Snitow Kanfer Holtzer & Millus | New York Business Litigation Attorneys

WHEN JOHNNY (AND JANE) COMES MARCHING HOME AGAIN
Re-employment Rights Under USERRA

As of September 2005 there were 192,6000 active duty troops in Iraq, 19,500 in Afghanistan and over 1,389,394 U.S. soldiers in active military service worldwide.^[i] Even more significant to employers is that at the end of 2004 fiscal year there were 425,840 reservists and National Guard members deployed worldwide.^[ii] Accordingly, employers have been and will be faced with hard questions over what they must do when their valued employees, who left work to defend our country, seek to resume their employment.^[iii] In the not too distant future, we will see the return to the workforce of so many veterans that employers must become very familiar with the Uniform Services Employment and Reemployment Rights Act (“USERRA”). USERRA provides a comprehensive remedial scheme to ensure the employment and re-employment rights of those called upon to serve in the armed forces of the United States. It delineates (I) the employer’s obligations to its employee while the employee performs active duty uniformed service and (ii) such obligations once the soldier returns to civilian life seeking re-employment.

USERRA was first enacted in 1994 ^[iv] and subsequently amended in 1996, 1998, 2000 and 2004. Its origins can be found in the Selective Training and Services Act of 1940. Most recently, on December 10, 2004, President Bush signed the Veterans Benefits Improvement Act (“VBIA”) which amended USERRA and provided, inter alia, that the maximum coverage period of employer‑sponsored health care for USERRA covered employees was extended from 18 to 24 months.^[v] Under the VBIA, employers are also required to post a notice in the workplace which apprises employees of their rights, benefits and obligations under USERRA as of March 10, 2005. ^[vi] As for how the courts will view USERRA, like many remedial statutes, the Supreme Court has made it clear that USERRA “is to be liberally construed for the benefit of those who left private life to service their country in its greatest hour of need.” ^[vii]

As of January 18, 2006, for the first time, regulations have been promulgated by the U.S. Department of Labor providing guidance on how the law shall be applied to states, local governments and private employers.^[viii] While Section 4331 of USERRA authorized the Secretary of Labor in 1994 (in consultation with the Department of Defense) to prescribe such regulations, the rules were not initially promulgated until September, 2005. ^[ix] These final rules now provide detailed guidance to employers and employees under USERRA.

The Department of Labor drafted the rules in what it described to be a “more personal style’ consistent with the Presidential Memorandum on Plain Language, which encourages the greater use of heading lists and questions. The result was a set of rules which are entirely readable and understandable to the average employee and employer alike.

Here are some of the major questions answered by the newly promulgated rules:

What types of Uniformed Services are covered?

All uniformed personnel in peace or war including active duty National Guard and Reservists. (§1002.6)

What employers are covered?

All public and private employers including successors in interest and “joint employers” regardless of size as well as foreign employers doing business in U.S. (§1002.34)

Can a hiring hall be considered an employer?

Yes, if the hiring and job assignment functions have been delegated by an employer to a hiring hall. (§1002.38)

Are executive, management or professional

employees covered?

Yes, executive, management and professional

employees are covered. (§1002.43)

Are independent contractors covered under the Act?

There is no coverage for independent contractors. (§1002.44)

What status or activity is protected

from employer discrimination?

Initial employment, re-employment, retention in employment, promotion or “any benefit of employment.”(§1002.18)

What is an employee’s status while

on active duty?

The employee is deemed to be on furlough or leave of absence and is entitled to all benefits afforded employees with similar status. (§1000.00)

Is the employee entitled to continued health care coverage?

Employee is entitled to continue existing coverage (and family if offered) for the lessor of a 24 months period or the period between the date the employee left and the date the employee fails to return for work after service. (§1002.164)

Who pays for health coverage?

If service exceeds 31 days, employee pays no more than 102% of the premium covering employee’s and employer’s share and 2% for administrative costs. (§1002.166)

How does USERRA protect an

employee’s pension benefits?

The employer is obligated to fund any obligation to the pension plan to provide benefits that are attributable to the employees period of service. Any contribution need only be made when the employee becomes re-employed. (§1002.259-267).

What protections are there under USERRA protect against discharge?

Yes, if uniformed service was more than 30 days but less than 180, employee cannot be discharged except for cause for 180 days after re-employment. If service was in excess of 180 days, then only for one year except for cause. (§ 1002.247-248)

Must an employer always re-employ?

There are limited exceptions for “changed circumstances” and “undue hardship.” (§1002.139)

What if the employee returns from combat with a disability?

The employer must make reasonable efforts to help the employee become qualified for the position. If the employee cannot become qualified after such efforts, the employer is not required to re-employ. (§ 1002.226)

What are the damages for a violation of USERRA?

Injunctive relief, lost wages and benefits. If the violation was wilful - liquidated or double damages equal to lost wages and benefits. The employee may also seek attorney’s fees and other court expenses. (§1002.312)

Unfortunately, the need for more and more soldiers will probably grow over this decade and in the future. As that happens, the work force will eventually include a large number of returning veterans who yearn to resume their civilian lives. Since USERRA is applicable to all employers regardless of size, unlike Title VII or the Family Medical Leave Act for example, all employers would be well advised to add USERRA to the panoply of laws, rules and regulations they refer to regularly to comply with the complex web of federal, state and local labor laws affecting the workplace.

[i]. Source, Department of Defense Annual Report to the President and the Congress, 2005.

[ii]. Id.

[iii]. USERRA applies only to non-career military service and employees have been found to waive their re-employment rights by abandoning their civilian careers in favor of one in the military. See Woodman v. Office of Personnel Management, 258 F.3d 1372 (Fed. Cir. 2001).

[iv]. 38 U.S.C. § 4301, et seq.

[v]. 38 U.S.C. § 7112

[vi]. Id. (The notice can be downloaded from the U.S. Department of Labor website.)

[vii]. King v. St. Vicent’s Hospital., 502 U.S. 215 (1991) quoting Fishgold v. Sullivan Drydock, 328 U.S. 275 (1946).

[viii]. The Federal Office of Personnel Management has issued a separate body of regulations that govern USERRA rights of Federal employees. See 5 C.F.R. Part 353.

[ix]. 20 C.F.R. Part 1002, et seq.

Paul F. Millus is a partner at Snitow Kanfer Holtzer & Millus in Manhattan. He is Chair of the Federal Courts Committee of the NCBA and concentrates his practice on labor and employment, commercial litigation and land use.

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