In anticipation of the return of American soldiers deployed around the world -- over 530,000 since the terror attacks on September 11, 2001 -- the Veterans' Employment and Training Service of the Department of Labor (DOL) released final rules implementing the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). The regulations, which are set to take effect January 18, 2006, do not change the substance of employers' legal requirements under USERRA, but merely clarify their obligations to employee-veterans returning to employment after service in the armed forces.
Who Is Eligible for Protection Under USERRA?
USERRA and the new regulations that implement it apply to returning employees regardless of whether their service in the armed forces was voluntary or involuntary. In order to qualify for USERRA rights, a returning employee must:
- have been in uniformed service during the absence of civilian employment;
- have given the employer advance notice of his or her service;
- have had no more than five years of cumulative service away from the particular employer from whom the employee seeks USERRA benefits;
- either report to work or apply for re-employment within the timetable provided in the regulations; and
- have received an honorable discharge or separation from service.
What Are Veterans' Rights Under USERRA?
As a general rule, employers are required to reinstate qualified returning veterans within two weeks after the returning veteran reports to work or applies for reemployment. This requirement stands regardless if the veteran's position was filled by another employee during the veteran's service, if no comparable position is currently open, or if a hiring freeze is in effect at the time the veteran applies for reemployment. The reemployment requirement is also unaffected by a veteran's service-related disability; if the disability limits the service member's ability to perform the job to which she is entitled, the employer must reasonably accommodate her disability.
The position in which the returning veteran must be placed is one of USERRA's unique features. The act has a so-called "escalator" provision, which entitles the returning veteran to a position with the same seniority, status and pay as that to which she would have been entitled had her employment not been interrupted by the service. This may mean that the returning veteran must be placed in a higher position than that which she held before service (if, for example, she would have been entitled to a promotion during her absence from employment).
Returning service members also have specific rights to continued health coverage under the employer's health care and pension plans. The regulations clarify the substance of these rights, which are similar to those provided under the Comprehensive Omnibus Budget Reduction Act (COBRA), except for the notable distinction that a returning veteran is entitled to these rights regardless of the size of the employer or the employer's status as a government entity.
What Else Does USERRA Require Employers To Do?
In addition to affording the rights described above to returning veterans, the new regulations require employers to post a newly-provided notice informing employees of their rights, benefits and obligations under USERRA. The updated notice must be posted in a prominent place to which employees have regular access. A copy of this notice is available for downloading at www.dol.gov/vets/programs/userra/poster.pdf.
For further information on this or other legal issues, call or email your regular contact at Calfee or contact: John Cernelich at 216.622.8251, jcernelich@calfee.com; Richard Goddard at 216.622.8313, rgoddard@calfee.com; Laura Kendall at 216.622.8847, lkendall@calfee.com; or Eric Baisden at 614.621.7752, ebasiden@calfee.com.
