First Ever Military Leave Regulations Issued by the DOL

In December 2005, the United States Department of Labor (DOL), through its Veterans Employment and Training Service (VETS), issued long-awaited new regulations to implement the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. §§ 4301-4333, as amended (USERRA). USERRA sets out employment reinstatement and benefits rights for service members, and it applies to all employers regardless of size, including federal, state and local government employers. The regulations were originally proposed for public comment in September 2004 and became effective on January 18, 2006.

This is the first time since its passage in 1994 that the DOL has developed regulations to explain and clarify USERRA. According to the DOL, since September 11, 2001, almost 530,000 U.S. soldiers have been mobilized, and more than 390,000 of these National Guard and Reserve members have been demobilized. Accordingly, the DOL's action is the latest in a series of proactive steps taken to ensure job security for the largest group of mobilized National Guard and Reserve service members since World War II.

The 68-page final regulations, which are written in an easy-to-read "Question and Answer" format, 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.

In addition to issuing the regulations, VETS also provided a revised notice for employers to inform employees of their USERRA rights. The new USERRA notice is available at www.dol.gov/vets/programs/userra/USERRA_Private.pdf. The notice must be posted where employers customarily place other statutory notices for employees. Additionally, VETS has developed an Internet-based system that will allow USERRA claimants to officially submit a claim via the VETS website using an electronic version of Form 1010 (E-1010).

These first-ever regulations promulgated under USERRA are intended to implement statutory requirements, as well as clarify and interpret uncertain areas which have posed problems for employers. For example, for the first time the new regulations define "prompt reemployment" of returning service members. The regulations provide that "absent unusual circumstances, reemployment must occur within two (2) weeks of the employee's application for reemployment." The regulations also state, however, that where the employee is returning from weekend National Guard duty, "prompt reemployment" is the next regularly scheduled work day, while "prompt reemployment" after several years of active duty may require more time, because the employer may have to reassign or give notice to another employee who occupied the returning employee's position.

Notably, the regulations also address health plan coverage and pension plan rights, both during the employee's period of military service and upon return from service. For example, the regulations implement the requirement that employees and eligible dependents must, upon reemployment of the service member, be reinstated in the employer's health plan without a waiting period or exclusion, and that the employee need not elect to continue health plan coverage during a period of uniformed service to be entitled to reinstatement to the plan upon reemployment. The regulations also clarify that for determining the amount of contributions or deferrals to a pension plan a reemployed service member must be treated as though the employee had remained continuously employed for pension purposes.

The regulations also clarify the "escalator position" requirement for reemployment rights upon return from uniformed service, an issue which has been particularly confusing for employers. The regulations define the "escalator position" as "the position the employee would have attained if his or her continuous employment had not been interrupted" due to military service. The regulations explain that the reemployment position may be: (1) the escalator position; (2) the pre-service position; (3) a position comparable to the escalator or pre-service position; or (4) the nearest approximation to one of those positions. Notwithstanding the "escalator" principle, the regulations emphasize that USERRA does not require an employer to reinstate a returning service member in an employment position if the returning service member is not qualified to perform the civilian job, although the employer is obligated to make reasonable efforts to train and assist the returning employee to become qualified for employment.

Importantly, the regulations specify that service members have special protections from discharge except for "just cause" and depending on their length of military service. The regulations now provide that although the "just cause" requirement is an exception to at-will employment, the protection from discharge is not absolute. "Just cause" may include unacceptable or unprofessional public behavior, incompetent or inefficient performance of duties, or criminal acts. The regulations provide that "the employer bears the burden of proving either that the discharge was based on the employee's conduct or it was the result of some other legitimate nondiscriminatory reason that would have affected any other employee in the reemployed service member's position regardless of his or her protected status or activity." The regulations list other illustrative examples for discharge to include "elimination of the employee's position, corporate reorganization or 'downsizing' and layoff, provided that those reasons are legitimate, nondiscriminatory, and non-pretextual."

Copies of the new USERRA regulations and poster are available on the DOL's web site at www.dol.gov/vets. However, for employers facing the reemployment of returning servicemen and women it is important to consider the application of the regulations to your specific workplace. Should you face such a situation in your workplace or have any questions regarding the regulations, please consult a Strasburger employment attorney to determine your rights and obligations under USERRA.

     
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