DOL Issues Final USERRA Regulations

In December 2005, the United States Department of Labor issued final regulations under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. §§ 4301-4333. The regulations which take effect January 18, 2006 do not impose any new obligations on employers, according to the Department of Labor. They do provide new and specific guidance on a number of technical issues and turn the Department of Labor’s internal guidance on USERRA issues into binding regulations. In addition, the new regulations highlight lesser-known features of USERRA which may lead to an increase in complaints.

Other regulations recently issued by the Department of Labor require employers to provide notice of USERRA rights to their employees.

The basic concept of USERRA is to permit service members to leave their civilian jobs for uniformed service and return to their civilian jobs with accrued seniority. In general, USERRA provides the following rights to employees:

  1. Non-discrimination based on military status;
  2. Reinstatement to the position and pay that the employee would have held if the continuous employment of such person had not been interrupted;
  3. Other rights and benefits that are generally provided to individuals of similar status on a leave of absence;
  4. Continuation of medical benefits under the same terms and conditions as when actively employed if service is 30 days or less;
  5. Optional continuation of medical benefits under terms similar to those of COBRA for up to 24 months;
  6. All seniority, rights and benefits upon return to work as if the employee had remained continuously employed. Typical benefits covered under USERRA would include seniority-based vacation allowances, pension credit and 401(k) contributions; and
  7. Protection from discharge upon return to work, except for cause, for a period of time depending on the length of service.

The regulations provide coverage for employers and employees far broader than commonly believed. The definition of employer under the regulations includes individual decision-makers, successor employers, pension plans, overseas subsidiaries of American companies, and even insurance companies that administer life, disability and health plans. Employees covered under the regulations include those enlisted in extended active duty, mobilized reservists, ROTC students, those absent for pre-enlistment physicals, and volunteers in the National Disaster Medical System and NDMS authorized training programs.