to in section 2302(a)(2)(C)(ii) of title 5, and any military department (as that term is defined in section 102 of title 5) with respect to the civilian employees of that department." Par. (13). Pub. L. 117-178, §3(a)(1), inserted ",a period for which a person is absent from a position of employment due to an appointment into service in the Federal Emergency Management Agency as intermittent personnel under section 306(b)(1) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5149(b)(1))" before ",and a period". Par. (16). Pub. L. 117-178, §3(a)(2), redesignated par. (16) defining "uniformed services" as (17).Par. (17). Pub. L. 117-263, §5121(b), substituted "Commissioned Corps of the Public Health Service" for "commissioned corps of the Public Health Service". Pub. L. 117-178, §3(a)(2), (3), redesignated par. (16) defining "uniformed services" as (17) and inserted "intermittent personnel who are appointed into Federal Emergency Management Agency service under section 306(b)(1) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5149(b)(1)) or to train for such service," before "and any other category". 2021-Par. (13). Pub. L. 116-315, §7004(1), inserted "State active duty for a period of 14 days or more, State active duty in response to a national emergency declared by the President under the National Emergencies Act (50 U.S.C. 1601 et seq.), State active duty in response to a major disaster declared by the President under section 401 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170)," after "full-time National Guard duty,".Pars. (15), (16). Pub. L. 116-315, §7004(2), (3), added par. (15) and redesignated former par. (15) as (16) defining "undue hardship". 2020-Par. (16). Pub. L. 116-259 inserted "the commissioned officer corps of the National Oceanic and Atmospheric Administration," after "Public Health Service," in par. (16) defining "uniformed services".2016-Par. (13). Pub. L. 114-326, §2(b)(2)(A), inserted ",a period for which a System member of the National Urban Search and Rescue Response System is absent from a position of employment due to an appointment into Federal service under section 327 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act" before ",and a period".Par. (16). Pub. L. 114-326, §2(b)(2)(B), inserted "System members of the National Urban Search and Rescue Response System during a period of appointment into Federal service under section 327 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act," after "Public Health Service,". 2011-Par. (2). Pub. L. 112-56 inserted "the terms, conditions, or privileges of employment, including" after "means". 2010-Par. (2). Pub. L. 111-275, §701(a), substituted "(including" for "(other than".Par. (4)(D). Pub. L. 111-275, §702(a), added subpar. (D).2006-Par. (5). Pub. L. 109-435 substituted "Postal Regulatory Commission" for "Postal Rate Commission". 2001-Par. (13). Pub. L. 107-14, §8(b)(2), made technical amendment to directory language of Pub. L. 106-419, §323(a)(1). See 2000 Amendment note below. Pub. L. 107-14, §8(a)(11), struck out second period at end. 2000-Par. (13). Pub. L. 106-419, §323(a)(2), inserted before period at end ",and a period for which a person is 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 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 section 4319(c) of this title." 1996-Par. (16). Pub. L. 104-275 inserted "national" before "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 chapter 43 that are pending on or after the date of the enactment 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 chapter 43 that are pending on or after the date of the enactment of this Act."

EFFECTIVE DATE OF 2001 AMENDMENT Pub. L. 107-14, §8(b), June 5, 2001, 115 Stat. 36, provided that the amendment made by section 8(b) is effective Nov. 1, 2000, and as if included in the Veterans Benefits 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 subsections (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 amending 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 DATESection effective with respect to reemployments initiated on or after the first day after the 60-day period beginning Oct. 13, 1994, with transition rules, see section 8 of Pub. L. 103-353 set out as a note under section 4301 of this title.