USERRA rules highlight 1994 law's coverage

Proposed regulations interpreting the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) emphasize the broad reach of the statute and establish that the law and its regulations are to be read liberally in favor of the service member.

USERRA protects the employment rights and benefits of military service members on their return to civilian life. The U.S. Department of Labor (DOL) draft regulations published Sept. 20 in the Federal Register are the first to elaborate on USERRA's requirements.

The proposed regulations impose no new legal requirements "but explain existing ones, in some cases for the first time," said DOL.

The proposal includes provisions elaborating on USERRA's antidiscrimination provisions, eligibility rules for re-employment, the rights and benefits of absent service members, and re-employment rights and benefits.

USERRA adopted the court-made "escalator" principle, and DOL implements it in several sections of the proposed regulations. That is, "the returning service member must be restored to the seniority rights and benefits that he or she would have attained with reasonable certainty if he or she had remained continuously employed during the period of service." Application of the escalator principle is "outcome-neutral," meaning that it could work in favor of or against the returning service member.

Nondiscrimination

The proposed regulations clarify that USERRA's ban on employment discrimination and retaliation applies to virtually all employment positions regardless of their duration.

The regulations adopt a burden-shifting evidentiary scheme for proving discrimination claims similiar to the one under the National Labor Relations Act. First, the person alleging discrimination must prove that military status was a motivating factor for the employer's actions.

The burden then shifts to the employer to prove that it would have taken the action regardless of the employee's protected status or activity. If the employer is able to establish an affirmative defense, the burden then shifts back to the complaining party to show that the employer would not have taken the action "but for" the individual's protected activity.

Re-Employment Rights

As long as applicants for re-employment meet USERRA's statutory eligibility criteria, they are entitled to re-employment unless the employer establishes one of three affirmative defenses.

Federal trial courts have disagreed on whether proof of motive is required in reemployment claims, and the proposed regulations seek to clear up the dispute, DOL said.

The regulations apply to all employers in the United States; there is no minimum number of employees or other limiting threshold.

The eligibility requirements and some notable points about them follow:

* The employee is absent by reason of military service. The proposed regulations clarify that voluntary and involuntary military duty are covered under USERRA. Detailed provisions govern specific types of service, such as when service in the National Guard is covered.

* The employee provided the employer with advance notice. There is no minimum notice required, and in certain rare cases the notice requirement is excused. The employee is not required to obtain the employer's permission.

* The employee has five years or less of cumulative military service with respect to a particular employer. Proposed section 1002.100 states that the five-year cumulative service period includes only actual military service. It does not include time before or after actual military service even if such absences from employment are service-related, such as travel time or delays in activation. Proposed section 1002.101 clarifies that the five-year service cap pertains only to one particular employer and that the clock begins to run anew if the individual changes employers. A hiring hall, however, is considered to be a single employer.

* The employee returns to work or applies for re-employment in a timely manner. USERRA establishes varying time periods for requesting reinstatement based on the length of military service. Sections of the proposed regulations implement the statute's requirements for documenting entitlement to reinstatement and specify the actions the employee must take.

* The employee has no disqualifying--or other than honorable--discharge. The proposed regulations list four grounds for terminating the individual's re-employment rights based on the character of service and address the consequences of a later upgrade of an individual's disqualifying discharge. An upgrade with a retroactive effect may reinstate the individual's re-employment rights if the individual is otherwise eligible, but it does not restore entitlement to back pay and benefits between the time of the discharge and the upgrade.

The three affirmative defenses to reemployment are that the employer's circumstances have changed so much as to make reemployment impossible or unreasonable, that re-employment would impose an undue hard-ship on the employer, or that the person's employment was brief, nonrecurrent and with no reasonable expectation that it would continue indefinitely or for a significant period.

Rights and Benefits

The escalator principle covers seniority-based rights and benefits, but USERRA and the proposed regulations also apply to non-seniority-based rights and benefits. The proposed regulations flesh out the requirement that the employer treat absent service members as though they are on furlough or leave of absence. If the employer offers certain continued benefits to employees on nonmilitary leave, it must offer service members similar benefits.

If the employer offers different benefits for different types of leave, the person on military leave is entitled to the most generous offering. Under the proposal, the returning employee is entitled not only to those rights and benefits in effect when the leave began, but also to those that came into effect during his service.

The employer may not require service members to use accrued leave for service-related absences, but the employer must allow them to use vacation or annual leave--but not sick leave--on request, the proposal says.

USERRA requires employers to offer absent service members health care continuation coverage similar to that offered under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), but, unlike COBRA, without regard to the employer's size.

Members of the public are invited to file written comments on the proposed regulations; the agency must receive comments by Nov. 19.

Online Resources

Visit the online version of this article at www.shrm.org/hrnews/archive for the complete text of the article and online resources including HR News articles, an SHRM white paper and toolkit.

--Margaret M. Clark, J.D., SPHR

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