VETS Final Rules

Veterans' Employment and Training Service   [10/27/2008]
[PDF]
FR Doc E8-25447
[Federal Register: October 27, 2008 (Volume 73, Number 208)]
[Rules and Regulations]               
[Page 63631-63632]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27oc08-8]                         


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DEPARTMENT OF LABOR

Veterans' Employment and Training Service

20 CFR Part 1002

[Docket No. VETS-U-04]
RIN 1293-AA14

 
Regulations Under the Uniformed Services Employment and 
Reemployment Rights Act of 1994; Correction

AGENCY: Veterans' Employment and Training Service (VETS), Labor.

ACTION: Amendment to final rule.

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SUMMARY: In this rulemaking, the Veterans' Employment and Training 
Service (VETS) is correcting and consolidating the text in parts A and 
B of the appendix to 20 CFR part 1002 (``Notice of Your Rights Under 
USERRA''). VETS published the appendix on March 10, 2005 in response to 
the Veterans Benefits Improvement Act of 2004 (VBIA). The VBIA amended 
the Uniformed Services Employment and Reemployment Rights Act of 1994 
(USERRA) by requiring employers to notify affected employees of the 
rights, benefits, and obligations of employees and employers under 
USERRA. As published, the text of the required USERRA rights notice 
included information about a temporary demonstration project 
established under the VBIA that called for VETS to transfer to the 
Office of Special Counsel some claims brought against Federal executive 
agencies. The demonstration project ended on December 31, 2007.
    This rulemaking is therefore deleting this outdated reference from 
the text of the USERRA rights notice. In addition, this rulemaking is 
consolidating the text in parts A and B of the required USERRA rights 
notice to eliminate the need for separate notices for Federal and non-
Federal agency employers. This rulemaking does not require employers to 
replace the notices currently in use because, even without this 
correction and consolidation, the current notices comply with the 
USERRA employee-notification requirements.

DATES: Effective Date: The correction issued under this rulemaking is 
effective on October 27, 2008.

FOR FURTHER INFORMATION CONTACT: For information about this correction 
notice, contact Mr. Kenan Torrans, Office of Operations and Programs, 
Veterans' Employment and Training Service, U.S. Department of Labor, 
Room S-1316, 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 Mr. 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 these telephone numbers via TTY by calling the toll-free 
Federal Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

    The Uniformed Services Employment and Reemployment Rights Act of 
1994 (USERRA) (38 U.S.C. 4301-4334) 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 assurance 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.
    The Veterans Benefits Improvement Act of 2004 (VBIA), Public Law 
No. 108-454 (Dec. 10, 2004), amended several provisions of USERRA. In 
part, the VBIA required 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].

(38 U.S.C. 4334.) The VBIA required the Department of Labor to make 
available to employers the text of the USERRA rights notice. DOL, 
through the Veterans' Employment and Training Service (VETS), published 
an interim final rule in the Federal Register providing the text of the 
USERRA rights notice on March 10, 2005 (70 FR 12106), and published the 
final rule on December 19, 2005 (70 FR 75313).
    The VBIA also established a demonstration project under which VETS 
would transfer about half of the USERRA claims brought against Federal 
executive agencies to the Office of Special Counsel (OSC) for 
investigation and resolution. The demonstration project began on 
February 8, 2005, and ended on December 31, 2007.
    Because of OSC's role in investigating and resolving certain 
complaints against Federal agency employers during the demonstration 
project, VETS made available two separate texts of the USERRA rights 
notice--one for use by private-sector and State-government employers 
(Text A), and one for Federal executive agencies (Text B). The USERRA 
rights notice used by Federal executive agencies expressly referenced 
OSC's role in investigating and resolving certain complaints against 
such agencies during the demonstration project:

    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 No. 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.

    Because the demonstration project ended by operation of law on 
December 31, 2007, VETS, through this rulemaking, is correcting the 
Federal USERRA rights notice by deleting the reference to the 
demonstration project. VETS is also consolidating the text relating to 
enforcement of claims in parts A and B of the USERRA rights notice 
because there is no longer a need for separate notices for Federal and 
non-Federal agency employers. However, posting one of the original 
USERRA rights notices published on December 19, 2005, will continue to 
comply with the USERRA notice requirement because the conditional 
language of the reference to the demonstration project does not affect 
the remaining substantive information in the Federal USERRA rights 
notice. The text of either the original or corrected Federal USERRA 
rights notice will meet the requirements of the law.

II. Exemption From Notice-and-Comment Procedures

    VETS has determined that the correction made by this rulemaking is 
not subject to the procedures for public notice-and-comment rulemaking 
specified under the Administrative Procedure Act because the correction 
is a general statement of policy under 5 U.S.C. 553(b)(3)(A), and does 
not affect the substantive requirements or coverage of 20 CFR 1002 
(``Regulations Under the Uniformed Services Employment and Reemployment 
Rights Act of 1994''). This correction notice does not modify or revoke 
existing rights and obligations of employees or

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employers, and it does not establish new rights and obligations (see 
Public Citizen v. Department of State, 276 F.3d 634, 640-41 (D.C. Cir. 
2002); American Hospital Ass'n v. Bowen, 834 F.2d 1037, 1047 (D.C. Cir. 
1987)). Under this rulemaking, VETS is merely consolidating and 
correcting conditional, outdated information contained in the appendix 
to its USERRA regulations, and permitting employers to retain the 
current, uncorrected notices that inform employees of the rights, 
benefits, and obligations of employees and employers under USERRA.
    This rulemaking imposes no economic burden on employers subject to 
USERRA employee-notification requirements because covered employers can 
comply with these requirements by posting in the workplace the text of 
the original USERRA rights notice provided by VETS in a previous 
rulemaking. Further, this rule results in no burdens under the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.) or the Unfunded 
Mandates Reform Act (2 U.S.C. 1501 et seq.), and is not a significant 
regulatory action under section 3(f) of Executive Order 12866 (58 FR 
51735; September 30, 1993).

List of Subjects in 20 CFR Part 1002

    Administrative practice and procedure, Employment, Enforcement, 
Labor, Veterans, Working conditions.

    Authority: 38 U.S.C. 4331(a), 4334(b); Secretary of Labor's 
Order No. 03-2004.

    Signed at Washington, DC, on October 9, 2008.
John M. McWilliam,
Deputy Assistant Secretary of Labor for Veterans' Employment and 
Training.


0
Based on the explanations provided by the preamble, VETS is amending 20 
CFR part 1002 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: Section 4331(a) of the Uniformed Services Employment 
and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. 4331(a) 
(Pub. L. 103-353, 108 Stat. 3150).


0
2. Revise the Appendix to part 1002 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 posting the following notice where employers 
customarily place notices for employees. Posting one of the original 
notices published in 70 FR 75316 (Dec. 19, 2005) will also satisfy 
this requirement. The following text is provided by the Secretary of 
Labor to employers pursuant to 38 U.S.C. 4334(b).

Text for Use by All 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 do not 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 or the Office of Special Counsel, as 
applicable, 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.

[FR Doc. E8-25447 Filed 10-24-08; 8:45 am]

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