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USERRA Regulations Become Effective

Date

January 1, 2006

Read Time

4 minutes

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Summary

The U.S. Department of Labor’s final regulations interpreting the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA” or the “Act”) became effective January 18, 2006. These regulations, which are 268 pages long, including comments, are the first effort by the Department of Labor to provide comprehensive guidance on the provisions of the Act and will be a valuable tool in helping employers and returning service members understand their rights and obligations. In addition, the rules require that all employers post a notice of USERRA rights.

 

Action Item(s)

Employers should examine their USERRA policies and practices to ensure that they are acting in conformity with the new regulations, particularly in reinstating returning service members and applying the “escalator principle” called for by the Act. In addition, employers will need to post the notice required by the regulations.

 

Discussion

USERRA establishes guidelines for employers to follow in conjunction with their obligations to reemploy service members returning from active military duty. Specifically, it provides rights to service members who leave their civilian jobs voluntarily or involuntarily to serve in the military. Service includes deployment within the five branches of the armed services, as well as military reserves and the National Guard. USERRA also prohibits employers from discriminating against veterans, members of the military services, and applicants for military.

Recently, the DOL issued its final regulations under USERRA offering greater clarity regarding the law’s requirements for both employers and employees. The regulations thoroughly explain when and how employers are to reinstate returning service members.

These new regulations, effective January 18, 2006, establish five criteria that employees must meet to be eligible for reemployment under USERRA. First, the employee must have been absent from a position of civilian employment — including employment with private employers as well as federal, state, and local governments — due to uniformed service. Second, the employee must have provided his or her employer with advance notice of military service. The regulations define “advance notice” as “as far in advance as is reasonable under the circumstances.” Third, the employee must not have had more than five years of cumulative uniformed service away from the particular employer. Fourth, the employee must return to work or apply for reemployment or reinstatement within the timeframe set forth in the regulations. This timeframe depends upon the length of time of the particular employee’s uniformed service. Finally, the service member must not have received a disqualifying discharge or other-than-honorable separation from service. USERRA prohibits employers from conditioning reemployment or reinstatement upon the employee’s ability to provide documentation substantiating the fulfillment of these criteria.

If the employee meets these criteria, the regulations explain that employers must “promptly” reemploy the eligible service member. “Promptly” means “as soon as practicable under the circumstances” and no later than “two weeks after the application for reemployment.”

The employer is required to honor the application even if it has filled the returning employee’s position since he or she left and even if it does not have a position available.

Furthermore, employers must reemploy service members at the same seniority level and pay they would have attained had their military service not intervened. The regulations use the term “escalator position” to explain that a returning service member should ride the “moving escalator of terms and conditions affecting that particular [pre-service] employment” comparable to the position that would have been held had the service member remained continuously with that civilian employer. This concept, which is unique to USERRA, has been a source of confusion for many employers.

USERRA’s health care provisions, similar to the provisions under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), mandate that employers provide for continuation of employment-based health care coverage effective immediately upon reinstatement. But, unlike COBRA, USERRA’s requirements apply regardless of the size of the employer’s workforce or whether the employer is a government entity. Members who leave for service can also elect to continue their existing employer-based health care coverage for up to 24 months while away from work. Choice and payment options for extended health care coverage are provided for in the regulations.

The regulations also prohibit employers from taking any adverse action against employees or service members who attempt to enforce their rights and benefits under USERRA. The regulations, however, do afford employers an “undue hardship” defense to any claim of discrimination under USERRA, provided the employer can demonstrate the existence of qualified circumstances.

Finally, DOL regulations require an employer to post a notice to employees regarding their rights and obligations under USERRA. This notice can be found at www.dol.gov/vets/programs/userra/poster/pdf.

If you need further assistance reviewing your USERRA policy or with any other matter relating to the new regulations, please contact Peter F. Donati, head of Levenfeld Pearlstein’s Employment Service Group.


Filed under: Employment & Executive Compensation

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