The U.S. Department of Labor (DOL) reports that it has received complaints from thousands of returning military personnel about their reemployment rights under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA). To better educate employees and employers about their rights and obligations under this law, the DOL has released draft regulations designed to clarify the USERRA. The rules, written in a simple question and answer format, provide guidance on everything from antidiscrimination prohibitions and timing and notice requirements to pension plan rights, health coverage continuation, employer defenses to reemployment, and much more.
The DOL will accept comments on the draft rules until Nov. 19. After that, it will consider proposed changes and, at an as-yet undetermined date, will issue final rules. Note that the USERRA applies to all public and private employers regardless of size.
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Military Leave and Reemployment Clarifications
Here’s a look at some highlights of the proposed regulations:
- Antidiscrimination and retaliation. The USERRA’s prohibitions on discrimination and retaliation apply to all employers, including hiring halls and potential employers, and to all employment positions, even those that are for a brief, nonrecurrent period (even though USERRA reemployment rights do not extend to such positions).
- Employees covered. USERRAprotections apply not only to individuals working at the time the military leave commenced, but also to workers who are laid off with recall rights, on strike, or on a leave of absence. USERRA covers all employees, including executive, managerial, and professional employees, but not independent contractors.
- Advance notice of military service. To be entitled to USERRA protections, employees must give their employers advance notice of their intention to serve in the military; the USERRA doesn’t specify how much notice is required. The draft rules state that the timeliness of notice will be determined by the facts in each case, but employees must make every effort to give notice of impending military service as far in advance as is reasonable.
- Decision to return. An employee departing for military service can delay deciding whether they want to return to their jobs until their service ends. You cannot press an employee for assurances about their plans.
- Reason for leaving. Employees who meet USERRA eligibility requirements can use their absence for other purposes as well and still retain their reemployment rights. For example, a worker deployed out of state for military training could moonlight as a security guard or visit relatives.
- Reporting back. The USERRA contains time limits based on length of military service for when employees must report back to work following military service. When service doesn’t exceed 31 days, the employee must report to the employer at the beginning of the first full shift on the first full day after completing service, provided the employee has eight hours to rest after returning to their residence. The rules also clarify reporting-back requirements for longer tours of duty.
- Documentation verifying reemployment eligibility. The proposed rules set out the types of documentation you can request from a returning employee whose leave exceeded 30 days in order to verify the person is eligible for reemployment. These include, for example, a Defense Department 214 Certificate or Release or Discharge from Active Duty or a copy of duty orders indicating completion of service.
- Prompt reemployment. Under the USERRA, you must “promptly” reemploy an individual who is eligible. Prompt means within two weeks after the person applies for reemployment, unless there are unusual circumstances. But if the duty lasted fewer than 31 days, the individual must be immediately reemployed upon reporting back to work.