Better Late Than Never - law designed to protect the employment rights of military service members

Since 12-25-05

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Better Late Than Never

By Daniel Pulliam

More than a decade after the passage of a law designed to protect the employment rights of military service members, the Labor Department has finalized the first-ever set of regulations addressing its implementation.

The 1994 Uniformed Services Employment and Re-employment Act builds on the Veterans' Re-employment Rights law passed in the 1940s by barring discrimination against military members and veterans, and by establishing re-employment rights for those who want to return to the jobs they held prior to serving. Written by the Veterans' Employment and Training Service, the rules are intended to explain and clarify the 1994 law.

The nearly 70-page document was published in the Federal Register Monday and will take effect on Jan. 18. The regulations come at a time when the mobilization of National Guard and Reserve service members is the largest since World War II, with a total of 529,310 called to duty since the Sept. 11, 2001, terrorist attacks. Complaints of USERRA violations are correspondingly on the rise, though there was a dip in fiscal 2005.

In fiscal 2002, there was a 35 percent jump over the previous year in the number of cases opened. This was followed by increases of about 10 percent each year until fiscal 2005 when there was a 9 percent drop. According to a Labor spokesman, a lack of awareness and understanding has been the biggest cause of USERRA complaints. The law is "very complicated," he said.

The new regulations "provide comprehensive guidance on USERRA, which works to preserve the seniority, promotion, health care, pension and other benefits of our citizen soldiers when they return home to the jobs they left to serve our country," Labor Secretary Elaine Chao said in a statement.

Publication of regulations was mandated in the original USERRA law, but Labor did not complete a draft until Sept. 20, 2004. It yielded 80 comments from a variety of sources, including Rep. John Boehner, R-Ohio, chairman of the House Education and Workforce Committee, who commended Labor for "undertaking this most important endeavor."

A report published last year by the American Bar Association was critical of USERRA enforcement efforts. The Veterans' Employment and Training Service, which is charged with reviewing initial complaints of USERRA violations, was taking too long to investigate cases, according to the report.

The new regulations address some key issues, but time will tell on others, said John Odom Jr., a partner in the Shreveport, La.-based law firm Jones, Odom, Davis & Politz and a retired Air Force Reserve colonel who served as a judge advocate. Odom wrote the USERRA section of ABA's report. "It's a very interesting piece of work product," Odom said of the regulations.

"Every practitioner is going to be thrilled that [they] have finally emerged." Odom said the rules will not please everyone and won't cover every situation, but represent a major step forward. "We now have some teeth in the way of regulations, to argue with and to argue to employers about, on many specifics," he said.

The regulations are written in plain English and were intended to be used by human resource departments and not lawyers, because USERRA works best with voluntary compliance as opposed to lawsuits, Odom said. The Labor Department's Veterans' Employment and Training Service typically is the first to see complaints that the law has been violated.

But in February 2005, the Office of Special Counsel began investigating the USERRA claims of federal workers with Social Security numbers ending in an odd-numbered digit.     The effort was a demonstration project and was intended to relieve some of Labor's burden. Labor has continued to handle state and local government claims.   

Odom said the appointment of Special Counsel Scott Bloch to head OSC has made a world of difference in improving USERRA enforcement. He also noted that the Labor and Justice departments have put together a working group tasked with representing service members in USERRA cases.   

Along with the final regulations, Labor has also published the final version of information leaflets--one for federal workers and another for the http://www.govexec.com/dailyfed/1205/122305lb.htm

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