Top 40 Things You May Not Know About the New VETS Reemployment Rights Rules
January 11, 2006
by Employment & Labor Law / Employee Benefits Group
Stinson Morrison Hecker LLP
Copyright © 2006
The first-ever final regulations protecting the reemployment rights of America’s soldiers were issued by the U.S. Department of Labor on December 19, 2005, and take effect on January 18, 2006. The rules interpret the Uniformed Services Employment and Reemployment Act (USERRA), the law that protects employment and reemployment rights and benefits of service member upon their return to civilian life.
"USERRA prohibits discrimination against past and present members of the unformed services and establishes reemployment rights for service members who want to return to jobs they held prior to service."
The new rules "explain how USERRA protects against discrimination and retaliation because of military service; prevents service members from suffering disadvantages due to performance of their military obligations, and affords them ample time to report back to jobs following completion of their service obligations."
The following is a general summary of 40 things you may not know about the USERRA rules. (Refer to the final regulations for full details).
Employers Subject to USERRA
1. Employers Covered, Regardless of Size – USERRA applies to all public and private employers in the United States, regardless of size.
2. Supervisor Liability – The U.S. Department of Labor believes that individual supervisors may be held liable under USERRA, and several courts have so held.
Employees Covered
3. Executive, Managerial or Professional Employees – USERRA applies to all employees. There is no exclusion for executive, managerial, or professional employees.
4. Temporary, Part-Time Employee – USERRA rights are not diminished because an employee holds a temporary, part-time, probationary, or seasonal employment position.
Military Service
5. Voluntary or Involuntary Service – USERRA covers all categories of military training and service, including duty performed on a voluntary or involuntary basis, in time of peace or war.
6. Type of Service – USERRA applies to persons serving in the active components of the Armed Forces, reserve military personnel, and National Guard service under Federal authority. 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.
Scope of USERRA
7. Floor, Not a Ceiling – 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.
8. USERRA Supersedes Other Laws – USERRA supersedes any State law (including any local law or ordinance), contract, agreement, (including collective bargaining agreements) 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.
9. Does Not Diminish Greater Rights – 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.
Pre-employment
10. Non-Discrimination – The anti-discrimination prohibition applies to both employers and potential employers, and prohibits acts of discrimination against past and present members of the uniformed services, as well as applicants to the uniformed services.
11. Pre-employment Inquiries – According to the U.S. Department of Labor, "it is not unlawful in itself for a prospective employer to ask an applicant about military service or obligations. Indeed, in many instances a prospective employee’s military experience may enhance his or her potential value to the employer. However, if information elicited in response to such questions forms the basis of the employer’s decision not to hire an applicant, or to take other adverse action against the person once hired, the inquiries may constitute evidence of unlawful discrimination."
Leaving Job for Service
12. Notice Required – The employee (or appropriate officer) must notify the employer that the employee intends to leave the employment position to perform service in the uniformed services. The employee is 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.
13. Form of Notice – The employee’s notice to the employer may be either verbal or written. The notice may be informal and does not need to follow any particular format. The employee is not required to ask for or get his or her employer's permission to leave to perform service in the uniformed services. The employee is only required to give the employer notice of pending service.
14. No Requirement to Tell Employer of Plans to Return – When the employee leaves the employment position to begin a period of service, he or she is not required to tell the civilian employer that he or she intends to seek reemployment after completing uniformed service. Even if the employee tells the employer before entering or completing uniformed service that he or she does not intend to seek reemployment after completing the uniformed service, the employee does not forfeit the right to reemployment after completing service.
15. No Requirement to Accommodate Employer’s Needs – The employee is not required to accommodate his or her employer's interests or concerns regarding the timing, frequency, or duration of uniformed service. The employer cannot refuse to reemploy the employee because it believes that the timing, frequency or duration of the service is unreasonable.
16. Time Off to Put Affairs in Order – If an employee is ordered to perform an extended period of service in the uniformed services, he or she may require a reasonable period of time off from the civilian job – including intermittent leave – to put his or her personal affairs in order, before beginning the service.
Rights & Benefits While on Leave
17. May Use Vacation Pay – If employment is interrupted by a period of service, the employee 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 his or her civilian pay. The employer, however, may not require the employee to use accrued vacation, annual, or similar leave during a period of service in the uniformed services.
18. Sick Leave – The employee is not entitled to use sick leave that accrued with the civilian employer during a period of service in the uniformed services, unless the employer allows employees to use sick leave for any reason, or allows other similarly situated employees on comparable furlough or leave of absence to use accrued paid sick leave.
19. Health Plan Continuation Coverage – If the employee has coverage under a health plan in connection with his or her employment, the plan must permit the employee to elect to continue the coverage for up to 24 months. Unlike COBRA, USERRA’s continuation coverage is available without regard to the size of the employer’s workforce.
Amount of Time in Service
20. Up to 5 Years – In general, the employee may perform service in the uniformed services for a cumulative period of up to five (5) years and retain reemployment rights with the employer.
Reemployment
21. Period of Service of Less Than 31 Days -- If the period of service in the uniformed services was less than 31 days, the employee must report back to the 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 safe transportation from the place of that service to the employee's residence.
22. Period of Service More than 30 but Less Than 180 Days – If the employee's period of service in the uniformed services was for more than 30 days but less than 181 days, he or she must submit an application for reemployment (written or verbal) with the employer not later than 14 days after completing service.
23. Period of Service More Than 180 Days – If the employee's period of service in the uniformed services was for more than 180 days, he or she must submit an application for reemployment (written or verbal) not later than 90 days after completing service.
24. No Particular Application Required – An application for reemployment need not follow any particular format. The employee may apply orally or in writing.
25. Documentation Required to be Submitted Upon Request – If the employee submits an application for reemployment after a period of service of more than 30 days, he or she must, upon the request of the employer, provide documentation to establish that the reemployment application is timely; the employee has not exceeded the five-year limit on the duration of service; and, the employee's separation or dismissal from service was not disqualifying.
26. No Openings May Not be an Excuse – An employer may be excused from reemploying the employee where there has been an intervening reduction in force that would have included that employee. The employer may not, however, refuse to reemploy the employee on the basis that another employee was hired to fill the reemployment position during the employee's absence, even if reemployment might require the termination of that replacement employee.
27. Prompt Reemployment – The employer must promptly reemploy the employee when he or she returns from a period of service if the employee meets the Act's eligibility criteria. “Prompt reemployment” means as soon as practicable under the circumstances of each case.
28. Disciplinary Review – In the event that a returning employee was subject to a disciplinary review at the time of the onset of service, or in the event that the employer discovers conduct prior to reemployment that may subject the returning service member to disciplinary review upon reemployment, the employer retains the reemployment obligation in such cases. However, the employer may resume the disciplinary review upon reemployment at the point at which it was left at the time of the onset of military service, or may initiate such review based on conduct discovered prior to reemployment.
29. Position – As a general rule, the employee is entitled to reemployment in the job position that he or she would have attained with reasonable certainty if not for the absence due to uniformed service. This position is known as the escalator position. The reemployment position includes the seniority, status, and rate of pay that an employee would ordinarily have attained in that position given his or her job history, including prospects for future earnings and advancement.
30. Temporary Disability – 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.
31. Rate of Pay – If the employee's rate of pay is determined by applying the same escalator principles that are used to determine the reemployment position. The rate of pay must be determined by taking into account any pay increases, differentials, step increases, merit increases, or periodic increases that the employee would have attained with reasonable certainty had he or she remained continuously employed during the period of service.
32. Merit Pay – If the employee missed a merit pay increase while performing service, but qualified for previous merit pay increases, then the rate of pay should include the merit pay increase that was missed.
33. Protection Against Discharge – If the employee's most recent period of service in the uniformed services was more than 30 days, he or she must not be discharged except for cause -- for 180 days after the employee's date of reemployment if his or her most recent period of uniformed service was more than 30 days but less than 181 days; or for one year after the date of reemployment if the employee's most recent period of uniformed service was more than 180 days.
34. Discharge Based on Conduct – In a discharge action based on conduct, the employer bears the burden of proving that it is reasonable to discharge the employee for the conduct in question, and that he or she had notice, which was express or can be fairly implied, that the conduct would constitute cause for discharge.
35. No Break in Service – On reemployment, the employee is treated as not having a break in service with the employer or employers maintaining a pension plan, for purposes of participation, vesting and accrual of benefits, by reason of the period of absence from employment due to or necessitated by service in the uniformed services.
36. Employer Must Provide Written Notice to Plan – An employer that contributes to a multiemployer plan and that reemploys the employee pursuant to USERRA must provide written notice of reemployment to the plan administrator within 30 days after the date of reemployment.
Enforcement & Remedies
37. Complaint with VETS – An individual may file a complaint with the U.S. Department of Labor’s Veterans’ Employment and Training Service (VETS). The agency has the right to interview persons, the right to copy relevant documents, and the right to subpoena the attendance and testimony of witnesses and the production of documents relating to any matter under investigation.
38. Private Right of Action – Nothing in USERRA 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.
39. No Statute of Limitations – An individual may bring a lawsuit against a private employer or a political subdivision of a State in federal district court. The U.S. Department of Labor has taken the position that no Federal statute of limitations applied to actions under USERRA.
40. May Award Backpay, Liquidated Damages and Attorneys Fees – If an individual prevails on his or her claim under USERRA, the court may order reemployment and compensate the individual for any loss of wages or benefits, and may award liquidated (double) damages and reasonable attorney fees, expert witness fees, and other litigation expenses.
Notice Requirement
Effective March 10, 2005, employers are required to provide a "notice" to persons entitled to rights and benefits under USERRA. The U.S. Department of Labor issued a final rule regarding the notice requirement and revised its model notice in December 2005. For more information on the USERRA notice requirement, refer to our companion article, Employers Required to Post New Veterans Notice.
Additional Resources
For more information on USERRA, including links to the law, regulation and agency guidance, please refer to our special Veterans page.
Stinson Morrison Hecker LLP is one of the country's largest law firms with more than 335 attorneys in more than 45-industry-focused areas. If you would like more information regarding this summary, please contact one of our Employment & Labor Law and Employee Benefits attorneys.
Law at Work is designed to give general information and is not intended to be a comprehensive summary or to treat exhaustively the subjects and matters covered. The information appearing herein does not constitute legal advice or opinions. Such advice and opinions are provided only upon engagement with respect to specific factual situations. Nothing contained herein shall be considered as an admission in any matter or controversy.
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