cfr_sections
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182 rows where agency = "SSA-OIG" and title_number = 20 sorted by section_id
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| section_id ▼ | title_number | title_name | chapter | subchapter | part_number | part_name | subpart | subpart_name | section_number | section_heading | agency | authority | source_citation | amendment_citations | full_text |
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| 20:20:4.0.5.3.2.1.117.1 | 20 | Employees' Benefits | IX | 1001 | PART 1001—SERVICES FOR VETERANS | A | Subpart A—Purpose and Definitions | 1001.100 | § 1001.100 Purpose and scope of subpart. | SSA-OIG | 29 U.S.C. 49k; 38 U.S.C. chapters 41 and 42. | [49 FR 12919, Mar. 30, 1984. Redesignated and amended at 54 FR 39353, Sept. 26, 1989] | (a) This subpart contains the Department of Labor's regulations for implementing 38 U.S.C. 2001-2012, chapters 41 and 42, which require the Secretary of Labor to provide eligible veterans and eligible persons the maximum of employment and training opportunities, with priority given to the needs of disabled veterans and veterans of the Vietnam era, through the public employment service system established pursuant to the Wagner-Peyser Act, as amended. (b) This subpart describes the roles and responsibilities of the Assistant Secretary for Veterans' Employment and Training (ASVET) and the staff of the Veterans' Employment and Training Service (VETS). (c) This subpart describes the performance standards for determining compliance of State agencies in carrying out the provisions of 38 U.S.C., chapters 41 and 42 with respect to: (1) Providing services to eligible veterans and eligible persons to enhance their employment prospects, (2) Priority referral of special disabled veterans and veterans of the Vietnam era to job openings listed by Federal contractors pursuant to 38 U.S.C. 2012(a), and (3) Reporting of services provided to eligible veterans and eligible persons pursuant to 38 U.S.C. 2007(c) and 2012(c). (d) Performance standards are contained in this part at §§ 1001.140-1001.142 on the conduct of the Disabled Veterans Outreach Program (DVOP) in accordance with 38 U.S.C. 2003A. | ||
| 20:20:4.0.5.3.2.1.117.2 | 20 | Employees' Benefits | IX | 1001 | PART 1001—SERVICES FOR VETERANS | A | Subpart A—Purpose and Definitions | 1001.101 | § 1001.101 Definitions of terms used in subpart. | SSA-OIG | 29 U.S.C. 49k; 38 U.S.C. chapters 41 and 42. | [49 FR 12919, Mar. 30, 1984. Redesignated and amended at 54 FR 39353, Sept. 26, 1989] | Assistant Secretary for Veterans' Employment and Training (ASVET) shall mean the official of the Department of Labor as described in § 1001.110 of this part. Assistant State Director for Veterans' Employment and Training Service (ASDVETS) shall mean a Federal employee who is designated as an assistant to a State Director for Veterans' Employment and Training Service (SDVETS). Disabled Veteran shall mean a veteran who is entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Veterans Administration and whos not classified as a Special Disabled Veteran. Eligible person shall mean: (1) The spouse of any person who died of a service-connected disability; or (2) The spouse of any member of the armed forces serving on active duty who at the time of application for assistance under this subpart, is listed, pursuant to 37 U.S.C. 556 and the regulations issued thereunder, by the Secretary concerned, in one or more of the following categories and has been so listed for a total of more than 90 days: (i) Missing in action, (ii) captured in line of duty by a hostile force, or (iii) forcibly detained or interned in line of duty by a foreign government or power; or (3) The spouse of any person who has a total disability permanent in nature resulting from a service-connected disability or the spouse of a veteran who died while a disability so evaluated was in existence. Eligible veteran shall mean a person who (1) served on active duty for a period of more than 180 days and was discharged or released therefrom with other than a dishonorable discharge, or (2) was discharged or released from active duty because of a service-connected disability. Local Veterans' Employment Representative (LVER) shall mean a member of the State agency staff designated and assigned by the State agency administrator to serve veterans and eligible persons pursuant to this subpart. Regional Director for Veterans' Employment and Training Service (RDVETS… | ||
| 20:20:4.0.5.3.2.2.117.1 | 20 | Employees' Benefits | IX | 1001 | PART 1001—SERVICES FOR VETERANS | B | Subpart B—Federal Responsibilities | 1001.110 | § 1001.110 Role of the Assistant Secretary for Veterans' Employment and Training (ASVET). | SSA-OIG | 29 U.S.C. 49k; 38 U.S.C. chapters 41 and 42. | [49 FR 12919, Mar. 30, 1984. Redesignated at 54 FR 39353, Sept. 26, 1989] | (a) As the principal veterans' advisor to the Secretary of Labor, the ASVET shall formulate, promulgate, and administer policies, regulations, grant procedures, grant agreements and administrative guidelines and administer them through the Veterans' Employment and Training Service (VETS) so as to provide eligible veterans and eligible persons the maximum of employment and training opportunities, with priority given to the needs of disabled veterans and veterans of the Vietnam era, through existing programs, coordination, and merger of programs and implementation of new programs. (b) ASVET shall oversee activities carried out by State agencies pursuant to 38 U.S.C., chapters 41 and 42. (c) ASVET shall ensure that appropriate records and reports are maintained by State agencies within their management information systems to fulfill their obligations under this subpart. | ||
| 20:20:4.0.5.3.2.3.117.1 | 20 | Employees' Benefits | IX | 1001 | PART 1001—SERVICES FOR VETERANS | C | Subpart C—Standards of Performance Governing State Agency Services to Veterans and Eligible Persons | 1001.120 | § 1001.120 Standards of performance governing State agency services. | SSA-OIG | 29 U.S.C. 49k; 38 U.S.C. chapters 41 and 42. | 49 FR 12919, Mar. 30, 1984, unless otherwise noted. Redesignated at 54 FR 39353, Sept. 26, 1989. | (a) To the extent required by 38 U.S.C. 2002 and other applicable law, each State agency shall assure that all of its SDPs, using LVERs and other staff, shall provide maximum employment and training opportunities to eligible veterans and eligible persons with priority given to disabled veterans and veterans of the Vietnam-era, by giving them preference over non-veterans in the provision of employment and training services available at the SDP involved. Services are those activities or efforts including but not limited to registration, counseling, referral to supportive services, job development, etc., which are directed to help applicants find jobs or training. When making referrals from the group of applicants meeting the specific eligibility criteria for a particular program, State agencies shall observe the priority order to referral in paragraph (b). (b) In making referrals of qualified applicants to job openings and training opportunities, to provide maximum employment and training opportunities under 38 U.S.C., SDPs shall observe the following order of priority: (1) Special disabled veterans; (2) Veterans of the Vietnam era; (3) Disabled veterans other than special disabled veterans; (4) All other veterans and eligible persons; and (5) Nonveterans. | ||
| 20:20:4.0.5.3.2.3.117.2 | 20 | Employees' Benefits | IX | 1001 | PART 1001—SERVICES FOR VETERANS | C | Subpart C—Standards of Performance Governing State Agency Services to Veterans and Eligible Persons | 1001.121 | § 1001.121 Performance standard on facilities and support for Veterans' Employment and Training Service (VETS) staff. | SSA-OIG | 29 U.S.C. 49k; 38 U.S.C. chapters 41 and 42. | 49 FR 12919, Mar. 30, 1984, unless otherwise noted. Redesignated at 54 FR 39353, Sept. 26, 1989. | Each State agency shall provide adequate and appropriate facilities and administrative support such as office space, furniture, telephone, equipment, and supplies to VETS staff. | ||
| 20:20:4.0.5.3.2.3.117.3 | 20 | Employees' Benefits | IX | 1001 | PART 1001—SERVICES FOR VETERANS | C | Subpart C—Standards of Performance Governing State Agency Services to Veterans and Eligible Persons | 1001.122 | § 1001.122 Reporting and budget requirements. | SSA-OIG | 29 U.S.C. 49k; 38 U.S.C. chapters 41 and 42. | 49 FR 12919, Mar. 30, 1984, unless otherwise noted. Redesignated at 54 FR 39353, Sept. 26, 1989. | (a) State agencies shall provide RDVETS, SDVETS, and ASDVETS with access to regular and special internal State agency reports which relate in whole or in part with services to veterans and/or eligible persons. (b) Each State agency shall make reports and prepare budgets pursuant to instructions issued by the ASVET and in such format as the ASVET shall prescribe. | ||
| 20:20:4.0.5.3.2.3.117.4 | 20 | Employees' Benefits | IX | 1001 | PART 1001—SERVICES FOR VETERANS | C | Subpart C—Standards of Performance Governing State Agency Services to Veterans and Eligible Persons | 1001.123 | § 1001.123 Performance standards governing the assignment and role of Local Veterans' Employment Representatives (LVERs). | SSA-OIG | 29 U.S.C. 49k; 38 U.S.C. chapters 41 and 42. | 49 FR 12919, Mar. 30, 1984, unless otherwise noted. Redesignated at 54 FR 39353, Sept. 26, 1989. | [49 FR 12919, Mar. 30, 1984. Redesignated and amended at 54 FR 39353, Sept. 26, 1989] | (a) To carry out the requirements of 38 U.S.C. 2004, at least one member of each State agency staff, preferably an eligible veteran, shall be designated and assigned by each State agency administrator as a full-time or part-time LVER in each SDP in accordance with terms/requirements of a grant agreement approved by the ASVET. The ASVET intends to use the following criteria in establishing the terms and requirements of grant agreements: (1) At least one full-time LVER shall be assigned in each SDP which has had 1,000 new or renewed applications from veterans and eligible persons during the most recent twelve-month report period unless a waiver based on demonstrated lack of need is granted by the ASVET, and (2) At least one part-time LVER whose time shall be devoted to veterans' services in proportion to the full-time criteria shall be assigned to each SDP not meeting the criteria for full-time LVERs in paragraph (a)(1) of this section. (b) Additional full-time or part-time LVERs may be assigned based on a determination of need by the State agency administrator and in accordance with terms/requirements of a grant agreement approved by the ASVET. (c) Each LVER shall perform, at the SDP level, the duties prescribed at 38 U.S.C. 2003(c) required by 38 U.S.C. 2004. | |
| 20:20:4.0.5.3.2.3.117.5 | 20 | Employees' Benefits | IX | 1001 | PART 1001—SERVICES FOR VETERANS | C | Subpart C—Standards of Performance Governing State Agency Services to Veterans and Eligible Persons | 1001.124 | § 1001.124 Standards of performance governing State agency cooperation and coordination with other agencies and organizations. | SSA-OIG | 29 U.S.C. 49k; 38 U.S.C. chapters 41 and 42. | 49 FR 12919, Mar. 30, 1984, unless otherwise noted. Redesignated at 54 FR 39353, Sept. 26, 1989. | (a) Each State agency shall establish cooperative working relationships through written agreements with the Veterans Administration (VA) offices serving the State to maximize the use of VA employment and training programs for veterans and eligible persons. (b) All programs and activities governed by this subpart will be coordinated to the maximum extent feasible with other programs and activities under 38 U.S.C., the Wagner-Peyser Act, the Job Training Partnership Act, and other employment and training programs at the State and local level. (c) Such relationships or agreements may be described in the Governor's Coordination and Special Services Plan prepared according to section 121(b) of the Job Training Partnership Act (Pub. L. 97-300). | ||
| 20:20:4.0.5.3.2.3.117.6 | 20 | Employees' Benefits | IX | 1001 | PART 1001—SERVICES FOR VETERANS | C | Subpart C—Standards of Performance Governing State Agency Services to Veterans and Eligible Persons | 1001.125 | § 1001.125 Standards of performance governing complaints of veterans and eligible persons. | SSA-OIG | 29 U.S.C. 49k; 38 U.S.C. chapters 41 and 42. | 49 FR 12919, Mar. 30, 1984, unless otherwise noted. Redesignated at 54 FR 39353, Sept. 26, 1989. | Each SDP shall display information on the various complaint systems to advise veterans and eligible persons about procedures for filing employment service, Federal contractor, equal opportunity, and other complaints. | ||
| 20:20:4.0.5.3.2.4.117.1 | 20 | Employees' Benefits | IX | 1001 | PART 1001—SERVICES FOR VETERANS | D | Subpart D—State Employment Service Agency Compliance | 1001.130 | § 1001.130 Determination of compliance. | SSA-OIG | 29 U.S.C. 49k; 38 U.S.C. chapters 41 and 42. | 49 FR 12919, Mar. 30, 1984, unless otherwise noted. Redesignated at 54 FR 39353, Sept. 26, 1989. | [49 FR 12919, Mar. 30, 1984. Redesignated and amended at 54 FR 39353, Sept. 26, 1989] | (a) The ASVET shall have authority for applying the requirements and remedial actions necessary to implement 20 CFR part 658, subpart H. In the event of such application, references in 20 CFR part 658, subpart H, to “ETA” shall read instead “OASVET”; references to “Regional Administrator” shall read instead “RDVETS”; and references to “JS regulations” shall include this part. (b) The ASVET shall establish appropriate program and management measurement and appraisal mechanisms to ensure that the standards of performance set forth in §§ 1001.120-1001.125 of this part are met. Specific performance standards designed to measure State agency services provided to veterans and eligible persons required by § 1001.120(a) of this part will be developed administratively through negotiations between State agency administrators and SDVETS and numerical values of the standards will be published as public notices in the Federal Register. A full report of those State agencies in noncompliance with the standards of performance and their corrective action plans shall be incorporated into the Secretary's annual report to the Congress cited at § 1001.131 of this part. (c) Every effort should be made by the State agency administrator and the SDVETS to resolve all issues informally before proceeding with the formal process. (d) If it is determined by the ASVET that certain State agencies are not complying with the performance standards at §§ 1001.120-1001.125 of this part, such State agencies shall be required to provide documentary evidence to the ASVET that their failure is based on good cause. If good cause is not shown, the ASVET, pursuant to subpart H of 20 CFR part 658, shall formally designate the State agency as out of compliance, shall require it to submit a corrective action plan for the following program year, and may take other action against the State agency pursuant to subpart H of 20 CFR part 658. | |
| 20:20:4.0.5.3.2.4.117.2 | 20 | Employees' Benefits | IX | 1001 | PART 1001—SERVICES FOR VETERANS | D | Subpart D—State Employment Service Agency Compliance | 1001.131 | § 1001.131 Secretary's annual report to Congress. | SSA-OIG | 29 U.S.C. 49k; 38 U.S.C. chapters 41 and 42. | 49 FR 12919, Mar. 30, 1984, unless otherwise noted. Redesignated at 54 FR 39353, Sept. 26, 1989. | [49 FR 12919, Mar. 30, 1984. Redesignated at 54 FR 39353, Sept. 26, 1989, and amended at 54 FR 39354, Sept. 26, 1989] | The Secretary shall report, after the end of each program year, on the success of the Department and State agencies in carrying out the provisions of this part. | |
| 20:20:4.0.5.3.2.5.117.1 | 20 | Employees' Benefits | IX | 1001 | PART 1001—SERVICES FOR VETERANS | E | Subpart E—Standards of Performance Governing the Disabled Veterans Outreach Program (DVOP) | 1001.140 | § 1001.140 Administration of DVOP. | SSA-OIG | 29 U.S.C. 49k; 38 U.S.C. chapters 41 and 42. | 49 FR 12919, Mar. 30, 1984, unless otherwise noted. Redesignated at 54 FR 39353, Sept. 26, 1989. | [49 FR 12919, Mar. 30, 1984. Redesignated at 54 FR 39353, Sept. 26, 1989, and amended at 54 FR 39354, Sept. 26, 1989] | (a) The ASVET shall negotiate and enter into grant agreements within each State to carry out the requirements of 38 U.S.C. 2003A for support of a Disabled Veterans Outreach Program (DVOP) to meet the employment needs of veterans, especially disabled veterans of the Vietnam era. (b) The ASVET shall be responsible forthe supervision and monitoring of the DVOP program, including monitoring of the appointment of DVOP specialists. (c) DVOP specialists shall be in addition to and shall not supplant local veterans' employment representatives assigned under § 1001.123 of this part. | |
| 20:20:4.0.5.3.2.5.117.2 | 20 | Employees' Benefits | IX | 1001 | PART 1001—SERVICES FOR VETERANS | E | Subpart E—Standards of Performance Governing the Disabled Veterans Outreach Program (DVOP) | 1001.141 | § 1001.141 Functions of DVOP staff. | SSA-OIG | 29 U.S.C. 49k; 38 U.S.C. chapters 41 and 42. | 49 FR 12919, Mar. 30, 1984, unless otherwise noted. Redesignated at 54 FR 39353, Sept. 26, 1989. | Each DVOP specialist shall carry out the duties and functions for providing services to eligible veterans according to provisions of 38 U.S.C. 2003A (b) and (c). | ||
| 20:20:4.0.5.3.2.5.117.3 | 20 | Employees' Benefits | IX | 1001 | PART 1001—SERVICES FOR VETERANS | E | Subpart E—Standards of Performance Governing the Disabled Veterans Outreach Program (DVOP) | 1001.142 | § 1001.142 Stationing of DVOP staff. | SSA-OIG | 29 U.S.C. 49k; 38 U.S.C. chapters 41 and 42. | 49 FR 12919, Mar. 30, 1984, unless otherwise noted. Redesignated at 54 FR 39353, Sept. 26, 1989. | DVOP specialists shall be stationed at various locations in accordance with 38 U.S.C. 2003A(b)(2). | ||
| 20:20:4.0.5.3.2.6.117.1 | 20 | Employees' Benefits | IX | 1001 | PART 1001—SERVICES FOR VETERANS | F | Subpart F—Formula for the Allocation of Grant Funds to State Agencies | 1001.150 | § 1001.150 Method of calculating State basic grant awards. | SSA-OIG | 29 U.S.C. 49k; 38 U.S.C. chapters 41 and 42. | 70 FR 28406, May 17, 2005, unless otherwise noted. | (a) In determining the amount of funds available to each State, the ratio of the number of veterans seeking employment in the State to the number of veterans seeking employment in all States will be used. (b) The number of veterans seeking employment will be determined based on the number of veterans in the civilian labor force and the number of unemployed persons. The civilian labor force data will be obtained from the Current Population Survey (CPS) and the unemployment data will be obtained from the Local Area Unemployment Statistics (LAUS), both of which are compiled by the Department of Labor's Bureau of Labor Statistics. (c) Each State's basic grant allocation will be determined by dividing the number of unemployed persons in each State by the number of unemployed persons across all States (LAUS for the individual States / LAUS for all States) and by dividing the number of veterans in the civilian labor force in each State by the number of veterans in the civilian labor force across all States (CPS for the individual States / CPS for all States). The result of these two ratios will be averaged and converted to a percentage of veterans seeking employment in the State compared to the percentage of veterans seeking employment in all States. Three-year averages of the CPS and LAUS data will be used in calculating the funding formula to stabilize the effect of annual fluctuations in the data in order to avoid undue fluctuations in the annual basic grant amounts allocated to States. (d) State Plans are prepared in response to estimated basic grant allocation amounts prepared by the Department of Labor, based upon a projection of the appropriation. Variations from Department of Labor projections will be treated as follows: (1) If the actual appropriation varies from the projection, the Secretary will make every reasonable effort to avoid recalculating the estimated basic grant allocation amounts, in order to maintain the delivery of services to veterans and to minimize the administrative workload required to r… | ||
| 20:20:4.0.5.3.2.6.117.2 | 20 | Employees' Benefits | IX | 1001 | PART 1001—SERVICES FOR VETERANS | F | Subpart F—Formula for the Allocation of Grant Funds to State Agencies | 1001.151 | § 1001.151 Other funding criteria. | SSA-OIG | 29 U.S.C. 49k; 38 U.S.C. chapters 41 and 42. | 70 FR 28406, May 17, 2005, unless otherwise noted. | (a) Up to four percent of the total amount available for allocation will be available for distribution based on Transition Assistance Program (TAP) workload and other exigencies. (b) Funding for TAP workshops will be allocated on a per workshop basis. Funding to the States will be provided pursuant to the approved State Plan. (c) Funds for exigent circumstances, such as unusually high levels of unemployment, surges in the demand for transitioning services, including the need for TAP workshops, will be allocated based on need. | ||
| 20:20:4.0.5.3.2.6.117.3 | 20 | Employees' Benefits | IX | 1001 | PART 1001—SERVICES FOR VETERANS | F | Subpart F—Formula for the Allocation of Grant Funds to State Agencies | 1001.152 | § 1001.152 Hold-harmless criteria and minimum funding level. | SSA-OIG | 29 U.S.C. 49k; 38 U.S.C. chapters 41 and 42. | 70 FR 28406, May 17, 2005, unless otherwise noted. | (a) A hold-harmless rate of 90 percent of the prior year's funding level will be applied after the funding formula phase-in period is completed (beginning fiscal year 2006 and subsequent years). (b) A hold-harmless rate of 80 percent of the prior year's funding level will be applied for fiscal year 2005. (c) A minimum funding level is established to ensure that in any year, no State will receive less than 0.28 percent (.0028) of the previous year's total funding for all States. (d) If the appropriation for a given fiscal year does not provide sufficient funds to comply with the hold-harmless provision, the Department will: (1) Update, as appropriate, the States' estimates of TAP workload and reserve sufficient funds for that purpose from the total amount available for allocation to the States. Beyond TAP workload, no funds will be reserved for exigent circumstances because the shortfall in the appropriation will be the primary exigent circumstance to be addressed. (2) Apply proportionally the remaining balance available for basic grant allocations to the States for that fiscal year. The proportion will be calculated by dividing the remaining balance available for allocation by the total estimated State basic grant allocations for that fiscal year. The proportion resulting from that calculation will be applied to each State's estimated basic grant allocation to calculate the amount to be awarded. | ||
| 20:20:4.0.5.3.2.7.117.1 | 20 | Employees' Benefits | IX | 1001 | PART 1001—SERVICES FOR VETERANS | G | Subpart G—Purpose and Definitions | 1001.160 | § 1001.160 What is the purpose and scope of this part? | SSA-OIG | 29 U.S.C. 49k; 38 U.S.C. chapters 41 and 42. | 78 FR 15290, Mar. 11, 2013, unless otherwise noted. | (a) The purpose of this part is to fulfill the requirement of 38 U.S.C. 4102A(c)(3)(B) to establish a uniform national threshold entered employment rate (UNTEER) achieved for veterans and eligible persons by the State employment service delivery systems. We will use the UNTEER as part of the review process for determining whether a State's program year EER is deficient and a Corrective Action Plan (CAP) is required of that State employment service delivery system. (b) This part is applicable to all State agencies that are recipients of Wagner-Peyser State Grants, and/or Jobs for Veterans State Grants. | ||
| 20:20:4.0.5.3.2.7.117.2 | 20 | Employees' Benefits | IX | 1001 | PART 1001—SERVICES FOR VETERANS | G | Subpart G—Purpose and Definitions | 1001.161 | § 1001.161 What definitions apply to this part? | SSA-OIG | 29 U.S.C. 49k; 38 U.S.C. chapters 41 and 42. | 78 FR 15290, Mar. 11, 2013, unless otherwise noted. | Department means the United States Department of Labor, including its agencies and organizational units and their representatives. Eligible person, as defined at 38 U.S.C. 4101(5), means: (1) The spouse of any person who died of a service-connected disability; (2) The spouse of any member of the Armed Forces serving on active duty who, at the time of application for assistance under this chapter, is listed, pursuant to 37 U.S.C. 556 and regulations issued thereunder by the Secretary concerned, in one or more of the following categories and has been so listed for a total of more than ninety days: (i) Missing in action, (ii) Captured in line of duty by a hostile force, or (iii) Forcibly detained or interned in line of duty by a foreign government or power; or (3) The spouse of any person who has a total disability permanent in nature resulting from a service-connected disability or the spouse of a veteran who died while a disability so evaluated was in existence. Employment service delivery system, as defined at 38 U.S.C. 4101(7), means a service delivery system at which or through which labor exchange services, including employment, training, and placement services, are offered in accordance with the Wagner-Peyser Act. Jobs for Veterans Act (JVA) means Public Law 107-288, 116 Stat. 2033 (2002), codified at 38 U.S.C. chapters 41 and 42. Jobs for Veterans State Grant (JVSG) means an award of Federal financial assistance by the Department to a State for the purposes of the Disabled Veterans' Outreach Program or the Local Veterans' Employment Representative Program. Program year is the period from July 1 of a year through June 30 of the following year and is numbered according to the calendar year in which it begins. | ||
| 20:20:4.0.5.3.2.7.117.3 | 20 | Employees' Benefits | IX | 1001 | PART 1001—SERVICES FOR VETERANS | G | Subpart G—Purpose and Definitions | 1001.162 | § 1001.162 How does the Department define veteran for purposes of this subpart? | SSA-OIG | 29 U.S.C. 49k; 38 U.S.C. chapters 41 and 42. | 78 FR 15290, Mar. 11, 2013, unless otherwise noted. | The Department applies two definitions of veteran for the purposes of this subpart and has established two stages for the implementation of these definitions. (a) The first stage of implementation begins with application of this subpart G to the first program year following May 10, 2013. As of that date, veteran is defined as it is in 38 U.S.C. 4211(4), as a person who: (1) Served on active duty for a period of more than 180 days and was discharged or released therefrom with other than a dishonorable discharge; (2) Was discharged or released from active duty because of a service-connected disability; (3) As a member of a reserve component under an order to active duty pursuant to 10 U.S.C. 12301(a), (d), or (g), 12302, or 12304, served on active duty during a period of war or in a campaign or expedition for which a campaign badge is authorized and was discharged or released from such duty with other than a dishonorable discharge; or (4) Was discharged or released from active duty by reason of a sole survivorship discharge (as that term is defined in 10 U.S.C.1174(i)). (b) The second stage of implementation begins with the first day of the program year that begins two years after the first day of the program year that State grantees begin collecting and maintaining data as required by 20 CFR 1010.330(c). As of that date, veteran will be defined as it is in 20 CFR 1010.110: (1) A person who served in the active military, naval, or air service, and who was discharged or released there from under conditions other than dishonorable, as specified in 38 U.S.C. 101(2). (2) Active service includes full-time Federal service in the National Guard or a Reserve component, other than full-time duty for training purposes. (c) During the second stage of implementation, any veteran who meets the definition specified in paragraph (a) of this section will be considered to meet the definition specified in paragraph (b) of this section. (d) We will notify State grantees when they are required to begin implementing 20 CFR 10… | ||
| 20:20:4.0.5.3.2.7.117.4 | 20 | Employees' Benefits | IX | 1001 | PART 1001—SERVICES FOR VETERANS | G | Subpart G—Purpose and Definitions | 1001.163 | § 1001.163 What is the national entered employment rate (EER) and what is a State's program year EER for purposes of this part? | SSA-OIG | 29 U.S.C. 49k; 38 U.S.C. chapters 41 and 42. | 78 FR 15290, Mar. 11, 2013, unless otherwise noted. | (a) For purposes of this part, we use the EER for veterans and eligible persons. This is the EER as applied to veterans (as defined in § 1001.162) and eligible persons (as defined in § 1001.161) who are participants in State employment service delivery systems. (b) The EER for veterans and eligible persons measures the number of the participants described in paragraph (a) of this section who are employed after exiting an employment service delivery system compared to the total number of those participants who exited. We will issue policy guidance to establish the method of calculating the EER. (c) The national EER for veterans and eligible persons is the EER achieved by the national State employment service delivery system for those veterans and eligible persons who are participants in all of the State employment service delivery systems for the program year under review. The national EER resulting from this calculation is expressed as a percentage that is rounded to the nearest tenth of a percent. (d) A State's program year EER is the EER for veterans and eligible persons (as calculated in paragraph (b) of this section) achieved by a single State's employment service delivery system for those veterans and eligible persons who are included in the EER measure for that State's employment service delivery system for the program year under review. The program year EER resulting from this calculation is expressed as a percentage that is rounded to the nearest tenth of a percent. | ||
| 20:20:4.0.5.3.2.7.117.5 | 20 | Employees' Benefits | IX | 1001 | PART 1001—SERVICES FOR VETERANS | G | Subpart G—Purpose and Definitions | 1001.164 | § 1001.164 What is the uniform national threshold EER, and how will it be calculated? | SSA-OIG | 29 U.S.C. 49k; 38 U.S.C. chapters 41 and 42. | 78 FR 15290, Mar. 11, 2013, unless otherwise noted. | (a) The uniform national threshold EER for a program year is equal to 90 percent of the national EER for veterans and eligible persons (as defined in § 1001.163(c)). (b) The uniform national threshold EER resulting from this calculation is expressed as a percentage that is rounded to the nearest tenth of a percent. | ||
| 20:20:4.0.5.3.2.7.117.6 | 20 | Employees' Benefits | IX | 1001 | PART 1001—SERVICES FOR VETERANS | G | Subpart G—Purpose and Definitions | 1001.165 | § 1001.165 When will the uniform national threshold EER be published? | SSA-OIG | 29 U.S.C. 49k; 38 U.S.C. chapters 41 and 42. | 78 FR 15290, Mar. 11, 2013, unless otherwise noted. | When practicable, the Veterans' Employment and Training Service (VETS) will publish the uniform national threshold EER for a given program year by the end of December of the calendar year in which that program year ends. | ||
| 20:20:4.0.5.3.2.7.117.7 | 20 | Employees' Benefits | IX | 1001 | PART 1001—SERVICES FOR VETERANS | G | Subpart G—Purpose and Definitions | 1001.166 | § 1001.166 How will the uniform national threshold EER be used to evaluate whether a State will be required to submit a Corrective Action Plan (CAP)? | SSA-OIG | 29 U.S.C. 49k; 38 U.S.C. chapters 41 and 42. | 78 FR 15290, Mar. 11, 2013, unless otherwise noted. | (a) Comparison. Each State's program year EER will be compared to the uniform national threshold EER for that program year. State agencies that do not achieve a program year EER that equals or exceeds the uniform national threshold EER (90 percent of the national EER) for the year under review will be subject to a review by VETS, with input from the Employment and Training Administration (ETA), to determine whether the program year EER is deficient. (b) Review. For each State whose program year EER is subject to review to determine deficiency, the review will consider the degree of difference between the State's program year EER and the uniform national threshold EER for that program year, as well as the annual unemployment data for the State as compiled by the Bureau of Labor Statistics. (1) The review also may consider other relevant measures of prevailing economic conditions and regional economic conditions, as well as other measures of the performance of workforce programs and/or any information the State may submit. (2) The review will include consultation with VETS and ETA field staff about findings from their on-site reviews and desk audits of State agency implementation of policies and procedures for services to veterans and also may include consultation with staff affiliated with other agencies of the Department, as appropriate. (c) Requirement of a CAP. After review, a State whose program year EER is determined not to be deficient will be notified that a CAP will not be required; a State whose program year EER is determined to be deficient will be required to submit a CAP to improve the State's performance in assisting veterans to meet their employment needs as a condition of receiving its next-due JVSG. (1) Any State whose program year EER has been determined to be deficient will be notified by March 31 of the year following the calendar year in which the program year under review ended. (2) For any State that is required to submit a CAP, VETS will provide technical assistance (TA), with in… | ||
| 20:20:4.0.5.3.2.7.117.8 | 20 | Employees' Benefits | IX | 1001 | PART 1001—SERVICES FOR VETERANS | G | Subpart G—Purpose and Definitions | 1001.167 | § 1001.167 In addition to the procedures specified in this part, will the Department be conducting any other monitoring of compliance regarding services to veterans? | SSA-OIG | 29 U.S.C. 49k; 38 U.S.C. chapters 41 and 42. | 78 FR 15290, Mar. 11, 2013, unless otherwise noted. | Yes. We will continue to monitor compliance with the regulations on veterans' priority of service at 20 CFR 1010.240(b) jointly with the ETA. If a State's program year EER is determined to be deficient for a given program year, that deficiency would constitute information to be considered in monitoring priority of service, since failure to fully implement priority of service could be one of the contributors to a deficient program year EER. | ||
| 20:20:4.0.5.3.3.1.140.1 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | A | Subpart A—Introduction to the Regulations Under the Uniformed Services Employment and Reemployment Rights Act of 1994 | 1002.1 | § 1002.1 What is the purpose of this part? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | This part implements the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA” or “the Act”). 38 U.S.C. 4301-4334. USERRA is a law that establishes certain rights and benefits for employees, and duties for employers. USERRA affects employment, reemployment, and retention in employment, when employees serve or have served in the uniformed services. There are five subparts to these regulations. Subpart A gives an introduction to the USERRA regulations. Subpart B describes USERRA's anti-discrimination and anti-retaliation provisions. Subpart C explains the steps that must be taken by a uniformed service member who wants to return to his or her previous civilian employment. Subpart D describes the rights, benefits, and obligations of persons absent from employment due to service in the uniformed services, including rights and obligations related to health plan coverage. Subpart E describes the rights, benefits, and obligations of the returning veteran or service member. Subpart F explains the role of the Department of Labor in enforcing and giving assistance under USERRA. These regulations implement USERRA as it applies to States, local governments, and private employers. Separate regulations published by the Federal Office of Personnel Management implement USERRA for Federal executive agency employers and employees. | ||
| 20:20:4.0.5.3.3.1.140.2 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | A | Subpart A—Introduction to the Regulations Under the Uniformed Services Employment and Reemployment Rights Act of 1994 | 1002.2 | § 1002.2 Is USERRA a new law? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | USERRA is the latest in a series of laws protecting veterans' employment and reemployment rights going back to the Selective Training and Service Act of 1940. USERRA's immediate predecessor was commonly referred to as the Veterans' Reemployment Rights Act (VRRA), which was enacted as section 404 of the Vietnam Era Veterans' Readjustment Assistance Act of 1974. In enacting USERRA, Congress emphasized USERRA's continuity with the VRRA and its intention to clarify and strengthen that law. Congress also emphasized that Federal laws protecting veterans' employment and reemployment rights for the past fifty years had been successful and that the large body of case law that had developed under those statutes remained in full force and effect, to the extent it is consistent with USERRA. USERRA authorized the Department of Labor to publish regulations implementing the Act for State, local government, and private employers. USERRA also authorized the Office of Personnel Management to issue regulations implementing the Act for Federal executive agencies (other than some Federal intelligence agencies). USERRA established a separate program for employees of some Federal intelligence agencies. | ||
| 20:20:4.0.5.3.3.1.140.3 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | A | Subpart A—Introduction to the Regulations Under the Uniformed Services Employment and Reemployment Rights Act of 1994 | 1002.3 | § 1002.3 When did USERRA become effective? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | USERRA became law on October 13, 1994. USERRA's reemployment provisions apply to members of the uniformed services seeking civilian reemployment on or after December 12, 1994. USERRA's anti-discrimination and anti-retaliation provisions became effective on October 13, 1994. | ||
| 20:20:4.0.5.3.3.1.140.4 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | A | Subpart A—Introduction to the Regulations Under the Uniformed Services Employment and Reemployment Rights Act of 1994 | 1002.4 | § 1002.4 What is the role of the Secretary of Labor under USERRA? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | (a) USERRA charges the Secretary of Labor (through the Veterans' Employment and Training Service) with providing assistance to any person with respect to the employment and reemployment rights and benefits to which such person is entitled under the Act. More information about the Secretary's role in providing this assistance is contained in Subpart F. (b) USERRA also authorizes the Secretary of Labor to issue regulations implementing the Act with respect to States, local governments, and private employers. These regulations are issued under this authority. (c) The Secretary of Labor delegated authority to the Assistant Secretary for Veterans' Employment and Training for administering the veterans' reemployment rights program by Secretary's Order 1-83 (February 3, 1983) and for carrying out the functions and authority vested in the Secretary pursuant to USERRA by memorandum of April 22, 2002 (67 FR 31827). | ||
| 20:20:4.0.5.3.3.1.140.5 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | A | Subpart A—Introduction to the Regulations Under the Uniformed Services Employment and Reemployment Rights Act of 1994 | 1002.5 | § 1002.5 What definitions apply to USERRA? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | (a) Attorney General means the Attorney General of the United States or any person designated by the Attorney General to carry out a responsibility of the Attorney General under USERRA. (b) Benefit, benefit of employment, or rights and benefits means any advantage, profit, privilege, gain, status, account, or interest (other than wages or salary for work performed) that accrues to the employee because of an employment contract, employment agreement, or employer policy, plan, or practice. The term includes rights and benefits under a pension plan, health plan, or employee stock ownership plan, insurance coverage and awards, bonuses, severance pay, supplemental unemployment benefits, vacations, and the opportunity to select work hours or the location of employment. (c) Employee means any person employed by an employer. The term also includes any person who is a citizen, national or permanent resident alien of the United States who is employed in a workplace in a foreign country by an employer that is an entity incorporated or organized in the United States, or that is controlled by an entity organized in the United States. “Employee” includes the former employees of an employer. (d)(1) Employer , except as provided in paragraphs (d)(2) and (3) of this section, means any person, institution, organization, or other entity that pays salary or wages for work performed, or that has control over employment opportunities, including— (i) A person, institution, organization, or other entity to whom the employer has delegated the performance of employment-related responsibilities, except in the case that such entity has been delegated functions that are purely ministerial in nature, such as maintenance of personnel files or the preparation of forms for submission to a government agency; (ii) The Federal Government; (iii) A State; (iv) Any successor in interest to a person, institution, organization, or other entity referred to in this definition; and, (v) A person, institution, organization, or other entity th… | ||
| 20:20:4.0.5.3.3.1.140.6 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | A | Subpart A—Introduction to the Regulations Under the Uniformed Services Employment and Reemployment Rights Act of 1994 | 1002.6 | § 1002.6 What types of service in the uniformed services are covered by USERRA? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | USERRA's definition of “service in the uniformed services” covers all categories of military training and service, including duty performed on a voluntary or involuntary basis, in time of peace or war. Although most often understood as applying to National Guard and reserve military personnel, USERRA also applies to persons serving in the active components of the Armed Forces. Certain types of service specified in 42 U.S.C. 300hh-11 by members of the National Disaster Medical System are covered by USERRA. | ||
| 20:20:4.0.5.3.3.1.140.7 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | A | Subpart A—Introduction to the Regulations Under the Uniformed Services Employment and Reemployment Rights Act of 1994 | 1002.7 | § 1002.7 How does USERRA relate to other laws, public and private contracts, and employer practices? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | (a) USERRA establishes a floor, not a ceiling, for the employment and reemployment rights and benefits of those it protects. In other words, an employer may provide greater rights and benefits than USERRA requires, but no employer can refuse to provide any right or benefit guaranteed by USERRA. (b) USERRA supersedes any State law (including any local law or ordinance), contract, agreement, policy, plan, practice, or other matter that reduces, limits, or eliminates in any manner any right or benefit provided by USERRA, including the establishment of additional prerequisites to the exercise of any USERRA right or the receipt of any USERRA benefit. For example, an employment contract that determines seniority based only on actual days of work in the place of employment would be superseded by USERRA, which requires that seniority credit be given for periods of absence from work due to service in the uniformed services. (c) USERRA does not supersede, nullify or diminish any Federal or State law (including any local law or ordinance), contract, agreement, policy, plan, practice, or other matter that establishes an employment right or benefit that is more beneficial than, or is in addition to, a right or benefit provided under the Act. For example, although USERRA does not require an employer to pay an employee for time away from work performing service, an employer policy, plan, or practice that provides such a benefit is permissible under USERRA. (d) If an employer provides a benefit that exceeds USERRA's requirements in one area, it cannot reduce or limit other rights or benefits provided by USERRA. For example, even though USERRA does not require it, an employer may provide a fixed number of days of paid military leave per year to employees who are members of the National Guard or Reserve. The fact that it provides such a benefit, however, does not permit an employer to refuse to provide an unpaid leave of absence to an employee to perform service in the uniformed services in excess of the number of days of paid … | ||
| 20:20:4.0.5.3.3.2.141.1 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | B | Subpart B—Anti-Discrimination and Anti-Retaliation | 1002.18 | § 1002.18 What status or activity is protected from employer discrimination by USERRA? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | An employer must not deny initial employment, reemployment, retention in employment, promotion, or any benefit of employment to an individual on the basis of his or her membership, application for membership, performance of service, application for service, or obligation for service in the uniformed services. | ||
| 20:20:4.0.5.3.3.2.141.2 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | B | Subpart B—Anti-Discrimination and Anti-Retaliation | 1002.19 | § 1002.19 What activity is protected from employer retaliation by USERRA? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | An employer must not retaliate against an individual by taking any adverse employment action against him or her because the individual has taken an action to enforce a protection afforded any person under USERRA; testified or otherwise made a statement in or in connection with a proceeding under USERRA; assisted or participated in a USERRA investigation: or, exercised a right provided for by USERRA. | ||
| 20:20:4.0.5.3.3.2.141.3 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | B | Subpart B—Anti-Discrimination and Anti-Retaliation | 1002.20 | § 1002.20 Does USERRA protect an individual who does not actually perform service in the uniformed services? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | Yes. Employers are prohibited from taking actions against an individual for any of the activities protected by the Act, whether or not he or she has performed service in the uniformed services. | ||
| 20:20:4.0.5.3.3.2.141.4 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | B | Subpart B—Anti-Discrimination and Anti-Retaliation | 1002.21 | § 1002.21 Do the Act's prohibitions against discrimination and retaliation apply to all employment positions? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | The prohibitions against discrimination and retaliation apply to all covered employers (including hiring halls and potential employers, see sections 1002.36 and .38) and employment positions, including those that are for a brief, nonrecurrent period, and for which there is no reasonable expectation that the employment position will continue indefinitely or for a significant period. However, USERRA's reemployment rights and benefits do not apply to such brief, nonrecurrent positions of employment. | ||
| 20:20:4.0.5.3.3.2.141.5 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | B | Subpart B—Anti-Discrimination and Anti-Retaliation | 1002.22 | § 1002.22 Who has the burden of proving discrimination or retaliation in violation of USERRA? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | The individual has the burden of proving that a status or activity protected by USERRA was one of the reasons that the employer took action against him or her, in order to establish that the action was discrimination or retaliation in violation of USERRA. If the individual succeeds in proving that the status or activity protected by USERRA was one of the reasons the employer took action against him or her, the employer has the burden to prove the affirmative defense that it would have taken the action anyway. | ||
| 20:20:4.0.5.3.3.2.141.6 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | B | Subpart B—Anti-Discrimination and Anti-Retaliation | 1002.23 | § 1002.23 What must the individual show to carry the burden of proving that the employer discriminated or retaliated against him or her? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | (a) In order to prove that the employer discriminated or retaliated against the individual, he or she must first show that the employer's action was motivated by one or more of the following: (1) Membership or application for membership in a uniformed service; (2) Performance of service, application for service, or obligation for service in a uniformed service; (3) Action taken to enforce a protection afforded any person under USERRA; (4) Testimony or statement made in or in connection with a USERRA proceeding; (5) Assistance or participation in a USERRA investigation; or, (6) Exercise of a right provided for by USERRA. (b) If the individual proves that the employer's action was based on one of the prohibited motives listed in paragraph (a) of this section, the employer has the burden to prove the affirmative defense that the action would have been taken anyway absent the USERRA-protected status or activity. | ||
| 20:20:4.0.5.3.3.3.142.1 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.32 | § 1002.32 What criteria must the employee meet to be eligible under USERRA for reemployment after service in the uniformed services? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | (a) In general, if the employee has been absent from a position of civilian employment by reason of service in the uniformed services, he or she will be eligible for reemployment under USERRA by meeting the following criteria: (1) The employer had advance notice of the employee's service; (2) The employee has five years or less of cumulative service in the uniformed services in his or her employment relationship with a particular employer; (3) The employee timely returns to work or applies for reemployment; and, (4) The employee has not been separated from service with a disqualifying discharge or under other than honorable conditions. (b) These general eligibility requirements have important qualifications and exceptions, which are described in detail in §§ 1002.73 through 1002.138. If the employee meets these eligibility criteria, then he or she is eligible for reemployment unless the employer establishes one of the defenses described in § 1002.139. The employment position to which the employee is entitled is described in §§ 1002.191 through 1002.199. | ||
| 20:20:4.0.5.3.3.3.142.2 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.33 | § 1002.33 Does the employee have to prove that the employer discriminated against him or her in order to be eligible for reemployment? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | No. The employee is not required to prove that the employer discriminated against him or her because of the employee's uniformed service in order to be eligible for reemployment. | ||
| 20:20:4.0.5.3.3.3.143.10 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.41 | § 1002.41 Does an employee have rights under USERRA even though he or she holds a temporary, part-time, probationary, or seasonal employment position? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | USERRA rights are not diminished because an employee holds a temporary, part-time, probationary, or seasonal employment position. However, an employer is not required to reemploy an employee if the employment he or she left to serve in the uniformed services was for a brief, nonrecurrent period and there is no reasonable expectation that the employment would have continued indefinitely or for a significant period. The employer bears the burden of proving this affirmative defense. | ||
| 20:20:4.0.5.3.3.3.143.11 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.42 | § 1002.42 What rights does an employee have under USERRA if he or she is on layoff, on strike, or on a leave of absence? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | (a) If an employee is laid off with recall rights, on strike, or on a leave of absence, he or she is an employee for purposes of USERRA. If the employee is on layoff and begins service in the uniformed services, or is laid off while performing service, he or she may be entitled to reemployment on return if the employer would have recalled the employee to employment during the period of service. Similar principles apply if the employee is on strike or on a leave of absence from work when he or she begins a period of service in the uniformed services. (b) If the employee is sent a recall notice during a period of service in the uniformed services and cannot resume the position of employment because of the service, he or she still remains an employee for purposes of the Act. Therefore, if the employee is otherwise eligible, he or she is entitled to reemployment following the conclusion of the period of service even if he or she did not respond to the recall notice. (c) If the employee is laid off before or during service in the uniformed services, and the employer would not have recalled him or her during that period of service, the employee is not entitled to reemployment following the period of service simply because he or she is a covered employee. Reemployment rights under USERRA cannot put the employee in a better position than if he or she had remained in the civilian employment position. | ||
| 20:20:4.0.5.3.3.3.143.12 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.43 | § 1002.43 Does an individual have rights under USERRA even if he or she is an executive, managerial, or professional employee? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | Yes. USERRA applies to all employees. There is no exclusion for executive, managerial, or professional employees. | ||
| 20:20:4.0.5.3.3.3.143.13 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.44 | § 1002.44 Does USERRA cover an independent contractor? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | (a) No. USERRA does not provide protections for an independent contractor. (b) In deciding whether an individual is an independent contractor, the following factors need to be considered: (1) The extent of the employer's right to control the manner in which the individual's work is to be performed; (2) The opportunity for profit or loss that depends upon the individual's managerial skill; (3) Any investment in equipment or materials required for the individual's tasks, or his or her employment of helpers; (4) Whether the service the individual performs requires a special skill; (5) The degree of permanence of the individual's working relationship; and, (6) Whether the service the individual performs is an integral part of the employer's business. (c) No single one of these factors is controlling, but all are relevant to determining whether an individual is an employee or an independent contractor. | ||
| 20:20:4.0.5.3.3.3.143.3 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.34 | § 1002.34 Which employers are covered by USERRA? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | (a) USERRA applies to all public and private employers in the United States, regardless of size. For example, an employer with only one employee is covered for purposes of the Act. (b) USERRA applies to foreign employers doing business in the United States. A foreign employer that has a physical location or branch in the United States (including U.S. territories and possessions) must comply with USERRA for any of its employees who are employed in the United States. (c) An American company operating either directly or through an entity under its control in a foreign country must also comply with USERRA for all its foreign operations, unless compliance would violate the law of the foreign country in which the workplace is located. | ||
| 20:20:4.0.5.3.3.3.143.4 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.35 | § 1002.35 Is a successor in interest an employer covered by USERRA? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | USERRA's definition of “employer” includes a successor in interest. In general, an employer is a successor in interest where there is a substantial continuity in operations, facilities, and workforce from the former employer. The determination whether an employer is a successor in interest must be made on a case-by-case basis using a multi-factor test that considers the following: (a) Whether there has been a substantial continuity of business operations from the former to the current employer; (b) Whether the current employer uses the same or similar facilities, machinery, equipment, and methods of production; (c) Whether there has been a substantial continuity of employees; (d) Whether there is a similarity of jobs and working conditions; (e) Whether there is a similarity of supervisors or managers; and, (f) Whether there is a similarity of products or services. | ||
| 20:20:4.0.5.3.3.3.143.5 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.36 | § 1002.36 Can an employer be liable as a successor in interest if it was unaware that an employee may claim reemployment rights when the employer acquired the business? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | Yes. In order to be a successor in interest, it is not necessary for an employer to have notice of a potential reemployment claim at the time of merger, acquisition, or other form of succession. | ||
| 20:20:4.0.5.3.3.3.143.6 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.37 | § 1002.37 Can one employee be employed in one job by more than one employer? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | Yes. Under USERRA, an employer includes not only the person or entity that pays an employee's salary or wages, but also includes a person or entity that has control over his or her employment opportunities, including a person or entity to whom an employer has delegated the performance of employment-related responsibilities. For example, if the employee is a security guard hired by a security company and he or she is assigned to a work site, the employee may report both to the security company and to the site owner. In such an instance, both employers share responsibility for compliance with USERRA. If the security company declines to assign the employee to a job because of a uniformed service obligation (for example, National Guard duties), then the security company could be in violation of the reemployment requirements and the anti-discrimination provisions of USERRA. Similarly, if the employer at the work site causes the employee's removal from the job position because of his or her uniformed service obligations, then the work site employer could be in violation of the reemployment requirements and the anti-discrimination provisions of USERRA. | ||
| 20:20:4.0.5.3.3.3.143.7 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.38 | § 1002.38 Can a hiring hall be an employer? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | Yes. In certain occupations (for example, longshoreman, stagehand, construction worker), the employee may frequently work for many different employers. A hiring hall operated by a union or an employer association typically assigns the employee to the jobs. In these industries, it may not be unusual for the employee to work his or her entire career in a series of short-term job assignments. The definition of “employer” includes a person, institution, organization, or other entity to which the employer has delegated the performance of employment-related responsibilities. A hiring hall therefore is considered the employee's employer if the hiring and job assignment functions have been delegated by an employer to the hiring hall. As the employer, a hiring hall has reemployment responsibilities to its employees. USERRA's anti-discrimination and anti-retaliation provisions also apply to the hiring hall. | ||
| 20:20:4.0.5.3.3.3.143.8 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.39 | § 1002.39 Are States (and their political subdivisions), the District of Columbia, the Commonwealth of Puerto Rico, and United States territories, considered employers? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | Yes. States and their political subdivisions, such as counties, parishes, cities, towns, villages, and school districts, are considered employers under USERRA. The District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, and territories of the United States, are also considered employers under the Act. | ||
| 20:20:4.0.5.3.3.3.143.9 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.40 | § 1002.40 Does USERRA protect against discrimination in initial hiring decisions? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | Yes. The Act's definition of employer includes a person, institution, organization, or other entity that has denied initial employment to an individual in violation of USERRA's anti-discrimination provisions. An employer need not actually employ an individual to be his or her “employer” under the Act, if it has denied initial employment on the basis of the individual's membership, application for membership, performance of service, application for service, or obligation for service in the uniformed services. Similarly, the employer would be liable if it denied initial employment on the basis of the individual's action taken to enforce a protection afforded to any person under USERRA, his or her testimony or statement in connection with any USERRA proceeding, assistance or other participation in a USERRA investigation, or the exercise of any other right provided by the Act. For example, if the individual has been denied initial employment because of his or her obligations as a member of the National Guard or Reserves, the company or entity denying employment is an employer for purposes of USERRA. Similarly, if an entity withdraws an offer of employment because the individual is called upon to fulfill an obligation in the uniformed services, the entity withdrawing the employment offer is an employer for purposes of USERRA. | ||
| 20:20:4.0.5.3.3.3.144.14 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.54 | § 1002.54 Are all military fitness examinations considered “service in the uniformed services?” | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | Yes. USERRA's definition of “service in the uniformed services” includes a period for which an employee is absent from a position of employment for the purpose of an examination to determine his or her fitness to perform duty in the uniformed services. Military fitness examinations can address more than physical or medical fitness, and include evaluations for mental, educational, and other types of fitness. Any examination to determine an employee's fitness for service is covered, whether it is an initial or recurring examination. For example, a periodic medical examination required of a Reserve component member to determine fitness for continued service is covered. | ||
| 20:20:4.0.5.3.3.3.144.15 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.55 | § 1002.55 Is all funeral honors duty considered “service in the uniformed services?” | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | (a) USERRA's definition of “service in the uniformed services” includes a period for which an employee is absent from employment for the purpose of performing authorized funeral honors duty under 10 U.S.C. 12503 (members of Reserve ordered to perform funeral honors duty) or 32 U.S.C. 115 (Member of Air or Army National Guard ordered to perform funeral honors duty). (b) Funeral honors duty performed by persons who are not members of the uniformed services, such as members of veterans' service organizations, is not “service in the uniformed services.” | ||
| 20:20:4.0.5.3.3.3.144.16 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.56 | § 1002.56 What types of service in the National Disaster Medical System are considered “service in the uniformed services?” | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | Under a provision of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, 42 U.S.C. 300hh 11(e)(3), “service in the uniformed services” includes service performed as an intermittent disaster-response appointee upon activation of the National Disaster Medical System or participation in an authorized training program, even if the individual is not a member of the uniformed services. | ||
| 20:20:4.0.5.3.3.3.144.17 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.57 | § 1002.57 Is all service as a member of the National Guard considered “service in the uniformed services?” | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | The National Guard has a dual status. It is a Reserve component of the Army, or, in the case of the Air National Guard, of the Air Force. Simultaneously, it is a State military force subject to call-up by the State Governor for duty not subject to Federal control, such as emergency duty in cases of floods or riots. National Guard members may perform service under either Federal or State authority, but only Federal National Guard service is covered by USERRA. (a) National Guard service under Federal authority is protected by USERRA. Service under Federal authority includes active duty performed under Title 10 of the United States Code. Service under Federal authority also includes duty under Title 32 of the United States Code, such as active duty for training, inactive duty training, or full-time National Guard duty. (b) National Guard service under authority of State law is not protected by USERRA. However, many States have laws protecting the civilian job rights of National Guard members who serve under State orders. Enforcement of those State laws is not covered by USERRA or these regulations. | ||
| 20:20:4.0.5.3.3.3.144.18 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.58 | § 1002.58 Is service in the commissioned corps of the Public Health Service considered “service in the uniformed services?” | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | Yes. Service in the commissioned corps of the Public Health Service (PHS) is “service in the uniformed services” under USERRA. | ||
| 20:20:4.0.5.3.3.3.144.19 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.59 | § 1002.59 Are there any circumstances in which special categories of persons are considered to perform “service in the uniformed services?” | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | Yes. In time of war or national emergency the President has authority to designate any category of persons as a “uniformed service” for purposes of USERRA. If the President exercises this authority, service as a member of that category of persons would be “service in the uniformed services” under USERRA. | ||
| 20:20:4.0.5.3.3.3.144.20 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.60 | § 1002.60 Does USERRA cover an individual attending a military service academy? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | Yes. Attending a military service academy is considered uniformed service for purposes of USERRA. There are four service academies: The United States Military Academy (West Point, New York), the United States Naval Academy (Annapolis, Maryland), the United States Air Force Academy (Colorado Springs, Colorado), and the United States Coast Guard Academy (New London, Connecticut). | ||
| 20:20:4.0.5.3.3.3.144.21 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.61 | § 1002.61 Does USERRA cover a member of the Reserve Officers Training Corps? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | Yes, under certain conditions. (a) Membership in the Reserve Officers Training Corps (ROTC) or the Junior ROTC is not “service in the uniformed services.” However, some Reserve and National Guard enlisted members use a college ROTC program as a means of qualifying for commissioned officer status. National Guard and Reserve members in an ROTC program may at times, while participating in that program, be receiving active duty and inactive duty training service credit with their unit. In these cases, participating in ROTC training sessions is considered “service in the uniformed services,” and qualifies a person for protection under USERRA's reemployment and anti-discrimination provisions. (b) Typically, an individual in a College ROTC program enters into an agreement with a particular military service that obligates such individual to either complete the ROTC program and accept a commission or, in case he or she does not successfully complete the ROTC program, to serve as an enlisted member. Although an individual does not qualify for reemployment protection, except as specified in (a) above, he or she is protected under USERRA's anti-discrimination provisions because, as a result of the agreement, he or she has applied to become a member of the uniformed services and has incurred an obligation to perform future service. | ||
| 20:20:4.0.5.3.3.3.144.22 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.62 | § 1002.62 Does USERRA cover a member of the Commissioned Corps of the National Oceanic and Atmospheric Administration, the Civil Air Patrol, or the Coast Guard Auxiliary? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | No. Although the Commissioned Corps of the National Oceanic and Atmospheric Administration (NOAA) is a “uniformed service” for some purposes, it is not included in USERRA's definition of this term. Service in the Civil Air Patrol and the Coast Guard Auxiliary similarly is not considered “service in the uniformed services” for purposes of USERRA. Consequently, service performed in the Commissioned Corps of the National Oceanic and Atmospheric Administration (NOAA), the Civil Air Patrol, and the Coast Guard Auxiliary is not protected by USERRA. | ||
| 20:20:4.0.5.3.3.3.145.23 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.73 | § 1002.73 Does service in the uniformed services have to be an employee's sole reason for leaving an employment position in order to have USERRA reemployment rights? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | No. If absence from a position of employment is necessitated by service in the uniformed services, and the employee otherwise meets the Act's eligibility requirements, he or she has reemployment rights under USERRA, even if the employee uses the absence for other purposes as well. An employee is not required to leave the employment position for the sole purpose of performing service in the uniformed services. For example, if the employee is required to report to an out of State location for military training and he or she spends off-duty time during that assignment moonlighting as a security guard or visiting relatives who live in that State, the employee will not lose reemployment rights simply because he or she used some of the time away from the job to do something other than attend the military training. Also, if an employee receives advance notification of a mobilization order, and leaves his or her employment position in order to prepare for duty, but the mobilization is cancelled, the employee will not lose any reemployment rights. | ||
| 20:20:4.0.5.3.3.3.145.24 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.74 | § 1002.74 Must the employee begin service in the uniformed services immediately after leaving his or her employment position in order to have USERRA reemployment rights? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | No. At a minimum, an employee must have enough time after leaving the employment position to travel safely to the uniformed service site and arrive fit to perform the service. Depending on the specific circumstances, including the duration of service, the amount of notice received, and the location of the service, additional time to rest, or to arrange affairs and report to duty, may be necessitated by reason of service in the uniformed services. The following examples help to explain the issue of the period of time between leaving civilian employment and beginning of service in the uniformed services: (a) If the employee performs a full overnight shift for the civilian employer and travels directly from the work site to perform a full day of uniformed service, the employee would not be considered fit to perform the uniformed service. An absence from that work shift is necessitated so that the employee can report for uniformed service fit for duty. (b) If the employee is ordered to perform an extended period of service in the uniformed services, he or she may require a reasonable period of time off from the civilian job to put his or her personal affairs in order, before beginning the service. Taking such time off is also necessitated by the uniformed service. (c) If the employee leaves a position of employment in order to enlist or otherwise perform service in the uniformed services and, through no fault of his or her own, the beginning date of the service is delayed, this delay does not terminate any reemployment rights. | ||
| 20:20:4.0.5.3.3.3.146.25 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.85 | § 1002.85 Must the employee give advance notice to the employer of his or her service in the uniformed services? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | (a) Yes. The employee, or an appropriate officer of the uniformed service in which his or her service is to be performed, must notify the employer that the employee intends to leave the employment position to perform service in the uniformed services, with certain exceptions described below. In cases in which an employee is employed by more than one employer, the employee, or an appropriate office of the uniformed service in which his or her service is to be performed, must notify each employer that the employee intends to leave the employment position to perform service in the uniformed services, with certain exceptions described below. (b) The Department of Defense USERRA regulations at 32 CFR 104.3 provide that an “appropriate officer” can give notice on the employee's behalf. An “appropriate officer” is a commissioned, warrant, or non-commissioned officer authorized to give such notice by the military service concerned. (c) The employee's notice to the employer may be either verbal or written. The notice may be informal and does not need to follow any particular format. (d) Although USERRA does not specify how far in advance notice must be given to the employer, an employee should provide notice as far in advance as is reasonable under the circumstances. In regulations promulgated by the Department of Defense under USERRA, 32 CFR 104.6(a)(2)(i)(B), the Defense Department “strongly recommends that advance notice to civilian employers be provided at least 30 days prior to departure for uniformed service when it is feasible to do so.” | ||
| 20:20:4.0.5.3.3.3.146.26 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.86 | § 1002.86 When is the employee excused from giving advance notice of service in the uniformed services? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | The employee is required to give advance notice of pending service unless giving such notice is prevented by military necessity, or is otherwise impossible or unreasonable under all the circumstances. (a) Only a designated authority can make a determination of “military necessity,” and such a determination is not subject to judicial review. Guidelines for defining “military necessity” appear in regulations issued by the Department of Defense at 32 CFR 104.3. In general, these regulations cover situations where a mission, operation, exercise or requirement is classified, or could be compromised or otherwise adversely affected by public knowledge. In certain cases, the Secretary of Homeland Security, in consultation with the Secretary of Defense, can make a determination that giving of notice by intermittent disaster-response appointees of the National Disaster Medical System is precluded by “military necessity.” See 42 U.S.C. 300hh-11(e)(3)(B). (b) It may be impossible or unreasonable to give advance notice under certain circumstances. Such circumstances may include the unavailability of the employee's employer or the employer's representative, or a requirement that the employee report for uniformed service in an extremely short period of time. | ||
| 20:20:4.0.5.3.3.3.146.27 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.87 | § 1002.87 Is the employee required to get permission from his or her employer before leaving to perform service in the uniformed services? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | No. The employee is not required to ask for or get his or her employer's permission to leave to perform service in the uniformed services. The employee is only required to give the employer notice of pending service. | ||
| 20:20:4.0.5.3.3.3.146.28 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.88 | § 1002.88 Is the employee required to tell his or her civilian employer that he or she intends to seek reemployment after completing uniformed service before the employee leaves to perform service in the uniformed services? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | No. When the employee leaves the employment position to begin a period of service, he or she is not required to tell the civilian employer that he or she intends to seek reemployment after completing uniformed service. Even if the employee tells the employer before entering or completing uniformed service that he or she does not intend to seek reemployment after completing the uniformed service, the employee does not forfeit the right to reemployment after completing service. The employee is not required to decide in advance of leaving the civilian employment position whether he or she will seek reemployment after completing uniformed service. | ||
| 20:20:4.0.5.3.3.3.147.29 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.99 | § 1002.99 Is there a limit on the total amount of service in the uniformed services that an employee may perform and still retain reemployment rights with the employer? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | Yes. In general, the employee may perform service in the uniformed services for a cumulative period of up to five (5) years and retain reemployment rights with the employer. The exceptions to this rule are described below. | ||
| 20:20:4.0.5.3.3.3.147.30 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.100 | § 1002.100 Does the five-year service limit include all absences from an employment position that are related to service in the uniformed services? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | No. The five-year period includes only the time the employee spends actually performing service in the uniformed services. A period of absence from employment before or after performing service in the uniformed services does not count against the five-year limit. For example, after the employee completes a period of service in the uniformed services, he or she is provided a certain amount of time, depending upon the length of service, to report back to work or submit an application for reemployment. The period between completing the uniformed service and reporting back to work or seeking reemployment does not count against the five-year limit. | ||
| 20:20:4.0.5.3.3.3.147.31 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.101 | § 1002.101 Does the five-year service limit include periods of service that the employee performed when he or she worked for a previous employer? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | No. An employee is entitled to a leave of absence for uniformed service for up to five years with each employer for whom he or she works. When the employee takes a position with a new employer, the five-year period begins again regardless of how much service he or she performed while working in any previous employment relationship. If an employee is employed by more than one employer, a separate five-year period runs as to each employer independently, even if those employers share or co-determine the employee's terms and conditions of employment. | ||
| 20:20:4.0.5.3.3.3.147.32 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.102 | § 1002.102 Does the five-year service limit include periods of service that the employee performed before USERRA was enacted? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | It depends. USERRA provides reemployment rights to which an employee may become entitled beginning on or after December 12, 1994, but any uniformed service performed before December 12, 1994, that was counted against the service limitations of the previous law (the Veterans Reemployment Rights Act), also counts against USERRA's five-year limit. | ||
| 20:20:4.0.5.3.3.3.147.33 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.103 | § 1002.103 Are there any types of service in the uniformed services that an employee can perform that do not count against USERRA's five-year service limit? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | (a) USERRA creates the following exceptions to the five-year limit on service in the uniformed services: (1) Service that is required beyond five years to complete an initial period of obligated service. Some military specialties require an individual to serve more than five years because of the amount of time or expense involved in training. If the employee works in one of those specialties, he or she has reemployment rights when the initial period of obligated service is completed; (2) If the employee was unable to obtain orders releasing him or her from service in the uniformed services before the expiration of the five-year period, and the inability was not the employee's fault; (3)(i) Service performed to fulfill periodic National Guard and Reserve training requirements as prescribed by 10 U.S.C. 10147 and 32 U.S.C. 502(a) and 503; and, (ii) Service performed to fulfill additional training requirements determined and certified by a proper military authority as necessary for the employee's professional development, or to complete skill training or retraining; (4) Service performed in a uniformed service if he or she was ordered to or retained on active duty under: (i) 10 U.S.C. 688 (involuntary active duty by a military retiree); (ii) 10 U.S.C. 12301(a) (involuntary active duty in wartime); (iii) 10 U.S.C. 12301(g) (retention on active duty while in captive status); (iv) 10 U.S.C. 12302 (involuntary active duty during a national emergency for up to 24 months); (v) 10 U.S.C. 12304 (involuntary active duty for an operational mission for up to 270 days); (vi) 10 U.S.C. 12305 (involuntary retention on active duty of a critical person during time of crisis or other specific conditions); (vii) 14 U.S.C. 331 (involuntary active duty by retired Coast Guard officer); (viii) 14 U.S.C. 332 (voluntary active duty by retired Coast Guard officer); (ix) 14 U.S.C. 359 (involuntary active duty by retired Coast Guard enlisted member); (x) 14 U.S.C. 360 (voluntary active duty by retired Coast Guard enlisted membe… | ||
| 20:20:4.0.5.3.3.3.147.34 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.104 | § 1002.104 Is the employee required to accommodate his or her employer's needs as to the timing, frequency or duration of service? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | No. The employee is not required to accommodate his or her employer's interests or concerns regarding the timing, frequency, or duration of uniformed service. The employer cannot refuse to reemploy the employee because it believes that the timing, frequency or duration of the service is unreasonable. However, the employer is permitted to bring its concerns over the timing, frequency, or duration of the employee's service to the attention of the appropriate military authority. Regulations issued by the Department of Defense at 32 CFR 104.4 direct military authorities to provide assistance to an employer in addressing these types of employment issues. The military authorities are required to consider requests from employers of National Guard and Reserve members to adjust scheduled absences from civilian employment to perform service. | ||
| 20:20:4.0.5.3.3.3.148.35 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.115 | § 1002.115 Is the employee required to report to or submit a timely application for reemployment to his or her pre-service employer upon completing the period of service in the uniformed services? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | Yes. Upon completing service in the uniformed services, the employee must notify the pre-service employer of his or her intent to return to the employment position by either reporting to work or submitting a timely application for reemployment. Whether the employee is required to report to work or submit a timely application for reemployment depends upon the length of service, as follows: (a) Period of service less than 31 days or for a period of any length for the purpose of a fitness examination. If the period of service in the uniformed services was less than 31 days, or the employee was absent from a position of employment for a period of any length for the purpose of an examination to determine his or her fitness to perform service, the employee must report back to the employer not later than the beginning of the first full regularly-scheduled work period on the first full calendar day following the completion of the period of service, and the expiration of eight hours after a period allowing for safe transportation from the place of that service to the employee's residence. For example, if the employee completes a period of service and travel home, arriving at ten o'clock in the evening, he or she cannot be required to report to the employer until the beginning of the next full regularly-scheduled work period that begins at least eight hours after arriving home, i.e. , no earlier than six o'clock the next morning. If it is impossible or unreasonable for the employee to report within such time period through no fault of his or her own, he or she must report to the employer as soon as possible after the expiration of the eight-hour period. (b) Period of service more than 30 days but less than 181 days. If the employee's period of service in the uniformed services was for more than 30 days but less than 181 days, he or she must submit an application for reemployment (written or verbal) with the employer not later than 14 days after completing service. If it is impossible or unreasonable for the employee… | ||
| 20:20:4.0.5.3.3.3.148.36 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.116 | § 1002.116 Is the time period for reporting back to an employer extended if the employee is hospitalized for, or convalescing from, an illness or injury incurred in, or aggravated during, the performance of service? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | Yes. If the employee is hospitalized for, or convalescing from, an illness or injury incurred in, or aggravated during, the performance of service, he or she must report to or submit an application for reemployment to the employer at the end of the period necessary for recovering from the illness or injury. This period may not exceed two years from the date of the completion of service, except that it must be extended by the minimum time necessary to accommodate circumstances beyond the employee's control that make reporting within the period impossible or unreasonable. This period for recuperation and recovery extends the time period for reporting to or submitting an application for reemployment to the employer, and is not applicable following reemployment. | ||
| 20:20:4.0.5.3.3.3.148.37 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.117 | § 1002.117 Are there any consequences if the employee fails to report for or submit a timely application for reemployment? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | (a) If the employee fails to timely report for or apply for reemployment, he or she does not automatically forfeit entitlement to USERRA's reemployment and other rights and benefits. Rather, the employee becomes subject to the conduct rules, established policy, and general practices of the employer pertaining to an absence from scheduled work. (b) If reporting or submitting an employment application to the employer is impossible or unreasonable through no fault of the employee, he or she may report to the employer as soon as possible (in the case of a period of service less than 31 days) or submit an application for reemployment to the employer by the next full calendar day after it becomes possible to do so (in the case of a period of service from 31 to 180 days), and the employee will be considered to have timely reported or applied for reemployment. | ||
| 20:20:4.0.5.3.3.3.148.38 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.118 | § 1002.118 Is an application for reemployment required to be in any particular form? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | An application for reemployment need not follow any particular format. The employee may apply orally or in writing. The application should indicate that the employee is a former employee returning from service in the uniformed services and that he or she seeks reemployment with the pre-service employer. The employee is permitted but not required to identify a particular reemployment position in which he or she is interested. | ||
| 20:20:4.0.5.3.3.3.148.39 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.119 | § 1002.119 To whom must the employee submit the application for reemployment? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | The application must be submitted to the pre-service employer or to an agent or representative of the employer who has apparent responsibility for receiving employment applications. Depending upon the circumstances, such a person could be a personnel or human resources officer, or a first-line supervisor. If there has been a change in ownership of the employer, the application should be submitted to the employer's successor-in-interest. | ||
| 20:20:4.0.5.3.3.3.148.40 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.120 | § 1002.120 If the employee seeks or obtains employment with an employer other than the pre-service employer before the end of the period within which a reemployment application must be filed, will that jeopardize reemployment rights with the pre-service employer? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | No. The employee has reemployment rights with the pre-service employer provided that he or she makes a timely reemployment application to that employer. The employee may seek or obtain employment with an employer other than the pre-service employer during the period of time within which a reemployment application must be made, without giving up reemployment rights with the pre-service employer. However, such alternative employment during the application period should not be of a type that would constitute cause for the employer to discipline or terminate the employee following reemployment. For instance, if the employer forbids employees from working concurrently for a direct competitor during employment, violation of such a policy may constitute cause for discipline or even termination. | ||
| 20:20:4.0.5.3.3.3.148.41 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.121 | § 1002.121 Is the employee required to submit documentation to the employer in connection with the application for reemployment? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | Yes, if the period of service exceeded 30 days and if requested by the employer to do so. If the employee submits an application for reemployment after a period of service of more than 30 days, he or she must, upon the request of the employer, provide documentation to establish that: (a) The reemployment application is timely; (b) The employee has not exceeded the five-year limit on the duration of service (subject to the exceptions listed at § 1002.103); and, (c) The employee's separation or dismissal from service was not disqualifying. | ||
| 20:20:4.0.5.3.3.3.148.42 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.122 | § 1002.122 Is the employer required to reemploy the employee if documentation establishing the employee's eligibility does not exist or is not readily available? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | Yes. The employer is not permitted to delay or deny reemployment by demanding documentation that does not exist or is not readily available. The employee is not liable for administrative delays in the issuance of military documentation. If the employee is reemployed after an absence from employment for more than 90 days, the employer may require that he or she submit the documentation establishing entitlement to reemployment before treating the employee as not having had a break in service for pension purposes. If the documentation is received after reemployment and it shows that the employee is not entitled to reemployment, the employer may terminate employment and any rights or benefits that the employee may have been granted. | ||
| 20:20:4.0.5.3.3.3.148.43 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.123 | § 1002.123 What documents satisfy the requirement that the employee establish eligibility for reemployment after a period of service of more than thirty days? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | (a) Documents that satisfy the requirements of USERRA include the following: (1) DD (Department of Defense) 214 Certificate of Release or Discharge from Active Duty; (2) Copy of duty orders prepared by the facility where the orders were fulfilled carrying an endorsement indicating completion of the described service; (3) Letter from the commanding officer of a Personnel Support Activity or someone of comparable authority; (4) Certificate of completion from military training school; (5) Discharge certificate showing character of service; and, (6) Copy of extracts from payroll documents showing periods of service; (7) Letter from National Disaster Medical System (NDMS) Team Leader or Administrative Officer verifying dates and times of NDMS training or Federal activation. (b) The types of documents that are necessary to establish eligibility for reemployment will vary from case to case. Not all of these documents are available or necessary in every instance to establish reemployment eligibility. | ||
| 20:20:4.0.5.3.3.3.149.44 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.134 | § 1002.134 What type of discharge or separation from service is required for an employee to be entitled to reemployment under USERRA? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | USERRA does not require any particular form of discharge or separation from service. However, even if the employee is otherwise eligible for reemployment, he or she will be disqualified if the characterization of service falls within one of four categories. USERRA requires that the employee not have received one of these types of discharge. | ||
| 20:20:4.0.5.3.3.3.149.45 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.135 | § 1002.135 What types of discharge or separation from uniformed service will make the employee ineligible for reemployment under USERRA? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | Reemployment rights are terminated if the employee is: (a) Separated from uniformed service with a dishonorable or bad conduct discharge; (b) Separated from uniformed service under other than honorable conditions, as characterized by regulations of the uniformed service; (c) A commissioned officer dismissed as permitted under 10 U.S.C. 1161(a) by sentence of a general court-martial; in commutation of a sentence of a general court-martial; or, in time of war, by order of the President; or, (d) A commissioned officer dropped from the rolls under 10 U.S.C. 1161(b) due to absence without authority for at least three months; separation by reason of a sentence to confinement adjudged by a court-martial; or, a sentence to confinement in a Federal or State penitentiary or correctional institution. | ||
| 20:20:4.0.5.3.3.3.149.46 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.136 | § 1002.136 Who determines the characterization of service? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | The branch of service in which the employee performs the tour of duty determines the characterization of service. | ||
| 20:20:4.0.5.3.3.3.149.47 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.137 | § 1002.137 If the employee receives a disqualifying discharge or release from uniformed service and it is later upgraded, will reemployment rights be restored? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | Yes. A military review board has the authority to prospectively or retroactively upgrade a disqualifying discharge or release. A retroactive upgrade would restore reemployment rights providing the employee otherwise meets the Act's eligibility criteria. | ||
| 20:20:4.0.5.3.3.3.149.48 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.138 | § 1002.138 If the employee receives a retroactive upgrade in the characterization of service, will that entitle him or her to claim back wages and benefits lost as of the date of separation from service? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | No. A retroactive upgrade allows the employee to obtain reinstatement with the former employer, provided the employee otherwise meets the Act's eligibility criteria. Back pay and other benefits such as pension plan credits attributable to the time period between discharge and the retroactive upgrade are not required to be restored by the employer in this situation. | ||
| 20:20:4.0.5.3.3.3.150.49 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | C | Subpart C—Eligibility For Reemployment | 1002.139 | § 1002.139 Are there any circumstances in which the pre-service employer is excused from its obligation to reemploy the employee following a period of uniformed service? What statutory defenses are available to the employer in an action or proceeding for reemployment benefits? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | (a) Even if the employee is otherwise eligible for reemployment benefits, the employer is not required to reemploy him or her if the employer establishes that its circumstances have so changed as to make reemployment impossible or unreasonable. For example, an employer may be excused from reemploying the employee where there has been an intervening reduction in force that would have included that employee. The employer may not, however, refuse to reemploy the employee on the basis that another employee was hired to fill the reemployment position during the employee's absence, even if reemployment might require the termination of that replacement employee; (b) Even if the employee is otherwise eligible for reemployment benefits, the employer is not required to reemploy him or her if it establishes that assisting the employee in becoming qualified for reemployment would impose an undue hardship, as defined in § 1002.5(n) and discussed in § 1002.198, on the employer; or, (c) Even if the employee is otherwise eligible for reemployment benefits, the employer is not required to reemploy him or her if it establishes that the employment position vacated by the employee in order to perform service in the uniformed services was for a brief, nonrecurrent period and there was no reasonable expectation that the employment would continue indefinitely or for a significant period. (d) The employer defenses included in this section are affirmative ones, and the employer carries the burden to prove by a preponderance of the evidence that any one or more of these defenses is applicable. | ||
| 20:20:4.0.5.3.3.4.151.1 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | D | Subpart D—Rights, Benefits, and Obligations of Persons Absent from Employment Due to Service in the Uniformed Services | 1002.149 | § 1002.149 What is the employee's status with his or her civilian employer while performing service in the uniformed services? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | During a period of service in the uniformed services, the employee is deemed to be on furlough or leave of absence from the civilian employer. In this status, the employee is entitled to the non-seniority rights and benefits generally provided by the employer to other employees with similar seniority, status, and pay that are on furlough or leave of absence. Entitlement to these non-seniority rights and benefits is not dependent on how the employer characterizes the employee's status during a period of service. For example, if the employer characterizes the employee as “terminated” during the period of uniformed service, this characterization cannot be used to avoid USERRA's requirement that the employee be deemed on furlough or leave of absence, and therefore entitled to the non-seniority rights and benefits generally provided to employees on furlough or leave of absence. | ||
| 20:20:4.0.5.3.3.4.151.2 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | D | Subpart D—Rights, Benefits, and Obligations of Persons Absent from Employment Due to Service in the Uniformed Services | 1002.150 | § 1002.150 Which non-seniority rights and benefits is the employee entitled to during a period of service? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | (a) The non-seniority rights and benefits to which an employee is entitled during a period of service are those that the employer provides to similarly situated employees by an employment contract, agreement, policy, practice, or plan in effect at the employee's workplace. These rights and benefits include those in effect at the beginning of the employee's employment and those established after employment began. They also include those rights and benefits that become effective during the employee's period of service and that are provided to similarly situated employees on furlough or leave of absence. (b) If the non-seniority benefits to which employees on furlough or leave of absence are entitled vary according to the type of leave, the employee must be given the most favorable treatment accorded to any comparable form of leave when he or she performs service in the uniformed services. In order to determine whether any two types of leave are comparable, the duration of the leave may be the most significant factor to compare. For instance, a two-day funeral leave will not be “comparable” to an extended leave for service in the uniformed service. In addition to comparing the duration of the absences, other factors such as the purpose of the leave and the ability of the employee to choose when to take the leave should also be considered. (c) As a general matter, accrual of vacation leave is considered to be a non-seniority benefit that must be provided by an employer to an employee on a military leave of absence only if the employer provides that benefit to similarly situated employees on comparable leaves of absence. | ||
| 20:20:4.0.5.3.3.4.151.3 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | D | Subpart D—Rights, Benefits, and Obligations of Persons Absent from Employment Due to Service in the Uniformed Services | 1002.151 | § 1002.151 If the employer provides full or partial pay to the employee while he or she is on military leave, is the employer required to also provide the non-seniority rights and benefits ordinarily granted to similarly situated employees on furlough or leave of absence? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | Yes. If the employer provides additional benefits such as full or partial pay when the employee performs service, the employer is not excused from providing other rights and benefits to which the employee is entitled under the Act. | ||
| 20:20:4.0.5.3.3.4.151.4 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | D | Subpart D—Rights, Benefits, and Obligations of Persons Absent from Employment Due to Service in the Uniformed Services | 1002.152 | § 1002.152 If employment is interrupted by a period of service in the uniformed services, are there any circumstances under which the employee is not entitled to the non-seniority rights and benefits ordinarily granted to similarly situated employees on furlough or leave of absence? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | If employment is interrupted by a period of service in the uniformed services and the employee knowingly provides written notice of intent not to return to the position of employment after service in the uniformed services, he or she is not entitled to those non-seniority rights and benefits. The employee's written notice does not waive entitlement to any other rights to which he or she is entitled under the Act, including the right to reemployment after service. | ||
| 20:20:4.0.5.3.3.4.151.5 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | D | Subpart D—Rights, Benefits, and Obligations of Persons Absent from Employment Due to Service in the Uniformed Services | 1002.153 | § 1002.153 If employment is interrupted by a period of service in the uniformed services, is the employee permitted upon request to use accrued vacation, annual or similar leave with pay during the service? Can the employer require the employee to use accrued leave during a period of service? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | (a) If employment is interrupted by a period of service, the employee must be permitted upon request to use any accrued vacation, annual, or similar leave with pay during the period of service, in order to continue his or her civilian pay. However, the employee is not entitled to use sick leave that accrued with the civilian employer during a period of service in the uniformed services, unless the employer allows employees to use sick leave for any reason, or allows other similarly situated employees on comparable furlough or leave of absence to use accrued paid sick leave. Sick leave is usually not comparable to annual or vacation leave; it is generally intended to provide income when the employee or a family member is ill and the employee is unable to work. (b) The employer may not require the employee to use accrued vacation, annual, or similar leave during a period of service in the uniformed services. | ||
| 20:20:4.0.5.3.3.4.152.10 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | D | Subpart D—Rights, Benefits, and Obligations of Persons Absent from Employment Due to Service in the Uniformed Services | 1002.167 | § 1002.167 What actions may a plan administrator take if the employee does not elect or pay for continuing coverage in a timely manner? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | The actions a plan administrator may take regarding the provision or cancellation of an employee's continuing coverage depend on whether the employee is excused from the requirement to give advance notice, whether the plan has established reasonable rules for election of continuation coverage, and whether the plan has established reasonable rules for the payment for continuation coverage. (a) No notice of service and no election of continuation coverage: If an employer provides employment-based health coverage to an employee who leaves employment for uniformed service without giving advance notice of service, the plan administrator may cancel the employee's health plan coverage upon the employee's departure from employment for uniformed service. However, in cases in which an employee's failure to give advance notice of service was excused under the statute because it was impossible, unreasonable, or precluded by military necessity, the plan administrator must reinstate the employee's health coverage retroactively upon his or her election to continue coverage and payment of all unpaid amounts due, and the employee must incur no administrative reinstatement costs. In order to qualify for an exception to the requirement of timely election of continuing health care, an employee must first be excused from giving notice of service under the statute. (b) Notice of service but no election of continuing coverage: Plan administrators may develop reasonable requirements addressing how continuing coverage may be elected. Where health plans are also covered under the Consolidated Omnibus Budget Reconciliation Act of 1985, 26 U.S.C. 4980B (COBRA), it may be reasonable for a health plan administrator to adopt COBRA-compliant rules regarding election of continuing coverage, as long as those rules do not conflict with any provision of USERRA or this rule. If an employer provides employment-based health coverage to an employee who leaves employment for uniformed service for a period of service in excess of 30 days after havi… | ||
| 20:20:4.0.5.3.3.4.152.11 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | D | Subpart D—Rights, Benefits, and Obligations of Persons Absent from Employment Due to Service in the Uniformed Services | 1002.168 | § 1002.168 If the employee's coverage was terminated at the beginning of or during service, does his or her coverage have to be reinstated upon reemployment? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | (a) If health plan coverage for the employee or a dependent was terminated by reason of service in the uniformed services, that coverage must be reinstated upon reemployment. An exclusion or waiting period may not be imposed in connection with the reinstatement of coverage upon reemployment, if an exclusion or waiting period would not have been imposed had coverage not been terminated by reason of such service. (b) USERRA permits a health plan to impose an exclusion or waiting period as to illnesses or injuries determined by the Secretary of Veterans Affairs to have been incurred in, or aggravated during, performance of service in the uniformed services. The determination that the employee's illness or injury was incurred in, or aggravated during, the performance of service may only be made by the Secretary of Veterans Affairs or his or her representative. Other coverage, for injuries or illnesses that are not service-related (or for the employee's dependents, if he or she has dependent coverage), must be reinstated subject to paragraph (a) of this section. | ||
| 20:20:4.0.5.3.3.4.152.12 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | D | Subpart D—Rights, Benefits, and Obligations of Persons Absent from Employment Due to Service in the Uniformed Services | 1002.169 | § 1002.169 Can the employee elect to delay reinstatement of health plan coverage until a date after the date he or she is reemployed? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | USERRA requires the employer to reinstate health plan coverage upon request at reemployment. USERRA permits but does not require the employer to allow the employee to delay reinstatement of health plan coverage until a date that is later than the date of reemployment. | ||
| 20:20:4.0.5.3.3.4.152.13 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | D | Subpart D—Rights, Benefits, and Obligations of Persons Absent from Employment Due to Service in the Uniformed Services | 1002.170 | § 1002.170 In a multiemployer health plan, how is liability allocated for employer contributions and benefits arising under USERRA's health plan provisions? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | Liability under a multiemployer plan for employer contributions and benefits in connection with USERRA's health plan provisions must be allocated either as the plan sponsor provides, or, if the sponsor does not provide, to the employee's last employer before his or her service. If the last employer is no longer functional, liability for continuing coverage is allocated to the health plan. | ||
| 20:20:4.0.5.3.3.4.152.14 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | D | Subpart D—Rights, Benefits, and Obligations of Persons Absent from Employment Due to Service in the Uniformed Services | 1002.171 | § 1002.171 How does the continuation of health plan benefits apply to a multiemployer plan that provides health plan coverage through a health benefits account system? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | (a) Some employees receive health plan benefits provided pursuant to a multiemployer plan that utilizes a health benefits account system in which an employee accumulates prospective health benefit eligibility, also commonly referred to as “dollar bank,” “credit bank,” and “hour bank” plans. In such cases, where an employee with a positive health benefits account balance elects to continue the coverage, the employee may further elect either option below: (1) The employee may expend his or her health account balance during an absence from employment due to service in the uniformed services in lieu of paying for the continuation of coverage as set out in § 1002.166. If an employee's health account balance becomes depleted during the applicable period provided for in § 1002.164(a), the employee must be permitted, at his or her option, to continue coverage pursuant to § 1002.166. Upon reemployment, the plan must provide for immediate reinstatement of the employee as required by § 1002.168, but may require the employee to pay the cost of the coverage until the employee earns the credits necessary to sustain continued coverage in the plan. (2) The employee may pay for continuation coverage as set out in § 1002.166, in order to maintain intact his or her account balance as of the beginning date of the absence from employment due to service in the uniformed services. This option permits the employee to resume usage of the account balance upon reemployment. (b) Employers or plan administrators providing such plans should counsel employees of their options set out in this subsection. | ||
| 20:20:4.0.5.3.3.4.152.6 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | D | Subpart D—Rights, Benefits, and Obligations of Persons Absent from Employment Due to Service in the Uniformed Services | 1002.163 | § 1002.163 What types of health plans are covered by USERRA? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | (a) USERRA defines a health plan to include an insurance policy or contract, medical or hospital service agreement, membership or subscription contract, or arrangement under which the employee's health services are provided or the expenses of those services are paid. (b) USERRA covers group health plans as defined in the Employee Retirement Income Security Act of 1974 (ERISA) at 29 U.S.C. 1191b(a). USERRA applies to group health plans that are subject to ERISA, and plans that are not subject to ERISA, such as those sponsored by State or local governments or religious organizations for their employees. (c) USERRA covers multiemployer plans maintained pursuant to one or more collective bargaining agreements between employers and employee organizations. USERRA applies to multiemployer plans as they are defined in ERISA at 29 U.S.C. 1002(37). USERRA contains provisions that apply specifically to multiemployer plans in certain situations. | ||
| 20:20:4.0.5.3.3.4.152.7 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | D | Subpart D—Rights, Benefits, and Obligations of Persons Absent from Employment Due to Service in the Uniformed Services | 1002.164 | § 1002.164 What health plan coverage must the employer provide for the employee under USERRA? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | If the employee has coverage under a health plan in connection with his or her employment, the plan must permit the employee to elect to continue the coverage for a certain period of time as described below: (a) When the employee is performing service in the uniformed services, he or she is entitled to continuing coverage for himself or herself (and dependents if the plan offers dependent coverage) under a health plan provided in connection with the employment. The plan must allow the employee to elect to continue coverage for a period of time that is the lesser of: (1) The 24-month period beginning on the date on which the employee's absence for the purpose of performing service begins; or, (2) The period beginning on the date on which the employee's absence for the purpose of performing service begins, and ending on the date on which he or she fails to return from service or apply for a position of employment as provided under sections 1002.115-123 of these regulations. (b) USERRA does not require the employer to establish a health plan if there is no health plan coverage in connection with the employment, or, where there is a plan, to provide any particular type of coverage. (c) USERRA does not require the employer to permit the employee to initiate new health plan coverage at the beginning of a period of service if he or she did not previously have such coverage. | ||
| 20:20:4.0.5.3.3.4.152.8 | 20 | Employees' Benefits | IX | 1002 | PART 1002—REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 | D | Subpart D—Rights, Benefits, and Obligations of Persons Absent from Employment Due to Service in the Uniformed Services | 1002.165 | § 1002.165 How does the employee elect continuing health plan coverage? | SSA-OIG | 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). | 70 FR 75292, Dec. 19, 2005, unless otherwise noted. | USERRA does not specify requirements for electing continuing coverage. Health plan administrators may develop reasonable requirements addressing how continuing coverage may be elected, consistent with the terms of the plan and the Act's exceptions to the requirement that the employee give advance notice of service in the uniformed services. For example, the employee cannot be precluded from electing continuing health plan coverage under circumstances where it is impossible or unreasonable for him or her to make a timely election of coverage. |
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