The Department of Labor ("DOL") recently published the first regulations that explain and clarify the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"). 70 Fed. Reg. 75246 (December 19, 2005). USERRA generally prohibits discrimination against and provides reemployment rights to employees who voluntarily or involuntarily leave their jobs for military service. It applies to all public and private employers regardless of size.

DOL published these regulations in response to the impact of the approximately 530,000 citizen-soldiers that have been mobilized since September 11, 2001 to support the War on Terror in Iraq and Afghanistan.

According to Secretary of Labor Elaine Chao, this is the largest group of National Guard and Reserve service members to be mobilized since World War II. More than 390,000 of these service members have already been demobilized and subsequently returned to the workplaces they left behind. Others are expected to complete their tours of duty and return to civilian employment in the upcoming months.

Employee Protections Under USERRA

Right to Reemployment After Military Service

Under USERRA, employers must reemploy an employee who returns from military service in his or her "escalator position," i.e., a position with the same status, pay, pension, health benefits, and seniority that he or she "would have attained with reasonable certainty" but for the intervening absence due to military service.

This escalator principle may require an employer to "bump" a replacement employee – even if it means terminating that employee – to accommodate the returning veteran. It also means that a returning veteran may return to a lower position if changes in the workplace during his or her absence would have resulted in such a consequence.

For example, an employer does not need to reemploy a veteran if an intervening reduction in force would have eliminated the veteran’s prior position.

In addition, employees who incurred or aggravated a disability during military service possess the same reemployment rights as other returning veterans. Thus, employers must make reasonable efforts to accommodate an employee’s disability and help the employee become qualified to perform the duties of his or her reemployment position.

If reasonable efforts to accommodate the disability and qualify the employee for the reemployment position fail, the same efforts must be made to qualify the employee for an equivalent escalator position or the best position for which they are qualified under the circumstances.

Returning veterans maintain their reemployment rights under USERRA for up to five years cumulative active military service. Moreover, employees do not need to decide whether they intend to return to work with the same employer at the end of their service before they leave for their military service. Instead, employers must be prepared to accommodate their employee’s return to the workforce even if the employee tells his or her employer that he or she does not intend to return.

Nonetheless, employees exercising their right to reemployment must return to work within a certain period of time after they have completed their military active duty, depending on the length time in service.

Finally, as a general rule, employers must reinstate returning service members within two weeks after they apply for reemployment, absent unusual circumstances.

Prohibition Against Discrimination and Retaliation Based on Military Service

USERRA protects individuals based on their military status from discrimination in employment (including hiring, retention, promotion, reemployment, termination and benefits). Employers are prohibited from discriminating against employees or prospective employees on the basis of their past or present military membership or service, or application for membership or service in the military, whether voluntary or involuntary.

Among others, this protection extends to the military reserves, National Guard, Air National Guard, commissioned corps of the Public Health Service, and active components of the Armed Forces. Employers are also prohibited from taking adverse employment actions against someone who has not actually performed military service if they acted to enforce a USERRA-afforded protection.

The new regulations also clarify the burden of proof necessary to prove a discrimination claim under USERRA. A veteran who alleges discrimination must first prove that his or her military status was one of the reasons that the employer took action against him or her. The burden then shifts to the employer to prove it "would have taken the action anyway."

Finally, the complaining veteran must show that the employer would not have taken the action at issue "but for" his or her military status. The new regulations also address statutory defenses available to employers, such as the "undue hardship" defense.

Continuation of Health Care Benefits

USERRA provides employees who leave work for military service with the right to elect to continue with their existing employer-based health plan coverage for a maximum of twenty-four months while in the military.

Employees who serve for less than 31 days shall pay no more for coverage than they would have had they remained employed, but employers may require employees who serve for at least 31 days to pay up to 102% of the full premium under their health care plan. In addition, the regulations emphasize that a returning veteran and his or her dependents must be reinstated in an employer-provided health plan without any waiting period upon return from service.

Notice Posting Requirements

Employers have an obligation to inform employees of their rights, benefits, and obligations under USERRA. DOL published a new version of a poster that satisfies this requirement, which can be downloaded at www.dol.gov/vets/programs/userra/poster.pdf.

Employers should obtain a copy of the new poster as soon as possible and immediately post it where similar notices to employees are customarily placed. In the alternative, employers may provide the required notice to employees in ways that will minimize costs, such as distributing the notice via email.

The new rules take effect on January 18, 2006.

If you have any questions about how to comply USERRA or are interested in learning more about these and many related issues, please contact:

Michael L. Stevens
202-857-6382
stevens.michael@arentfox.com