Regulations Under the Uniformed Services Employment and Reemployment
Rights Act of 1994, as Amended; Proposed Rule [09/20/2004]
Volume 69, Number 181, Page 56265-56301
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Part II
Department of Labor
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Veterans' Employment and Training Service
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20 CFR Part 1002
Regulations Under the Uniformed Services Employment and Reemployment
Rights Act of 1994, as Amended; Proposed Rule
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DEPARTMENT OF LABOR
Veterans' Employment and Training Service
20 CFR Part 1002
[Docket No. VETS-U-04]
RIN 1293-AA09
Regulations Under the Uniformed Services Employment and
Reemployment Rights Act of 1994, as Amended
AGENCY: Veterans' Employment and Training Service, Department of Labor.
ACTION: Proposed rules.
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SUMMARY: The Veterans' Employment and Training Service (``VETS'' or
``the Agency'') is issuing proposed rules that would implement the
Uniformed Services Employment and Reemployment Rights Act of 1994, as
amended (USERRA). Congress enacted USERRA to protect the rights of
persons who voluntarily or involuntarily leave employment positions to
undertake military service. USERRA authorizes the Secretary of Labor
(in consultation with the Secretary of Defense) to prescribe rules
implementing the law as it applies to States, local governments, and
private employers. VETS is proposing these rules under that authority
in order to provide guidance to employers and employees concerning
their rights and obligations under USERRA. The Agency invites written
comments on these proposed rules, and any specific issues related to
this proposal, from members of the public.
DATES: Comments regarding this proposal, including comments on the
information-collection determination described in Section V of the
preamble (``Paperwork Reduction Act''), must be received by the Agency
on or before November 19, 2004. Please see the sections below entitled
ADDRESSES and SUPPLEMENTARY INFORMATION for additional information on
submitting comments.
ADDRESSES: You may submit comments, identified as ``Docket No. VETS-U-
04,'' by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
Electronic mail (email): vets-public@dol.gov. Include ``Docket No.
VETS-U-04'' on the subject line of the message. You can attach
materials that are in Microsoft Office formats such as Word, Excel, and
Power Point. Attachments may also be made using Adobe Acrobat, Word
Perfect, or ASCII/text documents. You cannot attach materials using
executables (.exe, .com, .bat) or any encrypted zip files.
Facsimile (fax): VETS at 202-693-4754.
Mail, Express Delivery, Hand Delivery, and Messenger Service:
Submit an original and three copies of written comments and attachments
to the Office of Operations and Programs, Docket No. VETS-U-04, Room S-
1316, U.S. Department of Labor, 200 Constitution Ave., NW., Washington,
DC 20210; telephone (202) 693-4711. If possible, provide your written
comments on a computer disc. Contact Mr. Bob Sacoman at (202) 693-4721
with any formatting questions. Normal hours of operation for the VETS
Office of Operations and Programs and the Department of Labor are 8:15
a.m. to 4:45 p.m., Eastern Time, Monday through Friday (except Federal
holidays).
Note that security-related problems may result in significant
delays in receiving comments and other written materials by regular
mail. Contact Mr. Charles Dawson, VETS Office of Operations and
Programs, at (202) 693-4711 for information regarding security
procedures concerning delivery of materials by express delivery, hand
delivery, and messenger service.
Docket Access: All comments and submissions will be available for
inspection and copying in the VETS Office of Operations and Programs at
the address above during normal hours of operation. Contact Mr. Charles
Dawson, VETS Office of Operations and Programs, at (202) 693-4711 for
information about access to the docket submissions. Because comments
sent to the docket are available for public inspection, the Agency
cautions commenters against including in their comments personal
information such as social security numbers and birth dates.
FOR FURTHER INFORMATION CONTACT: For information, contact Charles
Dawson, Office of Operations and Programs, Veterans' Employment and
Training Service (VETS), U.S. Department of Labor, Room S1316, 200
Constitution Ave., NW., Washington, DC 20210. Telephone: 202-693-4711
(this is not a toll-free number). Electronic mail:
dawson.charles@dol.gov.
For press inquiries, contact Michael Biddle, Office of Public
Affairs, U.S. Department of Labor, Room S-1032, 200 Constitution
Avenue, NW., Washington, DC 20210. Telephone: 202-693-5051 (this is not
a toll-free number). Electronic mail: biddle.michael@dol.gov.
SUPPLEMENTARY INFORMATION:
I. Introduction
The Department of Labor proposes to issue regulations to implement
the Uniformed Services Employment and Reemployment Rights Act of 1994,
as amended (USERRA), 38 U.S.C. 4301-4333. Congress enacted USERRA to
protect the rights of persons who voluntarily or involuntarily leave
employment positions to undertake military service. Section 4331 of
USERRA authorizes the Secretary of Labor (in consultation with the
Secretary of Defense) to prescribe regulations implementing the law as
it applies to States, local governments, and private employers. 38
U.S.C. 4331(a). The Department has consulted with the Department of
Defense, and proposes these regulations under that authority in order
to provide guidance to employers and employees concerning the rights
and obligations of both under USERRA. The Department invites written
comments on these proposed regulations from interested parties. The
Department also invites public comment on specific issues.
USERRA was enacted in part to clarify prior laws relating to the
reemployment rights of service members, rights that were first
contained in the Selective Training and Service Act of 1940, 54 Stat.
885, 50 U.S.C. 301, et seq. USERRA's immediate predecessor was the
Vietnam Era Veterans' Readjustment Assistance Act of 1974, 38 U.S.C.
2021-2027 (later recodified at 38 U.S.C. 4301-4307 and commonly
referred to as the Veterans' Reemployment Rights Act), which was
amended and recodified as USERRA.
In construing USERRA and these prior laws, courts have followed the
Supreme Court's admonition that:
This legislation is to be liberally construed for the benefit of
those who left private life to serve their country in its hour of
great need * * * And no practice of employers or agreements between
employers and unions can cut down the service adjustment benefits
which Congress has secured the veteran under the Act.
See Fishgold v. Sullivan Drydock and Repair Corp., 328 U.S. 275, 285
(1946), cited in Alabama Power Co. v. Davis, 431 U.S. 581, 584-85
(1977); King v. St. Vincent's Hosp., 502 U.S. 215, 221 n.9 (1991). The
Department intends that this interpretive maxim apply with full force
and effect in construing USERRA and these proposed regulations.
This preamble also selectively refers to many other cases decided
under USERRA and its predecessor statutes, to explain and illustrate
the rights and benefits established under the Act. The failure to cite
or refer to a particular
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court decision in this preamble is not intended to indicate the
Department's approval or disapproval of the reasoning or holding of
that case.
II. Plain Language
The Department wrote this proposed rule in the more personal style
advocated by the Presidential Memorandum on Plain Language. ``Plain
language'' encourages the use of:
Personal pronouns (we and you);
Sentences in the active voice; and,
A greater use of headings, lists, and questions.
In this proposed rule, ``you,'' ``I,'' and ``my,'' refers to
employees because they are the primary beneficiaries of USERRA rights
and benefits. The Department recognizes and appreciates the value of
comments, ideas, and suggestions from members of the uniformed
services, employers, industry associations, labor organizations and
other parties who have an interest in uniformed service members' and
veterans' employment and reemployment benefits. The Department would
appreciate comments and suggestions from all parties on this proposed
rule and on language that would improve the clarity of this regulation.
III. Electronic Access and Filing
You may submit comments and data by sending electronic mail (E-
mail) to: vets-public@dol.gov. Include ``Docket No. VETS-U-04'' on the
subject line of the message. You can attach materials that are in
Microsoft Office formats such as Word, Excel, and Power Point.
Attachments may also be made using Adobe Acrobat, Word Perfect, or
ASCII/text documents. You cannot attach materials using executables
(.exe, .com, .bat) or any encrypted zip files.
IV. Summary of Proposed Regulations
Subpart A--Introduction to the Regulations Under the Uniformed Services
Employment and Reemployment Rights Act of 1994
General Provisions
Proposed sections 1002.1 through 1002.7 describe the regulation's
purpose, scope, and background, as well as the sense of the Congress in
enacting USERRA. Proposed Section 1002.1 sets out the purpose of these
regulations. See 38 U.S.C. 4301. Proposed Sections 1002.2 through
1002.4 provide additional background on USERRA, its effective date, and
its purposes. Proposed section 1002.5 defines the important terms used
in the regulation. See 38 U.S.C. 4303. Proposed sections 1002.6 and
1002.7 describe the general coverage of the rule, its applicability and
its relationship to other laws, contracts, agreements, and workplace
policies and practices. See 38 U.S.C. 4302. The Federal Office of
Personnel Management has issued a separate body of regulations that
govern the USERRA rights of Federal employees. See 5 CFR part 353.
Subpart B--Anti-Discrimination and Anti-Retaliation
Protection From Employer Discrimination and Retaliation
USERRA prohibits an employer from engaging in acts of
discrimination against past and present members of the uniformed
services, as well as applicants to the uniformed services. 38 U.S.C.
4311(a). The anti-discrimination prohibition applies to both employers
and potential employers. No employer may deny a person initial
employment, reemployment, retention in employment, promotion, or any
benefit of employment based on the person's membership, application for
membership, performance of service, application to perform service, or
obligation for service in the uniformed services. USERRA also protects
any person who participates in an action to protect past, present or
future members of the uniformed services in the exercise of their
rights under the Act. The Act prohibits any employer from
discriminating or taking reprisals against any person who acts to
enforce rights under the Act; testifies in or assists a statutory
investigation; or, exercises any right under the statute pertaining to
any person. 38 U.S.C. 4311(b). A person is protected against
discrimination and reprisal regardless whether he or she has served in
the military.
Proposed sections 1002.18, 1002.19 and 1002.20 implement the
protections of section 4311(a) and (b). Proposed section 1002.21 makes
clear that the prohibition on discrimination applies to any employment
position, regardless of its duration, including a position of
employment that is for a brief, non-recurrent period, and for which
there is no reasonable expectation that the employment position will
continue indefinitely or for a significant period. Proposed section
1002.22 explains who has the burden of proving that certain action
violates the statute. The Department requests comment on the
application of the anti-discrimination provisions of the Act to
potential employers.
In order to establish a case of employer discrimination, the
person's membership, application for membership, performance of
service, application for service, or obligation for service in the
uniformed services must be a ``motivating factor'' in the employer's
actions or conduct. 38 U.S.C. 4311(c)(1). Section 4311(c) sets out an
evidentiary scheme like that followed by the National Labor Relations
Board in interpreting the National Labor Relations Act, as explained by
the United States Supreme Court in NLRB v. Transportation Management
Corp., 462 U.S. 393, 401 (1983). See Gummo v. Village of Depew, NY, 75
F.3d 98, 106 (2d Cir. 1996) (citing S.Rep. No. 158, 103d Cong., 2d
Sess. 45 (1993), and H.R. Rep. No. 65, 103d Cong., 2d Sess. 18, 24
(1993). The initial burden of proving discrimination or retaliation
rests with the person alleging discrimination (the claimant). The
burden then shifts to the employer to prove that it would have taken
the action anyway, without regard to the employee's protected status or
activity. If the employer successfully establishes such an affirmative
defense, the claimant can prevail only by showing that the employer
would not have taken the action, but for the claimant's protected
activity.
A person alleging discrimination under USERRA must first establish
that his or her protected status as a past, present or future service
member was a motivating factor in the adverse employment action. See
Robinson v. Morris Moore Chevrolet-Buick, Inc., 974 F. Supp. 571 (E.D.
Tex. 1997). The claimant alleging discrimination must prove the
elements of a violation--i.e., membership in a protected class (such as
past, present or future affiliation with the uniformed services); an
adverse employment action by the employer or prospective employer; and
a causal relationship between the claimant's protected status and the
adverse employment action (the ``motivating factor''). To meet this
burden, a claimant need not show that his or her protected status was
the sole cause of the employment action; the person's status need be
only one of the factors that ``a truthful employer would list if asked
for the reasons for its decision.'' Kelley v. Maine Eye Care
Associates, P.A, 37 F. Supp.2d 47, 54 (D. Me. 1999); see Robinson, 974
F. Supp. at 575 (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 250
(1989) (addressing Title VII gender discrimination claim and related
defense)). ``Military status is a motivating factor if the defendant
relied on, took into account, considered, or conditioned its decision
on that consideration.'' Fink v. City of New York, 129 F.Supp.2d 511,
520 (E.D.N.Y. 2001), citing Robinson, 974 F.Supp. at
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576. The employee is not required to provide direct proof of employer
animus at this stage of the proceeding; intent to discriminate or
retaliate may be established through circumstantial evidence. See
Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003); United States Postal
Service Bd. of Governors v. Aikens, 460 U.S. 711, 714 (1983). If the
employer fails to counter this evidence, the claimant's proof
establishes that the adverse employment action was more likely than not
motivated by unlawful reasons.
After the employee establishes the elements of a violation, the
employer may avoid liability by proving that the claimant's military
status was not a motivating factor in the adverse employment action.
See Gummo, 75 F.3d at 106. The employer must demonstrate that it would
have taken the same adverse action for legitimate reasons regardless of
the claimant's protected status. If the employer satisfies this burden
of proof, then the employee can prevail only by demonstrating that the
employer would not have taken the action but for the prohibited motive.
This burden may be satisfied either directly by proving that a
discriminatory reason more likely motivated the employer, or indirectly
by persuading the adjudicator that the employer's explanation is not
credible. Aikens, 460 U.S. at 716.
Section 4311(c)(2) provides the same evidentiary framework for
adjudicating allegations of reprisal against any person (including
individuals unaffiliated with the military) for engaging in activities
to enforce a protected right; providing testimony or statements in a
USERRA proceeding; assisting or participating in a USERRA
investigation; or exercising a right provided by the statute. 38 U.S.C.
4311(c)(2). Proposed section 1002.19 addresses the elements of a case
of retaliation.
Subpart C--Eligibility for Reemployment
General Eligibility Requirements for Reemployment
USERRA requires that the service member meet five general criteria
in order to establish eligibility for reemployment:
(1) That the service member be absent from a position of civilian
employment by reason of service in the uniformed services;
(2) That the service member's employer be given advance notice of
the service;
(3) That the service member have five years or less of cumulative
service in the uniformed services with respect to a position of
employment with a particular employer;
(4) That the service member return to work or apply for
reemployment in a timely manner after conclusion of service; and,
(5) That the service member not have been separated from service
with a disqualifying discharge or under other than honorable
conditions.
Proposed section 1002.32 sets out these general eligibility
requirements. Proposed sections 1002.34-.74 explain the ``absent from a
position of civilian service'' requirement, sections 1002.85-.88
explain the ``advance notice'' requirement, sections 1002.99-.104
explain the ``five years or less of cumulative service'' requirement,
sections 1002.115-.123 explain the ``return to work or apply for
reemployment'' requirement, and sections 1002.134-.138 explain the ``no
disqualifying discharge'' requirement.
A person who meets these eligibility criteria, which are contained
in 38 U.S.C. 4312(a)-(c) and 4304, is entitled to be reemployed in the
position described in 38 U.S.C. 4313, unless the employer can establish
one of the three affirmative defenses contained in 38 U.S.C. 4312(d).
There has been some disagreement in the courts over the appropriate
burden of proof in cases brought under 38 U.S.C. 4312, the provision in
USERRA establishing the reemployment rights of persons who serve in the
uniformed services. One court has interpreted that provision to be ``a
subsection of Sec. 4311 [the anti-discrimination and anti-retaliation
provision].'' Curby v. Archon, 216 F.3d 549, 556 (6th Cir. 2000). Other
courts have interpreted section 4312 to establish a statutory
protection distinct from section 4311, creating an entitlement to re-
employment for qualifying service members rather than a protection
against discrimination. Wrigglesworth v. Brumbaugh, 121 F. Supp.2d
1126, 1134 (W.D. Mich. 2000) (stating that requirements of section 4311
do not apply to section 4312). Brumbaugh relies in part on legislative
history and the Department's interpretation of USERRA. Id. at 1137.
Another district court supports the Brumbaugh decision and
characterizes the contrary view in Curby as dicta. Jordan v. Air
Products and Chem., 225 F. Supp.2d 1206, 1209 (C.D. Ca. 2002).
The Department agrees with the district court decisions in
Brumbaugh and Jordan that sections 4311 and 4312 of USERRA are separate
and distinct. Proposed section 1002.33 provides that a person seeking
relief under section 4312 need not meet the additional burden of proof
requirements for discrimination cases brought under section 4311. The
Department disagrees with the decision in Curby v. Archon discussed
above, insofar as it interprets USERRA to the contrary. The Department
invites comments regarding the proper interpretation of the statute
regarding the burden of proof for relief under section 4312.
Coverage of Employers and Positions
Proposed sections 1002.34 through 1002.44 list the employers and
employment positions that are covered by USERRA. Proposed section
1002.33 provides that the Act's coverage extends to virtually all
employers in the United States; the statute contains no threshold or
minimum size to limit its reach. The remaining proposed provisions
address various aspects of the employment relationship subject to the
Act. Proposed section 1002.35 defines the term ``successor in
interest.'' Proposed section 1002.37 addresses the situation in which
more than one employer may be responsible for one employee. Proposed
sections 1002.38 and 1002.42 discuss hiring halls, layoffs and recalls.
Proposed section 1002.39 covers States and other political subdivisions
of the United States as employers.
Proposed section 1002.40 makes clear that USERRA makes it unlawful
for any employer to deny employment to a prospective employee on the
basis of his or her membership, application for membership, performance
of service, application to perform service, or obligation for service
in the uniformed services, or on the basis of his or her exercise of
any right guaranteed under the Act. Temporary, part-time, probationary,
and seasonal employment positions are also covered by USERRA. Proposed
section 1002.41 addresses the limited exception for positions that are
for a brief, non-recurrent period and for which the employee has no
reasonable expectation of continued employment indefinitely or for a
significant period. Proposed section 1002.42 explains that USERRA
covers employees on strike, layoff, or leave of absence. Proposed
section 1002.43 makes clear that persons occupying professional,
executive and managerial positions also are entitled to USERRA rights
and benefits. Proposed section 1002.44 addresses the distinction
between an independent contractor and an employee under USERRA.
Coverage of Service in the Uniformed Service
Proposed sections 1002.54 through 1002.62 explain the term
``service in the
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uniformed services,'' list the various types of uniformed services, and
clarify that both voluntary and involuntary duty are covered under
USERRA. Proposed section 1002.54 provides that ``service in the
uniformed services'' includes a period for which a person is absent
from a position of employment for the purpose of an examination to
determine his or her fitness to perform duty in the uniformed services.
Proposed sections 1002.55 and 1002.56 provide that service under
certain authorities for funeral honors duty or as a disaster-response
appointee also constitute service in the uniformed services. Proposed
section 1002.57 clarifies when service in the National Guard is covered
by USERRA, and proposed section 1002.58 addresses service in the
commissioned corps of the Public Health Service, a division of the
Department of Health and Human Services. Proposed section 1002.59
recognizes coverage for persons designated by the President in time of
war or national emergency. Proposed sections 1002.60, 1002.61, and
1002.62 address the coverage of a cadet or midshipman attending a
service academy, and members of the Reserve Officers Training Corps,
Commissioned Corps of the National Oceanic and Atmospheric
Administration, Civil Air Patrol, and Coast Guard Auxiliary.
Absence From a Position of Employment Necessitated by Reason of Service
in the Uniformed Services
Proposed section 1002.73 addresses the issue of the employee's
reason for leaving employment as it bears on his or her reemployment
rights. Section 4312(a) of the Act states that ``any person whose
absence from a position of employment is necessitated by reason of
service in the uniformed services'' is entitled to the reemployment
rights and benefits of USERRA, assuming the Act's eligibility
requirements are met. Military service need not be the only reason the
employee leaves, provided such service is at least one of the reasons.
See H.R. Rep. No. 103-65, Part I, at 25 (1993).
USERRA does not impose a limit on the amount of time that may
elapse between the date the employee leaves his or her position and the
date he or she actually enters the service. Proposed section 1002.74
recognizes that no such limit is warranted. A person entering military
service generally needs a period of time to organize his or her
personal affairs, travel safely to the site where the service is to be
performed, and arrive fit to perform service. The amount of time needed
for these preparations will vary from case to case. Moreover, the
actual commencement of the period of service may be delayed for reasons
beyond the employee's control. If an unusual delay occurs between the
time the person leaves civilian employment and the commencement of the
uniformed service, the circumstances causing the delay may be relevant
to establish that the person's absence from civilian employment was
``necessitated by reason of service in the uniformed services.'' See
Lapine v. Town of Wellesley, 304 F.3d 90 (1st Cir. 2002).
Requirement of Advance Notice
Proposed section 1002.85 explains one of the basic obligations
imposed on the service member by USERRA as a prerequisite to
reemployment rights: the requirement to notify the employer in advance
about impending military service. 38 U.S.C. 4312(a)(1). Section
4312(a)(1) of USERRA contains three general components of adequate
notice: (i) The sender of the notice; (ii) the type of notice; and
(iii) the timing of notice. First, the employee must notify his or her
employer that the employee will be absent from the employment position
due to service in the uniformed services. An ``appropriate officer''
from the employee's service branch, rather than the employee, may also
provide the notice to the employer. Second, the notice may be either
verbal or in writing. See 38 U.S.C. 4303(8) (defining ``notice'' to
include both written and verbal notification). Although written notice
by the employee provides evidence that can help establish the fact that
notice was given, the sufficiency of verbal notice recognizes the
``informality and current practice of many employment
relationships[.]'' S. Rep. No. 103-158, at 47 (1993). The act of
notification is therefore more important than its particular form.
Third, the notice should be given in advance of the employee's
departure. USERRA does not establish any bright-line rule for the
timeliness of advance notice, i.e., a minimum amount of time before
departure by which the employee must inform the employer of his or her
forthcoming service. Instead, timeliness of notice must be determined
by the facts in any particular case, although the employee should make
every effort to give notice of impending military service as far in
advance as is reasonable under the circumstances. See H.R. Rep. No.
103-65, Pt. 1, at 26 (1993).
Proposed section 1002.86 implements the statutory exceptions to the
requirement of advance notice of entry into the uniformed services. The
statute recognizes that in rare cases it may be very difficult or
impossible for an employee to give advance notice to his or her
employer. To accommodate these cases, the advance notice requirement
may be excused by reason of ``military necessity'' or circumstances
that make notice to the employer ``otherwise impossible or
unreasonable.'' 38 U.S.C. 4312(b). Section 4312(b) also provides that
the uniformed services make the determination whether military
necessity excuses an individual from notifying his or her employer
about forthcoming military service. Any such determination is to be
made according to regulations issued by the Secretary of Defense. See
32 CFR part 104. Finally, section 4312(b) states that the ``military
necessity'' determination is not subject to judicial review. The same
finality and exemption from review, however, do not apply if the
employee fails to provide notice to his or her employer because the
particular circumstances allegedly make notification ``impossible or
unreasonable.'' Whether the circumstances of the case support the
employee's failure to provide advance notice of service are questions
to be decided by the appropriate fact-finder. See S. Rep. No. 103-158,
at 47 (1993).
Proposed section 1002.87 makes explicit that the employee is not
required to obtain the employer's permission before departing for
uniformed service in order to protect his or her reemployment rights.
Imposing a prior consent requirement would improperly grant the
employer veto authority over the employee's ability to perform service
in the uniformed services by forcing the employee to choose between
service and potential loss of his or her employment position, if
consent were withheld.
Proposed section 1002.88 implements the long-standing legal
principle that an employee departing for service is not required to
decide at that time whether he or she intends to return to the pre-
service employer upon completion of the tour of duty. Rather, the
employee may defer the decision until after he or she concludes the
period of service, and the employer may not press the employee for any
assurances about his or her plans. See H.R. Rep. No. 103-65, Part I, at
26 (1993) (``One of the basic purposes of the reemployment statute is
to maintain the service member's civilian job as an `unburned'
bridge.'') and S. Rep. No. 103-158, at 47 (1993), both of which cite
Fishgold v. Sullivan Drydock and Repair Corp., 328 U.S. 275, 284
(1946).
Period of Service
USERRA provides that an individual may serve up to five years in
the uniformed services, in a single period of service or in cumulative
periods totaling
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five years, and retain the right to reemployment by his or her pre-
service employer. 38 U.S.C. 4312(c). Proposed sections 1002.99 through
1002.104 implement this statutory provision. Section 1002.99 implements
the basic five-year period established by the statute. Proposed section
1002.100 provides that the five-year period includes only actual
uniformed service time. Periods of time preceding or following actual
service are not included even if those periods may involve absences
from the employment position for reasons that are service-related, for
example, travel time to and from the duty station, time to prepare
personal affairs before entering the service, delays in activation,
etc. Proposed section 1002.101 clarifies that the five-year period
pertains only to the cumulative period of uniformed service by the
employee with respect to one particular employer, and does not include
periods of service during which the individual was employed by a
different employer. Therefore, the employee is entitled to be absent
from a particular position of employment because of service in the
uniformed services for up to five years and still retain reemployment
rights with respect to that employer; this period starts anew with each
new employer. The regulation derives from section 4312(c)'s language
tying the five-year period ``to the employer relationship for which a
person seeks reemployment[.]'' 38 U.S.C. 4312(c). Note, however, that
under these proposed regulations a hiring hall out of which an
individual may work for several different employers is considered to be
a single employer. See proposed section 1002.38.
Proposed section 1002.102 addresses periods of service undertaken
prior to the enactment of USERRA, when the Veterans' Reemployment
Rights Act (VRRA) was in effect. If an individual's service time
counted towards the VRRA's four or five-year periods for reemployment
rights, then that service also counts towards USERRA's five-year
period. The regulation implements section (a)(3) of the rules governing
the transition from the VRRA to USERRA, which appear in a note
following 38 U.S.C. 4301. The Department invites comments as to whether
this interpretation best effectuates the purpose of the Act. See
proposed section 1002.102.
Section 4312(c) enumerates eight specific exceptions to the five-
year limit on uniformed service that allow an individual to serve
longer than five years while working for a single employer and retain
reemployment rights under USERRA. 38 U.S.C. 4312(c)(1)-(4)(A)-(E). The
exceptions involve unusual service requirements, circumstances beyond
the individual's control, or service (voluntary or involuntary) under
orders issued pursuant to specific statutory authority or the authority
of the President, Congress or a Service Secretary. Proposed section
1002.103 implements this provision by describing each exception set out
in the statute.
The regulation also recognizes a ninth exception based on equitable
considerations. A service member is expected to mitigate economic
damages suffered as a consequence of an employer's violation of the
Act. See Graham v. Hall-McMillen Co., Inc., 925 F. Supp. 437, 446 (N.D.
Miss. 1996). If an individual remains in (or returns to) the service in
order to mitigate economic losses caused by an employer's unlawful
refusal to reemploy that person, the additional service is not counted
against the five-year limit. The Secretary seeks comments on whether an
exception to the five-year limit based on the service member's
mitigation of economic loss furthers the purposes of the statute.
Proposed section 1002.104 implements section 4312(h), which
prohibits the denial of reemployment rights based on the ``timing,
frequency, and duration'' of the individual's training or service, as
well as the nature of that service or training. 38 U.S.C. 4312(h). A
service member's reemployment rights must be recognized as long as the
individual has complied with the eligibility requirements specified in
the Act. Id. The legislative history of section 4312(h) makes clear the
Congress' intent to codify the holding of the United States Supreme
Court in King v. St. Vincent's Hospital, 502 U.S. 215 (1991). See H.R.
Rep. No. 103-65, Part I, at 30 (1993); S. Rep. No. 103-158, at 52
(1993). In King, the court held that no service limit based on a
standard of reasonableness could be implied from the predecessor
version of USERRA. Section 4312(h). Proposed section 1002.104 therefore
prohibits applying a ``reasonableness'' standard in determining whether
the timing, frequency, or duration of the employee's service should
prejudice his or her reemployment rights. Consistent with views
expressed in the House report, however, proposed section 1002.104
counsels an employer to contact the appropriate military authority to
discuss its concerns over the timing, frequency, and duration of an
employee's military service.
Application for Reemployment
In order to protect reemployment rights under USERRA, the returning
service member must make a timely return to, or application for
reinstatement in, his or her employment position after completing the
tour of duty. 38 U.S.C. 4312(a)(3). Sections 4312(e) and (f) establish
the required steps of the reinstatement process. 38 U.S.C. 4312(e),
(f). Section 4312(e) establishes varying time periods for requesting
reinstatement based on the length of the individual's military service.
This provision also addresses the time periods for reporting to the
employer or applying for reemployment by a person who is hospitalized
for, or convalescing from, an injury or illness incurred in, or
aggravated during, the performance of service. Section 4312(f)
describes the documentary evidence that the service member must submit
to the employer in order to establish that the service member meets the
statutory requirements for reinstatement. The proposed regulations
implement these documentation requirements at 1002.121 to .123.
Proposed section 1002.115 explains the three statutory time periods
for making a request for reinstatement, depending on the length of the
period of military service, except in the case of an employee's absence
for an examination to determine fitness to perform service. The
proposed regulation also specifies the actions that must be taken by
the employee. Section 4312(e)(1)(A)(i) of USERRA provides that the
employee reporting back to the employer following a period of service
of less than 31 days must report:
(i) Not later than the beginning of the first full regularly
scheduled work period on the first full calendar day following the
completion of the period of service and the expiration of eight
hours after a period allowing for the safe transportation of the
person from the place of that service to the person's residence * *
*
38 U.S.C. 4312(e)(1)(A)(i). The Department interprets this
provision as requiring the employee to report at the beginning of the
first full shift on the first full day following the completion of
service, provided the employee has a period of eight hours to rest
following safe transportation to the person's residence. See H.R. Rep.
No. 103-65 at 29 (1993). The Department also understands the term
``next'' in the clause ``next first full calendar day'' in section
4312(e)(1)(C) to be superfluous. The Department invites comments as to
whether these interpretations best effectuate the purpose of this
provision. See proposed section 1002.115.
[[Page 56271]]
If it is impossible or unreasonable for the employee to report
within the above time period, he or she must report to the employer as
soon as possible after the expiration of the eight-hour period.
If the individual served between 31 and 180 days, he or she must
make an oral or written request for reemployment no more than 14 days
after completing service. If it is impossible or unreasonable for the
employee to apply within 14 days through no fault of the employee, he
or she must submit the application not later than the next full
calendar day after it becomes possible to do so. Finally, if the
individual served more than 180 days, he or she must make an oral or
written request for reemployment no more than 90 days after completing
service.
Proposed section 1002.116 addresses the situation where a service
member is unable to meet the foregoing timeframes due to the
individual's hospitalization for or convalescence from a service-
related illness or injury. Such a person must comply with the
notification procedures determined by the length of service, after the
time period required for the person's recovery. The recovery period may
not exceed two years unless circumstances beyond the individual's
control make notification within the required two-year period
impossible or unreasonable.
Proposed section 1002.117 covers the situation where the employee
fails to report or to submit a timely application for reemployment.
Such failure does not automatically divest the individual of his or her
statutory reemployment rights. See 38 U.S.C. 4312(e)(3). The employer
may subject the employee to the workplace rules, policies and practices
that ordinarily apply to an employee's unexcused absence from work.
Proposed sections 1002.118 through 1002.123 establish procedures
for notifying the employer that the service member intends to return to
work. These sections also address the requirement that the returning
service member provide documentation to the employer in certain
instances. The documentation provides evidence that the service member
meets three of the basic requirements for reemployment: timely
application for reinstatement, permissible duration of service, and
appropriate type of service discharge. USERRA expressly provides that
the Secretary may prescribe, by regulation, the documentation necessary
to demonstrate that a service member applying for employment or
reemployment meets these requirements. Proposed section 1002.120 makes
clear that the service member does not forfeit reemployment rights with
one employer by working for another employer after completing his or
her military service, as long as the service member complies with
USERRA's reinstatement procedures.
Character of Service
USERRA makes entitlement to reemployment benefits dependent on the
characterization of an individual's separation from the uniformed
service, or ``character of service.'' 38 U.S.C. 4304. The general
requirement is that the individual's service separation be under other
than dishonorable conditions. Proposed section 1002.135 lists four
grounds for terminating the individual's reemployment rights based on
character of service: (i) Dishonorable or bad conduct discharge; (ii)
``other than honorable'' discharge as characterized by the regulations
of the appropriate service Secretary; (iii) dismissal of a commissioned
officer by general court-martial or Presidential order during a war (10
U.S.C. 1161(a)); and, (iv) removal of a commissioned officer from the
rolls because of unauthorized absence from duty or imprisonment by a
civil authority (10 U.S.C. 1161(b)). 38 U.S.C. 4304(1)-(4). The
uniformed services determine the individual's character of service,
which is referenced on Defense Department Form 214. For USERRA
purposes, Reservists who do not receive character of service
certificates are considered honorably separated; many short-term tours
of duty do not result in an official separation or the issuance of a
Form 214.
Proposed sections 1002.137 and 1002.138 address the consequences of
a subsequent upgrading of an individual's disqualifying discharge.
Upgrades may be either retroactive or prospective in effect. An upgrade
with retroactive effect may reinstate the individual's reemployment
rights provided he or she otherwise meets the Act's eligibility
criteria, including having made timely application for reinstatement.
However, a retroactive upgrade does not restore entitlement to the back
pay and benefits attributable to the time period between the
individual's discharge and the upgrade.
Employer Statutory Defenses
USERRA provides three statutory defenses with which an employer may
defend against a claim for USERRA benefits. The employer bears the
burden of proving any of these defenses. 38 U.S.C. 4312(d)(2)(A)-(C).
An employer is not required to reemploy a returning service member
if the employer's circumstances have so changed as to make such
reemployment impossible or unreasonable. 38 U.S.C. 4312(d)(1)(A). In
view of USERRA's remedial purposes, this exception must be narrowly
construed. The employer bears the burden of proving that changed
circumstances make it impossible or unreasonable to reemploy the
returning veteran. 38 U.S.C. 4312(d)(2)(A); proposed section 1002.139.
The change must be in the pre-service employer's circumstances, as
distinguished from the circumstances of its employees. For example, the
defense of changed circumstances is available where reemployment would
require the creation of a ``useless job or mandate reinstatement where
there has been a reduction in the workforce that reasonably would have
included the veteran.'' H.R. Rep. No. 103-65, at 25 (1993), citing
Watkins Motor Lines v. De Galliford, 167 F.2d 274, 275 (5th Cir. 1948);
Davis v. Halifax County School System, 508 F. Supp. 966, 969 (E.D. N.C.
1981). However, an employer cannot establish that it is unreasonable or
impossible to reinstate the returning service member solely by showing
that no opening exists at the time of the reemployment application or
that another person was hired to fill the position vacated by the
veteran, even if reemploying the service member would require
terminating the employment of the replacement employee. See Davis at
968; see also Cole v. Swint, 961 F.2d 58, 60 (5th Cir. 1992); Fitz v.
Bd. of Education of Port Huron Area Schools, 662 F. Supp. 1011, 1015
(E.D. Mich. 1985), aff'd, 802 F.2d 457 (6th Cir. 1986); Anthony v.
Basic American Foods, Inc., 600 F. Supp. 352, 357 (N.D. Cal. 1984);
Goggin v. Lincoln St. Louis, 702 F.2d 698, 709 (8th Cir. 1983). Id.
An employer is also not required to reemploy a returning service
member if such reemployment would impose an undue hardship on the
employer. 38 U.S.C. 4312(d)(1)(B). As explained in USERRA's legislative
history, this defense only applies where a person is not qualified for
a position due to disability or other bona fide reason, after
reasonable efforts have been made by the employer to help the person
become qualified. H.R. Rep. No. 103-65, at 25 (1993). USERRA defines
``undue hardship'' as actions taken by the employer requiring
significant difficulty or expense when considered in light of the
factors set out in 38 U.S.C. 4303(15). USERRA defines ``reasonable
efforts'' as ``actions, including training provided by an employer,
that do not place an undue hardship on the employer.'' 38 U.S.C.
4303(10). USERRA defines ``qualified''
[[Page 56272]]
in this context to mean having the ability to perform the essential
tasks of the position. 38 U.S.C. 4303(9). These definitions are set
forth in proposed sections 1002.5(m) (``undue hardship''), 1002.5(h)
(``reasonable efforts''), and 1002.5(g) (``qualified'').
The third statutory defense against reemployment requires the
employer to establish that ``the employment from which the person
leaves to serve in the uniformed services is for a brief, nonrecurrent
period and there is no reasonable expectation that such employment will
continue indefinitely or for a significant period.'' 38 U.S.C.
4312(d)(1)(C), (2)(C). USERRA does not define ``significant period.''
Under both USERRA and its predecessor, the VRRA, a person holding a
seasonal job may have reemployment rights if there was a reasonable
expectation that the job would be available at the next season. See,
e.g., Stevens v. Tennessee Valley Authority, 687 F.2d 158, 161-62 (6th
Cir. 1982), and cases cited therein; S. Rep. No. 103-158, at 46-47.
Subpart D--Rights, Benefits, and Obligations of Persons Absent From
Employment Due to Service in the Uniformed Services
Furlough or Leave of Absence
Proposed section 1002.149 implements section 4316(b) of the Act,
which establishes the employee's general non-seniority based rights and
benefits while he or she is absent from the employment position due to
military service. 38 U.S.C. 4316(b). The employer is required to treat
the employee as if he or she is on furlough or leave of absence. 38
U.S.C. 4316(b)(1)(A). The employee is entitled to non-seniority
employment rights and benefits that are available to any other employee
``having similar seniority, status, and pay who [is] on furlough or
leave of absence. * * *'' 38 U.S.C. 4316(b)(1)(B). These non-seniority
rights and benefits may be provided ``under a contract, agreement,
policy, practice, or plan in effect at the commencement of such service
or established while such person performs such service.'' Id. For
example, if the employer offers continued life insurance coverage,
holiday pay, bonuses, or other non-seniority benefits to its employees
on furlough or leave of absence, the employer must also offer the
service member similar benefits during the time he or she is absent
from work due to military service. If the employer has more than one
kind of non-military leave and varies the level and type of benefits
provided according to the type of leave used, the comparison should be
made with the employer's most generous form of comparable leave. See
Waltermyer v. Aluminum Company of America, 804 F.2d 821 (3d Cir. 1986);
H.R. Rep. No. 103-65, Part I, at 33-34 (1993); Schmauch v. Honda of
America Manufacturing, Inc., 295 F. Supp. 2d 823 at 836-839 (S.D. Ohio
2003) (employer improperly treated jury duty more favorably than
military leave). The returning employee is entitled not only to the
non-seniority rights and benefits of workplace agreements, policies,
and practices in effect at the time he or she began the period of
military service, but also to those that came into effect during the
period of service. The Department invites comments as to whether this
interpretation best effectuates the purpose of section 4316(b).
Reference should be made to 38 U.S.C. 4316(a) and proposed sections
1002.210 through 1002.214 for the provisions addressing seniority-based
rights and benefits.
The Department also interprets section 4316(b) of the Act to mean
that an employee who is absent from a position of employment by reason
of service is not entitled to greater benefits than would be generally
provided to a similarly situated employee on non-military furlough or
leave of absence. See Sen. Rep. No. 103-158 (1993) at 58. The
Department also does not interpret the second use of the term
``seniority'' in section 4316(b)(1)(B) as a limiting factor in
determining what non-seniority rights must be provided to the service
member during the absence from the employment position. The Department
invites comments as to whether this interpretation best effectuates the
purpose of this provision. See proposed section 1002.149.
Proposed section 1002.152 addresses the circumstances under which
an employee waives entitlement to non-seniority based rights and
benefits. Section 4316(b)(2) of the Act provides that an employee who
``knowingly'' states in writing that he or she will not return to the
employment position after a tour of duty will lose certain rights and
benefits that are not determined by seniority. 38 U.S.C. 4316(b)(2).
The Department intends for principles of Federal common law pertaining
to a waiver of interest to apply in determining whether such notice is
effective in any given case. See Melton v. Melton, 324 F.3d 941, 945
(7th Cir. 2003); Smith v. Amedisys, Inc., 298 F.3d 434, 443 (5th Cir.
2002). By contrast, a notice given under 38 U.S.C. 4316(b)(2) does not
waive the employee's reemployment rights or seniority-based rights and
benefits upon reemployment. The Department invites comments as to
whether this interpretation best effectuates the purpose of this
provision.
Proposed section 1002.153 clarifies that an employer may not
require the employee to use his or her accrued leave to cover any part
of the period during which the employee is absent due to military
service. 38 U.S.C. 4316(d). The employee must be permitted upon request
to use any accrued vacation, annual or similar leave with pay during
the period of service. The employer may require the employee to request
permission to use such accrued leave. However, sick leave is not
comparable to vacation, annual or similar types of leave; entitlement
to sick leave is conditioned on the employee (or a family member)
suffering an illness or receiving medical care. An employee is
therefore not entitled to use accrued sick leave solely to continue his
or her civilian pay during a period of service.
Health Plan Coverage
Section 4317 of the Act provides that service members who leave
work to perform military service have the right to elect to continue
their existing employer-based health plan coverage for a period of time
while in the military. Section 4317 also requires that the employee and
eligible dependents must, upon reemployment of the service member, be
reinstated in the employer's health plan without a waiting period or
exclusion that would not have been imposed had coverage not been
suspended or terminated due to service in the uniformed services. The
employee need not elect to continue health plan coverage during a
period of uniformed service in order to be entitled to reinstatement in
the plan upon reemployment. Section 4317 of USERRA is the exclusive
source in USERRA of service members' rights with respect to the health
plan coverage they receive in connection with their employment. Section
4317 therefore controls the entitlement of a person to coverage under a
health plan, and supersedes more general provisions of the Act dealing
with rights and benefits of service members who are absent from
employment. See 38 U.S.C. 4316(b)(5).
Under USERRA, the term ``employer'' is defined broadly to cover
entities, such as insurance companies or third party plan
administrators, to which employer responsibilities such as
administering employee benefit plans or deciding benefit claims have
been delegated. ``Health plan'' is defined to include an insurance
policy or contract, medical or hospital service agreement, membership
or subscription contract, or other arrangement under which health
[[Page 56273]]
services for individuals are provided, or the expenses of such services
are paid. Proposed Section 1002.5(d); 38 U.S.C. 4303(7). However,
because USERRA's continuation coverage provisions only apply to health
coverage that is provided in connection with a position of employment,
coverage obtained by an individual through a professional association,
club or other organization would not be governed by USERRA, nor would
health coverage obtained under another family member's policy or
separately obtained by an individual.
USERRA's health plan provisions are similar but not identical to
the continuation of health coverage provisions added to Federal law by
the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). As
with COBRA, the Act permits the continuation of employment-based
coverage. Unlike COBRA, USERRA's continuation coverage is available
without regard to either the size of the employer's workforce or to
whether the employer is a government entity.
Proposed section 1002.164 addresses the length of time the service
member is entitled to continuing health plan coverage. Section
4317(a)(1) provides that the maximum period of continued coverage is
either 18 months or the period of military service (beginning on the
date the absence begins and ending on the day after the service member
fails to apply for reemployment), whichever occurs first.
Under section 4317(a)(2), implemented by proposed section 1002.166,
a service member who elects to continue employer-provided health plan
coverage may be required to pay no more than 102 percent of the full
premium (the employee's share plus the employer's share) for such
coverage, except that service members who perform service for fewer
than 31 days may not be required to pay more than the employee share,
if any, for such coverage. The amount of the full premium is determined
in the same manner as for COBRA under section 4980B(f)(4) of the
Internal Revenue Code of 1986. 26 U.S.C. 4980B(f)(4). The legislative
history of USERRA indicates that the purpose of these provisions, and
in particular the requirement that service members pay only the
employee share for coverage during service lasting fewer than 31 days,
is to ensure that there is no gap in health insurance coverage for the
service member's family during a short period of service. Dependents of
Reserve Component members are entitled to participate in the military
health care system, called TRICARE, only if the period of service
exceeds 30 days. See H.R. Rep. No. 103-65, Pt. 1, at 34 (1993).
USERRA does not require that any particular type of health plan
coverage be provided. The statute requires only that the employer, and
hence the plan, permit the service member to continue the coverage that
he or she already has obtained through the employment relationship,
including family and dependent coverage. USERRA does not provide
specific guidance regarding how or within what time period the
continuing coverage is to be elected. Proposed section 1002.165
provides that plan administrators and fiduciaries may develop
reasonable requirements and operating procedures for the election of
continuing coverage, consistent with the Act and the terms of the plan.
Such procedures must take into consideration the requirement in USERRA
section 4312(b) that where military necessity prevents the service
member from giving the employer notice that he or she is leaving for
military duty, or where giving such notice would be impossible or
unreasonable, plan requirements may not be imposed to deny the service
member continuation coverage.
The Department invites comments as to whether this approach--
allowing health plan administrators latitude to develop reasonable
requirements for employees to elect continuation coverage--best
effectuates the purpose of the statute. Alternatively, the Department
requests comments on the question whether these USERRA regulations
should establish a date certain by which time continuing health plan
coverage must be elected. Moreover, should a service member be
permitted to delay electing continuation health plan coverage under
some circumstances? Finally, in a case where health plan coverage was
terminated or suspended by reason of military service, if the employee
is permitted to delay reinstatement to the health plan for a period of
time after the date of reemployment, the Department invites comments as
to whether such delayed reinstatement coverage should be subject to an
exclusion or waiting period. See 38 U.S.C. 4317(b)(1).
As with every other right and benefit guaranteed by USERRA, the
employer is free to provide continuation health plan coverage that
exceeds that which is required by the Act. For example, some employers
do not require the service member to pay more than the ordinary
employee premium for continuation health coverage during an extended
period of service in the uniformed services.
Proposed sections 1002.167-1002.168 explain the rights of a
reemployed service member whose health plan coverage has been
terminated as a result of his or her failure to elect continuation
coverage, or length of service. At the time of reemployment, no
exclusion or waiting period may be imposed where one would not have
been imposed if the coverage of the service member had not terminated
as a result of service in the uniformed services. This provision also
applies to the coverage of any other person who is covered under the
service member's policy, such as a dependent. Injuries or illnesses
determined by the Secretary of Veterans' Affairs to have been incurred
or aggravated during service are excluded from the ban on exclusions
and waiting periods; however, the service member and any dependents
must be reinstated as to all other medical conditions covered by the
plan.
USERRA provides for the continuation of health coverage available
to the service member in connection with his or her employment, so,
generally, if the employer cancels health coverage for its employees
while the service member is performing service, or if the employer goes
out of business, the service member's coverage terminates also. Under
USERRA, the treatment of multiemployer health plans provides an
exception to this result. Special rules for multiemployer plans are the
focus of proposed section 1002.169. This provision requires continued
health plan coverage in a multiemployer plan even when the service
member's employer no longer exists, or no longer participates in the
plan. Any liability under the multiemployer plan for employer
contributions and benefits under USERRA is to be allocated as the
sponsor maintaining the plan provides. If the sponsor does not provide
for an allocation of responsibility under these circumstances, the
liability is allocated to the last employer employing the person before
the period of uniformed service. Where that employer is no longer
functional, the liability is allocated to the plan.
Subpart E--Reemployment Rights and Benefits
Prompt Reemployment
One of the stated purposes of USERRA is ``to minimize the
disruption to the lives of persons performing service in the uniformed
services * * * by providing for [their] prompt reemployment.'' 38
U.S.C. 4301(2). Section 4313 requires that a returning service member
who meets the
[[Page 56274]]
eligibility requirements of section 4312 be ``promptly reemployed'' in
the appropriate position. 38 U.S.C. 4313(a). The circumstances of each
individual case will determine the meaning of ``prompt.'' See H.R. Rep.
No. 103-65, Part I, at 32 (1993); S. Rep. No. 103-158, at 54 (1993).
Proposed section 1002.181 provides guidance for the ``prompt''
reinstatement of returning service members. The regulation states, as a
general rule, that the employer shall reinstate the employee as soon as
practicable under the circumstances. Reinstatement must occur within
two weeks after he or she applies for reemployment ``absent unusual
circumstances.'' The reasonableness of any delay depends on a variety
of factors, including, for example, the length of the service member's
absence or intervening changes in the circumstances of the employer's
business. An employer does not have the right to delay or deny
reemployment because the employer filled the service member's pre-
service position and no comparable position is vacant, or because a
hiring freeze is in effect. The Department invites comments as to
whether allowing the employer two weeks to reemploy the service member
returning from a period of service of more than thirty days best
effectuates the purpose of this provision of USERRA. [Note: If the
period of service is less than 31 days then the statute requires that
the returning employee simply report back to work; these regulations
anticipate that such a person will be immediately reemployed.]
Reemployment Position
In construing an early precursor statute to USERRA, the Selective
Training and Service Act of 1940, 50 U.S.C. Appendix, 308(b, c), the
Supreme Court recognized a basic principle embedded in early
protections provided for veterans, which was to become a bedrock
concept of all future similar legislation. Thus, in Fishgold v.
Sullivan Drydock and Repair Corp., 328 U.S. 275, 284-85 (1946), the
Supreme Court stated that the returning service member ``does not step
back on the seniority escalator at the point he stepped off. He steps
back on at the precise point he would have occupied had he kept his
position continuously during the war.'' Id. Fishgold principally
involved the issue of a veteran's seniority; however, the principle
applies with equal force to all aspects of the service member's return
to the work force. The returning service member therefore should be
restored to ``a position which, on the moving escalator of terms and
conditions affecting that particular [pre-service] employment, would be
comparable to the position which he would have held if he had remained
continuously in his civilian employment.'' Oakley v. Louisville &
Nashville R.R., 338 U.S. 278, 283 (1949). The position to which the
returning service member should be restored has become known as the
``escalator position.'' The requirement that the service member be
reemployed in the escalator position is implemented in section 4313 of
USERRA. 38 U.S.C. 4313.
Proposed sections 1002.191 and 1002.192 implement general
principles related to a returning veteran's right to reemployment in
this escalator position. Proposed sections 1002.193 and 1002.195
clarify that seniority, status, pay, length of service, and service-
related disability may affect the service member's reemployment
position. Proposed sections 1002.196 and 1002.197 explain the
employer's obligations to reemploy the service member based on the
duration of the person's absence from the work place. Proposed section
1002.198 describes the criteria to be followed by the employer in
making reasonable efforts to enable the service member to qualify for
the reemployment position. Finally, proposed section 1002.199 provides
guidance for employers in determining the priority of two or more
service members who are eligible for the same employment position.
In some workplaces, where opportunities for promotion are
conditioned upon the employee passing a skills test or examination,
determining the escalator position will require administering a makeup
promotional exam. If a reemployed service member was eligible to take
such a promotional exam and missed it while performing military
service, the employer should provide the employee with an opportunity
to take the missed exam after a reasonable period of time to acclimate
to the employment position. See, e.g., Fink v. City of New York, 129
F.Supp.2d 511 (2001). In some cases, success on a promotional exam
entitles an employee to an immediate promotion, and in some cases it
entitles an employee only to a particular placement on an eligibility
list. If the reemployed employee is successful on the makeup exam, and
there is a reasonable certainty that, given the results of that exam,
the reemployed employee would have been promoted during the time he or
she was in military service, then the reemployed employee's promotion
must be made effective as of the date it would have occurred had the
employment not been interrupted by military service. Similarly, if the
reemployed employee is successful on the makeup exam, and there is a
reasonable certainty that, given the results of that exam, the
reemployed employee would have been placed in a particular position on
an eligibility list during the time he or she was in military service,
then the reemployed employee's placement on the list must be made
effective as of the date it would have occurred had the employment not
been interrupted by military service. This requirement is similar to
the requirement in Section 1002.236, that obliges an employer to give a
reemployed employee, after a reasonable amount of time to adjust to the
reemployment position, a missed skills test or examination that is the
basis of a merit pay increase. Proposed section 1002.193 implements
these requirements. The Department invites comments as to whether this
interpretation best effectuates the purpose of this provision, or
whether the issue of promotional exams requires more detailed treatment
in these regulations.
The Department understands the statutory term ``qualify'' in 38
U.S.C. 4313 to include the employer's affirmative obligation to make
reasonable efforts to assist the returning employee in acquiring the
ability to perform the essential tasks of the reemployment position.
This understanding is reflected in the language used in the
regulations. The Department requests comments on whether this
interpretation is proper.
The statute makes the duration of a returning employee's period of
service a critical factor in determining the reemployment position to
which the employee is entitled upon return from service. After service
of 90 days or less, the person is entitled to reinstatement in the
position of employment in which he or she would have been employed if
not for the interruption in employment due to uniformed service (the
escalator position). 38 U.S.C. 4313(a)(1)(A). The employer must make
reasonable efforts to assist the individual in becoming qualified for
the reemployment position. In the event the returning employee cannot
become qualified for the escalator position despite reasonable efforts
by the employer, the returning employee is entitled to the employment
position in which he or she was employed on the date that the period of
service commenced. 38 U.S.C. 4313(a)(1)(B). These requirements are
implemented in proposed section 1002.196.
The service member returning from a period of service longer than
90 days is
[[Page 56275]]
similarly entitled to reemployment in the escalator position, but, at
the employer's option, may also be reinstated in any position for which
the employee is qualified with the same seniority, status, and pay as
the escalator position. 38 U.S.C. 4313(a)(2)(A). This statutory option
is intended to provide the employer with a degree of flexibility in
meeting its reemployment obligations. As with an employee returning
from a shorter period of service, the employer must first make
reasonable efforts to qualify the individual for the escalator position
or for the position of like seniority, status, and pay. In the event
the returning employee cannot become qualified for one of these
positions despite reasonable employer efforts, the person is entitled
to the employment position in which he or she was employed on the date
that the period of service commenced, or a position of like seniority,
status, and pay. 38 U.S.C. 4313(a)(2)(B). These requirements are
implemented in proposed section 1002.197.
In some instances, the service member may not be able to qualify
for either the escalator position or the pre-service position (or a
position similar in seniority, status, and pay to either of these
positions) despite reasonable employer efforts. In such an event, the
employee is entitled to be reemployed in any other position that is the
nearest approximation to the escalator position. If there is no such
position for which the returning service member is qualified, he or she
is entitled to reemployment in any other position that is the nearest
approximation to the preservice position. In either event, the
returning service member must be reemployed with full seniority. 38
U.S.C. 4313(a)(4). This requirement is implemented by proposed sections
1002.196(c) and .197(c).
Depending on the circumstances, section 4313 either permits or
requires the employer to reemploy a returning service member in a
position with equivalent (or the nearest approximation to
``equivalent'') seniority, status and pay to the escalator or pre-
service position. 38 U.S.C. 4313(a)(2)(A), (B), (3)(A), (B). Although
``seniority'' and ``pay'' are generally well-understood terms, USERRA
does not define ``status'' as it is used in section 4313 of the Act.
Case law interpreting VRRA, a precursor to USERRA, recognized status as
encompassing a broader array of rights than either seniority or pay.
Job status varies from position to position, but generally refers to
the incidents or attributes attached to, and inherent in, a particular
job. The term often includes the rank or responsibility of the
position, its duties, location, working conditions, and the pay and
seniority rights attached to the position. See H.R. Rep. No. 103-65,
Part I, at p. 31 (1993). Examples of status may be the exclusive right
to a sales territory; the opportunity to advance in a position;
eligibility for possible election to a position with the employee
representative organization; greater availability of work where piece
rates apply; the opportunity to work additional hours and to advance in
a job; the opportunity to withdraw from a union; the opportunity to
obtain a license; or, the opportunity to work a particular shift. The
facts and circumstances surrounding the position determine whether a
specific attribute is part of the position's status for USERRA
purposes. Proposed sections 1002.193 and .194 implement these
provisions of the Act.
Notwithstanding the escalator principle, USERRA does not require an
employer to reinstate a returning service member in an employment
position if he or she is not qualified to perform the civilian job. See
proposed section 1002.198. USERRA defines ``qualified'' as ``having the
ability to perform the essential tasks of the position.'' 38 U.S.C.
4303(9). An individual's performance qualifications are a function of
his or her ability to perform the ``essential tasks'' of the employment
position. This regulation provides guidelines for determining whether a
given task is essential for proper performance of the position. In
general, whether a task is essential for a position will depend on its
relationship to the actual performance requirements of the position
rather than, for example, the criteria enumerated in a job description.
An employer may not decline to rehire a returning service member simply
because he or she is unable to do some auxiliary, but nonessential,
parts of the job. The Department invites comments as to whether this
interpretation best effectuates the purpose of this provision.
Proposed section 1002.198 describes the employer's obligation to
assist a returning service member for civilian reemployment in becoming
qualified for a civilian position. USERRA requires the employer to make
reasonable efforts to enable the returning service member to qualify
for a position that he or she would be entitled to if qualified.
Section 4303(10) defines ``reasonable efforts'' as ``actions, including
training provided by an employer, that do not place an undue hardship
on the employer.'' 38 U.S.C. 4303(10). Section 4303(15) defines ``undue
hardship'' as ``actions [taken by an employer] requiring significant
difficulty or expense, when considered in light of * * * the overall
financial resources of the employer'' and several other stated factors.
38 U.S.C. 4303(15). Depending upon an employer's size and resources, a
given level of effort might be an undue hardship for one employer and
yet reasonable for another. The employer has the burden of proving that
the training, retraining, or other efforts to enable the returning
employee to qualify would impose an undue hardship. The proposed
regulation describes the criteria that apply in determining whether the
steps for aiding the service member in becoming qualified impose an
undue hardship on the employer.
Proposed section 1002.199 implements section 4313(b), which governs
the priority of reemploying two (or more) service members who are
entitled to reemployment in the same position. 38 U.S.C. 4313(b). The
individual who first vacated the employment position for military
service has the highest priority for reemployment. 38 U.S.C.
4313(b)(1). If this priority means another returning service member is
denied reemployment in that position, the USERRA rules that give
reemployment options to the employer would govern the reemployment of
the second person. Thus, the second service member is entitled to ``any
other position'' offering status and pay similar to the denied position
according to the statutory rules generally applicable to returning
service members. 38 U.S.C. 4313(b)(2)(A). A disabled service member in
this situation would be entitled to any other position offering status
and pay similar to the denied position according to the rules governing
disabled service members. 38 U.S.C. 4313(b)(2)(B).
Seniority Rights and Benefits
Section 4316(a) provides that a reemployed service member is
entitled to ``the seniority and other rights and benefits determined by
seniority'' that the service member had attained as of the date he or
she entered the service, together with the additional seniority he or
she would have attained if continuously employed during the period of
service. 38 U.S.C. 4316(a). As with the principles governing the
determination of the reemployment position, this provision reflects the
escalator principle. As applied to seniority rights under section
4316(a), the escalator principle entitles the returning service member
to the ``same seniority and other rights and benefits determined by
seniority that [the service member] would have attained if [his or
[[Page 56276]]
her] employment had not been interrupted by service in the uniformed
services.'' S. Rep. No. 103-158, at 57 (1993); see also H.R. Rep. No.
103-65, Part I, at 33 (1993). Proposed section 1002.210 states the
basic escalator principle as it applies to seniority and seniority-
based rights and benefits. It bears emphasis here that the escalator
principle is outcome-neutral in terms of the effect of restoring the
service member's seniority. For example, the application of the
principle does not offer protection against adverse job consequences
that result from placing the service member in his or her proper
position on the seniority escalator. Finally, this section explains
that the rights and benefits protected by USERRA upon reemployment
include those provided by employers and those required by statute, such
as the right to leave under the Family and Medical Leave Act of 1993,
29 U.S.C. 2601-2654 (FMLA). Accordingly, a reemployed service member
would be eligible for FMLA leave if the number of months and the number
of hours of work for which the service member was employed by the
civilian employer, together with the number of months and number of
hours of work for which the service member would have been employed by
the civilian employer during the period of military service, meet
FMLA's eligibility requirements. See Memorandum of July 22, 2002,
Protection of Uniformed Service Member's Rights to Family and Medical
Leave at http://www.dol.gov/vets/media/fmlarights.pdf.
Proposed section 1002.211 makes clear that section 4316(a) is not a
statutory mandate to impose seniority systems on employers. Rather,
USERRA requires only that those employers who provide benefits based on
seniority restore the returning service member to his or her proper
place on the seniority ladder.
Proposed section 1002.212 adopts the basic definition of seniority-
based rights and benefits developed in Supreme Court decisions. This
definition imposes two requirements: first, the benefit must be
provided as a reward for length of service rather than a form of short-
term compensation for services rendered; second, the service member's
receipt of the benefit, but for his or her absence due to service, must
have been reasonably certain. See Coffy v. Republic Steel Corp., 447
U.S. 191 (1980); Alabama Power Co. v. Davis, 431 U.S. 581 (1977); see
also S. Rep. No. 103-158, at 57 (1993), citing with approval Goggin v.
Lincoln, St. Louis, 702 F.2d 698, 701 (8th Cir. 1983) (summarizing
Supreme Court formulation of two-part definition of ``perquisites of
seniority''). Proposed section 1002.212(c) adds a third consideration
which derives from another Supreme Court decision, McKinney v.
Missouri-Kansas-Texas R.R. Co., 357 U.S. 265 (1958). In that case, the
Court allowed consideration of the employer's ``actual practice'' in
making advancement an automatic benefit based on seniority under the
collective bargaining agreement. Accordingly, proposed section
1002.212(c) adds the requirement that ``actual custom or practice'' in
conferring or withholding a benefit also determines whether the benefit
is a perquisite of seniority.
Proposed section 1002.213 further defines one aspect of seniority-
based rights and benefits: the requirement that receipt of the benefit
be ``reasonably certain.'' The proposed regulation describes a
``reasonably certain'' likelihood as a ``high probability'' that the
returning service member would have obtained the seniority-based
benefit if continuously employed. A ``high probability'' is less than
an ``absolute certainty,'' which the Supreme Court has rejected in
analyzing the degree of probability a reemployed service member must
satisfy in order to establish that his or her advancement would have
been ``reasonably certain'' but for the period of service. See Tilton
v. Missouri Pacific Railroad Co., 376 U.S. 169, 180 (1964). The
employer may not deny a reemployed service member seniority-based
rights or benefits based on a scenario of unlikely events that
allegedly would have occurred during the period of service.
Proposed section 1002.214 emphasizes that the returning employee is
also entitled to claim perquisites of seniority that first became
available to co-workers or that were modified while he or she was in
the service. That the employer did not offer the particular benefit
until after the individual began the service is not a justification for
denying the benefit to the returning service member. Similarly, if a
benefit is modified or eliminated, the change would affect the
returning service member. This requirement flows from the fact that the
returning service member must be restored to the seniority rights and
benefits that he or she would have attained with reasonable certainty
if he or she had remained continuously employed during the period of
service.
Disabled Employees
USERRA imposes additional requirements in circumstances involving
the reemployment of a disabled service member. A disabled service
member is entitled, to the same extent as any other individual, to the
escalator position he or she would have attained but for military
service. If the disability is not an impediment to the service member's
qualifications for the escalator position, then the disabling condition
is irrelevant for USERRA purposes. If the disability limits the service
member's ability to perform the job, however, the statute imposes a
duty on the employer to make reasonable efforts to accommodate the
disability. 38 U.S.C. 4313(a)(3). In some instances, an employer is
unable to accommodate a service member's disability despite reasonable
efforts. If, despite the employer's reasonable efforts to accommodate
the disability, the returning disabled service member cannot become
qualified for his or her escalator position, that person is entitled to
be reemployed ``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.'' 38 U.S.C. 4313(a)(3)(A). If no such position exists, the
service member is entitled to reemployment ``in a position which is the
nearest approximation * * * in terms of seniority, status, and pay
consistent with circumstances of such person's case.'' 38 U.S.C.
4313(a)(3)(B). See, e.g., Hembree v. Georgia Power Co., 637 F.2d 423
(5th Cir. 1981); Blake v. City of Columbus, 605 F. Supp. 567 (S.D. Ohio
1984).
Proposed section 1002.225 sets forth the priority of reemployment
positions for which the disabled service member should be considered.
The regulation also implements the statutory requirement for reasonable
accommodation of the returning service member's disability. Such
accommodations may include placing the reemployed person in an
alternate position, on ``light duty'' status; modifying technology or
equipment used in the job position; revising work practices; or,
shifting job functions. The appropriate level of accommodation depends
on the nature of the service member's disability, the requirements for
properly performing the job, and any other circumstances surrounding
the particular situation. See 38 U.S.C. 4303(9), (10), and (15);
4313(a)(3); H.R. Rep. No. 103-65, at 31 (1993); S. Rep. No. 103-158, at
53 (1993).
The employer must make reasonable accommodations for any disability
incurred in, or aggravated during, a period of service. The
accommodation requirement is not limited to disabilities
[[Page 56277]]
incurred during training or combat, so long as they are incurred during
the period of service. Any disability that is incurred or aggravated
outside of a period of service (including a disability incurred between
the end of the period of service and the date of reemployment) is not
covered as a service-related disability for USERRA purposes. The
disability must have been incurred or aggravated when the service
member applies for reemployment, even if it has not yet been detected.
If the disability is discovered after the service member resumes work
and it interferes with his or her job performance, then the
reinstatement process should be restarted under USERRA's disability
provisions.
A returning service member may have rights under USERRA based on a
service-related disability that is not permanent. A service member who
incurs a temporary disability may be entitled to interim reemployment
in an alternate position provided he or she is qualified for the
position and the disability will not affect his or her ability to
perform the job. If no such alternate position exists, the disabled
service member would be entitled to reinstatement under a ``sick
leave'' or ``light duty'' status until he or she completely recovers.
In identifying an alternate position for a disabled service member,
the focus should be on the returning service member's ability to
perform the essential duties of the job. The position must be one that
the person can safely perform without unreasonable risk to the person
or fellow employees. The disabled service member is required to provide
information on his or her education and experience, the extent of the
disability, and his or her present capabilities. The employer then has
the duty to disclose all positions that the service member may be
qualified to perform. Because the employer has greater knowledge of the
various positions and their requirements in the organization, the
employer, and not the service member, is exclusively responsible for
accommodating the disability by identifying suitable positions within
the service member's abilities and capabilities. Proposed sections
1002.225 and .226 implement USERRA's requirements regarding disabled
employees.
Rate of Pay
The escalator principle also determines the returning service
member's rate of pay after an absence from the workplace due to
military service. As with respect to benefits and the reemployment
position, the application of this fundamental principle with respect to
pay is intended to restore the returning service member to the
employment position that he or she would have occupied but for the
interruption in employment occasioned by military service. See
generally Fishgold v. Sullivan Drydock and Repair Corp. Proposed
section 1002.236 implements the escalator principle for purposes of
determining the reemployed service member's rate of pay. The regulation
also addresses the various elements of compensation that often compose
the returning service member's ``rate of pay.'' Depending on the
particular position, the rate of pay may include more than the basic
salary. The regulation lists various types of compensation that may
factor into determining the employee's overall compensation package
under the escalator principle. The list is not exclusive; any
compensation, in whatever form, that the employee would have received
with reasonable certainty if he or she had remained continuously
employed should be considered an element of compensation. The returning
employee's rate of pay may therefore include pay increases,
differentials, step increases, merit increases, periodic increases, or
performance bonuses.
In some workplaces, merit pay increases are conditioned upon the
employee passing a skills or performance evaluation. The employer
should allow a reasonable period of time for the employee to become
acclimated in the escalator position before such an evaluation is
administered. In order that the employee not be penalized financially
for his or her military service, the employee must be reemployed at the
higher rate of pay, assuming that it is reasonably certain that the
employee would otherwise have attained the merit pay increase during
the period of military service. This requirement is similar to the
requirement in Section 1002.193, which obliges an employer to give a
reemployed employee, after a reasonable amount of time to adjust to the
reemployment position, a missed skills test or examination that is the
basis of an opportunity for promotion. The Department invites comments
as to whether this interpretation best effectuates the purpose of this
provision, or whether the issue of merit pay requires more detailed
treatment in these regulations.
What is critical is not how the employer characterizes the
compensation, but whether it would have been attained with reasonable
certainty if not for the service in the uniformed services. In
determining rate of pay, as in other situations, application of the
escalator principle may leave the returning service member with less
than he or she had before performing service. Thus, if
nondiscriminatory adverse changes in the employment position's pay
structure would with reasonable certainty have lowered the compensation
rate during the period of service if he or she had remained
continuously employed, the escalator principle may operate to diminish
the returning service member's pay.
Protection Against Discharge
Section 4316(c) of USERRA provides service members special
protection from discharge from civilian employment after returning from
uniformed service. If the individual served over 180 days before
reemployment, then he or she may not be discharged from the employment
position within one year after reemployment except for cause. 38 U.S.C.
4316(c)(1). If the individual served between 31 and 180 days in the
military, he or she may not be discharged from the employment position
within 180 days after reemployment except for cause. 38 U.S.C.
4316(c)(2). A reinstated service member whose duration of service
lasted 30 days or less has no similar protection from discharge;
however, the individual is protected by USERRA's anti-discrimination
provisions, 38 U.S.C. 4311, as explained in proposed sections
1002.18-.23. Proposed section 1002.247 elaborates the general rules for
protection against discharge based on the duration of service prior to
reemployment.
Prohibiting a reemployed service member's discharge, except for
cause, ensures that the service member has a reasonable amount of time
to get accustomed to the employment position after a significant
absence. A period of readjustment may be especially warranted if the
service member has assumed a new employment position after the military
service. The discharge protection also guards against an employer's bad
faith or pro forma reinstatement followed by an unjustified termination
of the reemployed service member. Moreover, the time period for special
protection does not start until the service member has been fully
reemployed and any benefits to which the employee is entitled have been
restored. Even assuming the service member receives the benefit of the
full protection period prior to dismissal, an employer nevertheless
violates the Act if the reason for discharging the service member is
impermissible under USERRA.
[[Page 56278]]
Section 4316(c) does not provide complete protection from discharge
to a reemployed service member for the duration of the protected
period. An employer may dismiss a reemployed service member even during
the protected period for just cause. Depending on the circumstances of
the specific case, just cause may include unacceptable or
unprofessional public behavior, incompetent or inefficient performance
of duties, or criminal acts. An employer may also discharge the service
member for cause if the application of the escalator principle results
in a legitimate layoff or in the elimination of the job position
itself, provided the person would have faced the same consequences had
he or she remained continuously employed. Proposed section 1002.248
provides general guidelines for establishing just cause to discharge a
reemployed service member during the protection period, and places the
burden of proof on the employer to demonstrate that it is reasonable to
discharge the person. See H.R. Rep. No. 103-65, Pt. 1, at 35 (1993); S.
Rep. No. 103-158, at 63 (1993).
Pension Plan Benefits
USERRA establishes specific rights for reemployed service members
in their employee pension benefit plans; the Act's specific provisions
for pension benefit plans supersede general provisions elsewhere in the
statute. 38 U.S.C. 4316(b)(6). The Act defines an employee pension
benefit plan in the same way that the term is defined under the
Employee Retirement Income Security Act of 1974 (ERISA). See 29 U.S.C.
Chapter 18; 38 U.S.C. 4318(a). The term ``employee pension benefit
plan'' includes any plan, fund or program established or maintained by
an employer or by an employee organization, or by both, that provides
retirement income or results in the deferral of income for a period of
time extending to or beyond the termination of the employment covered
by the plan. Profit sharing and stock bonus plans that meet this test
are included. USERRA provides that once the service member is
reemployed according to the statute, he or she is treated as not having
a break in service with the employer or employers maintaining the plan
even though the service member was away from work performing military
service.
Proposed sections 1002.259 to .267 describe the types of employee
pension benefit plans that come within the Act and the pension benefits
that must be provided to reemployed service members. Although USERRA
relies on the ERISA definition of an employee pension benefit plan,
some plans excluded from ERISA coverage may be subject to USERRA. For
example, USERRA (but not ERISA) extends coverage to plans sponsored by
religious organizations and plans established under State or Federal
law for governmental employees. Benefits paid pursuant to federally
legislated programs such as Social Security or the Railroad Retirement
Act, however, are not covered by USERRA. USERRA coverage also does not
include benefits under the Thrift Savings Plan (TSP); the rights of
reemployed service members to benefits under the TSP are governed by
another Federal statute. See 5 U.S.C. 8432b. 38 U.S.C. 4318(a)(1)(B).
As proposed sections 1002.259 to .267 illustrate, each period of
uniformed service is treated as an uninterrupted period of employment
with the employer(s) maintaining the pension plan in determining
eligibility for participation in the plan, the non-forfeitability of
accrued benefits, and the accrual of service credits, contributions and
elective deferrals (as defined in section 402(g)(3) of the Internal
Revenue Code of 1986 (IRC)) under the plan. 38 U.S.C. 4318(a)(2)(B). As
a result, for purposes of calculating these pension benefits, or for
making contributions or deferrals to the plan, the reemployed service
member is treated as though he or she had remained continuously
employed for pension purposes.
Proposed sections 1002.261 and 1002.262 clarify who must make the
contribution and/or deferral attributable to a particular period of
military service and the timeframes within which payments are to be
made to the plan. The employer who reemploys the service member is
responsible for funding any employer contribution to the plan to
provide the benefits described in the Act and the regulation. 38 U.S.C.
4318(b)(1). Some plans do not require or permit employer contributions.
In that case, the plan is funded by employee contributions or elective
deferrals. Other plans provide that the employer will match a certain
portion of the employee contribution or deferral. If employer
contributions are contingent on employee contributions or elective
deferrals, such as where the employer matches all or a portion of the
employee deferral or contribution, the reemployed service member is
entitled to the employer contribution only to the extent that he or she
makes the employee contributions or elective deferrals to the plan. 38
U.S.C. 4318(b)(2). A reemployed service member has the right to make
his or her contributions or elective deferrals, but is not required to
do so. Elective deferrals can be made up only to the extent that the
employee has compensation from the employer that can be deferred.
Proposed section 1002.262 provides that, if an individual cannot make
up missed contributions as an elective deferral because he or she does
not have enough compensation from the employer to defer (for example,
if the individual is no longer employed by the employer), the plan must
provide an equivalent opportunity for the individual to receive the
maximum employer matching contributions that were available under the
plan during the period of uniform service through a match of after-tax
contributions.
USERRA is silent with respect to the amount of time allowed the
employer to pay to the plan the contributions attributable to a
reemployed service member's period of military service. It is the view
of the Department that employer contributions to a pension plan that
are not contingent on employee contributions or elective deferrals must
be made no later than thirty days after the date of the person's
reemployment. Interested parties are requested to comment on this
proposed requirement, implemented in proposed section 1002.262.
Specifically, the Department requests public comment on whether the
proposed thirty-day period is too long or too short.
Where pension benefits are derived from employee contributions or
elective deferrals, or from a combination of employee contributions or
elective deferrals and matching employer contributions, the reemployed
service member may make his or her contributions or deferrals during a
time period starting with the date of reemployment and continuing for
up to three times the length of the employee's immediate past period of
military service, with the repayment period not to exceed five years.
38 U.S.C. 4318(b)(2); proposed section 1002.262. No payment by the
service member may exceed the amount that would have been required or
permitted during the period of time had the service member remained
continuously employed. 38 U.S.C. 4318(b)(2). Any permitted or required
amount of employee contributions or elective deferrals would be
adjusted for any employee contributions or elective deferrals made to
the plan during the employee's period of service. Any employer
contributions that are contingent on employee contributions or elective
deferrals must be made according to the plan's requirements for
employer matching contributions. The Department also invites comments
as to whether this interpretation best
[[Page 56279]]
effectuates the purpose of this provision.
USERRA does not specify whether the returning service member is
entitled to partial credit in return for making up part (but not all)
of the missed employee contributions or elective deferrals, but it does
not require that the employee make up the full amount. Given that
returning service members often face financial hardships on their
return to civilian employment, and in view of the remedial purposes of
USERRA, the Department interprets the Act to permit the employee to
partially make up missed employee contributions (including required
employee contributions to a defined benefit plan) or elective
deferrals. In such a situation, the employer is required to make any
contributions that are contingent on employee make-up contributions or
elective deferrals only to the extent that the employee makes such
partial contributions or elective deferrals. See proposed section
1002.262. For example, in a plan where the employee may or must
contribute from zero to five percent of his or her compensation, and
receive a commensurate employer match, the reemployed service member
must be permitted to partially make up a missed contribution and
receive the employer match. Where contributions from all employees are
handled in a similar, consistent fashion under the plan, either the
plan documents or the normal, established practices of the plan control
the disposition of partial contributions or elective deferrals.
Under proposed section 1002.264, if the service member has
withdrawn his or her account balance from the employee pension benefit
plan prior to entering military service, he or she must be allowed to
repay the withdrawn amounts upon reemployment. The amount to be repaid
also includes any interest that would have been earned had the monies
not been withdrawn. Repayment entitles the individual to appropriate
credit in the plan. The reemployed service member may make his or her
contributions or deferrals during a time period starting with the date
of reemployment and continuing for up to three times the length of the
employee's immediate past period of military service, with the
repayment period not to exceed five years; during the time period
provided by 26 U.S.C. 411(a)(7)(C) (if applicable); or within such
longer time period as may be agreed to between the employer and service
member. Proposed section 1002.264 applies to defined benefit plans and
defined contribution plans. The Department invites comments on whether
or how this section should apply to defined contribution plans.
Section 4318(b)(3) describes the method for calculating the
reemployed service member's compensation for the period of military
service to determine the amount the employer and service member must
contribute under the plan. 38 U.S.C. 4318(b)(3). Proposed section
1002.267 provides that the compensation rate the reemployed service
member would have earned had he or she remained continuously employed
provides the usual benchmark. If that rate cannot be determined with
reasonable certainty (for example, where the rate varies based on
commissions or tips), the compensation rate may be based on the service
member's average compensation rate during the 12-month period before
the service period. For an employee who worked fewer than 12 months
before entering the service, the entire employment period just prior to
the service period may be used.
The employer must allocate its contribution on behalf of the
employee in the same manner as contributions made for other employees
during the period of the service member's service were allocated.
However, under proposed section 1002.265, the employer is not required
to allocate accrued earnings and forfeitures to the reemployed service
member. 38 U.S.C. 4318(b)(1).
Special rules apply to multiemployer plans. 38 U.S.C. 4318(b)(1).
Proposed section 1002.266 focuses on the operation of multiemployer
plans. ERISA defines the term ``multiemployer plan'' as a plan to which
more than one employer is required to contribute; which is maintained
pursuant to one or more collective bargaining agreements between one or
more employee organizations and more than one employer; and, which
satisfies regulations prescribed by the Secretary of Labor. 29 U.S.C.
1002(37). An individual's period of uniformed service that qualifies as
employment for purposes of section 4318(a)(2) is also employment under
the terms of the pension benefit plan; any applicable collective
bargaining agreement under 29 U.S.C. 1145; or, any similar Federal or
State law requiring employers who contribute to multiemployer plans to
make contributions as specified in plan documents.
With a multiemployer plan, a service member does not have to be
reemployed by the same employer for whom he or she worked prior to the
period of service in order to be reinstated in the pension plan. As
long as the employer is a contributing employer to the plan, the
service member is entitled to be treated as though he or she
experienced no break in service under the plan. Proposed section
1002.266 describes the allocation of the employer's obligation to fund
employer contributions for reemployed service members participating in
multiemployer plans. Initially, the benefits liability is to be
allocated as specified by the sponsor maintaining the plan. 38 U.S.C.
4318(b)(1)(A). Both of the bargaining parties, usually the union(s) and
the employers, and the plan trustees of a multiemployer plan are
sponsors of the plan. The initial allocation by the plan sponsor(s) is
likely to vary from plan to plan. For purposes of USERRA, if the plan
documents make no provision to allocate the obligation to contribute,
then the individual's last employer before the service period is liable
for the employer contributions. In the event that entity no longer
exists or functions, the plan must nevertheless provide coverage to the
service member. 38 U.S.C. 4318(b)(1)(B).
By authorizing the plan sponsors to designate how the contribution
is to be paid, Congress intended to give employers, employee
organizations and plan trustees (all of whom are plan sponsors)
flexibility in structuring the payment obligation to suit the plan's
particular circumstances. ``The Committee intends that multiemployer
pension plan trustees or bargaining parties should be able to adopt
uniform standard rules under which another employer, such as the last
employer for which the individual worked before going into the
uniformed service or the employer for which the returning service
member had the most service during a given period following release
from the uniformed service, may be considered the `reemploying'
employer for purposes of the pension provisions of Chapter 43. The
Committee also intends for multi-employer pension plan trustees to have
the right to determine that it would be more appropriate not to make
any individual employer liable for such costs and thus to be able to
adopt rules under which returning service members' reconstructed
benefits would be funded out of plan contributions and other assets
without imposing a specific additional funding obligation on any one
employer.'' S. Rep. No. 103-158, at 65 (1993). With respect to both
multiemployer and single employer plans, however, the Committee
indicated: ``It is the intent of the Committee that, with respect to
allocations to individual account plans under section 3(34) of ERISA,
[[Page 56280]]
allocations to the accounts of returning service members not be
accomplished by reducing the account balances of other plan
participants.'' Id.
If an employer participating in a multiemployer plan reemploys an
individual who is entitled to pension benefits attributable to military
service, then the employer must notify the plan administrator of the
reemployment within 30 days. 38 U.S.C. 4318(c). USERRA requires this
notice because multiemployer plan administrators may not be aware that
a contributing employer has reemployed a person who may have a pension
claim arising from his or her military service. In contrast,
administrators of single employer pension plans are more likely to have
access to such information. This notification requirement is
implemented by proposed section 1002.266.
Although a service member who is not reemployed under the Act would
not be entitled to pension benefits for his or her period of service,
any vested accrued benefit in the plan to which the service member was
entitled prior to entering military service would remain intact whether
or not he or she was reemployed. Joint Explanatory Statement on H.R.
995, 103-353, at 2507 (1994); H.R. Rep. No. 103-65, Part I, at 36-37
(1993). The terms of the plan document control the manner and timing of
distributions of vested accrued benefits from the plan if the service
member is not reemployed by a participant employer.
USERRA provides specific guidance on certain aspects of the
reemployed service member's pension plan rights. At the same time,
employers, fiduciaries and plan administrators must also comply with
other laws that regulate plan administration but are beyond the scope
of these proposed regulations. Federal and State laws governing the
establishment and operation of pension plans, such as ERISA or the
Internal Revenue Code of 1986, as amended, and the regulations of the
Pension Benefit Guaranty Corporation, continue to apply in the context
of providing benefits under USERRA. Thus, for example, while section
4318(b)(1)(A) provides that liability for funding multiemployer pension
plan benefits for a reemployed service member shall be allocated as the
plan sponsor specifies, laws other than USERRA govern the technical
aspects of the allocation.
Subpart F--Compliance Assistance, Enforcement and Remedies
Compliance Assistance
USERRA authorizes the Secretary of Labor to provide assistance to
any person regarding the employment and reemployment rights and
benefits provided under the statute. 38 U.S.C. 4321. The Secretary acts
through the Veterans' Employment and Training Service (VETS). USERRA
promotes the resolution of complaints without resort to litigation. In
order to facilitate this process, section 4321 allows VETS to request
assistance from other Federal and State agencies and volunteers engaged
in similar or related activities. Proposed section 1002.277 describes
VETS' authority to provide assistance to both employees and employers.
VETS' assistance is not contingent upon the filing of a USERRA
complaint.
Investigation and Referral
Proposed section 1002.288 implements section 4322, which authorizes
VETS to enforce an individual's USERRA rights. Any person claiming
rights or benefits under USERRA may file a complaint with VETS if his
or her employer fails or refuses to comply with the provisions of
USERRA, or indicates that it will not comply in the future. 38 U.S.C.
4322(a). This avenue, however, is optional. Nothing in section 4322
requires an individual to file a complaint with VETS, to request
assistance from VETS, or to await notification from VETS of the right
to bring an enforcement action. Palmatier v. Michigan Dept. of State
Police, 981 F. Supp. 529 (W.D. Mich. 1997). Invoking VETS' enforcement
authority is an alternative provided by the statute once an employee
decides to file a USERRA complaint. See Gagnon v. Sprint Corp., 284
F.3d 839, 854 (8th Cir. 2002). Alternatively, the individual may file a
complaint directly in the appropriate United States District Court or
State court in cases involving a private sector or State employer,
respectively (or the Merit Systems Protection Board in cases involving
a Federal executive agency). See 38 U.S.C. 4323(b) (direct action
against State or private employer); 38 U.S.C. 4324(b) (direct action
against Federal executive agency). See proposed sections 1002.288 and
1002.303. The Office of Personnel Management has issued a separate body
of regulations that implement USERRA for employees of Federal executive
agencies. See 5 CFR Part 353.
Proposed section 1002.288 also implements the statutory criteria
for the form of a complaint. 38 U.S.C. 4322(b). Any complaint submitted
to VETS must be in writing, using VETS Form 1010, which may be found at
http://www.dol.gov/libraryforms/forms/vets/vets-1010.pdf. The proposed
regulation also contains the procedures for processing a complaint.
VETS provides technical assistance to a potential claimant upon
request, and his or her employer if appropriate. 38 U.S.C. 4322(c).
Technical assistance is not limited to filing a complaint; it also
includes responding to requests for information on specific issues that
are not yet part of a formal USERRA complaint. Once an individual files
a complaint, VETS must conduct an investigation. If the agency
determines that a violation of USERRA has occurred, VETS undertakes
``reasonable efforts'' to effectuate compliance by the employer (or
other entity) with its USERRA obligations. Proposed section
1002.289-.290; 38 U.S.C. 4322(d). VETS notifies the claimant of the
outcome of the investigation and the claimant's right to request that
VETS refer the case to the Attorney General). See 38 U.S.C. 4322(e),
4323.
Section 1002.289 sets forth VETS' authority to use subpoenas in
connection with USERRA investigations. VETS may (i) require by subpoena
the attendance and testimony of witnesses and the production of
documents relating to any matter under investigation; and (ii) enforce
the subpoena by requesting the Attorney General to apply to a district
court for an appropriate order. 38 U.S.C. 4326(a)-(b). VETS' subpoena
authority does not apply to the judicial or legislative branch of the
Federal Government. 38 U.S.C. 4326(d).
Enforcement of Rights and Benefits Against a State or Private Employer
Section 4323 establishes the procedures for enforcing USERRA rights
against a State or private employer. ``State'' includes 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. 38 U.S.C. 4303(14). The political subdivisions of a
State (counties, municipalities and school districts), however, are
private employers for enforcement purposes. 38 U.S.C. 4323(j). Although
USERRA does not define ``private employer,'' the term includes all
employers other than the Federal Government or a State. Proposed
sections 1002.303 to .314 implement section 4323 of the Act.
An aggrieved individual may initiate a USERRA action either by
filing an action in court or by filing a complaint with VETS. If a
complaint is filed with VETS and voluntary compliance cannot be
achieved, the claimant may request VETS to refer the complaint to the
Attorney General. 38 U.S.C. 4323(a)(1). If the Attorney General
considers the complaint meritorious, the Attorney
[[Page 56281]]
General may represent the claimant and file a complaint in the
appropriate U.S. district court. In cases where representation is
provided by the Attorney General, the complainant is the plaintiff if
the case is brought against a private employer, including a political
subdivision of a State; however, if the complaint involves a State
employer, it is brought in the name of the United States. A claimant
may also proceed directly to the courts in the following circumstances:
(i) The claimant foregoes informal resolution by VETS; (ii) the
claimant declines referral of the complaint to the Attorney General
after an unsuccessful informal resolution; or, (iii) the Attorney
General refuses to represent the claimant after referral. 38 U.S.C.
4323(a)(2). Proposed sections 1002.303 and .304 implement these
provisions.
Section 4323 establishes requirements for several aspects of the
judicial process involving USERRA complaints, which are explained in
proposed sections 1002.305 through 1002.311. The United States district
courts have jurisdiction over actions against a State or private
employer brought by the United States, and actions against a private
employer by a person. For actions brought by a person against a State,
the action may be brought in a State court of competent jurisdiction.
38 U.S.C. 4323(b); proposed section 1002.305. Venue for an action
between the United States and a State lies in any Federal district in
which the State exercises authority or carries out functions. Venue for
an action against a private employer lies in any Federal district in
which the employer maintains a place of business. 38 U.S.C. 4323(c);
proposed section 1002.307. Only persons claiming rights or benefits
under USERRA (or the United States acting on their behalf) have
standing to initiate a USERRA action. 38 U.S.C. 4323(f). Proposed
section 1002.308 therefore prohibits employers or other entities (such
as pension plans or unions) from initiating actions. See H.R. Rep. No.
103-65, at 39 (1993). As for the respondents necessary to maintain an
action, the statute requires only the employer or prospective employer
to be named as necessary parties. 38 U.S.C. 4323(g); see H.R. Rep. No.
103-65, at 39 (1993). Proposed section 1002.309 implements this
restriction.
No fees or court costs may be imposed on the claimant. In addition,
a prevailing claimant may recover his or her attorney's fee, expert
witness fee, and other litigation expenses. 38 U.S.C. 4323(h); proposed
section 1002.310.
No State statute of limitations applies to a USERRA proceeding. 38
U.S.C. 4323(i). Proposed section 1002.311 provides that an unreasonable
delay by the claimant in asserting his or her rights that causes
prejudice to the employer may result in dismissal of the claim under
the doctrine of laches. See H.R. Rep. No. 103-65, at 39 (1994). The
legislative history relies in part on a Sixth Circuit decision, which
held that any limitation upon a former employee's right to sue is
derived from the equitable doctrine of laches rather than an analogous
State statute of limitations. See Stevens v. Tennessee Valley
Authority, 712 F.2d 1047, 1049 (6th Cir. 1983) (decided under the
predecessor Veterans' Reemployment Rights Act).
The Department has long taken the position that no Federal statute
of limitations applied to actions under USERRA. USERRA's provision that
State statutes of limitations are inapplicable, together with USERRA's
legislative history, show that the Congress intended that the only
time-related defense that may be asserted in defending against a USERRA
claim is the equitable doctrine of laches. 38 U.S.C. 4323(i); see S.
Rep. No. 103-158, at 70 (1993); H.R. Rep. No. 103-65, at 39. Recently,
a Federal district court ruled that USERRA claims are subject to a
four-year statute of limitations enacted prior to the enactment of
USERRA that imposes a general limitations period for all Federal causes
of action where no statute of limitations is ``otherwise provided by
law,'' 28 U.S.C. 1658. Rogers v. City of San Antonio, No. Civ. A. SA-
99-CA-1110, 2003 WL 1566502 (W.D. Tex. Mar. 4, 2003). The Rogers
decision is on appeal to the Fifth Circuit Court of Appeals. City of
San Antonio v. Rogers, No. 03-50588 (5th Cir.) Another recent district
court decision, Akhdary v. City of Chattanooga, No. 1:01-CV-106, 2002
WL 32060140 (E.D. Tenn. May 22, 2002), held that 28 U.S.C. 1658 does
not apply to USERRA claims. The recent decision of the United States
Supreme Court in Jones v. R. R. Donnelley & Sons Co., No. 02-1205, 2004
WL 936488 (U.S. May 3, 2004) is not dispositive because USERRA
``otherwise provides by law'' that no statute of limitations applies,
and because, with respect to some USERRA claims, the cause of action
previously existed under the VRRA and consequently predates the
effective date of 28 U.S.C. 1658. The Department continues to believe
that no statute of limitations applies to USERRA claims but invites
comments on the validity of this view in light of the conflicting court
decisions.
With respect to remedies, the court has broad authority to protect
the rights and benefits of persons covered by USERRA. The court may
order the employer to comply with USERRA's provisions; compensate the
claimant for lost wages and/or benefits; and pay additional,
liquidated, damages equivalent to the lost wages/benefits if it
determines that the employer's violation is willful. 38 U.S.C.
4323(d)(1). The legislative history establishes that ``a violation
shall be considered to be willful if the employer or potential employer
`either knew or showed reckless disregard for the matter of whether its
conduct was prohibited by the [provisions of this chapter].' '' H.R.
Rep. No. 103-65, at 38 (1994), quoting Hazen Paper Co. v. Biggins, 507
U.S. 604, 617 (1993) (holding that a violation of the ADEA is willful
if the employee either knew or showed reckless disregard for whether
the statute prohibited its conduct). Proposed section 1002.312 lists
the possible remedies allowed under section 4323(d). Proposed section
1002.313 states that compensation consisting of lost wages, benefits or
liquidated damages derived from any action brought on behalf of the
United States shall be paid directly to the aggrieved individual.
Finally, the court may use its equity powers to enforce the rights
guaranteed by USERRA. 38 U.S.C. 4323(e); proposed section 1002.314.
Effective Date and Compliance Deadlines
These regulations impose no new legal requirements but explain
existing ones, in some cases for the first time. The Department
proposes that these regulations be effective 30 days after publication
of the final rule, and requests comment on whether this allows adequate
time for covered parties to come into full compliance. We expect that
most employers are currently in full compliance. However, to the extent
that these regulations clarify USERRA's requirements and require
adjustments in employer policies and practices, the Department wants to
allow a reasonable amount of time for the transition to take place.
V. Procedural Determinations
A. Paperwork Reduction Act
This rule involves information collection, recordkeeping, or
reporting requirements, as described in the chart below. As required by
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.), these
requirements have been submitted to the Office of Management and
Budget. Send comments regarding this burden or any other aspect of this
collection of information, including
[[Page 56282]]
suggestions for reducing this burden, to: Office of Information and
Regulatory Affairs (Attention: Katherine Astrich, Desk Officer for
VETS), 725 17th St., NW., Washington, DC 20503. In addition to regular
mail, OIRA will accept comments via electronic mail to
KAstrich@omb.eop.gov, or by Fax at (202) 395-6974. Please include
``Docket No. VETS-U-04'' on the subject line of the email, fax or
letter. Note that security-related problems may result in significant
delays in receiving comments by regular mail. In addition, the Agency
encourages commenters to submit their comments on the paperwork
determination to VETS using the methods described above under
ADDRESSES.
Comparison of Proposed and Statutory Language Containing Paperwork
Requirements
------------------------------------------------------------------------
Statutory provision and
Proposed provision and language language
------------------------------------------------------------------------
1002.85(a) * * * You or an appropriate 4312(a)(1) [Reemployment rights
officer of the uniformed service in and benefits available if] the
which your service is to be performed, person (or an appropriate
must notify your employer that you officer of the uniformed
intend to leave your employment service in which such service
position to perform service in the is performed) has given
uniformed services. * * *. advance written or verbal
1002.85(c) Your notice to your employer notice of such service to such
may be either verbal or written.. person's employer[.]
1002.115 * * * When you complete your 4312(a)(3) [Reemployment rights
service in the uniformed services, you and benefits available if] the
must notify your pre-service employer person reports to, or submits
of your intent to return to your an application for
employment position by either reemployment to, such employer
reporting to work or submitting a in accordance with the
timely application for employment. provisions of subsection (e).
1002.118 * * * You may apply either
orally or in writing..
1002.193 * * * Your employer must 4313(a)(2)(A) [A person
determine your seniority rights, entitled to reemployment shall
status, and rate of pay as though you be promptly reemployed] in the
had been continuously employed during position of employment in
the period of service. 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
[with certain exceptions].
1002.266(b) An employer that 4318(c) Any employer who
contributes to a multiemployer plan reemploys a person under this
and that reemploys you must provide chapter and who is an employer
written notice of your reemployment to contributing to a
the plan administrator. * * *. multiemployer plan * * * under
which benefits are or may be
payable to such person by
reason of the obligations set
forth in this chapter, shall *
* * provide information, in
writing, of such reemployment
to the administrator of the
plan.
1002.228 * * * A complaint filed with 4322(b) Such complaint shall be
VETS must be in writing, using VETS in writing, be in such form as
Form 1010, and must include the name [VETS] may prescribe, include
and address of your employer, a the name and address of the
summary of the basis for your employer against whom the
complaint, and a request for relief. complaint is filed, and
contain a summary of the
allegations that form the
basis of for the complaint.
Note: VETS Form 1010 is currently
approved by OMB, 1293-0002,
expiration date March 2007.
------------------------------------------------------------------------
B. Preliminary Economic Analysis and Regulatory Flexibility
Certification
This rule is being treated as a ``significant regulatory action''
within the meaning of Executive Order 12866, because of its importance
to the public and the Department's priorities. Therefore, the Office of
Management and Budget has reviewed the rule. However, because this rule
is not ``economically significant'' as defined in section 3(f)(1) of EO
12866, it does not require a full economic impact analysis under
section 6(a)(3)(C) of the Order. The proposed rule is not a ``major
rule'' under the Unfunded Mandates Reform Act or Section 801 of the
Small Business Regulatory Enforcement Fairness Act (SBREFA). The
proposal would impose no additional costs on any private or public
sector entity, and does not meet any of the criteria for a economically
significant or major rule specified by the Executive Order or relevant
statutes.
The Senate Committee report accompanying the passage of USERRA
noted that the ``[Congressional Budget Office] estimates that the
enactment of [section 9 of USERRA, transitioning from the predecessor
veterans' reemployment rights law to USERRA] would entail no
significant cost.'' (See Senate Report No. 103-158, p. 82 (1993).) The
same report states further on page 84, under the heading ``Regulatory
Impact Statement,'' that:
[T]he Committee [on Veterans'' Affairs] has made an evaluation
of the regulatory impact which would be incurred in carrying out the
Committee bill. The Committee finds that the enactment of the bill
would not entail any significant new regulation of individuals or
business. * * *
USERRA is the latest in a series of laws protecting veterans'
employment and reemployment rights going back to the Selective Training
and Service Act of 1940. USERRA's immediate predecessor was the VRRA.
USERRA continued the fundamental protections of the VRRA and the case
law interpreting the VRRA while clarifying that law, and VETS considers
that by recodifying and clarifying longstanding statutory and case law
under the VRRA, USERRA did not impose new economic burdens on
employers. This proposed rule implements USERRA, and while it imposes
no new costs, it may provide some economic benefits. Delays may occur
when employers respond to employee claims and inquiries concerning
USERRA due to confusion or ambiguity as to the correct interpretation
of USERRA. Moreover, some employee claims are contested in part because
of a lack of employer knowledge about the statute. The proposed rule
should reduce these costs by: providing employers with accurate
information necessary to respond efficiently and effectively to
employee claims; potentially reducing the number of contested claims
and the resulting need for administrative resolution or legal action;
expediting the settlement of outstanding claims because employers and
employees will have an enhanced knowledge of their rights and
responsibilities under USERRA; and reducing the number of inquiries
made by employers and employees to administrative agencies such as VETS
and the Office of Personnel Management.
VETS also expects the proposed rule to benefit both pension- and
health-plan
[[Page 56283]]
sponsors and participants by helping to dispel plan administrators'
uncertainty about compliance with USERRA provisions, and by reducing
delays and the risk of inadvertent noncompliance. The rule may assist
participants and beneficiaries to better understand their USERRA rights
as well, thereby averting disputes and lost opportunities to elect
continuing health-plan coverage, or to obtain reinstated pension-plan
coverage.
Based on the above analysis, the Agency concludes that the proposed
rule would not impose any additional costs on employers; consequently,
the proposal requires no preliminary economic analysis. Furthermore,
because the proposal imposes no costs on employers, VETS certifies that
it would not have a significant impact on a substantial number of small
businesses; accordingly, the Agency need not prepare an initial
regulatory flexibility analysis.
C. Unfunded Mandates
The Congressional Budget Office (CBO) determined that State and
local governments would incur no cost resulting from passage of USERRA
(see Senate Report No. 103-158, p. 84 (1993)). In this regard, State
and local governments would be obligated to comply with USERRA to the
same extent as private employers; therefore, when USERRA (and the
proposed rule) impose no cost on private employers, they also impose no
cost on State and local government employers. The House Committee
Report for USERRA (House Report No. 103-65, pp. 49-51) contained
similar CBO language.\1\
---------------------------------------------------------------------------
\1\ However, the CBO determined that, because of changes to
Thrift Savings Plan provisions, the cost for the Federal government
to comply with USERRA would be about $1 million in FY 1994 and 1995,
and zero cost thereafter.
---------------------------------------------------------------------------
The Agency reviewed the proposed rule according to the Unfunded
Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq.) and Executive Order
12875. Based on the CBO determinations described in the previous
paragraph, the Agency made a preliminary determination that the
proposed rule does not include any Federal mandate that would result in
increased expenditures by State, local, or tribal governments in the
aggregate of more than $100 million, or increased expenditures by the
private sector of more than $100 million. Therefore, the Agency
concludes that the proposed rule: (1) Would not affect State, local, or
tribal entities significantly or uniquely; (2) does not contain an
unfunded mandate requiring consultation with these entities; and (3)
would not impose substantial direct compliance costs on Indian tribal
governments. Accordingly, the proposed rule does not mandate that
State, local, or tribal governments adopt new, unfunded regulatory
obligations.
D. Federalism
The proposed rule does not have federalism implications as
specified under Executive Order 13132 (64 FR 43255; August 10, 1999)
because it has no substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. Section 4302 of USERRA provides that its provisions
supersede any and all laws of the States as they relate to any rights
and benefits provided under USERRA if such State laws reduce, limit, or
eliminate in any manner any right or benefit provided by USERRA.
Accordingly, the requirements implemented by the proposed rule do not
alter these fundamental statutory provisions with respect to military
service members' and veterans' employment and reemployment rights and
benefits. Therefore, the proposed rule has no implications for the
States, or for the relationship or distribution of power between the
national government and the States.
VI. Statutory and Rulemaking Background
The Uniformed Services Employment and Reemployment Rights Act
(USERRA), Pub. L. 103-353, 108 Stat. 3150 (codified at 38 U.S.C. 4301-
4333), became law on October 13, 1994, replacing the Veterans'
Reemployment Rights Act (VRRA). Congress enacted USERRA, in part, to
clarify the ambiguities of the VRRA and strengthen the rights of
service members and veterans. USERRA's guiding principle is that a
person who leaves civilian employment to perform service in the
uniformed services is entitled to return to that job with the
seniority, status, and rate of pay that would have accrued during the
absence, provided the person meets USERRA's eligibility criteria.
USERRA applies to voluntary or involuntary military service in
peacetime as well as wartime. Its provisions apply to virtually all
employers, regardless of size. USERRA also codifies 54 years of
accumulated case law and clarifies previously existing rights and
obligations. For most purposes, USERRA applies to reemployments
initiated on or after December 12, 1994. Congress enacted amendments to
the Act in 1996, 1998, and 2000.
VII. Statutory Authority
This regulation is proposed pursuant to the authority in section
4331(a) of USERRA (Pub. L. 103-353, 108 Stat. 3150, 38 U.S.C. 4331(a)),
and Secretary's Order 3-2004, September 10, 2004.
List of Subjects in 20 CFR Part 1001
Labor, Pensions, Veterans.
Proposed Regulation
For the reasons set out in the preamble, the Department proposes to
add a new part 1002 to Chapter IX of Title 20 of the Code of Federal
Regulations as follows:
PART 1002--REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND
REEMPLOYMENT RIGHTS ACT OF 1994
Subpart A--Introduction to the Regulations Under the Uniformed Services
Employment and Reemployment Rights Act of 1994
General Provisions
Sec.
1002.1 What is the purpose of the regulations in this part?
1002.2 Is USERRA a new law?
1002.3 When did USERRA become effective?
1002.4 What is the role of the Secretary of Labor under USERRA?
1002.5 What definitions will help me understand USERRA?
1002.6 What types of service in the uniformed services are covered
by USERRA?
1002.7 How does USERRA relate to other laws, public and private
contracts, and employer practices?
Subpart B--Anti-Discrimination and Anti-Retaliation
Protection From Employer Discrimination and Retaliation
1002.18 What activity is protected from employer discrimination by
USERRA?
1002.19 Is any other activity protected under USERRA?
1002.20 Does USERRA protect me if I do not actually perform service
in the uniformed service?
1002.21 Do the Act's prohibitions against discrimination and
retaliation apply to all employment positions?
1002.22 Who has the burden of proving discrimination or retaliation
in violation of USERRA?
1002.23 What do I have to show to carry my burden of proving that my
employer discriminated or retaliated against me?
Subpart C--Eligibility for Reemployment
General Eligibility Requirements for Reemployment
1002.32 What criteria must I meet to be eligible under USERRA for
reemployment after my service in the uniformed services?
[[Page 56284]]
1002.33 To be eligible for reemployment, do I have to show that my
employer discriminated against me?
Coverage of Employers and Positions
1002.34 Which employers are covered by USERRA?
1002.35 Is a successor in interest an employer covered by USERRA?
1002.36 Can an employer be liable as a successor in interest if it
was unaware of my potential reemployment claim when it acquired the
business?
1002.37 Is it possible for me to be employed in one job by more than
one employer?
1002.38 Can a hiring hall be my employer?
1002.39 Are States (and their political subdivisions), the District
of Columbia, the Commonwealth of Puerto Rico, and United States
territories, considered employers?
1002.40 Does USERRA protect against discrimination in initial hiring
decisions?
1002.41 Can I have rights under USERRA even though I hold a
temporary, part-time, probationary, or seasonal employment position?
1002.42 What rights do I have under USERRA if I am on layoff, on
strike, or on a leave of absence?
1002.43 Can I have rights under USERRA even if I am an executive,
managerial, or professional employee?
1002.44 Does USERRA cover me if I am an independent contractor?
Coverage of Service in the Uniformed Services
1002.54 Are all military fitness examinations considered ``service
in the uniformed services?''
1002.55 Is all funeral honors duty considered ``service in the
uniformed services?''
1002.56 I am participating in a training program to provide
emergency assistance in the event of a terrorist attack. Is that
considered ``service in the uniformed services?''
1002.57 Is all of my service as a member of the National Guard
considered ``service in the uniformed services?''
1002.58 Is my service in the commissioned corps of the Public Health
Service considered ``service in the uniformed services?''
1002.59 Are there any circumstances in which special categories of
persons are considered to perform ``service in the uniformed
services?''
1002.60 If I am a cadet or midshipman attending a service academy am
I covered by USERRA?
1002.61 If I am a member of the Reserve Officers Training Corps am I
covered by USERRA?
1002.62 If I am a member of the Commissioned Corps of the National
Oceanic and Atmospheric Administration, the Civil Air Patrol, or the
Coast Guard Auxiliary am I covered by USERRA?
Absence From a Position of Employment Necessitated by Reason of Service
in the Uniformed Services
1002.73 Does service in the uniformed services have to be my sole
reason for leaving my employment position in order to have USERRA
reemployment rights?
1002.74 Am I required to begin service in the uniformed services
immediately after leaving my employment position in order to have
USERRA reemployment rights?
Requirement of Notice
1002.85 Am I required to give advance notice to my employer of my
service in the uniformed services?
1002.86 When am I excused from giving advance notice of my service
in the uniformed services?
1002.87 Am I required to get permission from my employer before I
leave to perform service in the uniformed services?
1002.88 Am I required to tell my civilian employer that I intend to
seek reemployment after completing my military service before I
leave to perform service in the uniformed services?
Period of Service
1002.99 Is there a limit on the total amount of service in the
uniformed services that I may perform and still retain reemployment
rights with my employer?
1002.100 Does the five-year service limit include all absences from
my employment position that are related to my service in the
uniformed services?
1002.101 Does the five-year service limit include periods of service
that I performed when I worked for a previous employer?
1002.102 Does the five-year limit include periods of service that I
performed before USERRA was enacted?
1002.103 Are there any types of service in the uniformed services
that I can perform that do not count against USERRA's five-year
service limit?
1002.104 Am I required to accommodate my employer's needs as to the
timing, frequency or duration of my service?
Application for Reemployment
1002.115 Am I required to report to or submit a timely application
for reemployment to my pre-service employer when I complete my
period of service in the uniformed services?
1002.116 Is my time period for reporting back to my employer
extended if I am hospitalized for, or convalescing from, an illness
or injury incurred in, or aggravated during, the performance of
service?
1002.117 Are there any consequences if I fail to report for or
submit a timely application for reemployment?
1002.118 Is my application for reemployment required to be in any
particular form?
1002.119 To whom must I submit my application for reemployment?
1002.120 If I seek or obtain employment with an employer other than
my pre-service employer before the end of the period within which my
reemployment application must be filed, will that jeopardize my
reemployment rights with my pre-service employer?
1002.121 Am I required to submit documentation to my employer in
connection with my application for reemployment?
1002.122 Is my employer required to reemploy me if documentation
establishing my eligibility does not exist or is not readily
available?
1002.123 What documents satisfy the requirement that I establish my
eligibility for reemployment after a period of service of more than
thirty days?
Character of Service
1002.134 What type of discharge or separation from military service
is required for me to be entitled to reemployment under USERRA?
1002.135 What type of discharge or separation from military service
will make me ineligible for reemployment under USERRA?
1002.136 Who determines the characterization of my service?
1002.137 If I receive a disqualifying discharge or release from
uniformed service and it is later upgraded, will my right to
reemployment be restored?
1002.138 If I receive a retroactive upgrade in my characterization
of service will that entitle me to claim back wages and benefits
lost as of my date of separation from service?
Employer Statutory Defenses
1002.139 Are there any circumstances in which my pre-service
employer is excused from its obligation to reemploy me following a
period of military service? What statutory defenses are available to
the employer in an action or proceeding for reemployment benefits?
Subpart D--Rights, Benefits, and Obligations of Persons Absent From
Employment Due to Service in the Uniformed Services
Furlough and Leave of Absence
1002.149 What is my status with my civilian employer when I am
performing service in the uniformed services?
1002.150 What non-seniority rights and benefits am I entitled to
during my period of service?
1002.151 If my employer provides full or partial pay to me while I
am on military leave is it required to also provide me with the non-
seniority rights and benefits ordinarily granted to similarly
situated employees on furlough or leave of absence?
1002.152 If my employment is interrupted by a period of service in
the uniformed services, are there any circumstances under which I am
not entitled to the non-seniority rights and benefits ordinarily
granted to similarly situated employees on furlough or leave of
absence?
1002.153 If my employment is interrupted by a period of service in
the uniformed
[[Page 56285]]
services can I use my accrued vacation, annual or similar leave with
pay during the service? Can my employer require me to use my accrued
leave during the period of service?
Health Plan Coverage
1002.163 What types of health plans are covered by USERRA?
1002.164 What health plan coverage must my employer provide to me
under USERRA?
1002.165 How do I elect continuing health plan coverage?
1002.166 How much do I have to pay in order to continue my health
plan coverage?
1002.167 If my coverage was terminated at the beginning of or during
my service, does my coverage have to be reinstated upon my
reemployment?
1002.168 Can I elect to delay reinstatement of my health plan
coverage until a date after the date I am reemployed?
1002.169 Which employer is responsible for providing me with
continuing health plan coverage if I am enrolled under a
multiemployer plan?
Subpart E--Reemployment Rights and Benefits
Prompt Reemployment
1002.180 When am I entitled to be reemployed by my civilian
employer?
1002.181 How is ``prompt reemployment'' defined?
Reemployment Position
1002.191 What position am I entitled to upon my reemployment?
1002.192 How is my specific reemployment position determined?
1002.193 Does my reemployment position include elements such as my
seniority, status, and rate of pay?
1002.194 Can the application of the escalator principle result in
adverse consequences when I am reemployed?
1002.195 What other factors can determine my reemployment position?
1002.196 What is my reemployment position if my period of service
was less than 91 days?
1002.197 What is my reemployment position if my period of service in
the uniformed services was more than 90 days?
1002.198 What efforts must my employer make to help me become
qualified for the reemployment position?
1002.199 What priority must my employer follow if two or more
returning employees are entitled to reemployment in the same
position?
Seniority Rights and Benefits
1002.210 What seniority rights do I have when I am reemployed
following a period of uniformed service?
1002.211 Does USERRA require my employer to use a seniority system?
1002.212 How do I know whether a particular right or benefit is a
seniority-based right or benefit?
1002.213 How can I demonstrate a reasonable certainty that I would
have received the seniority right or benefit if I had remained
continuously employed during my period of service?
1002.214 What happens if my employer establishes, or eliminates
seniority and seniority-based rights and benefits after I begin my
period of service?
Disabled Employees
1002.225 Am I entitled to any specific reemployment benefits if I
have a disability that was incurred in, or aggravated during, my
period of service?
1002.226 If I have a disability incurred in, or aggravated during,
my period of service what efforts must my employer make to qualify
me for my reemployment position?
Rate of Pay
1002.236 How is my rate of pay determined when I return from a
period of service?
Protection Against Discharge
1002.247 Does USERRA provide me with protection against discharge?
1002.248 What constitutes cause for discharge under USERRA?
Pension Plan Benefits
1002.259 How does USERRA protect my pension benefits?
1002.260 What pension benefit plans are covered under USERRA?
1002.261 Who is responsible for funding any plan obligation to
provide me with pension benefits?
1002.262 When is my employer required to make the plan contribution
that is attributable to my period of military service?
1002.263 Am I required to pay interest when I make up my missed
contributions or elective deferrals?
1002.264 Am I allowed to repay my account balance if I withdrew all
or part of my account from the pension benefits plan before becoming
reemployed?
1002.265 If I am reemployed with my pre-service employer is my
pension benefit the same as if I had remained continuously employed?
1002.266 What are the obligations of a multiemployer pension benefit
plan under USERRA?
1002.267 How is my compensation during my period of service
calculated in order to determine my pension benefits, if my benefits
are based on my compensation rate?
Subpart F--Compliance Assistance, Enforcement and Remedies
Compliance Assistance
1002.277 What assistance does the Department of Labor provide to
employees and employers concerning employment, reemployment, or
other rights and benefits under USERRA?
Investigation and Referral
1002.288 How do I file my USERRA complaint?
1002.289 How will VETS investigate my USERRA complaint?
1002.290 Does VETS have the authority to order compliance with
USERRA?
1002.291 What actions may I take if my complaint is not resolved by
VETS?
1002.292 What can the Attorney General do about my complaint?
Enforcement of Rights and Benefits Against a State or Private Employer
1002.303 Am I required to file my complaint with VETS?
1002.304 If I file a complaint with VETS and VETS' efforts do not
resolve my complaint can I pursue the claim on my own?
1002.305 What court has jurisdiction in an action against a State or
private employer?
1002.306 As a National Guard civilian technician am I considered a
State or Federal employee for purposes of USERRA?
1002.307 What is the proper venue in an action against a State or
private employer?
1002.308 Who has legal standing to bring an action under USERRA?
1002.309 Who is a necessary party in an action under USERRA?
1002.310 How are fees and court costs charged or taxed in an action
under USERRA?
1002.311 Is there a statute of limitations in an action under
USERRA?
1002.312 What remedies may be awarded for a violation of USERRA?
1002.313 Are there special damages provisions that apply to actions
initiated in the name of the United States?
1002.314 May a court use its equity powers in an action or
proceeding under the Act?
Authority: Pub. L. 103-353, 108 Stat. 3150, 38 U.S.C. 4331(a);
Secretary's Order 3-2004, September 10, 2004.
Subpart A--Introduction to the Regulations Under the Uniformed
Services Employment and Reemployment Rights Act of 1994
General Provisions
Sec. 1002.1 What is the purpose of the regulations in this part?
The regulations in this part implement the Uniformed Services
Employment and Reemployment Rights Act of 1994 (``USERRA'' or ``the
Act''). 38 U.S.C. 4301-4333. USERRA is a law that establishes certain
rights and benefits for employees, and duties for employers. USERRA
affects employment, reemployment, and retention in employment, when
employees serve or have served in the uniformed services. There are
five subparts to this part. Subpart A gives an introduction to the
USERRA regulations. Subpart B describes USERRA's anti-discrimination
and anti-retaliation provisions. Subpart C explains the steps that must
be taken by a uniformed service member who wants
[[Page 56286]]
to return to his or her previous civilian employment. Subpart D
describes the rights, benefits, and obligations of persons absent from
employment due to service in the uniformed services, including rights
and obligations related to health plan coverage. Subpart E describes
the rights, benefits, and obligations of the returning veteran or
service member. Subpart F explains the role of the Department of Labor
in enforcing and giving assistance under USERRA. The regulations in
this part implement USERRA as it applies to States, local governments,
and private employers. Separate regulations published by the Federal
Office of Personnel Management implement USERRA for Federal executive
agency employers and employees.
Sec. 1002.2 Is USERRA a new law?
USERRA is the latest in a series of laws protecting veterans'
employment and reemployment rights going back to the Selective Training
and Service Act of 1940. USERRA's immediate predecessor was commonly
referred to as the Veterans' Reemployment Rights Act (VRRA), which was
enacted as section 404 of the Vietnam Era Veterans' Readjustment
Assistance Act of 1974. In enacting USERRA, Congress emphasized
USERRA's continuity with the VRRA and its intention to clarify and
strengthen that law. Congress also emphasized that Federal laws
protecting veterans' employment and reemployment rights for the past
fifty years had been successful and that the large body of case law
that had developed under those statutes remained in full force and
effect, to the extent it is consistent with USERRA. USERRA authorized
the Department of Labor to publish regulations implementing the Act for
State, local government, and private employers. USERRA also authorized
the Office of Personnel Management to issue regulations implementing
the Act for Federal executive agencies (other than some Federal
intelligence agencies). USERRA established a separate program for
employees of some Federal intelligence agencies.
Sec. 1002.3 When did USERRA become effective?
USERRA became law on October 13, 1994. USERRA's reemployment
provisions apply to members of the uniformed services seeking civilian
reemployment on or after December 12, 1994. USERRA's anti-
discrimination and anti-retaliation provisions became effective on
October 13, 1994.
Sec. 1002.4 What is the role of the Secretary of Labor under USERRA?
(a) USERRA charges the Secretary of Labor (through the Veterans'
Employment and Training Service) with providing assistance to any
person with respect to the employment and reemployment rights and
benefits to which such person is entitled under the Act. More
information about the Secretary's role in providing this assistance is
contained in subpart F of this part.
(b) USERRA also authorizes the Secretary of Labor to issue
regulations implementing the Act with respect to States, local
governments, and private employers. The regulations in this part are
issued under this authority.
(c) The Secretary of Labor delegated authority to the Assistant
Secretary for Veterans' Employment and Training for administering the
veterans' reemployment rights program by Secretary's Order 1-83
(February 3, 1983) and for carrying out the functions and authority
vested in the Secretary pursuant to USERRA by memorandum of April 22,
2002 (67 FR 31827).
Sec. 1002.5 What definitions will help me understand USERRA?
(a) 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 USERRA.
(b) Benefit, benefit of employment, or rights and benefits means
any advantage, profit, privilege, gain, status, account, or interest
(other than wages or salary for work performed) that accrues to the
employee because of an employment contract, employment agreement, or
employer policy, plan, or practice. The term includes rights and
benefits under a pension plan, health plan, or employee stock ownership
plan, insurance coverage and awards, bonuses, severance pay,
supplemental unemployment benefits, vacations, and the opportunity to
select work hours or the location of employment.
(c) Employee means any person employed by an employer. The term
also includes any person who is a citizen, national or permanent
resident alien of the United States who is employed in a workplace in a
foreign country by an employer that is an entity incorporated or
organized in the United States, or that is controlled by an entity
organized in the United States. ``Employee'' includes the former
employees of an employer.
(d)(1) Employer, except as provided below in paragraphs (d)(2) and
(3) of this section, 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 definition; and,
(v) A person, institution, organization, or other entity that has
denied initial employment in violation of 38 U.S.C. 4311, USERRA's
anti-discrimination and anti-retaliation provisions.
(2) In the case of a National Guard technician employed under 32
U.S.C. 709, the term ``employer'' means the adjutant general of the
State in which the technician is employed.
(3) An employee pension benefit plan as described in section 3(2)
of the Employee Retirement Income Security Act of 1974 (ERISA)(29
U.S.C. 1002(2)) is considered an employer for an individual that it
does not actually employ only with respect to the obligation to provide
pension benefits.
(e) Health plan means an insurance policy, insurance 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.
(f) Notice, when the employee is required to give advance notice of
service, means 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 the service is to be performed.
(g) Qualified, with respect to an employment position, means having
the ability to perform the essential tasks of the position.
(h) Reasonable efforts, in the case of actions required of an
employer, means actions, including training provided by an employer
that do not place an undue hardship on the employer.
(i) Secretary means the Secretary of Labor or any person designated
by the Secretary of Labor to carry out an activity under USERRA and the
regulations in this part, unless a different office is expressly
indicated in the regulation.
(j) Seniority means longevity in employment together with any
benefits of employment that accrue with, or are determined by,
longevity in employment.
[[Page 56287]]
(k) Service in the uniformed services means the performance of duty
on a voluntary or involuntary basis in a uniformed service under
competent authority. Service in the uniformed services includes active
duty, active and inactive duty for training, National Guard duty under
Federal statute, and a period for which a person is absent from a
position of employment for an examination to determine the fitness of
the person to perform such duty. The term also includes a period for
which a person is absent from employment to perform funeral honors duty
as authorized by law (10 U.S.C. 12503 or 32 U.S.C. 115). The Public
Health Security and Bioterrorism Preparedness and Response Act of 2002,
Pub. L. 107-188, provides that service as an intermittent disaster-
response appointee upon activation of the National Disaster Medical
System or as a participant in an authorized training program is deemed
``service in the uniformed services.'' 42 U.S.C. 300hh-11(e)(3).
(l) 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); however, for purposes
of enforcement of rights under 38 U.S.C. 4323, a political subdivision
of a State is a private employer.
(m) Undue hardship, in the case of actions taken by an employer,
means an action requiring significant difficulty or expense, when
considered in light of --
(1) The nature and cost of the action needed under USERRA and the
regulations in this part;
(2) 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;
(3) 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,
(4) 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.
(n) 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; and any other category
of persons designated by the President in time of war or national
emergency.
Sec. 1002.6 What types of service in the uniformed services are
covered by USERRA?
USERRA's definition of ``service in the uniformed services'' covers
all categories of military training and service, including duty
performed on a voluntary or involuntary basis, in time of peace or war.
Although most often understood as applying to National Guard and
reserve military personnel, USERRA also applies to persons serving in
the active components of the Armed Forces. However, USERRA's
reemployment provisions vary according to the length of service in the
uniformed services.
Sec. 1002.7 How does USERRA relate to other laws, public and private
contracts, and employer practices?
(a) USERRA establishes a floor, not a ceiling, for the employment
and reemployment rights and benefits of those it protects. In other
words, an employer may provide greater rights and benefits than USERRA
requires, but no employer can refuse to provide any right or benefit
guaranteed by USERRA.
(b) USERRA supersedes any State law (including any local law or
ordinance), contract, agreement, policy, plan, practice, or other
matter that reduces, limits, or eliminates in any manner any right or
benefit provided by USERRA, including the establishment of additional
prerequisites to the exercise of any USERRA right or the receipt of any
USERRA benefit. For example, an employment contract that determines
seniority based only on actual days of work in the place of employment
would be superseded by USERRA, which requires that seniority credit be
given for periods of absence from work due to service in the uniformed
services.
(c) USERRA does not supersede, nullify or diminish any Federal or
State law (including any local law or ordinance), contract, agreement,
policy, plan, practice, or other matter that establishes an employment
right or benefit that is more beneficial than, or is in addition to, a
right or benefit provided under the Act. For example, although USERRA
does not require an employer to pay an employee for time away from work
performing service, an employer policy, plan, or practice that provides
such a benefit is permissible under USERRA.
(d) If an employer provides a benefit that exceeds USERRA's
requirements in one area, it cannot reduce or limit other rights or
benefits provided by USERRA. For example, even though USERRA does not
require it, an employer may provide a fixed number of days of paid
military leave per year to employees who are members of the National
Guard or Reserve. The fact that it provides such a benefit, however,
does not permit an employer to refuse to provide an unpaid leave of
absence to an employee to perform service in the uniformed services in
excess of the number of days of paid military leave.
Subpart B--Anti-Discrimination and Anti-Retaliation
Protection From Employer Discrimination and Retaliation
Sec. 1002.18 What activity is protected from employer discrimination
by USERRA?
An employer must not deny initial employment, reemployment,
retention in employment, promotion, or any benefit of employment to you
on the basis of your membership, application for membership,
performance of service, application for service, or obligation for
service in the uniformed services.
Sec. 1002.19 Is any other activity protected under USERRA?
An employer must not retaliate against you by taking any adverse
employment action against you because you have taken an action to
enforce a protection afforded any person under USERRA; testified or
otherwise made a statement in or in connection with a proceeding under
USERRA; assisted or participated in a USERRA investigation: or,
exercised a right provided for by USERRA.
Sec. 1002.20 Does USERRA protect me if I do not actually perform
service in the uniformed service?
Yes. Employers are prohibited from taking actions against you for
any of the activities protected by the Act, whether or not you have
performed service in the uniformed services.
Sec. 1002.21 Do the Act's prohibitions against discrimination and
retaliation apply to all employment positions?
The prohibitions against discrimination and retaliation apply to
all covered employers (including hiring halls and potential employers,
see Sec. Sec. 1002.36 and 1002.38) and employment positions, including
those that are for a brief, non-recurrent period, and for which there
is no reasonable expectation that the employment position will continue
indefinitely or for a significant period. However, USERRA's
reemployment rights and
[[Page 56288]]
benefits do not apply to such brief, nonrecurrent positions of
employment.
Sec. 1002.22 Who has the burden of proving discrimination or
retaliation in violation of USERRA?
You have the burden of proving that activity protected by USERRA
was one of the reasons that your employer took action against you, in
order to establish that the action was discrimination or retaliation in
violation of USERRA. If you succeed in proving this point, your
employer can prevail by proving that he or she would have taken the
action anyway, unless you can prove that but for your service the
employer would not have taken the action.
Sec. 1002.23 What do I have to show to carry my burden of proving
that my employer discriminated or retaliated against me?
(a) In order to prove that your employer discriminated or
retaliated against you, first you must show that the employer's action
against you was motivated by either:
(1) Membership or application for membership in a uniformed
service;
(2) Performance of service, application for service, or obligation
for service in a uniformed service;
(3) Action taken to enforce a protection afforded any person under
USERRA;
(4) Testimony or statement made in or in connection with a USERRA
proceeding;
(5) Assistance or participation in a USERRA investigation; or,
(6) Exercise of a right provided for by USERRA.
(b) If you prove that the employer's action against you was based
on one of the prohibited motives listed in paragraph (a) of this
section, your employer may prevail by showing that the action would
have been taken anyway. In that event, you can prevail only if you can
show that the employer would not have taken the action against you but
for your protected activity.
Subpart C--Eligibility for Reemployment
General Eligibility Requirements for Reemployment
Sec. 1002.32 What criteria must I meet to be eligible under USERRA
for reemployment after my service in the uniformed services?
(a) In general, if you have been absent from a position of civilian
employment by reason of service in the uniformed services, you will be
eligible for reemployment under USERRA if you meet the following
criteria:
(1) Your employer had advance notice of your service;
(2) You have five years or less of cumulative service with respect
to your position of employment;
(3) You timely return to work or apply for reemployment; and,
(4) You have not been separated from service with a disqualifying
discharge or under other than honorable conditions.
(b) These general eligibility requirements have important
qualifications and exceptions, which are described in detail in
Sec. Sec. 1002.73 through 1002.138. If you meet these eligibility
criteria, then you are eligible for reemployment, unless your employer
can establish that one of the defenses described in Sec. 1002.139
apply. The reemployment position that you are entitled to if you meet
USERRA's eligibility criteria is described in Sec. Sec. 1002.191
through 1002.199.
Sec. 1002.33 To be eligible for reemployment, do I have to show that
my employer discriminated against me?
No. To be eligible for reemployment it is not necessary for you to
establish that your employer discriminated against you because of your
military service.
Coverage of Employers and Positions
Sec. 1002.34 Which employers are covered by USERRA?
(a) USERRA applies to all public and private employers in the
United States, regardless of size. For example, an employer with only
one employee is covered for purposes of the Act.
(b) USERRA applies to foreign employers doing business in the
United States. A foreign employer that has a physical location or
branch in the United States (including U.S. territories and
possessions) must comply with USERRA for any of its employees who are
employed in the United States.
(c) An American company operating either directly or through an
entity under its control in a foreign country must also comply with
USERRA for all its foreign operations, unless compliance would violate
the law of the foreign country in which the workplace is located.
Sec. 1002.35 Is a successor in interest an employer covered by
USERRA?
USERRA's definition of ``employer'' includes a successor in
interest. In general, an employer is a successor in interest where
there is a substantial continuity in operations, facilities, and
workforce from the former employer. The determination whether an
employer is a successor in interest must be made on a case-by-case
basis using a multi-factor test that considers the following:
(a) Whether there has been a substantial continuity of business
operations from the former to the current employer;
(b) Whether the current employer uses the same or similar
facilities, machinery, equipment, and methods of production;
(c) Whether there has been a substantial continuity of employees;
(d) Whether there is a similarity of jobs and working conditions;
(e) Whether there is a similarity of supervisors or managers; and,
(f) Whether there is a similarity of products or services.
Sec. 1002.36 Can an employer be liable as a successor in interest if
it was unaware of my potential reemployment claim when it acquired the
business?
Yes. In order to be a successor in interest, it is not necessary
for an employer to have notice of a potential reemployment claim at the
time of merger, acquisition, or other form of succession.
Sec. 1002.37 Is it possible for me to be employed in one job by more
than one employer?
Yes. Under USERRA, an employer includes not only the person or
entity that pays your salary or wages, but also includes a person or
entity that has control over your employment opportunities, including a
person or entity to whom an employer has delegated the performance of
employment-related responsibilities. For example, if you are a security
guard hired by a security company and you are assigned to a work site,
you may report both to the security company and to the site owner. In
such an instance, both employers share responsibility for compliance
with USERRA. If the security company declines to assign you to a job
because of a uniformed service obligation (for example, your National
Guard duties), then the security company could be in violation of the
reemployment requirements and the anti-discrimination provisions of
USERRA. Similarly, if the employer at the work site causes your removal
from the job position because of your uniformed service obligations,
then the work site employer could be in violation of the reemployment
requirements and the anti-discrimination provisions of USERRA.
Sec. 1002.38 Can a hiring hall be my employer?
Yes. If you are a longshoreman, stagehand, construction worker, or
you work in certain other industries, you may frequently work for many
different employers. A hiring hall operated by a union or an employer
association typically assigns you to your jobs. In
[[Page 56289]]
these industries, it may not be unusual for you to work your entire
career in a series of short-term job assignments. The definition of
``employer'' includes a person, institution, organization, or other
entity to which the employer has delegated the performance of
employment-related responsibilities. A hiring hall therefore is
considered your employer if the hiring and job assignment functions
have been delegated by an employer to the hiring hall. As your
employer, a hiring hall has reemployment responsibilities to you.
USERRA's anti-discrimination and anti-retaliation provisions also apply
to the hiring hall.
Sec. 1002.39 Are States (and their political subdivisions), the
District of Columbia, the Commonwealth of Puerto Rico, and United
States territories, considered employers?
Yes. States and their political subdivisions, such as counties,
parishes, cities, towns, villages, and school districts, are considered
employers under USERRA. The District of Columbia, the Commonwealth of
Puerto Rico, Guam, the Virgin Islands, and territories of the United
States, are also considered employers under the Act.
Sec. 1002.40 Does USERRA protect against discrimination in initial
hiring decisions?
Yes. The Act's definition of employer includes a person,
institution, organization, or other entity that has denied you initial
employment in violation of USERRA's anti-discrimination provisions. An
employer need not actually employ you to be your ``employer'' under the
Act, if it has denied you initial employment on the basis of your
membership, application for membership, performance of service,
application for service, or obligation for service in the uniformed
services. Similarly, the employer would be liable if it denied you
initial employment on the basis of your action taken to enforce a
protection afforded to any person under USERRA, your testimony or
statement in connection with any USERRA proceeding, your assistance or
other participation in a USERRA investigation, or your exercise of any
other right provided by the Act. For example, if you have been denied
initial employment because of your obligations as a member of the
National Guard or Reserves, the company or entity denying you
employment is an employer for purposes of USERRA. Similarly, if an
entity withdraws an offer of employment to you because you are called
upon to fulfill an obligation in the uniformed services, the entity
withdrawing your offer of employment is an employer for purposes of
USERRA.
Sec. 1002.41 Can I have rights under USERRA even though I hold a
temporary, part-time, probationary, or seasonal employment position?
Your rights under USERRA are not diminished because you hold a
temporary, part-time, probationary, or seasonal employment position.
However, an employer is not required to reemploy you if the employment
you left to serve in the uniformed services was for a brief, non-
recurrent period and there is no reasonable expectation that your
employment would have continued indefinitely or for a significant
period. The employer bears the burden of proving this affirmative
defense.
Sec. 1002.42 What rights do I have under USERRA if I am on layoff, on
strike, or on a leave of absence?
(a) If you are laid off with recall rights, on strike, or on a
leave of absence, you are an employee for purposes of USERRA. If you
are on layoff and begin service in the uniformed services, or you are
laid off while performing service, you may be entitled to reemployment
on return if the employer would have recalled you to employment during
the period of service. Similar principles apply if you are on strike or
on a leave of absence from work when you begin a period of service in
the uniformed services.
(b) If you are sent a recall notice during your period of service
in the uniformed services and you cannot resume the position of
employment because of the service, you still remain an employee for
purposes of the Act. Therefore, if you are otherwise eligible, you are
entitled to reemployment following the conclusion of your period of
service even if you did not respond to the recall notice.
(c) If you are laid off before or during your service in the
uniformed services, and your employer would not have recalled you
during your period of service, you are not entitled to reemployment
following your period of service simply because you are a covered
employee. Your reemployment rights under USERRA cannot put you in a
better position than if you had remained in your civilian employment
position.
Sec. 1002.43 Can I have rights under USERRA even if I am an
executive, managerial, or professional employee?
Yes. USERRA applies to all employees. There is no exclusion for
executive, managerial, or professional employees.
Sec. 1002.44 Does USERRA cover me if I am an independent contractor?
(a) No. USERRA does not provide protections for you if you are an
independent contractor.
(b) In deciding whether you are an independent contractor, the
following factors need to be considered:
(1) The extent of the employer's right to control the manner in
which your work is to be performed;
(2) Your opportunity for profit or loss that depends upon your
managerial skill;
(3) Your investment in equipment or materials required for your
tasks, or your employment of helpers;
(4) Whether the service you render requires a special skill;
(5) The degree of permanence of your working relationship; and,
(6) Whether the service you render is an integral part of the
employer's business.
(c) No single one of these factors is controlling, but all are
relevant to the determination whether you are an employee or an
independent contractor.
Coverage of Service in the Uniformed Services
Sec. 1002.54 Are all military fitness examinations considered
``service in the uniformed services?''
Yes. USERRA's definition of ``service in the uniformed services''
includes a period for which you are absent from a position of
employment for the purpose of an examination to determine your fitness
to perform duty in the uniformed services. Military fitness
examinations can address more than physical or medical fitness, and
include evaluations for mental, educational, and other types of
fitness. Any examination to determine your fitness for service is
covered, whether it is an initial or recurring examination. For
example, a periodic medical examination required of a Reserve component
member to determine fitness for continued service is covered.
Sec. 1002.55 Is all funeral honors duty considered ``service in the
uniformed services?''
(a) USERRA's definition of ``service in the uniformed services''
includes a period for which you are absent from employment for the
purpose of performing authorized funeral honors duty under 10 U.S.C.
12503 (members of Reserve ordered to perform funeral honors duty) or 32
U.S.C. 115 (Member of Air or Army National Guard ordered to perform
funeral honors duty).
(b) Funeral honors duty performed by persons who are not members of
the uniformed services, such as members of
[[Page 56290]]
veterans' service organizations, is not ``service in the uniformed
services.''
Sec. 1002.56 I am participating in a training program to provide
emergency assistance in the event of a terrorist attack. Is that
considered ``service in the uniformed services?''
Under a provision of the Public Health Security and Bioterrorism
Preparedness and Response Act of 2002, 42 U.S.C. 300hh 11(e)(3),
``service in the uniformed services'' includes service you perform as
an intermittent disaster-response appointee upon activation of the
National Disaster Medical System or when you participate in an
authorized training program, even if you are not a member of the
uniformed services.
Sec. 1002.57 Is all of my service as a member of the National Guard
considered ``service in the uniformed services?''
The National Guard has a dual status. It is a Reserve component of
the Army, or, in the case of the Air National Guard, of the Air Force.
Simultaneously, it is a State military force subject to call-up by the
State Governor for duty not subject to Federal control, such as
emergency duty in cases of floods or riots. National Guard members may
perform service under either Federal or State authority, but only your
Federal National Guard service is covered by USERRA.
(a) Your National Guard service under Federal authority is
protected by USERRA. Service under Federal authority includes active
duty you perform under Title 10 of the United States Code. Service
under Federal authority also includes duty under Title 32 of the United
States Code, such as active duty for training, inactive duty training,
or full-time National Guard duty.
(b) Your National Guard service under authority of State law is not
protected by USERRA. However, many States have laws protecting the
civilian job rights of National Guard members who serve under State
orders. Enforcement of those State laws is not covered by USERRA or the
regulations in this part.
Sec. 1002.58 Is my service in the commissioned corps of the Public
Health Service considered ``service in the uniformed services?''
Yes. Your service in the commissioned corps of the Public Health
Service (PHS) is ``service in the uniformed services'' under USERRA.
Sec. 1002.59 Are there any circumstances in which special categories
of persons are considered to perform ``service in the uniformed
services?''
Yes. In time of war or national emergency the President has
authority to designate any category of persons as a ``uniformed
service'' for purposes of USERRA. If the President exercises this
authority, your service as a member of that category of persons would
be ``service in the uniformed services'' under USERRA.
Sec. 1002.60 If I am a cadet or midshipman attending a service
academy am I covered by USERRA?
Yes. Your service as a cadet or midshipman at a service academy is
considered uniformed service for purposes of USERRA. There are four
service academies: The United States Military Academy (West Point, New
York), the United States Naval Academy (Annapolis, Maryland), the
United States Air Force Academy (Colorado Springs, Colorado), and the
United States Coast Guard Academy (New London, Connecticut).
Sec. 1002.61 If I am a member of the Reserve Officers Training Corps
am I covered by USERRA?
No. Your membership in the Reserve Officers Training Corps (ROTC)
or the Junior ROTC is not ``service in the uniformed services.''
However, many Reserve and National Guard units use a college ROTC
program as a means of qualifying enlisted personnel for commissioned
officer status. In these cases, if you participate in ROTC training
sessions as a member of a Reserve or National Guard unit performing
active or inactive duty training, that training is considered ``service
in the uniformed services.''
Sec. 1002.62 If I am a member of the Commissioned Corps of the
National Oceanic and Atmospheric Administration, the Civil Air Patrol,
or the Coast Guard Auxiliary am I covered by USERRA?
No. Although the Commissioned Corps of the National Oceanic and
Atmospheric Administration (NOAA) is a ``uniformed service'' for some
purposes, it is not included in USERRA's definition of this term.
Service in the Civil Air Patrol and the Coast Guard Auxiliary similarly
is not considered ``service in the uniformed services'' for purposes of
USERRA. Consequently, service performed in the Commissioned Corps of
the National Oceanic and Atmospheric Administration (NOAA), the Civil
Air Patrol, and the Coast Guard Auxiliary is not protected by USERRA.
Absence From a Position of Employment Necessitated by Reason of Service
in the Uniformed Services
Sec. 1002.73 Does service in the uniformed services have to be my
sole reason for leaving my employment position in order to have USERRA
reemployment rights?
No. If your absence from a position of employment is necessitated
by your service in the uniformed services, and you otherwise meet the
Act's eligibility requirements, you have reemployment rights under
USERRA, even if you use your absence for other purposes as well. You
are not required to leave the employment position for the sole purpose
of performing service in the uniformed services. For example, if you
are required to report to an out of State location for military
training and spend your off-duty time during that assignment
moonlighting as a security guard or visiting relatives who live in that
State, you will not lose your reemployment rights simply because you
used some of the time you were required to be absent from your job to
do something other than attend the military training. Also, if you
receive advance notification of a mobilization order, and leave your
employment position in order to prepare for duty, but the mobilization
is cancelled, you will not lose your reemployment rights.
Sec. 1002.74 Am I required to begin service in the uniformed services
immediately after leaving my employment position in order to have
USERRA reemployment rights?
No. At a minimum, you must have enough time after leaving your
employment position to travel safely to the site where your service in
the uniformed services is to be performed, and arrive fit to perform
the service. Depending on the specific circumstances, additional time
to rest, or to arrange your affairs and report to duty may be
necessitated by reason of service in the uniformed services. The
following examples help to explain the issue of the period of time
between leaving civilian employment and the beginning of service in the
uniformed services:
(a) If you perform a full overnight shift for your civilian
employer and travel directly from the work site to perform a full day
of military service, you would not be considered fit to perform the
military service. An absence from that work shift is necessitated so
that you can report for military service fit for duty.
(b) If you are ordered to perform an extended period of service in
the uniformed services, you will require a reasonable period of time
off from your civilian job to put your personal affairs
[[Page 56291]]
in order, before beginning the service. Taking such time off is also
necessitated by the military service.
(c) If you leave a position of employment in order to enlist or
otherwise perform service in the uniformed services and, through no
fault of your own, the beginning date of the service is delayed, this
delay does not terminate your reemployment rights.
Requirement of Notice
Sec. 1002.85 Am I required to give advance notice to my employer of
my service in the uniformed services?
(a) Yes. You, or an appropriate officer of the uniformed service in
which your service is to be performed, must notify your employer that
you intend to leave your employment position to perform service in the
uniformed services, with certain exceptions described below.
(b) The Department of Defense USERRA regulations at 32 CFR 104.3
provide that an ``appropriate officer'' can give notice on your behalf.
An ``appropriate officer'' is a commissioned, warrant, or non-
commissioned officer authorized to give such notice by the military
service concerned.
(c) Your notice to your employer may be either verbal or written.
The notice may be informal and does not need to follow any particular
format. Although USERRA does not specify how far in advance your notice
must be given, you should provide the notice as far in advance as is
reasonable under the circumstances.
Sec. 1002.86 When am I excused from giving advance notice of my
service in the uniformed services?
You are required to give advance notice of pending service unless
giving such notice is prevented by military necessity, or is otherwise
impossible or unreasonable under all the circumstances.
(a) Only a designated military authority can make a determination
of ``military necessity,'' and such a determination is not subject to
judicial review. Guidelines for defining ``military necessity'' appear
in regulations issued by the Department of Defense at 32 CFR 104.3. In
general, these regulations cover situations where a mission, operation,
exercise or requirement is classified, or could be compromised or
otherwise adversely affected by public knowledge.
(b) It may be impossible or unreasonable for you to give advance
notice under certain circumstances. Such circumstances may include the
unavailability of your employer or the employer's representative, or a
requirement that you report for military service in an extremely short
period of time.
Sec. 1002.87 Am I required to get permission from my employer before
I leave to perform service in the uniformed services?
No. You are not required to ask for or get your employer's
permission to leave to perform service in the uniformed services. You
are only required to give your employer notice of pending service.
Sec. 1002.88 Am I required to tell my civilian employer that I intend
to seek reemployment after completing my military service before I
leave to perform service in the uniformed services?
No. When you leave your employment position to begin a period of
service you are not required to tell your civilian employer that you
intend to seek reemployment after completing your military service.
Even if you tell your employer that you do not intend to seek
reemployment after completing the military service, you do not forfeit
your right to reemployment. You are not required to decide in advance
of leaving your civilian employment position whether you will seek
reemployment after completing military service.
Period of Service
Sec. 1002.99 Is there a limit on the total amount of service in the
uniformed services that I may perform and still retain reemployment
rights with my employer?
Yes. In general, you may perform service in the uniformed services
for a cumulative period of up to five (5) years and retain reemployment
rights with your employer. The exceptions to this rule are described
below.
Sec. 1002.100 Does the five-year service limit include all absences
from my employment position that are related to my service in the
uniformed services?
No. The five-year period includes only the time you spend actually
performing service in the uniformed services. A period of absence from
employment before or after your performance of service in the uniformed
services does not count against the five-year limit. For example, after
you complete a period of service in the uniformed services, you are
provided a certain amount of time, depending upon your length of
service, to report back to work or submit an application for
reemployment. The period between the completion of the period of
service and the time you have to report back to work or seek
reemployment does not count against the five-year limit.
Sec. 1002.101 Does the five-year service limit include periods of
service that I performed when I worked for a previous employer?
No. You are entitled to a leave of absence for uniformed service
for up to five years with each employer for whom you work. When you
take a position with a new employer, the five-year period begins again
regardless of how much service you performed while you worked in any
previous employment relationship.
Sec. 1002.102 Does the five-year service limit include periods of
service that I performed before USERRA was enacted?
Yes. USERRA provides reemployment rights to which you may become
entitled beginning on or after December 12, 1994, but any uniformed
service that you performed before December 12, 1994, that was counted
against the service limitations of the previous law (the Veterans
Reemployment Rights Act), also counts against USERRA's five-year limit.
Sec. 1002.103 Are there any types of service in the uniformed
services that I can perform that do not count against USERRA's five-
year service limit?
(a) USERRA creates the following exceptions to the five-year limit
on service in the uniformed services:
(1) Service that is required beyond five years to complete your
initial period of obligated service. Some military specialties require
you to serve more than five years because of the amount of time or
expense involved in training. If you work in one of those specialties
you have reemployment rights when your initial period of obligated
service is completed;
(2) If you were unable to obtain orders releasing you from service
in the uniformed services before the expiration of the five-year
period, and the inability was not your fault;
(3)(i) Service that you performed to fulfill periodic National
Guard and Reserve training requirements as prescribed by 10 U.S.C.
10147 and 32 U.S.C. 502(a) and 503; and,
(ii) Service that you performed to fulfill additional training
requirements determined and certified by a proper military authority as
necessary for your professional development, or to complete your skill
training or retraining;
(4) Service that you performed in a uniformed service if you were
ordered to or retained on active duty under:
(i) 10 U.S.C. 688 (involuntary active duty by a military retiree);
(ii) 10 U.S.C. 12301(a) (involuntary active duty in wartime);
(iii) 10 U.S.C. 12301(g) (retention on active duty while in captive
status);
[[Page 56292]]
(iv) 10 U.S.C. 12302 (involuntary active duty during a national
emergency for up to 24 months);
(v) 10 U.S.C. 12304 (involuntary active duty for an operational
mission for up to 270 days);
(vi) 10 U.S.C. 12305 (involuntary retention on active duty of a
critical person during time of crisis or other specific conditions);
(vii) 14 U.S.C. 331 (involuntary active duty by retired Coast Guard
officer);
(viii) 14 U.S.C. 332 (voluntary active duty by retired Coast Guard
officer);
(ix) 14 U.S.C. 359 (involuntary active duty by retired Coast Guard
enlisted member);
(x) 14 U.S.C. 360 (voluntary active duty by retired Coast Guard
enlisted member);
(xi) 14 U.S.C. 367 (involuntary retention of Coast Guard enlisted
member on active duty); and
(xii) 14 U.S.C. 712 (involuntary active duty by Coast Guard Reserve
member for natural or man-made disasters).
(5) Service that you performed in a uniformed service if you were
ordered to or retained on active duty (other than for training) under
any provision of law because of a war or national emergency declared by
the President or the Congress, as determined by a proper military
authority;
(6) Service that you performed in a uniformed service if you were
ordered to active duty (other than for training) in support of an
operational mission for which personnel have been ordered to active
duty under 10 U.S.C. 12304, as determined by a proper military
authority;
(7) Service that you performed in a uniformed service if you were
ordered to active duty in support of a critical mission or requirement
of the uniformed services as determined by a proper military authority;
and,
(8) Service that you performed as a member of the National Guard if
you were called to respond to an invasion, danger of invasion,
rebellion, danger of rebellion, insurrection, or the inability of the
President with regular forces to execute the laws of the United States.
(b) Service that you performed to mitigate economic harm where your
employer is in violation of its employment or reemployment obligations
to you.
Sec. 1002.104 Am I required to accommodate my employer's needs as to
the timing, frequency or duration of my service?
No. You are not required to accommodate your employer's interests
or concerns regarding the timing, frequency, or duration of your
uniformed service. Your employer cannot refuse to reemploy you because
it believes that the timing, frequency or duration of your service is
unreasonable. However, your employer is permitted to bring its concerns
over the timing, frequency, or duration of your service to the
attention of the appropriate military authority. Regulations issued by
the Department of Defense at 32 CFR 104.4 direct military authorities
to provide assistance to your employer in addressing these types of
employment issues. The military authorities are required to consider
requests from employers of National Guard and Reserve members to adjust
your scheduled absence from civilian employment to perform service.
Application for Reemployment
Sec. 1002.115 Am I required to report to or submit a timely
application for reemployment to my pre-service employer when I complete
my period of service in the uniformed services?
Yes. When you complete your service in the uniformed services, you
must notify your pre-service employer of your intent to return to your
employment position by either reporting to work or submitting a timely
application for reemployment. Whether you are required to report to
work or submit a timely application for reemployment depends upon the
length of your service, as follows:
(a) Period of service less than 31 days or for a period of any
length for the purpose of a fitness examination. If your period of
service in the uniformed services was less than 31 days, or you were
absent from a position of employment for a period of any length for the
purpose of an examination to determine your fitness to perform service,
you must report back to your employer not later than the beginning of
the first full regularly-scheduled work period on the first full
calendar day following the completion of the period of service, and the
expiration of eight hours after a period allowing for your safe
transportation from the place of that service to your residence. For
example, if you complete a period of service and travel home, arriving
at ten o'clock in the evening, you cannot be required to report to your
employer until the beginning of the next full regularly-scheduled work
period that begins at least eight hours after you safely arrive home,
i.e., no earlier than six o'clock the next morning. If it is impossible
or unreasonable for you to report within the above time period through
no fault of your own, you must report to your employer as soon as
possible after the expiration of the eight-hour period.
(b) Period of service more than 30 days but less than 181 days. If
your period of service in the uniformed services was for more than 30
days but less than 181 days you must submit an application for
reemployment (written or verbal) with your employer not later than 14
days after the completion of your service. If it is impossible or
unreasonable for you to apply within 14 days through no fault of your
own, you must submit the application not later than the next full
calendar day after it becomes possible to do so.
(c) Period of service more than 180 days. If your period of service
in the uniformed services was for more than 180 days you must submit an
application for reemployment (written or verbal) with your employer not
later than 90 days after the completion of your service.
Sec. 1002.116 Is my time period for reporting back to my employer
extended if I am hospitalized for, or convalescing from, an illness or
injury incurred in, or aggravated during, the performance of service?
Yes. If you are hospitalized for, or convalescing from, an illness
or injury incurred in, or aggravated during, your performance of
service, you must report to or submit an application for reemployment
to your employer at the end of the period necessary for you to recover
from the illness or injury. This period may not exceed two years from
the date of the completion of your service, except that it must be
extended by the minimum time necessary to accommodate circumstances
beyond your control that make reporting within the period impossible or
unreasonable.
Sec. 1002.117 Are there any consequences if I fail to report for or
submit a timely application for reemployment?
(a) If you fail to timely report for or apply for reemployment you
do not automatically forfeit your entitlement to USERRA's reemployment
and other rights and benefits. Rather, you become subject to the
conduct rules, established policy, and general practices of your
employer pertaining to your absence from scheduled work.
(b) If reporting or submitting an employment application to your
employer is impossible or unreasonable through no fault of your own,
you may report to your employer as soon as possible (in the case of a
period of service less than 31 days) or submit an application for
reemployment to your employer by the next full calendar day after it
becomes possible to do so (in the case of a period of service from 31
to 180 days), and you will be considered to have timely reported or
applied for reemployment.
[[Page 56293]]
Sec. 1002.118 Is my application for reemployment required to be in
any particular form?
Your application for reemployment need not follow any particular
format. You may apply orally or in writing. Your application should
indicate that you are a former employee returning from service in the
uniformed services and that you seek reemployment with your pre-service
employer. You are permitted but not required to identify a particular
reemployment position in which you are interested.
Sec. 1002.119 To whom must I submit my application for reemployment?
Your application must be submitted to your pre-service employer or
to an agent or representative of your employer who has apparent
responsibility for receiving employment applications. Depending upon
the circumstances, such a person could be a personnel or human
resources officer, or a first-line supervisor. If there has been a
change in ownership of your employer, your application should be
submitted to the employer's successor-in-interest.
Sec. 1002.120 If I seek or obtain employment with an employer other
than my pre-service employer before the end of the period within which
my reemployment application must be filed, will that jeopardize my
reemployment rights with my pre-service employer?
No, you have reemployment rights with your pre-service employer
provided that you make a timely reemployment application to that
employer. You may seek or obtain employment with an employer other than
your pre-service employer during the period of time within which your
reemployment application must be made, without giving up your
reemployment rights with your pre-service employer.
Sec. 1002.121 Am I required to submit documentation to my employer in
connection with my application for reemployment?
Yes, if the period of service exceeded 30 days. If you submit an
application for reemployment after a period of service of more than 30
days you must, upon the request of your employer, provide documentation
to establish that:
(a) Your reemployment application is timely;
(b) You have not exceeded the five-year limit on the duration of
service (subject to the exceptions listed at Sec. 1002.103); and,
(c) Your separation or dismissal from service was not
disqualifying.
Sec. 1002.122 Is my employer required to reemploy me if documentation
establishing my eligibility does not exist or is not readily available?
Yes. Your employer is not permitted to delay or deny your
reemployment by demanding documentation that does not exist or is not
readily available. You are not liable for administrative delays in the
issuance of military documentation. If you are reemployed after an
absence from employment for more than 90 days your employer may require
that you submit the documentation establishing your entitlement to
reemployment before treating you as not having had a break in service
for pension purposes. If your documentation is received after
reemployment and it shows that you are not entitled to reemployment,
your employer may terminate your employment and any rights or benefits
that you may have been granted.
Sec. 1002.123 What documents satisfy the requirement that I establish
my eligibility for reemployment after a period of service of more than
thirty days?
(a) Documents that satisfy the requirements of USERRA include the
following:
(1) DD (Department of Defense) 214 Certificate of Release or
Discharge from Active Duty;
(2) Copy of duty orders prepared by the facility where the orders
were fulfilled carrying an endorsement indicating completion of the
described service;
(3) Letter from the commanding officer of a Personnel Support
Activity or someone of comparable authority;
(4) Certificate of completion from military training school;
(5) Discharge certificate showing character of service; and,
(6) Copy of extracts from payroll documents showing periods of
service.
(b) The types of documents that are necessary to establish your
eligibility or reemployment will vary from case to case. Not all of
these documents are available or necessary in every instance to
establish your reemployment eligibility.
Character of Service
Sec. 1002.134 What type of discharge or separation from service is
required for me to be entitled to reemployment under USERRA?
USERRA does not require any particular form of discharge or
separation from service. However, even if you are otherwise eligible
for reemployment you will be disqualified if your characterization of
service falls within one of four categories. USERRA requires that you
not have received one of these types of discharge.
Sec. 1002.135 What types of discharge or separation from military
service will make me ineligible for reemployment under USERRA?
Your reemployment rights are terminated if you are:
(a) Separated from uniformed service with a dishonorable or bad
conduct discharge;
(b) Separated from uniformed service under other than honorable
conditions, as characterized by regulations of the uniformed service;
(c) A commissioned officer dismissed as permitted under 10 U.S.C.
1161(a) by sentence of a general court-martial; in commutation of a
sentence of a general court-martial; or, in time of war, by order of
the President; or,
(d) A commissioned officer dropped from the rolls under 10 U.S.C.
1161(b) due to absence without authority for at least three months;
separation by reason of a sentence to confinement adjudged by a court-
martial; or, a sentence to confinement in a Federal or State
penitentiary or correctional institution.
Sec. 1002.136 Who determines the characterization of my service?
The branch of service in which you perform your tour of duty
determines your characterization of service.
Sec. 1002.137 If I receive a disqualifying discharge or release from
uniformed service and it is later upgraded, will my right to
reemployment be restored?
Yes. A military review board has the authority to prospectively or
retroactively upgrade your disqualifying discharge or release. A
retroactive upgrade would restore your reemployment rights providing
you otherwise meet the Act's eligibility criteria.
Sec. 1002.138 If I receive a retroactive upgrade in my
characterization of service will that entitle me to claim back wages
and benefits lost as of my date of separation from service?
No. A retroactive upgrade allows you to obtain reinstatement with
your former employer, provided you otherwise meet the Act's eligibility
criteria. Back pay and other benefits such as pension plan credits
attributable to the time period between your discharge and the
retroactive upgrade are not required to be restored by your employer in
this situation.
[[Page 56294]]
Employer Statutory Defenses
Sec. 1002.139 Are there any circumstances in which my pre-service
employer is excused from its obligation to reemploy me following a
period of military service? What statutory defenses are available to
the employer in an action or proceeding for reemployment benefits?
(a) Even if you are otherwise eligible for reemployment benefits,
your employer is not required to reemploy you if it establishes that
its circumstances have so changed as to make your reemployment
impossible or unreasonable. For example, an employer may be excused
from reemploying you where there has been an intervening reduction in
force that would have included you. Your employer may not, however,
refuse to reemploy you on the basis that an employee was hired to fill
your position during your absence, even if your reemployment might
require the termination of that replacement employee;
(b) Even if you are otherwise eligible for reemployment benefits,
your employer is not required to reemploy you if it establishes that
assisting you in becoming qualified for reemployment would impose an
undue hardship, as defined in Sec. 1002.5(l) and discussed in Sec.
1002.198, on the employer; or,
(c) Even if you are otherwise eligible for reemployment benefits,
your employer is not required to reemploy you if it establishes that
the employment you left in order to perform service in the uniformed
services was for a brief, non-recurrent period and there was no
reasonable expectation that the employment would continue indefinitely
or for a significant period.
Subpart D--Rights, Benefits, and Obligations of Persons Absent From
Employment Due to Service in the Uniformed Services
Furlough and Leave of Absence
Sec. 1002.149 What is my status with my civilian employer when I am
performing service in the uniformed services?
During your period of service in the uniformed services, you are
deemed to be on furlough or leave of absence from your civilian
employer. In this status you are entitled to the non-seniority rights
and benefits generally provided by the employer to other employees with
similar seniority, status, and pay that are on furlough or leave of
absence. Your entitlement to these non-seniority rights and benefits is
not dependent on how your employer characterizes your status during a
period of service. For example, if your employer characterizes you as
``terminated'' during your period of military service, this
characterization cannot be used to avoid USERRA's requirement that you
be deemed on furlough or leave of absence, and therefore entitled to
the non-seniority rights and benefits generally provided to employees
on furlough or leave of absence.
Sec. 1002.150 What non-seniority rights and benefits am I entitled to
during my period of service?
(a) The non-seniority rights and benefits to which you are entitled
during your service are those that your employer provides to similarly
situated employees by an employment contract, agreement, policy,
practice, or plan in effect at your workplace. These rights and
benefits include those in effect at the beginning of your employment
and those established after your employment began. They also include
those rights and benefits that become effective during your period of
service and that are provided to similarly situated employees on
furlough or leave of absence.
(b) If the non-seniority benefits to which employees on furlough or
leave of absence are entitled vary according to the type of leave, you
must be given the most favorable treatment accorded to any comparable
form of leave when you perform service in the uniformed services.
Sec. 1002.151 If my employer provides full or partial pay to me while
I am on military leave is it required to also provide me with the non-
seniority rights and benefits ordinarily granted to similarly situated
employees on furlough or leave of absence?
Yes. If your employer provides additional benefits such as full or
partial pay when you perform service it is not excused from providing
other rights and benefits to which you are entitled under the Act.
Sec. 1002.152 If my employment is interrupted by a period of service
in the uniformed services, are there any circumstances under which I am
not entitled to the non-seniority rights and benefits ordinarily
granted to similarly situated employees on furlough or leave of
absence?
If your employment is interrupted by a period of service in the
uniformed services and you knowingly provide written notice of intent
not to return to your position of employment after service in the
uniformed services you are not entitled to those non-seniority rights
and benefits. Your written notice does not waive your entitlement to
any other rights to which you are entitled under the Act, including
your right to reemployment after your service.
Sec. 1002.153 If my employment is interrupted by a period of service
in the uniformed services am I permitted upon request to use my accrued
vacation, annual or similar leave with pay during the service? Can my
employer require me to use my accrued leave during my period of
service?
(a) If your employment is interrupted by a period of service you
must be permitted upon request to use any accrued vacation, annual, or
similar leave with pay during the period of service, in order to
continue your civilian pay. However, you are not entitled to use sick
leave that you accrued with your civilian employer during a period of
service in the uniformed services. Sick leave is not comparable to
annual or vacation leave; it is generally intended to provide income
when you or a family member is ill and you are unable to work.
(b) Your employer may not require you to use accrued vacation,
annual, or similar leave during a period of service in the uniformed
services.
Health Plan Coverage
Sec. 1002.163 What types of health plans are covered by USERRA?
(a) USERRA defines a health plan to include an insurance policy or
contract, medical or hospital service agreement, membership or
subscription contract, or arrangement under which your health services
are provided or the expenses of those services are paid.
(b) USERRA covers group health plans as defined in the Employee
Retirement Income Security Act of 1974 (ERISA) at 29 U.S.C. 1191b(a).
USERRA applies to group health plans that are subject to ERISA, and
plans that are not subject to ERISA, such as those sponsored by State
or local governments or religious organizations for their employees.
(c) USERRA covers multiemployer plans maintained pursuant to one or
more collective bargaining agreements between employers and employee
organizations. USERRA applies to multiemployer plans as they are
defined in ERISA at 29 U.S.C. 1002(37). USERRA contains provisions that
apply specifically to multiemployer plans in certain situations.
Sec. 1002.164 What health plan coverage must my employer provide to
me under USERRA?
If you have coverage under a health plan in connection with your
employment, the plan must permit you to elect to continue the coverage
for a certain period of time as described below:
(a) When you are performing service in the uniformed services you
are
[[Page 56295]]
entitled to continuing coverage for you (and your dependents if your
plan offers dependent coverage) under a health plan provided in
connection with your employment. The plan must allow you to elect to
continue your coverage for a period of time that is the lesser of:
(1) The 18-month period beginning on the date on which your absence
for the purpose of performing service begins; or,
(2) The period beginning on the date on which your absence for the
purpose of performing service begins, and ending on the date on which
you fail to return from your service or apply for a position of
employment as provided under Sec. Sec. 1002.115 through 1002.123.
(b) USERRA does not require your employer to establish a health
plan if there is no health plan coverage in connection with your
employment, or, where there is a plan, to provide any particular type
of coverage.
(c) USERRA does not require your employer to permit you to initiate
new health plan coverage at the beginning of a period of service if you
did not previously have such coverage.
Sec. 1002.165 How do I elect continuing health plan coverage?
USERRA does not specify requirements for electing continuing
coverage. Health plan administrators may develop reasonable
requirements addressing how continuing coverage may be elected,
consistent with the terms of the plan and the Act's exceptions to the
requirement that you give advance notice of your service in the
uniformed services. For example, you cannot be precluded from electing
continuing health plan coverage under circumstances where it is
impossible or unreasonable for you to make a timely election of
coverage.
Sec. 1002.166 How much do I have to pay in order to continue my
health plan coverage?
(a) If you perform service in the military for fewer than 31 days,
you cannot be required to pay more than the regular employee share, if
any, for health plan coverage.
(b) If you perform service for 31 or more days you may be required
to pay no more than 102% of the full premium under the plan, which
represents your employer's share plus your share, plus 2% for
administrative costs.
(c) USERRA does not specify requirements for methods of paying for
continuing coverage. Health plan administrators may develop reasonable
procedures for payment, consistent with the terms of the plan.
Sec. 1002.167 If my coverage was terminated at the beginning of or
during my service, does my coverage have to be reinstated upon my
reemployment?
(a) If health plan coverage for you or a dependent was terminated
by reason of your service in the uniformed services, that coverage must
be reinstated upon reemployment. An exclusion or waiting period may not
be imposed in connection with the reinstatement of your coverage upon
reemployment, if an exclusion or waiting period would not have been
imposed had your coverage not been terminated by reason of such
service.
(b) Reinstatement procedures that apply to multiemployer plans are
discussed in Sec. 1002.169.
(c) USERRA permits a health plan to impose an exclusion or waiting
period as to illnesses or injuries determined by the Secretary of
Veterans Affairs to have been incurred in, or aggravated during,
performance of service in the uniformed services. The determination
that your illness or injury was incurred in, or aggravated during, the
performance of service may only be made by the Secretary of Veterans
Affairs or his or her representative. Other coverage, for injuries or
illnesses that are not service-related (or for your dependents, if you
have dependent coverage), must be reinstated.
Sec. 1002.168 Can I elect to delay reinstatement of my health plan
coverage until a date after the date I am reemployed?
USERRA requires your employer to reinstate your health plan
coverage upon request at reemployment. USERRA permits but does not
require your employer to allow you to delay reinstatement of health
plan coverage until a date that is later than the date of your
reemployment.
Sec. 1002.169 Which employer is responsible for providing me with
continuing health plan coverage if I am enrolled under a multiemployer
plan?
Responsibility under a multiemployer plan for employer
contributions and benefits in connection with continuing coverage that
you elect must be allocated either as the plan sponsor provides, or, if
the sponsor does not provide, to your last employer before your
service. If your last employer is no longer functional, liability for
continuing coverage is allocated to the health plan.
Subpart E--Reemployment Rights and Benefits
Prompt Reemployment
Sec. 1002.180 When am I entitled to be reemployed by my civilian
employer?
Your employer must promptly reemploy you when you return from a
period of service if you meet the Act's eligibility criteria as
described in subpart C of this part.
Sec. 1002.181 How is ``prompt reemployment'' defined?
``Prompt reemployment'' means as soon as practicable under the
circumstances of your case. Absent unusual circumstances, your
reemployment must occur within two weeks of your application for
reemployment. For example, prompt reinstatement after your weekend
National Guard duty generally means the next regularly scheduled
working day. On the other hand, prompt reinstatement following several
years of active duty may require more time, because your employer may
have to reassign or give notice to another employee who occupied your
position.
Reemployment Position
Sec. 1002.191 What position am I entitled to upon my reemployment?
As a general rule, you are entitled to reemployment in the job
position that you would have attained with reasonable certainty if not
for your absence due to military service. This position is known as the
escalator position. The principle behind the escalator position is that
if not for your period of military service, you could have been
promoted (or, alternatively, demoted, transferred, or laid off) due to
intervening events. The escalator principle requires that you be
reemployed in a position that reflects with reasonable certainty the
pay, benefits, seniority, and other job perquisites, that you would
have attained if not for the period of service. Depending upon the
specific circumstances, your employer may have the option, or be
required, to reemploy you in a position other than the escalator
position.
Sec. 1002.192 How is my specific reemployment position determined?
In all cases, the starting point for determining your proper
reemployment position is the escalator position, which is the job
position that you would have attained if your continuous employment had
not been interrupted due to military service. Once this position is
determined, your employer may have to consider several factors before
[[Page 56296]]
determining your appropriate reemployment position in any particular
case. Such factors may include your length of service, qualifications,
and disability, if any. Your reemployment position may be either the
escalator position; the pre-service position; a position comparable to
the escalator or pre-service position; or, the nearest approximation to
one of these positions.
Sec. 1002.193 Does my reemployment position include elements such as
my seniority, status, and rate of pay?
Yes. Your reemployment position includes the seniority, status, and
rate of pay that you would ordinarily have attained in that position
given your job history, including your prospects for future earnings
and advancement. Your employer must determine your seniority rights,
status, and rate of pay as though you had been continuously employed
during the period of service. The seniority rights, status, and pay of
an employment position include those established (or changed) by a
collective bargaining agreement, employer policy, or employment
practice. The sources of seniority rights, status, and pay include
agreements, policies, and practices in effect at the beginning of your
service, and any changes that may have occurred during your period of
service. In particular, your status in the reemployment position could
include opportunities for advancement, general working conditions, job
location, shift assignment, rank, responsibility, and geographical
location. If an opportunity for promotion, or eligibility for
promotion, that you missed during service is based on a skills test or
examination, then your employer should give you a reasonable amount of
time to adjust to your employment position and then give you the skills
test or examination. If you are successful on the makeup exam and,
based on the results of that exam, there is a reasonable certainty that
you would have been promoted, or made eligible for promotion, during
the time that you served in the military, then your promotion or
eligibility for promotion must be made effective as of the date it
would have occurred had your employment not been interrupted by
military service.
Sec. 1002.194 Can the application of the escalator principle result
in adverse consequences when I am reemployed?
Yes. The Act does not prohibit lawful adverse job consequences that
result from your restoration on the seniority ladder. Depending on your
circumstances, your seniority rank may cause you to be reemployed in a
higher or lower position, laid off, or even terminated. For example, if
your seniority would have resulted in your being laid off during the
period of service, and the layoff continued after the date of your
reemployment, your reemployment would reinstate you to layoff status.
Similarly, the status of your reemployment position requires the
employer to assess what would have happened to such factors as your
opportunities for advancement, working conditions, job location, shift
assignment, rank, responsibility, and geographical location, if you had
remained continuously employed. Your reemployment position may involve
transfer to another shift or location, more or less strenuous working
conditions, or changed opportunities for advancement, depending upon
the application of the escalator principle.
Sec. 1002.195 What other factors can determine my reemployment
position?
Once your escalator position is determined, other factors may
allow, or require, your employer to reemploy you in a position other
than the escalator position. These factors, which are explained in
Sec. Sec. 1002.196 through 1002.199 below, are:
(a) The length of your most recent period of military service;
(b) Your qualifications; and,
(c) Whether you have a disability incurred or aggravated during
your military service.
Sec. 1002.196 What is my reemployment position if my period of
service was less than 91 days?
Following a period of service in the uniformed services of less
than 91 days, you must be reemployed according to the following
priority:
(a) You must be reemployed in the escalator position. You must be
qualified to perform the duties of this position. Your employer must
make reasonable efforts to help you become qualified to perform the
duties of this position.
(b) If you are not qualified to perform the duties of the escalator
position after reasonable efforts by your employer, you must be
reemployed in the position in which you were employed on the date that
your period of service began. You must be qualified to perform the
duties of this position. Your employer must make reasonable efforts to
help you become qualified to perform the duties of this position.
(c) If you are not qualified to perform the duties of the escalator
position or the pre-service position, after reasonable efforts by your
employer, you must be reemployed in any other position that is the
nearest approximation first to the escalator position and then to the
pre-service position. You must be qualified to perform the duties of
this position. The employer must make reasonable efforts to help you
become qualified to perform the duties of this position.
Sec. 1002.197 What is my reemployment position if my period of
service in the uniformed services was more than 90 days?
Following a period of service of more than 90 days, you must be
reemployed according to the following priority:
(a) You must be reemployed in the escalator position or a position
of like seniority, status, and pay. You must be qualified to perform
the duties of this position. Your employer must make reasonable efforts
to help you become qualified to perform the duties of this position.
(b) If you are not qualified to perform the duties of the escalator
position or a like position after reasonable efforts by your employer,
you must be reemployed in the position in which you were employed on
the date that your period of service began or in a position of like
seniority, status, and pay. You must be qualified to perform the duties
of this position. Your employer must make reasonable efforts to help
you become qualified to perform the duties of this position.
(c) If you are not qualified to perform the duties of the escalator
position, the pre-service position, or a like position, after
reasonable efforts by your employer, you must be reemployed in any
other position that is the nearest approximation first to the escalator
position and then to the pre-service position. You must be qualified to
perform the duties of this position. Your employer must make reasonable
efforts to help you become qualified to perform the duties of this
position.
Sec. 1002.198 What efforts must my employer make to help me become
qualified for the reemployment position?
You must be qualified for your reemployment position. Your employer
must make reasonable efforts to help you become qualified to perform
the duties of this position. Your employer is not required to reemploy
you on your return from service if you cannot, after reasonable efforts
by your employer, qualify for the appropriate reemployment position.
(a) (1) ``Qualified'' means that you have the ability to perform
the essential tasks of the position. Your inability to perform one or
more non-essential tasks of a position does not make you unqualified.
(2) Whether a task is essential depends on several factors,
including:
[[Page 56297]]
(i) Whether you regularly perform the task in the job position. It
is not necessary or sufficient that the task is labeled ``essential,''
or is part of your job description. If you do not regularly perform the
task in your position, it is generally not essential;
(ii) Whether your position exists solely to perform the task;
(iii) Whether a significant portion of your workday or workweek is
spent performing the task;
(iv) Whether the result of your failing to correctly perform the
task would create a dangerous workplace situation or cause a
catastrophe;
(v) Whether the task is highly specialized, and you were hired
specifically to perform the task; and,
(vi) Whether your failure to perform the task would place your
employer in violation of a law or regulation.
(b) Only after your employer makes reasonable efforts, as defined
in Sec. 1002.5(g) and Sec. 1002.5(l), may it determine that you are
not qualified for the reemployment position. These reasonable efforts
must be made at no cost to you.
Sec. 1002.199 What priority must my employer follow if two or more
returning employees are entitled to reemployment in the same position?
If two or more persons are entitled to reemployment in the same
position and more than one person has reported or applied for
employment in that position, the employee who first left the position
for military service has the first priority on reemployment in that
position. The remaining employee (or employees) is entitled to be
reemployed in a position similar to that in which the person would have
been reemployed according to the rules that normally determine a
person's reemployment position, as set out in Sec. Sec. 1002.196 and
1002.197.
Seniority Rights and Benefits
Sec. 1002.210 What seniority rights do I have when I am reemployed
following a period of uniformed service?
You are entitled to the seniority and seniority-based rights and
benefits that you had on the date your service began, plus any
seniority and seniority-based rights and benefits that you would have
attained if you had remained continuously employed during your period
of service. In determining your entitlement to seniority and seniority-
based rights and benefits, your period of uniformed service is not
considered a break in employment. The rights and benefits protected by
USERRA upon reemployment include those provided by the employer and
those required by statute. For example, a reemployed service member
would be eligible for leave under the Family and Medical Leave Act of
1993, 29 U.S.C. 2601-2654 (FMLA), if the number of months and the
number of hours of work for which the service member was employed by
the civilian employer, together with the number of months and the
number of hours of work for which the service member would have been
employed by the civilian employer during the period of military
service, meet FMLA's eligibility requirements.
Sec. 1002.211 Does USERRA require my employer to use a seniority
system?
No. USERRA does not require your employer to adopt a formal
seniority system. USERRA defines seniority as longevity in employment
together with any employment benefits that accrue with, or are
determined by, longevity in employment. In the absence of a formal
seniority system, such as one established through collective
bargaining, USERRA looks to the custom and practice in your place of
employment to determine your entitlement to any employment benefits
that accrue with, or are determined by, longevity in employment.
Sec. 1002.212 How do I know whether a particular right or benefit is
a seniority-based right or benefit?
A seniority-based right or benefit is one that accrues with, or is
determined by, longevity in employment. Generally, whether a right or
benefit is seniority-based depends on three factors:
(a) Whether the right or benefit is a reward for your length of
service rather than a form of short-term compensation for work
performed;
(b) Whether it is reasonably certain that you would have received
the right or benefit if you had remained continuously employed during
your period of service; and,
(c) Whether it is your employer's actual custom or practice to
provide or withhold the right or benefit as a reward for your length of
service. Provisions of an employment contract or policies in your
employee handbook are not controlling if your employer's actual custom
or practice is different from what is written in the contract or
handbook.
Sec. 1002.213 How can I demonstrate a reasonable certainty that I
would have received the seniority right or benefit if I had remained
continuously employed during my period of service?
A reasonable certainty is a high probability that you would have
received the seniority or seniority-based right or benefit if you had
been continuously employed. You do not have to establish that you would
have received the benefit as an absolute certainty. You can demonstrate
a reasonable certainty that you would have received the seniority right
or benefit by showing that other employees with seniority similar to
that which you would have had if you had remained continuously employed
received the right or benefit. Your employer cannot withhold the right
or benefit based on an assumption that a series of unlikely events
could have prevented you from gaining the right or benefit.
Sec. 1002.214 What happens if my employer establishes or eliminates
seniority and seniority-based rights and benefits after I begin my
period of service?
(a) When you are reemployed, you are entitled to seniority and
seniority-based rights and benefits that are established or become
available after you entered service, even if those rights and benefits
were not previously available. Those seniority-based rights and
benefits must be made available upon your reemployment if you otherwise
qualify for the right or benefit.
(b) If your employer eliminates seniority or a seniority-based
right or benefit after you begin your period of service, you are
entitled to be treated as if you had been continuously employed. For
example, if an employer that previously made an assignment available
based on seniority determines while you are absent to make the
assignment available only to employees who had previously held certain
other assignments or completed certain training, you may be entitled to
the assignment if you can show with reasonable certainty that you would
have acquired the necessary experience or training had you been
continuously employed. In this situation, the employer is obligated to
make reasonable efforts to help you become qualified for the position.
Disabled Employees
Sec. 1002.225 Am I entitled to any specific reemployment benefits if
I have a disability that was incurred in, or aggravated during, my
period of service?
Yes. If you have a disability incurred in, or aggravated during,
your period of service in the uniformed services, your employer must
make reasonable efforts to accommodate your disability and to help you
become qualified to perform the duties of your reemployment position.
If you are not qualified for reemployment in the escalator position
because of your disability after reasonable efforts by the employer to
accommodate your disability and to
[[Page 56298]]
help you to become qualified, you must be reemployed in a position
according to the following priority. Your employer must make reasonable
efforts to accommodate your disability and to help you to become
qualified to perform the duties of one of these positions:
(a) A position that is equivalent in seniority, status, and pay to
the escalator position; or,
(b) A position that is the nearest approximation to the equivalent
position, consistent with the circumstances of your case, in terms of
seniority, status, and pay.
Sec. 1002.226 If I have a disability that was incurred in, or
aggravated during, my period of service, what efforts must my employer
make to help me become qualified for my reemployment position?
(a) USERRA requires that you be qualified for your reemployment
position regardless of your disability. Your employer must make
reasonable efforts to help you to become qualified to perform the
duties of this position. Your employer is not required to reemploy you
on your return from service if you cannot, after reasonable efforts by
your employer, qualify for the appropriate reemployment position.
(b) ``Qualified'' has the same meaning here as in Sec. 1002.198.
Rate of Pay
Sec. 1002.236 How is my rate of pay determined when I return from a
period of service?
Your rate of pay is determined by applying the same escalator
principles that are used to determine your reemployment position, as
follows:
(a) If you are reemployed in the escalator position, your employer
must compensate you at the rate of pay associated with the escalator
position. Your rate of pay must be determined by taking into account
any pay increases, differentials, step increases, merit increases, or
periodic increases that you would have attained with reasonable
certainty had you remained continuously employed during your period of
service. For example, if you missed a merit pay increase while you were
performing service, but you qualified for previous merit pay increases,
then your rate of pay should include the merit pay increase that you
missed. If the merit pay increase that you missed during service is
based on a skills test or examination, then your employer should give
you a reasonable amount of time to adjust to your reemployment position
and then give you the skills test or examination. The escalator
principle also applies in the event a pay reduction occurred in the
reemployment position during your period of service. Any pay adjustment
must be made effective as of the date it would have occurred had your
employment not been interrupted by military service.
(b) If you are reemployed in the pre-service position or another
position, your employer must compensate you at the rate of pay
associated with the position in which you are reemployed. As with the
escalator position, your rate of pay must be determined by taking into
account any pay increases, differentials, step increases, merit
increases, or periodic increases that you would have attained with
reasonable certainty had you remained continuously employed during your
period of service.
Protection Against Discharge
Sec. 1002.247 Does USERRA provide me with protection against
discharge?
Yes. If your most recent period of service in the uniformed
services was more than 30 days you must not be discharged except for
cause--
(a) For 180 days after your date of reemployment if your most
recent period of uniformed service was more than 30 days but less than
181 days; or,
(b) For one year after the date of reemployment if your most recent
period of uniformed service was more than 180 days.
Sec. 1002.248 What constitutes cause for discharge under USERRA?
You may be discharged for cause based either on your conduct or, in
some circumstances, on the application of the escalator principle.
(a) In a discharge action based on your conduct, your employer
bears the burden of proving that it is reasonable to discharge you for
the conduct in question, and that you had notice that such conduct
would constitute cause for discharge.
(b) If the application of the escalator principle after your
reemployment results in your job position being eliminated, or in your
being placed on layoff status, either of these situations would
constitute cause for purposes of USERRA. Your employer bears the burden
of proving that your job would have been eliminated or that you would
have been laid off.
Pension Plan Benefits
Sec. 1002.259 How does USERRA protect my pension benefits?
On reemployment you are treated as not having a break in service
with your employer or employers maintaining a pension plan, for
purposes of participation, vesting and accrual of benefits, by reason
of your period of service in the uniformed services.
(a) Depending on the length of your period of service, you are
entitled to take from one to ninety days following your service before
reporting back to work or applying for employment (See Sec. 1002.115).
This period of time must be treated as continuous service with your
employer for purposes of determining participation, vesting and accrual
of pension benefits under the plan.
(b) If you are hospitalized for, or convalescing from, an illness
or injury incurred in, or aggravated during, your service you are
entitled to report to or submit an application for reemployment at the
end of the time period necessary for you to recover from the illness or
injury. This period, which may not exceed two years from the date you
completed your service, except in circumstances beyond your control,
must be treated as continuous service with your employer for purposes
of determining the participation, vesting and accrual of pension
benefits under the plan.
Sec. 1002.260 What pension benefit plans are covered under USERRA?
(a) The Employee Retirement Income Security Act of 1974 (ERISA)
defines an employee pension benefit plan as a plan that provides
retirement income to employees, or defers employee income to a period
extending to or beyond the termination of employment. Any such plan
maintained by your employer or employers is covered under USERRA.
USERRA also covers certain pension plans not covered by ERISA, such as
those sponsored by a State, government entity, or church for its
employees.
(b) USERRA does not cover pension benefits under the Federal Thrift
Savings Plan; those benefits are covered under 5 U.S.C. 8432b.
Sec. 1002.261 Who is responsible for funding any plan obligation to
provide me with pension benefits?
With the exception of multiemployer plans, which have separate
rules discussed below, your employer is liable to the pension benefit
plan to fund any obligation of the plan to provide benefits that are
attributable to your period of service. In the case of a defined
contribution plan, once you are reemployed, your employer must allocate
the amount of its make-up contribution for you, if any, your make-up
employee contributions, if any, your elective deferrals, if any, and
the repayment of distributions from the plan, if any, in the same
manner and to the same extent that it allocates the amounts for other
employees during the
[[Page 56299]]
period of service. In the case of a defined benefit plan, your accrued
benefit will be increased for your period of service once you are
reemployed and, if applicable, have repaid any amounts previously paid
to you from the plan and made any employee contributions that may be
required to be made under the plan.
Sec. 1002.262 When is my employer required to make the plan
contribution that is attributable to my period of military service?
(a) The employer is not required to make its contribution until you
are reemployed. For employer contributions to a plan in which you are
not required or permitted to contribute, your employer must make the
contribution attributable to your period of service no later than
thirty days after the date of your reemployment. If it is impossible or
unreasonable for your employer to make the contribution within thirty
days after the date you were reemployed, your employer must make the
contribution as soon as practicable.
(b) If you are enrolled in a contributory plan you are allowed (but
not required) to make up your missed contributions or elective
deferrals. These makeup contributions or elective deferrals must be
made during a time period starting with your date of reemployment and
continuing for up to three times the length of your immediate past
period of military service, with the repayment period not to exceed
five years. If you cannot make up missed contributions as an elective
deferral because you are no longer employed by the employer sponsoring
the plan, the plan must give you an equivalent opportunity to receive
the maximum employer matching contributions that were available under
the plan during your period of uniform service through a match of
after-tax contributions.
(c) If your plan is contributory and you do not make up your
contributions or elective deferrals, you will not receive the employer
match or the accrued benefit attributable to your contribution because
your employer is required to make contributions that are contingent on
or attributable to your contributions or elective deferrals only to the
extent that you make up your payments to the plan. Any employer
contributions that are contingent on or attributable to your make-up
contributions or elective deferrals must be made according to the
plan's requirements for employer matching contributions.
(d) You are not required to make up the full amount of employee
contributions or elective deferrals that you missed making during your
period of service. If you do not make up all of your missed
contributions or elective deferrals, your pension may be less than if
you had done so.
(e) Any vested accrued benefit in the pension plan that you were
entitled to prior to your period of military service remains intact
whether or not you choose to be reemployed under the Act after leaving
the military.
(f) An adjustment will be made to the amount of employee
contributions or elective deferrals you will be able to make to the
pension plan for any employee contributions or elective deferrals you
actually made to the plan during your period of service.
Sec. 1002.263 Am I required to pay interest when I make up my missed
contributions or elective deferrals?
No. You are not required to make up a missed contribution in an
amount that exceeds the amount you would have been permitted or
required to contribute had you remained continuously employed during
your period of service.
Sec. 1002.264 Am I allowed to repay my account balance if I withdrew
all or part of my account from the pension benefits plan before
becoming reemployed?
Yes. If you withdrew all or part your account balance from the
pension benefits plan before you became reemployed, you must be allowed
to repay the withdrawn amounts when you are reemployed. In the case of
a defined benefit plan (but not a defined contribution plan) the amount
you must repay includes any interest that would have accrued had the
monies not been withdrawn. The repayment of these amounts must be made:
(a) During a time period starting with the date of reemployment and
continuing for up to three times the length of the employee's immediate
past period of military service, with the repayment period not to
exceed five years; or
(b) During the time period provided by 26 U.S.C. 411(a)(7)(C) (if
applicable); or
(c) Within such longer time period as may be agreed to between the
employer and service member.
Sec. 1002.265 If I am reemployed with my pre-service employer is my
pension benefit the same as if I had remained continuously employed?
The amount of your pension benefit depends on the type of pension
plan.
(a) In a non-contributory defined benefit plan, where the amount of
your pension benefit is determined according to a specific formula,
your benefit will be the same as though you had remained continuously
employed during your period of service.
(b) In a contributory defined benefit plan, you will need to make
up your contributions in order to have the same benefit as if you had
remained continuously employed during your period of service.
(c) In a defined contribution plan, the benefit may not be the same
as if you had remained continuously employed, even though you and your
employer make up any contributions or elective deferrals attributable
to your period of service, because you are not entitled to forfeitures
and earnings or required to experience losses that accrued during your
period or periods of service.
Sec. 1002.266 What are the obligations of a multiemployer pension
benefit plan under USERRA?
A multiemployer pension benefit plan is one to which more than one
employer is required to contribute, and which is maintained pursuant to
one or more collective bargaining agreements between one or more
employee organizations and more than one employer. The Act uses ERISA's
definition of a multiemployer plan. In addition to the provisions of
USERRA that apply to all pension benefit plans, there are provisions
that apply specifically to multiemployer plans, as follows:
(a) The last employer that employed you before your period of
service is responsible for making the employer contribution to the
multiemployer plan, if the plan sponsor does not provide otherwise. If
the last employer is no longer functional, the plan must nevertheless
provide coverage to the service member.
(b) An employer that contributes to a multiemployer plan and that
reemploys you must provide written notice of your reemployment to the
plan administrator within 30 days after your date of reemployment.
(c) You are entitled to the same employer contribution whether you
are reemployed by your pre-service employer or by a different employer
contributing to the same multiemployer plan.
Sec. 1002.267 How is my compensation during my period of service
calculated in order to determine my pension benefits, if my benefits
are based on my compensation?
In many pension benefit plans, your compensation determines the
amount of your contribution or the retirement benefit to which you are
entitled.
(a) Where your rate of compensation must be calculated to determine
your
[[Page 56300]]
pension entitlement, the calculation must be made using the rate of pay
that you would have received but for your period of military service.
(b)(1) Where the rate of pay you would have received is not
reasonably certain, such as where your compensation is based on
commissions that you earned, your average rate of compensation during
the 12-month period prior to your period of military service must be
used.
(2) Where the rate of pay you would have received is not reasonably
certain and you were employed for less than 12 months prior to the
period of military service, your average rate of compensation must be
derived from this shorter period of employment that preceded your
service.
Subpart F--Compliance Assistance, Enforcement and Remedies
Compliance Assistance
Sec. 1002.277 What assistance does the Department of Labor provide to
employees and employers concerning employment, reemployment, or other
rights and benefits under USERRA?
The Secretary, through the Veterans' Employment and Training
Service (VETS), provides assistance to any person or entity with
respect to employment and reemployment rights and benefits under
USERRA. This assistance includes a wide range of compliance assistance
outreach activities, such as responding to inquiries; conducting USERRA
briefings and Webcasts; issuing news releases; and, maintaining the
elaws USERRA Advisor (located at http://www.dol.gov/elaws/userra.htm),
the e-VETS Resource Advisor and other Web-based materials (located at
http://www.dol.gov/vets/#userra), which are designed to increase
awareness of the Act among affected persons, the media, and the general
public. In providing such assistance, VETS may request the assistance
of other Federal and State agencies, and utilize the assistance of
volunteers.
Investigation and Referral
Sec. 1002.288 How do I file my USERRA complaint?
If you are claiming entitlement to employment rights or benefits or
reemployment rights or benefits and you allege that your employer has
failed or refused, or is about to fail or refuse, to comply with the
Act, you may file a complaint with VETS or initiate a private legal
action in a court of law (see Sec. 1002.303). A complaint filed with
VETS must be in writing, using VETS Form 1010 (instructions and the
form can be accessed at http://www.dol.gov/elaws/vets/userra/1010.asp),
and must include the name and address of your employer, a summary of
the basis for your complaint, and a request for relief.
Sec. 1002.289 How will VETS investigate my USERRA complaint?
(a) In carrying out any investigation, VETS has, at all reasonable
times, reasonable access to and the right to interview persons with
information relevant to the investigation. VETS also has reasonable
access to, for purposes of examination, the right to copy and receive
any documents of any person or employer that VETS considers relevant to
the investigation.
(b) VETS may require by subpoena the attendance and testimony of
witnesses and the production of documents relating to any matter under
investigation. In case of disobedience of or resistance to the
subpoena, the Attorney General may, at VETS' request, apply to any
district court of the United States in whose jurisdiction such
disobedience or resistance occurs for an order enforcing the subpoena.
The district courts of the United States have jurisdiction to order
compliance with the subpoena, and to punish failure to obey a subpoena
as a contempt of court. This paragraph does not authorize VETS to seek
issuance of a subpoena to the legislative or judicial branches of the
United States.
Sec. 1002.290 Does VETS have the authority to order compliance with
USERRA?
No. If VETS determines as a result of an investigation that the
complaint is meritorious, VETS attempts to resolve the complaint by
making reasonable efforts to ensure that any persons or entities named
in the complaint comply with the Act. If VETS' efforts do not resolve
the complaint, VETS notifies the person who submitted the complaint of:
(a) The results of the investigation; and,
(b) The person's right to proceed under the enforcement of rights
provisions in 38 U.S.C. 4323 (against a State or private employer), or
38 U.S.C. 4324 (against a Federal executive agency or the Office of
Personnel Management (OPM)).
Sec. 1002.291 What actions may I take if my complaint is not resolved
by VETS?
If you receive a notification from VETS of an unsuccessful effort
to resolve your complaint relating to a State or private employer, you
may request that VETS refer the complaint to the Attorney General.
Sec. 1002.292 What can the Attorney General do about my complaint?
(a) If the Attorney General is reasonably satisfied that your
complaint is meritorious, meaning that you are entitled to the rights
or benefits sought, the Attorney General may appear on your behalf and
act as your attorney, and initiate a legal action to obtain relief for
you.
(b) If the Attorney General determines that your complaint does not
have merit, the Attorney General may decline to represent you.
Enforcement of Rights and Benefits Against a State or Private Employer
Sec. 1002.303 Am I required to file my complaint with VETS?
No. You may initiate a private action for relief against a State or
private employer if you decide not to apply to VETS for assistance.
Sec. 1002.304 If I file a complaint with VETS and VETS' efforts do
not resolve my complaint can I pursue the claim on my own?
Yes. If VETS notifies you that it is unable to resolve your
complaint, you may pursue the claim on your own. You may choose to be
represented by private counsel whether or not the Attorney General
decides to represent you as to your complaint.
Sec. 1002.305 What court has jurisdiction in an action against a
State or private employer?
(a) If an action is brought against a State or private employer by
the Attorney General, the district courts of the United States have
jurisdiction over the action. If the action is brought against a State
by the Attorney General, it must be brought in the name of the United
States as the plaintiff in the action.
(b) If an action is brought against a State by a person, the action
may be brought in a State court of competent jurisdiction according to
the laws of the State.
(c) If an action is brought against a private employer or a
political subdivision of a State by a person, the district courts of
the United States have jurisdiction over the action.
(d) An action brought against a State Adjutant General, as an
employer of a civilian National Guard technician, is considered an
action against a State for purposes of determining which court has
jurisdiction.
[[Page 56301]]
Sec. 1002.306 As a National Guard civilian technician am I considered
a State or Federal employee for purposes of USERRA?
If you are a National Guard civilian technician you are considered
a State employee for USERRA purposes, although you are considered a
Federal employee for most other purposes.
Sec. 1002.307 What is the proper venue in an action against a State
or private employer?
(a) If an action is brought by the Attorney General against a
State, the action may proceed in the United States district court for
any district in which the State exercises any authority or carries out
any function.
(b) If an action is brought against a private employer, or a
political subdivision of a State, the action may proceed in the United
States district court for any district in which the employer maintains
a place of business.
Sec. 1002.308 Who has legal standing to bring an action under USERRA?
An action may be brought only by the United States or by the
person, or representative of a person, claiming rights or benefits
under the Act. An employer, prospective employer or other similar
entity may not bring an action under the Act.
Sec. 1002.309 Who is a necessary party in an action under USERRA?
In an action under USERRA only an employer or a potential employer,
as the case may be, is a necessary party respondent. In some
circumstances, such as where terms in a collective bargaining agreement
need to be interpreted, the court may allow an interested party to
intervene in the action.
Sec. 1002.310 How are fees and court costs charged or taxed in an
action under USERRA?
No fees or court costs may be charged or taxed against you if you
are claiming rights under the Act. If you obtain private counsel for
any action or proceeding to enforce a provision of the Act, and you
prevail, the court may award reasonable attorney fees, expert witness
fees, and other litigation expenses.
Sec. 1002.311 Is there a statute of limitations in an action under
USERRA?
No. USERRA does not have a statute of limitations, and it expressly
precludes the application of any State statute of limitations. If you
unreasonably delay asserting your rights, and that unreasonable delay
causes prejudice to your employer, the courts have recognized the
availability of the equitable doctrine of laches to bar a claim under
USERRA.
Sec. 1002.312 What remedies may be awarded for a violation of USERRA?
In any action or proceeding the court may award relief as follows:
(a) The court may require your employer to comply with the
provisions of the Act;
(b) The court may require your employer to compensate you for any
loss of wages or benefits suffered by reason of your employer's failure
to comply with the Act;
(c) The court may require your employer to pay you an amount equal
to the amount of lost wages and benefits as liquidated damages, if the
court determines that your employer's failure to comply with the Act
was willful. A violation shall be considered to be willful if the
employer or potential employer either knew or showed reckless disregard
for whether its conduct was prohibited by the Act.
(d) Any wages, benefits, or liquidated damages awarded under
paragraphs (b) and (c) of this section are in addition to, and must not
diminish, any of the other rights and benefits provided by USERRA (such
as, for example, the right to be employed or reemployed by the
employer).
Sec. 1002.313 Are there special damages provisions that apply to
actions initiated in the name of the United States?
Yes. In an action brought in the name of the United States, for
which the relief includes compensation for lost wages, benefits, or
liquidated damages, the compensation must be held in a special deposit
account and must be paid, on order of the Attorney General, directly to
the person. If the compensation is not paid to you because of the
Federal Government's inability to do so within a period of three years,
the compensation must be converted into the Treasury of the United
States as miscellaneous receipts.
Sec. 1002.314 May a court use its equity powers in an action or
proceeding under the Act?
Yes. A court may use its full equity powers, including the issuance
of temporary or permanent injunctions, temporary restraining orders,
and contempt orders, to vindicate the rights or benefits guaranteed to
you under the Act.
Signed at Washington, DC, this 10th day of September, 2004.
Frederico Juarbe Jr.,
Assistant Secretary for Veterans' Employment and Training.
[FR Doc. 04-20844 Filed 9-17-04; 8:45 am]
BILLING CODE 4510-79-P
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