Notice of Rights and Duties Under the Uniformed Services
Employment and Reemployment Rights Act
[12/19/2005]
Volume 70, Number 242, Page 75313-75317
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Veterans' Employment and Training Service
20 CFR Part 1002
RIN 1293-AA14
Notice of Rights and Duties Under the Uniformed Services
Employment and Reemployment Rights Act
AGENCY: Veterans' Employment and Training Service, Department of Labor.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: On March 10, 2005, the Veterans' Employment and Training
Service (VETS) of the Department of Labor (Department or DOL) issued an
interim final rule to implement a requirement of the Veterans Benefits
Improvement Act of 2004 (VBIA), Public Law 108-454 (Dec. 10, 2004). The
VBIA amended the Uniformed Services Employment and Reemployment Rights
Act (USERRA) by adding a requirement that employers provide a notice of
the rights, benefits, and obligations of employees and employers under
USERRA. The text of this notice was included in the interim final rule,
and the Department sought comment on that text. This preamble to the
final rule addresses comments received during the comment period. This
final rule does not affect the Department's pending proposal to
implement USERRA, which was published in the Federal Register of
September 20, 2004.
DATES: Effective Date: This rule will be effective on January 18, 2006.
FOR FURTHER INFORMATION CONTACT: For information, contact Mr. Kenan
Torrans, Office of Operations and Programs, Veterans' Employment and
Training Service (VETS), U.S. Department of Labor, Room S1316, 200
Constitution Ave., NW., Washington, DC 20210. Telephone: 202-693-4731
(this is not a toll-free number). Electronic mail:
torrans-william@dol.gov. For press inquiries, contact Michael Biddle, Office of
Public Affairs, U.S. Department of Labor, Room S-1032, 200 Constitution
Avenue, NW., Washington, DC 20210. Telephone: 202-693-5051 (this is not
a toll-free number). Electronic mail: biddle.michael@dol.gov.
Individuals with hearing or speech impairments may access the
telephone numbers above via TTY by calling the toll-free Federal
Information Relay Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
The Veterans Benefits Improvement Act of 2004 (VBIA), Public Law
108-454 (Dec. 10, 2004), amended several provisions of the Uniformed
Services Employment and Reemployment Rights Act of 1994 (USERRA), 38
U.S.C. 4301-4333. In part, the VBIA imposed a new requirement, codified
at 38 U.S.C. 4334, that ``Each employer shall provide to persons
entitled to rights and benefits under [USERRA] a notice of the rights,
benefits, and obligations of such persons and such employers under
[USERRA].'' Employers may provide the notice by posting it where
employee notices are customarily placed. However, employers are free to
provide the notice to employees in other ways that will minimize costs
while ensuring that the full text of the notice is provided (e.g., by
handing or mailing out the notice, or distributing the notice via
electronic mail).
The VBIA required the Secretary of Labor to make available to
employers the text of the required notice not later than March 10,
2005, ninety days after the enactment of the VBIA. The publication of
the interim final rule containing the text of the notice was pursuant
to this Congressional mandate. Effective March 10, 2005, the VBIA
requires employers to provide the notice ``to persons entitled to
rights and benefits'' under USERRA.
The VBIA also created a demonstration project under which
approximately half of the claims against Federal executive agencies
arising under USERRA will be transferred by the Department of Labor to
the Office of Special Counsel. Section 204(a) of the VBIA directs the
``Secretary of Labor and the Office of Special Counsel [to] carry out a
demonstration project under which certain claims against Federal
executive agencies under [USERRA] are referred to * * * the Office of
Special Counsel for assistance, including investigation and resolution
of the claim as well as enforcement of rights with respect to the
claim.'' Under this demonstration project, the Secretary of Labor
transfers to OSC those cases involving Federal executive agency
employees with odd-numbered social security numbers. The demonstration
project began on February 8, 2005, and will end on September 30, 2007.
USERRA provides employment and reemployment rights for members of
the uniformed services, including veterans and members of the Reserve
and National Guard. Under USERRA, service members who leave their
civilian jobs for military service can perform their duties with the
knowledge that they will be able to return to their jobs with the same
pay, benefits, and status they would have attained had they not been
away on duty. USERRA also prohibits employers from discriminating
against these individuals in employment because of their military
service.
Over 500,000 members of the National Guard and Reserve have been
mobilized since the President's declaration of a national emergency
following the attacks of September 11, 2001. As service members
conclude their tours of duty and return to civilian employment, it is
important that employees be fully informed of their USERRA rights,
benefits, and obligations. It is also important for service members to
know how the Department can assist them in enforcing these rights.
Providing employees with a notice of the USERRA rights, benefits, and
obligations of employees and employers advances these dual objectives
of informing the public about both the rights and obligations
established by USERRA and about the availability of the
[[Page 75314]]
Department's assistance in protecting those rights.
The Department invited the public to comment on the interim final
rule, and the comment period closed on May 9, 2005. The Department
received five timely comments regarding the proposed text of the
employer notice, and fully considered each comment. The Department
adopted proposed revisions to the text of the notice recommended in two
of the five comments, all of which are discussed below.
The Department received one comment from Representatives Steve
Buyer and Lane Evans, the Chairman and Ranking Member of the Committee
on Veteran's Affairs, U.S. House of Representatives. This comment
suggests that the text of the notice should reference the role given to
the U.S. Office of Special Counsel (OSC) during the demonstration
project referred to above, and should also include the OSC's contact
information and logo. The Department agrees that a comprehensive notice
of rights and obligations under USERRA should include the fact that
certain claims by employees of Federal executive agencies may be
referred to the OSC for investigation and resolution pursuant to the
demonstration project. In response to this comment, the Department will
make available text of a separate notice appropriate for distribution
to federal employees by federal executive agencies, available on VETS
Web site (at http://www.dol.gov/elaws/userra.htm), and that text
includes reference to OSC's role in investigating and resolving some
complaints against Federal executive agencies during the period of the
demonstration project. The Department further agrees that the inclusion
of the insignia of other agencies would be a useful reminder to both
employees and employers that USERRA requires a multi-agency partnership
in its administration and enforcement. To that end, the Department has
developed and made available on its Web site (at http://www.dol.gov/elaws/userra.htm
) two posters--one for use by private and State
employers and one for use by Federal agency employers `` that can be
posted in order to comply with the notification mandate of 38 U.S.C.
4334(a). The two posters include the logos and telephone numbers of
VETS as well as the other agencies that assist VETS in the
administration and enforcement of USERRA. OSC's logo and telephone
number, as well as a brief description of the demonstration project,
appear on the poster that is appropriate for use by Federal agencies.
The Members' comment more specifically suggests that the text of
the notice should state that individuals needing ``assistance in filing
a complaint with OSC, or information about [ ] USERRA rights, please
telephone'' or e-mail OSC directly. The VBIA's establishment of the
demonstration project does not alter USERRA's basic structure or the
Department's primary administrative responsibility to provide
assistance, receive complaints, and investigate all but ``certain''
claims against Federal administrative agencies. VBIA Sec. 204(a). For
those ``certain'' claims, defined in the VBIA as USERRA claims that
also involve a ``prohibited personnel practice'' in violation of 5
U.S.C. 1212 (VBIA Sec. 204(b)) or USERRA claims filed by claimants with
odd-numbers social security numbers (VBIA Sec. 204(c)), the Department
must first identify and then refer such claims to OSC. VBIA Sec.
204(a). Including OSC as a primary contact point in the text of the
notice, as suggested by the comment, may confuse claimants, delay the
processing of claims, and ultimately hinder the utility of the
demonstration project. It is crucial that the text of the notice
provide simple, clear, and accurate information and guidance about
contacting DOL, the initial and the primary contact agency for all
USERRA problems. By contrast, while the DOL will include on the
poster's borders other agencies' insignia and telephone numbers to
reflect the unique multi-agency partnership at work, those depictions
do not provide substantive advice to individuals on actions to take
with USERRA-related problems and therefore do not result in potential
confusion to individuals needing USERRA assistance or a delay in
processing their claims.
The Department received a comment from an attorney employed by the
Federal Emergency Management Agency (FEMA). This comment seeks mention
of USERRA protection for members of the National Disaster Medical
System (NDMS). Under 42 U.S.C. 300hh-11(e)(3), a section of the statute
that created the NDMS, certain service in the NDMS is considered to be
service in the uniformed services for the purposes of USERRA, although
the appointee is not considered to be a member of the uniformed
services. Because this service is the only USERRA-covered service not
contained in USERRA itself and, as a result, may be overlooked, the
Department has modified the proposed text of the notice in response to
this comment.
Another comment sought guidance on the logistics of employer
posting: How long must a USERRA poster remain on a bulletin board; can
new employees be notified by e-mail, and if so, how often must they be
notified; and, will some combination of e-mail notice and internet
posting suffice? The VBIA requires only that employers ``provide'' to
their employees a notice of their rights and benefits under USERRA, and
compliance with this requirement may be met by posting a notice of such
rights and benefits ``where employee notices are customarily placed.''
38 U.S.C. 4334. There are a number of alternative means by which an
employer may achieve compliance with this requirement, and the
Department does not want to unduly restrict the use of all alternatives
by sanctioning some but not others. As a result, the Department advises
employers to use their best judgment and discretion in determining the
means by which to provide notice to employees of their rights under
USERRA and in achieving compliance with the notice requirement.
Another comment recommends that the Department include the text of
the notice of rights in two particular locations on its Web site. The
text of the notice is available on the VETS Web site at http://www.dol.gov/vets/programs/userra/poster.htm
and on the Department's
elaws Web site at http://www.dol.gov/elaws/userra.htm.
The final comment received requests that the text of the notice
advise that ``spouses and dependants'' of service members are protected
against discrimination and retaliation. USERRA's anti-discrimination
provisions protect those individuals that are a past or present member
of the uniformed service, have applied for membership in the uniformed
service, or are obligated to serve in the uniformed service. USERRA's
anti-retaliation provisions protect those individuals that assist in
the enforcement of USERRA rights, including testifying or making a
statement in connection with a proceeding under USERRA, even if that
person has no service connection. In those cases in which spouses and
dependents of individuals serving in the uniformed service themselves
meet these requirements, USERRA's protections would apply, and the text
of the notice makes clear these prerequisites. To the extent that the
comment seeks an affirmative statement that spouses and dependents are
protected from discrimination by their own employers because they are
related to an individual covered by USERRA, such a request exceeds the
coverage of the statute.
[[Page 75315]]
II. Administrative Information
Executive Order 12866--Regulatory Planning and Review
The final rule has been drafted and reviewed in accordance with
Executive Order 12866, section 1(b), Principles of Regulation. The
Department has determined that this proposed rule is not an
``economically significant'' regulatory action under section 3(f)(1) of
Executive Order 12866. Based on a preliminary analysis of the data, the
rule is not likely to: (1) Have an annual effect on the economy of $100
million; (2) create a serious inconsistency or otherwise interfere with
an action taken or planned by another agency; or (3) materially alter
the budgetary impact of entitlements, grants, user fees, or loan
programs or the rights and obligations of recipients thereof. As a
result, the Department has concluded that a full economic impact and
cost/benefit analysis is not required for the final rule under Section
6(a)(3) of the Order.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act, Public Law 96-354 (94 Stat.
1164; 5 U.S.C. 601 et seq.), Federal agencies are required to analyze
the anticipated impact of proposed rules on small entities. VETS has
notified the Chief Counsel for Advocacy, Small Business Administration,
and made the certification pursuant to the Regulatory Flexibility Act
at 5 U.S.C. 605(b), that this final rule will not have a significant
economic impact on a substantial number of small entities.
The basis for that certification is that this final rule will not
have a significant economic impact on any employers because it only
makes available to them information required to be posted or
disseminated by statute. This information concerns employee rights,
benefits, and obligations already available under Federal law.
Accordingly, VETS concludes that the final rule will not have a
significant economic impact on a substantial number of small business
entities. Therefore, under the Regulatory Flexibility Act, 5 U.S.C.
605(b), a regulatory flexibility analysis is not required.
The Internal Revenue Service received 29,916,033 business tax
returns in Fiscal Year 2003. http://www.irs.gov/pub/irs-soi/03db03nr.xls.
The Small Business Administration (SBA) estimates that of
all business tax returns filed, approximately 23 percent are filed by
firms that employ employees http://www.sba.gov/advo/laws/rfaguide.pdf.
As a result, taking 23 percent of the 29.9 million returns filed in FY
2003, there were approximately 6,880,690 private employers with
employees in FY 2003. For purposes of comparison, the U.S. Census
Bureau cites a figure of at least 7,743,444 business establishments
with employees for the year 2002, the most recent year for which such
statistics are available. See http://www.census.gov/econ/census02/advance/TABLE1.HTM.
Consequently, VETS estimates that in FY2005 fewer
than 8,000,000 private employers with employees are potentially covered
by this final rule. Assuming a cost of $0.15 for reproducing a copy of
the notice and 0.1 hour of clerical time at $19.05 per hour (based on
National Compensation Survey: Occupational Wages in the United States,
July 2002, Bureau of Labor Statistics, U.S. Department of Labor, June
2003) to post or otherwise disseminate the notice, the per-employer
cost for providing employees the notice contained in this rule is
approximately $2.00 and the total cost for all private employers to
comply is less than $16,000,000. Consequently, VETS concludes that the
cost of compliance will not have a significant economic impact on a
substantial number of small entities.
Unfunded Mandates Reform Act of 1995
This final rule will not result in the expenditure by State, local,
and tribal governments, in the aggregate, or by the private sector, of
$100 million or more in any one year, and it will not significantly or
uniquely affect small governments. USERRA applies to all public
employers. The Census Bureau lists a total of 265,641 state and local
governments in its 2002 Compendium of Public Employment; http://www.census.gov/prod/2004pubs/gc023x2.pdf.
Consequently, VETS estimates
that fewer than 300,000 state and local employers are covered by this
final rule. Assuming a cost of $0.15 for reproducing a copy of the
notice and 0.1 hour of clerical time at $19.05 per hour (based on
National Compensation Survey: Occupational Wages in the United States,
July 2002, Bureau of Labor Statistics, U.S. Department of Labor, June
2003) to post or otherwise disseminate the notice, the per-employer
cost for providing employees the notice contained in this rule is less
than $2.00 and the total cost for all state and local employers to
comply is less than $600,000, and as discussed above the total cost for
all private employers to comply is less than $16,000,000. Therefore, no
actions are necessary under the provisions of the Unfunded Mandates
Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This final rule is not a major rule as defined by section 804 of
the Small Business Regulatory Enforcement Act of 1996 (SBREFA). The
standards for determining whether a rule is a major rule as defined by
section 804 of SBREFA are similar to those used to determine whether a
rule is an ``economically significant regulatory action'' within the
meaning of Executive Order 12866. Because VETS certified that this
final rule is not an economically significant rule under Executive
Order 12866, VETS certifies that it also is not a major rule under
SBREFA. It will not result in an annual effect on the economy of $100
million or more; a major increase in costs or prices; or significant
adverse effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign-based companies in domestic and export markets.
Executive Order 13132--Federalism
This final rule will not have a substantial direct effect on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, VETS has determined that this final rule does not have
sufficient federalism implications to warrant the preparation of a
summary impact statement.
Paperwork Reduction Act
The public disclosure of information supplied by the Federal
government to the recipient for the purpose of disclosure to the public
is not included within the definition of ``collection of information''
under the Paperwork Reduction Act (PRA). See 5 CFR 1320.3(c)(2). Here,
the notice made available by this final rule is supplied by the
Department of Labor. Consequently, the Department concludes that the
Paperwork Reduction Act is inapplicable to this final rule.
Congressional Review Act
Consistent with the Congressional Review Act, 5 U.S.C. 801, et
seq., the Department will submit to Congress and to the Comptroller
General of the United States, a report regarding the issuance of this
Final Rule prior to the effective date set forth at the outset of this
document.
OMB has determined that this rule is not a ``major rule'' as
defined by the Congressional Review Act (Section 804 of the Small
Business Regulatory
[[Page 75316]]
Enforcement Fairness Act of 1996). This rule will not result in an
annual effect on the economy of $100,000,000 or more; a major increase
in costs or prices; or significant adverse effects on competition,
employment, investment, productivity, innovation, or on the ability of
United States-based companies to compete with foreign-based companies
in domestic and export markets.
List of Subjects in 20 CFR Part 1002
Administrative practice and procedure, Employment, Enforcement,
Labor, Veterans, and Working Conditions.
0
For the reasons stated in the Preamble, the Veterans' Employment and
Training Service, Department of Labor, amends part 1002 to chapter IX
of title 20 of the Code of Federal Regulations to read as follows:
PART 1002--REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND
REEMPLOYMENT RIGHTS ACT OF 1994
0
1. The authority citation for part 1002 continues to read as follows:
Authority: Veterans Benefits Improvement Act of 2004 (VBIA),
Pub. L. 108-454 (Dec. 10, 2004), 38 U.S.C. 4334.
0
2. The appendix to part 1002 is revised to read as follows:
Appendix to Part 1002--Notice of Your Rights Under USERRA
Pursuant to 38 U.S.C. 4334(a), each employer shall provide to
persons entitled to rights and benefits under USERRA a notice of the
rights, benefits, and obligations of such persons and such employers
under USERRA. The requirement for the provision of notice under this
section may be met by the posting of one of the following notices
where employers customarily place notices for employees. The
following texts are provided by the Secretary of Labor to employers
pursuant to 38 U.S.C. 4334(b). Text A is appropriate for use by
employers in the private sector and for State government employers.
Text B is appropriate for use by Federal Executive Agencies.
Text A--For Use by Private Sector and State Government Employers
Your Rights Under USERRA
A. The Uniformed Services Employment and Reemployment Rights Act
USERRA protects the job rights of individuals who voluntarily or
involuntarily leave employment positions to undertake military
service or certain types of service in the National Disaster Medical
System. USERRA also prohibits employers from discriminating against
past and present members of the uniformed services, and applicants
to the uniformed services.
B. Reemployment Rights
You have the right to be reemployed in your civilian job if you
leave that job to perform service in the uniformed service and:
You ensure that your employer receives advance written
or verbal notice of your service;
You have five years or less of cumulative service in
the uniformed services while with that particular employer;
You return to work or apply for reemployment in a
timely manner after conclusion of service; and
You have not been separated from service with a
disqualifying discharge or under other than honorable conditions.
If you are eligible to be reemployed, you must be restored to
the job and benefits you would have attained if you had not been
absent due to military service or, in some cases, a comparable job.
C. Right To Be Free From Discrimination and Retaliation
If you:
Are a past or present member of the uniformed service;
Have applied for membership in the uniformed service;
or
Are obligated to serve in the uniformed service;
then an employer may not deny you
Initial employment;
Reemployment;
Retention in employment;
Promotion; or
Any benefit of employment.
because of this status.
In addition, an employer may not retaliate against anyone
assisting in the enforcement of USERRA rights, including testifying
or making a statement in connection with a proceeding under USERRA,
even if that person has no service connection.
D. Health Insurance Protection
If you leave your job to perform military service, you
have the right to elect to continue your existing employer-based
health plan coverage for you and your dependents for up to 24 months
while in the military.
Even if you don't elect to continue coverage during
your military service, you have the right to be reinstated in your
employer's health plan when you are reemployed, generally without
any waiting periods or exclusions (e.g., pre-existing condition
exclusions) except for service-connected illnesses or injuries.
E. Enforcement
The U.S. Department of Labor, Veterans' Employment and
Training Service (VETS) is authorized to investigate and resolve
complaints of USERRA violations.
For assistance in filing a complaint, or for any other
information on USERRA, contact VETS at 1-866-4-USA-DOL or visit its
Web site at http://www.dol.gov/vets An interactive online USERRA Advisor can be viewed at http://www.dol.gov/elaws/userra.htm.
If you file a complaint with VETS and VETS is unable to
resolve it, you may request that your case be referred to the
Department of Justice for representation.
You may also bypass the VETS process and bring a civil
action against an employer for violations of USERRA.
The rights listed here may vary depending on the circumstances.
The text of this notice was prepared by VETS, and may be viewed on
the Internet at this address: http://www.dol.gov/vets/programs/userra/poster.htm.
Federal law requires employers to notify
employees of their rights under USERRA, and employers may meet this
requirement by displaying the text of this notice where they
customarily place notices for employees.
Text B--For Use by Federal Executive Agencies
Your Rights Under USERRA
A. The Uniformed Services Employment and Reemployment Rights Act
USERRA protects the job rights of individuals who voluntarily or
involuntarily leave employment positions to undertake military
service or certain types of service in the National Disaster Medical
System. USERRA also prohibits employers from discriminating against
past and present members of the uniformed services, and applicants
to the uniformed services.
B. Reemployment Rights
You have the right to be reemployed in your civilian job if you
leave that job to perform service in the uniformed service and:
You ensure that your employer receives advance written
or verbal notice of your service;
You have five years or less of cumulative service in
the uniformed services while with that particular employer;
You return to work or apply for reemployment in a
timely manner after conclusion of service; and
You have not been separated from service with a
disqualifying discharge or under other than honorable conditions.
If you are eligible to be reemployed, you must be restored to
the job and benefits you would have attained if you had not been
absent due to military service or, in some cases, a comparable job.
C. Right To Be Free From Discrimination and Retaliation
If you:
Are a past or present member of the uniformed service;
Have applied for membership in the uniformed service;
or
Are obligated to serve in the uniformed service;
then an employer may not deny you
Initial employment;
Reemployment;
Retention in employment;
Promotion; or
Any benefit of employment.
because of this status.
In addition, an employer may not retaliate against anyone
assisting in the enforcement of USERRA rights, including testifying
or making a statement in connection with a proceeding under USERRA,
even if that person has no service connection.
[[Page 75317]]
D. Health Insurance Protection
If you leave your job to perform military service, you
have the right to elect to continue your existing employer-based
health plan coverage for you and your dependents for up to 24 months
while in the military.
Even if you don't elect to continue coverage during
your military service, you have the right to be reinstated in your
employer's health plan when you are reemployed, generally without
any waiting periods or exclusions (e.g., pre-existing condition
exclusions) except for service-connected illnesses or injuries.
E. Enforcement
The U.S. Department of Labor, Veterans' Employment and
Training Service (VETS) is authorized to investigate and resolve
complaints of USERRA violations.
For assistance in filing a complaint, or for any other
information on USERRA, contact VETS at 1-866-4-USA-DOL or visit its
Web site at http://www.dol.gov/vets An interactive online USERRA Advisor can be viewed at http://www.dol.gov/elaws/userra.htm. In
some cases involving USERRA claims against Federal executive
agencies, a complaint filed with VETS before September 30, 2007, may
be transferred to the Office of Special Counsel for investigation
and resolution pursuant to a demonstration project established under
Section 204 of the Veterans Benefits Improvement Act of 2004, Public
Law 108-454 (Dec. 10, 2004).
If VETS is unable to resolve a complaint that has not
been transferred for investigation under the demonstration project,
you may request that your case be referred to the Office of Special
Counsel for representation.
You may also bypass the VETS process and bring a civil
action against an employer for violations of USERRA.
The rights listed here may vary depending on the circumstances.
The text of this notice was prepared by VETS, and may be viewed on
the Internet at this address: http://www.dol.gov/vets/ programs/
userra/poster.htm. Federal law requires employers to notify
employees of their rights under USERRA, and employers may meet this
requirement by displaying the text of this notice where they
customarily place notices for employees.
U.S. Department of Labor, Veterans' Employment and Training Service,
1-866-487-2365.
Signed at Washington, DC, this 8th day of December, 2005.
Charles S. Ciccolella,
Assistant Secretary for Veterans' Employment and Training.
[FR Doc. 05-23960 Filed 12-16-05; 8:45 am]
BILLING CODE 4510-79-P
|
