The United States Department of Labor (“DOL”) has issued an interim final rule requiring all employers to notify employees of their rights, benefits and obligations under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”). 70 Fed. Reg. 2106 (March 10, 2005). Codified at 38 U.S.C. §§ 4301-4333, USERRA provides reemployment rights to employees who voluntarily or involuntarily leave their jobs to perform military service. USERRA also prohibits employers from discriminating against individuals because they are current or former members of the uniformed services, or applicants to the uniformed services.

Enacted in 1994, USERRA clarified prior laws governing the reemployment rights of veterans, including the Vietnam Era Veterans’ Readjustment Assistance Act of 1974. The law was further amended by the Veterans Benefits Improvement Act of 2004 (“VBIA”) by requiring all employers to provide notice to employees of the rights, benefits and obligations of both employees and employers under USERRA, within 90 days of VBIA’s enactment on December 10, 2004. DOL’s interim final rule, which was issued on March 10, 2005 and became effective on that date, implements this notice-posting requirement.

DOL seeks comments on the notice-posting requirement published in the recent Interim Rule. Comments are due on or before May 9, 2005. In addition, DOL is presently reviewing public comments on proposed rules implementing USERRA, which were issued on September 20, 2004. 69 Fed. Reg. 56265 (Sept. 20, 2004).

Employee Protections Under USERRA

Prohibition Against Discrimination for 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 military membership or service, or application for membership or service in the military, whether voluntary or involuntary. This protection extends to the military reserves, National Guard, Air National Guard, commissioned corps of the Public Health Service, and any other category of persons designated by the President of the United States in time of war or national emergency.

Continuation of Benefits During Military Service

In the event that an employee is absent from work due to military duty or training, his/her employer must treat the absence as a furlough or leave of absence. Employees on leave for military purposes can, but are not required to, use previously accrued vacation, annual or similar leave. Employees may be required to pay a portion or all of benefits continued during the absence, to the extent that other employees on furlough or leave of absence are also required to do so and depending on the length of time the employee is absent due to military service. Employees can continue benefit coverage up to a maximum of twenty-four months while they are away from work due to military service.

Right to Reemployment Following Military Service

Under USERRA, employers must reemploy employees returning from military service in the same or similar job, with the same status, pay and benefits (including pension and health benefits) that they would have attained had they never been absent. USERRA provides employees with reemployment rights for up to five years cumulative active duty military service, and only if the employee provided advance verbal or written notice of their military service, unless time or national security prevented them from being able to provide notice. Employees exercising their right to reemployment must then return to work within a certain period of time after they have completed their military active duty, depending on the length time in service.

There are exceptions to employees’ right to reemployment following military service. For example, employers are not required to reemploy those engaged in military service if business circumstances have changed so much that it would be impossible or unreasonable to comply with the law.

In addition, if the returning employee is not qualified for the position they would have held had their employment not been interrupted by military service, the employer is not required to reemploy the individual if to do so would impose an undue hardship on the employer. For employees with disabilities incurred in or aggravated during military service, undue hardship is considered based on the burden to the employer of placing the employee in a position of same or similar seniority, pay and status. For employees without disabilities incurred in or aggravated during military service, the issue is based on whether it would impose an undue hardship to reemploy them in a position of lesser status or pay.

Finally, the right of reemployment also does not convey to employees who worked for a brief, nonrecurrent period of time prior to being called for military service, where there was no reasonable expectation that employment would continue indefinitely or for a significant period of time.

Notice Posting Requirements

DOL has made available a poster that employers may use to satisfy the USERRA notice requirement. The poster is available on DOL’s website at www.dol.gov/vets/programs/userra/ . It is imperative that employers obtain the notice and immediately post or disseminate the notice information to employees and applicants.

Employers may post the notice where similar notices to employees are customarily placed. Alternatively, employers are free to provide the notice to employees in other ways “that will minimize costs while ensuring that the full text of the notice is provided.” 70 Fed. Reg. 2106. DOL’s interim rule suggests alternative means of providing notice, such as handing or mailing out the notice, or distributing the notice via electronic mail. Id.

If you are interested in learning more about the USERRA requirements, or if you are interested in submitting public comments to DOL on the USERRA notice requirement, please contact either of the Arent Fox attorneys indicated below.

Contact Information:

Michael L. Stevens

Kristine J. Dunne