August 28, 2012
Proposed changes to military leave and vets laws

For employers with employees in the military, the Uniformed Services Employment and Reemployment Rights Act (USERRA) controls the amount of military leave employees are entitled to and the terms of their reinstatement after military service leave is completed. Congress has been working on legislation that would amend the substance of USERRA and is planning to change USERRA and other federal laws by shifting the administration of certain veterans programs from the DOL to the U.S. Department of Veterans Affairs (VA).

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Limiting the undue hardship defense under USERRA

Under USERRA, an employer must promptly reemploy the employee when he or she returns from a period of military service unless the employer's circumstances have so changed as to make such reemployment impossible or unreasonable (the so-called “undue hardship” defense).

House Resolution (H.R.) 3860, introduced on June 21, 2012, in the House Committee on Veterans' Affairs' Subcommittee on Economic Opportunity, would limit the ability of larger companies to claim "undue hardship" as the reason for not rehiring a returning veteran. H.R. 3860 would exempt only small businesses, as defined by the Small Business Act, from the undue hardship exception to the reemployment requirement.

It has been reported that three federal agencies, the U.S. Department of Defense (DOD), the U.S. Department of Justice (DOJ), and the VA generally support the bill. However, some veterans’ service organizations are not supportive because of the fact that the bill can be interpreted not only as “closing a loophole,” but also as a hurdle to hires by larger companies.

VETS moving to VA?

The second proposed change, titled the Consolidating Veteran Employment Services for Improved Performance Act of 2012 (H.R. 4072), would move all veterans’ programs now administered through DOL's Veterans and Employment Training Service (VETS) to the VA. The proposed transfer date would be October 1, 2013. Programs that would be affected by the change include:

  • Job counseling, training, and placement services for veterans;
  • Employment and training of veterans;
  • Administration of employment and employment rights of members of the uniformed services (USERRA); and
  • Homeless veterans reintegration programs.

Both bills are currently in congressional committee. will continue to follow these actions and report on any developments.

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