U.S. Code » Title 38 » Part PART III— READJUSTMENT AND RELATED BENEFITS › Chapter CHAPTER 43— EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE UNIFORMED SERVICES › Subchapter SUBCHAPTER II— EMPLOYMENT AND REEMPLOYMENT RIGHTS AND LIMITATIONS; PROHIBITIONS

38 U.S.C. § 4313

Reemployment positions

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(a) Subject to subsection (b) (in the case of any employee) and sections 4314 and 4315 (in the case of an employee of the Federal Government), a person entitled to reemployment under section 4312, upon completion of a period of service in the uniformed services, shall be promptly reemployed in a position of employment in accordance with the following order of priority:(1) Except as provided in paragraphs (3) and (4), in the case of a person whose period of service in the uniformed services was for less than 91 days—(A) in the position of employment in which the person would have been employed if the continuous employment of such person with the employer had not been interrupted by such service, the duties of which the person is qualified to perform; or(B) in the position of employment in which the person was employed on the date of the commencement of the service in the uniformed services, only if the person is not qualified to perform the duties of the position referred to in subparagraph (A) after reasonable efforts by the employer to qualify the person.(2) Except as provided in paragraphs (3) and (4), in the case of a person whose period of service in the uniformed services was for more than 90 days—(A) in the position of employment in which the person would have been employed if the continuous employment of such person with the employer had not been interrupted by such service, or a position of like seniority, status and pay, the duties of which the person is qualified to perform; or(B) in the position of employment in which the person was employed on the date of the commencement of the service in the uniformed services, or a position of like seniority, status and pay, the duties of which the person is qualified to perform, only if the person is not qualified to perform the duties of a position referred to in subparagraph (A) after reasonable efforts by the employer to qualify the person.(3) In the case of a person who has a disability incurred in, or aggravated during, such service, and who (after reasonable efforts by the employer to accommodate the disability) is not qualified due to such disability to be employed in the position of employment in which the person would have been employed if the continuous employment of such person with the employer had not been interrupted by such service—(A) in any other position which is equivalent in seniority, status, and pay, the duties of which the person is qualified to perform or would become qualified to perform with reasonable efforts by the employer; or(B) if not employed under subparagraph (A), in a position which is the nearest approximation to a position referred to in subparagraph (A) in terms of seniority, status, and pay consistent with circumstances of such person’s case.(4) In the case of a person who (A) is not qualified to be employed in (i) the position of employment in which the person would have been employed if the continuous employment of such person with the employer had not been interrupted by such service, or (ii) in the position of employment in which such person was employed on the date of the commencement of the service in the uniformed services for any reason (other than disability incurred in, or aggravated during, service in the uniformed services), and (B) cannot become qualified with reasonable efforts by the employer, in any other position which is the nearest approximation to a position referred to first in clause (A)(i) and then in clause (A)(ii) which such person is qualified to perform, with full seniority.(b)(1) If two or more persons are entitled to reemployment under section 4312 in the same position of employment and more than one of them has reported for such reemployment, the person who left the position first shall have the prior right to reemployment in that position.(2) Any person entitled to reemployment under section 4312 who is not reemployed in a position of employment by reason of paragraph (1) shall be entitled to be reemployed as follows:(A) Except as provided in subparagraph (B), in any other position of employment referred to in subsection (a)(1) or (a)(2), as the case may be (in the order of priority set out in the applicable subsection), that provides a similar status and pay to a position of employment referred to in paragraph (1) of this subsection, consistent with the circumstances of such person’s case, with full seniority.(B) In the case of a person who has a disability incurred in, or aggravated during, a period of service in the uniformed services that requires reasonable efforts by the employer for the person to be able to perform the duties of the position of employment, in any other position referred to in subsection (a)(3) (in the order of priority set out in that subsection) that provides a similar status and pay to a position referred to in paragraph (1) of this subsection, consistent with circumstances of such person’s case, with full seniority.(Added Pub. L. 103–353, § 2(a), Oct. 13, 1994, 108 Stat. 3157; amended Pub. L. 104–275, title III, § 311(5), Oct. 9, 1996, 110 Stat. 3335.)Editorial NotesPrior Provisions

A prior section 4313 was renumbered section 7613 of this title.

Amendments

1996—Subsec. (a)(4). Pub. L. 104–275 substituted “uniformed services” for “uniform services” in cl. (A)(ii) and “which is the nearest approximation to a position referred to first in clause (A)(i) and then in clause (A)(ii) which” for “of lesser status and pay which” in cl. (B).

Statutory Notes and Related SubsidiariesEffective 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 initiated on or after the first day after the 60-day period beginning Oct. 13, 1994, with transition rules, except that subsec. (a)(3) of this section applicable to reemployments initiated on or after Aug. 1, 1990, see section 8 of Pub. L. 103–353, set out as a note under section 4301 of this title.

Notes of Decisions
Cited in 91 cases (22 in the last 5 years), 2000–2026 · leading case: Serricchio v. Wachovia Sec. LLC, 658 F.3d 169 (2d Cir. 2011).
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Serricchio v. Wachovia Sec. LLC, 658 F.3d 169 (2d Cir. 2011). · cites it 7× “See 38 U.S.C. § 4313 (a)(2)(A). Is a reemployment position that provides the same commission rate (i.”
Crawford v. Dep't of the Army, 718 F.3d 1361 (Fed. Cir. 2013). · cites it 7× “As such, the Agency violated the reemployment protections provided to those in uniformed service under 38 U.S.C. § 4313 (a)(2). 2 The administrative *1364 judge (“AJ”) agreed that the Program Support Specialist position was not of “like status” to Mr.”
Samuel Scudder v. Dolgencorp, 900 F.3d 1000 (8th Cir. 2018). · cites it 3× “2011) (quoting 38 U.S.C. § 4313 (a)(2)(A) ). Under USERRA, the returning service member must give advance notice of his service and, upon completion of that service, "submit[ ] an application for reemployment" within an allotted time frame.”
Clegg v. Arkansas Dep't of Corr., 496 F.3d 922 (8th Cir. 2007). · cites it 2× “” 38 U.S.C. § 4313 (a)(2)(A) (defining rights set forth in § 4312, which entitles a person to be rehired upon return from military service).”
Petty v. Metro. Gov't of Nashville-Davidson Cnty., 538 F.3d 431 (6th Cir. 2008). · cites it 3× “38 U.S.C. § 4313 . 3 Third, it prevents employers from discriminating against returning veterans on account of their military service.”
Douglas Milhauser v. Minco Prods., Inc., 701 F.3d 268 (8th Cir. 2012). · cites it 7× “38 U.S.C. § 4313 (a). In response to Milhauser's complaint, Minco asserted that changed circumstances had made reemploying him impossible or unreasonable, an affirmative defense under the statute.”
Dianne Butts v. Prince William Cnty. Sch. Bd., 844 F.3d 424 (4th Cir. 2016). · cites it 3× “38 U.S.C. § 4313 (a)(2)(A)-(B) (emphasis supplied).”
Huff v. Winston, 790 S.E.2d 226 (Va. 2016). · cites it 10× “Procedural Background Huff filed a complaint in the Circuit Court of Roanoke County, asserting four counts against the Sheriff.”
Davis v. Crothall Servs. Grp., Inc., 961 F. Supp. 2d 716 (W.D. Pa. 2013). · cites it 5× “” 38 U.S.C. § 4313 (d)(1). Defendant claims declining business in its Central Region led to the elimination of Plaintiffs previous ROM position, and in turn made his reemployment impossible.”
Thomas Harwood, III v. Am. Airlines, Inc., 963 F.3d 408 (4th Cir. 2020). · cites it 2× “38 U.S.C. § 4313 (a) (emphasis added). “Prompt reemployment” is defined by regulation to mean “as soon as practicable under the circumstances of each case.”
Torres v. Texas Dep't of Pub. Saf., 597 U.S. 580 (2022). “38 U. S. C. §4313 (a)(3). Texas moved to dismiss the suit by invoking sovereign immunity.”
Charles Coffman v. Chugach Support Servs. Inc., 411 F.3d 1231 (11th Cir. 2005). “§ 4312 and 38 U.S.C. § 4313 . 2. Whether the district court properly determined that Coffman could not establish a prima facie case of discrimination on the basis of his active military service under 38 U.”
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— 38 U.S.C. § 4313(a)(2) — 1 case
Crawford v. Dep't of the Army, 718 F.3d 1361 (Fed. Cir. 2013). “As such, the Agency violated the reemployment protections provided to those in uniformed service under 38 U.S.C. § 4313 (a)(2). 2 The administrative *1364 judge (“AJ”) agreed that the Program Support Specialist position was not of “like status” to Mr.”
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