USERRA Regulation Update

February 21, 2006

The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. 4301-4333 was enacted by Congress to protect the rights of persons who leave employment positions to undertake military services. The Department of Labor recently issued final regulations interpreting USERRA that went into effect on January 18, 2006. 20 CFR Part 1002.210. The regulations do not impose any new obligations on employers. However, the regulations clarify a number of issues and provide guidance on provisions of USERRA that were previously not interpreted by the DOL or the Courts.
Eligibility for Reemployment
One fundamental component of USERRA is to provide service members the right to reemployment at their previous job once military service is complete. USERRA requires the service member meet five general criteria in order to establish eligibility for reemployment:

That the service member be absent from a position of civilian employment by reason of service in the uniformed services;
That the service member s employer be given advance notice of the service;
That the service member have five years or less of cumulative service in the uniformed services with respect to a position of employment with a particular employer;
That the service member return to work or apply for reemployment in a timely manner after conclusion of service; and
That the service member not have been separated from service with a disqualifying discharge or under other than honorable conditions.

Generally, if the service member is entitled to reinstatement after leave, the employer is required to place the service member in the job the person would have held had the person remained continuously employed, or a position of equivalent seniority, status, and pay so long as the person is qualified for the job, or can become qualified after reasonable efforts by the employer to qualify the person. If the service member becomes disabled while on military leave, the employer must make a reasonable effort to accommodate the person’s disability so the person can perform the position the person would have held if the person had remained continuously employed.
Benefits While on Leave
Under USERRA, an employer is required to treat the employee as if he or she is on a leave of absence. The employee is entitled to employment rights and benefits that are available to any other employee having similar seniority, status, and pay who is on furlough or a leave of absence. For example, if the employer offers continued life insurance coverage, holiday pay, bonuses, or other non-seniority benefits to its employees on furlough or leave of absence, the employer must also offer the service member similar benefits during the time he or she is absent from work due to military service. If the employer has more than one kind of non-military leave and varies the level and type of benefits provided according to the type of leave used, the comparison should be made with the employer s most generous form of comparable leave. However, an employee who is absent from a position of employment by reason of service is not entitled to greater benefits than would be generally provided to a similarly situated employee on non-military furlough or leave of absence.
USERRA provides for the continuation of health benefit coverage for persons who are absent from work to serve in the military. If a person’s health plan coverage would terminate because of an absence due to military service, the person may elect to continue the health plan coverage for up to 24 months after the absence begins, or the period of absence, whichever is shorter. On return from service, health insurance coverage must be reinstated without any waiting period or exclusions for preexisting conditions, other than waiting periods or exclusions that would have applied even if there had been no absence for uniformed service.
Burden of Proof for Showing Violation of USERRA
In the new regulations, the Department of Labor clarified the burden of proof necessary to prove that a violation of USERRA has occurred. Section 1002.22 explains who has the burden of proving that a violation of the statute has occurred. Under this structure, in order to establish a case of employer discrimination, the person’s membership, application for membership, performance of service, application for service, or obligation for service in the uniformed services must be a “motivating factor” in the employer’s actions or conduct. The initial burden of proving discrimination or retaliation rests with the person alleging discrimination. A person alleging discrimination under USERRA must first establish that his or her protected activities or status as a past, present or future service member was a motivating factor in the adverse employment action. The claimant alleging discrimination must prove the elements of a violation: (1) membership in a protected class; (2) an adverse employment action by the employer or prospective employer; (3) a causal relationship between the claimant s protected status and the adverse employment action. To meet this burden, a claimant need not show that his or her protected activities or status was the sole cause of the employment action; the person s activities or status need be only one of the factors that a truthful employer would list if asked for the reasons for its decision.
The employee is not required to provide direct proof of employer animus. Intent to discriminate or retaliate may be established through circumstantial evidence. After the employee establishes the elements of an alleged violation, the employer may avoid liability by proving by a preponderance of the evidence that the claimant’s military activities or status was not a motivating factor in the adverse employment action. At this stage, the employer carries the burden to prove as an affirmative defense that it would have taken the action anyway, without regard to the employee’s protected status or activity.
Remedies for USERRA Violation
In the event an employer is found to have violated USERRA, an employee may be awarded the following remedies: Reinstatement of employment

Back pay
Lost benefits
Corrected personnel files
Lost promotional opportunities
Retroactive seniority
Pension adjustments
Restored vacation

If you have questions regarding the above, please contact Sara Ackermann, the author of this article, or any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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This document provides information of a general nature regarding legislative or other legal developments, and is based on the state of the law at the time of the original publication of this article. None of the information contained herein is intended as legal advice or opinion relative to specific matters, facts, situations, or issues, and additional facts and information or future developments may affect the subjects addressed. You should not act upon the information in this document without discussing your specific situation with legal counsel.

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