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VETS Final Rule

Notice of Rights and Duties Under the Uniformed Services Employment and Reemployment Rights Act; Interim Final Rule [03/10/2005]

[PDF Version]

Volume 70, Number 46, Page 12105-12109


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Part IV





Department of Labor





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Veterans' Employment and Training Service



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20 CFR Part 1002



Notice of Rights and Duties Under the Uniformed Services Employment and 
Reemployment Rights Act; Interim Final Rule


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DEPARTMENT OF LABOR

Veterans' Employment and Training Service

20 CFR Part 1002

RIN 1293-AA14

 
Notice of Rights and Duties Under the Uniformed Services 
Employment and Reemployment Rights Act

AGENCY: Veterans' Employment and Training Service, Department of Labor.

ACTION: Interim final rule; request for comments.

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SUMMARY: The Veterans' Employment and Training Service (VETS) of the 
Department of Labor (Department of DOL) is issuing this interim final 
rule to implement a requirement of the Veterans Benefits Improvement 
Act of 2004 (VBIA), Pub. Law 108-454 (Dec. 10, 2004). The VBIA amended 
the Uniformed Services Employment and Reemployment Rights Act (USERRA) 
by adding a requirement that employers provide a notice of the rights, 
benefits, and obligations of employees and employers under USERRA. The 
text of this notice is included in this interim final rule. This 
interim final rule does not affect the Department's pending proposal to 
implement the USERRA, which was published in the Federal Register of 
September 20, 2004.

DATES: Effective Date: This interim final rule is effective March 10, 
2005.
    Comment Date: Interested persons are invited to submit written 
comments on this interim final rule. To ensure consideration, comments 
must be received on or before May 9, 2005.

ADDRESSES: You may submit comments, identified by ``Docket No. VETS-U-
05,'' by any of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 

Web site instructions for submitting comments.
    Electronic mail: Comments may be submitted by e-mail to: 
vetspublic@dol.gov. Include ``Docket No. VETS-U-05'' on the subject 
line of the message. You can attach materials that are in Microsoft 
Office formats such as Word, Excel, and Power Point. Attachments may 
also be made using Adobe Acrobat, Word Perfect, or ASCII/text 
documents. You cannot attach materials using executables (.exe, .com, 
.bat) or any encrypted zip files.
    Facsimile (fax): VETS at (202) 693-4754.
    Mail, Express Delivery, Hand Delivery, and Messenger Service: 
Submit an original and three copies of written comments and attachments 
to the Office of Operations and Programs, Docket No.VETS-U-05, Room S-
1316, U.S. Department of Labor, 200 Constitution Ave., NW., Washington, 
DC 20210; telephone (202) 693-4711. If possible, provide your written 
comments on a computer disc. Contact Mr. Gary Smith at (202) 693-4724 
with any formatting questions. Normal hours of operation for the VETS 
Office of Operations and Programs and the Department of Labor are 8:15 
a.m. to 4:45 p.m., Eastern Time, Monday through Friday (except Federal 
holidays). Note that security-related problems may result in 
significant delays in receiving comments and other written materials by 
regular mail. Because DOL continues to experience delays in receiving 
postal mail in the Washington, DC area, commenters are encouraged to 
submit any comments by mail early. Contact Mr. Kenan Torrans, VETS 
Office of Operations and Programs, at (202) 693-4731 for information 
regarding security procedures concerning delivery of materials by 
express delivery, hand delivery, and messenger service.
    Docket Access: All comments and submissions will be available for 
inspection and copying in the VETS Office of Operations and Programs at 
the address above during normal hours of operation. Contact Mr. Kenan 
Torrans, VETS Office of Operations and Programs, at (202) 693-4731 for 
information about access to the docket submissions. Because comments 
sent to the docket are available for public inspection, the Agency 
cautions commenters against including in their comments personal 
information such as social security numbers and birth dates. Persons 
who need assistance to review the comments will be provided with 
appropriate aids such as readers or print magnifiers. Copies of this 
interim final rule may be obtained in alternative formats (e.g., large 
print, Braille, audiotape, or disk) upon request.

FOR FURTHER INFORMATION CONTACT: For information, contact Mr. Kenan 
Torrans, Office of Operations and Programs, Veterans' Employment and 
Training Service (VETS), U.S. Department of Labor, Room S1316, 200 
Constitution Ave., NW., Washington, DC 20210. Telephone: (202) 693-4731 
(this is not a toll-free number). Electronic mail: 
torrans-william@dol.gov. For press inquiries, contact Michael Biddle, Office of 

Public Affairs, U.S. Department of Labor, Room S-1032, 200 Constitution 
Avenue, NW., Washington, DC 20210. Telephone: (202) 693-5051 (this is 
not a toll-free number). Electronic mail: biddle.michael@dol.gov.
    Individuals with hearing or speech impairments may access the 
telephone numbers above via TTY by calling the toll-free Federal 
Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

    The Veterans Benefits Improvement Act of 2004 (VBIA), Pub. Law No. 
108-454 (Dec. 10, 2004), amended several provisions of the Uniformed 
Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 
U.S.C. 4301-4333. In part, the VBIA imposed a new requirement, to be 
codified at 38 U.S.C. 4334, that ``Each employer shall provide to 
persons entitled to rights and benefits under [USERRA] a notice of the 
rights, benefits, and obligations of such persons and such employers 
under [USERRA].'' Employers may provide the notice by posting it where 
employee notices are customarily placed. However, employers are free to 
provide the notice to employees in other ways that will minimize costs 
while ensuring that the full text of the notice is provided (e.g., by 
handing or mailing out the notice, or distributing the notice via 
electronic mail).
    The VBIA requires the Secretary of Labor to make available to 
employers the text of the required notice not later than March 10, 
2005, ninety days after the enactment of the VBIA. The publication of 
this interim final rule containing the text of the notice is pursuant 
to this Congressional mandate. Effective March 10, the VBIA requires 
employers to provide the notice ``to persons entitled to rights and 
benefits'' under USERRA.
    The VBIA also created a demonstration project under which about 
half of the claims against Federal executive agencies arising under 
USERRA will be transferred by the Department of Labor to the Office of 
Special Counsel. Section 204(a) of the VBIA directs the ``Secretary of 
Labor and the Office of Special Counsel [to] carry out a demonstration 
project under which certain claims against Federal executive agencies 
under [USERRA] are referred to * * * the Office of Special Counsel for 
assistance, including investigation and resolution of the claim as well 
as enforcement of rights with respect to the claim.'' Under this 
demonstration project, the Secretary of Labor transfers to OSC those 
cases involving Federal executive agency employees with odd-numbered 
social security numbers. The demonstration project began on February 8, 
2005, and will end on September 30, 2007.

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    USERRA provides employment and reemployment rights for members of 
the uniformed services, including veterans and members of the Reserve 
and National Guard. Under USERRA, service members who leave their 
civilian jobs for military service can perform their duties with the 
knowledge that they will be able to return to their jobs with the same 
pay, benefits, and status they would have attained had they not been 
away on duty. USERRA also prohibits employers from discriminating 
against these individuals in employment because of their military 
service.
    Over 460,000 members of the National Guard and Reserve have been 
mobilized since the President's declaration of a national emergency 
following the attacks of September 11, 2001. As service members 
conclude their tours of duty and return to civilian employment, it is 
important that employees be fully informed of their USERRA rights, 
benefits, and obligations. It is also important for service members to 
know how the Department can assist them in enforcing these rights. 
Providing employees with a notice of the USERRA rights, benefits, and 
obligations of employees and employers advances these objectives.
    The publication of this interim final rule does not affect the 
Department's pending proposal to issue regulations implementing the 
USERRA, which was published in the Federal Register of September 20, 
2004, and which is expected to result in a final rule in 2005.

II. Administrative Information

Executive Order 12866--Regulatory Planning and Review

    The interim final rule has been drafted and reviewed in accordance 
with Executive Order 12866, section 1(b), Principles of Regulation. The 
Department has determined that this proposed rule is not an 
``economically significant'' regulatory action under section 3(f)(1) of 
Executive Order 12866. Based on a preliminary analysis of the data, the 
rule is not likely to: (1) Have an annual effect on the economy of $100 
million; (2) create a serious inconsistency or otherwise interfere with 
an action taken or planned by another agency; or (3) materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients thereof. As a 
result, the Department has concluded that a full economic impact and 
cost/benefit analysis is not required for the interim final rule under 
Section 6(a)(3) of the Order. However, because of its importance to the 
public the interim final rule is a significant regulatory action and 
was reviewed by the Office of Management and Budget.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, Public Law 96-354 (94 Stat. 
1164; 5 U.S.C. 601 et seq.), Federal agencies are required to analyze 
the anticipated impact of proposed rules on small entities. VETS has 
notified the Chief Counsel for Advocacy, Small Business Administration, 
and made the certification pursuant to the Regulatory Flexibility Act 
at 5 U.S.C. 605(b), that this interim final rule will not have a 
significant economic impact on a substantial number of small entities.
    The basis for that certification is that this interim final rule 
will not have a significant economic impact on any employers because it 
only makes available to them information required to be posted or 
disseminated by statute. This information concerns employee rights, 
benefits, and obligations already available under Federal law. 
Accordingly, VETS concludes that the final rule will not have a 
significant economic impact on a substantial number of small business 
entities. Therefore, under the Regulatory Flexibility Act, 5 U.S.C. 
605(b), a regulatory flexibility analysis is not required.
    The Small Business Administration (SBA) estimates in ``A Guide for 
Government Agencies--How to Comply with the Regulatory Flexibility 
Act'' (May 2003), that 23 percent of business tax returns are filed by 
firms with employees. http://www.sba.gov/advo/laws/rfaguide.pdf. 

Internal Revenue Service statistics for Fiscal Year 2003 indicate that 
29,916,033 business tax returns were filed. http://www.irs.gov/pub/irs-soi/03db03nr.xls.
 Using the 23 percent SBA estimate, there were 

approximately 6,880,690 private employers with employees in FY 2003. 
For purposes of comparison, the U.S. Census Bureau cites a figure of at 
least 7,743,444 business establishments with employees for the year 
2002, the most recent year for which such statistics are available. See 
http://www.census.gov/econ/census02/advance/TABLE1.HTM. Consequently, 

VETS estimates that in FY2005 fewer than 8,000,000 private employers 
with employees are potentially covered by this interim final rule. 
Assuming a cost of $.15 for reproducing a copy of the notice and .1 
hour of clerical time at $19.05 per hour (based on National 
Compensation Survey: Occupational Wages in the United States, July 
2002, Bureau of Labor Statistics, U.S. Department of Labor, June 2003) 
to post or otherwise disseminate the notice, the per-employer cost for 
providing employees the notice contained in this interim rule is 
approximately $2.00 and the total cost for all private employers to 
comply is less than $16,000,000. Consequently, VETS concludes that the 
cost of compliance will not have a significant economic impact on a 
substantial number of small entities.
    The Department welcomes comments on this Regulatory Flexibility Act 
certification.

Unfunded Mandates Reform Act of 1995

    This interim final rule will not result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more in any one year, and it will 
not significantly or uniquely affect small governments. USERRA applies 
to all public employers. The Census Bureau lists a total of 265,641 
State and local governments in its 2002 Compendium of Public 
Employment; http://www.census.gov/prod/2004pubs/gc023x2.pdf. 

Consequently, VETS estimates that fewer than 300,000 State and local 
employers are covered by this interim final rule. Assuming a cost of 
$.15 for reproducing a copy of the notice and .1 hour of clerical time 
at $19.05 per hour (based on National Compensation Survey: Occupational 
Wages in the United States, July 2002, Bureau of Labor Statistics, U.S. 
Department of Labor, June 2003) to post or otherwise disseminate the 
notice, the per-employer cost for providing employees the notice 
contained in this interim rule is less than $2.00 and the total cost 
for all State and local employers to comply is less than $600,000, and 
as discussed above the total cost for all private employers to comply 
is less than $16,000,000. Therefore, no actions are necessary under the 
provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This interim final rule is not a major rule as defined by section 
804 of the Small Business Regulatory Enforcement Act of 1996 (SBREFA). 
The standards for determining whether a rule is a major rule as defined 
by section 804 of SBREFA are similar to those used to determine whether 
a rule is an ``economically significant regulatory action'' within the 
meaning of Executive Order 12866. Because VETS certified that this 
interim final rule is not an economically significant rule under 
Executive Order 12866, VETS certifies that it also is not a major rule 
under SBREFA. It will not result in an annual effect on the economy of 
$100 million

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or more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign-based companies in domestic and export markets.

Executive Order 13132--Federalism

    This interim final rule will not have a substantial direct effect 
on the States, on the relationship between the National Government and 
the States, or on the distribution of power and responsibilities among 
the various levels of government. Therefore, in accordance with 
Executive Order 13132, VETS has determined that this interim final rule 
does not have sufficient federalism implications to warrant the 
preparation of a summary impact statement.

Paperwork Reduction Act

    The public disclosure of information supplied by the Federal 
government to the recipient for the purpose of disclosure to the public 
is not included within the definition of ``collection of information'' 
under the Paperwork Reduction Act (PRA). See 5 CFR 1320.3(c)(2). Here, 
the notice made available by this interim final rule is supplied by the 
Department of Labor. Consequently, the Department believes the 
Paperwork Reduction Act is inapplicable to this interim final rule. The 
Department invites the public to comment on its Paperwork Reduction Act 
analysis.

Publication as an Interim Final Rule

    The Department has determined that it is impracticable to publish 
this notice of USERRA rights, benefits, and obligations as a Notice of 
Proposed Rulemaking, with the delays inherent to the process of 
publishing a proposed rule, receiving and reviewing comments, and 
preparing and publishing a final rule. Moreover, USERRA is enforceable 
by private citizens, the Department of Justice, and the Office of 
Special Counsel, so any potential harm to employers caused by delay in 
publication cannot be ameliorated solely through the exercise of the 
Department's administrative discretion to defer enforcement 
proceedings. This interim final rule will allow timely transmittal to 
affected parties of the text of the notice required by the VBIA 
amendment, within the short timeframe mandated by Congress. Therefore, 
the Department finds pursuant to 5 U.S.C. 553(b)(3)(B) that good cause 
exists for publishing this notice as an interim final rule.
    The Department invites the public to comment on this interim final 
rule. The Department will consider the comments received and, through 
the issuance of a final rule, make adjustments to the text of the 
notice as is required or advisable. Consequently, the content of the 
notice contained in this interim final rule will gain the full benefit 
of public notice and comment.

List of Subjects in 20 CFR Part 1002

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

0
For the reasons stated in the preamble, the Veterans' Employment and 
Training Service, Department of Labor, adds a new part 1002 to chapter 
IX of title 20 of the Code of Federal Regulations to read as follows:

PART 1002--REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND 
REEMPLOYMENT RIGHTS ACT OF 1994

Sec.


1002.1 through 1002.314  [Reserved]

Appendix to Part 1002--Your Rights Under USERRA

    Authority: Veterans Benefits Improvement Act of 2004 (VBIA), 
Pub. L. 108-454 (Dec. 10, 2004).

PART 1002--REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND 
REEMPLOYMENT RIGHTS ACT OF 1994

Appendix to Part 1002--Your Rights Under USERRA

A. The Uniformed Services Employment and Reemplyment Rights Act

    USERRA protects the job rights of individuals who voluntarily or 
involuntarily leave employment positions to undertake military 
service. USERRA also prohibits employers from discriminating against 
past and present members of the uniformed services, and applicants 
to the uniformed services.

B. Reemployment Rights

    You have the right to be reemployed in your civilian job if you 
leave that job to perform service in the uniformed service and:
     You ensure that your employer receives advance written 
or verbal notice of your service;
     You have five years or less of cumulative service in 
the uniformed services while with that particular employer;
     You return to work or apply for reemployment in a 
timely manner after conclusion of service; and
     You have not been separated from service with a 
disqualifying discharge or under other than honorable conditions.
    If you are eligible to be reemployed, you must be restored to 
the job and benefits you would have attained if you had not been 
absent due to military service or, in some cases, a comparable job.

C. Right to be Free From Discrimination and Retaliation

    If you:
     Are a past or present member of the uniformed service;
     Have applied for membership in the uniformed service; 
or
     Are obligated to serve in the uniformed service;

then an employer may not deny you

     Initial employment;
     Reemployment;
     Retention in employment;
     Promotion; or
     Any benefit of employment.

because of this status.

    In addition, an employer may not retaliate against anyone 
assisting in the enforcement of USERRA rights, including testifying 
or making a statement in connection with a proceeding under USERRA, 
even if that person has no service connection.

D. Health Insurance Protection

     If you leave your job to perform military service, you 
have the right to elect to continue your existing employer-based 
health plan coverage for you and your dependents for up to 24 months 
while in the military.
     Even if you don't elect to continue coverage during 
your military service, you have the right to be reinstated in your 
employer's health plan when you are reemployed, generally without 
any waiting periods or exclusions (e.g., pre-existing condition 
exclusions) except for service-connected illnesses or injuries.

E. Enforcement

     The U.S. Department of Labor, Veterans Employment and 
Training Service (VETS) is authorized to investigate and resolve 
complaints of USERRA violations.
    For assistance in filing a complaint, or for any other 
information on USERRA, contact VETS at 1-866-4-USA-DOL (1-866-487-2365) or visit its 
website at http://www.dol.gov/vets An online guide to USERRA can be viewed at http://www.dol.gov/elaws/userra.htm.
     If you file a complaint with VETS and VETS is unable to 

resolve it, you may request that your case be referred to the 
Department of Justice or the Office of Special Counsel, depending on 
the employer, for representation.
     You may also bypass the VETS process and bring a civil 
action against an employer for violations of USERRA.
    The rights listed here may vary depending on the circumstances. 
This poster was prepared by VETS, and may be viewed on the internet 
at this address: http://www.dol.gov/vets/programs/userra/poster.pdf. 

Federal law requires employers to notify employees of their rights 
under USERRA, and employers may meet this requirement by displaying 
this poster where they customarily place notices for employees.

U.S. Department of Labor, Veterans Employment and Training Service, 
Washington, DC 20210, 1-866-487-2365.

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Publication Date--March 2005.

    Signed at Washington, DC, this 8th day of March, 2005.
Frederico Juarbe Jr.,
Assistant Secretary for Veterans' Employment and Training.
[FR Doc. 05-4871 Filed 3-9-05; 8:45 am]

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