[Federal Register: October 27, 2008 (Volume 73, Number 208)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF LABOR
Veterans' Employment and Training Service
20 CFR Part 1002
[Docket No. VETS-U-04]
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.
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This rulemaking is therefore deleting this outdated reference from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: firstname.lastname@example.org. 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:
email@example.com. 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.
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
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
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
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).
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
Are a past or present member of the uniformed service;
Have applied for membership in the uniformed service;
Are obligated to serve in the uniformed service; then
an employer may not deny you
Retention in employment;
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.
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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