WORKPLACE LAW - Concerned Employer

Question:

I heard there are new regulations regarding employment and reemployment rights of military members. What are these new regulations and what effect will they have on me as an employer?

Answer:

On December 19, 2005, the U.S. Department of Labor (DOL) published regulations that for the first time attempt to clarify the rights of military members and obligations of employers under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. 4301-4334. These new regulations pertain to private sector, local government, and state government employers and employees and became effective on January 18, 2006. They are quite extensive and may be found on the DOL website at http://www.dol.gov/vets/regs/fedreg/final/.

In 1994, Congress enacted USERRA to protect the rights of persons who leave employment positions to undertake military service. USERRA 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. USERRA also includes anti-discrimination and anti-retaliation provisions protecting individuals who perform military service.

While not exhaustive, the following are some highlights of the clarifications of USERRA found in the new regulations:

  • Both voluntary and involuntary military duty are covered under USERRA.
  • The amount of advance notice an employee must give to an employer prior to military leave is not defined, other than notice “as far in advance as is reasonable under the circumstances.” However, the regulations do cite Department of Defense regulations that strongly recommend that employees of civilian employers provide at least 30 days notice prior to departure for military service when feasible.
  • USERRA’s scope is broad and is applicable to virtually all employers regardless of size.
  • Individual supervisors and managers could be held personally liable for USERRA violations.
  • An employee is not required to accommodate his or her employer’s interests or concerns regarding the timing, frequency, or duration of military service. However, the employer is permitted to convey its concerns about the timing, frequency, or duration of the employee’s service to the appropriate military authority.
  • The employer must promptly reemploy the employee when he or she returns from a period of service. “Prompt reemployment” means as soon as practicable under the circumstances of each case. Absent unusual circumstances, reemployment must occur within two weeks of the employee’s application for reemployment.
  • The employee is entitled to be reemployed in the job position that he or she would have attained with reasonable certainty if not for the absence due to military service. This is called the “escalator position” and reflects the pay, benefits, and seniority that he or she would have attained if not for the period of service.
  • The documentation that is required for an employee to establish eligibility for reemployment after a period of service of more than thirty days is explained.
  • The DOL provides clarification regarding the burden of proof standards for proving discrimination and retaliation by employers against employees covered under USERRA.

Additionally, under separate new regulations by the DOL, employers are required to provide a notice to employees of the rights, benefits, and obligations of employees and employers under USERRA. Employers can fulfill this notice requirement by using a poster from the Department of Labor that can be located at: http://www.dol.gov/vets/. This notice requirement also became effective on January 18, 2006. Employers may provide the notice by posting it where employee notices are customarily placed.

Employers should review their handbooks and policies regarding employee absence while in military service and reemployment rights to ensure they are consistent with these new regulations and with California law. Employers should also provide the mandated notice to employees by using the Department of Labor poster located at the website given above.
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