[Pages S1161-S1204]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
AMENDED NOTICE OF ADOPTION OF SUBSTANTIVE REGULATIONS AND TRANSMITTAL
FOR CONGRESSIONAL APPROVAL
U.S. Congress, Office of
Congressional Workplace Rights,
Washington, DC, April 18, 2023.
Hon. Patty Murray,
President Pro Tempore of the U.S. Senate,
The United States Capitol,
Washington, DC.
Dear Madam President: Section 304(b)(3) of the
Congressional Accountability Act
[[Page S1162]]
(CAA), 2 U.S.C. Sec. 1384(b)(3), requires that, with regard
to substantive regulations under the CAA, after the Board of
Directors of the Office of Congressional Workplace Rights
(Board) has published a general notice of proposed rulemaking
as required by subsection (b)(1), and received comments
pursuant to subsection (b)(2), ``the Board shall adopt
regulations and shall transmit notice of such action together
with a copy of such regulations to the Speaker of the House
of Representatives and the President pro tempore of the
Senate for publication in the Congressional Record on the
first day on which both Houses are in session following such
transmittal.'' On February 2, 2009, the Board adopted
regulations implementing section 206 of the CAA, which
extends the rights and protections of the Uniformed Services
Employment and Reemployment Act (USERRA) to covered employees
in the legislative branch, and the Chair of the Board
transmitted to the Office of the President Pro Tempore notice
of such action together with copies of separate USERRA
regulations adopted for the Senate, the House of
Representatives, and the other covered entities and
facilities.
The Board has since made additional minor amendments to its
adopted USERRA regulations, as detailed in the Amended Notice
of Adoption of Substantive Regulations and Transmittal for
Congressional Approval, which accompanies this letter. The
Board requests that the accompanying Amended Notice and
amended regulations for the Senate, the House of
Representatives, and the other covered entities, be published
in the Senate version of the Congressional Record on the
first day on which both Houses are in session following
receipt of this transmittal, and that Congress approve the
amended regulations.
Any inquiries regarding this notice should be addressed to
Patrick N. Findlay, Executive Director of the Office of
Congressional Workplace Rights, Room LA-200, 110 2nd Street,
S.E., Washington, D.C. 20540; 202-724-9250.
Sincerely,
Barbara Childs Wallace,
Chair of the Board of Directors, Office of
Congressional Workplace Rights.
Attachment.
FROM THE BOARD OF DIRECTORS OF THE OFFICE OF CONGRESSIONAL WORKPLACE
RIGHTS
AMENDED NOTICE OF ADOPTION OF REGULATIONS AND TRANSMITTAL FOR
CONGRESSIONAL APPROVAL
Section 304(b)(3) of the CAA, 2 U.S.C. Sec. 1384(b)(3),
requires that, with regard to substantive regulations under
the CAA, after the Board has published a general notice of
proposed rulemaking as required by subsection (b)(1), and
received comments as required by subsection (b)(2), ``the
Board shall adopt regulations and shall transmit notice of
such action together with a copy of such regulations to the
Speaker of the House of Representatives and the President pro
tempore of the Senate for publication in the Congressional
Record on the first day on which both Houses are in session
following such transmittal.''
Section 206 of the CAA, 2 U.S.C. Sec. 1316, applies the
rights and protections of USERRA, chapter 43 of title 38, to
covered employees in the legislative branch. On April 21,
2008, and May 8, 2008, the Office of Congressional Workplace
Rights (OCWR), then known as the Office of Compliance (OOC),
published a Notice of Proposed Rulemaking (NPR) in the
Congressional Record (154 Cong. Rec. S3188 (daily ed. April
21, 2008) H3338 (daily ed. May 8, 2008)). After notice and
comment per section 304(b), on February 2, 2009, the Board
adopted and submitted for publication in the Congressional
Record its adopted substantive regulations regarding USERRA.
155 Cong. Rec. H783-H873, S1280-S1368 (daily ed. February 2,
2009). Congress has not yet acted on the Board's request for
approval of these substantive regulations.
The purpose of this Amended Notice of Adoption of
Regulations and Transmittal for Congressional Approval is to
incorporate minor amendments to the Board's previously-
adopted USERRA substantive regulations. These amendments are
necessary in order to bring the regulations in line with
recent changes to the CAA and the OCWR Procedural Rules.
Specifically, on December 21, 2018, Congress passed the
Congressional Accountability Act of 1995 Reform Act, Pub. L.
115-397. The CAA Reform Act changed the name of the Office of
Compliance to the Office of Congressional Workplace Rights.
In addition, the Board, consistent with Section 303 of the
CAA, amended its Procedural Rules and submitted them for
publication in the Congressional Record on June 19, 2019. 165
Cong. Rec. H4896-H4916, S4105-S4125 (daily ed. June 19,
2019). Amendments to the Board's adopted USERRA regulations
are necessary in order to bring them in line with these
recent changes.
Because the amendments to the Board's adopted USERRA
regulations are minor, they do not require an additional
general notice of proposed rulemaking or period for comments.
See 2 U.S.C. Sec. 1384(e). Moreover, there have been no
additional changes since 2009 to the relevant substantive
regulations promulgated by the Secretary of Labor upon which
the Board's USERRA regulations are based that would
necessitate reopening the notice and comment period.
Because the USERRA substantive regulations previously
adopted by the OCWR in 2009 have not yet been approved by
Congress--and thus have not yet been formally issued or put
into effect--this Amended Notice of Adoption incorporates the
OCWR Board's prior discussion of the public comments it
received in 2008, and those changes made by the OCWR in
response, as reflected in the USERRA regulations adopted in
2009. This prior discussion is included herein for purposes
of clarity and completeness, as the OCWR again requests that
Congress approve its adopted USERRA regulations.
On April 21, 2008 and May 8, 2008, the Board published an
NPR in the Congressional Record (154 Cong. Rec. S3188 (daily
ed. April 21, 2008) H3338 (daily ed. May 8, 2008)).
Section 206 of the Congressional Accountability Act
(``CAA''), 2 U.S.C. Sec. 1316, applies certain provisions of
USERRA to the legislative branch. Section 1316 of the CAA
provides protections to eligible employees in the uniformed
services from discrimination, denial of reemployment rights,
and denial of employee benefits. Subsection 1316(c) requires
the Board not only to issue regulations to implement these
protections, but to issue regulations that are ``the same as
the most relevant substantive regulations promulgated by the
Secretary of Labor . . .'' This section provides that the
Board may only modify the Department of Labor regulations if
it can establish good cause as to why a modification would be
more effective for the application of the protections to the
legislative branch. In addition, section 304 of the CAA, 2
U.S.C. 1384, provides procedures for the rulemaking process
in general.
The Board's Notice of Proposed Rulemaking included a 30-day
comment period. A number of comments to the proposed
substantive regulations were received from interested
parties. The Board reviewed the comments from interested
parties, made a number of changes to the proposed substantive
regulations in response to comments, and on December 3, 2008,
adopted the amended regulations.
Adoption of these substantive regulations by the Board does
not complete the promulgation process. Pursuant to section
304 of the CAA, the procedure for promulgating such
substantive regulations requires that:
(1) the Board issue proposed substantive regulations and
publish a general notice of proposed rulemaking in the
Congressional Record;
(2) there be a comment period of at least 30 days after the
date of publication of the general notice of proposed
rulemaking; and
(3) after consideration of comments by the Board, that the
Board adopt regulations and transmit notice of such action
together with the regulations and a recommendation regarding
the method for Congressional approval of the regulations to
the Speaker of the House and President Pro Tempore of the
Senate for publication in the Congressional Record.
This Amended Notice of Adoption of Substantive Regulations
and Transmittal for Congressional Approval completes the
third step described above.
Pursuant to section 304(b)(4) of the CAA, 2 U.S.C.
Sec. 1384(b)(4), the Board is required to ``include a
recommendation in the regulations as to whether the
regulations should be approved by resolution of the Senate,
by resolution of the House of Representatives, by concurrent
resolution, or by joint resolution.'' The Board recommends
that the House of Representatives approve the ``H'' version
of the regulations by resolution; that the Senate approve the
``S'' version of the regulations by resolution; and that the
House and Senate approve the ``C'' version of the regulations
applied to the other employing offices by a concurrent
resolution. Alternatively, the House and the Senate could
approve all three versions of the regulations by a single
concurrent resolution.
USERRA was enacted in December 1994, and the Department of
Labor final regulations for the executive branch became
effective in 2006. USERRA's provisions ensure that entry and
re-entry into the civilian workforce are not hindered by
participation in military service. USERRA provides certain
reemployment rights; protection from discrimination based on
military service, denial of an employment benefit as a result
of military service; and protection from retaliation for
enforcing USERRA protections.
The selected statutory provisions that Congress
incorporated into the CAA and determined ``shall apply'' to
eligible employees
[[Page S1163]]
in the legislative branch include nine sections: sections
4303(13), 4304, 4311(a) and (b), 4312, 4313, 4316, 4317,
4318, and paragraphs (1), (2)(A), and (3) of 4323(d) of title
38.
The first section, section 4303(13), provides a definition
for ``service in the uniformed services.''
This is the only definition in USERRA that Congress made
applicable to the legislative branch. Section 4303(13)
references section 4304, which describes the ``character of
service'' and illustrates situations that would terminate
eligible employees' rights to USERRA benefits.
Congress applied section 4311 to the legislative branch in
order to provide discrimination and retaliation protections,
respectively to eligible and covered employees.
Interestingly, although Congress adopted these protections,
it did not adopt the legal standard by which to establish a
violation of this section of the statute.
Sections 4312 and 4313 outline the reemployment rights that
are provided to eligible employees. These rights are
automatic under the statute, and if an employee meets the
eligibility requirements, he or she is entitled to the rights
provided therein.
Sections 4316, 4317, and 4318 provide language on the
benefits given to eligible employees.
Yes. The Board has adopted and Congress has approved
substantive regulations implementing the Veterans Employment
Opportunities Act (VEOA) in the legislative branch. The Board
has also submitted for congressional approval its amended
substantive regulations implementing the Family and Medical
Leave Act (FMLA) in the legislative branch, which, among
other things, includes enhanced protections for
servicemembers and veterans.
As the Board has identified ``good cause'' to modify the
executive branch regulations to implement more effectively
the rights and protections for veterans, there are some
differences in other parts of the proposed regulations
applicable to the Senate, the House of Representatives, and
the other employing offices. Therefore, the Board is
submitting three separate sets of regulations: an ``H''
version, an ``S'' version, and a ``C'' version, each denoting
those provisions in the regulations that are applicable to
the House, Senate, and other employing offices, respectively.
Yes, as required by section 304(b)(1) of the CAA, 2 U.S.C.
Sec. 1384(b)(1), these regulations have also been recommended
by the Executive Director and Deputy Executive Directors of
the Office of Congressional Workplace Rights.
This Notice of Adoption of Substantive Regulations, and
Submission for Congressional Approval is available on the
Office of Congressional Workplace Rights website,
www.ocwr.gov, which is compliant with section 508 of the
Rehabilitation Act of 1973 as amended, 29 U.S.C. Sec. 794d.
This Notice can also be made available in large print,
Braille, or other alternative format. Requests for this
Notice in an alternative format should be made to: the Office
of Congressional Workplace Rights, 110 2nd Street, S.E., Room
LA-200, Washington, D.C. 20540; 202-724-9250 (voice); 202-
426-1913 (fax); or ocwrinfo@ocwr.gov.
The Congressional Accountability Act of 1995 (CAA), PL 104-
1, became law on January 23, 1995, and was amended by the
Congressional Accountability Act of 1995 Reform Act, PL 115-
397, which was enacted on December 21, 2018. The CAA applies
the rights and protections of 14 federal labor and employment
statutes to covered employees and employing offices within
the Legislative Branch of Government. Section 301 of the CAA
(2 U.S.C. Sec. 1381) establishes the Office of Congressional
Workplace Rights as an independent office within the
Legislative Branch.
The Board noted in the Notice of Proposed Regulations (NPR)
that it had not identified any good cause for issuing three
separate sets of regulations and that if the regulations were
approved as proposed, there would be one text applicable to
all employing offices and covered employees. During the
notice and comment period, the Board received comments from
the Committee on House Administration (CHA), Senate
Employment Counsel (Counsel), and the United States Capitol
Police (Capitol Police). All of the commenters noted, in
different places throughout the regulations, the need for
modifications that would apply specifically to the House,
Senate or other employing offices. Although the Board has not
found good cause to vary the Department of Labor (DOL)
regulations in all instances where requested, there are a
number of places where such variances are warranted. In light
of that and the comment by the CHA that the Congressional
Accountability Act (CAA) requires the publication of separate
regulations for the Senate, House and other covered employees
and employing offices, the Board has made that change and put
forward three separate sets of regulations, an ``H'' version,
an ``S'' version, and a ``C'' version, each denoting the
provisions that are included in the regulations that are
applicable to the House, Senate, and other employing offices,
respectively.
In its comments, CHA maintained that the definition of
``eligible employee'' in the regulations is overly broad.
Pointing to section 206(a)(2)(A) of the CAA, which defines an
``eligible employee'' as ``a covered employee performing
service in the uniformed service, within the meaning of
section 4303(13) of title 38, whose service has not been
terminated upon occurrence of any of the events enumerated in
section 4304 of title 38,'' the CHA notes that the definition
references only the present tense of the verb ``performing''
and makes no mention of the past tense. CHA also noted that
section 206 does not define ``eligible employee'' to include
an individual who was previously a member of the uniformed
services or one who applies or has applied to perform service
in the uniformed services. CHA acknowledged that this
``stands in marked contrast to the general USERRA statute's
protection of individuals who currently serve as well as to
those who have previously served, to those who have an
obligation to serve, and to those who have applied to serve
in the uniformed services (regardless of whether they
actually served).'' CHA further recognized ``that USERRA's
intent is to provide broad protections for those who serve
and have served in the uniformed services . . .'' CHA
commented that the regulations are inappropriately broad,
notwithstanding language in section 206(a)(2)(A) that
strongly suggests inclusion of an individual who has been
honorably discharged and is therefore not currently serving,
but who has served in the past.
The Board acknowledges the tension in the language in
section 206(a)(2)(A), but does not agree with the conclusions
reached by the CHA, that, absent a statutory amendment
revising the definition in section 206(a)(2)(A), the proposed
regulations should be revised to reflect that, ``as applied
by the CAA, USERRA only protects employees who are currently
`performing service in the uniformed services.' ''
The Board's authority to promulgate substantive regulations
is found in section 206 of the CAA, 2 U.S.C. Sec. 1316, which
applies certain provisions of USERRA. Section 1316 of the CAA
provides protections to eligible employees in the uniformed
services from discrimination, denial of reemployment rights,
and denial of employee benefits.
Subsection 1316(c) of the CAA requires the Board not only
to issue regulations to implement these protections, but to
issue regulations that are ``the same as the most relevant
substantive regulations promulgated by the Secretary of Labor
. . .'' This section provides that the Board may modify the
Department of Labor regulations only if it can establish good
cause as to why a modification would be more effective for
application of the protections to the legislative branch. The
Board chooses to apply a broad definition of ``eligible
employee.''
The Board does not read the ``performing service'' language
in section 206(a)(2)(A) as limiting the discrimination
protection of USERRA to only those employees who are
currently serving in the uniformed services. Rather, we
interpret the phrase ``performing service'' in this context
to refer to covered employees who have some form of military
status (i.e., those who have performed service or who have
applied or have an obligation to perform military service, as
well as those who are currently members of or who are serving
in the uniformed services) as distinguished from covered
employees who do not have this military status.
This application of the phrase ``performing service'' is
supported by several indicia of Congressional intent. First,
section 206(a)(2)(A) prohibits discrimination against
eligible employees ``within the meaning of'' subsection (a)
of section 4311 of title 38, which states:
A person who is a member of, applies to be a member of,
performs, has performed, applies to perform, or has an
obligation to perform service in a uniformed service shall
not be denied initial employment, reemployment, retention in
employment, promotion, or any benefit of employment by an
employer on the basis of that membership, application for
membership, performance of service, application for service,
or obligation.
Most, if not all, of these protections would be lost if the
phrase ``performing service'' were applied to exclude covered
employees who are not currently performing service at the
moment of the alleged violation. It would vitiate the
reemployment rights under USERRA because employees would lose
their statutory rights at the moment of discharge, whether
honorable or not. Similarly, had Congress intended to so
limit the coverage of USERRA, it could have said that ``any''
discharge was a disqualifying condition, not those that are
other than honorable.
Congressional intent is also reflected in the USERRA
statute itself, passed in 1994,
[[Page S1164]]
which states, ``It is the sense of Congress that the Federal
Government should be a model employer in carrying out the
provisions of this chapter.'' 38 USC Sec. 4301(b). A narrow
application of the phrase ``performing service'' would be
directly contrary to this statement of the sense of Congress.
Finally, we note that after the CAA was enacted, Congress
enacted the VEOA and thereby granted certain preferences in
hiring and retention during layoffs to all covered employees
who are ``veterans'' as defined in 5 U.S.C. Sec. 2108, or any
superseding legislation. We conclude that Congress intended a
broad application of the phrase ``performing service'' so
that covered employees who will perform or have performed
service are also protected against discrimination and the
improper denial of reemployment or benefits.
In light of the above, the Board has found good cause to
modify the Department of Labor's definition of ``eligible
employee.'' Further, in order to avoid any confusion as to
the application of the regulations to ``eligible'' employees,
the Board has made the appropriate editorial changes
throughout the adopted regulations.
Section 1002.5 contains the definitions used in the
regulations. Several commenters recommended that some of the
definitions in this section be edited to be consistent with
the CAA. Where appropriate, the Board has made those changes.
One specific change was the substitution of ``Capitol Guide
Service and Capitol Guide Board'' with ``Office of
Congressional Accessibility Services,'' in light of Congress
adopting PL 100-437 on October 20, 2008. The Board has
modified its regulations to reflect this change in
Sec. 1002.5(e)(3) in all versions and in Sec. 1002.5(k)(1) in
the ``C'' version.
Section 1002.5(i) defines an employee of the House of
Representatives. CHA noted that because there may be some
joint employees of the House and Senate, the definition of an
employee of the House of Representatives should also include
individuals employed by the Senate. We agree and have made
the necessary revisions.
Section 1002.5(k) defines employing office. CHA commented
that the definition in Sec. 1002.5(k)(4) was broader than the
definition of ``employing office'' in section 101(9) of the
CAA. We note that during the rulemaking procedures for VEOA,
the Board determined that in view of the selection process
for certain Senate employees, the words ``or directed'' would
be added to the definition of ``covered employee'' to include
any employee who is hired at the direction of a Senator, but
whose appointment form is signed by an officer of either
House of Congress. Although we included such language in the
proposed rules on USERRA, it appears that this language would
be overreaching for the House and other employing offices. As
the House has different methods of making appointments and
selections, this language is unnecessary and may create
confusion given the practices of the House. Accordingly, the
Board has deleted this provision from the House and other
employing offices version, but will include it in the Senate
version.
Section 1002.5(l) defines health plan. The Capitol Police
recommended that the language in the definition of health
care plans be limited to the Federal Employees Health
Benefits (FEHB) program. As discussed more fully below, the
Board is mandated to follow, as closely as possible, the
regulations applied to the executive branch. In view of the
fact that the DOL regulations apply to federal employees in
the executive branch who are also only covered under the FEHB
Program, the Board finds that there is no good cause to limit
the definition.
Section 1002.5(q) defines seniority. The Capitol Police
also recommended that this definition of seniority be deleted
because of potential conflict with definitions of seniority
in various collective bargaining agreements. The Board has
determined that there is no good cause for such a change. The
definition in the adopted regulations is not limiting and is
consistent with section 4316 of USERRA. Further, as DOL
indicated in its notice to the final USERRA regulations,
section 4316(a) of USERRA is not a statutory mandate to
impose seniority systems on employers. Rather, USERRA
requires only that those employers who provide benefits based
on seniority restore the returning service member to his or
her proper place on the seniority ladder. Because each
employing office defines and determines how seniority is to
be applied, the definition of seniority in the adopted
regulations should not conflict with collective bargaining
agreements.
Section 1002.5(s) defines undue hardship. The CHA has noted
that in setting out the standards for considering when an
action might require significant difficulty or expense, the
proposed regulations did not include the language from
Sec. 1002.5(n)(2) of the DOL's regulations. In the DOL's
regulations, section 1002.5(n)(2) provides that an action may
be considered to be an undue hardship if it requires
significant difficulty or expense when considered in light
of: the overall financial resources of the facility or
facilities involved in the provision of the action; the
number of persons employed at such facility; the effect on
expenses and resources, or the impact otherwise of such
action upon the operation of the facility. Section
1002.5(s)(2) of the proposed regulations similarly referred
to the overall financial resources of the employing office.
However, in view of the fact that employing offices also may
have multiple facilities, the Board agrees with the CHA
comments and finds that there is no good cause to delete what
was Sec. 1002.5(n)(2) of the DOL regulations. Therefore, what
was section 1002.5(n)(2) of the DOL regulations has been
included in the adopted regulations as section 1002.5(s)(2)
and subsequent sections have been renumbered accordingly.
Section 1002.7 states that USERRA supersedes any state and
local law, contract, or policy that reduces or limits any
rights or benefits provided by USERRA, but does not supersede
those provisions that are more beneficial. Senate Employment
Counsel commented that reference to the fact that USERRA
supersedes any state and local laws is superfluous and does
not apply to legislative offices. Further, Counsel
recommended that the section referring to the fact that
USERRA does not supersede more beneficial state or local laws
be omitted. The Board acknowledges that state and local laws
do not apply to federal employees or the employing offices
covered under the CAA. Therefore, in order to avoid any
confusion, the Board has made the appropriate changes.
As a general comment, the Capitol Police raised questions
about the Board's reference in the notice to Britton v.
Office of the Architect of the Capitol. The Capitol Police
maintains that Britton is not applicable to section 4311(a)
or (b) and that the USERRA regulations should not be changed
to include substantive regulations under the CAA. The Board
notes that the reference to the Britton case and retaliation
under section 208 of the CAA is merely explanatory and not a
part of the substantive regulations. In the NPR, there was a
typographical error. The correct statement is that the Board
does not propose a particular standard for claims of
discrimination or retaliation brought by eligible employees
under section 206. Any discussion referring to Section 206
retaliation is for explicative purposes only.
Section 1002.20, as set out in the proposed regulations,
discussed the extent of the coverage of USERRA's prohibitions
against discrimination and retaliation. Several commenters
noted that section 1002.20 and 1002.21 were confusing and did
not clearly differentiate discrimination and retaliation
protections as applied by section 206 and section 208 of the
CAA. The Board agrees and has modified section 1002.20 and
replaced section 1002.21 with a new section to reflect that
USERRA protects eligible employees in all positions with
covered employing offices. Thus, because section 206 of the
CAA only covers ``eligible employees'' as defined in section
1002.5(f), ``covered employees'' would only be protected by
the anti-retaliation provisions under section 208 of the CAA.
Additionally, in its comments, the Capitol Police asked why
the numbering of section 1002.20 and 1002.21 was reversed and
why section 1002.22 covering the burden of proving
discrimination or retaliation was excluded. The Board notes
that it had good cause to delete section 1002.22 as Congress
specifically did not adopt the ``but for'' test (38 U.S.C
Sec. 4311 (c)(1) and (2)) and therefore it was confusing and
unnecessary to include this provision. In view of the
revisions to section 1002.20 and 1002.21 noted above, the
Board has kept the order as it was in the proposed
regulations to be more consistent with these edits.
As a general comment, the CHA noted that with respect to
employees in the House, the statement in the NPR that ``it is
not permitted for an employee to work for a Member office and
a Committee at the same time'' is incorrect. Although this
statement is not part of the substantive regulations, where
there are variations in the employment requirements of
different employing offices, the Board has made the necessary
changes to each of the versions of the adopted regulations.
Section 1002.32 sets out the criteria that an employee must
meet to be eligible under USERRA for reemployment after
service in the uniformed services. The CHA recommended that
this section be changed to be consistent with the definition
of eligible employee in section 206(a)(2)(A) of the CAA, and
for clarity as applied to individual employing offices that
may cease to exist while an eligible employee is performing
service. The Board agrees and has changed the House and
Senate versions to reflect that generally, if an eligible
employee is absent from a position in an employing office by
reason of service in the uniformed services, he or she will
be eligible for employment in the same employing office if
that employing office continues to exist at such time.
Section 1002.34 of the proposed regulations established
that USERRA applies to all covered employing offices of the
legislative branch as defined in Subpart A, Sec. 1002.5(e).
Both the Capitol Police and Senate Employment Counsel
commented that the definition of ``employing office'' should
be changed to track the CAA, rather than the definition in
the proposed regulations. Thus, Counsel notes that any
regulation the OCWR issues for an ``employing office'' should
track 2 U.S.C. Sec. 1301(a)(9), and include the General
Accounting Office and Library of Congress, as required under
2 U.S.C. Sec. 1316(a)(2)(C). The Board agrees and has changed
the definition to more closely follow the CAA.
Section 1002.40 states that in protecting against
discrimination in initial hiring decisions, an employing
office need not actually
[[Page S1165]]
employ an individual to be his or her employer. The CHA
commented that it is not correct to say that ``[a]n employing
office need not actually employ an individual to be his or
her `employer.' '' The CHA noted that while the result is the
same--an applicant who is otherwise an eligible employee
cannot be discriminated against in initial employment based
on his or her performing service in the uniformed service--to
say that the employing office is his or her employer is
incorrect. The Board agrees and has made the change to
reflect that while an employing office may not technically be
the ``employer'' of an applicant, the result is the same--the
employing office is liable under the Act if it engages in
discrimination against an applicant based on his or her
performing service in the uniformed service.
Section 1002.120 allows an employee to seek or obtain
employment with an employer other than the pre-service
employing office during the period of time within which a
reemployment application must be made, without giving up
reemployment rights with the pre-service employing office.
The proposed regulations stated that such alternative
employment during the application period should not be of a
type that would constitute a cause for the employing office
to discipline or terminate the employee following
reemployment. The CHA has noted that because employees of the
House are ``at-will,'' reference to termination and/or
discipline for ``cause'' in this section is inapplicable and
could be confusing. While the Board recognizes that employees
of the House are ``at-will,'' the same issues raised by the
CHA can apply to many executive branch and private sector
employees, as well. In view of the fact that the DOL
regulations contain the same provision, notwithstanding the
different employment arrangements in the private sector and
executive branch agencies, the Board finds no good cause to
make the change.
USERRA ensures that eligible employees are provided with
health and pension plan coverage on a continuing basis in
certain circumstances and reinstatement of coverage upon
reemployment. All of the commenters raised concerns over the
inclusion of provisions concerning health and pension plan
benefits and asked that these provisions be withdrawn or
limited specifically to the specific health and pension plans
covering federal employees. For example, the CHA notes that
House employing offices do not provide health or retirement
benefits to their employees and do not pay or administer
contributions and/or premiums for such plans. Similarly,
Senate Employment Counsel explained that while employees of
Senate employing offices are entitled to health plan coverage
and pension benefits under the FEHB and Civil Service
Retirement System (CSRS) or the Federal Employment Retirement
System (FERS), their respective employing offices do not
provide the ``employer contribution'' for such coverage and
do not determine when such coverage starts or is reinstated
or any terms or conditions of the coverage. Moreover, while
the Senate appropriates monies for any agency contribution to
such plans, these contributions do not come from the monies
appropriated to individual employing offices.
The Board recognizes that the role of the Senate and House
employing offices in administering health and pension plans
is somewhat attenuated. With the caveat in mind that it is
the U.S. Office of Personnel Management that controls not
only federal employee health plans, but pension plans as
well, the Board nonetheless does not find good cause to
exclude these provisions from the adopted regulations. In
support of this, the Board notes that the DOL regulations
cover federal employees in the executive branch who are also
covered under the FEHB, CSRS and FERS. Moreover, USERRA
itself states in section 4318 that a right provided under any
Federal or State law governing pension benefits for
governmental employees (except for benefits under the Thrift
Savings Plan) is covered. The Board is not aware of every
employment relationship in the legislative branch and there
is always the possibility that there may be situations where
employees are not covered under the FEHB or CSRS/FERS, or may
be covered under craft union or multi-employer plans. The
Board further notes that to the extent that an employing
office does not control nor is responsible for assuring that
eligible employees are properly covered under health and
pension plans, these provisions would not apply. Although
employing offices may not have direct control over health and
pension plans, they are responsible for ensuring that
eligible employees are covered by facilitating or requesting
that the necessary contribution or funding is made. Rather
than deleting sections of the regulations, the Board has
revised the regulations to reflect the responsibility of the
employing offices and where appropriate, has made changes to
reflect that while employing agencies may not have control
over the plans, they do have some responsibility in assuring
that eligible employees are covered as required under USERRA.
Section 1002.247 protects an employee against discharge.
Rather than state that a discharge except for cause is
prohibited if an employee's most recent period of service was
for more than 30 days, the proposed regulations stated that,
because legislative employees are at will, a discharge
without cause could create a rebuttable presumption of a
violation. In its comments, the CHA notes that in modifying
this section, the explanation regarding the discharge of a
returning employee was unclear. The Board agrees that there
is no ``good cause'' for making the revisions originally
contained in the proposed regulations and has changed this
section to be consistent with DOL regulations.
Section 1002.303 requires that employees file a claim form
with OCWR before making an election between requesting an
administrative hearing or filing a civil action in Federal
district court. The proposed regulations contained language
that provided for ``covered'' rather than ``eligible''
employees to bring claims under USERRA to the OCWR.
The CHA commented that to be consistent with section
206(a)(2)(A) of the CAA, this provision should be modified to
make clear that only ``eligible employees'' may bring claims
under section 206. The Board agrees and because only eligible
employees are covered under section 206 discrimination and
retaliation provisions, this section has been modified.
Section 1002.312 provides for the various remedies that may
be awarded for violations of USERRA, including liquidated
damages. The CHA commented that because of a technical error
in the CAA (a reference to section ``4323(c)'' rather than
``4323(d)''), there is no statutory authority to provide for
liquidated damages remedies under USERRA. In its notice of
rulemaking, the Board noted the same error. Congress
subsequently corrected this typographical error by way of the
adoption of the CAA Reform Act, making clear its intent that
the liquidated damages provision of USERRA be applied under
the CAA.
Under section 1002.310 and 1002.314 of the proposed
regulations, respectively, fees and court costs may not be
charged against individuals claiming rights under the CAA and
courts and/or hearing officers may use their equity powers in
actions or proceedings under the Act. The CHA commented that
because section 1002.314 and the first sentence of section
1002.310 are based on sections of USERRA that are not
incorporated by the CAA (sections 4323(e) and 4323(h)
respectively), these provisions should be deleted from the
adopted regulations. The Board has reviewed these comments
and while we would find that, notwithstanding any
``technical'' error, the CAA does incorporate the remedies
set out in section 1002.314 (a)-(c), we agree that the CAA
does not include the remedies articulated in sections 4323(e)
and 4323(h) of USERRA. As the first sentence in section
1002.310 of the proposed regulations does appear to mirror
section 4323(h) of USERRA and section 002.314 of the proposed
regulations similarly mirrors section 4323(e), in order to
avoid any confusion, the Board has found good cause to delete
these provisions. The Board has retained the part of section
1002.310 pertaining to the awarding of fees and costs. As
discussed in the NPR, the Board found that the DOL
regulations permitting an award of fees and court costs for
an individual who has obtained counsel and prevailed in his
or her claim against the employer was consistent with section
225(a) of the CAA, permitting a prevailing covered employee
to be awarded reasonable fees and costs. To be more fully
consistent with the CAA, the Board has kept its modification
of the language removing the requirement that the individual
retain private counsel as a condition of such an award.
When approved by the House of Representatives for the House
of Representatives, these regulations will have the prefix
``H.''
Subpart A: Introduction to the Regulations
This part implements certain provisions of the Uniformed
Services Employment and Reemployment Rights Act of 1994
(``USERRA'' or ``the Act''), as applied by the Congressional
Accountability Act (``CAA''). 2 U.S.C. 1316. USERRA is a law
that establishes certain rights and benefits for employees,
and duties for employers. USERRA affects employment,
reemployment, and retention in employment, when employees
serve or have served in the uniformed services. There are
five subparts to these regulations. Subpart A gives an
introduction to the USERRA regulations. Subpart B describes
USERRA's anti-discrimination and anti-retaliation provisions.
Subpart C explains the steps that must be taken by a
uniformed service member who wants to return to his or her
previous civilian employment. Subpart D describes the rights,
benefits, and obligations of persons absent from employment
due to service in the uniformed services, including rights
and obligations related to health plan
[[Page S1166]]
coverage. Subpart E describes the rights, benefits, and
obligations of the returning veteran or service member.
Subpart F explains the role of the Office of Congressional
Workplace Rights in administering USERRA as applied by the
CAA.
USERRA is the latest in a series of laws protecting
veterans' employment and reemployment rights going back to
the Selective Training and Service Act of 1940. USERRA's
immediate predecessor was commonly referred to as the
Veterans' Reemployment Rights Act (``VRRA''), which was
enacted as section 404 of the Vietnam Era Veterans'
Readjustment Assistance Act of 1974. In enacting USERRA,
Congress emphasized USERRA's continuity with the VRRA and its
intention to clarify and strengthen that law. Congress also
emphasized that Federal laws protecting veterans' employment
and reemployment rights for the past fifty years had been
successful and that the large body of case law that had
developed under those statutes remained in full force and
effect, to the extent it is consistent with USERRA. USERRA
authorized the Department of Labor to publish regulations
implementing the Act for State, local government, and private
employers. USERRA also authorized the Office of Personnel
Management to issue regulations implementing the Act for
Federal executive agencies, with the exception of certain
Federal intelligence agencies. For those Federal intelligence
agencies, USERRA established a separate program for
employees. Section 206 of the CAA, 2 U.S.C. 1316, requires
the Board of Directors of the Office of Congressional
Workplace Rights to issue regulations to implement the
statutory provisions relating to employment and reemployment
rights of members of the uniformed services. The regulations
are required to be the same as substantive regulations
promulgated by the Secretary of Labor, except where a
modification of such regulations would be more effective for
the implementation of the rights and protections of the Act.
The Department of Labor issued its regulations, effective
January 18, 2006. The regulations set forth herein are the
substantive regulations that the Board of Directors of the
Office of Congressional Workplace Rights has promulgated for
the legislative branch, for the implementation of the USERRA
provisions of the CAA. All references to USERRA in these
regulations, means USERRA, as applied by the CAA.
USERRA, as applied by the CAA, became effective for
employing offices of the legislative branch on January 23,
1996.
(a) As applied by the CAA, the Executive Director of the
Office of Congressional Workplace Rights is responsible for
providing education and information to any covered employing
office or employee with respect to their rights, benefits,
and obligations under the USERRA provisions of the CAA.
(b) The Office of Congressional Workplace Rights, under the
direction of the Executive Director, is responsible for the
processing of claims filed pursuant to these regulations.
More information about the Office of Congressional Workplace
Rights' role is contained in Subpart F.
(a) Act or USERRA means the Uniformed Services Employment
and Reemployment Rights Act of 1994, as applied by the CAA.
(b) Benefit, benefit of employment, or rights and benefits
means any advantage, profit, privilege, gain, status,
account, or interest (other than wages or salary for work
performed) that accrues to the employee because of an
employment contract, employment agreement, or employing
office policy, plan, or practice. The term includes rights
and benefits under a pension plan, health plan, insurance
coverage and awards, bonuses, severance pay, supplemental
unemployment benefits, vacations, and, where applicable, the
opportunity to select work hours or the location of
employment.
(c) Board means Board of Directors of the Office of
Congressional Workplace Rights.
(d) CAA means the Congressional Accountability Act of 1995,
as amended (Pub. L. 104-1, 109 Stat. 3, 2 U.S.C. 1301-1438).
(e) Covered employee means any employee, including an
applicant for employment and a former employee, of (1) the
House of Representatives; (2) the Senate; (3) the Office of
Congressional Accessibility Services; (4) the Capitol Police;
(5) the Congressional Budget Office; (6) the Office of the
Architect of the Capitol; (7) the Office of the Attending
Physician; (8) the Government Accountability Office; (9) the
Library of Congress; and (10) the Office of Congressional
Workplace Rights.
(f) Eligible employee means a covered employee performing
service in the uniformed services, as defined in 1002.5(t) of
this subpart, whose service has not been terminated upon
occurrence of any of the events enumerated in section
1002.135 of these regulations. For the purpose of defining
who is covered under the discrimination section of these
regulations, ``performing service'' means an eligible
employee who is a member of, applies to be a member of,
performs, has performed, applies to perform, or has an
obligation to perform service in the uniformed services.
(g) Employee of the Office of the Architect of the Capitol
includes any employee of the Office of the Architect of the
Capitol, the Botanic Gardens, or the Senate Restaurants.
(h) Employee of the Capitol Police includes any member or
officer of the Capitol Police.
(i) Employee of the House of Representatives includes an
individual occupying a position for which the pay is
disbursed by the Chief Administrative Officer of the House of
Representatives, or another official designated by the House
of Representatives, or any employment position in an entity
that is paid with funds derived from the clerk-hire allowance
of the House of Representatives but not any such individual
employed by any entity listed in subparagraphs (3) through
(10) of paragraph (e) above.
(j) Employee of the Senate includes an individual occupying
a position for which the pay is disbursed by the Secretary of
the Senate, but not any such individual employed by any
entity listed in subparagraphs (3) through (10) of paragraph
(e) above.
(k) Employing office means (1) the personal office of a
Member of the House of Representatives; (2) a committee of
the House of Representatives or a joint committee of the
House of Representatives and the Senate (3) any other office
headed by a person with the final authority to appoint, hire,
discharge, and set the terms, conditions, or privileges of
the employment of an employee of the House of
Representatives.
(l) Health plan means an insurance policy, insurance
contract, medical or hospital service agreement, membership
or subscription contract, or other arrangement under which
health services for individuals are provided or the expenses
of such services are paid.
(m) Notice, when the eligible employee is required to give
advance notice of service, means any written or oral
notification of an obligation or intention to perform service
in the uniformed services provided to an employing office by
the employee who will perform such service, or by the
uniformed service in which the service is to be performed.
(n) Office means the Office of Congressional Workplace
Rights.
(o) Qualified, with respect to an employment position,
means having the ability to perform the essential tasks of
the position.
(p) Reasonable efforts, in the case of actions required of
an employing office, means actions, including training
provided by an employing office that do not place an undue
hardship on the employing office.
(q) Seniority means longevity in employment together with
any benefits of employment that accrue with, or are
determined by, longevity in employment.
(r) Service in the uniformed services means the performance
of duty on a voluntary or involuntary basis in a uniformed
service under competent authority. Service in the uniformed
services includes active duty, active and inactive duty for
training, National Guard duty under Federal statute, and a
period for which a person is absent from a position of
employment for an examination to determine the fitness of the
person to perform such duty. The term also includes a period
for which a person is absent from employment to perform
funeral honors duty as authorized by law (10 U.S.C. 12503 or
32 U.S.C. 115). The Public Health Security and Bioterrorism
Preparedness and Response Act of 2002, Pub. L. 107-188,
provides that service as an intermittent disaster-response
appointee upon activation of the National Disaster Medical
System (NDMS) or as a participant in an authorized training
program is deemed ``service in the uniformed services.'' 42
U.S.C. 300hh-11(d)(3).
(s) Undue hardship, in the case of actions taken by an
employing office, means an action requiring significant
difficulty or expense, when considered in light of--
(1) The nature and cost of the action needed under USERRA
and these regulations;
(2) the overall financial resources of the facility or
facilities involved in the provision of the action; the
number of persons employed at such facility; the effect on
expenses and resources, or the impact otherwise of such
action upon the operation of the facility;
(3) The overall financial resources of the employing
office; the overall size of the business of an employing
office with respect to the number of its employees; the
number, type, and location of its facilities; and,
(4) The type of operation or operations of the employing
office, including the composition, structure, and functions
of the work force of such employing office; the geographic
separateness, administrative, or fiscal relationship of the
State, District, or satellite office in question to the
employing office.
(t) Uniformed services means the Armed Forces; the Army
National Guard and the Air National Guard when engaged in
active duty for training, inactive duty training, or full-
time National Guard duty; the commissioned corps of the
Public Health Service; and any other category of persons
designated by the President in time of war or national
emergency. For purposes of USERRA coverage only, service as
an intermittent disaster response appointee of the National
Disaster Medical System (NDMS) when federally activated or
attending authorized training in support of their Federal
mission is deemed ``service in the uniformed services,''
although such appointee is not a member of the ``uniformed
services'' as defined by USERRA.
The definition of ``service in the uniformed services''
covers all categories of military
[[Page S1167]]
training and service, including duty performed on a voluntary
or involuntary basis, in time of peace or war. Although most
often understood as applying to National Guard and reserve
military personnel, USERRA also applies to persons serving in
the active components of the Armed Forces. Certain types of
service specified in 42 U.S.C. 300hh-11 by members of the
National Disaster Medical System are covered by USERRA.
(a) USERRA establishes a floor, not a ceiling, for the
employment and reemployment rights and benefits of those it
protects. In other words, an employing office may provide
greater rights and benefits than USERRA requires, but no
employing office can refuse to provide any right or benefit
guaranteed by USERRA, as applied by the CAA.
(b) USERRA supersedes any contract, agreement, policy,
plan, practice, or other matter that reduces, limits, or
eliminates in any manner any right or benefit provided by
USERRA, including the establishment of additional
prerequisites to the exercise of any USERRA right or the
receipt of any USERRA benefit. For example, an office policy
that determines seniority based only on actual days of work
in the place of employment would be superseded by USERRA,
which requires that seniority credit be given for periods of
absence from work due to service in the uniformed services.
(c) USERRA does not supersede, nullify or diminish any
Federal law, contract, agreement, policy, plan, practice, or
other matter that establishes an employment right or benefit
that is more beneficial than, or is in addition to, a right
or benefit provided under the Act. For example, although
USERRA does not require an employing office to pay an
eligible employee for time away from work performing service,
an employing office policy, plan, or practice that provides
such a benefit is permissible under USERRA.
(d) If an employing office provides a benefit that exceeds
USERRA's requirements in one area, it cannot reduce or limit
other rights or benefits provided by USERRA. For example,
even though USERRA does not require it, an employing office
may provide a fixed number of days of paid military leave per
year to employees who are members of the National Guard or
Reserve. The fact that it provides such a benefit, however,
does not permit an employing office to refuse to provide an
unpaid leave of absence to an employee to perform service in
the uniformed services in excess of the number of days of
paid military leave.
Subpart B: Anti-Discrimination and Anti-Retaliation
Protection From Employer Discrimination and Retaliation
An employing office must not deny initial employment,
reemployment, retention in employment, promotion, or any
benefit of employment to an individual on the basis of his or
her membership, application for membership, performance of
service, application for service, or obligation for service
in the uniformed services.
An employing office must not retaliate against an eligible
employee by taking any adverse employment action against him
or her because the eligible employee has taken an action to
enforce a protection afforded any person under USERRA;
testified or otherwise made a statement in or in connection
with a proceeding under USERRA; assisted or participated in a
USERRA investigation; or exercised a right provided for by
USERRA.
Under USERRA, as applied by the CAA, the prohibitions
against discrimination and retaliation apply to eligible
employees in all positions within covered employing offices,
including those that are for a brief, nonrecurrent period,
and for which there is no reasonable expectation that the
employment position will continue indefinitely or for a
significant period. However, USERRA's reemployment rights and
benefits do not apply to such brief, non-recurrent positions
of employment.
USERRA's provisions, as applied by section 206 of the CAA,
prohibit discrimination and retaliation only against eligible
employees. Section 208(a) of the CAA, 2 U.S.C. 1317(a),
however, prohibits retaliation against all covered employees
because the employee has opposed any practice made unlawful
under the CAA, including a violation of USERRA's provisions,
as applied by the CAA; or testified; assisted; or
participated in any manner in a hearing or proceeding under
the CAA.
Subpart C: Eligibility for Reemployment
General Eligibility For Reemployment
Coverage of Employers and Positions
Coverage of Service in the Uniformed Services
Absence From a Position of Employment Necessitated by Reason of Service
in the Uniformed Services
Period of Service
Application for Employment
[[Page S1168]]
Character of Service
Employer Statutory Defenses
General Eligibility for Reemployment
(a) In general, if an eligible employee has been absent
from a position of employment in an employing office by
reason of service in the uniformed services, he or she will
be eligible for reemployment in that same employing office,
if that employing office continues to exist at such time, by
meeting the following criteria:
(1) The employing office had advance notice of the eligible
employee's service;
(2) The eligible employee has five years or less of
cumulative service in the uniformed services in his or her
employment relationship with a particular employing office;
(3) The eligible employee timely returns to work or applies
for reemployment; and,
(4) The eligible employee has not been separated from
service with a disqualifying discharge or under other than
honorable conditions.
(b) These general eligibility requirements have important
qualifications and exceptions, which are described in detail
in Sec. Sec. 1002.73 through 1002.138. If the employee meets
these eligibility criteria, then he or she is eligible for
reemployment unless the employing office establishes one of
the defenses described in Sec. 1002.139. The employment
position to which the eligible employee is entitled is
described in Sec. Sec. 1002.191 through 1002.199.
No. The eligible employee is not required to prove that the
employing office discriminated against him or her because of
the employee's uniformed service in order to be eligible for
reemployment.
Coverage of Employers and Positions
USERRA applies to all covered employing offices of the
legislative branch as defined in 2 U.S.C. 1301(9) and 2
U.S.C. 1316(a)(2)(C).
Yes. The definition of employer in the USERRA provision as
applied by the CAA includes an employing office that has
denied initial employment to an individual in violation of
USERRA's anti-discrimination provisions. An employing office
need not actually employ an individual to be liable under the
Act, if it has denied initial employment on the basis of the
individual's membership, application for membership,
performance of service, application for service, or
obligation for service in the uniformed services. Similarly,
the employing office would be liable if it denied initial
employment on the basis of the individual's action taken to
enforce a protection afforded to any person under USERRA, his
or her testimony or statement in connection with any USERRA
proceeding, assistance or other participation in a USERRA
investigation, or the exercise of any other right provided by
the Act. For example, if the individual has been denied
initial employment because of his or her obligations as a
member of the National Guard or Reserves, the employing
office denying employment is liable under USERRA. Similarly,
if an employing office withdraws an offer of employment
because the individual is called upon to fulfill an
obligation in the uniformed services, the employing office
withdrawing the employment offer is also liable under USERRA.
USERRA rights are not diminished because an eligible
employee holds a temporary, part-time, probationary, or
seasonal employment position. However, an employing office is
not required to reemploy an eligible employee if the
employment he or she left to serve in the uniformed services
was for a brief, nonrecurrent period and there is no
reasonable expectation that the employment would have
continued indefinitely or for a significant period. The
employing office bears the burden of proving this affirmative
defense.
(a) If an eligible employee is laid off with recall rights,
or on a leave of absence, he or she is protected under
USERRA. If the eligible employee is on layoff and begins
service in the uniformed services, or is laid off while
performing service, he or she may be entitled to reemployment
on return if the employing office would have recalled the
employee to employment during the period of service. Similar
principles apply if the eligible employee is on a leave of
absence from work when he or she begins a period of service
in the uniformed services.
(b) If the eligible employee is sent a recall notice during
a period of service in the uniformed services and cannot
resume the position of employment because of the service, he
or she still remains an eligible employee for purposes of the
Act. Therefore, if the employee is otherwise eligible, he or
she is entitled to reemployment following the conclusion of
the period of service, even if he or she did not respond to
the recall notice.
(c) If the eligible employee is laid off before or during
service in the uniformed services, and the employing office
would not have recalled him or her during that period of
service, the employee is not entitled to reemployment
following the period of service simply because he or she is
an eligible employee. Reemployment rights under USERRA cannot
put the eligible employee in a better position than if he or
she had remained in the civilian employment position.
Yes. USERRA applies to all eligible employees. There is no
exclusion for executive, managerial, or professional
employees.
No. USERRA, as applied by the CAA, does not provide
protections for an independent contractor.
COVERAGE OF SERVICE IN THE UNIFORMED SERVICES
Yes. USERRA's definition of ``service in the uniformed
services'' includes a period for which an eligible employee
is absent from a position of employment for the purpose of an
examination to determine his or her fitness to perform duty
in the uniformed services. Military fitness examinations can
address more than physical or medical fitness, and include
evaluations for mental, educational, and other types of
fitness. Any examination to determine an eligible employee's
fitness for service is covered, whether it is an initial or
recurring examination. For example, a periodic medical
examination required of a Reserve component member to
determine fitness for continued service is covered.
(a) USERRA's definition of ``service in the uniformed
services'' includes a period for which an eligible employee
is absent from employment for the purpose of performing
authorized funeral honors duty under 10 U.S.C. 12503 (members
of Reserve ordered to perform funeral honors duty) or 32
U.S.C. 115 (Member of Air or Army National Guard ordered to
perform funeral honors duty).
(b) Funeral honors duty performed by persons who are not
members of the uniformed services, such as members of
veterans' service organizations, is not ``service in the
uniformed services.''
[[Page S1169]]
Under a provision of the Public Health Security and
Bioterrorism Preparedness and Response Act of 2002, 42 U.S.C.
300hh 11(d)(3), ``service in the uniformed services''
includes service performed as an intermittent disaster-
response appointee upon activation of the National Disaster
Medical System or participation in an authorized training
program, even if the eligible employee is not a member of the
uniformed services.
No. Only Federal National Guard Service is considered
``service in the uniformed services.'' The National Guard has
a dual status. It is a Reserve component of the Army, or, in
the case of the Air National Guard, of the Air Force.
Simultaneously, it is a State military force subject to call-
up by the State Governor for duty not subject to Federal
control, such as emergency duty in cases of floods or riots.
National Guard members may perform service under either
Federal or State authority, but only Federal National Guard
service is covered by USERRA.
(a) National Guard service under Federal authority is
protected by USERRA. Service under Federal authority includes
active duty performed under Title 10 of the United States
Code. Service under Federal authority also includes duty
under Title 32 of the United States Code, such as active duty
for training, inactive duty training, or full-time National
Guard duty.
(b) National Guard service under authority of State law is
not protected by USERRA. However, many States have laws
protecting the civilian job rights of National Guard members
who serve under State orders. Enforcement of those State laws
is not covered by USERRA or these regulations.
Yes. Service in the commissioned corps of the Public Health
Service (PHS) is ``service in the uniformed services'' under
USERRA.
Yes. In time of war or national emergency, the President
has authority to designate any category of persons as a
``uniformed service'' for purposes of USERRA. If the
President exercises this authority, service as a member of
that category of persons would be ``service in the uniformed
services'' under USERRA.
Yes. Attending a military service academy is considered
uniformed service for purposes of USERRA. There are four
service academies: The United States Military Academy (West
Point, New York), the United States Naval Academy (Annapolis,
Maryland), the United States Air Force Academy (Colorado
Springs, Colorado), and the United States Coast Guard Academy
(New London, Connecticut).
Yes, under certain conditions.
(a) Membership in the Reserve Officers Training Corps
(ROTC) or the Junior ROTC is not ``service in the uniformed
services.'' However, some Reserve and National Guard enlisted
members use a college ROTC program as a means of qualifying
for commissioned officer status. National Guard and Reserve
members in an ROTC program may at times, while participating
in that program, be receiving active duty and inactive duty
training service credit with their unit. In these cases,
participating in ROTC training sessions is considered
``service in the uniformed services,'' and qualifies a person
for protection under USERRA's reemployment and anti-
discrimination provisions.
(b) Typically, an individual in a College ROTC program
enters into an agreement with a particular military service
that obligates such individual to either complete the ROTC
program and accept a commission or, in case he or she does
not successfully complete the ROTC program, to serve as an
enlisted member. Although an individual does not qualify for
reemployment protection, except as specified in (a) above, he
or she is protected under USERRA's anti-discrimination
provisions because, as a result of the agreement, he or she
has applied to become a member of the uniformed services and
has incurred an obligation to perform future service.
No. Although the Commissioned Corps of the National Oceanic
and Atmospheric Administration (NOAA) is a ``uniformed
service'' for some purposes, it is not included in USERRA's
definition of this term. Service in the Civil Air Patrol and
the Coast Guard Auxiliary similarly is not considered
``service in the uniformed services'' for purposes of USERRA.
Consequently, service performed in the Commissioned Corps of
the National Oceanic and Atmospheric Administration (NOAA),
the Civil Air Patrol, and the Coast Guard Auxiliary is not
protected by USERRA.
ABSENCE FROM A POSITION OF EMPLOYMENT NECESSITATED BY REASON OF SERVICE
IN THE UNIFORMED SERVICES
No. If absence from a position of employment is
necessitated by service in the uniformed services, and the
employee otherwise meets the Act's eligibility requirements,
he or she has reemployment rights under USERRA, even if the
eligible employee uses the absence for other purposes as
well. An eligible employee is not required to leave the
employment position for the sole purpose of performing
service in the uniformed services, although such uniformed
service must be the main reason for departure from
employment. For example, if the eligible employee is required
to report to an out of state location for military training
and he or she spends off-duty time during that assignment
moonlighting as a security guard or visiting relatives who
live in that State, the eligible employee will not lose
reemployment rights simply because he or she used some of the
time away from the job to do something other than attend the
military training. Also, if an eligible employee receives
advance notification of a mobilization order, and leaves his
or her employment position in order to prepare for duty, but
the mobilization is cancelled, the employee will not lose any
reemployment rights.
No. At a minimum, an eligible employee must have enough
time after leaving the employment position to travel safely
to the uniformed service site and arrive fit to perform the
service. Depending on the specific circumstances, including
the duration of service, the amount of notice received, and
the location of the service, additional time to rest, or to
arrange affairs and report to duty, may be necessitated by
reason of service in the uniformed services. The following
examples help to explain the issue of the period of time
between leaving civilian employment and beginning service in
the uniformed services:
(a) If the eligible employee performs a full overnight
shift for the civilian employer and travels directly from the
work site to perform a full day of uniformed service, the
eligible employee would not be considered fit to perform the
uniformed service. An absence from that work shift is
necessitated so that the eligible employee can report for
uniformed service fit for duty.
(b) If the eligible employee is ordered to perform an
extended period of service in the uniformed services, he or
she may require a reasonable period of time off from the
civilian job to put his or her personal affairs in order,
before beginning the service. Taking such time off is also
necessitated by the uniformed service.
(c) If the eligible employee leaves a position of
employment in order to enlist or otherwise perform service in
the uniformed services and, through no fault of his or her
own, the beginning date of the service is delayed, this delay
does not terminate any reemployment rights.
(a) Yes. The eligible employee, or an appropriate officer
of the uniformed service in which his or her service is to be
performed, must notify the employing office that the employee
intends to leave the employment position to perform service
in the uniformed services, with certain exceptions described
below. In cases in which an eligible employee is employed by
more than one employing office, the employee, or an
appropriate officer of the uniformed service in which his or
her service is to be performed, must notify each employing
office that the employee intends to leave the employment
position to perform service in the uniformed services, with
certain exceptions described below.
(b) The Department of Defense USERRA regulations at 32 CFR
104.3 provide that an ``appropriate officer'' can give notice
on the eligible employee's behalf. An ``appropriate officer''
is a commissioned, warrant, or non-commissioned officer
authorized to give such notice by the military service
concerned.
(c) The eligible employee's notice to the employing office
may be either oral or written. The notice may be informal and
does not need to follow any particular format.
(d) Although USERRA does not specify how far in advance
notice must be given to the employing office, an eligible
employee should provide notice as far in advance as is
reasonable under the circumstances. In regulations
promulgated by the Department of Defense under USERRA, 32 CFR
104.6(a)(2)(i)(B), the Defense Department ``strongly
recommends that advance notice to civilian employers be
provided at least 30 days prior to departure for uniformed
service when it is feasible to do so.''
The eligible employee is required to give advance notice of
pending service unless giving such notice is prevented by
military necessity, or is otherwise impossible or
unreasonable under all the circumstances.
(a) Only a designated authority can make a determination of
``military necessity,'' and
[[Page S1170]]
such a determination is not subject to judicial review.
Guidelines for defining ``military necessity'' appear in
regulations issued by the Department of Defense at 32 CFR
104.3. In general, these regulations cover situations where a
mission, operation, exercise or requirement is classified, or
could be compromised or otherwise adversely affected by
public knowledge. In certain cases, the Secretary of Homeland
Security, in consultation with the Secretary of Defense, can
make a determination that giving of notice by intermittent
disaster-response appointees of the National Disaster Medical
System is precluded by ``military necessity.'' See 42 U.S.C.
300hh-11(d)(3)(B).
(b) It may be impossible or unreasonable to give advance
notice under certain circumstances. Such circumstances may
include the unavailability of the eligible employee's
employing office or the employing office's representative, or
a requirement that the eligible employee report for uniformed
service in an extremely short period of time.
No. The eligible employee is not required to ask for or get
the employing office's permission to leave to perform service
in the uniformed services. The eligible employee is only
required to give the employing office notice of pending
service.
No. When the eligible employee leaves the employment
position to begin a period of service, he or she is not
required to tell the employing office that he or she intends
to seek reemployment after completing uniformed service. Even
if the eligible employee tells the employing office before
entering or completing uniformed service that he or she does
not intend to seek reemployment after completing the
uniformed service, the employee does not forfeit the right to
reemployment after completing service. The eligible employee
is not required to decide in advance of leaving the position
with the employing office, whether he or she will seek
reemployment after completing uniformed service.
Period of Service
Yes. In general, the eligible employee may perform service
in the uniformed services for a cumulative period of up to
five (5) years and retain reemployment rights with the
employing office. The exceptions to this rule are described
below.
No. The five-year period includes only the time the
eligible employee spends actually performing service in the
uniformed services. A period of absence from employment
before or after performing service in the uniformed services
does not count against the five-year limit. For example,
after the eligible employee completes a period of service in
the uniformed services, he or she is provided a certain
amount of time, depending upon the length of service, to
report back to work or submit an application for
reemployment. The period between completing the uniformed
service and reporting back to work or seeking reemployment
does not count against the five-year limit.
No. An eligible employee is entitled to a leave of absence
for uniformed service for up to five years with each
employing office for whom he or she works or has worked. When
the eligible employee takes a position with a new employing
office, the five-year period begins again regardless of how
much service he or she performed while working in any
previous employment relationship. If an eligible employee is
employed by more than one employing office, a separate five-
year period runs as to each employing office independently,
even if those employing offices share or co-determine the
employee's terms and conditions of employment. For example,
an eligible employee of the legislative branch may work part-
time for two employing offices. In this case, a separate
five-year period would run as to the eligible employee's
employment with each respective employing office.
It depends. Under the CAA, USERRA provides reemployment
rights to which an eligible employee may become entitled
beginning on or after January 23, 1996, but any uniformed
service performed before January 23, 1996, that was counted
against the service limitations of the previous law (the
Veterans Reemployment Rights Act), also counts against
USERRA's five-year limit.
(a) USERRA creates the following exceptions to the five-
year limit on service in the uniformed services:
(1) Service that is required beyond five years to complete
an initial period of obligated service. Some military
specialties require an individual to serve more than five
years because of the amount of time or expense involved in
training. If the eligible employee works in one of those
specialties, he or she has reemployment rights when the
initial period of obligated service is completed;
(2) If the eligible employee was unable to obtain orders
releasing him or her from service in the uniformed services
before the expiration of the five-year period, and the
inability was not the employee's fault;
(3)(i) Service performed to fulfill periodic National Guard
and Reserve training requirements as prescribed by 10 U.S.C.
10147 and 32 U.S.C. 502(a) and 503; and,
(ii) Service performed to fulfill additional training
requirements determined and certified by a proper military
authority as necessary for the eligible employee's
professional development, or to complete skill training or
retraining;
(4) Service performed in a uniformed service if he or she
was ordered to or retained on active duty under:
(i) 10 U.S.C. 688 (involuntary active duty by a military
retiree);
(ii) 10 U.S.C. 12301(a) (involuntary active duty in
wartime);
(iii) 10 U.S.C. 12301(g) (retention on active duty while in
captive status);
(iv) 10 U.S.C. 12302 (involuntary active duty during a
national emergency for up to 24 months);
(v) 10 U.S.C. 12304 (involuntary active duty for an
operational mission for up to 270 days);
(vi) 10 U.S.C. 12305 (involuntary retention on active duty
of a critical person during time of crisis or other specific
conditions);
(vii) 14 U.S.C. 331 (involuntary active duty by retired
Coast Guard officer);
(viii) 14 U.S.C. 332 (voluntary active duty by retired
Coast Guard officer);
(ix) 14 U.S.C. 359 (involuntary active duty by retired
Coast Guard enlisted member);
(x) 14 U.S.C. 360 (voluntary active duty by retired Coast
Guard enlisted member);
(xi) 14 U.S.C. 367 (involuntary retention of Coast Guard
enlisted member on active duty); and
(xii) 14 U.S.C. 712 (involuntary active duty by Coast Guard
Reserve member for natural or man-made disasters).
(5) Service performed in a uniformed service if the
eligible employee was ordered to or retained on active duty
(other than for training) under any provision of law because
of a war or national emergency declared by the President or
the Congress, as determined by the Secretary concerned;
(6) Service performed in a uniformed service if the
eligible employee was ordered to active duty (other than for
training) in support of an operational mission for which
personnel have been ordered to active duty under 10 U.S.C.
12304, as determined by a proper military authority;
(7) Service performed in a uniformed service if the
eligible employee was ordered to active duty in support of a
critical mission or requirement of the uniformed services as
determined by the Secretary concerned; and,
(8) Service performed as a member of the National Guard if
the eligible employee was called to respond to an invasion,
danger of invasion, rebellion, danger of rebellion,
insurrection, or the inability of the President with regular
forces to execute the laws of the United States.
(b) Service performed in a uniformed service to mitigate
economic harm where the eligible employee's employing office
is in violation of its employment or reemployment obligations
to him or her.
No. The eligible employee is not required to accommodate
his or her employing office's interests or concerns regarding
the timing, frequency, or duration of uniformed service. The
employing office cannot refuse to reemploy the eligible
employee because it believes that the timing, frequency or
duration of the service is unreasonable. However, the
employing office is permitted to bring its concerns over the
timing, frequency, or duration of the eligible employee's
service to the attention of the appropriate military
authority. Regulations issued by the Department of Defense at
32 CFR 104.4 direct military authorities to provide
assistance to an employer in addressing these types of
employment issues. The military authorities are required to
consider requests from employers of National Guard and
Reserve members to adjust scheduled absences from civilian
employment to perform service.
Application for Employment
Yes. Upon completing service in the uniformed services, the
eligible employee must notify the pre-service employing
office of his
[[Page S1171]]
or her intent to return to the employment position by either
reporting to work or submitting a timely application for
reemployment. Whether the eligible employee is required to
report to work or submit a timely application for
reemployment depends upon the length of service, as follows:
(a) Period of service less than 31 days or for a period of
any length for the purpose of a fitness examination. If the
period of service in the uniformed services was less than 31
days, or the eligible employee was absent from a position of
employment for a period of any length for the purpose of an
examination to determine his or her fitness to perform
service, the eligible employee must report back to the
employing office not later than the beginning of the first
full regularly-scheduled work period on the first full
calendar day following the completion of the period of
service, and the expiration of eight hours after a period
allowing for safe transportation from the place of that
service to the eligible employee's residence. For example, if
the eligible employee completes a period of service and
travel home, arriving at ten o'clock in the evening, he or
she cannot be required to report to the employing office
until the beginning of the next full regularly-scheduled work
period that begins at least eight hours after arriving home,
i.e., no earlier than six o'clock the next morning. If it is
impossible or unreasonable for the eligible employee to
report within such time period through no fault of his or her
own, he or she must report to the employing office as soon as
possible after the expiration of the eight-hour period.
(b) Period of service more than 30 days but less than 181
days. If the eligible employee's period of service in the
uniformed services was for more than 30 days but less than
181 days, he or she must submit an application for
reemployment (written or oral) with the employing office not
later than 14 days after completing service. If it is
impossible or unreasonable for the eligible employee to apply
within 14 days through no fault of his or her own, he or she
must submit the application not later than the next full
calendar day after it becomes possible to do so.
(c) Period of service more than 180 days. If the eligible
employee's period of service in the uniformed services was
for more than 180 days, he or she must submit an application
for reemployment (written or oral) not later than 90 days
after completing service.
Yes. If the eligible employee is hospitalized for, or
convalescing from, an illness or injury incurred in, or
aggravated during, the performance of service, he or she must
report to or submit an application for reemployment to the
employing office at the end of the period necessary for
recovering from the illness or injury. This period may not
exceed two years from the date of the completion of service,
except that it must be extended by the minimum time necessary
to accommodate circumstances beyond the eligible employee's
control that make reporting within the period impossible or
unreasonable. This period for recuperation and recovery
extends the time period for reporting to or submitting an
application for reemployment to the employing office, and is
not applicable following reemployment.
(a) If the eligible employee fails to timely report for or
apply for reemployment, he or she does not automatically
forfeit entitlement to USERRA's reemployment and other rights
and benefits. However, the eligible employee does become
subject to any conduct rules, established policy, and general
practices of the employing office pertaining to an absence
from scheduled work.
(b) If reporting or submitting an employment application to
the employing office is impossible or unreasonable through no
fault of the eligible employee, he or she may report to the
employing office as soon as possible (in the case of a period
of service less than 31 days) or submit an application for
reemployment to the employing office by the next full
calendar day after it becomes possible to do so (in the case
of a period of service from 31 to 180 days), and the eligible
employee will be considered to have timely reported or
applied for reemployment.
An application for reemployment need not follow any
particular format. The eligible employee may apply orally or
in writing. The application should indicate that the employee
is a former employee returning from service in the uniformed
services and that he or she seeks reemployment with the pre-
service employing office. The eligible employee is permitted
but not required to identify a particular reemployment
position in which he or she is interested.
The application must be submitted to the pre-service
employing office or to an agent or representative of the
employing office who has apparent responsibility for
receiving employment applications. Depending upon the
circumstances, such a person could be a personnel or human
resources officer, or a first-line supervisor.
No. The eligible employee has reemployment rights with the
pre-service employing office provided that he or she makes a
timely reemployment application to that employing office. The
eligible employee may seek or obtain employment with an
employer other than the pre-service employing office during
the period of time within which a reemployment application
must be made, without giving up reemployment rights with the
pre-service employing office. However, such alternative
employment during the application period should not be of a
type that would constitute a cause for the employing office
to discipline or terminate the employee following
reemployment. For instance, if the employing office forbids
outside employment, violation of such a policy may constitute
a cause for discipline or even termination.
Yes, if the period of service exceeded 30 days and if
requested by the employing office to do so. If the eligible
employee submits an application for reemployment after a
period of service of more than 30 days, he or she must, upon
the request of the employing office, provide documentation to
establish that:
(a) The reemployment application is timely;
(b) The eligible employee has not exceeded the five-year
limit on the duration of service (subject to the exceptions
listed at Sec. 1002.103); and,
(c) The eligible employee's separation or dismissal from
service was not disqualifying.
Yes. The employing office is not permitted to delay or deny
reemployment by demanding documentation that does not exist
or is not readily available. The eligible employee is not
liable for administrative delays in the issuance of military
documentation. If the eligible employee is re-employed after
an absence from employment for more than 90 days, the
employing office may require that he or she submit the
documentation establishing entitlement to reemployment before
treating the employee as not having had a break in service
for pension purposes. If the documentation is received after
reemployment and it shows that the eligible employee is not
entitled to reemployment, the employing office may terminate
employment and any rights or benefits that the employee may
have been granted.
(a) Documents that satisfy the requirements of USERRA
include the following:
(1) DD (Department of Defense) 214 Certificate of Release
or Discharge from Active Duty;
(2) Copy of duty orders prepared by the facility where the
orders were fulfilled carrying an endorsement indicating
completion of the described service;
(3) Letter from the commanding officer of a Personnel
Support Activity or someone of comparable authority;
(4) Certificate of completion from military training
school;
(5) Discharge certificate showing character of service;
and,
(6) Copy of extracts from payroll documents showing periods
of service;
(7) Letter from NDMS Team Leader or Administrative Officer
verifying dates and times of NDMS training or Federal
activation.
(b) The types of documents that are necessary to establish
eligibility for reemployment will vary from case to case. Not
all of these documents are available or necessary in every
instance to establish reemployment eligibility.
Character of Service
USERRA does not require any particular form of discharge or
separation from service. However, even if the employee is
otherwise eligible for reemployment, he or she will be
disqualified if the characterization of service falls within
one of four categories. USERRA requires that the employee not
have received one of these types of discharge.
Reemployment rights are terminated if the employee is:
(a) Separated from uniformed service with a dishonorable or
bad conduct discharge;
(b) Separated from uniformed service under other than
honorable conditions, as
[[Page S1172]]
characterized by regulations of the uniformed service;
(c) A commissioned officer dismissed as permitted under 10
U.S.C. 1161(a) by sentence of a general court-martial; in
commutation of a sentence of a general court-martial; or, in
time of war, by order of the President; or,
(d) A commissioned officer dropped from the rolls under 10
U.S.C. 1161(b) due to absence without authority for at least
three months; separation by reason of a sentence to
confinement adjudged by a court-martial; or, a sentence to
confinement in a Federal or State penitentiary or
correctional institution.
The branch of service in which the employee performs the
tour of duty determines the characterization of service.
Yes. A military review board has the authority to
prospectively or retroactively upgrade a disqualifying
discharge or release. A retroactive upgrade would restore
reemployment rights providing the employee otherwise meets
the Act's eligibility criteria.
No. A retroactive upgrade allows the employee to obtain
reinstatement with the former employing office, provided the
employee otherwise meets the Act's eligibility criteria. Back
pay and other benefits such as pension plan credits
attributable to the time period between discharge and the
retroactive upgrade are not required to be restored by the
employing office in this situation.
Employer Statutory Defenses
(a) Even if the employee is otherwise eligible for
reemployment benefits, the employing office is not required
to reemploy him or her if the employing office establishes
that its circumstances have so changed as to make
reemployment impossible or unreasonable. For example, an
employing office may be excused from re-employing the
eligible employee where there has been an intervening
reduction in force that would have included that employee.
The employing office may not, however, refuse to reemploy the
eligible employee on the basis that another employee was
hired to fill the reemployment position during the employee's
absence, even if reemployment might require the termination
of that replacement employee;
(b) Even if the employee is otherwise eligible for
reemployment benefits, the employing office is not required
to reemploy him or her if it establishes that assisting the
eligible employee in becoming qualified for reemployment
would impose an undue hardship, as defined in Sec. 1002.5(s)
and discussed in Sec. 1002.198, on the employing office; or,
(c) Even if the employee is otherwise eligible for
reemployment benefits, the employing office is not required
to reemploy him or her if it establishes that the employment
position vacated by the eligible employee in order to perform
service in the uniformed services was for a brief,
nonrecurrent period and there was no reasonable expectation
that the employment would continue indefinitely or for a
significant period.
(d) The employing office defenses included in this section
are affirmative ones, and the employing office carries the
burden to prove by a preponderance of the evidence that any
one or more of these defenses is applicable.
Subpart D: Rights, Benefits, and Obligations of Persons Absent from
Employment Due to Service in the Uniformed Services
Furlough and Leave of Absence
Health Plan Coverage
Furlough and Leave of Absence
During a period of service in the uniformed services, the
eligible employee is deemed to be on leave of absence from
the employing office. In this status, the eligible employee
is entitled to the non-seniority rights and benefits
generally provided by the employing office to other employees
with similar seniority, status, and pay that are on leave of
absence. Entitlement to these non-seniority rights and
benefits is not dependent on how the employing office
characterizes the eligible employee's status during a period
of service. For example, if the employing office
characterizes the employee as ``terminated'' during the
period of uniformed service, this characterization cannot be
used to avoid USERRA's requirement that the employee be
deemed on leave of absence, and therefore, entitled to the
non-seniority rights and benefits generally provided to
employees on leave of absence.
(a) The non-seniority rights and benefits to which an
eligible employee is entitled during a period of service are
those that the employing office provides to similarly
situated employees by an agreement, policy, practice, or plan
in effect at the employee's workplace. These rights and
benefits include those in effect at the beginning of the
eligible employee's employment and those established after
employment began. They also include those rights and benefits
that become effective during the eligible employee's period
of service and that are provided to similarly situated
employees on leave of absence.
(b) If the non-seniority benefits to which employees on
leave of absence are entitled vary according to the type of
leave, the eligible employee must be given the most favorable
treatment accorded to any comparable form of leave when he or
she performs service in the uniformed services. In order to
determine whether any two types of leave are comparable, the
duration of the leave may be the most significant factor to
compare. For instance, a two-day funeral leave will not be
``comparable'' to an extended leave for service in the
uniformed service. In addition to comparing the duration of
the absences, other factors such as the purpose of the leave
and the ability of the employee to choose when to take the
leave should also be considered.
(c) As a general matter, accrual of vacation leave is
considered to be a non-seniority benefit that must be
provided by an employing office to an eligible employee on a
military leave of absence only if the employing office
provides that benefit to similarly situated employees on
comparable leaves of absence.
(d) Nothing in this section gives the eligible employee
rights or benefits to which the employee otherwise would not
be entitled if the employee had remained continuously
employed with the employing office.
Yes. If the employing office provides additional benefits
such as full or partial pay when the eligible employee
performs service, the employing office is not excused from
providing other rights and benefits to which the employee is
entitled under the Act.
[[Page S1173]]
If employment is interrupted by a period of service in the
uniformed services and the eligible employee knowingly
provides written notice of intent not to return to the
position of employment after service in the uniformed
services, he or she is not entitled to those non-seniority
rights and benefits. The eligible employee's written notice
does not waive entitlement to any other rights to which he or
she is entitled under the Act, including the right to
reemployment after service.
(a) If employment is interrupted by a period of service,
the eligible employee must be permitted upon request to use
any accrued vacation, annual, or similar leave with pay
during the period of service, in order to continue his or her
civilian pay. However, the eligible employee is not entitled
to use sick leave that accrued with the employing office
during a period of service in the uniformed services, unless
the employing office allows employees to use sick leave for
any reason, or allows other similarly situated employees on
comparable furlough or leave of absence to use accrued paid
sick leave. Sick leave is usually not comparable to annual or
vacation leave; it is generally intended to provide income
when the employee or a family member is ill and the employee
is unable to work.
(b) The employing office may not require the eligible
employee to use accrued vacation, annual, or similar leave
during a period of service in the uniformed services.
Health Plan Coverage
(a) USERRA defines a health plan to include an insurance
policy or contract, medical or hospital service agreement,
membership or subscription contract, or arrangement under
which the employee's health services are provided or the
expenses of those services are paid.
(b) USERRA covers group health plans as defined in the
Employee Retirement Income Security Act of 1974 (ERISA) at 29
U.S.C. 1191b(a). USERRA applies to group health plans that
are subject to ERISA, and plans that are not subject to
ERISA, such as those sponsored by the Federal Government.
(c) USERRA covers multi-employer plans maintained pursuant
to one or more collective bargaining agreements between
employers and employee organizations. USERRA applies to
multi-employer plans as they are defined in ERISA at 29
U.S.C. 1002(37). USERRA contains provisions that apply
specifically to multi-employer plans in certain situations.
If the eligible employee has coverage under a health plan
in connection with his or her employment, the plan must
permit the employee to elect to continue the coverage for a
certain period of time as described below:
(a) When the eligible employee is performing service in the
uniformed services, he or she is entitled to continuing
coverage for himself or herself (and dependents if the plan
offers dependent coverage) under a health plan provided in
connection with the employment. The plan must allow the
eligible employee to elect to continue coverage for a period
of time that is the lesser of:
(1) The 24-month period beginning on the date on which the
eligible employee's absence for the purpose of performing
service begins; or,
(2) The period beginning on the date on which the eligible
employee's absence for the purpose of performing service
begins, and ending on the date on which he or she fails to
return from service or apply for a position of employment as
provided under sections 1002.115-123 of these regulations.
(b) USERRA does not require the employing office to
establish a health plan if there is no health plan coverage
in connection with the employment, or, where there is a plan,
to provide any particular type of coverage.
(c) USERRA does not require the employing office to permit
the eligible employee to initiate new health plan coverage at
the beginning of a period of service if he or she did not
previously have such coverage.
USERRA does not specify requirements for electing
continuing coverage. Health plan administrators may develop
reasonable requirements addressing how continuing coverage
may be elected, consistent with the terms of the plan and the
Act's exceptions to the requirement that the employee give
advance notice of service in the uniformed services. For
example, the eligible employee cannot be precluded from
electing continuing health plan coverage under circumstances
where it is impossible or unreasonable for him or her to make
a timely election of coverage.
(a) If the eligible employee performs service in the
uniformed service for fewer than 31 days, he or she cannot be
required to pay more than the regular employee share, if any,
for health plan coverage.
(b) If the eligible employee performs service in the
uniformed service for 31 or more days, he or she may be
required to pay no more than 102% of the full premium under
the plan, which represents the employing office's share plus
the employee's share, plus 2% for administrative costs.
(c) USERRA does not specify requirements for methods of
paying for continuing coverage. Health plan administrators
may develop reasonable procedures for payment, consistent
with the terms of the plan.
The actions a plan administrator may take regarding the
provision or cancellation of an eligible employee's
continuing coverage depend on whether the employee is excused
from the requirement to give advance notice, whether the plan
has established reasonable rules for election of continuation
coverage, and whether the plan has established reasonable
rules for the payment for continuation coverage.
(a) No notice of service and no election of continuation
coverage: If an employing office provides employment-based
health coverage to an eligible employee who leaves employment
for uniformed service without giving advance notice of
service, the plan administrator may cancel the employee's
health plan coverage upon the employee's departure from
employment for uniformed service. However, in cases in which
an eligible employee's failure to give advance notice of
service was excused under the statute because it was
impossible, unreasonable, or precluded by military necessity,
the plan administrator must reinstate the employee's health
coverage retroactively upon his or her election to continue
coverage and payment of all unpaid amounts due, and the
employee must incur no administrative reinstatement costs. In
order to qualify for an exception to the requirement of
timely election of continuing health care, an eligible
employee must first be excused from giving notice of service
under the statute.
(b) Notice of service but no election of continuing
coverage: Plan administrators may develop reasonable
requirements addressing how continuing coverage may be
elected. Where health plans are also covered under the
Consolidated Omnibus Budget Reconciliation Act of 1985, 26
U.S.C. 4980B (COBRA), it may be reasonable for a health plan
administrator to adopt COBRA-compliant rules regarding
election of continuing coverage, as long as those rules do
not conflict with any provision of USERRA or this rule. If an
employing office provides employment-based health coverage to
an eligible employee who leaves employment for uniformed
service for a period of service in excess of 30 days after
having given advance notice of service but without making an
election regarding continuing coverage, the plan
administrator may cancel the employee's health plan coverage
upon the employee's departure from employment for uniformed
service, but must reinstate coverage without the imposition
of administrative reinstatement costs under the following
conditions:
(1) Plan administrators who have developed reasonable rules
regarding the period within which an employee may elect
continuing coverage must permit retroactive reinstatement of
uninterrupted coverage to the date of departure if the
eligible employee elects continuing coverage and pays all
unpaid amounts due within the periods established by the
plan;
(2) In cases in which plan administrators have not
developed rules regarding the period within which an employee
may elect continuing coverage, the plan must permit
retroactive reinstatement of uninterrupted coverage to the
date of departure upon the eligible employee's election and
payment of all unpaid amounts at any time during the period
established in section 1002.164(a).
(c) Election of continuation coverage without timely
payment: Health plan administrators may adopt reasonable
rules allowing cancellation of coverage if timely payment is
not made. Where health plans are covered under COBRA, it may
be reasonable for a health plan administrator to adopt COBRA-
compliant rules regarding payment for continuing coverage, as
long as those rules do not conflict with any provision of
USERRA or this rule.
(a) If health plan coverage for the eligible employee or a
dependent was terminated by reason of service in the
uniformed services, that coverage must be reinstated upon
reemployment. An exclusion or waiting period may not be
imposed in connection with the reinstatement of coverage upon
reemployment, if an exclusion or waiting period would not
have been imposed had coverage not been terminated by reason
of such service.
(b) USERRA permits a health plan to impose an exclusion or
waiting period as to illnesses or injuries determined by the
Secretary of Veterans Affairs to have been incurred in, or
aggravated during, performance of service in the uniformed
services. The determination that the employee's illness or
injury was incurred in, or aggravated during,
[[Page S1174]]
the performance of service may only be made by the Secretary
of Veterans Affairs or his or her representative. Other
coverage, for injuries or illnesses that are not service-
related (or for the employee's dependents, if he or she has
dependent coverage), must be reinstated subject to paragraph
(a) of this section.
USERRA requires the employing office to reinstate or direct
the reinstatement of health plan coverage upon request at
reemployment. USERRA permits but does not require the
employing office to allow the employee to delay reinstatement
of health plan coverage until a date that is later than the
date of reemployment.
Liability under a multi-employer plan for employer
contributions and benefits in connection with USERRA's health
plan provisions must be allocated either as the plan sponsor
provides, or, if the sponsor does not provide, to the
eligible employee's last employer before his or her service.
If the last employer is no longer functional, liability for
continuing coverage is allocated to the health plan.
(a) Some employees receive health plan benefits provided
pursuant to a multi-employer plan that utilizes a health
benefits account system in which an employee accumulates
prospective health benefit eligibility, also commonly
referred to as ``dollar bank,'' ``credit bank,'' and ``hour
bank'' plans. In such cases, where an employee with a
positive health benefits account balance elects to continue
the coverage, the employee may further elect either option
below:
(1) The eligible employee may expend his or her health
account balance during an absence from employment due to
service in the uniformed services in lieu of paying for the
continuation of coverage as set out in Sec. 1002.166. If an
eligible employee's health account balance becomes depleted
during the applicable period provided for in
Sec. 1002.164(a), the employee must be permitted, at his or
her option, to continue coverage pursuant to Sec. 1002.166.
Upon reemployment, the plan must provide for immediate
reinstatement of the eligible employee as required by
Sec. 1002.168, but may require the employee to pay the cost
of the coverage until the employee earns the credits
necessary to sustain continued coverage in the plan.
(2) The eligible employee may pay for continuation coverage
as set out in Sec. 1002.166, in order to maintain intact his
or her account balance as of the beginning date of the
absence from employment due to service in the uniformed
services. This option permits the eligible employee to resume
usage of the account balance upon reemployment.
(b) Employers or plan administrators providing such plans
should counsel employees of their options set out in this
subsection.
Subpart E: Reemployment Rights and Benefits
Prompt Reemployment
Reemployment Position
Seniority Rights and Benefits
Disabled Employees
Rate of Pay
Protection Against Discharge
Pension Plan Benefits
Prompt Reemployment
The employing office must promptly reemploy the employee
when he or she returns from a period of service if the
employee meets the Act's eligibility criteria as described in
Subpart C of these regulations.
``Prompt reemployment'' means as soon as practicable under
the circumstances of each case. Absent unusual circumstances,
reemployment must occur within two weeks of the eligible
employee's application for reemployment. For example, prompt
reinstatement after a weekend National Guard duty generally
means the next regularly scheduled working day. On the other
hand, prompt reinstatement following several years of active
duty may require more time, because the employing office may
have to reassign or give notice to another employee who
occupied the returning employee's position.
Reemployment Position
As a general rule, the eligible employee is entitled to
reemployment in the job position that he or she would have
attained with reasonable certainty if not for the absence due
to uniformed service. This position is known as the escalator
position. The principle behind the escalator position is
that, if not for the period of uniformed service, the
eligible employee could have been promoted (or,
alternatively, demoted, transferred, or laid off) due to
intervening events. The escalator principle requires that the
eligible employee be reemployed in a position that reflects
with reasonable certainty the pay, benefits, seniority, and
other job perquisites, that he or she would have attained if
not for the period of service. Depending upon the specific
circumstances, the employing office may have the option, or
be required, to reemploy the eligible employee in a position
other than the escalator position.
In all cases, the starting point for determining the proper
reemployment position is the escalator position, which is the
job position that the eligible employee would have attained
if his or her continuous employment had not been interrupted
due to uniformed service. Once this position is determined,
the employing office may have to consider several factors
before determining the appropriate reemployment position in
any particular case. Such factors may include the eligible
employee's length of service, qualifications, and disability,
if any. The actual reemployment position may be either the
escalator position; the pre-service position; a position
comparable to the escalator or pre-service position; or, the
nearest approximation to one of these positions.
(a) Yes. The reemployment position includes the seniority,
status, and rate of pay
[[Page S1175]]
that an eligible employee would ordinarily have attained in
that position given his or her job history, including
prospects for future earnings and advancement. The employing
office must determine the seniority rights, status, and rate
of pay as though the eligible employee had been continuously
employed during the period of service. The seniority rights,
status, and pay of an employment position include those
established (or changed) by a collective bargaining
agreement, employer policy, or employment practice. The
sources of seniority rights, status, and pay include
agreements, policies, and practices in effect at the
beginning of the eligible employee's service, and any changes
that may have occurred during the period of service. In
particular, the eligible employee's status in the
reemployment position could include opportunities for
advancement, general working conditions, job location, shift
assignment, rank, responsibility, and geographical location.
(b) If an opportunity for promotion, or eligibility for
promotion, that the eligible employee missed during service
is based on a skills test or examination, then the employing
office should give him or her a reasonable amount of time to
adjust to the employment position and then give a skills test
or examination. No fixed amount of time for permitting
adjustment to reemployment will be deemed reasonable in all
cases. However, in determining a reasonable amount of time to
permit an eligible employee to adjust to reemployment before
scheduling a makeup test or examination, an employing office
may take into account a variety of factors, including but not
limited to the length of time the returning employee was
absent from work, the level of difficulty of the test itself,
the typical time necessary to prepare or study for the test,
the duties and responsibilities of the reemployment position
and the promotional position, and the nature and
responsibilities of the service member while serving in the
uniformed service. If the eligible employee is successful on
the makeup exam and, based on the results of that exam, there
is a reasonable certainty that he or she would have been
promoted, or made eligible for promotion, during the time
that the employee served in the uniformed service, then the
promotion or eligibility for promotion must be made effective
as of the date it would have occurred had employment not been
interrupted by uniformed service.
Yes. The Act does not prohibit lawful adverse job
consequences that result from the eligible employee's
restoration on the seniority ladder. Depending on the
circumstances, the escalator principle may cause an eligible
employee to be reemployed in a higher or lower position, laid
off, or even terminated. For example, if an eligible
employee's seniority or job classification would have
resulted in the employee being laid off during the period of
service, and the layoff continued after the date of
reemployment, reemployment would reinstate the employee to
layoff status. Similarly, the status of the reemployment
position requires the employing office to assess what would
have happened to such factors as the eligible employee's
opportunities for advancement, working conditions, job
location, shift assignment, rank, responsibility, and
geographical location, if he or she had remained continuously
employed. The reemployment position may involve transfer to
another shift or location, more or less strenuous working
conditions, or changed opportunities for advancement,
depending upon the application of the escalator principle.
Once the eligible employee's escalator position is
determined, other factors may allow, or require, the
employing office to reemploy the employee in a position other
than the escalator position. These factors, which are
explained in Sec. Sec. 1002.196 through 1002.199, are:
(a) The length of the eligible employee's most recent
period of uniformed service;
(b) The eligible employee's qualifications; and,
(c) Whether the eligible employee has a disability incurred
or aggravated during uniformed service.
Following a period of service in the uniformed services of
less than 91 days, the eligible employee must be reemployed
according to the following priority:
(a) The eligible employee must be reemployed in the
escalator position. He or she must be qualified to perform
the duties of this position. The employing office must make
reasonable efforts to help the eligible employee become
qualified to perform the duties of this position.
(b) If the eligible employee is not qualified to perform
the duties of the escalator position after reasonable efforts
by the employing office, the employee must be reemployed in
the position in which he or she was employed on the date that
the period of service began. The eligible employee must be
qualified to perform the duties of this position. The
employing office must make reasonable efforts to help the
eligible employee become qualified to perform the duties of
this position.
(c) If the eligible employee is not qualified to perform
the duties of the escalator position or the pre-service
position, after reasonable efforts by the employing office,
he or she must be reemployed in any other position that is
the nearest approximation first to the escalator position and
then to the pre-service position. The eligible employee must
be qualified to perform the duties of this position. The
employing office must make reasonable efforts to help the
eligible employee become qualified to perform the duties of
this position.
Following a period of service of more than 90 days, the
eligible employee must be reemployed according to the
following priority:
(a) The eligible employee must be reemployed in the
escalator position or a position of like seniority, status,
and pay. He or she must be qualified to perform the duties of
this position. The employing office must make reasonable
efforts to help the eligible employee become qualified to
perform the duties of this position.
(b) If the eligible employee is not qualified to perform
the duties of the escalator position or a like position after
reasonable efforts by the employing office, the employee must
be reemployed in the position in which he or she was employed
on the date that the period of service began or in a position
of like seniority, status, and pay. The eligible employee
must be qualified to perform the duties of this position. The
employing office must make reasonable efforts to help the
eligible employee become qualified to perform the duties of
this position.
(c) If the eligible employee is not qualified to perform
the duties of the escalator position, the pre-service
position, or a like position, after reasonable efforts by the
employing office, he or she must be reemployed in any other
position that is the nearest approximation first to the
escalator position and then to the pre-service position. The
eligible employee must be qualified to perform the duties of
this position. The employing office must make reasonable
efforts to help the eligible employee become qualified to
perform the duties of this position.
The eligible employee must be qualified for the
reemployment position. The employing office must make
reasonable efforts to help the eligible employee become
qualified to perform the duties of this position. The
employing office is not required to reemploy the eligible
employee on his or her return from service if he or she
cannot, after reasonable efforts by the employing office,
qualify for the appropriate reemployment position.
(a)(1) ``Qualified'' means that the employee has the
ability to perform the essential tasks of the position. The
employee's inability to perform one or more nonessential
tasks of a position does not make him or her unqualified.
(2) Whether a task is essential depends on several factors,
and these factors include but are not limited to:
(i) The employing office's judgment as to which functions
are essential;
(ii) Written job descriptions developed before the hiring
process begins;
(iii) The amount of time on the job spent performing the
function;
(iv) The consequences of not requiring the individual to
perform the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job;
and/or
(vii) The current work experience of incumbents in similar
jobs.
(b) Only after the employing office makes reasonable
efforts, as defined in Sec. 1002.5(p), may it determine that
the otherwise eligible employee is not qualified for the
reemployment position. These reasonable efforts must be made
at no cost to the employee.
If two or more eligible employees are entitled to
reemployment in the same position and more than one employee
has reported or applied for employment in that position, the
employee who first left the position for uniformed service
has the first priority on reemployment in that position. The
remaining employee (or employees) is entitled to be
reemployed in a position similar to that in which the
employee would have been re-employed according to the rules
that normally determine a reemployment position, as set out
in Sec. Sec. 1002.196 and 1002.197.
Seniority Rights and Benefits
The eligible employee is entitled to the seniority and
seniority-based rights and benefits that he or she had on the
date the uniformed service began, plus any seniority and
seniority-based rights and benefits that the employee would
have attained if he or she had remained continuously
employed. The eligible employee is not entitled to any
benefits to which he or she would not have been entitled had
the employee been continuously employed with the employing
office. In determining entitlement to seniority and
seniority-based rights and benefits, the period
[[Page S1176]]
of absence from employment due to or necessitated by
uniformed service is not considered a break in employment.
The rights and benefits protected by USERRA upon reemployment
include those provided by the employing office and those
required by statute.
For example, under USERRA, a reemployed service member
would be eligible for leave under the Family and Medical
Leave Act of 1993, 29 U.S.C. 2601-2654 (FMLA), if the number
of months and the number of hours of work for which the
service member was employed by the employing office, together
with the number of months and the number of hours of work for
which the service member would have been employed by the
employing office during the period of uniformed service, meet
FMLA's eligibility requirements. In the event that a service
member is denied FMLA leave for failing to satisfy the FMLA's
hours of work requirement due to absence from employment
necessitated by uniformed service, the service member may
have a cause of action under USERRA but not under the FMLA.
No. USERRA does not require the employing office to adopt a
formal seniority system. USERRA defines seniority as
longevity in employment together with any employment benefits
that accrue with, or are determined by, longevity in
employment. In the absence of a formal seniority system, such
as one established through collective bargaining, USERRA
looks to the custom and practice in the place of employment
to determine the eligible employee's entitlement to any
employment benefits that accrue with, or are determined by,
longevity in employment.
A seniority-based right or benefit is one that accrues
with, or is determined by, longevity in employment.
Generally, whether a right or benefit is seniority-based
depends on three factors:
(a) Whether the right or benefit is a reward for length of
service rather than a form of short-term compensation for
work performed;
(b) Whether it is reasonably certain that the eligible
employee would have received the right or benefit if he or
she had remained continuously employed during the period of
service; and,
(c) Whether it is the employing office's actual custom or
practice to provide or withhold the right or benefit as a
reward for length of service. Provisions of an employment
contract or policies in the employee handbook are not
controlling if the employing office's actual custom or
practice is different from what is written in the contract or
handbook.
A reasonable certainty is a high probability that the
eligible employee would have received the seniority or
seniority-based right or benefit if he or she had been
continuously employed. The eligible employee does not have to
establish that he or she would have received the benefit as
an absolute certainty. The eligible employee can demonstrate
a reasonable certainty that he or she would have received the
seniority right or benefit by showing that other employees
with seniority similar to that which the employee would have
had if he or she had remained continuously employed received
the right or benefit. The employing office cannot withhold
the right or benefit based on an assumption that a series of
unlikely events could have prevented the eligible employee
from gaining the right or benefit.
Disabled Employees
Yes. A disabled service member is entitled, to the same
extent as any other individual, to the escalator position he
or she would have attained but for uniformed service. If the
eligible employee has a disability incurred in, or aggravated
during, the period of service in the uniformed services, the
employing office must make reasonable efforts to accommodate
that disability and to help the employee become qualified to
perform the duties of his or her reemployment position. If
the eligible employee is not qualified for reemployment in
the escalator position because of a disability after
reasonable efforts by the employing office to accommodate the
disability and to help the employee to become qualified, the
employee must be reemployed in a position according to the
following priority. The employing office must make reasonable
efforts to accommodate the eligible employee's disability and
to help him or her to become qualified to perform the duties
of one of these positions:
(a) A position that is equivalent in seniority, status, and
pay to the escalator position; or,
(b) A position that is the nearest approximation to the
equivalent position, consistent with the circumstances of the
eligible employee's case, in terms of seniority, status, and
pay. A position that is the nearest approximation to the
equivalent position may be a higher or lower position,
depending on the circumstances.
(a) USERRA requires that the eligible employee be qualified
for the reemployment position regardless of any disability.
The employing office must make reasonable efforts to help the
eligible employee to become qualified to perform the duties
of this position. The employing office is not required to
reemploy the eligible employee on his or her return from
service if he or she cannot, after reasonable efforts by the
employing office, qualify for the appropriate reemployment
position.
(b) ``Qualified'' has the same meaning here as in
Sec. 1002.198.
Rate of Pay
The eligible employee's rate of pay is determined by
applying the same escalator principles that are used to
determine the reemployment position, as follows:
(a) If the eligible employee is reemployed in the escalator
position, the employing office must compensate him or her at
the rate of pay associated with the escalator position. The
rate of pay must be determined by taking into account any pay
increases, differentials, step increases, merit increases, or
periodic increases that the eligible employee would have
attained with reasonable certainty had he or she remained
continuously employed during the period of service. In
addition, when considering whether merit or performance
increases would have been attained with reasonable certainty,
an employing office may examine the returning eligible
employee's own work history, his or her history of merit
increases, and the work and pay history of employees in the
same or similar position. For example, if the eligible
employee missed a merit pay increase while performing
service, but qualified for previous merit pay increases, then
the rate of pay should include the merit pay increase that
was missed. If the merit pay increase that the eligible
employee missed during service is based on a skills test or
examination, then the employing office should give the
employee a reasonable amount of time to adjust to the
reemployment position and then give him or her the skills
test or examination. No fixed amount of time for permitting
adjustment to reemployment will be deemed reasonable in all
cases. However, in determining a reasonable amount of time to
permit an eligible employee to adjust to reemployment before
scheduling a makeup test or examination, an employing office
may take into account a variety of factors, including but not
limited to the length of time the returning employee was
absent from work, the level of difficulty of the test itself,
the typical time necessary to prepare or study for the test,
the duties and responsibilities of the reemployment position
and the promotional position, and the nature and
responsibilities of the service member while serving in the
uniformed service. The escalator principle also applies in
the event a pay reduction occurred in the reemployment
position during the period of service. Any pay adjustment
must be made effective as of the date it would have occurred
had the eligible employee's employment not been interrupted
by uniformed service.
(b) If the eligible employee is reemployed in the pre-
service position or another position, the employing office
must compensate him or her at the rate of pay associated with
the position in which he or she is reemployed. As with the
escalator position, the rate of pay must be determined by
taking into account any pay increases, differentials, step
increases, merit increases, or periodic increases that the
eligible employee would have attained with reasonable
certainty had he or she remained continuously employed during
the period of service.
Protection Against Discharge
Yes. If the eligible employee's most recent period of
service in the uniformed services was more than 30 days, he
or she must not be discharged except for cause--
(a) For 180 days after the eligible employee's date of
reemployment if his or her most recent period of uniformed
service was more than 30 days but less than 181 days; or,
(b) For one year after the date of reemployment if the
eligible employee's most recent period of uniformed service
was more than 180 days.
The eligible employee may be discharged for cause based
either on conduct or, in some circumstances, because of the
application of other legitimate nondiscriminatory reasons.
(a) In a discharge action based on conduct, the employing
office bears the burden of proving that it is reasonable to
discharge the eligible employee for the conduct in question,
and that he or she had notice, which was express or can be
fairly implied, that the conduct would constitute cause for
discharge.
(b) If, based on the application of other legitimate
nondiscriminatory reasons, the eligible employee's job
position is eliminated,
[[Page S1177]]
or the eligible employee is placed on layoff status, either
of these situations would constitute cause for purposes of
USERRA. The employing office bears the burden of proving that
the eligible employee's job would have been eliminated or
that he or she would have been laid off.
Pension Plan Benefits
On reemployment, the eligible employee is treated as not
having a break in service with the employing office for
purposes of participation, vesting and accrual of benefits in
a pension plan, by reason of the period of absence from
employment due to or necessitated by service in the uniformed
services.
(a) Depending on the length of the eligible employee's
period of service, he or she is entitled to take from one to
ninety days following service before reporting back to work
or applying for reemployment (See Sec. 1002.115). This period
of time must be treated as continuous service with the
employing office for purposes of determining participation,
vesting and accrual of pension benefits under the plan.
(b) If the eligible employee is hospitalized for, or
convalescing from, an illness or injury incurred in, or
aggravated during, service, he or she is entitled to report
to or submit an application for reemployment at the end of
the time period necessary for him or her to recover from the
illness or injury. This period, which may not exceed two
years from the date the eligible employee completed service,
except in circumstances beyond his or her control, must be
treated as continuous service with the employing office for
purposes of determining the participation, vesting and
accrual of pension benefits under the plan.
(a) The Employee Retirement Income Security Act of 1974
(ERISA) defines an employee pension benefit plan as a plan
that provides retirement income to employees, or defers
employee income to a period extending to or beyond the
termination of employment. USERRA also covers certain pension
plans not covered by ERISA, such as those sponsored by the
Federal Government.
(b) USERRA does not cover pension benefits under the
Federal Thrift Savings Plan; those benefits are covered under
5 U.S.C. 8432b.
With the exception of multi-employer plans, which have
separate rules discussed below, the employing office is
required to ensure the funding of any obligation of the plan
to provide benefits that are attributable to the eligible
employee's period of service. In the case of a defined
contribution plan, once the eligible employee is reemployed,
the employing office must ensure that the amount of the make-
up contribution for the employee, if any; the employee's
make-up contributions, if any; and the employee's elective
deferrals, if any; in the same manner and to the same extent
that the amounts are allocated for other employees during the
period of service. In the case of a defined benefit plan, the
eligible employee's accrued benefit will be increased for the
period of service once he or she is reemployed and, if
applicable, has repaid any amounts previously paid to him or
her from the plan and made any employee contributions that
may be required to be made under the plan.
(a) Employer contributions are not required until the
eligible employee is reemployed. For employer contributions
to a plan in which the eligible employee is not required or
permitted to contribute, the contribution attributable to the
employee's period of service must be made no later than
ninety days after the date of reemployment, or when plan
contributions are normally due for the year in which the
service in the uniformed services was performed, whichever is
later. If it is impossible or unreasonable for the
contribution to be made within this time period, the
contribution must be made as soon as practicable.
(b) If the eligible employee is enrolled in a contributory
plan, he or she is allowed (but not required) to make up his
or her missed contributions or elective deferrals. These
makeup contributions, or elective deferrals, must be made
during a time period starting with the date of reemployment
and continuing for up to three times the length of the
eligible employee's immediate past period of uniformed
service, with the repayment period not to exceed five years.
Makeup contributions or elective deferrals may only be made
during this period and while the employee is employed with
the post-service employing office.
(c) If the eligible employee's plan is contributory and he
or she does not make up his or her contributions or elective
deferrals, he or she will not receive the employer match or
the accrued benefit attributable to his or her contribution.
This is true because employer contributions are contingent on
or attributable to the employee's contributions or elective
deferrals only to the extent that the employee makes up his
or her payments to the plan. Any employer contributions that
are contingent on or attributable to the eligible employee's
make-up contributions or elective deferrals must be made
according to the plan's requirements for employer matching
contributions.
(d) The eligible employee is not required to make up the
full amount of employee contributions or elective deferrals
that he or she missed making during the period of service. If
the eligible employee does not make up all of the missed
contributions or elective deferrals, his or her pension may
be less than if he or she had done so.
(e) Any vested accrued benefit in the pension plan that the
eligible employee was entitled to prior to the period of
uniformed service remains intact whether or not he or she
chooses to be reemployed under the Act after leaving the
uniformed service.
(f) An adjustment will be made to the amount of employee
contributions or elective deferrals that the eligible
employee will be able to make to the pension plan for any
employee contributions or elective deferrals he or she
actually made to the plan during the period of service.
No. The eligible employee is not required or permitted to
make up a missed contribution in an amount that exceeds the
amount he or she would have been permitted or required to
contribute had he or she remained continuously employed
during the period of service.
Yes, provided the plan is a defined benefit plan. If the
eligible employee received a distribution of all or part of
the accrued benefit from a defined benefit plan in connection
with his or her service in the uniformed services before he
or she became reemployed, he or she must be allowed to repay
the withdrawn amounts when he or she is reemployed. The
amount the eligible employee must repay includes any interest
that would have accrued had the monies not been withdrawn.
The eligible employee must be allowed to repay these amounts
during a time period starting with the date of reemployment
and continuing for up to three times the length of the
employee's immediate past period of uniformed service, with
the repayment period not to exceed five years (or such longer
time as may be agreed to between the employing office and the
employee), provided the employee is employed with the post-
service employing office during this period.
The amount of the eligible employee's pension benefit
depends on the type of pension plan.
(a) In a non-contributory defined benefit plan, where the
amount of the pension benefit is determined according to a
specific formula, the eligible employee's benefit will be the
same as though he or she had remained continuously employed
during the period of service.
(b) In a contributory defined benefit plan, the eligible
employee will need to make up contributions in order to have
the same benefit as if he or she had remained continuously
employed during the period of service.
(c) In a defined contribution plan, the benefit may not be
the same as if the employee had remained continuously
employed, even though the employee and the employer make up
any contributions or elective deferrals attributable to the
period of service, because the employee is not entitled to
forfeitures and earnings or required to experience losses
that accrued during the period or periods of service.
A multi-employer pension benefit plan is one to which more
than one employer is required to contribute, and which is
maintained pursuant to one or more collective bargaining
agreements between one or more employee organizations and
more than one employer. The Act uses ERISA's definition of a
multi-employer plan. In addition to the provisions of USERRA
that apply to all pension benefit plans, there are provisions
that apply specifically to multi-employer plans, as follows:
(a) The last employer that employed the eligible employee
before the period of service is responsible for making the
employer contribution to the multi-employer plan, if the plan
sponsor does not provide otherwise. If the last employer is
no longer functional, the plan must nevertheless provide
coverage to the eligible employee.
(b) An employer that contributes to a multi-employer plan
and that reemploys the eligible employee pursuant to USERRA
must provide written notice of reemployment to the plan
administrator within 30 days after the date of reemployment.
The returning service member should notify the reemploying
employer that he or she has been reemployed pursuant to
USERRA. The 30-day period within which the reemploying
employer must provide written notice to the multi-employer
plan pursuant to this subsection does not begin until the
employer has knowledge that the eligible employee was re-
employed pursuant to USERRA.
(c) The eligible employee is entitled to the same employer
contribution whether he or
[[Page S1178]]
she is reemployed by the pre-service employer or by a
different employer contributing to the same multi-employer
plan, provided that the pre-service employer and the post-
service employer share a common means or practice of hiring
the employee, such as common participation in a union hiring
hall.
In many pension benefit plans, the eligible employee's
compensation determines the amount of his or her contribution
or the retirement benefit to which he or she is entitled.
(a) Where the eligible employee's rate of compensation must
be calculated to determine pension entitlement, the
calculation must be made using the rate of pay that the
employee would have received but for the period of uniformed
service.
(b) (1) Where the rate of pay the eligible employee would
have received is not reasonably certain, the average rate of
compensation during the 12-month period prior to the period
of uniformed service must be used.
(2) Where the rate of pay the eligible employee would have
received is not reasonably certain and he or she was employed
for less than 12 months prior to the period of uniformed
service, the average rate of compensation must be derived
from this shorter period of employment that preceded service.
Subpart F: Compliance Assistance, Enforcement and Remedies
Compliance Assistance
Investigation and Referral
Enforcement of Rights and Benefits Against an Employing Office
Compliance Assistance
The Office of Congressional Workplace Rights provides
assistance to any person or entity who is covered by the CAA
with respect to employment and reemployment rights and
benefits under USERRA as applied by the CAA. This assistance
includes responding to inquiries, and providing a program of
education and information on matters relating to USERRA.
Investigation and Referral
(a) The Procedural Rules of the Office of Congressional
Workplace Rights set forth the procedures for considering and
resolving alleged violations of the laws made applicable by
the CAA, including USERRA. The Rules include procedures for
filing claims and participating in administrative dispute
resolution proceedings at the Office of Congressional
Workplace Rights, including procedures for the conduct of
hearings and for appeals to the Board of Directors. The
Procedural Rules also address other matters of general
applicability to the dispute resolution process and to the
operations of the Office.
(b) The Procedural Rules of the Office of Congressional
Workplace Rights can be found on the Office's website at
<a href='http://www.ocwr.gov.
'>www.ocwr.gov.
</a> Enforcement of Rights and Benefits Against an Employing Office
Yes. Eligible employees must first file a claim form with
the Office of Congressional Workplace Rights before making an
election between requesting an administrative hearing or
filing a civil action in Federal district court.
An action under section 206 of the CAA may be brought by an
eligible employee, as defined by section 1002.5(f) of Subpart
A of these regulations. An action under section 208(a) of the
CAA may be brought by a covered employee, as defined by
section 1002.5(e) of Subpart A of these regulations. An
employing office, prospective employing office or other
similar entity may not bring an action under the Act.
In an action under USERRA, only the covered employing
office or a potential covered employing office, as the case
may be, is a necessary party respondent. Under the Office of
Congressional Workplace Rights Procedural Rules, a hearing
officer has authority to require the filing of briefs,
memoranda of law, and the presentation of oral argument. A
hearing officer also may order the production of evidence and
the appearance of witnesses.
If an eligible employee is a prevailing party with respect
to any claim under USERRA, the hearing officer, Board, or
court may award reasonable attorney fees, expert witness
fees, and other litigation expenses.
USERRA does not have a statute of limitations. However,
section 402 of the CAA, 2 U.S.C. 1402, requires a covered
employee to file a claim with the Office of Congressional
Workplace Rights alleging a violation of the CAA no later
than 180 days after the date of the alleged violation. A
claim by an eligible employee alleging a USERRA violation as
applied by the CAA would follow this requirement.
In any action or proceeding the following relief may be
awarded:
(a) The court and/or hearing officer may require the
employing office to comply with the provisions of the Act;
(b) The court and/or hearing officer may require the
employing office to compensate the eligible employee for any
loss of wages or benefits suffered by reason of the employing
office's failure to comply with the Act;
(c) The court and/or hearing officer may require the
employing office to pay the eligible employee an amount equal
to the amount of lost wages and benefits as liquidated
damages, if the court and/or hearing officer determines that
the employing office's failure to comply with the Act was
willful. A violation shall be considered to be willful if the
employing office either knew or showed reckless disregard for
whether its conduct was prohibited by the Act.
(d) Any wages, benefits, or liquidated damages awarded
under paragraphs (b) and (c) of this section are in addition
to, and must not diminish, any of the other rights and
benefits provided by USERRA (such as, for example, the right
to be employed or reemployed by the employing office).
When approved by the Senate for the Senate, these
regulations will have the prefix ``S.''
Subpart A: Introduction to the Regulations
This part implements certain provisions of the Uniformed
Services Employment and Reemployment Rights Act of 1994
(``USERRA'' or ``the Act''), as applied by the Congressional
Accountability Act (``CAA''). 2 U.S.C. 1316. USERRA is a law
that establishes certain rights and benefits for employees,
and duties for employers. USERRA affects employment,
reemployment, and retention in employment, when employees
serve or have served in the uniformed services. There are
five subparts to these regulations. Subpart A gives an
introduction to the USERRA regulations. Subpart B describes
USERRA's anti-discrimination and anti-retaliation provisions.
Subpart C explains the steps that must be taken by a
uniformed service member who wants to return to his or her
previous civilian employment. Subpart D describes the rights,
benefits, and obligations of persons absent from employment
due to service in the uniformed services, including rights
and obligations related to health plan coverage. Subpart E
describes the rights, benefits, and obligations of the
returning veteran or service member. Subpart F explains the
role of the Office of Congressional Workplace Rights in
administering USERRA as applied by the CAA.
USERRA is the latest in a series of laws protecting
veterans' employment and reemployment rights going back to
the Selective Training and Service Act of 1940. USERRA's
immediate predecessor was commonly referred to as the
Veterans' Reemployment Rights Act (``VRRA''), which was
enacted as section 404 of the Vietnam Era Veterans'
Readjustment Assistance Act of 1974. In enacting USERRA,
Congress emphasized USERRA's continuity with the VRRA and its
intention to clarify and strengthen that law. Congress also
emphasized that Federal laws protecting veterans' employment
and reemployment rights for the past fifty years
[[Page S1179]]
had been successful and that the large body of case law that
had developed under those statutes remained in full force and
effect, to the extent it is consistent with USERRA. USERRA
authorized the Department of Labor to publish regulations
implementing the Act for State, local government, and private
employers. USERRA also authorized the Office of Personnel
Management to issue regulations implementing the Act for
Federal executive agencies, with the exception of certain
Federal intelligence agencies. For those Federal intelligence
agencies, USERRA established a separate program for
employees. Section 206 of the CAA, 2 U.S.C. 1316, requires
the Board of Directors of the Office of Congressional
Workplace Rights to issue regulations to implement the
statutory provisions relating to employment and reemployment
rights of members of the uniformed services. The regulations
are required to be the same as substantive regulations
promulgated by the Secretary of Labor, except where a
modification of such regulations would be more effective for
the implementation of the rights and protections of the Act.
The Department of Labor issued its regulations, effective
January 18, 2006. The regulations set forth herein are the
substantive regulations that the Board of Directors of the
Office of Congressional Workplace Rights has promulgated for
the legislative branch, for the implementation of the USERRA
provisions of the CAA. All references to USERRA in these
regulations, means USERRA, as applied by the CAA.
USERRA, as applied by the CAA, became effective for
employing offices of the legislative branch on January 23,
1996.
(a) As applied by the CAA, the Executive Director of the
Office of Congressional Workplace Rights is responsible for
providing education and information to any covered employing
office or employee with respect to their rights, benefits,
and obligations under the USERRA provisions of the CAA.
(b) The Office of Congressional Workplace Rights, under the
direction of the Executive Director, is responsible for the
processing of claims filed pursuant to these regulations.
More information about the Office of Congressional Workplace
Rights' role is contained in Subpart F.
(a) Act or USERRA means the Uniformed Services Employment
and Reemployment Rights Act of 1994, as applied by the CAA.
(b) Benefit, benefit of employment, or rights and benefits
means any advantage, profit, privilege, gain, status,
account, or interest (other than wages or salary for work
performed) that accrues to the employee because of an
employment contract, employment agreement, or employing
office policy, plan, or practice. The term includes rights
and benefits under a pension plan, health plan, insurance
coverage and awards, bonuses, severance pay, supplemental
unemployment benefits, vacations, and, where applicable, the
opportunity to select work hours or the location of
employment.
(c) Board means Board of Directors of the Office of
Congressional Workplace Rights.
(d) CAA means the Congressional Accountability Act of 1995,
as amended (Pub. L. 104-1, 109 Stat. 3, 2 U.S.C. 1301-1438).
(e) Covered employee means any employee, including an
applicant for employment and a former employee, of (1) the
House of Representatives; (2) the Senate; (3) the Office of
Congressional Accessibility Services; (4) the Capitol Police;
(5) the Congressional Budget Office; (6) the Office of the
Architect of the Capitol; (7) the Office of the Attending
Physician; (8) the Government Accountability Office; (9) the
Library of Congress; and (10) the Office of Congressional
Workplace Rights.
(f) Eligible employee means a covered employee performing
service in the uniformed services, as defined in 1002.5(t) of
this subpart, whose service has not been terminated upon
occurrence of any of the events enumerated in section
1002.135 of these regulations. For the purpose of defining
who is covered under the discrimination section of these
regulations, ``performing service'' means an eligible
employee who is a member of, applies to be a member of,
performs, has performed, applies to perform, or has an
obligation to perform service in the uniformed services.
(g) Employee of the Office of the Architect of the Capitol
includes any employee of the Office of the Architect of the
Capitol, the Botanic Gardens, or the Senate Restaurants.
(h) Employee of the Capitol Police includes any member or
officer of the Capitol Police.
(i) Employee of the House of Representatives includes an
individual occupying a position for which the pay is
disbursed by the Chief Administrative Officer of the House of
Representatives, or another official designated by the House
of Representatives, or any employment position in an entity
that is paid with funds derived from the clerk-hire allowance
of the House of Representatives but not any such individual
employed by any entity listed in subparagraphs (3) through
(10) of paragraph (e) above.
(j) Employee of the Senate includes an individual occupying
a position for which the pay is disbursed by the Secretary of
the Senate, but not any such individual employed by any
entity listed in subparagraphs (3) through (10) of paragraph
(e) above.
(k) Employing office means (1) the personal office of a
Senator; (2) a committee of the Senate or a joint committee
of the House of Representatives and the Senate; (3) any other
office headed by a person with the final authority to
appoint, or be directed by a Member of Congress to appoint,
hire, discharge, and set the terms, conditions, or privileges
of the employment of an employee of the Senate.
(l) Health plan means an insurance policy, insurance
contract, medical or hospital service agreement, membership
or subscription contract, or other arrangement under which
health services for individuals are provided or the expenses
of such services are paid.
(m) Notice, when the eligible employee is required to give
advance notice of service, means any written or oral
notification of an obligation or intention to perform service
in the uniformed services provided to an employing office by
the employee who will perform such service, or by the
uniformed service in which the service is to be performed.
(n) Office means the Office of Congressional Workplace
Rights.
(o) Qualified, with respect to an employment position,
means having the ability to perform the essential tasks of
the position.
(p) Reasonable efforts, in the case of actions required of
an employing office, means actions, including training
provided by an employing office that do not place an undue
hardship on the employing office.
(q) Seniority means longevity in employment together with
any benefits of employment that accrue with, or are
determined by, longevity in employment.
(r) Service in the uniformed services means the performance
of duty on a voluntary or involuntary basis in a uniformed
service under competent authority. Service in the uniformed
services includes active duty, active and inactive duty for
training, National Guard duty under Federal statute, and a
period for which a person is absent from a position of
employment for an examination to determine the fitness of the
person to perform such duty. The term also includes a period
for which a person is absent from employment to perform
funeral honors duty as authorized by law (10 U.S.C. 12503 or
32 U.S.C. 115). The Public Health Security and Bioterrorism
Preparedness and Response Act of 2002, Pub. L. 107-188,
provides that service as an intermittent disaster-response
appointee upon activation of the National Disaster Medical
System (NDMS) or as a participant in an authorized training
program is deemed ``service in the uniformed services.'' 42
U.S.C. 300hh-11(d)(3).
(s) Undue hardship, in the case of actions taken by an
employing office, means an action requiring significant
difficulty or expense, when considered in light of--
(1) The nature and cost of the action needed under USERRA
and these regulations;
(2) the overall financial resources of the facility or
facilities involved in the provision of the action; the
number of persons employed at such facility; the effect on
expenses and resources, or the impact otherwise of such
action upon the operation of the facility;
(3) The overall financial resources of the employing
office; the overall size of the business of an employing
office with respect to the number of its employees; the
number, type, and location of its facilities; and,
(4) The type of operation or operations of the employing
office, including the composition, structure, and functions
of the work force of such employing office; the geographic
separateness, administrative, or fiscal relationship of the
State, District, or satellite office in question to the
employing office.
(t) Uniformed services means the Armed Forces; the Army
National Guard and the Air National Guard when engaged in
active duty for training, inactive duty training, or full-
time National Guard duty; the commissioned corps of the
Public Health Service; and any other category of persons
designated by the President in time of war or national
emergency. For purposes of USERRA coverage only, service as
an intermittent disaster response appointee of the National
Disaster Medical System (NDMS) when federally activated or
attending authorized training in support of their Federal
mission is deemed ``service in the uniformed services,''
although such appointee is not a member of the ``uniformed
services'' as defined by USERRA.
The definition of ``service in the uniformed services''
covers all categories of military training and service,
including duty performed on a voluntary or involuntary basis,
in time of peace or war. Although most often understood as
applying to National Guard and reserve military personnel,
USERRA also applies to persons serving in the active
components of the Armed Forces. Certain types of service
specified in 42 U.S.C. 300hh-11 by members of the National
Disaster Medical System are covered by USERRA.
(a) USERRA establishes a floor, not a ceiling, for the
employment and reemployment rights and benefits of those it
protects. In other words, an employing office may provide
greater rights and benefits than USERRA requires, but no
employing office
[[Page S1180]]
can refuse to provide any right or benefit guaranteed by
USERRA, as applied by the CAA.
(b) USERRA supersedes any contract, agreement, policy,
plan, practice, or other matter that reduces, limits, or
eliminates in any manner any right or benefit provided by
USERRA, including the establishment of additional
prerequisites to the exercise of any USERRA right or the
receipt of any USERRA benefit. For example, an office policy
that determines seniority based only on actual days of work
in the place of employment would be superseded by USERRA,
which requires that seniority credit be given for periods of
absence from work due to service in the uniformed services.
(c) USERRA does not supersede, nullify or diminish any
Federal law, contract, agreement, policy, plan, practice, or
other matter that establishes an employment right or benefit
that is more beneficial than, or is in addition to, a right
or benefit provided under the Act. For example, although
USERRA does not require an employing office to pay an
eligible employee for time away from work performing service,
an employing office policy, plan, or practice that provides
such a benefit is permissible under USERRA.
(d) If an employing office provides a benefit that exceeds
USERRA's requirements in one area, it cannot reduce or limit
other rights or benefits provided by USERRA. For example,
even though USERRA does not require it, an employing office
may provide a fixed number of days of paid military leave per
year to employees who are members of the National Guard or
Reserve. The fact that it provides such a benefit, however,
does not permit an employing office to refuse to provide an
unpaid leave of absence to an employee to perform service in
the uniformed services in excess of the number of days of
paid military leave.
Subpart B: Anti-Discrimination and Anti-Retaliation
Protection From Employer Discrimination and Retaliation
Protection From Employer Discrimination and Retaliation
An employing office must not deny initial employment,
reemployment, retention in employment, promotion, or any
benefit of employment to an individual on the basis of his or
her membership, application for membership, performance of
service, application for service, or obligation for service
in the uniformed services.
An employing office must not retaliate against an eligible
employee by taking any adverse employment action against him
or her because the eligible employee has taken an action to
enforce a protection afforded any person under USERRA;
testified or otherwise made a statement in or in connection
with a proceeding under USERRA; assisted or participated in a
USERRA investigation; or exercised a right provided for by
USERRA.
Under USERRA, as applied by the CAA, the prohibitions
against discrimination and retaliation apply to eligible
employees in all positions within covered employing offices,
including those that are for a brief, nonrecurrent period,
and for which there is no reasonable expectation that the
employment position will continue indefinitely or for a
significant period. However, USERRA's reemployment rights and
benefits do not apply to such brief, non-recurrent positions
of employment.
USERRA's provisions, as applied by section 206 of the CAA,
prohibit discrimination and retaliation only against eligible
employees. Section 208(a) of the CAA, 2 U.S.C. 1317(a),
however, prohibits retaliation against all covered employees
because the employee has opposed any practice made unlawful
under the CAA, including a violation of USERRA's provisions,
as applied by the CAA; or testified; assisted; or
participated in any manner in a hearing or proceeding under
the CAA.
Subpart C--Eligibility for Reemployment
General Eligibility for Reemployment
Coverage of Employers and Positions
COVERAGE OF SERVICE IN THE UNIFORMED SERVICES
ABSENCE FROM A POSITION OF EMPLOYMENT NECESSITATED BY REASON OF SERVICE
IN THE UNIFORMED SERVICES
Period of Service
Application for Employment
[[Page S1181]]
Character of Service
Employer Statutory Defenses
General Eligibility for Reemployment
(a) In general, if an eligible employee has been absent
from a position of employment in an employing office by
reason of service in the uniformed services, he or she will
be eligible for reemployment in that same employing office,
if that employing office continues to exist at such time, by
meeting the following criteria:
(1) The employing office had advance notice of the eligible
employee's service;
(2) The eligible employee has five years or less of
cumulative service in the uniformed services in his or her
employment relationship with a particular employing office;
(3) The eligible employee timely returns to work or applies
for reemployment; and,
(4) The eligible employee has not been separated from
service with a disqualifying discharge or under other than
honorable conditions.
(b) These general eligibility requirements have important
qualifications and exceptions, which are described in detail
in sections 1002.73 through 1002.138. If the employee meets
these eligibility criteria, then he or she is eligible for
reemployment unless the employing office establishes one of
the defenses described in section 1002.139. The employment
position to which the eligible employee is entitled is
described in sections 1002.191 through 1002.199.
No. The eligible employee is not required to prove that the
employing office discriminated against him or her because of
the employee's uniformed service in order to be eligible for
reemployment.
Coverage of Employers and Positions
USERRA applies to all covered employing offices of the
legislative branch as defined in 2 U.S.C. 1301(9) and 2
U.S.C. 1316(a)(2)(C).
Yes. The definition of employer in the USERRA provision as
applied by the CAA includes an employing office that has
denied initial employment to an individual in violation of
USERRA's anti-discrimination provisions. An employing office
need not actually employ an individual to be liable under the
Act, if it has denied initial employment on the basis of the
individual's membership, application for membership,
performance of service, application for service, or
obligation for service in the uniformed services. Similarly,
the employing office would be liable if it denied initial
employment on the basis of the individual's action taken to
enforce a protection afforded to any person under USERRA, his
or her testimony or statement in connection with any USERRA
proceeding, assistance or other participation in a USERRA
investigation, or the exercise of any other right provided by
the Act. For example, if the individual has been denied
initial employment because of his or her obligations as a
member of the National Guard or Reserves, the employing
office denying employment is liable under USERRA. Similarly,
if an employing office withdraws an offer of employment
because the individual is called upon to fulfill an
obligation in the uniformed services, the employing office
withdrawing the employment offer is also liable under USERRA.
USERRA rights are not diminished because an eligible
employee holds a temporary, part-time, probationary, or
seasonal employment position. However, an employing office is
not required to reemploy an eligible employee if the
employment he or she left to serve in the uniformed services
was for a brief, nonrecurrent period and there is no
reasonable expectation that the employment would have
continued indefinitely or for a significant period. The
employing office bears the burden of proving this affirmative
defense.
(a) If an eligible employee is laid off with recall rights,
or on a leave of absence, he or she is protected under
USERRA. If the eligible employee is on layoff and begins
service in the uniformed services, or is laid off while
performing service, he or she may be entitled to reemployment
on return if the employing office would have recalled the
employee to employment during the period of service. Similar
principles apply if the eligible employee is on a leave of
absence from work when he or she begins a period of service
in the uniformed services.
(b) If the eligible employee is sent a recall notice during
a period of service in the uniformed services and cannot
resume the position of employment because of the service, he
or she still remains an eligible employee for purposes of the
Act. Therefore, if the employee is otherwise eligible, he or
she is entitled to reemployment following the conclusion of
the period of service, even if he or she did not respond to
the recall notice.
(c) If the eligible employee is laid off before or during
service in the uniformed services, and the employing office
would not have recalled him or her during that period of
service, the employee is not entitled to reemployment
following the period of service simply because he or she is
an eligible employee. Reemployment rights under USERRA cannot
put the eligible employee in a better position than if he or
she had remained in the civilian employment position.
Yes. USERRA applies to all eligible employees. There is no
exclusion for executive, managerial, or professional
employees.
No. USERRA, as applied by the CAA, does not provide
protections for an independent contractor.
COVERAGE OF SERVICE IN THE UNIFORMED SERVICES
Yes. USERRA's definition of ``service in the uniformed
services'' includes a period for which an eligible employee
is absent from a position of employment for the purpose of an
examination to determine his or her fitness to perform duty
in the uniformed services. Military fitness examinations can
address more than physical or medical fitness, and include
evaluations for mental, educational, and other types of
fitness. Any examination to determine an eligible employee's
fitness for service is covered, whether it is an initial or
recurring examination. For example, a periodic medical
examination required of a Reserve component member to
determine fitness for continued service is covered.
(a) USERRA's definition of ``service in the uniformed
services'' includes a period for which an eligible employee
is absent from employment for the purpose of performing
authorized funeral honors duty under 10 U.S.C. 12503 (members
of Reserve ordered to perform funeral honors duty) or 32
U.S.C. 115 (Member of Air or Army National Guard ordered to
perform funeral honors duty).
(b) Funeral honors duty performed by persons who are not
members of the uniformed services, such as members of
veterans' service organizations, is not ``service in the
uniformed services.''
Under a provision of the Public Health Security and
Bioterrorism Preparedness and Response Act of 2002, 42 U.S.C.
300hh 11(d)(3), ``service in the uniformed services''
includes service performed as an intermittent disaster-
response appointee upon activation of the National Disaster
Medical System or participation in an authorized training
program, even if the eligible employee is not a member of the
uniformed services.
No. Only Federal National Guard Service is considered
``service in the uniformed services.'' The National Guard has
a dual status.
[[Page S1182]]
It is a Reserve component of the Army, or, in the case of the
Air National Guard, of the Air Force. Simultaneously, it is a
State military force subject to call-up by the State Governor
for duty not subject to Federal control, such as emergency
duty in cases of floods or riots. National Guard members may
perform service under either Federal or State authority, but
only Federal National Guard service is covered by USERRA.
(a) National Guard service under Federal authority is
protected by USERRA. Service under Federal authority includes
active duty performed under Title 10 of the United States
Code. Service under Federal authority also includes duty
under Title 32 of the United States Code, such as active duty
for training, inactive duty training, or full-time National
Guard duty.
(b) National Guard service under authority of State law is
not protected by USERRA. However, many States have laws
protecting the civilian job rights of National Guard members
who serve under State orders. Enforcement of those State laws
is not covered by USERRA or these regulations.
Yes. Service in the commissioned corps of the Public Health
Service (PHS) is ``service in the uniformed services'' under
USERRA.
Yes. In time of war or national emergency, the President
has authority to designate any category of persons as a
``uniformed service'' for purposes of USERRA. If the
President exercises this authority, service as a member of
that category of persons would be ``service in the uniformed
services'' under USERRA.
Yes. Attending a military service academy is considered
uniformed service for purposes of USERRA. There are four
service academies: The United States Military Academy (West
Point, New York), the United States Naval Academy (Annapolis,
Maryland), the United States Air Force Academy (Colorado
Springs, Colorado), and the United States Coast Guard Academy
(New London, Connecticut).
Yes, under certain conditions.
(a) Membership in the Reserve Officers Training Corps
(ROTC) or the Junior ROTC is not ``service in the uniformed
services.'' However, some Reserve and National Guard enlisted
members use a college ROTC program as a means of qualifying
for commissioned officer status. National Guard and Reserve
members in an ROTC program may at times, while participating
in that program, be receiving active duty and inactive duty
training service credit with their unit. In these cases,
participating in ROTC training sessions is considered
``service in the uniformed services,'' and qualifies a person
for protection under USERRA's reemployment and anti-
discrimination provisions.
(b) Typically, an individual in a College ROTC program
enters into an agreement with a particular military service
that obligates such individual to either complete the ROTC
program and accept a commission or, in case he or she does
not successfully complete the ROTC program, to serve as an
enlisted member. Although an individual does not qualify for
reemployment protection, except as specified in (a) above, he
or she is protected under USERRA's anti-discrimination
provisions because, as a result of the agreement, he or she
has applied to become a member of the uniformed services and
has incurred an obligation to perform future service.
No. Although the Commissioned Corps of the National Oceanic
and Atmospheric Administration (NOAA) is a ``uniformed
service'' for some purposes, it is not included in USERRA's
definition of this term. Service in the Civil Air Patrol and
the Coast Guard Auxiliary similarly is not considered
``service in the uniformed services'' for purposes of USERRA.
Consequently, service performed in the Commissioned Corps of
the National Oceanic and Atmospheric Administration (NOAA),
the Civil Air Patrol, and the Coast Guard Auxiliary is not
protected by USERRA.
ABSENCE FROM A POSITION OF EMPLOYMENT NECESSITATED BY REASON OF SERVICE
IN THE UNIFORMED SERVICES
No. If absence from a position of employment is
necessitated by service in the uniformed services, and the
employee otherwise meets the Act's eligibility requirements,
he or she has reemployment rights under USERRA, even if the
eligible employee uses the absence for other purposes as
well. An eligible employee is not required to leave the
employment position for the sole purpose of performing
service in the uniformed services, although such uniformed
service must be the main reason for departure from
employment. For example, if the eligible employee is required
to report to an out of state location for military training
and he or she spends off-duty time during that assignment
moonlighting as a security guard or visiting relatives who
live in that State, the eligible employee will not lose
reemployment rights simply because he or she used some of the
time away from the job to do something other than attend the
military training. Also, if an eligible employee receives
advance notification of a mobilization order, and leaves his
or her employment position in order to prepare for duty, but
the mobilization is cancelled, the employee will not lose any
reemployment rights.
No. At a minimum, an eligible employee must have enough
time after leaving the employment position to travel safely
to the uniformed service site and arrive fit to perform the
service. Depending on the specific circumstances, including
the duration of service, the amount of notice received, and
the location of the service, additional time to rest, or to
arrange affairs and report to duty, may be necessitated by
reason of service in the uniformed services. The following
examples help to explain the issue of the period of time
between leaving civilian employment and beginning service in
the uniformed services:
(a) If the eligible employee performs a full overnight
shift for the civilian employer and travels directly from the
work site to perform a full day of uniformed service, the
eligible employee would not be considered fit to perform the
uniformed service. An absence from that work shift is
necessitated so that the eligible employee can report for
uniformed service fit for duty.
(b) If the eligible employee is ordered to perform an
extended period of service in the uniformed services, he or
she may require a reasonable period of time off from the
civilian job to put his or her personal affairs in order,
before beginning the service. Taking such time off is also
necessitated by the uniformed service.
(c) If the eligible employee leaves a position of
employment in order to enlist or otherwise perform service in
the uniformed services and, through no fault of his or her
own, the beginning date of the service is delayed, this delay
does not terminate any reemployment rights.
Yes. The eligible employee, or an appropriate officer of
the uniformed service in which his or her service is to be
performed, must notify the employing office that the employee
intends to leave the employment position to perform service
in the uniformed services, with certain exceptions described
below. In cases in which an eligible employee is employed by
more than one employing office, the employee, or an
appropriate officer of the uniformed service in which his or
her service is to be performed, must notify each employing
office that the employee intends to leave the employment
position to perform service in the uniformed services, with
certain exceptions described below.
(b) The Department of Defense USERRA regulations at 32 CFR
104.3 provide that an ``appropriate officer'' can give notice
on the eligible employee's behalf. An ``appropriate officer''
is a commissioned, warrant, or non-commissioned officer
authorized to give such notice by the military service
concerned.
(c) The eligible employee's notice to the employing office
may be either oral or written. The notice may be informal and
does not need to follow any particular format.
(d) Although USERRA does not specify how far in advance
notice must be given to the employing office, an eligible
employee should provide notice as far in advance as is
reasonable under the circumstances. In regulations
promulgated by the Department of Defense under USERRA, 32 CFR
104.6(a)(2)(i)(B), the Defense Department ``strongly
recommends that advance notice to civilian employers be
provided at least 30 days prior to departure for uniformed
service when it is feasible to do so.''
The eligible employee is required to give advance notice of
pending service unless giving such notice is prevented by
military necessity, or is otherwise impossible or
unreasonable under all the circumstances.
(a) Only a designated authority can make a determination of
``military necessity,'' and such a determination is not
subject to judicial review. Guidelines for defining
``military necessity'' appear in regulations issued by the
Department of Defense at 32 CFR 104.3. In general, these
regulations cover situations where a mission, operation,
exercise or requirement is classified, or could be
compromised or otherwise adversely affected by public
knowledge. In certain cases, the Secretary of Homeland
Security, in consultation with the Secretary of Defense, can
make a determination that giving of notice by intermittent
disaster-response appointees of the National Disaster Medical
System is precluded by ``military necessity.'' See 42 U.S.C.
300hh-11(d)(3)(B).
[[Page S1183]]
(b) It may be impossible or unreasonable to give advance
notice under certain circumstances. Such circumstances may
include the unavailability of the eligible employee's
employing office or the employing office's representative, or
a requirement that the eligible employee report for uniformed
service in an extremely short period of time.
No. The eligible employee is not required to ask for or get
the employing office's permission to leave to perform service
in the uniformed services. The eligible employee is only
required to give the employing office notice of pending
service.
No. When the eligible employee leaves the employment
position to begin a period of service, he or she is not
required to tell the employing office that he or she intends
to seek reemployment after completing uniformed service. Even
if the eligible employee tells the employing office before
entering or completing uniformed service that he or she does
not intend to seek reemployment after completing the
uniformed service, the employee does not forfeit the right to
reemployment after completing service. The eligible employee
is not required to decide in advance of leaving the position
with the employing office, whether he or she will seek
reemployment after completing uniformed service.
Period of Service
Yes. In general, the eligible employee may perform service
in the uniformed services for a cumulative period of up to
five (5) years and retain reemployment rights with the
employing office. The exceptions to this rule are described
below.
No. The five-year period includes only the time the
eligible employee spends actually performing service in the
uniformed services. A period of absence from employment
before or after performing service in the uniformed services
does not count against the five-year limit. For example,
after the eligible employee completes a period of service in
the uniformed services, he or she is provided a certain
amount of time, depending upon the length of service, to
report back to work or submit an application for
reemployment. The period between completing the uniformed
service and reporting back to work or seeking reemployment
does not count against the five-year limit.
No. An eligible employee is entitled to a leave of absence
for uniformed service for up to five years with each
employing office for whom he or she works or has worked. When
the eligible employee takes a position with a new employing
office, the five-year period begins again regardless of how
much service he or she performed while working in any
previous employment relationship. If an eligible employee is
employed by more than one employing office, a separate five-
year period runs as to each employing office independently,
even if those employing offices share or co-determine the
employee's terms and conditions of employment. For example,
an eligible employee of the legislative branch may work part-
time for two employing offices. In this case, a separate
five-year period would run as to the eligible employee's
employment with each respective employing office.
It depends. Under the CAA, USERRA provides reemployment
rights to which an eligible employee may become entitled
beginning on or after January 23, 1996, but any uniformed
service performed before January 23, 1996, that was counted
against the service limitations of the previous law (the
Veterans Reemployment Rights Act), also counts against
USERRA's five-year limit.
(A) USERRA creates the following exceptions to the five-
year limit on service in the uniformed services:
(1) Service that is required beyond five years to complete
an initial period of obligated service. Some military
specialties require an individual to serve more than five
years because of the amount of time or expense involved in
training. If the eligible employee works in one of those
specialties, he or she has reemployment rights when the
initial period of obligated service is completed;
(2) If the eligible employee was unable to obtain orders
releasing him or her from service in the uniformed services
before the expiration of the five-year period, and the
inability was not the employee's fault;
(3)(i) Service performed to fulfill periodic National Guard
and Reserve training requirements as prescribed by 10 U.S.C.
10147 and 32 U.S.C. 502(a) and 503; and,
(ii) Service performed to fulfill additional training
requirements determined and certified by a proper military
authority as necessary for the eligible employee's
professional development, or to complete skill training or
retraining;
(4) Service performed in a uniformed service if he or she
was ordered to or retained on active duty under:
(i) 10 U.S.C. 688 (involuntary active duty by a military
retiree);
(ii) 10 U.S.C. 12301(a) (involuntary active duty in
wartime);
(iii) 10 U.S.C. 12301(g) (retention on active duty while in
captive status);
(iv) 10 U.S.C. 12302 (involuntary active duty during a
national emergency for up to 24 months);
(v) 10 U.S.C. 12304 (involuntary active duty for an
operational mission for up to 270 days);
(vi) 10 U.S.C. 12305 (involuntary retention on active duty
of a critical person during time of crisis or other specific
conditions);
(vii) 14 U.S.C. 331 (involuntary active duty by retired
Coast Guard officer);
(viii) 14 U.S.C. 332 (voluntary active duty by retired
Coast Guard officer);
(ix) 14 U.S.C. 359 (involuntary active duty by retired
Coast Guard enlisted member);
(x) 14 U.S.C. 360 (voluntary active duty by retired Coast
Guard enlisted member);
(xi) 14 U.S.C. 367 (involuntary retention of Coast Guard
enlisted member on active duty); and
(xii) 14 U.S.C. 712 (involuntary active duty by Coast Guard
Reserve member for natural or man-made disasters).
(5) Service performed in a uniformed service if the
eligible employee was ordered to or retained on active duty
(other than for training) under any provision of law because
of a war or national emergency declared by the President or
the Congress, as determined by the Secretary concerned;
(6) Service performed in a uniformed service if the
eligible employee was ordered to active duty (other than for
training) in support of an operational mission for which
personnel have been ordered to active duty under 10 U.S.C.
12304, as determined by a proper military authority;
(7) Service performed in a uniformed service if the
eligible employee was ordered to active duty in support of a
critical mission or requirement of the uniformed services as
determined by the Secretary concerned; and,
(8) Service performed as a member of the National Guard if
the eligible employee was called to respond to an invasion,
danger of invasion, rebellion, danger of rebellion,
insurrection, or the inability of the President with regular
forces to execute the laws of the United States.
(b) Service performed in a uniformed service to mitigate
economic harm where the eligible employee's employing office
is in violation of its employment or reemployment obligations
to him or her.
No. The eligible employee is not required to accommodate
his or her employing office's interests or concerns regarding
the timing, frequency, or duration of uniformed service. The
employing office cannot refuse to reemploy the eligible
employee because it believes that the timing, frequency or
duration of the service is unreasonable. However, the
employing office is permitted to bring its concerns over the
timing, frequency, or duration of the eligible employee's
service to the attention of the appropriate military
authority. Regulations issued by the Department of Defense at
32 CFR 104.4 direct military authorities to provide
assistance to an employer in addressing these types of
employment issues. The military authorities are required to
consider requests from employers of National Guard and
Reserve members to adjust scheduled absences from civilian
employment to perform service.
Application for Employment
Yes. Upon completing service in the uniformed services, the
eligible employee must notify the pre-service employing
office of his or her intent to return to the employment
position by either reporting to work or submitting a timely
application for reemployment. Whether the eligible employee
is required to report to work or submit a timely application
for reemployment depends upon the length of service, as
follows:
(a) Period of service less than 31 days or for a period of
any length for the purpose of a fitness examination. If the
period of service in the uniformed services was less than 31
days, or the eligible employee was absent from a position of
employment for a period of any length for the purpose of an
examination to determine his or her fitness to perform
service, the eligible employee must report back to the
employing office not later
[[Page S1184]]
than the beginning of the first full regularly-scheduled work
period on the first full calendar day following the
completion of the period of service, and the expiration of
eight hours after a period allowing for safe transportation
from the place of that service to the eligible employee's
residence. For example, if the eligible employee completes a
period of service and travel home, arriving at ten o'clock in
the evening, he or she cannot be required to report to the
employing office until the beginning of the next full
regularly-scheduled work period that begins at least eight
hours after arriving home, i.e., no earlier than six o'clock
the next morning. If it is impossible or unreasonable for the
eligible employee to report within such time period through
no fault of his or her own, he or she must report to the
employing office as soon as possible after the expiration of
the eight-hour period.
(b) Period of service more than 30 days but less than 181
days. If the eligible employee's period of service in the
uniformed services was for more than 30 days but less than
181 days, he or she must submit an application for
reemployment (written or oral) with the employing office not
later than 14 days after completing service. If it is
impossible or unreasonable for the eligible employee to apply
within 14 days through no fault of his or her own, he or she
must submit the application not later than the next full
calendar day after it becomes possible to do so.
(c) Period of service more than 180 days. If the eligible
employee's period of service in the uniformed services was
for more than 180 days, he or she must submit an application
for reemployment (written or oral) not later than 90 days
after completing service.
Yes. If the eligible employee is hospitalized for, or
convalescing from, an illness or injury incurred in, or
aggravated during, the performance of service, he or she must
report to or submit an application for reemployment to the
employing office at the end of the period necessary for
recovering from the illness or injury. This period may not
exceed two years from the date of the completion of service,
except that it must be extended by the minimum time necessary
to accommodate circumstances beyond the eligible employee's
control that make reporting within the period impossible or
unreasonable. This period for recuperation and recovery
extends the time period for reporting to or submitting an
application for reemployment to the employing office, and is
not applicable following reemployment.
(a) If the eligible employee fails to timely report for or
apply for reemployment, he or she does not automatically
forfeit entitlement to USERRA's reemployment and other rights
and benefits. However, the eligible employee does become
subject to any conduct rules, established policy, and general
practices of the employing office pertaining to an absence
from scheduled work.
(b) If reporting or submitting an employment application to
the employing office is impossible or unreasonable through no
fault of the eligible employee, he or she may report to the
employing office as soon as possible (in the case of a period
of service less than 31 days) or submit an application for
reemployment to the employing office by the next full
calendar day after it becomes possible to do so (in the case
of a period of service from 31 to 180 days), and the eligible
employee will be considered to have timely reported or
applied for reemployment.
An application for reemployment need not follow any
particular format. The eligible employee may apply orally or
in writing. The application should indicate that the employee
is a former employee returning from service in the uniformed
services and that he or she seeks reemployment with the pre-
service employing office. The eligible employee is permitted
but not required to identify a particular reemployment
position in which he or she is interested.
The application must be submitted to the pre-service
employing office or to an agent or representative of the
employing office who has apparent responsibility for
receiving employment applications. Depending upon the
circumstances, such a person could be a personnel or human
resources officer, or a first-line supervisor.
No. The eligible employee has reemployment rights with the
pre-service employing office provided that he or she makes a
timely reemployment application to that employing office. The
eligible employee may seek or obtain employment with an
employer other than the pre-service employing office during
the period of time within which a reemployment application
must be made, without giving up reemployment rights with the
pre-service employing office. However, such alternative
employment during the application period should not be of a
type that would constitute a cause for the employing office
to discipline or terminate the employee following
reemployment. For instance, if the employing office forbids
outside employment, violation of such a policy may constitute
a cause for discipline or even termination.
Yes, if the period of service exceeded 30 days and if
requested by the employing office to do so. If the eligible
employee submits an application for reemployment after a
period of service of more than 30 days, he or she must, upon
the request of the employing office, provide documentation to
establish that:
(a) The reemployment application is timely;
(b) The eligible employee has not exceeded the five-year
limit on the duration of service (subject to the exceptions
listed at section 1002.103); and,
(c) The eligible employee's separation or dismissal from
service was not disqualifying.
Yes. The employing office is not permitted to delay or deny
reemployment by demanding documentation that does not exist
or is not readily available. The eligible employee is not
liable for administrative delays in the issuance of military
documentation. If the eligible employee is re-employed after
an absence from employment for more than 90 days, the
employing office may require that he or she submit the
documentation establishing entitlement to reemployment before
treating the employee as not having had a break in service
for pension purposes. If the documentation is received after
reemployment and it shows that the eligible employee is not
entitled to reemployment, the employing office may terminate
employment and any rights or benefits that the employee may
have been granted.
(a) Documents that satisfy the requirements of USERRA
include the following:
(1) DD (Department of Defense) 214 Certificate of Release
or Discharge from Active Duty;
(2) Copy of duty orders prepared by the facility where the
orders were fulfilled carrying an endorsement indicating
completion of the described service;
(3) Letter from the commanding officer of a Personnel
Support Activity or someone of comparable authority;
(4) Certificate of completion from military training
school;
(5) Discharge certificate showing character of service;
and,
(6) Copy of extracts from payroll documents showing periods
of service;
(7) Letter from NDMS Team Leader or Administrative Officer
verifying dates and times of NDMS training or Federal
activation.
(b) The types of documents that are necessary to establish
eligibility for reemployment will vary from case to case. Not
all of these documents are available or necessary in every
instance to establish reemployment eligibility.
Character of Service
USERRA does not require any particular form of discharge or
separation from service. However, even if the employee is
otherwise eligible for reemployment, he or she will be
disqualified if the characterization of service falls within
one of four categories. USERRA requires that the employee not
have received one of these types of discharge.
Reemployment rights are terminated if the employee is:
(a) Separated from uniformed service with a dishonorable or
bad conduct discharge;
(b) Separated from uniformed service under other than
honorable conditions, as characterized by regulations of the
uniformed service;
(c) A commissioned officer dismissed as permitted under 10
U.S.C. 1161(a) by sentence of a general court-martial; in
commutation of a sentence of a general court-martial; or, in
time of war, by order of the President; or,
(d) A commissioned officer dropped from the rolls under 10
U.S.C. 1161(b) due to absence without authority for at least
three months; separation by reason of a sentence to
confinement adjudged by a court-martial; or, a sentence to
confinement in a Federal or State penitentiary or
correctional institution.
[[Page S1185]]
The branch of service in which the employee performs the
tour of duty determines the characterization of service.
Yes. A military review board has the authority to
prospectively or retroactively upgrade a disqualifying
discharge or release. A retroactive upgrade would restore
reemployment rights providing the employee otherwise meets
the Act's eligibility criteria.
No. A retroactive upgrade allows the employee to obtain
reinstatement with the former employing office, provided the
employee otherwise meets the Act's eligibility criteria. Back
pay and other benefits such as pension plan credits
attributable to the time period between discharge and the
retroactive upgrade are not required to be restored by the
employing office in this situation.
Employer Statutory Defenses
(a) Even if the employee is otherwise eligible for
reemployment benefits, the employing office is not required
to reemploy him or her if the employing office establishes
that its circumstances have so changed as to make
reemployment impossible or unreasonable. For example, an
employing office may be excused from re-employing the
eligible employee where there has been an intervening
reduction in force that would have included that employee.
The employing office may not, however, refuse to reemploy the
eligible employee on the basis that another employee was
hired to fill the reemployment position during the employee's
absence, even if reemployment might require the termination
of that replacement employee;
(b) Even if the employee is otherwise eligible for
reemployment benefits, the employing office is not required
to reemploy him or her if it establishes that assisting the
eligible employee in becoming qualified for reemployment
would impose an undue hardship, as defined in section
1002.5(s) and discussed in section 1002.198, on the employing
office; or,
(c) Even if the employee is otherwise eligible for
reemployment benefits, the employing office is not required
to reemploy him or her if it establishes that the employment
position vacated by the eligible employee in order to perform
service in the uniformed services was for a brief,
nonrecurrent period and there was no reasonable expectation
that the employment would continue indefinitely or for a
significant period.
(d) The employing office defenses included in this section
are affirmative ones, and the employing office carries the
burden to prove by a preponderance of the evidence that any
one or more of these defenses is applicable.
Subpart D: Rights, Benefits, and Obligations of Persons Absent from
Employment Due to Service in the Uniformed Services
Furlough and Leave of Absence
Health Plan Coverage
Furlough and Leave of Absence
During a period of service in the uniformed services, the
eligible employee is deemed to be on leave of absence from
the employing office. In this status, the eligible employee
is entitled to the non-seniority rights and benefits
generally provided by the employing office to other employees
with similar seniority, status, and pay that are on leave of
absence. Entitlement to these non-seniority rights and
benefits is not dependent on how the employing office
characterizes the eligible employee's status during a period
of service. For example, if the employing office
characterizes the employee as ``terminated'' during the
period of uniformed service, this characterization cannot be
used to avoid USERRA's requirement that the employee be
deemed on leave of absence, and therefore, entitled to the
non-seniority rights and benefits generally provided to
employees on leave of absence.
(a) The non-seniority rights and benefits to which an
eligible employee is entitled during a period of service are
those that the employing office provides to similarly
situated employees by an agreement, policy, practice, or plan
in effect at the employee's workplace. These rights and
benefits include those in effect at the beginning of the
eligible employee's employment and those established after
employment began. They also include those rights and benefits
that become effective during the eligible employee's period
of service and that are provided to similarly situated
employees on leave of absence.
(b) If the non-seniority benefits to which employees on
leave of absence are entitled vary according to the type of
leave, the eligible employee must be given the most favorable
treatment accorded to any comparable form of leave when he or
she performs service in the uniformed services. In order to
determine whether any two types of leave are comparable, the
duration of the leave may be the most significant factor to
compare. For instance, a two-day funeral leave will not be
``comparable'' to an extended leave for service in the
uniformed service. In addition to comparing the duration of
the absences, other factors such as the purpose of the leave
and the ability of the employee to choose when to take the
leave should also be considered.
(c) As a general matter, accrual of vacation leave is
considered to be a non-seniority benefit that must be
provided by an employing office to an eligible employee on a
military leave of absence only if the employing office
provides that benefit to similarly situated employees on
comparable leaves of absence.
(d) Nothing in this section gives the eligible employee
rights or benefits to which the employee otherwise would not
be entitled if the employee had remained continuously
employed with the employing office.
Yes. If the employing office provides additional benefits
such as full or partial pay when the eligible employee
performs service, the employing office is not excused from
providing other rights and benefits to which the employee is
entitled under the Act.
If employment is interrupted by a period of service in the
uniformed services and the eligible employee knowingly
provides written notice of intent not to return to the
position of employment after service in the uniformed
services, he or she is not entitled to those non-seniority
rights and benefits. The eligible employee's written notice
does not waive entitlement to any other rights to which he or
she is entitled under the Act, including the right to
reemployment after service.
[[Page S1186]]
(a) If employment is interrupted by a period of service,
the eligible employee must be permitted upon request to use
any accrued vacation, annual, or similar leave with pay
during the period of service, in order to continue his or her
civilian pay. However, the eligible employee is not entitled
to use sick leave that accrued with the employing office
during a period of service in the uniformed services, unless
the employing office allows employees to use sick leave for
any reason, or allows other similarly situated employees on
comparable furlough or leave of absence to use accrued paid
sick leave. Sick leave is usually not comparable to annual or
vacation leave; it is generally intended to provide income
when the employee or a family member is ill and the employee
is unable to work.
(b) The employing office may not require the eligible
employee to use accrued vacation, annual, or similar leave
during a period of service in the uniformed services.
Health Plan Coverage
(a) USERRA defines a health plan to include an insurance
policy or contract, medical or hospital service agreement,
membership or subscription contract, or arrangement under
which the employee's health services are provided or the
expenses of those services are paid.
(b) USERRA covers group health plans as defined in the
Employee Retirement Income Security Act of 1974 (ERISA) at 29
U.S.C. 1191b(a). USERRA applies to group health plans that
are subject to ERISA, and plans that are not subject to
ERISA, such as those sponsored by the Federal Government.
(c) USERRA covers multi-employer plans maintained pursuant
to one or more collective bargaining agreements between
employers and employee organizations. USERRA applies to
multi-employer plans as they are defined in ERISA at 29
U.S.C. 1002(37). USERRA contains provisions that apply
specifically to multi-employer plans in certain situations.
If the eligible employee has coverage under a health plan
in connection with his or her employment, the plan must
permit the employee to elect to continue the coverage for a
certain period of time as described below:
(a) When the eligible employee is performing service in the
uniformed services, he or she is entitled to continuing
coverage for himself or herself (and dependents if the plan
offers dependent coverage) under a health plan provided in
connection with the employment. The plan must allow the
eligible employee to elect to continue coverage for a period
of time that is the lesser of:
(1) The 24-month period beginning on the date on which the
eligible employee's absence for the purpose of performing
service begins; or,
(2) The period beginning on the date on which the eligible
employee's absence for the purpose of performing service
begins, and ending on the date on which he or she fails to
return from service or apply for a position of employment as
provided under sections 1002.115-123 of these regulations.
(b) USERRA does not require the employing office to
establish a health plan if there is no health plan coverage
in connection with the employment, or, where there is a plan,
to provide any particular type of coverage.
(c) USERRA does not require the employing office to permit
the eligible employee to initiate new health plan coverage at
the beginning of a period of service if he or she did not
previously have such coverage.
USERRA does not specify requirements for electing
continuing coverage. Health plan administrators may develop
reasonable requirements addressing how continuing coverage
may be elected, consistent with the terms of the plan and the
Act's exceptions to the requirement that the employee give
advance notice of service in the uniformed services. For
example, the eligible employee cannot be precluded from
electing continuing health plan coverage under circumstances
where it is impossible or unreasonable for him or her to make
a timely election of coverage.
(a) If the eligible employee performs service in the
uniformed service for fewer than 31 days, he or she cannot be
required to pay more than the regular employee share, if any,
for health plan coverage.
(b) If the eligible employee performs service in the
uniformed service for 31 or more days, he or she may be
required to pay no more than 102% of the full premium under
the plan, which represents the employing office's share plus
the employee's share, plus 2% for administrative costs.
(c) USERRA does not specify requirements for methods of
paying for continuing coverage. Health plan administrators
may develop reasonable procedures for payment, consistent
with the terms of the plan.
The actions a plan administrator may take regarding the
provision or cancellation of an eligible employee's
continuing coverage depend on whether the employee is excused
from the requirement to give advance notice, whether the plan
has established reasonable rules for election of continuation
coverage, and whether the plan has established reasonable
rules for the payment for continuation coverage.
(a) No notice of service and no election of continuation
coverage: If an employing office provides employment-based
health coverage to an eligible employee who leaves employment
for uniformed service without giving advance notice of
service, the plan administrator may cancel the employee's
health plan coverage upon the employee's departure from
employment for uniformed service. However, in cases in which
an eligible employee's failure to give advance notice of
service was excused under the statute because it was
impossible, unreasonable, or precluded by military necessity,
the plan administrator must reinstate the employee's health
coverage retroactively upon his or her election to continue
coverage and payment of all unpaid amounts due, and the
employee must incur no administrative reinstatement costs. In
order to qualify for an exception to the requirement of
timely election of continuing health care, an eligible
employee must first be excused from giving notice of service
under the statute.
(b) Notice of service but no election of continuing
coverage: Plan administrators may develop reasonable
requirements addressing how continuing coverage may be
elected. Where health plans are also covered under the
Consolidated Omnibus Budget Reconciliation Act of 1985, 26
U.S.C. 4980B (COBRA), it may be reasonable for a health plan
administrator to adopt COBRA-compliant rules regarding
election of continuing coverage, as long as those rules do
not conflict with any provision of USERRA or this rule. If an
employing office provides employment-based health coverage to
an eligible employee who leaves employment for uniformed
service for a period of service in excess of 30 days after
having given advance notice of service but without making an
election regarding continuing coverage, the plan
administrator may cancel the employee's health plan coverage
upon the employee's departure from employment for uniformed
service, but must reinstate coverage without the imposition
of administrative reinstatement costs under the following
conditions:
(1) Plan administrators who have developed reasonable rules
regarding the period within which an employee may elect
continuing coverage must permit retroactive reinstatement of
uninterrupted coverage to the date of departure if the
eligible employee elects continuing coverage and pays all
unpaid amounts due within the periods established by the
plan;
(2) In cases in which plan administrators have not
developed rules regarding the period within which an employee
may elect continuing coverage, the plan must permit
retroactive reinstatement of uninterrupted coverage to the
date of departure upon the eligible employee's election and
payment of all unpaid amounts at any time during the period
established in section 1002.164(a).
(c) Election of continuation coverage without timely
payment: Health plan administrators may adopt reasonable
rules allowing cancellation of coverage if timely payment is
not made. Where health plans are covered under COBRA, it may
be reasonable for a health plan administrator to adopt COBRA-
compliant rules regarding payment for continuing coverage, as
long as those rules do not conflict with any provision of
USERRA or this rule.
(a) If health plan coverage for the eligible employee or a
dependent was terminated by reason of service in the
uniformed services, that coverage must be reinstated upon
reemployment. An exclusion or waiting period may not be
imposed in connection with the reinstatement of coverage upon
reemployment, if an exclusion or waiting period would not
have been imposed had coverage not been terminated by reason
of such service.
(b) USERRA permits a health plan to impose an exclusion or
waiting period as to illnesses or injuries determined by the
Secretary of Veterans Affairs to have been incurred in, or
aggravated during, performance of service in the uniformed
services. The determination that the employee's illness or
injury was incurred in, or aggravated during, the performance
of service may only be made by the Secretary of Veterans
Affairs or his or her representative. Other coverage, for
injuries or illnesses that are not service-related (or for
the employee's dependents, if he or she has dependent
coverage), must be reinstated subject to paragraph (a) of
this section.
USERRA requires the employing office to reinstate or direct
the reinstatement of health plan coverage upon request at
reemployment. USERRA permits but does not require the
employing office to allow the employee to delay reinstatement
of health plan coverage until a date that is later than the
date of reemployment.
[[Page S1187]]
Liability under a multi-employer plan for employer
contributions and benefits in connection with USERRA's health
plan provisions must be allocated either as the plan sponsor
provides, or, if the sponsor does not provide, to the
eligible employee's last employer before his or her service.
If the last employer is no longer functional, liability for
continuing coverage is allocated to the health plan.
(a) Some employees receive health plan benefits provided
pursuant to a multi-employer plan that utilizes a health
benefits account system in which an employee accumulates
prospective health benefit eligibility, also commonly
referred to as ``dollar bank,'' ``credit bank,'' and ``hour
bank'' plans. In such cases, where an employee with a
positive health benefits account balance elects to continue
the coverage, the employee may further elect either option
below:
(1) The eligible employee may expend his or her health
account balance during an absence from employment due to
service in the uniformed services in lieu of paying for the
continuation of coverage as set out in section 1002.166. If
an eligible employee's health account balance becomes
depleted during the applicable period provided for in section
1002.164(a), the employee must be permitted, at his or her
option, to continue coverage pursuant to section 1002.166.
Upon reemployment, the plan must provide for immediate
reinstatement of the eligible employee as required by section
1002.168, but may require the employee to pay the cost of the
coverage until the employee earns the credits necessary to
sustain continued coverage in the plan.
(2) The eligible employee may pay for continuation coverage
as set out in section 1002.166, in order to maintain intact
his or her account balance as of the beginning date of the
absence from employment due to service in the uniformed
services. This option permits the eligible employee to resume
usage of the account balance upon reemployment.
(b) Employers or plan administrators providing such plans
should counsel employees of their options set out in this
subsection.
Subpart E: Reemployment Rights and Benefits
Prompt Employment
Reemployment Position
Seniority Rights and Benefits
Disabled Employees
Rate of Pay
Protection Against Discharge
Pension Plan Benefits
Prompt Reemployment
The employing office must promptly reemploy the employee
when he or she returns from a period of service if the
employee meets the Act's eligibility criteria as described in
Subpart C of these regulations.
``Prompt reemployment'' means as soon as practicable under
the circumstances of each case. Absent unusual circumstances,
reemployment must occur within two weeks of the eligible
employee's application for reemployment. For example, prompt
reinstatement after a weekend National Guard duty generally
means the next regularly scheduled working day. On the other
hand, prompt reinstatement following several years of active
duty may require more time, because the employing office may
have to reassign or give notice to another employee who
occupied the returning employee's position.
Reemployment Position
As a general rule, the eligible employee is entitled to
reemployment in the job position that he or she would have
attained with reasonable certainty if not for the absence due
to uniformed service. This position is known as the escalator
position. The principle behind the escalator position is
that, if not for the period of uniformed service, the
eligible employee could have been promoted (or,
alternatively, demoted, transferred, or laid off) due to
intervening events. The escalator principle requires that the
eligible employee be reemployed in a position that reflects
with reasonable certainty the pay, benefits, seniority, and
other job perquisites, that he or she would have attained if
not for the period of service. Depending upon the specific
circumstances, the employing office may have the option, or
be required, to reemploy the eligible employee in a position
other than the escalator position.
In all cases, the starting point for determining the proper
reemployment position is the escalator position, which is the
job position that the eligible employee would have attained
if his or her continuous employment had not been interrupted
due to uniformed service. Once this position is determined,
the employing office may have to consider several factors
before determining the appropriate reemployment position in
any particular case. Such factors may include the eligible
employee's length of service, qualifications, and disability,
if any. The actual reemployment position may be either the
escalator position; the pre-service position; a position
comparable to the escalator or pre-service position; or, the
nearest approximation to one of these positions.
(a) Yes. The reemployment position includes the seniority,
status, and rate of pay that an eligible employee would
ordinarily have attained in that position given his or her
job history, including prospects for future earnings and
advancement. The employing office must determine the
seniority rights, status, and rate of pay as though the
eligible employee had been continuously employed during the
period of service. The seniority rights, status, and pay of
an employment position include those established (or changed)
by a collective bargaining agreement, employer policy, or
employment practice. The sources of seniority rights, status,
and pay include agreements, policies, and practices in effect
at the beginning of the eligible employee's service, and any
changes that may have occurred during the period of
[[Page S1188]]
service. In particular, the eligible employee's status in the
reemployment position could include opportunities for
advancement, general working conditions, job location, shift
assignment, rank, responsibility, and geographical location.
(b) If an opportunity for promotion, or eligibility for
promotion, that the eligible employee missed during service
is based on a skills test or examination, then the employing
office should give him or her a reasonable amount of time to
adjust to the employment position and then give a skills test
or examination. No fixed amount of time for permitting
adjustment to reemployment will be deemed reasonable in all
cases. However, in determining a reasonable amount of time to
permit an eligible employee to adjust to reemployment before
scheduling a makeup test or examination, an employing office
may take into account a variety of factors, including but not
limited to the length of time the returning employee was
absent from work, the level of difficulty of the test itself,
the typical time necessary to prepare or study for the test,
the duties and responsibilities of the reemployment position
and the promotional position, and the nature and
responsibilities of the service member while serving in the
uniformed service. If the eligible employee is successful on
the makeup exam and, based on the results of that exam, there
is a reasonable certainty that he or she would have been
promoted, or made eligible for promotion, during the time
that the employee served in the uniformed service, then the
promotion or eligibility for promotion must be made effective
as of the date it would have occurred had employment not been
interrupted by uniformed service.
Yes. The Act does not prohibit lawful adverse job
consequences that result from the eligible employee's
restoration on the seniority ladder. Depending on the
circumstances, the escalator principle may cause an eligible
employee to be reemployed in a higher or lower position, laid
off, or even terminated. For example, if an eligible
employee's seniority or job classification would have
resulted in the employee being laid off during the period of
service, and the layoff continued after the date of
reemployment, reemployment would reinstate the employee to
layoff status. Similarly, the status of the reemployment
position requires the employing office to assess what would
have happened to such factors as the eligible employee's
opportunities for advancement, working conditions, job
location, shift assignment, rank, responsibility, and
geographical location, if he or she had remained continuously
employed. The reemployment position may involve transfer to
another shift or location, more or less strenuous working
conditions, or changed opportunities for advancement,
depending upon the application of the escalator principle.
Once the eligible employee's escalator position is
determined, other factors may allow, or require, the
employing office to reemploy the employee in a position other
than the escalator position. These factors, which are
explained in sections 1002.196 through 1002.199, are:
(a) The length of the eligible employee's most recent
period of uniformed service;
(b) The eligible employee's qualifications; and,
(c) Whether the eligible employee has a disability incurred
or aggravated during uniformed service.
Following a period of service in the uniformed services of
less than 91 days, the eligible employee must be reemployed
according to the following priority:
(a) The eligible employee must be reemployed in the
escalator position. He or she must be qualified to perform
the duties of this position. The employing office must make
reasonable efforts to help the eligible employee become
qualified to perform the duties of this position.
(b) If the eligible employee is not qualified to perform
the duties of the escalator position after reasonable efforts
by the employing office, the employee must be reemployed in
the position in which he or she was employed on the date that
the period of service began. The eligible employee must be
qualified to perform the duties of this position. The
employing office must make reasonable efforts to help the
eligible employee become qualified to perform the duties of
this position.
(c) If the eligible employee is not qualified to perform
the duties of the escalator position or the pre-service
position, after reasonable efforts by the employing office,
he or she must be reemployed in any other position that is
the nearest approximation first to the escalator position and
then to the pre-service position. The eligible employee must
be qualified to perform the duties of this position. The
employing office must make reasonable efforts to help the
eligible employee become qualified to perform the duties of
this position.
Following a period of service of more than 90 days, the
eligible employee must be reemployed according to the
following priority:
(a) The eligible employee must be reemployed in the
escalator position or a position of like seniority, status,
and pay. He or she must be qualified to perform the duties of
this position. The employing office must make reasonable
efforts to help the eligible employee become qualified to
perform the duties of this position.
(b) If the eligible employee is not qualified to perform
the duties of the escalator position or a like position after
reasonable efforts by the employing office, the employee must
be reemployed in the position in which he or she was employed
on the date that the period of service began or in a position
of like seniority, status, and pay. The eligible employee
must be qualified to perform the duties of this position. The
employing office must make reasonable efforts to help the
eligible employee become qualified to perform the duties of
this position.
(c) If the eligible employee is not qualified to perform
the duties of the escalator position, the pre-service
position, or a like position, after reasonable efforts by the
employing office, he or she must be reemployed in any other
position that is the nearest approximation first to the
escalator position and then to the pre-service position. The
eligible employee must be qualified to perform the duties of
this position. The employing office must make reasonable
efforts to help the eligible employee become qualified to
perform the duties of this position.
The eligible employee must be qualified for the
reemployment position. The employing office must make
reasonable efforts to help the eligible employee become
qualified to perform the duties of this position. The
employing office is not required to reemploy the eligible
employee on his or her return from service if he or she
cannot, after reasonable efforts by the employing office,
qualify for the appropriate reemployment position.
(a)(1) ``Qualified'' means that the employee has the
ability to perform the essential tasks of the position. The
employee's inability to perform one or more nonessential
tasks of a position does not make him or her unqualified.
(2) Whether a task is essential depends on several factors,
and these factors include but are not limited to:
(i) The employing office's judgment as to which functions
are essential;
(ii) Written job descriptions developed before the hiring
process begins;
(iii) The amount of time on the job spent performing the
function;
(iv) The consequences of not requiring the individual to
perform the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job;
and/or
(vii) The current work experience of incumbents in similar
jobs.
(b) Only after the employing office makes reasonable
efforts, as defined in section 1002.5(p), may it determine
that the otherwise eligible employee is not qualified for the
reemployment position. These reasonable efforts must be made
at no cost to the employee.
If two or more eligible employees are entitled to
reemployment in the same position and more than one employee
has reported or applied for employment in that position, the
employee who first left the position for uniformed service
has the first priority on reemployment in that position. The
remaining employee (or employees) is entitled to be
reemployed in a position similar to that in which the
employee would have been re-employed according to the rules
that normally determine a reemployment position, as set out
in sections 1002.196 and 1002.197.
Seniority Rights and Benefits
The eligible employee is entitled to the seniority and
seniority-based rights and benefits that he or she had on the
date the uniformed service began, plus any seniority and
seniority-based rights and benefits that the employee would
have attained if he or she had remained continuously
employed. The eligible employee is not entitled to any
benefits to which he or she would not have been entitled had
the employee been continuously employed with the employing
office. In determining entitlement to seniority and
seniority-based rights and benefits, the period of absence
from employment due to or necessitated by uniformed service
is not considered a break in employment. The rights and
benefits protected by USERRA upon reemployment include those
provided by the employing office and those required by
statute.
For example, under USERRA, a reemployed service member
would be eligible for leave under the Family and Medical
Leave Act of 1993, 29 U.S.C. 2601-2654 (FMLA), if the number
of months and the number of hours of work for which the
service member was employed by the employing office, together
[[Page S1189]]
with the number of months and the number of hours of work for
which the service member would have been employed by the
employing office during the period of uniformed service, meet
FMLA's eligibility requirements. In the event that a service
member is denied FMLA leave for failing to satisfy the FMLA's
hours of work requirement due to absence from employment
necessitated by uniformed service, the service member may
have a cause of action under USERRA but not under the FMLA.
No. USERRA does not require the employing office to adopt a
formal seniority system. USERRA defines seniority as
longevity in employment together with any employment benefits
that accrue with, or are determined by, longevity in
employment. In the absence of a formal seniority system, such
as one established through collective bargaining, USERRA
looks to the custom and practice in the place of employment
to determine the eligible employee's entitlement to any
employment benefits that accrue with, or are determined by,
longevity in employment.
A seniority-based right or benefit is one that accrues
with, or is determined by, longevity in employment.
Generally, whether a right or benefit is seniority-based
depends on three factors:
(a) Whether the right or benefit is a reward for length of
service rather than a form of short-term compensation for
work performed;
(b) Whether it is reasonably certain that the eligible
employee would have received the right or benefit if he or
she had remained continuously employed during the period of
service; and,
(c) Whether it is the employing office's actual custom or
practice to provide or withhold the right or benefit as a
reward for length of service. Provisions of an employment
contract or policies in the employee handbook are not
controlling if the employing office's actual custom or
practice is different from what is written in the contract or
handbook.
A reasonable certainty is a high probability that the
eligible employee would have received the seniority or
seniority-based right or benefit if he or she had been
continuously employed. The eligible employee does not have to
establish that he or she would have received the benefit as
an absolute certainty. The eligible employee can demonstrate
a reasonable certainty that he or she would have received the
seniority right or benefit by showing that other employees
with seniority similar to that which the employee would have
had if he or she had remained continuously employed received
the right or benefit. The employing office cannot withhold
the right or benefit based on an assumption that a series of
unlikely events could have prevented the eligible employee
from gaining the right or benefit.
Disabled Employees
Yes. A disabled service member is entitled, to the same
extent as any other individual, to the escalator position he
or she would have attained but for uniformed service. If the
eligible employee has a disability incurred in, or aggravated
during, the period of service in the uniformed services, the
employing office must make reasonable efforts to accommodate
that disability and to help the employee become qualified to
perform the duties of his or her reemployment position. If
the eligible employee is not qualified for reemployment in
the escalator position because of a disability after
reasonable efforts by the employing office to accommodate the
disability and to help the employee to become qualified, the
employee must be reemployed in a position according to the
following priority. The employing office must make reasonable
efforts to accommodate the eligible employee's disability and
to help him or her to become qualified to perform the duties
of one of these positions:
(a) A position that is equivalent in seniority, status, and
pay to the escalator position; or,
(b) A position that is the nearest approximation to the
equivalent position, consistent with the circumstances of the
eligible employee's case, in terms of seniority, status, and
pay. A position that is the nearest approximation to the
equivalent position may be a higher or lower position,
depending on the circumstances.
(a) USERRA requires that the eligible employee be qualified
for the reemployment position regardless of any disability.
The employing office must make reasonable efforts to help the
eligible employee to become qualified to perform the duties
of this position. The employing office is not required to
reemploy the eligible employee on his or her return from
service if he or she cannot, after reasonable efforts by the
employing office, qualify for the appropriate reemployment
position.
(b) ``Qualified'' has the same meaning here as in section
1002.198.
Rate of Pay
The eligible employee's rate of pay is determined by
applying the same escalator principles that are used to
determine the reemployment position, as follows:
(a) If the eligible employee is reemployed in the escalator
position, the employing office must compensate him or her at
the rate of pay associated with the escalator position. The
rate of pay must be determined by taking into account any pay
increases, differentials, step increases, merit increases, or
periodic increases that the eligible employee would have
attained with reasonable certainty had he or she remained
continuously employed during the period of service. In
addition, when considering whether merit or performance
increases would have been attained with reasonable certainty,
an employing office may examine the returning eligible
employee's own work history, his or her history of merit
increases, and the work and pay history of employees in the
same or similar position. For example, if the eligible
employee missed a merit pay increase while performing
service, but qualified for previous merit pay increases, then
the rate of pay should include the merit pay increase that
was missed. If the merit pay increase that the eligible
employee missed during service is based on a skills test or
examination, then the employing office should give the
employee a reasonable amount of time to adjust to the
reemployment position and then give him or her the skills
test or examination. No fixed amount of time for permitting
adjustment to reemployment will be deemed reasonable in all
cases. However, in determining a reasonable amount of time to
permit an eligible employee to adjust to reemployment before
scheduling a makeup test or examination, an employing office
may take into account a variety of factors, including but not
limited to the length of time the returning employee was
absent from work, the level of difficulty of the test itself,
the typical time necessary to prepare or study for the test,
the duties and responsibilities of the reemployment position
and the promotional position, and the nature and
responsibilities of the service member while serving in the
uniformed service. The escalator principle also applies in
the event a pay reduction occurred in the reemployment
position during the period of service. Any pay adjustment
must be made effective as of the date it would have occurred
had the eligible employee's employment not been interrupted
by uniformed service.
(b) If the eligible employee is reemployed in the pre-
service position or another position, the employing office
must compensate him or her at the rate of pay associated with
the position in which he or she is reemployed. As with the
escalator position, the rate of pay must be determined by
taking into account any pay increases, differentials, step
increases, merit increases, or periodic increases that the
eligible employee would have attained with reasonable
certainty had he or she remained continuously employed during
the period of service.
Protection Against Discharge
Yes. If the eligible employee's most recent period of
service in the uniformed services was more than 30 days, he
or she must not be discharged except for cause--
(a) For 180 days after the eligible employee's date of
reemployment if his or her most recent period of uniformed
service was more than 30 days but less than 181 days; or,
(b) For one year after the date of reemployment if the
eligible employee's most recent period of uniformed service
was more than 180 days.
The eligible employee may be discharged for cause based
either on conduct or, in some circumstances, because of the
application of other legitimate nondiscriminatory reasons.
In a discharge action based on conduct, the employing
office bears the burden of proving that it is reasonable to
discharge the eligible employee for the conduct in question,
and that he or she had notice, which was express or can be
fairly implied, that the conduct would constitute cause for
discharge.
(b) If, based on the application of other legitimate
nondiscriminatory reasons, the eligible employee's job
position is eliminated, or the eligible employee is placed on
layoff status, either of these situations would constitute
cause for purposes of USERRA. The employing office bears the
burden of proving that the eligible employee's job would have
been eliminated or that he or she would have been laid off.
Pension Plan Benefits
On reemployment, the eligible employee is treated as not
having a break in service with the employing office for
purposes of participation, vesting and accrual of benefits in
a
[[Page S1190]]
pension plan, by reason of the period of absence from
employment due to or necessitated by service in the uniformed
services.
(a) Depending on the length of the eligible employee's
period of service, he or she is entitled to take from one to
ninety days following service before reporting back to work
or applying for reemployment (See section 1002.115). This
period of time must be treated as continuous service with the
employing office for purposes of determining participation,
vesting and accrual of pension benefits under the plan.
(b) If the eligible employee is hospitalized for, or
convalescing from, an illness or injury incurred in, or
aggravated during, service, he or she is entitled to report
to or submit an application for reemployment at the end of
the time period necessary for him or her to recover from the
illness or injury. This period, which may not exceed two
years from the date the eligible employee completed service,
except in circumstances beyond his or her control, must be
treated as continuous service with the employing office for
purposes of determining the participation, vesting and
accrual of pension benefits under the plan.
(a) The Employee Retirement Income Security Act of 1974
(ERISA) defines an employee pension benefit plan as a plan
that provides retirement income to employees, or defers
employee income to a period extending to or beyond the
termination of employment. USERRA also covers certain pension
plans not covered by ERISA, such as those sponsored by the
Federal Government.
(b) USERRA does not cover pension benefits under the
Federal Thrift Savings Plan; those benefits are covered under
5 U.S.C. 8432b.
With the exception of multi-employer plans, which have
separate rules discussed below, the employing office is
required to ensure the funding of any obligation of the plan
to provide benefits that are attributable to the eligible
employee's period of service. In the case of a defined
contribution plan, once the eligible employee is reemployed,
the employing office must ensure that the amount of the make-
up contribution for the employee, if any; the employee's
make-up contributions, if any; and the employee's elective
deferrals, if any; in the same manner and to the same extent
that the amounts are allocated for other employees during the
period of service. In the case of a defined benefit plan, the
eligible employee's accrued benefit will be increased for the
period of service once he or she is reemployed and, if
applicable, has repaid any amounts previously paid to him or
her from the plan and made any employee contributions that
may be required to be made under the plan.
(a) Employer contributions are not required until the
eligible employee is reemployed. For employer contributions
to a plan in which the eligible employee is not required or
permitted to contribute, the contribution attributable to the
employee's period of service must be made no later than
ninety days after the date of reemployment, or when plan
contributions are normally due for the year in which the
service in the uniformed services was performed, whichever is
later. If it is impossible or unreasonable for the
contribution to be made within this time period, the
contribution must be made as soon as practicable.
(b) If the eligible employee is enrolled in a contributory
plan, he or she is allowed (but not required) to make up his
or her missed contributions or elective deferrals. These
makeup contributions, or elective deferrals, must be made
during a time period starting with the date of reemployment
and continuing for up to three times the length of the
eligible employee's immediate past period of uniformed
service, with the repayment period not to exceed five years.
Makeup contributions or elective deferrals may only be made
during this period and while the employee is employed with
the post-service employing office.
(c) If the eligible employee's plan is contributory and he
or she does not make up his or her contributions or elective
deferrals, he or she will not receive the employer match or
the accrued benefit attributable to his or her contribution.
This is true because employer contributions are contingent on
or attributable to the employee's contributions or elective
deferrals only to the extent that the employee makes up his
or her payments to the plan. Any employer contributions that
are contingent on or attributable to the eligible employee's
make-up contributions or elective deferrals must be made
according to the plan's requirements for employer matching
contributions.
(d) The eligible employee is not required to make up the
full amount of employee contributions or elective deferrals
that he or she missed making during the period of service. If
the eligible employee does not make up all of the missed
contributions or elective deferrals, his or her pension may
be less than if he or she had done so.
(e) Any vested accrued benefit in the pension plan that the
eligible employee was entitled to prior to the period of
uniformed service remains intact whether or not he or she
chooses to be reemployed under the Act after leaving the
uniformed service.
(f) An adjustment will be made to the amount of employee
contributions or elective deferrals that the eligible
employee will be able to make to the pension plan for any
employee contributions or elective deferrals he or she
actually made to the plan during the period of service.
No. The eligible employee is not required or permitted to
make up a missed contribution in an amount that exceeds the
amount he or she would have been permitted or required to
contribute had he or she remained continuously employed
during the period of service.
Yes, provided the plan is a defined benefit plan. If the
eligible employee received a distribution of all or part of
the accrued benefit from a defined benefit plan in connection
with his or her service in the uniformed services before he
or she became reemployed, he or she must be allowed to repay
the withdrawn amounts when he or she is reemployed. The
amount the eligible employee must repay includes any interest
that would have accrued had the monies not been withdrawn.
The eligible employee must be allowed to repay these amounts
during a time period starting with the date of reemployment
and continuing for up to three times the length of the
employee's immediate past period of uniformed service, with
the repayment period not to exceed five years (or such longer
time as may be agreed to between the employing office and the
employee), provided the employee is employed with the post-
service employing office during this period.
The amount of the eligible employee's pension benefit
depends on the type of pension plan.
(a) In a non-contributory defined benefit plan, where the
amount of the pension benefit is determined according to a
specific formula, the eligible employee's benefit will be the
same as though he or she had remained continuously employed
during the period of service.
(b) In a contributory defined benefit plan, the eligible
employee will need to make up contributions in order to have
the same benefit as if he or she had remained continuously
employed during the period of service.
(c) In a defined contribution plan, the benefit may not be
the same as if the employee had remained continuously
employed, even though the employee and the employer make up
any contributions or elective deferrals attributable to the
period of service, because the employee is not entitled to
forfeitures and earnings or required to experience losses
that accrued during the period or periods of service.
A multi-employer pension benefit plan is one to which more
than one employer is required to contribute, and which is
maintained pursuant to one or more collective bargaining
agreements between one or more employee organizations and
more than one employer. The Act uses ERISA's definition of a
multi-employer plan. In addition to the provisions of USERRA
that apply to all pension benefit plans, there are provisions
that apply specifically to multi-employer plans, as follows:
(a) The last employer that employed the eligible employee
before the period of service is responsible for making the
employer contribution to the multi-employer plan, if the plan
sponsor does not provide otherwise. If the last employer is
no longer functional, the plan must nevertheless provide
coverage to the eligible employee.
(b) An employer that contributes to a multi-employer plan
and that reemploys the eligible employee pursuant to USERRA
must provide written notice of reemployment to the plan
administrator within 30 days after the date of reemployment.
The returning service member should notify the reemploying
employer that he or she has been reemployed pursuant to
USERRA. The 30-day period within which the reemploying
employer must provide written notice to the multi-employer
plan pursuant to this subsection does not begin until the
employer has knowledge that the eligible employee was re-
employed pursuant to USERRA.
(c) The eligible employee is entitled to the same employer
contribution whether he or she is reemployed by the pre-
service employer or by a different employer contributing to
the same multi-employer plan, provided that the pre-service
employer and the post-service employer share a common means
or practice of hiring the employee, such as common
participation in a union hiring hall.
In many pension benefit plans, the eligible employee's
compensation determines the amount of his or her contribution
or the retirement benefit to which he or she is entitled.
[[Page S1191]]
(a) Where the eligible employee's rate of compensation must
be calculated to determine pension entitlement, the
calculation must be made using the rate of pay that the
employee would have received but for the period of uniformed
service.
(b) (1) Where the rate of pay the eligible employee would
have received is not reasonably certain, the average rate of
compensation during the 12-month period prior to the period
of uniformed service must be used.
(2) Where the rate of pay the eligible employee would have
received is not reasonably certain and he or she was employed
for less than 12 months prior to the period of uniformed
service, the average rate of compensation must be derived
from this shorter period of employment that preceded service.
Subpart F: Compliance Assistance, Enforcement and Remedies
Compliance Assistance
Investigation and Referral
Enforcement of Rights and Benefits Against an Employing Office
Compliance Assistance
The Office of Congressional Workplace Rights provides
assistance to any person or entity who is covered by the CAA
with respect to employment and reemployment rights and
benefits under USERRA as applied by the CAA. This assistance
includes responding to inquiries, and providing a program of
education and information on matters relating to USERRA.
Investigation and Referral
(a) The Procedural Rules of the Office of Congressional
Workplace Rights set forth the procedures for considering and
resolving alleged violations of the laws made applicable by
the CAA, including USERRA. The Rules include procedures for
filing claims and participating in administrative dispute
resolution proceedings at the Office of Congressional
Workplace Rights, including procedures for the conduct of
hearings and for appeals to the Board of Directors. The
Procedural Rules also address other matters of general
applicability to the dispute resolution process and to the
operations of the Office.
(b) The Procedural Rules of the Office of Congressional
Workplace Rights can be found on the Office's website at
<a href='http://www.ocwr.gov.
'>www.ocwr.gov.
</a> Enforcement of Rights and Benefits Against an Employing Office
Yes. Eligible employees must first file a claim form with
the Office of Congressional Workplace Rights before making an
election between requesting an administrative hearing or
filing a civil action in Federal district court.
An action under section 206 of the CAA may be brought by an
eligible employee, as defined by section 1002.5(f) of Subpart
A of these regulations. An action under section 208(a) of the
CAA may be brought by a covered employee, as defined by
section 1002.5 (e) of Subpart A of these regulations. An
employing office, prospective employing office or other
similar entity may not bring an action under the Act.
In an action under USERRA, only the covered employing
office or a potential covered employing office, as the case
may be, is a necessary party respondent. Under the Office of
Congressional Workplace Rights Procedural Rules, a hearing
officer has authority to require the filing of briefs,
memoranda of law, and the presentation of oral argument. A
hearing officer also may order the production of evidence and
the appearance of witnesses.
If an eligible employee is a prevailing party with respect
to any claim under USERRA, the hearing officer, Board, or
court may award reasonable attorney fees, expert witness
fees, and other litigation expenses.
USERRA does not have a statute of limitations. However,
section 402 of the CAA, 2 U.S.C. 1402, requires a covered
employee to file a claim with the Office of Congressional
Workplace Rights alleging a violation of the CAA no later
than 180 days after the date of the alleged violation. A
claim by an eligible employee alleging a USERRA violation as
applied by the CAA would follow this requirement.
In any action or proceeding the following relief may be
awarded:
(a) The court and/or hearing officer may require the
employing office to comply with the provisions of the Act;
(b) The court and/or hearing officer may require the
employing office to compensate the eligible employee for any
loss of wages or benefits suffered by reason of the employing
office's failure to comply with the Act;
(c) The court and/or hearing officer may require the
employing office to pay the eligible employee an amount equal
to the amount of lost wages and benefits as liquidated
damages, if the court and/or hearing officer determines that
the employing office's failure to comply with the Act was
willful. A violation shall be considered to be willful if the
employing office either knew or showed reckless disregard for
whether its conduct was prohibited by the Act.
(d) Any wages, benefits, or liquidated damages awarded
under paragraphs (b) and (c) of this section are in addition
to, and must not diminish, any of the other rights and
benefits provided by USERRA (such as, for example, the right
to be employed or reemployed by the employing office).
When approved by Congress for the other employing offices
covered by the CAA, these regulations will have the prefix
``C.''
Subpart A: Introduction to the Regulations
This part implements certain provisions of the Uniformed
Services Employment and Reemployment Rights Act of 1994
(``USERRA'' or ``the Act''), as applied by the Congressional
Accountability Act (``CAA''). 2 U.S.C. 1316. USERRA is a law
that establishes certain rights and benefits for employees,
and duties for employers. USERRA affects employment,
reemployment, and retention in employment, when employees
serve or have served in the uniformed services. There are
five subparts to these regulations. Subpart A gives an
introduction to the USERRA regulations. Subpart B describes
USERRA's anti-discrimination and anti-retaliation provisions.
Subpart C explains the steps that must be taken by a
uniformed service member who wants to return to his or her
previous civilian employment. Subpart D describes the rights,
benefits, and obligations of persons absent from employment
due to service in the uniformed services, including rights
and obligations related to health plan coverage. Subpart E
describes the rights, benefits, and obligations of the
returning veteran or service member. Subpart F explains the
role of the Office of Congressional Workplace Rights in
administering USERRA as applied by the CAA.
USERRA is the latest in a series of laws protecting
veterans' employment and reemployment rights going back to
the Selective Training and Service Act of 1940. USERRA's
immediate predecessor was commonly referred to as the
Veterans' Reemployment Rights Act (``VRRA''), which was
enacted as section 404 of the Vietnam Era Veterans'
Readjustment Assistance Act of 1974. In enacting USERRA,
Congress emphasized USERRA's continuity with the VRRA and its
intention to clarify and strengthen that law. Congress also
emphasized that Federal laws protecting veterans' employment
and reemployment rights for the past fifty years had been
successful and that the large body of case law that had
developed under those statutes remained in full force and
effect, to the extent it is consistent with USERRA. USERRA
authorized the Department of Labor to publish regulations
implementing the Act for State, local government, and private
employers. USERRA also authorized the Office of Personnel
Management to issue regulations implementing the Act for
Federal executive agencies, with the exception of certain
Federal intelligence agencies. For those Federal intelligence
agencies, USERRA established a separate program for
employees. Section 206 of the CAA, 2 U.S.C. 1316, requires
the Board of Directors of the Office of Congressional
Workplace Rights to issue regulations to implement the
statutory
[[Page S1192]]
provisions relating to employment and reemployment rights of
members of the uniformed services. The regulations are
required to be the same as substantive regulations
promulgated by the Secretary of Labor, except where a
modification of such regulations would be more effective for
the implementation of the rights and protections of the Act.
The Department of Labor issued its regulations, effective
January 18, 2006. The regulations set forth herein are the
substantive regulations that the Board of Directors of the
Office of Congressional Workplace Rights has promulgated for
the legislative branch, for the implementation of the USERRA
provisions of the CAA. All references to USERRA in these
regulations, means USERRA, as applied by the CAA.
USERRA, as applied by the CAA, became effective for
employing offices of the legislative branch on January 23,
1996.
(a) As applied by the CAA, the Executive Director of the
Office of Congressional Workplace Rights is responsible for
providing education and information to any covered employing
office or employee with respect to their rights, benefits,
and obligations under the USERRA provisions of the CAA.
(b) The Office of Congressional Workplace Rights, under the
direction of the Executive Director, is responsible for the
processing of claims filed pursuant to these regulations.
More information about the Office of Congressional Workplace
Rights' role is contained in Subpart F.
(a) Act or USERRA means the Uniformed Services Employment
and Reemployment Rights Act of 1994, as applied by the CAA.
(b) Benefit, benefit of employment, or rights and benefits
means any advantage, profit, privilege, gain, status,
account, or interest (other than wages or salary for work
performed) that accrues to the employee because of an
employment contract, employment agreement, or employing
office policy, plan, or practice. The term includes rights
and benefits under a pension plan, health plan, insurance
coverage and awards, bonuses, severance pay, supplemental
unemployment benefits, vacations, and, where applicable, the
opportunity to select work hours or the location of
employment.
(c) Board means Board of Directors of the Office of
Congressional Workplace Rights.
(d) CAA means the Congressional Accountability Act of 1995,
as amended (Pub. L. 104-1, 109 Stat. 3, 2 U.S.C. 1301-1438).
(e) Covered employee means any employee, including an
applicant for employment and a former employee, of (1) the
House of Representatives; (2) the Senate; (3) the Office of
Congressional Accessibility Services; (4) the Capitol Police;
(5) the Congressional Budget Office; (6) the Office of the
Architect of the Capitol; (7) the Office of the Attending
Physician; (8) the Government Accountability Office; (9) the
Library of Congress; and (10) the Office of Congressional
Workplace Rights.
(f) Eligible employee means a covered employee performing
service in the uniformed services, as defined in 1002.5(t) of
this subpart, whose service has not been terminated upon
occurrence of any of the events enumerated in section
1002.135 of these regulations. For the purpose of defining
who is covered under the discrimination section of these
regulations, ``performing service'' means an eligible
employee who is a member of, applies to be a member of,
performs, has performed, applies to perform, or has an
obligation to perform service in the uniformed services.
(g) Employee of the Office of the Architect of the Capitol
includes any employee of the Office of the Architect of the
Capitol, the Botanic Gardens, or the Senate Restaurants.
(h) Employee of the Capitol Police includes any member or
officer of the Capitol Police.
(i) Employee of the House of Representatives includes an
individual occupying a position for which the pay is
disbursed by the Chief Administrative Officer of the House of
Representatives, or another official designated by the House
of Representatives, or any employment position in an entity
that is paid with funds derived from the clerk-hire allowance
of the House of Representatives but not any such individual
employed by any entity listed in subparagraphs (3) through
(10) of paragraph (e) above.
(j) Employee of the Senate includes an individual occupying
a position for which the pay is disbursed by the Secretary of
the Senate, but not any such individual employed by any
entity listed in subparagraphs (3) through (10) of paragraph
(e) above.
(k) Employing office means (1) the Office of Congressional
Accessibility Services; (2) the Capitol Police Board; (3) the
Congressional Budget Office; (4) the Office of the Architect
of the Capitol; (5) the Office of the Attending Physician;
(6) the Government Accountability Office; (7) the Library of
Congress; or (8) the Office of Congressional Workplace
Rights.
(l) Health plan means an insurance policy, insurance
contract, medical or hospital service agreement, membership
or subscription contract, or other arrangement under which
health services for individuals are provided or the expenses
of such services are paid.
(m) Notice, when the eligible employee is required to give
advance notice of service, means any written or oral
notification of an obligation or intention to perform service
in the uniformed services provided to an employing office by
the employee who will perform such service, or by the
uniformed service in which the service is to be performed.
(n) Office means the Office of Congressional Workplace
Rights.
(o) Qualified, with respect to an employment position,
means having the ability to perform the essential tasks of
the position.
(p) Reasonable efforts, in the case of actions required of
an employing office, means actions, including training
provided by an employing office that do not place an undue
hardship on the employing office.
(q) Seniority means longevity in employment together with
any benefits of employment that accrue with, or are
determined by, longevity in employment.
(r) Service in the uniformed services means the performance
of duty on a voluntary or involuntary basis in a uniformed
service under competent authority. Service in the uniformed
services includes active duty, active and inactive duty for
training, National Guard duty under Federal statute, and a
period for which a person is absent from a position of
employment for an examination to determine the fitness of the
person to perform such duty. The term also includes a period
for which a person is absent from employment to perform
funeral honors duty as authorized by law (10 U.S.C. 12503 or
32 U.S.C. 115). The Public Health Security and Bioterrorism
Preparedness and Response Act of 2002, Pub. L. 107-188,
provides that service as an intermittent disaster-response
appointee upon activation of the National Disaster Medical
System (NDMS) or as a participant in an authorized training
program is deemed ``service in the uniformed services.'' 42
U.S.C. 300hh-11(d)(3).
(s) Undue hardship, in the case of actions taken by an
employing office, means an action requiring significant
difficulty or expense, when considered in light of--
(1) The nature and cost of the action needed under USERRA
and these regulations;
(2) the overall financial resources of the facility or
facilities involved in the provision of the action; the
number of persons employed at such facility; the effect on
expenses and resources, or the impact otherwise of such
action upon the operation of the facility;
(3) The overall financial resources of the employing
office; the overall size of the business of an employing
office with respect to the number of its employees; the
number, type, and location of its facilities; and,
(4) The type of operation or operations of the employing
office, including the composition, structure, and functions
of the work force of such employing office; the geographic
separateness, administrative, or fiscal relationship of the
State, District, or satellite office in question to the
employing office.
(t) Uniformed services means the Armed Forces; the Army
National Guard and the Air National Guard when engaged in
active duty for training, inactive duty training, or full-
time National Guard duty; the commissioned corps of the
Public Health Service; and any other category of persons
designated by the President in time of war or national
emergency. For purposes of USERRA coverage only, service as
an intermittent disaster response appointee of the National
Disaster Medical System (NDMS) when federally activated or
attending authorized training in support of their Federal
mission is deemed ``service in the uniformed services,''
although such appointee is not a member of the ``uniformed
services'' as defined by USERRA.
The definition of ``service in the uniformed services''
covers all categories of military training and service,
including duty performed on a voluntary or involuntary basis,
in time of peace or war. Although most often understood as
applying to National Guard and reserve military personnel,
USERRA also applies to persons serving in the active
components of the Armed Forces. Certain types of service
specified in 42 U.S.C. 300hh-11 by members of the National
Disaster Medical System are covered by USERRA.
(a) USERRA establishes a floor, not a ceiling, for the
employment and reemployment rights and benefits of those it
protects. In other words, an employing office may provide
greater rights and benefits than USERRA requires, but no
employing office can refuse to provide any right or benefit
guaranteed by USERRA, as applied by the CAA.
(b) USERRA supersedes any contract, agreement, policy,
plan, practice, or other matter that reduces, limits, or
eliminates in any manner any right or benefit provided by
USERRA, including the establishment of additional
prerequisites to the exercise of any USERRA right or the
receipt of any USERRA benefit. For example, an office policy
that determines seniority based only on actual days of work
in the place of employment would be superseded by USERRA,
which requires that seniority credit be given for periods of
absence from work due to service in the uniformed services.
(c) USERRA does not supersede, nullify or diminish any
Federal law, contract, agreement, policy, plan, practice, or
other matter
[[Page S1193]]
that establishes an employment right or benefit that is more
beneficial than, or is in addition to, a right or benefit
provided under the Act. For example, although USERRA does not
require an employing office to pay an eligible employee for
time away from work performing service, an employing office
policy, plan, or practice that provides such a benefit is
permissible under USERRA.
(d) If an employing office provides a benefit that exceeds
USERRA's requirements in one area, it cannot reduce or limit
other rights or benefits provided by USERRA. For example,
even though USERRA does not require it, an employing office
may provide a fixed number of days of paid military leave per
year to employees who are members of the National Guard or
Reserve. The fact that it provides such a benefit, however,
does not permit an employing office to refuse to provide an
unpaid leave of absence to an employee to perform service in
the uniformed services in excess of the number of days of
paid military leave.
Subpart B: Anti-Discrimination and Anti-Retaliation
Protection From Employer Discrimination and Retaliation
Protection From Employer Discrimination and Retaliation
An employing office must not deny initial employment,
reemployment, retention in employment, promotion, or any
benefit of employment to an individual on the basis of his or
her membership, application for membership, performance of
service, application for service, or obligation for service
in the uniformed services.
An employing office must not retaliate against an eligible
employee by taking any adverse employment action against him
or her because the eligible employee has taken an action to
enforce a protection afforded any person under USERRA;
testified or otherwise made a statement in or in connection
with a proceeding under USERRA; assisted or participated in a
USERRA investigation; or exercised a right provided for by
USERRA.
Under USERRA, as applied by the CAA, the prohibitions
against discrimination and retaliation apply to eligible
employees in all positions within covered employing offices,
including those that are for a brief, nonrecurrent period,
and for which there is no reasonable expectation that the
employment position will continue indefinitely or for a
significant period. However, USERRA's reemployment rights and
benefits do not apply to such brief, non-recurrent positions
of employment.
USERRA's provisions, as applied by section 206 of the CAA,
prohibit discrimination and retaliation only against eligible
employees. Section 208(a) of the CAA, 2 U.S.C. 1317(a),
however, prohibits retaliation against all covered employees
because the employee has opposed any practice made unlawful
under the CAA, including a violation of USERRA's provisions,
as applied by the CAA; or testified; assisted; or
participated in any manner in a hearing or proceeding under
the CAA.
Subpart C: Eligibility for Reemployment
General Eligibility for Reemployment
Coverage of Employers and Positions
COVERAGE OF SERVICE IN THE UNIFORMED SERVICES
ABSENCE FROM A POSITION OF EMPLOYMENT NECESSITATED BY REASON OF SERVICE
IN THE UNIFORMED SERVICES
Period of Service
Application for Employment
[[Page S1194]]
Character of Service
Employer Statutory Defenses
General Eligibility for Reemployment
(a) In general, if an eligible employee has been absent
from a position of employment in an employing office by
reason of service in the uniformed services, he or she will
be eligible for reemployment in that same employing office by
meeting the following criteria:
(1) The employing office had advance notice of the eligible
employee's service;
(2) The eligible employee has five years or less of
cumulative service in the uniformed services in his or her
employment relationship with a particular employing office;
(3) The eligible employee timely returns to work or applies
for reemployment; and,
(4) The eligible employee has not been separated from
service with a disqualifying discharge or under other than
honorable conditions.
(b) These general eligibility requirements have important
qualifications and exceptions, which are described in detail
in sections 1002.73 through 1002.138. If the employee meets
these eligibility criteria, then he or she is eligible for
reemployment unless the employing office establishes one of
the defenses described in section 1002.139. The employment
position to which the eligible employee is entitled is
described in sections 1002.191 through 1002.199.
No. The eligible employee is not required to prove that the
employing office discriminated against him or her because of
the employee's uniformed service in order to be eligible for
reemployment.
Coverage of Employers and Positions
USERRA applies to all covered employing offices of the
legislative branch as defined in 2 U.S.C. 1301(9) and 2
U.S.C. 1316(a)(2)(C).
Yes. The definition of employer in the USERRA provision as
applied by the CAA includes an employing office that has
denied initial employment to an individual in violation of
USERRA's anti-discrimination provisions. An employing office
need not actually employ an individual to be liable under the
Act, if it has denied initial employment on the basis of the
individual's membership, application for membership,
performance of service, application for service, or
obligation for service in the uniformed services. Similarly,
the employing office would be liable if it denied initial
employment on the basis of the individual's action taken to
enforce a protection afforded to any person under USERRA, his
or her testimony or statement in connection with any USERRA
proceeding, assistance or other participation in a USERRA
investigation, or the exercise of any other right provided by
the Act. For example, if the individual has been denied
initial employment because of his or her obligations as a
member of the National Guard or Reserves, the employing
office denying employment is liable under USERRA. Similarly,
if an employing office withdraws an offer of employment
because the individual is called upon to fulfill an
obligation in the uniformed services, the employing office
withdrawing the employment offer is also liable under USERRA.
USERRA rights are not diminished because an eligible
employee holds a temporary, part-time, probationary, or
seasonal employment position. However, an employing office is
not required to reemploy an eligible employee if the
employment he or she left to serve in the uniformed services
was for a brief, nonrecurrent period and there is no
reasonable expectation that the employment would have
continued indefinitely or for a significant period. The
employing office bears the burden of proving this affirmative
defense.
(a) If an eligible employee is laid off with recall rights,
or on a leave of absence, he or she is protected under
USERRA. If the eligible employee is on layoff and begins
service in the uniformed services, or is laid off while
performing service, he or she may be entitled to reemployment
on return if the employing office would have recalled the
employee to employment during the period of service. Similar
principles apply if the eligible employee is on a leave of
absence from work when he or she begins a period of service
in the uniformed services.
(b) If the eligible employee is sent a recall notice during
a period of service in the uniformed services and cannot
resume the position of employment because of the service, he
or she still remains an eligible employee for purposes of the
Act. Therefore, if the employee is otherwise eligible, he or
she is entitled to reemployment following the conclusion of
the period of service, even if he or she did not respond to
the recall notice.
(c) If the eligible employee is laid off before or during
service in the uniformed services, and the employing office
would not have recalled him or her during that period of
service, the employee is not entitled to reemployment
following the period of service simply because he or she is
an eligible employee. Reemployment rights under USERRA cannot
put the eligible employee in a better position than if he or
she had remained in the civilian employment position.
Yes. USERRA applies to all eligible employees. There is no
exclusion for executive, managerial, or professional
employees.
No. USERRA, as applied by the CAA, does not provide
protections for an independent contractor.
COVERAGE OF SERVICE IN THE UNIFORMED SERVICES
Yes. USERRA's definition of ``service in the uniformed
services'' includes a period for which an eligible employee
is absent from a position of employment for the purpose of an
examination to determine his or her fitness to perform duty
in the uniformed services. Military fitness examinations can
address more than physical or medical fitness, and include
evaluations for mental, educational, and other types of
fitness. Any examination to determine an eligible employee's
fitness for service is covered, whether it is an initial or
recurring examination. For example, a periodic medical
examination required of a Reserve component member to
determine fitness for continued service is covered.
(a) USERRA's definition of ``service in the uniformed
services'' includes a period for which an eligible employee
is absent from employment for the purpose of performing
authorized funeral honors duty under 10 U.S.C. 12503 (members
of Reserve ordered to perform funeral honors duty) or 32
U.S.C. 115 (Member of Air or Army National Guard ordered to
perform funeral honors duty).
(b) Funeral honors duty performed by persons who are not
members of the uniformed services, such as members of
veterans' service organizations, is not ``service in the
uniformed services.''
Under a provision of the Public Health Security and
Bioterrorism Preparedness and Response Act of 2002, 42 U.S.C.
300hh 11(d)(3), ``service in the uniformed services''
includes service performed as an intermittent disaster-
response appointee upon activation of the National Disaster
Medical System or participation in an authorized training
program, even if the eligible employee is not a member of the
uniformed services.
No. Only Federal National Guard Service is considered
``service in the uniformed services.'' The National Guard has
a dual status. It is a Reserve component of the Army, or, in
the case of the Air National Guard, of the Air Force.
Simultaneously, it is a State military force subject to call-
up by the State Governor for duty not subject to Federal
control, such as emergency duty in cases of floods or riots.
National Guard members may perform service under either
Federal or State authority, but only Federal National Guard
service is covered by USERRA.
(a) National Guard service under Federal authority is
protected by USERRA. Service under Federal authority includes
active duty performed under Title 10 of the United States
Code. Service under Federal authority also includes duty
under Title 32 of the United States Code, such as active duty
for
[[Page S1195]]
training, inactive duty training, or full-time National Guard
duty.
(b) National Guard service under authority of State law is
not protected by USERRA. However, many States have laws
protecting the civilian job rights of National Guard members
who serve under State orders. Enforcement of those State laws
is not covered by USERRA or these regulations.
Yes. Service in the commissioned corps of the Public Health
Service (PHS) is ``service in the uniformed services'' under
USERRA.
Yes. In time of war or national emergency, the President
has authority to designate any category of persons as a
``uniformed service'' for purposes of USERRA. If the
President exercises this authority, service as a member of
that category of persons would be ``service in the uniformed
services'' under USERRA.
Yes. Attending a military service academy is considered
uniformed service for purposes of USERRA. There are four
service academies: The United States Military Academy (West
Point, New York), the United States Naval Academy (Annapolis,
Maryland), the United States Air Force Academy (Colorado
Springs, Colorado), and the United States Coast Guard Academy
(New London, Connecticut).
Yes, under certain conditions.
(a) Membership in the Reserve Officers Training Corps
(ROTC) or the Junior ROTC is not ``service in the uniformed
services.'' However, some Reserve and National Guard enlisted
members use a college ROTC program as a means of qualifying
for commissioned officer status. National Guard and Reserve
members in an ROTC program may at times, while participating
in that program, be receiving active duty and inactive duty
training service credit with their unit. In these cases,
participating in ROTC training sessions is considered
``service in the uniformed services,'' and qualifies a person
for protection under USERRA's reemployment and anti-
discrimination provisions.
(b) Typically, an individual in a College ROTC program
enters into an agreement with a particular military service
that obligates such individual to either complete the ROTC
program and accept a commission or, in case he or she does
not successfully complete the ROTC program, to serve as an
enlisted member. Although an individual does not qualify for
reemployment protection, except as specified in (a) above, he
or she is protected under USERRA's anti-discrimination
provisions because, as a result of the agreement, he or she
has applied to become a member of the uniformed services and
has incurred an obligation to perform future service.
No. Although the Commissioned Corps of the National Oceanic
and Atmospheric Administration (NOAA) is a ``uniformed
service'' for some purposes, it is not included in USERRA's
definition of this term. Service in the Civil Air Patrol and
the Coast Guard Auxiliary similarly is not considered
``service in the uniformed services'' for purposes of USERRA.
Consequently, service performed in the Commissioned Corps of
the National Oceanic and Atmospheric Administration (NOAA),
the Civil Air Patrol, and the Coast Guard Auxiliary is not
protected by USERRA.
ABSENCE FROM A POSITION OF EMPLOYMENT NECESSITATED BY REASON OF SERVICE
IN THE UNIFORMED SERVICES
No. If absence from a position of employment is
necessitated by service in the uniformed services, and the
employee otherwise meets the Act's eligibility requirements,
he or she has reemployment rights under USERRA, even if the
eligible employee uses the absence for other purposes as
well. An eligible employee is not required to leave the
employment position for the sole purpose of performing
service in the uniformed services, although such uniformed
service must be the main reason for departure from
employment. For example, if the eligible employee is required
to report to an out of state location for military training
and he or she spends off-duty time during that assignment
moonlighting as a security guard or visiting relatives who
live in that State, the eligible employee will not lose
reemployment rights simply because he or she used some of the
time away from the job to do something other than attend the
military training. Also, if an eligible employee receives
advance notification of a mobilization order, and leaves his
or her employment position in order to prepare for duty, but
the mobilization is cancelled, the employee will not lose any
reemployment rights.
No. At a minimum, an eligible employee must have enough
time after leaving the employment position to travel safely
to the uniformed service site and arrive fit to perform the
service. Depending on the specific circumstances, including
the duration of service, the amount of notice received, and
the location of the service, additional time to rest, or to
arrange affairs and report to duty, may be necessitated by
reason of service in the uniformed services. The following
examples help to explain the issue of the period of time
between leaving civilian employment and beginning service in
the uniformed services:
(a) If the eligible employee performs a full overnight
shift for the civilian employer and travels directly from the
work site to perform a full day of uniformed service, the
eligible employee would not be considered fit to perform the
uniformed service. An absence from that work shift is
necessitated so that the eligible employee can report for
uniformed service fit for duty.
(b) If the eligible employee is ordered to perform an
extended period of service in the uniformed services, he or
she may require a reasonable period of time off from the
civilian job to put his or her personal affairs in order,
before beginning the service. Taking such time off is also
necessitated by the uniformed service.
(c) If the eligible employee leaves a position of
employment in order to enlist or otherwise perform service in
the uniformed services and, through no fault of his or her
own, the beginning date of the service is delayed, this delay
does not terminate any reemployment rights.
(a) Yes. The eligible employee, or an appropriate officer
of the uniformed service in which his or her service is to be
performed, must notify the employing office that the employee
intends to leave the employment position to perform service
in the uniformed services, with certain exceptions described
below. In cases in which an eligible employee is employed by
more than one employing office, the employee, or an
appropriate officer of the uniformed service in which his or
her service is to be performed, must notify each employing
office that the employee intends to leave the employment
position to perform service in the uniformed services, with
certain exceptions described below.
(b) The Department of Defense USERRA regulations at 32 CFR
104.3 provide that an ``appropriate officer'' can give notice
on the eligible employee's behalf. An ``appropriate officer''
is a commissioned, warrant, or non-commissioned officer
authorized to give such notice by the military service
concerned.
(c) The eligible employee's notice to the employing office
may be either oral or written. The notice may be informal and
does not need to follow any particular format.
(d) Although USERRA does not specify how far in advance
notice must be given to the employing office, an eligible
employee should provide notice as far in advance as is
reasonable under the circumstances. In regulations
promulgated by the Department of Defense under USERRA, 32 CFR
104.6(a)(2)(i)(B), the Defense Department ``strongly
recommends that advance notice to civilian employers be
provided at least 30 days prior to departure for uniformed
service when it is feasible to do so.''
The eligible employee is required to give advance notice of
pending service unless giving such notice is prevented by
military necessity, or is otherwise impossible or
unreasonable under all the circumstances.
(a) Only a designated authority can make a determination of
``military necessity,'' and such a determination is not
subject to judicial review. Guidelines for defining
``military necessity'' appear in regulations issued by the
Department of Defense at 32 CFR 104.3. In general, these
regulations cover situations where a mission, operation,
exercise or requirement is classified, or could be
compromised or otherwise adversely affected by public
knowledge. In certain cases, the Secretary of Homeland
Security, in consultation with the Secretary of Defense, can
make a determination that giving of notice by intermittent
disaster-response appointees of the National Disaster Medical
System is precluded by ``military necessity.'' See 42 U.S.C.
300hh-11(d)(3)(B).
(b) It may be impossible or unreasonable to give advance
notice under certain circumstances. Such circumstances may
include the unavailability of the eligible employee's
employing office or the employing office's representative, or
a requirement that the eligible employee report for uniformed
service in an extremely short period of time.
No. The eligible employee is not required to ask for or get
the employing office's permission to leave to perform service
in the
[[Page S1196]]
uniformed services. The eligible employee is only required to
give the employing office notice of pending service.
No. When the eligible employee leaves the employment
position to begin a period of service, he or she is not
required to tell the employing office that he or she intends
to seek reemployment after completing uniformed service. Even
if the eligible employee tells the employing office before
entering or completing uniformed service that he or she does
not intend to seek reemployment after completing the
uniformed service, the employee does not forfeit the right to
reemployment after completing service. The eligible employee
is not required to decide in advance of leaving the position
with the employing office, whether he or she will seek
reemployment after completing uniformed service.
Period of Service
Yes. In general, the eligible employee may perform service
in the uniformed services for a cumulative period of up to
five (5) years and retain reemployment rights with the
employing office. The exceptions to this rule are described
below.
No. The five-year period includes only the time the
eligible employee spends actually performing service in the
uniformed services. A period of absence from employment
before or after performing service in the uniformed services
does not count against the five-year limit. For example,
after the eligible employee completes a period of service in
the uniformed services, he or she is provided a certain
amount of time, depending upon the length of service, to
report back to work or submit an application for
reemployment. The period between completing the uniformed
service and reporting back to work or seeking reemployment
does not count against the five-year limit.
No. An eligible employee is entitled to a leave of absence
for uniformed service for up to five years with each
employing office for whom he or she works or has worked. When
the eligible employee takes a position with a new employing
office, the five-year period begins again regardless of how
much service he or she performed while working in any
previous employment relationship. If an eligible employee is
employed by more than one employing office, a separate five-
year period runs as to each employing office independently,
even if those employing offices share or co-determine the
employee's terms and conditions of employment. For example,
an eligible employee of the legislative branch may work part-
time for two employing offices. In this case, a separate
five-year period would run as to the eligible employee's
employment with each respective employing office.
It depends. Under the CAA, USERRA provides reemployment
rights to which an eligible employee may become entitled
beginning on or after January 23, 1996, but any uniformed
service performed before January 23, 1996, that was counted
against the service limitations of the previous law (the
Veterans Reemployment Rights Act), also counts against
USERRA's five-year limit.
(a) USERRA creates the following exceptions to the five-
year limit on service in the uniformed services:
(1) Service that is required beyond five years to complete
an initial period of obligated service. Some military
specialties require an individual to serve more than five
years because of the amount of time or expense involved in
training. If the eligible employee works in one of those
specialties, he or she has reemployment rights when the
initial period of obligated service is completed;
(2) If the eligible employee was unable to obtain orders
releasing him or her from service in the uniformed services
before the expiration of the five-year period, and the
inability was not the employee's fault;
(3)(i) Service performed to fulfill periodic National Guard
and Reserve training requirements as prescribed by 10 U.S.C.
10147 and 32 U.S.C. 502(a) and 503; and,
(ii) Service performed to fulfill additional training
requirements determined and certified by a proper military
authority as necessary for the eligible employee's
professional development, or to complete skill training or
retraining;
(4) Service performed in a uniformed service if he or she
was ordered to or retained on active duty under:
(i) 10 U.S.C. 688 (involuntary active duty by a military
retiree);
(ii) 10 U.S.C. 12301(a) (involuntary active duty in
wartime);
(iii) 10 U.S.C. 12301(g) (retention on active duty while in
captive status);
(iv) 10 U.S.C. 12302 (involuntary active duty during a
national emergency for up to 24 months);
(v) 10 U.S.C. 12304 (involuntary active duty for an
operational mission for up to 270 days);
(vi) 10 U.S.C. 12305 (involuntary retention on active duty
of a critical person during time of crisis or other specific
conditions);
(vii) 14 U.S.C. 331 (involuntary active duty by retired
Coast Guard officer);
(viii) 14 U.S.C. 332 (voluntary active duty by retired
Coast Guard officer);
(ix) 14 U.S.C. 359 (involuntary active duty by retired
Coast Guard enlisted member);
(x) 14 U.S.C. 360 (voluntary active duty by retired Coast
Guard enlisted member);
(xi) 14 U.S.C. 367 (involuntary retention of Coast Guard
enlisted member on active duty); and
(xii) 14 U.S.C. 712 (involuntary active duty by Coast Guard
Reserve member for natural or man-made disasters)
(5) Service performed in a uniformed service if the
eligible employee was ordered to or retained on active duty
(other than for training) under any provision of law because
of a war or national emergency declared by the President or
the Congress, as determined by the Secretary concerned;
(6) Service performed in a uniformed service if the
eligible employee was ordered to active duty (other than for
training) in support of an operational mission for which
personnel have been ordered to active duty under 10 U.S.C.
12304, as determined by a proper military authority;
(7) Service performed in a uniformed service if the
eligible employee was ordered to active duty in support of a
critical mission or requirement of the uniformed services as
determined by the Secretary concerned; and,
(8) Service performed as a member of the National Guard if
the eligible employee was called to respond to an invasion,
danger of invasion, rebellion, danger of rebellion,
insurrection, or the inability of the President with regular
forces to execute the laws of the United States.
(b) Service performed in a uniformed service to mitigate
economic harm where the eligible employee's employing office
is in violation of its employment or reemployment obligations
to him or her.
No. The eligible employee is not required to accommodate
his or her employing office's interests or concerns regarding
the timing, frequency, or duration of uniformed service. The
employing office cannot refuse to reemploy the eligible
employee because it believes that the timing, frequency or
duration of the service is unreasonable. However, the
employing office is permitted to bring its concerns over the
timing, frequency, or duration of the eligible employee's
service to the attention of the appropriate military
authority. Regulations issued by the Department of Defense at
32 CFR 104.4 direct military authorities to provide
assistance to an employer in addressing these types of
employment issues. The military authorities are required to
consider requests from employers of National Guard and
Reserve members to adjust scheduled absences from civilian
employment to perform service.
Application for Employment
Yes. Upon completing service in the uniformed services, the
eligible employee must notify the pre-service employing
office of his or her intent to return to the employment
position by either reporting to work or submitting a timely
application for reemployment. Whether the eligible employee
is required to report to work or submit a timely application
for reemployment depends upon the length of service, as
follows:
(a) Period of service less than 31 days or for a period of
any length for the purpose of a fitness examination. If the
period of service in the uniformed services was less than 31
days, or the eligible employee was absent from a position of
employment for a period of any length for the purpose of an
examination to determine his or her fitness to perform
service, the eligible employee must report back to the
employing office not later than the beginning of the first
full regularly-scheduled work period on the first full
calendar day following the completion of the period of
service, and the expiration of eight hours after a period
allowing for safe transportation from the place of that
service to the eligible employee's residence. For example, if
the eligible employee completes a period of service and
travel home, arriving at ten o'clock in the evening, he or
she cannot be required to report to the employing office
until the beginning of the next full regularly-scheduled work
period that begins at least eight hours after arriving home,
i.e., no earlier than six o'clock the next morning. If
[[Page S1197]]
it is impossible or unreasonable for the eligible employee to
report within such time period through no fault of his or her
own, he or she must report to the employing office as soon as
possible after the expiration of the eight-hour period.
(b) Period of service more than 30 days but less than 181
days. If the eligible employee's period of service in the
uniformed services was for more than 30 days but less than
181 days, he or she must submit an application for
reemployment (written or oral) with the employing office not
later than 14 days after completing service. If it is
impossible or unreasonable for the eligible employee to apply
within 14 days through no fault of his or her own, he or she
must submit the application not later than the next full
calendar day after it becomes possible to do so.
(c) Period of service more than 180 days. If the eligible
employee's period of service in the uniformed services was
for more than 180 days, he or she must submit an application
for reemployment (written or oral) not later than 90 days
after completing service.
Yes. If the eligible employee is hospitalized for, or
convalescing from, an illness or injury incurred in, or
aggravated during, the performance of service, he or she must
report to or submit an application for reemployment to the
employing office at the end of the period necessary for
recovering from the illness or injury. This period may not
exceed two years from the date of the completion of service,
except that it must be extended by the minimum time necessary
to accommodate circumstances beyond the eligible employee's
control that make reporting within the period impossible or
unreasonable. This period for recuperation and recovery
extends the time period for reporting to or submitting an
application for reemployment to the employing office, and is
not applicable following reemployment.
(a) If the eligible employee fails to timely report for or
apply for reemployment, he or she does not automatically
forfeit entitlement to USERRA's reemployment and other rights
and benefits. However, the eligible employee does become
subject to any conduct rules, established policy, and general
practices of the employing office pertaining to an absence
from scheduled work.
(b) If reporting or submitting an employment application to
the employing office is impossible or unreasonable through no
fault of the eligible employee, he or she may report to the
employing office as soon as possible (in the case of a period
of service less than 31 days) or submit an application for
reemployment to the employing office by the next full
calendar day after it becomes possible to do so (in the case
of a period of service from 31 to 180 days), and the eligible
employee will be considered to have timely reported or
applied for reemployment.
An application for reemployment need not follow any
particular format. The eligible employee may apply orally or
in writing. The application should indicate that the employee
is a former employee returning from service in the uniformed
services and that he or she seeks reemployment with the pre-
service employing office. The eligible employee is permitted
but not required to identify a particular reemployment
position in which he or she is interested.
The application must be submitted to the pre-service
employing office or to an agent or representative of the
employing office who has apparent responsibility for
receiving employment applications. Depending upon the
circumstances, such a person could be a personnel or human
resources officer, or a first-line supervisor.
No. The eligible employee has reemployment rights with the
pre-service employing office provided that he or she makes a
timely reemployment application to that employing office. The
eligible employee may seek or obtain employment with an
employer other than the pre-service employing office during
the period of time within which a reemployment application
must be made, without giving up reemployment rights with the
pre-service employing office. However, such alternative
employment during the application period should not be of a
type that would constitute a cause for the employing office
to discipline or terminate the employee following
reemployment. For instance, if the employing office forbids
outside employment, violation of such a policy may constitute
a cause for discipline or even termination.
Yes, if the period of service exceeded 30 days and if
requested by the employing office to do so. If the eligible
employee submits an application for reemployment after a
period of service of more than 30 days, he or she must, upon
the request of the employing office, provide documentation to
establish that:
(a) The reemployment application is timely;
(b) The eligible employee has not exceeded the five-year
limit on the duration of service (subject to the exceptions
listed at section 1002.103); and,
(c) The eligible employee's separation or dismissal from
service was not disqualifying.
Yes. The employing office is not permitted to delay or deny
reemployment by demanding documentation that does not exist
or is not readily available. The eligible employee is not
liable for administrative delays in the issuance of military
documentation. If the eligible employee is re-employed after
an absence from employment for more than 90 days, the
employing office may require that he or she submit the
documentation establishing entitlement to reemployment before
treating the employee as not having had a break in service
for pension purposes. If the documentation is received after
reemployment and it shows that the eligible employee is not
entitled to reemployment, the employing office may terminate
employment and any rights or benefits that the employee may
have been granted.
(a) Documents that satisfy the requirements of USERRA
include the following:
(1) DD (Department of Defense) 214 Certificate of Release
or Discharge from Active Duty;
(2) Copy of duty orders prepared by the facility where the
orders were fulfilled carrying an endorsement indicating
completion of the described service;
(3) Letter from the commanding officer of a Personnel
Support Activity or someone of comparable authority;
(4) Certificate of completion from military training
school;
(5) Discharge certificate showing character of service;
and,
(6) Copy of extracts from payroll documents showing periods
of service;
(7) Letter from NDMS Team Leader or Administrative Officer
verifying dates and times of NDMS training or Federal
activation.
(b) The types of documents that are necessary to establish
eligibility for reemployment will vary from case to case. Not
all of these documents are available or necessary in every
instance to establish reemployment eligibility.
Character of Service
USERRA does not require any particular form of discharge or
separation from service. However, even if the employee is
otherwise eligible for reemployment, he or she will be
disqualified if the characterization of service falls within
one of four categories. USERRA requires that the employee not
have received one of these types of discharge.
Reemployment rights are terminated if the employee is:
(a) Separated from uniformed service with a dishonorable or
bad conduct discharge;
(b) Separated from uniformed service under other than
honorable conditions, as characterized by regulations of the
uniformed service;
(c) A commissioned officer dismissed as permitted under 10
U.S.C. 1161(a) by sentence of a general court-martial; in
commutation of a sentence of a general court-martial; or, in
time of war, by order of the President; or,
(d) A commissioned officer dropped from the rolls under 10
U.S.C. 1161(b) due to absence without authority for at least
three months; separation by reason of a sentence to
confinement adjudged by a court-martial; or, a sentence to
confinement in a Federal or State penitentiary or
correctional institution.
The branch of service in which the employee performs the
tour of duty determines the characterization of service.
Yes. A military review board has the authority to
prospectively or retroactively upgrade a disqualifying
discharge or release. A retroactive upgrade would restore
reemployment rights providing the employee otherwise meets
the Act's eligibility criteria.
[[Page S1198]]
No. A retroactive upgrade allows the employee to obtain
reinstatement with the former employing office, provided the
employee otherwise meets the Act's eligibility criteria. Back
pay and other benefits such as pension plan credits
attributable to the time period between discharge and the
retroactive upgrade are not required to be restored by the
employing office in this situation.
Employer Statutory Defenses
(a) Even if the employee is otherwise eligible for
reemployment benefits, the employing office is not required
to reemploy him or her if the employing office establishes
that its circumstances have so changed as to make
reemployment impossible or unreasonable. For example, an
employing office may be excused from re-employing the
eligible employee where there has been an intervening
reduction in force that would have included that employee.
The employing office may not, however, refuse to reemploy the
eligible employee on the basis that another employee was
hired to fill the reemployment position during the employee's
absence, even if reemployment might require the termination
of that replacement employee;
(b) Even if the employee is otherwise eligible for
reemployment benefits, the employing office is not required
to reemploy him or her if it establishes that assisting the
eligible employee in becoming qualified for reemployment
would impose an undue hardship, as defined in section
1002.5(s) and discussed in section 1002.198, on the employing
office; or,
(c) Even if the employee is otherwise eligible for
reemployment benefits, the employing office is not required
to reemploy him or her if it establishes that the employment
position vacated by the eligible employee in order to perform
service in the uniformed services was for a brief,
nonrecurrent period and there was no reasonable expectation
that the employment would continue indefinitely or for a
significant period.
(d) The employing office defenses included in this section
are affirmative ones, and the employing office carries the
burden to prove by a preponderance of the evidence that any
one or more of these defenses is applicable.
Subpart D: Rights, Benefits, and Obligations of Persons Absent from
Employment Due to Service in the Uniformed Services
Furlough and Leave of Absence
Health Plan Coverage
Furlough and Leave of Absence
During a period of service in the uniformed services, the
eligible employee is deemed to be on leave of absence from
the employing office. In this status, the eligible employee
is entitled to the non-seniority rights and benefits
generally provided by the employing office to other employees
with similar seniority, status, and pay that are on leave of
absence. Entitlement to these non-seniority rights and
benefits is not dependent on how the employing office
characterizes the eligible employee's status during a period
of service. For example, if the employing office
characterizes the employee as ``terminated'' during the
period of uniformed service, this characterization cannot be
used to avoid USERRA's requirement that the employee be
deemed on leave of absence, and therefore, entitled to the
non-seniority rights and benefits generally provided to
employees on leave of absence.
(a) The non-seniority rights and benefits to which an
eligible employee is entitled during a period of service are
those that the employing office provides to similarly
situated employees by an agreement, policy, practice, or plan
in effect at the employee's workplace. These rights and
benefits include those in effect at the beginning of the
eligible employee's employment and those established after
employment began. They also include those rights and benefits
that become effective during the eligible employee's period
of service and that are provided to similarly situated
employees on leave of absence.
(b) If the non-seniority benefits to which employees on
leave of absence are entitled vary according to the type of
leave, the eligible employee must be given the most favorable
treatment accorded to any comparable form of leave when he or
she performs service in the uniformed services. In order to
determine whether any two types of leave are comparable, the
duration of the leave may be the most significant factor to
compare. For instance, a two-day funeral leave will not be
``comparable'' to an extended leave for service in the
uniformed service. In addition to comparing the duration of
the absences, other factors such as the purpose of the leave
and the ability of the employee to choose when to take the
leave should also be considered.
(c) As a general matter, accrual of vacation leave is
considered to be a non-seniority benefit that must be
provided by an employing office to an eligible employee on a
military leave of absence only if the employing office
provides that benefit to similarly situated employees on
comparable leaves of absence.
(d) Nothing in this section gives the eligible employee
rights or benefits to which the employee otherwise would not
be entitled if the employee had remained continuously
employed with the employing office.
Yes. If the employing office provides additional benefits
such as full or partial pay when the eligible employee
performs service, the employing office is not excused from
providing other rights and benefits to which the employee is
entitled under the Act.
If employment is interrupted by a period of service in the
uniformed services and the eligible employee knowingly
provides written notice of intent not to return to the
position of employment after service in the uniformed
services, he or she is not entitled to those non-seniority
rights and benefits. The eligible employee's written notice
does not waive entitlement to any other rights to which he or
she is entitled under the Act, including the right to
reemployment after service.
(a) If employment is interrupted by a period of service,
the eligible employee must be permitted upon request to use
any accrued vacation, annual, or similar leave with pay
during the period of service, in order to continue his or her
civilian pay. However, the eligible employee is not entitled
to use sick leave that accrued with the employing office
[[Page S1199]]
during a period of service in the uniformed services, unless
the employing office allows employees to use sick leave for
any reason, or allows other similarly situated employees on
comparable furlough or leave of absence to use accrued paid
sick leave. Sick leave is usually not comparable to annual or
vacation leave; it is generally intended to provide income
when the employee or a family member is ill and the employee
is unable to work.
(b) The employing office may not require the eligible
employee to use accrued vacation, annual, or similar leave
during a period of service in the uniformed services.
Health Plan Coverage
(a) USERRA defines a health plan to include an insurance
policy or contract, medical or hospital service agreement,
membership or subscription contract, or arrangement under
which the employee's health services are provided or the
expenses of those services are paid.
(b) USERRA covers group health plans as defined in the
Employee Retirement Income Security Act of 1974 (ERISA) at 29
U.S.C. 1191b(a). USERRA applies to group health plans that
are subject to ERISA, and plans that are not subject to
ERISA, such as those sponsored by the Federal Government.
(c) USERRA covers multi-employer plans maintained pursuant
to one or more collective bargaining agreements between
employers and employee organizations. USERRA applies to
multi-employer plans as they are defined in ERISA at 29
U.S.C. 1002(37). USERRA contains provisions that apply
specifically to multi-employer plans in certain situations.
If the eligible employee has coverage under a health plan
in connection with his or her employment, the plan must
permit the employee to elect to continue the coverage for a
certain period of time as described below:
(a) When the eligible employee is performing service in the
uniformed services, he or she is entitled to continuing
coverage for himself or herself (and dependents if the plan
offers dependent coverage) under a health plan provided in
connection with the employment. The plan must allow the
eligible employee to elect to continue coverage for a period
of time that is the lesser of:
(1) The 24-month period beginning on the date on which the
eligible employee's absence for the purpose of performing
service begins; or,
(2) The period beginning on the date on which the eligible
employee's absence for the purpose of performing service
begins, and ending on the date on which he or she fails to
return from service or apply for a position of employment as
provided under sections 1002.115-123 of these regulations.
(b) USERRA does not require the employing office to
establish a health plan if there is no health plan coverage
in connection with the employment, or, where there is a plan,
to provide any particular type of coverage.
(c) USERRA does not require the employing office to permit
the eligible employee to initiate new health plan coverage at
the beginning of a period of service if he or she did not
previously have such coverage.
USERRA does not specify requirements for electing
continuing coverage. Health plan administrators may develop
reasonable requirements addressing how continuing coverage
may be elected, consistent with the terms of the plan and the
Act's exceptions to the requirement that the employee give
advance notice of service in the uniformed services. For
example, the eligible employee cannot be precluded from
electing continuing health plan coverage under circumstances
where it is impossible or unreasonable for him or her to make
a timely election of coverage.
(a) If the eligible employee performs service in the
uniformed service for fewer than 31 days, he or she cannot be
required to pay more than the regular employee share, if any,
for health plan coverage.
(b) If the eligible employee performs service in the
uniformed service for 31 or more days, he or she may be
required to pay no more than 102% of the full premium under
the plan, which represents the employing office's share plus
the employee's share, plus 2% for administrative costs.
(c) USERRA does not specify requirements for methods of
paying for continuing coverage. Health plan administrators
may develop reasonable procedures for payment, consistent
with the terms of the plan.
The actions a plan administrator may take regarding the
provision or cancellation of an eligible employee's
continuing coverage depend on whether the employee is excused
from the requirement to give advance notice, whether the plan
has established reasonable rules for election of continuation
coverage, and whether the plan has established reasonable
rules for the payment for continuation coverage.
(a) No notice of service and no election of continuation
coverage: If an employing office provides employment-based
health coverage to an eligible employee who leaves employment
for uniformed service without giving advance notice of
service, the plan administrator may cancel the employee's
health plan coverage upon the employee's departure from
employment for uniformed service. However, in cases in which
an eligible employee's failure to give advance notice of
service was excused under the statute because it was
impossible, unreasonable, or precluded by military necessity,
the plan administrator must reinstate the employee's health
coverage retroactively upon his or her election to continue
coverage and payment of all unpaid amounts due, and the
employee must incur no administrative reinstatement costs. In
order to qualify for an exception to the requirement of
timely election of continuing health care, an eligible
employee must first be excused from giving notice of service
under the statute.
(b) Notice of service but no election of continuing
coverage: Plan administrators may develop reasonable
requirements addressing how continuing coverage may be
elected. Where health plans are also covered under the
Consolidated Omnibus Budget Reconciliation Act of 1985, 26
U.S.C. 4980B (COBRA), it may be reasonable for a health plan
administrator to adopt COBRA-compliant rules regarding
election of continuing coverage, as long as those rules do
not conflict with any provision of USERRA or this rule. If an
employing office provides employment-based health coverage to
an eligible employee who leaves employment for uniformed
service for a period of service in excess of 30 days after
having given advance notice of service but without making an
election regarding continuing coverage, the plan
administrator may cancel the employee's health plan coverage
upon the employee's departure from employment for uniformed
service, but must reinstate coverage without the imposition
of administrative reinstatement costs under the following
conditions:
(1) Plan administrators who have developed reasonable
rules regarding the period within which an employee may elect
continuing coverage must permit retroactive reinstatement of
uninterrupted coverage to the date of departure if the
eligible employee elects continuing coverage and pays all
unpaid amounts due within the periods established by the
plan;
(2) In cases in which plan administrators have not
developed rules regarding the period within which an employee
may elect continuing coverage, the plan must permit
retroactive reinstatement of uninterrupted coverage to the
date of departure upon the eligible employee's election and
payment of all unpaid amounts at any time during the period
established in section 1002.164(a).
(c) Election of continuation coverage without timely
payment: Health plan administrators may adopt reasonable
rules allowing cancellation of coverage if timely payment is
not made. Where health plans are covered under COBRA, it may
be reasonable for a health plan administrator to adopt COBRA-
compliant rules regarding payment for continuing coverage, as
long as those rules do not conflict with any provision of
USERRA or this rule.
(a) If health plan coverage for the eligible employee or a
dependent was terminated by reason of service in the
uniformed services, that coverage must be reinstated upon
reemployment. An exclusion or waiting period may not be
imposed in connection with the reinstatement of coverage upon
reemployment, if an exclusion or waiting period would not
have been imposed had coverage not been terminated by reason
of such service.
(b) USERRA permits a health plan to impose an exclusion or
waiting period as to illnesses or injuries determined by the
Secretary of Veterans Affairs to have been incurred in, or
aggravated during, performance of service in the uniformed
services. The determination that the employee's illness or
injury was incurred in, or aggravated during, the performance
of service may only be made by the Secretary of Veterans
Affairs or his or her representative. Other coverage, for
injuries or illnesses that are not service-related (or for
the employee's dependents, if he or she has dependent
coverage), must be reinstated subject to paragraph (a) of
this section.
USERRA requires the employing office to reinstate or direct
the reinstatement of health plan coverage upon request at
reemployment. USERRA permits but does not require the
employing office to allow the employee to delay reinstatement
of health plan coverage until a date that is later than the
date of reemployment.
Liability under a multi-employer plan for employer
contributions and benefits in connection with USERRA's health
plan provisions must be allocated either as the plan
[[Page S1200]]
sponsor provides, or, if the sponsor does not provide, to the
eligible employee's last employer before his or her service.
If the last employer is no longer functional, liability for
continuing coverage is allocated to the health plan.
(a) Some employees receive health plan benefits provided
pursuant to a multi-employer plan that utilizes a health
benefits account system in which an employee accumulates
prospective health benefit eligibility, also commonly
referred to as ``dollar bank,'' ``credit bank,'' and ``hour
bank'' plans. In such cases, where an employee with a
positive health benefits account balance elects to continue
the coverage, the employee may further elect either option
below:
(1) The eligible employee may expend his or her health
account balance during an absence from employment due to
service in the uniformed services in lieu of paying for the
continuation of coverage as set out in section 1002.166. If
an eligible employee's health account balance becomes
depleted during the applicable period provided for in section
1002.164(a), the employee must be permitted, at his or her
option, to continue coverage pursuant to section 1002.166.
Upon reemployment, the plan must provide for immediate
reinstatement of the eligible employee as required by section
1002.168, but may require the employee to pay the cost of the
coverage until the employee earns the credits necessary to
sustain continued coverage in the plan.
(2) The eligible employee may pay for continuation coverage
as set out in section 1002.166, in order to maintain intact
his or her account balance as of the beginning date of the
absence from employment due to service in the uniformed
services. This option permits the eligible employee to resume
usage of the account balance upon reemployment.
(b) Employers or plan administrators providing such plans
should counsel employees of their options set out in this
subsection.
Prompt Reemployment
Reemployment Position
Seniority Rights and Benefits
Disabled Employees
Rate of Pay
Protection Against Discharge
Pension Plan Benefits
Prompt Reemployment
The employing office must promptly reemploy the employee
when he or she returns from a period of service if the
employee meets the Act's eligibility criteria as described in
Subpart C of these regulations.
``Prompt reemployment'' means as soon as practicable under
the circumstances of each case. Absent unusual circumstances,
reemployment must occur within two weeks of the eligible
employee's application for reemployment. For example, prompt
reinstatement after a weekend National Guard duty generally
means the next regularly scheduled working day. On the other
hand, prompt reinstatement following several years of active
duty may require more time, because the employing office may
have to reassign or give notice to another employee who
occupied the returning employee's position.
Reemployment Position
As a general rule, the eligible employee is entitled to
reemployment in the job position that he or she would have
attained with reasonable certainty if not for the absence due
to uniformed service. This position is known as the escalator
position. The principle behind the escalator position is
that, if not for the period of uniformed service, the
eligible employee could have been promoted (or,
alternatively, demoted, transferred, or laid off) due to
intervening events. The escalator principle requires that the
eligible employee be reemployed in a position that reflects
with reasonable certainty the pay, benefits, seniority, and
other job perquisites, that he or she would have attained if
not for the period of service. Depending upon the specific
circumstances, the employing office may have the option, or
be required, to reemploy the eligible employee in a position
other than the escalator position.
In all cases, the starting point for determining the proper
reemployment position is the escalator position, which is the
job position that the eligible employee would have attained
if his or her continuous employment had not been interrupted
due to uniformed service. Once this position is determined,
the employing office may have to consider several factors
before determining the appropriate reemployment position in
any particular case. Such factors may include the eligible
employee's length of service, qualifications, and disability,
if any. The actual reemployment position may be either the
escalator position; the pre-service position; a position
comparable to the escalator or pre-service position; or, the
nearest approximation to one of these positions.
(a) Yes. The reemployment position includes the seniority,
status, and rate of pay that an eligible employee would
ordinarily have attained in that position given his or her
job history, including prospects for future earnings and
advancement. The employing office must determine the
seniority rights, status, and rate of pay as though the
eligible employee had been continuously employed during the
period of service. The seniority rights, status, and pay of
an employment position include those established (or changed)
by a collective bargaining agreement, employer policy, or
employment practice. The sources of seniority rights, status,
and pay include agreements, policies, and practices in effect
at the beginning of the eligible employee's service, and any
changes that may have occurred during the period of service.
In particular, the eligible employee's status in the
reemployment position could include opportunities for
advancement, general working conditions, job location, shift
assignment, rank, responsibility, and geographical location.
(b) If an opportunity for promotion, or eligibility for
promotion, that the eligible employee missed during service
is based on a
[[Page S1201]]
skills test or examination, then the employing office should
give him or her a reasonable amount of time to adjust to the
employment position and then give a skills test or
examination. No fixed amount of time for permitting
adjustment to reemployment will be deemed reasonable in all
cases. However, in determining a reasonable amount of time to
permit an eligible employee to adjust to reemployment before
scheduling a makeup test or examination, an employing office
may take into account a variety of factors, including but not
limited to the length of time the returning employee was
absent from work, the level of difficulty of the test itself,
the typical time necessary to prepare or study for the test,
the duties and responsibilities of the reemployment position
and the promotional position, and the nature and
responsibilities of the service member while serving in the
uniformed service. If the eligible employee is successful on
the makeup exam and, based on the results of that exam, there
is a reasonable certainty that he or she would have been
promoted, or made eligible for promotion, during the time
that the employee served in the uniformed service, then the
promotion or eligibility for promotion must be made effective
as of the date it would have occurred had employment not been
interrupted by uniformed service.
Yes. The Act does not prohibit lawful adverse job
consequences that result from the eligible employee's
restoration on the seniority ladder. Depending on the
circumstances, the escalator principle may cause an eligible
employee to be reemployed in a higher or lower position, laid
off, or even terminated. For example, if an eligible
employee's seniority or job classification would have
resulted in the employee being laid off during the period of
service, and the layoff continued after the date of
reemployment, reemployment would reinstate the employee to
layoff status. Similarly, the status of the reemployment
position requires the employing office to assess what would
have happened to such factors as the eligible employee's
opportunities for advancement, working conditions, job
location, shift assignment, rank, responsibility, and
geographical location, if he or she had remained continuously
employed. The reemployment position may involve transfer to
another shift or location, more or less strenuous working
conditions, or changed opportunities for advancement,
depending upon the application of the escalator principle.
Once the eligible employee's escalator position is
determined, other factors may allow, or require, the
employing office to reemploy the employee in a position other
than the escalator position. These factors, which are
explained in sections 1002.196 through 1002.199, are:
(a) The length of the eligible employee's most recent
period of uniformed service;
(b) The eligible employee's qualifications; and,
(c) Whether the eligible employee has a disability incurred
or aggravated during uniformed service.
Following a period of service in the uniformed services of
less than 91 days, the eligible employee must be reemployed
according to the following priority:
(a) The eligible employee must be reemployed in the
escalator position. He or she must be qualified to perform
the duties of this position. The employing office must make
reasonable efforts to help the eligible employee become
qualified to perform the duties of this position.
(b) If the eligible employee is not qualified to perform the
duties of the escalator position after reasonable efforts by
the employing office, the employee must be reemployed in the
position in which he or she was employed on the date that the
period of service began. The eligible employee must be
qualified to perform the duties of this position. The
employing office must make reasonable efforts to help the
eligible employee become qualified to perform the duties of
this position.
(c) If the eligible employee is not qualified to perform
the duties of the escalator position or the pre-service
position, after reasonable efforts by the employing office,
he or she must be reemployed in any other position that is
the nearest approximation first to the escalator position and
then to the pre-service position. The eligible employee must
be qualified to perform the duties of this position. The
employing office must make reasonable efforts to help the
eligible employee become qualified to perform the duties of
this position.
Following a period of service of more than 90 days, the
eligible employee must be reemployed according to the
following priority:
(a) The eligible employee must be reemployed in the
escalator position or a position of like seniority, status,
and pay. He or she must be qualified to perform the duties of
this position. The employing office must make reasonable
efforts to help the eligible employee become qualified to
perform the duties of this position.
(b) If the eligible employee is not qualified to perform
the duties of the escalator position or a like position after
reasonable efforts by the employing office, the employee must
be reemployed in the position in which he or she was employed
on the date that the period of service began or in a position
of like seniority, status, and pay. The eligible employee
must be qualified to perform the duties of this position. The
employing office must make reasonable efforts to help the
eligible employee become qualified to perform the duties of
this position.
(c) If the eligible employee is not qualified to perform
the duties of the escalator position, the pre-service
position, or a like position, after reasonable efforts by the
employing office, he or she must be reemployed in any other
position that is the nearest approximation first to the
escalator position and then to the pre-service position. The
eligible employee must be qualified to perform the duties of
this position. The employing office must make reasonable
efforts to help the eligible employee become qualified to
perform the duties of this position.
The eligible employee must be qualified for the
reemployment position. The employing office must make
reasonable efforts to help the eligible employee become
qualified to perform the duties of this position. The
employing office is not required to reemploy the eligible
employee on his or her return from service if he or she
cannot, after reasonable efforts by the employing office,
qualify for the appropriate reemployment position.
(a)(1) ``Qualified'' means that the employee has the
ability to perform the essential tasks of the position. The
employee's inability to perform one or more non-essential
tasks of a position does not make him or her unqualified.
(2) Whether a task is essential depends on several factors,
and these factors include but are not limited to:
(i) The employing office's judgment as to which functions
are essential;
(ii) Written job descriptions developed before the hiring
process begins;
(iii) The amount of time on the job spent performing the
function;
(iv) The consequences of not requiring the individual to
perform the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job;
and/or
(vii) The current work experience of incumbents in similar
jobs.
(b) Only after the employing office makes reasonable
efforts, as defined in section 1002.5(p), may it determine
that the otherwise eligible employee is not qualified for the
reemployment position. These reasonable efforts must be made
at no cost to the employee.
If two or more eligible employees are entitled to
reemployment in the same position and more than one employee
has reported or applied for employment in that position, the
employee who first left the position for uniformed service
has the first priority on reemployment in that position. The
remaining employee (or employees) is entitled to be
reemployed in a position similar to that in which the
employee would have been re-employed according to the rules
that normally determine a reemployment position, as set out
in sections 1002.196 and 1002.197.
Seniority Rights and Benefits
The eligible employee is entitled to the seniority and
seniority-based rights and benefits that he or she had on the
date the uniformed service began, plus any seniority and
seniority-based rights and benefits that the employee would
have attained if he or she had remained continuously
employed. The eligible employee is not entitled to any
benefits to which he or she would not have been entitled had
the employee been continuously employed with the employing
office. In determining entitlement to seniority and
seniority-based rights and benefits, the period of absence
from employment due to or necessitated by uniformed service
is not considered a break in employment. The rights and
benefits protected by USERRA upon reemployment include those
provided by the employing office and those required by
statute.
For example, under USERRA, a reemployed service member
would be eligible for leave under the Family and Medical
Leave Act of 1993, 29 U.S.C. 2601-2654 (FMLA), if the number
of months and the number of hours of work for which the
service member was employed by the employing office, together
with the number of months and the number of hours of work for
which the service member would have been employed by the
employing office during the period of uniformed service, meet
FMLA's eligibility requirements. In the event that a service
member is denied FMLA leave for failing to satisfy the FMLA's
hours of work requirement due to absence from employment
necessitated by uniformed service, the service member may
have a cause of action under USERRA but not under the FMLA.
[[Page S1202]]
No. USERRA does not require the employing office to adopt a
formal seniority system. USERRA defines seniority as
longevity in employment together with any employment benefits
that accrue with, or are determined by, longevity in
employment. In the absence of a formal seniority system, such
as one established through collective bargaining, USERRA
looks to the custom and practice in the place of employment
to determine the eligible employee's entitlement to any
employment benefits that accrue with, or are determined by,
longevity in employment.
A seniority-based right or benefit is one that accrues
with, or is determined by, longevity in employment.
Generally, whether a right or benefit is seniority-based
depends on three factors:
(a) Whether the right or benefit is a reward for length of
service rather than a form of short-term compensation for
work performed;
(b) Whether it is reasonably certain that the eligible
employee would have received the right or benefit if he or
she had remained continuously employed during the period of
service; and,
(c) Whether it is the employing office's actual custom or
practice to provide or withhold the right or benefit as a
reward for length of service. Provisions of an employment
contract or policies in the employee handbook are not
controlling if the employing office's actual custom or
practice is different from what is written in the contract or
handbook.
A reasonable certainty is a high probability that the
eligible employee would have received the seniority or
seniority-based right or benefit if he or she had been
continuously employed. The eligible employee does not have to
establish that he or she would have received the benefit as
an absolute certainty. The eligible employee can demonstrate
a reasonable certainty that he or she would have received the
seniority right or benefit by showing that other employees
with seniority similar to that which the employee would have
had if he or she had remained continuously employed received
the right or benefit. The employing office cannot withhold
the right or benefit based on an assumption that a series of
unlikely events could have prevented the eligible employee
from gaining the right or benefit.
Disabled Employees
Yes. A disabled service member is entitled, to the same
extent as any other individual, to the escalator position he
or she would have attained but for uniformed service. If the
eligible employee has a disability incurred in, or aggravated
during, the period of service in the uniformed services, the
employing office must make reasonable efforts to accommodate
that disability and to help the employee become qualified to
perform the duties of his or her reemployment position. If
the eligible employee is not qualified for reemployment in
the escalator position because of a disability after
reasonable efforts by the employing office to accommodate the
disability and to help the employee to become qualified, the
employee must be reemployed in a position according to the
following priority. The employing office must make reasonable
efforts to accommodate the eligible employee's disability and
to help him or her to become qualified to perform the duties
of one of these positions:
(a) A position that is equivalent in seniority, status, and
pay to the escalator position; or,
(b) A position that is the nearest approximation to the
equivalent position, consistent with the circumstances of the
eligible employee's case, in terms of seniority, status, and
pay. A position that is the nearest approximation to the
equivalent position may be a higher or lower position,
depending on the circumstances.
(a) USERRA requires that the eligible employee be qualified
for the reemployment position regardless of any disability.
The employing office must make reasonable efforts to help the
eligible employee to become qualified to perform the duties
of this position. The employing office is not required to
reemploy the eligible employee on his or her return from
service if he or she cannot, after reasonable efforts by the
employing office, qualify for the appropriate reemployment
position.
(b) ``Qualified'' has the same meaning here as in section
1002.198.
Rate of Pay
The eligible employee's rate of pay is determined by
applying the same escalator principles that are used to
determine the reemployment position, as follows:
(a) If the eligible employee is reemployed in the escalator
position, the employing office must compensate him or her at
the rate of pay associated with the escalator position. The
rate of pay must be determined by taking into account any pay
increases, differentials, step increases, merit increases, or
periodic increases that the eligible employee would have
attained with reasonable certainty had he or she remained
continuously employed during the period of service. In
addition, when considering whether merit or performance
increases would have been attained with reasonable certainty,
an employing office may examine the returning eligible
employee's own work history, his or her history of merit
increases, and the work and pay history of employees in the
same or similar position. For example, if the eligible
employee missed a merit pay increase while performing
service, but qualified for previous merit pay increases, then
the rate of pay should include the merit pay increase that
was missed. If the merit pay increase that the eligible
employee missed during service is based on a skills test or
examination, then the employing office should give the
employee a reasonable amount of time to adjust to the
reemployment position and then give him or her the skills
test or examination. No fixed amount of time for permitting
adjustment to reemployment will be deemed reasonable in all
cases.
However, in determining a reasonable amount of time to
permit an eligible employee to adjust to reemployment before
scheduling a makeup test or examination, an employing office
may take into account a variety of factors, including but not
limited to the length of time the returning employee was
absent from work, the level of difficulty of the test itself,
the typical time necessary to prepare or study for the test,
the duties and responsibilities of the reemployment position
and the promotional position, and the nature and
responsibilities of the service member while serving in the
uniformed service. The escalator principle also applies in
the event a pay reduction occurred in the reemployment
position during the period of service. Any pay adjustment
must be made effective as of the date it would have occurred
had the eligible employee's employment not been interrupted
by uniformed service.
(b) If the eligible employee is reemployed in the pre-
service position or another position, the employing office
must compensate him or her at the rate of pay associated with
the position in which he or she is reemployed. As with the
escalator position, the rate of pay must be determined by
taking into account any pay increases, differentials, step
increases, merit increases, or periodic increases that the
eligible employee would have attained with reasonable
certainty had he or she remained continuously employed during
the period of service.
Protection Against Discharge
Yes. If the eligible employee's most recent period of
service in the uniformed services was more than 30 days, he
or she must not be discharged except for cause --
(a) For 180 days after the eligible employee's date of
reemployment if his or her most recent period of uniformed
service was more than 30 days but less than 181 days; or,
(b) For one year after the date of reemployment if the
eligible employee's most recent period of uniformed service
was more than 180 days.
The eligible employee may be discharged for cause based
either on conduct or, in some circumstances, because of the
application of other legitimate nondiscriminatory reasons.
(a) In a discharge action based on conduct, the employing
office bears the burden of proving that it is reasonable to
discharge the eligible employee for the conduct in question,
and that he or she had notice, which was express or can be
fairly implied, that the conduct would constitute cause for
discharge.
(b) If, based on the application of other legitimate
nondiscriminatory reasons, the eligible employee's job
position is eliminated, or the eligible employee is placed on
layoff status, either of these situations would constitute
cause for purposes of USERRA. The employing office bears the
burden of proving that the eligible employee's job would have
been eliminated or that he or she would have been laid off.
Pension Plan Benefits
On reemployment, the eligible employee is treated as not
having a break in service with the employing office for
purposes of participation, vesting and accrual of benefits in
a pension plan, by reason of the period of absence from
employment due to or necessitated by service in the uniformed
services.
(a) Depending on the length of the eligible employee's
period of service, he or she is entitled to take from one to
ninety days following service before reporting back to work
[[Page S1203]]
or applying for reemployment (See section 1002.115). This
period of time must be treated as continuous service with the
employing office for purposes of determining participation,
vesting and accrual of pension benefits under the plan.
(b) If the eligible employee is hospitalized for, or
convalescing from, an illness or injury incurred in, or
aggravated during, service, he or she is entitled to report
to or submit an application for reemployment at the end of
the time period necessary for him or her to recover from the
illness or injury. This period, which may not exceed two
years from the date the eligible employee completed service,
except in circumstances beyond his or her control, must be
treated as continuous service with the employing office for
purposes of determining the participation, vesting and
accrual of pension benefits under the plan.
(a) The Employee Retirement Income Security Act of 1974
(ERISA) defines an employee pension benefit plan as a plan
that provides retirement income to employees, or defers
employee income to a period extending to or beyond the
termination of employment. USERRA also covers certain pension
plans not covered by ERISA, such as those sponsored by the
Federal Government.
(b) USERRA does not cover pension benefits under the
Federal Thrift Savings Plan; those benefits are covered under
5 U.S.C. 8432b.
With the exception of multi-employer plans, which have
separate rules discussed below, the employing office is
required to ensure the funding of any obligation of the plan
to provide benefits that are attributable to the eligible
employee's period of service. In the case of a defined
contribution plan, once the eligible employee is reemployed,
the employing office must ensure that the amount of the make-
up contribution for the employee, if any; the employee's
make-up contributions, if any; and the employee's elective
deferrals, if any; in the same manner and to the same extent
that the amounts are allocated for other employees during the
period of service. In the case of a defined benefit plan, the
eligible employee's accrued benefit will be increased for the
period of service once he or she is reemployed and, if
applicable, has repaid any amounts previously paid to him or
her from the plan and made any employee contributions that
may be required to be made under the plan.
(a) Employer contributions are not required until the
eligible employee is reemployed. For employer contributions
to a plan in which the eligible employee is not required or
permitted to contribute, the contribution attributable to the
employee's period of service must be made no later than
ninety days after the date of reemployment, or when plan
contributions are normally due for the year in which the
service in the uniformed services was performed, whichever is
later. If it is impossible or unreasonable for the
contribution to be made within this time period, the
contribution must be made as soon as practicable.
(b) If the eligible employee is enrolled in a contributory
plan, he or she is allowed (but not required) to make up his
or her missed contributions or elective deferrals. These
makeup contributions, or elective deferrals, must be made
during a time period starting with the date of reemployment
and continuing for up to three times the length of the
eligible employee's immediate past period of uniformed
service, with the repayment period not to exceed five years.
Makeup contributions or elective deferrals may only be made
during this period and while the employee is employed with
the post-service employing office.
(c) If the eligible employee's plan is contributory and he
or she does not make up his or her contributions or elective
deferrals, he or she will not receive the employer match or
the accrued benefit attributable to his or her contribution.
This is true because employer contributions are contingent on
or attributable to the employee's contributions or elective
deferrals only to the extent that the employee makes up his
or her payments to the plan. Any employer contributions that
are contingent on or attributable to the eligible employee's
make-up contributions or elective deferrals must be made
according to the plan's requirements for employer matching
contributions.
(d) The eligible employee is not required to make up the
full amount of employee contributions or elective deferrals
that he or she missed making during the period of service. If
the eligible employee does not make up all of the missed
contributions or elective deferrals, his or her pension may
be less than if he or she had done so.
(e) Any vested accrued benefit in the pension plan that the
eligible employee was entitled to prior to the period of
uniformed service remains intact whether or not he or she
chooses to be reemployed under the Act after leaving the
uniformed service.
(f) An adjustment will be made to the amount of employee
contributions or elective deferrals that the eligible
employee will be able to make to the pension plan for any
employee contributions or elective deferrals he or she
actually made to the plan during the period of service.
No. The eligible employee is not required or permitted to
make up a missed contribution in an amount that exceeds the
amount he or she would have been permitted or required to
contribute had he or she remained continuously employed
during the period of service.
Yes, provided the plan is a defined benefit plan. If the
eligible employee received a distribution of all or part of
the accrued benefit from a defined benefit plan in connection
with his or her service in the uniformed services before he
or she became reemployed, he or she must be allowed to repay
the withdrawn amounts when he or she is reemployed. The
amount the eligible employee must repay includes any interest
that would have accrued had the monies not been withdrawn.
The eligible employee must be allowed to repay these amounts
during a time period starting with the date of reemployment
and continuing for up to three times the length of the
employee's immediate past period of uniformed service, with
the repayment period not to exceed five years (or such longer
time as may be agreed to between the employing office and the
employee), provided the employee is employed with the post-
service employing office during this period.
The amount of the eligible employee's pension benefit
depends on the type of pension plan.
(a) In a non-contributory defined benefit plan, where the
amount of the pension benefit is determined according to a
specific formula, the eligible employee's benefit will be the
same as though he or she had remained continuously employed
during the period of service.
(b) In a contributory defined benefit plan, the eligible
employee will need to make up contributions in order to have
the same benefit as if he or she had remained continuously
employed during the period of service.
(c) In a defined contribution plan, the benefit may not be
the same as if the employee had remained continuously
employed, even though the employee and the employer make up
any contributions or elective deferrals attributable to the
period of service, because the employee is not entitled to
forfeitures and earnings or required to experience losses
that accrued during the period or periods of service.
A multi-employer pension benefit plan is one to which more
than one employer is required to contribute, and which is
maintained pursuant to one or more collective bargaining
agreements between one or more employee organizations and
more than one employer. The Act uses ERISA's definition of a
multi-employer plan. In addition to the provisions of USERRA
that apply to all pension benefit plans, there are provisions
that apply specifically to multi-employer plans, as follows:
(a) The last employer that employed the eligible employee
before the period of service is responsible for making the
employer contribution to the multi-employer plan, if the plan
sponsor does not provide otherwise. If the last employer is
no longer functional, the plan must nevertheless provide
coverage to the eligible employee.
(b) An employer that contributes to a multi-employer plan
and that reemploys the eligible employee pursuant to USERRA
must provide written notice of reemployment to the plan
administrator within 30 days after the date of reemployment.
The returning service member should notify the reemploying
employer that he or she has been reemployed pursuant to
USERRA. The 30-day period within which the reemploying
employer must provide written notice to the multi-employer
plan pursuant to this subsection does not begin until the
employer has knowledge that the eligible employee was re-
employed pursuant to USERRA.
(c) The eligible employee is entitled to the same employer
contribution whether he or she is reemployed by the pre-
service employer or by a different employer contributing to
the same multi-employer plan, provided that the pre-service
employer and the post-service employer share a common means
or practice of hiring the employee, such as common
participation in a union hiring hall.
In many pension benefit plans, the eligible employee's
compensation determines the amount of his or her contribution
or the retirement benefit to which he or she is entitled.
(a) Where the eligible employee's rate of compensation must
be calculated to determine pension entitlement, the
calculation must be made using the rate of pay that the
[[Page S1204]]
employee would have received but for the period of uniformed
service.
(b)(1) Where the rate of pay the eligible employee would
have received is not reasonably certain, the average rate of
compensation during the 12-month period prior to the period
of uniformed service must be used.
(2) Where the rate of pay the eligible employee would have
received is not reasonably certain and he or she was employed
for less than 12 months prior to the period of uniformed
service, the average rate of compensation must be derived
from this shorter period of employment that preceded service.
Compliance Assistance
Investigation and Referral
Enforcement of Rights and Benefits Against an Employing Office
Compliance Assistance
The Office of Congressional Workplace Rights provides
assistance to any person or entity who is covered by the CAA
with respect to employment and reemployment rights and
benefits under USERRA as applied by the CAA. This assistance
includes responding to inquiries, and providing a program of
education and information on matters relating to USERRA.
Investigation and Referral
(a) The Procedural Rules of the Office of Congressional
Workplace Rights set forth the procedures for considering and
resolving alleged violations of the laws made applicable by
the CAA, including USERRA. The Rules include procedures for
filing claims and participating in administrative dispute
resolution proceedings at the Office of Congressional
Workplace Rights, including procedures for the conduct of
hearings and for appeals to the Board of Directors. The
Procedural Rules also address other matters of general
applicability to the dispute resolution process and to the
operations of the Office.
(b) The Procedural Rules of the Office of Congressional
Workplace Rights can be found on the Office's website at
<a href='http://www.ocwr.gov.
'>www.ocwr.gov.
</a> Enforcement of Rights and Benefits Against an Employing Office
Yes. Eligible employees must first file a claim form with
the Office of Congressional Workplace Rights before making an
election between requesting an administrative hearing or
filing a civil action in Federal district court.
An action under section 206 of the CAA may be brought by an
eligible employee, as defined by section 1002.5(f) of Subpart
A of these regulations. An action under section 208(a) of the
CAA may be brought by a covered employee, as defined by
section 1002.5 (e) of Subpart A of these regulations. An
employing office, prospective employing office or other
similar entity may not bring an action under the Act.
In an action under USERRA, only the covered employing
office or a potential covered employing office, as the case
may be, is a necessary party respondent. Under the Office of
Congressional Workplace Rights Procedural Rules, a hearing
officer has authority to require the filing of briefs,
memoranda of law, and the presentation of oral argument. A
hearing officer also may order the production of evidence and
the appearance of witnesses.
If an eligible employee is a prevailing party with respect
to any claim under USERRA, the hearing officer, Board, or
court may award reasonable attorney fees, expert witness
fees, and other litigation expenses.
USERRA does not have a statute of limitations. However,
section 402 of the CAA, 2 U.S.C. 1402, requires a covered
employee to file a claim with the Office of Congressional
Workplace Rights alleging a violation of the CAA no later
than 180 days after the date of the alleged violation. A
claim by an eligible employee alleging a USERRA violation as
applied by the CAA would follow this requirement.
In any action or proceeding the following relief may be
awarded:
(a) The court and/or hearing officer may require the
employing office to comply with the provisions of the Act;
(b) The court and/or hearing officer may require the
employing office to compensate the eligible employee for any
loss of wages or benefits suffered by reason of the employing
office's failure to comply with the Act;
(c) The court and/or hearing officer may require the
employing office to pay the eligible employee an amount equal
to the amount of lost wages and benefits as liquidated
damages, if the court and/or hearing officer determines that
the employing office's failure to comply with the Act was
willful. A violation shall be considered to be willful if the
employing office either knew or showed reckless disregard for
whether its conduct was prohibited by the Act.
(d) Any wages, benefits, or liquidated damages awarded
under paragraphs (b) and (c) of this section are in addition
to, and must not diminish, any of the other rights and
benefits provided by USERRA (such as, for example, the right
to be employed or reemployed by the employing office).
____________________