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For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
QUALIFIED MILITARY SERVICE. Consistent with I.R.C. § 414(u)(5), any service in the Uniformed Services (as defined below) if the individual is entitled to re-employment rights under USERRA with respect to such service.
SERVICE IN THE UNIFORMED SERVICES. Consistent with 38 U.S.C. § 4303(13), 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 and 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.
UNIFORMED SERVICE. Consistent with 38 U.S.C. § 4303(16), any one or more of the Armed Forces, the Army National Guard or the Air National Guard when engaged in active duty for training or inactive duty training or full-time National Guard duty, the commissioned corps of the Public Health Service or any other category of persons designated by the President of the United States in time of war or emergency.
USERRA. The Uniformed Services Employment and Re-Employment Rights Act of 1994 (Public Law No. 103-353) (October 13, 1994) codified at 38 US.C. §§ 4301 et seq.
(Ord. NIRC 97-1, passed 1-15-1997)
(A) Consistent with 38 U.S.C. § 4318(a)(2)(A) and I.R.C. § 414(u)(8)(A), a person re-employed under 38 U.S.C. §§ 4301 et seq. shall be treated as not having incurred a break-in-service by reason of such person’s period(s) of qualified military service.
(B) Consistent with 38 U.S.C. § 4318(a)(2)(B) and I.R.C. § 414(u)(8)(B), upon re-employment under 38 U.S.C. §§ 4301 et seq., each period of qualified military service shall constitute service under this plan for the purpose of determining the non-forfeitability of the participant’s accrued benefits under this plan and for the purpose of determining the accrual of benefits under this plan.
(Ord. NIRC 97-1, passed 1-15-1997)
Consistent with 38 U.S.C. § 4318(b)(3) and I.R.C. § 414(u)(7) and I.R.C. § 457(e)(5), for the purposes of computing any contributions required or permitted under this subchapter, the re-employed participant’s compensation during the period of qualified military service shall be either the compensation the participant would have received during such period if the participant were not in qualified military service, determined based on the rate of pay the participant would have received from the employer but for absence during the period of qualified military service or, if the compensation the participant would have received during the period of absence for qualified military service was not reasonably certain, the participant’s average compensation from the employer during the 12-month period (or, if shorter, the entire period of employment) immediately preceding the qualified military service.
(Ord. NIRC 97-1, passed 1-15-1997)
Consistent with 38 U.S.C. § 4318(b)(1) and I.R.C. § 414(u), if a person is re-employed under 38 U.S.C. §§ 4301 et seq., with respect to the period(s) of service in the Uniformed Services, the employer shall pay (if it has not already done so) and the Plan Administrator shall allocate to the re-employed participant’s account any employer non-elective contribution for the participant in the amount (without investment income or earnings of any kind) that would have been allocated to the participant’s account if the participant had been actively at work for the employer.
(Ord. NIRC 97-1, passed 1-15-1997)
Consistent with 38 U.S.C. § 4318(b)(2), if a person is re-employed under 38 U.S.C. §§ 4301 et seq. and makes employee contributions as permitted by § 33.008, with respect to the period(s) of service in the Uniformed Services, the employer shall pay (if it has not already done so) and the Plan Administrator shall allocate to the re-employed participant’s account any employer matching contribution for the participant in the amount (without investment income or earnings of any kind) that would have been allocated to the participant’s account if the participant had been actively at work for the employer to the extent that the re-employed participant makes payment to the plan for employee contributions. Consistent with I.R.C. § 414(u)(2)(A)(ii), the employer has no obligation to pay the matching contribution until and its obligation is only to the extent that the re-employed participant pays his or her employee contribution.
(Ord. NIRC 97-1, passed 1-15-1997)
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