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. § 4318

Employee pension benefit plans

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(a)(1)(A) Except as provided in subparagraph (B), in the case of a right provided pursuant to an employee pension benefit plan (including those described in sections 3(2) and 3(33) of the Employee Retirement Income Security Act of 1974) or a right provided under any Federal or State law governing pension benefits for governmental employees, the right to pension benefits of a person reemployed under this chapter shall be determined under this section.(B) In the case of benefits under the Thrift Savings Plan, the rights of a person reemployed under this chapter shall be those rights provided in section 8432b of title 5. The first sentence of this subparagraph shall not be construed to affect any other right or benefit under this chapter.(2)(A) A person reemployed under this chapter shall be treated as not having incurred a break in service with the employer or employers maintaining the plan by reason of such person’s period or periods of service in the uniformed services.(B) Each period served by a person in the uniformed services shall, upon reemployment under this chapter, be deemed to constitute service with the employer or employers maintaining the plan for the purpose of determining the nonforfeitability of the person’s accrued benefits and for the purpose of determining the accrual of benefits under the plan.(b)(1) An employer reemploying a person under this chapter shall, with respect to a period of service described in subsection (a)(2)(B), be liable to an employee pension benefit plan for funding any obligation of the plan to provide the benefits described in subsection (a)(2) and shall allocate the amount of any employer contribution for the person in the same manner and to the same extent the allocation occurs for other employees during the period of service. For purposes of determining the amount of such liability 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 Retirement Income Security Act of 1974 or any similar Federal or State law governing pension benefits for governmental employees, service in the uniformed 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 collective bargaining agreement. In the case of a multiemployer 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 sponsor maintaining the plan shall provide; or(B) if the sponsor does not provide—(i) to the last employer employing the person before the period served by the person in the uniformed services, or(ii) if such last employer is no longer functional, 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 making 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 remained 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 reemployment and whose duration is three times the period 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 employee’s compensation during the period of service described in subsection (a)(2)(B) shall be computed—(A) at the rate the employee would have received 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 compensation during the 12-month period immediately preceding such period (or, if shorter, the period of employment immediately preceding such period).(c) Any employer who reemploys a person under this chapter and who is an employer contributing to a multiemployer plan, as defined in section 3(37) of the Employee Retirement Income 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 reemployment, 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 NotesReferences in Text

Sections 3 and 515 of the Employee Retirement Income 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 “services, such payment period” for “services,” in last sentence.

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 an employee pension benefit plan not in compliance with this section or section 8(h)(1) of Pub. L. 103–353 on Oct. 13, 1994, has two years to come into compliance, see section 8 of Pub. L. 103–353, set out as a note under section 4301 of this title.

Notes of Decisions
Cited in 29 cases (15 in the last 5 years), 2001–2026 · leading case: Kenneth Savage v. Fed. Express Corp., 856 F.3d 440 (6th Cir. 2017).
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Kenneth Savage v. Fed. Express Corp., 856 F.3d 440 (6th Cir. 2017). · cites it 7× “§ 4311 and a claim under USERRA’s pension provision, 38 U.S.C. § 4318 . FedEx filed a motion for summary judgment, which the district court granted.”
Duffer v. United Cont'l Holdings, Inc., 173 F. Supp. 3d 689 (N.D. Ill. 2016). · cites it 8× “38 U.S.C. § 4318 ; see also Crews v. City of Mt.”
Hanson v. Cnty. of Kitsap, 21 F. Supp. 3d 1124 (W.D. Wash. 2014). · cites it 3× “Then it will address the summary judgment motions related to Plaintiffs USERRA claims under §§ 4312 and 4313 (reemployment), Plaintiffs claims under § 4316 (benefits) and then § 4316 (without cause discharge).”
Behalf v. Am. Airlines Grp., Inc., 384 F. Supp. 3d 520 (E.D. Pa. 2019). · cites it 2× “38 U.S.C. § 4318 (a)(1)(A). USERRA, according to Department of Labor regulations, also covers certain pension plans not covered by ERISA.”
Wriggelsworth v. Brumbaugh, 129 F. Supp. 2d 1106 (W.D. Mich. 2001). · cites it 2× “Title 38 U.S.C. § 4318 provides, in pertinent part, that: (a)(2)(A) A person reemployed under this chapter shall be treated as not having incurred a break in service with the employer or employers maintaining the plan by reason of such person’s period or periods of service in…”
Felkins v. Oklahoma Firefighters Pension & Ret. Sys., 2005 OK CIV APP 39, 116 P.3d 195. · cites it 3× “38 U.S.C. § 4318 (a)(1)(A). It does not mandate pension systems treat those who served in the military better than those who did not serve.”
Murphy v. Tuality Healthcare, 157 F. Supp. 3d 921 (D. Or. 2016). “Murphy asserts that Tuality violated USERRA in three ways by: (1) failing to reemploy Murphy *922 after he completed his military service, in violation of 38 U.S.C. § 4318 ; (2) discharging Murphy without cause within 180 days of his military service, in violation of 38 U.”
United States v. United States Territory of Guam, No. 1:21-cv-00022 (D. Guam May 30, 2023). · cites it 9× “15 Second, GGRF relies predominantly on 38 U.S.C. § 4318 (b)(1) to argue that only actual 16 employers are liable.”
Krzyminski v. Spokane Cnty., No. 2:19-cv-00238 (E.D. Wash. Dec. 9, 2019). · cites it 7× “5 Plaintiff asks the Court to (1) declare that Defendant’s denial of Plaintiff the 6 right to make contributions to a retirement plan, and the failure to give timely and 7 adequate notice to the plan administrator as required under the USERRA was 8 unlawful and violated 38…”
Adam McLean v. Delta Air Lines, Inc., 174 F.4th 54 (11th Cir. 2026). · cites it 6× “See 38 U.S.C. § 4318 (b)(3)(B). Because the evidence showed that Delta contributed more to 1 There were other plaintiffs and other claims in the district court, but they are not relevant to this appeal.”
Espinoza v. City of Seattle, 458 F. Supp. 3d 1254 (W.D. Wash. 2020). · cites it 4× “§ 4316 of USERRA; (5) failure to contribute to a pension plan in violation of 9 38 U.S.C. § 4318 of USERRA; and (6) willful violation of USERRA in violation of 38 10 U.”
Bearden v. City of Ocean Shores, 644 F. Supp. 3d 876 (W.D. Wash. 2022). · cites it 4× “Retirement System Service Credit for February 2014 4 Bearden claims that the City violated 38 U.S.C. § 4318 by maintaining a 5 retirement plan that imposes requirements on members of the uniformed services beyond 6 those required or permitted by USERRA.”
Show all 29 citing cases →
38 U.S.C. § 4318(a)(2)(A): 1 case
Adam McLean v. Delta Air Lines, Inc., 174 F.4th 54 (11th Cir. 2026). “See 38 U.S.C. § 4318 (b)(3)(B). Because the evidence showed that Delta contributed more to 1 There were other plaintiffs and other claims in the district court, but they are not relevant to this appeal.”
38 U.S.C. § 4318(b)(3): 1 case
Adam McLean v. Delta Air Lines, Inc., 174 F.4th 54 (11th Cir. 2026). “See 38 U.S.C. § 4318 (b)(3)(B). Because the evidence showed that Delta contributed more to 1 There were other plaintiffs and other claims in the district court, but they are not relevant to this appeal.”
38 U.S.C. § 4318(b)(3)(B): 1 case
Adam McLean v. Delta Air Lines, Inc., 174 F.4th 54 (11th Cir. 2026). “See 38 U.S.C. § 4318 (b)(3)(B). Because the evidence showed that Delta contributed more to 1 There were other plaintiffs and other claims in the district court, but they are not relevant to this appeal.”
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