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December 19, 2005
New Regulations Aim to Clarify USERRA

The U.S. Department of Labor has published final regulations interpreting the law that protects employment and reemployment rights and benefits of service members upon their return to civilian life. This is the first time since 1994 that the Department of Labor has developed regulations to explain and clarify the Uniformed Services Employment and Reemployment Act (USERRA).

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The final USERRA regulations provide detailed guidance on important (and sometimes confusing) employer obligations under USERRA such as:

  • Treatment of pension plan benefits
  • Tax treatment of differential pay, and other compensation and benefits
  • Burden of legal proof in USERRA case
  • Treatment of independent contractors and tests to determine contractor status
  • Amount of time off employees may take before military service
  • Reemployment limitations
  • Treatment of bonuses during leave
  • Benefits waivers
  • Use of vacation or other leave
  • Healthcare issues
  • Reemployment rules
  • Promotions
  • Disabled service members
  • Rate of pay on return
  • Protection against discharge

The new regulations, drafted in question-and-answer format, explain how USERRA protects against discrimination and retaliation because of military service; prevents service members from suffering disadvantages due to performance of their military obligations, and affords them ample time to report back to jobs following completion of their service obligations.

The department also announced its publication of the final version of the notice it provides employers for use in informing employees of their rights, benefits, and obligations under USERRA. A downloadable poster containing the notice for private employers can be found at HR.BLR.com.

From the regulations:

What seniority rights does an employee have when reemployed following a period of uniformed service?  

The employee is entitled to the seniority and seniority-based rights and benefits that he or she had on the date the uniformed service began, plus any seniority and seniority-based rights and benefits that the employee would have attained if he or she had remained continuously employed. In determining entitlement to seniority and seniority-based rights and benefits, the period of absence from employment due to or necessitated by uniformed service is not considered a break in employment. The rights and benefits protected by USERRA upon reemployment include those provided by the employer and those required by statute. For example, under USERRA, a reemployed service member would be eligible for leave under the Family and Medical Leave Act of 1993, 29 U.S.C. 2601-2654 (FMLA), if the number of months and the number of hours of work for which the service member was employed by the civilian employer, together with the number of months and the number of hours of work for which the service member would have been employed by the civilian employer during the period of uniformed service, meet FMLA's eligibility requirements. In the event that a service member is denied FMLA leave for failing to satisfy the FMLA's hours of work requirement due to absence from employment necessitated by uniformed service, the service member may have a cause of action under USERRA but not under the FMLA.  

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