The Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994 is about to get a lot of attention. Are you ready? For over a decade, this little-known federal law, which applies to all employers in the country, regardless of size, has quietly existed with little or no effect on employers. That is about to change.
Since President Bush announced a national emergency following September 11, 2001, more than 460,000 members of the National Guard and Reserve have been called to serve in either Iraq or Afghanistan . With nearly 1.2 million reserve and National Guard members in the United States , chances are if you have eligible employees who have not yet been called to full-time military service, they will be. When that time comes, you will be responsible for understanding and applying USERRA not only when those employees are called to duty, but also when they return to the workplace.
What does USERRA require?
USERRA governs the job leave and reinstatement requirements for military personnel. The law contains specific requirements for protected leave, rules for benefits employees are entitled to during military leave, notices and postings, and the requirements for reinstatement back in the civilian workforce. USERRA prohibits employers from discriminating against any employee or prospective employee because of past, present, or future application for, or membership in, a uniformed service. The law covers all public and private employers.
USERRA requires that upon returning from service, members of the armed services and its reserve components must be reinstated to their private civil jobs without loss of seniority or benefits and without any break in service for pension purposes.
The law also protects military personnel, including those who perform weekend drills, summer encampment, or similar types of training duty. Under USERRA, employers are obliged to reschedule the worker, if possible, to avoid conflicts between work andReserve or Guard training so the employee may work a full week.
Recent and impending changes to USERRA
Until recently, USERRA had changed little since it was signed into law in 1994. In the past 6 months all that has changed. In response to the large numbers of National Guard and Reserve troops being called to active duty, the U.S. Department of Labor (DOL) and Congress have moved rapidly to increase legal protections for those individuals.
Changes that are currently in effect. In December 2004, President Bush signed the Veterans Benefits Improvements Act (VBIA), which amended USERRA by making two significant changes to the law and what employers must do to comply with the law. Those two changes are:
(1) Healthcare Continuation. Employers must now offer those on military leave and their dependents the right to continue in the group health plan for up to 24 months of service . Prior to passage of the VBIA, healthcare continuation was 18 months. Employees may be required to pay 102 percent of the full premium for insurance. However, if the employee is on leave for 31 days or less, the employee may not be charged more than the amount he or she would have paid if still employed. Upon reemployment, an employee and his or her family may reenter the employer's health plan. The VBIA is effective for elections made on or after December 10, 2004 .
(2) Notice Requirement. Effective March 10, 2005 , employers must provide USERRA-eligible employees with a notice of their rights and benefits under USERRA. One manner in which notice may be provided is by placing a notice in the same place where other required notices are customarily posted. A DOL-approved poster containing the required notice may be downloaded here.
More changes are coming. In September 2004, DOL released draft regulations designed to clarify USERRA. The rules, written in a question and answer format, provide guidance on everything from antidiscrimination prohibitions and timing and notice requirements to pension plan rights, health coverage continuation, employer defenses to reemployment, and much more. DOL's final regulations are expected to be issued sometime in 2005.
The following are some highlights of the proposed regulations as they pertain to leave issues:
" Advance notice of military service. To be entitled to USERRA protections, employees must give their employers advance notice of their intention to serve in the military; USERRA doesn't specify how much notice is required. The draft rules state that the timeliness of notice will be determined by the facts in each case, but employees must make every effort to give notice of impending military service as far in advance as is reasonable.
" Decision to return. Employees departing for military service can delay deciding whether they want to return to their jobs until their service ends. You cannot press an employee for assurances.
" Reason for leaving. Employees who meet USERRA eligibility requirements can use their absence for other purposes as well and still retain their reemployment rights. For example, a worker deployed out of state for military training could moonlight as a security guard or visit relatives without losing USERRA protections.
" Reporting back. USERRA contains time limits, based on length of military service, for when employees must report back to work following military service. The draft rules clarify that when service doesn't exceed 31 days, the employee must report to the employer at the beginning of the first full shift on the first full day after completing service, provided the employee has 8 hours to rest after returning to their residence. The rules also clarify reporting-back requirements for longer tours of duty.
" Documentation verifying reemployment eligibility. The proposed rules set out the types of documentation you can request from a returning employee whose leave exceeded 30 days in order to verify the person is eligible for reemployment. These include, for example, a Defense Department 214 Certificate of Release or Discharge from Active Duty or a copy of duty orders indicating completion of service.
" Prompt reemployment. Under USERRA, you must "promptly" reemploy an individual who is eligible. The proposed rules specify that prompt means within 2 weeks after the person applies for reemployment, unless there are unusual circumstances.
What does the future hold?
According to Attorney Stephen Harris of the law firm Paul, Hastings, Janofsky & Walker, LLP, employers can expect an increase in both the number of employees exercising their USERRA rights when they are called to military duty and a potentially dramatic increase in USERRA claims when employees return from military leave. Harris, a speaker at the Council on Education in Management's recent Complete HR National Forum and Exhibition , warned conference attendees to be vigilant in their efforts to follow USERRA and the changing USERRA regulations.
Five steps for USERRA compliance
So, what can employers do now to be proactive in their USERRA compliance efforts? Attorney Harris recommends that employers take the following 5 steps:
" Designate a responsible person familiar with military leave laws to have oversight over all leave requests. This person should be well versed in the requirements for notice, benefits continuation, reinstatement, and nondiscrimination. By making one person in the organization responsible for such leave requests, the possibility of a violation of the law will be greatly diminished.
" Consider re-employment obligations when filling a position left vacant by an employee on military leave. USERRA provides three narrow exceptions from the requirement to reinstate returning service members: (i) changed circumstances; (ii) undue hardship; and (iii) no reasonable expectation of continued employment. These exceptions are construed very narrowly and employers choosing to fill such a position should proceed with great caution.
" Carefully document "just cause" terminations of reinstated service members. USERRA provides that returning service members may not be discharged, except for cause, for 1 year after reinstatement (for service of more than 180 days), or for 6 months (for periods of service from 31 to 180 days). Any "for cause" termination must be very well documented in order to withstand USERRA's strict rules.
" Ensure that policies are consistent with the law. Review company policies to ensure that they speak to USERRA and any state military leave requirements. Specifically, leave policies, benefit plan provisions, EEO, and harassment policies should all include reference to military status and relevant rights.
" Train supervisors specifically regarding the protections of military status, discriminatory actions and comments, leave requests, and policies. As the front- line recipients of leave requests supervisors must be conversant on USERRA's requirements and their responsibility to handle leave requests properly.
To assist employers in understanding the new military leave requirements and the upcoming changes to USERRA, BLR has established a USERRA Resource Center. It contains information regarding USERRA notice requirements, FAQs, articles, compliance tools, checklists, model policies, and useful links for finding out more about military leave.