[Congressional Record Volume 154, Number 63 (Monday, April 21, 2008)]
[Senate]
[Pages S3188-S3203]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NOTICE OF PROPOSED RULEMAKING

  Mr. BYRD. Madam President, I ask unanimous consent that the attached 
from the Office of Compliance be printed in the Record today, pursuant 
to section 304(b)(1) of the Congressional Accountability Act of 1995 (2 
U.S.C. 1384(b)(1)).
  There being no objection, the material was ordered to be printed in 
the Record, as follows:


        from the board of directors of the office of compliance

Notice of Proposed Rulemaking, and Request for Comments From Interested 
                                Parties

       New proposed regulations implementing certain substantive 
     employment rights and protections for veterans, as required 
     by 2 U.S.C. 1316, The Congressional Accountability Act of 
     1995, as amended (``CAA'').


                               Background

       The purpose of this Notice is to issue proposed substantive 
     regulations which will implement Section 206 of the CAA which 
     applies certain veterans' employment and reemployment rights 
     and protections to employing offices and employees covered by 
     the CAA.
     What is the authority under the CAA for these proposed 
         substantive regulations?
       The authority under the CAA for these proposed substantive 
     regulations is found in two sections of the CAA. Section 206 
     of the CAA, 2 U.S.C. Sec. 1316, applies certain provisions of 
     the Uniformed Services Employment and Reemployment Rights Act 
     (``USERRA''), Title 38, Chapter 43 of the United States Code. 
     Section 1316 of the CAA provides protections to eligible 
     employees in the uniformed services from discrimination, 
     denial of reemployment rights, and denial of employee 
     benefits. Subsection 1316(c) requires the Board not only to 
     issue regulations to implement these protections, but to 
     issue regulations which are ``the same as the most relevant 
     substantive regulations promulgated by the Secretary of Labor 
     . . .'' This section provides that the Board may only modify 
     the Department of Labor regulations if it can establish good 
     cause as to why a modification would be more effective for 
     application of the protections to the legislative branch.
       The second section that provides authority to the Board to 
     propose these regulations is found in section 1384. Section 
     1384 provides procedures for the rulemaking process in 
     general.
     Will these regulations, if approved, apply to all employees 
         otherwise covered by the CAA?
       Yes. USERRA's provisions, as applied by Section 206 of the 
     CAA, prohibit discrimination and retaliation against eligible 
     employees, who are defined by the CAA as covered employees 
     performing service in the uniformed services. Section 207(a) 
     of the CAA prohibits retaliation against covered employees 
     under the CAA, regardless of whether they have performed 
     service in the uniformed services. The distinction between 
     eligible employees and covered employees is the performance 
     of service in the uniformed services: eligible employees have 
     performed service in the uniformed services; covered 
     employees have not.
     Do other veterans' employment rights apply via the CAA to the 
         legislative branch employing offices and covered 
         employees?
       No. However, another statutory scheme regarding uniformed 
     service members' employment rights is incorporated, in part, 
     through section 1316a of the CAA. Section 1316a applies 
     sections 2108, 3309 through 3312 of the Veterans Employment 
     Opportunities Act (``VEOA''), and subchapter I of chapter 35 
     of Title 5. These provisions accord certain hiring and 
     retention rights to veterans of the uniformed services. The 
     VEOA language of the CAA also requires the Board of Directors 
     to issue substantive regulations patterned upon the most 
     relevant substantive regulations (applicable with respect to 
     the executive branch) which are promulgated to implement the 
     provisions of VEOA. After engaging in extensive discussions 
     with various stakeholders across Congress and the legislative 
     branch to determine how best to address certain provisions 
     within the regulations, the Board adopted the VEOA 
     regulations and submitted them to Congress on March 21, 2008. 
     Section 1316a of the CAA becomes effective once the 
     regulations for this section are passed by Congress.
     Which employment and reemployment protections are applied to 
         eligible employees in 2 U.S.C. 1316?
       USERRA was enacted in December 1994, and the Department of 
     Labor final regulations for the executive branch became 
     effective in 2006. USERRA's provisions ensure that entry and 
     re-entry into the civilian workforce are not hindered by 
     participation in military service. USERRA provides certain 
     reemployment rights, protection from discrimination based on 
     military service, denial of an employment benefit as a result 
     of military service, and retaliation for enforcing USERRA 
     protections.
       The selected statutory provisions which Congress 
     incorporated into the CAA and determined ``shall apply'' to 
     eligible employees in the legislative branch include nine 
     sections: sections 4303(13), 4304, 4311(a)(b), 4312, 4313, 
     4316, 4317, 4318, and paragraphs (1), (2)(A), and (3) of 
     4323(c) of title 38.
       The first section, section 4303(13), provides a definition 
     for ``service in the uniformed services.'' This is the only 
     definition in USERRA that Congress made applicable to the 
     legislative branch. Section 4303(13) references Section 4304, 
     which describes the ``character of service'' and illustrates 
     situations which would terminate eligible employees' rights 
     to USERRA benefits.
       Congress applied section 4311 to the legislative branch in 
     order to provide discrimination and retaliation protections, 
     respectively to eligible and covered employees. 
     Interestingly, although Congress adopted these protections, 
     it did not adopt the legal standard by which to establish a 
     violation of this section of the regulations.
       Sections 4312 and 4313 outline the reemployment rights that 
     are provided to eligible employees. These rights are 
     automatic under the statute, and if an employee meets the 
     eligibility requirements, he or she is entitled to the rights 
     provided therein.
       Sections 4316, 4317, and 4318 provide language on the 
     benefits given to eligible employees. The language in these 
     sections is largely statutory and has been altered very 
     little by the Board.
     Are there veterans' employment regulations already in force 
         under the CAA?
       No. The Board has issued to the Speaker of the House and 
     the President Pro Tempore of

[[Page S3189]]

     the Senate its Notice of Adoption of Substantive Regulations 
     and Transmittal for Congressional Approval for VEOA. The 
     Board awaits Congressional approval of those regulations.


                           Procedural Summary

     How are substantive regulations proposed and approved under 
         the CAA?
       Pursuant to section 304 of the CAA, 2 U.S.C. 1384, the 
     procedure for proposing and approving such substantive 
     regulations provides that:
       (1) the Board of Directors propose substantive regulations 
     and publish a general notice of proposed rulemaking in the 
     Congressional Record;
       (2) there be a comment period of at least 30 days after the 
     date of publication of the general notice of proposed 
     rulemaking;
       (3) after consideration of comments by the Board of 
     Directors, the Board adopt regulations and transmit notice of 
     such action (together with the regulations and a 
     recommendation regarding the method for Congressional 
     approval of the regulations) to the Speaker of the House and 
     President [P]ro [T]empore of the Senate for publication in 
     the Congressional Record;
       (4) there be committee referral and action on the proposed 
     regulations by resolution in each House, concurrent 
     resolution, or by joint resolution; and
       (5) final publication of the approved regulations in the 
     Congressional Record, with an effective date prescribed in 
     the final publication.
       For more detail, please reference the text of 2 U.S.C. 
     1384. This Notice of Proposed Rulemaking is step (1) of the 
     outline set forth above.
     Are these proposed regulations also recommended by the Office 
         of Compliance's Executive Director, the Deputy Executive 
         Director for the Senate, and the Deputy Executive 
         Director for the House of Representatives?
       As required by section 304(b)(1) of the CAA, 2 U.S.C. 
     1384(b)(1), the substance of these regulations is also 
     recommended by the Executive Director, the Deputy Executive 
     Director for the Senate and the Deputy Executive Director for 
     the House of Representatives.
     Has the Board of Directors previously proposed substantive 
         regulations implementing these veterans' employment 
         rights and benefits pursuant to 2 U.S.C. 1316?
       No.
     What is the approach taken by these proposed substantive 
         regulations?
       The Board will follow the procedure as enumerated above and 
     as required by statute. Once these regulations are proposed, 
     the Board anticipates engaging in extensive discussion with 
     stakeholders to ensure that the regulations contemplate and 
     reflect the practices and policies particular to the 
     legislative branch.
     What responsibilities would employing offices have in 
         effectively implementing these regulations?
       The Board charges the employing offices with the 
     responsibility to implement the applicable USERRA provisions, 
     including the prohibitions on discrimination and retaliation, 
     the obligation to reemploy service members who timely apply 
     for reemployment, and to provide the eligible, covered 
     employee with the employment benefits to which he or she is 
     entitled under USERRA, as applied by the CAA.
     Are there substantive differences in the proposed regulations 
         for the House of Representatives, the Senate, and the 
         other employing offices?
       No. The Board of Directors has identified no ``good cause'' 
     for varying the text of these regulations. Therefore, if 
     these regulations are approved as proposed, there will be one 
     text applicable to all employing offices and covered 
     employees.
     Are these proposed substantive regulations available to 
         persons with disabilities in an alternate format?
       This Notice of Proposed Regulations is available on the 
     Office of Compliance web site, www.compliance.gov, which is 
     compliant with section 508 of the Rehabilitation Act of 1973 
     as amended, 29 U.S.C. 794d. This Notice can also be made 
     available in large print or Braille. Requests for this Notice 
     in an alternative format should be made to: Annie Leftwood, 
     Executive Assistant, Office of Compliance, 110 2nd Street, 
     S.E., Room LA-200, Washington, D.C. 20540; 202-724-9250; TDD: 
     202-426-1912; FAX: 202-426-1913.


        30-Day Comment Period Regarding the Proposed Regulations

     How long do I have to submit comments regarding the proposed 
         regulations?
       Comments regarding the proposed regulations of the Office 
     of Compliance set forth in this Notice are invited for a 
     period of thirty (30) days following the date of the 
     appearance of this Notice in the Congressional Record.
     How do I submit comments?
       Comments must be made in writing to the Executive Director, 
     Office of Compliance, 110 Second Street, S.E., Room LA-200, 
     Washington, D.C. 20540-1999. It is requested, but not 
     required, that an electronic version of any comments be 
     provided either on an accompanying computer disk or e-mailed 
     to the Office of Compliance via its web site. Comments may 
     also be submitted by facsimile to the Executive Director at 
     202-426-1913 (a non-toll-free number). Those wishing to 
     receive confirmation of the receipt of their comments are 
     requested to provide a self-addressed, stamped post card with 
     their submission.
     Am I allowed to view copies of submitted comments by others?
       Yes. Copies of submitted comments will be available for 
     review on the Office's web site at www.compliance.gov, and at 
     the Office of Compliance, 110 Second Street, S.E., 
     Washington, D.C. 20540-1999, on Monday through Friday (non-
     Federal holidays) between the hours of 9:30 a.m. and 4:30 
     p.m.
     Supplementary Information:
       The Congressional Accountability Act of 1995, PL 104-1, was 
     enacted into law on January 23, 1995. The CAA, as amended, 
     applies the rights and protections of 12 federal labor and 
     employment statutes to covered employees and employing 
     offices within the legislative branch of the federal 
     government. Included among those rights are the protections 
     provided, in Section 206 of the CAA, to employees performing 
     service in the uniformed services. These protections are the 
     subject of these regulations.
       Section 301 of the CAA (2 U.S.C. 1381) establishes the 
     Office of Compliance as an independent office within the 
     legislative branch.

    More Detailed Discussion of the Text of the Proposed Regulations

       Please note in the accompanying regulations that USERRA is 
     applied by the CAA almost in its entirety. The subparts on 
     eligibility and reemployment rights (subparts C, D, and E) 
     were applied with minimal, if any, changes by the Board. The 
     Board relied heavily on Section 1316(c) of the CAA which 
     requires that these regulations be the same as those 
     promulgated by the Secretary of Labor unless the Board finds 
     and demonstrates good cause as to why a modification is 
     needed to be more effective for implementation in the 
     legislative branch. Where the Board determined that good 
     cause existed to require a modification, the Board so 
     modified. Otherwise, pursuant to Section 1316(c) of the CAA, 
     the Board made no changes to the Department of Labor 
     regulations.


Subpart A--Introduction to the Regulations under the Uniformed Services 
   Employment and Reemployment Rights Act of 1994 General Provisions

     The purpose of subpart A
       This subpart gives an introduction to USERRA as applied by 
     the CAA and clarifies the rights and benefits USERRA 
     establishes for employees, and the duties it places on 
     employing offices. USERRA affects employment, reemployment, 
     and retention in employment, when employees serve or have 
     served in the uniformed services.
       It is noted that nothing in these regulations shall be 
     construed to require an employing office to reduce any 
     returning service members' employment and reemployment rights 
     and protections that the office may currently afford to 
     eligible employees. Nor does USERRA serve to place an 
     eligible employee in a better position than he or she would 
     have been in had he or she not performed service in the 
     uniformed services.
       It is also important to note that Section 1316(d)(2) of the 
     CAA applies these protections to the Government 
     Accountability Office and the Library of Congress. Should 
     Congress extend Board jurisdiction over the Government 
     Printing Office (``GPO'') in the future, Congress should take 
     GPO's existing veterans' preference policies into account, 
     which may be based on independent statutory mandates.
     USERRA is not new law
       USERRA, as applied by the CAA, became effective as of 
     January 23, 1996. Its purpose was to strengthen previous 
     veterans' rights laws, such as the Veterans' Reemployment 
     Rights Act (``VRRA''), which was enacted as section 404 of 
     the Vietnam Era Veterans' Readjustment Assistance Act of 
     1974. The Department of Labor issued its USERRA regulations, 
     effective January 18, 2006.
     Role of the Executive Director of the Office of Compliance
       The role of the Executive Director of the Office of 
     Compliance, under USERRA as applied by the CAA, differs from 
     the role of the Secretary of Labor under the DOL regulations. 
     The Executive Director provides a program of education and 
     information to employees and employing offices regarding the 
     application of the USERRA provisions and the Office of 
     Compliance, and the Executive Director provides 
     administrative procedures for the consideration of alleged 
     violations. Because the Office of Compliance is an entity of 
     the legislative branch, the Executive Director is not guided 
     by Secretary's order 1-83, which allows the Secretary of 
     Labor to delegate authority for the administration of the 
     veterans reemployment rights program. (Memorandum of April 
     22, 2002 (67 FR 31827) Nor is the Executive Director 
     responsible for carrying out the same functional authority 
     vested in the Secretary of Labor, pursuant to USERRA. 
     Similarly, unlike the Secretary of Labor, the Board of 
     Directors of the Office of Compliance has rulemaking 
     authority, not the Executive Director.
     Applicable definitions
       Section 206 of the CAA specifically makes applicable only 
     one definition from USERRA to the CAA: service in the 
     uniformed services. Rules of construction found in Section 
     225 (f)(1) of the CAA allow that except where inconsistent 
     with definitions and exemptions provided elsewhere in the 
     CAA, the definitions and exemptions found in USERRA will

[[Page S3190]]

     apply. Therefore, the definitions that are provided in these 
     regulations are derived either from USERRA or from similar 
     definitions under the CAA.
     Types of service in the uniformed services that are covered 
         by USERRA
       Because the definition of ``service in the uniformed 
     services'' was applied directly to the legislative branch as 
     it was written in USERRA, the types of service which receive 
     protection under the CAA are the same types of service which 
     receive protection under DOL regulations: all categories of 
     military training and service, including duty performed on a 
     voluntary or involuntary basis, in time of peace or war; 
     persons serving in the active components of the Armed Forces; 
     and certain types of service specified in 42 U.S.C. 300hh-11 
     by members of the National Disaster Medical System. However, 
     the CAA limits protections to covered employees who are 
     deemed eligible under Section 206(a).
     USERRA vis-a-vis other laws, public contracts, and employing 
         office practices
       This subpart underscores the fact that USERRA allows an 
     employing office to provide rights and benefits that are 
     greater than those required by USERRA, but not lesser. It 
     clarifies that an employing office is not required to place 
     an eligible employee in a better place than he/she would 
     have been had he/she not served in the uniformed services. 
     It clarifies that USERRA supersedes any State law, 
     contract, agreement, policy, plan, practice, or other 
     matter that reduces any right or benefit provided by 
     USERRA. It does not, however, supersede, nullify, or 
     diminish any Federal or State law, contract, agreement, 
     policy, plan, practice, or other matter that establishes 
     an employment right or benefit that is more beneficial 
     than that provided under USERRA.


 Subpart B--Anti-discrimination and Anti-retaliation; Protection from 
                Employer Discrimination and Retaliation

       This subpart provides protections for eligible employees 
     against discrimination, as well as protections for both 
     eligible and covered employees against retaliation. The Board 
     has maintained the general application of this subpart and 
     has determined that the prohibitions against discrimination 
     and retaliation apply to all positions. Also consistent with 
     DOL regulations, the Board maintains that reemployment rights 
     and benefits do not apply to brief, nonrecurrent positions. 
     The Board found good cause, however, to differentiate from 
     the DOL regulations in certain sections of this subpart. 
     Consequently, the Board has modified this subpart to be more 
     effective for implementation in the legislative branch.
       Unlike DOL, the Board makes a distinction between 
     discrimination and retaliation. By not including in the CAA 
     the USERRA standard to establish a violation of this subpart, 
     Congress specifically excluded the ``but for'' standard which 
     is applied in DOL's USERRA regulations. Notably, the Board 
     chose a different standard for 207(a) retaliation in its 
     decision in Britton v. Office of the Architect of the 
     Capitol, 02-AC-20 (CV, RP). In Britton, the Board considered 
     Congress' intentional exclusion of the ``but for'' standard 
     in USERRA. As a result, the Board applied the McDonnell 
     Douglas three-part standard, which it applies to 207 claims 
     of retaliation.
       Because Congress adopted a uniform remedy for most 
     retaliation claims under the CAA, the Board has rejected an 
     ad hoc approach and has chosen to apply this Britton standard 
     to all claims of retaliation brought under Section 207(a) of 
     the CAA. The Board also has chosen to apply the Britton 
     standard for cases of retaliation brought under section 206. 
     The Board does not propose a particular standard for claims 
     of discrimination or retaliation brought by eligible 
     employees under section 206.
       As the Board has found good cause to make significant 
     changes to this subpart, the numbering of the particular 
     sections contained therein differs from those found in DOL's 
     regulations. To aid in a comparative review of the two sets 
     of regulations, the Board has included an index, comparing 
     DOL's numbering and the Board's numbering within each 
     subpart.
     USERRA's discrimination protections
       This subpart sets out that basic non-discrimination and 
     non-retaliation protections of USERRA are applied to the 
     legislative branch through these regulations. An employing 
     office may 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.
     USERRA's retaliation protections
       An employing office may not take any adverse employment 
     action that is reasonably likely to deter future protected 
     activity because of an eligible employee's service in the 
     uniformed services or an eligible or covered employee's 
     exercise of their rights under the statute. These protections 
     are similar to those found in DOL's regulations, except that 
     they are broadened to include retaliation protections as 
     found in section 207(a) of the CAA.
     USERRA's application to covered employees who do not actually 
         perform service in the uniformed services
       The CAA makes the protections under Section 206 of the CAA 
     strictly applicable to ``eligible employees.'' Such 
     ``eligible employees'' are defined as those performing 
     service in the uniformed services as defined by USERRA. 
     Section 207 of the CAA provides protections against 
     retaliation to those employees who are not eligible but who 
     are otherwise covered by the CAA. So, there are three types 
     of protection an ``eligible employee'' may receive under the 
     CAA: Discrimination protection as provided by Section 206 of 
     the CAA, retaliation protection as provided by Section 206 of 
     the CAA, and retaliation protection as provided by Section 
     207 of the CAA. Those employees who are not eligible for 
     protection under Section 206 because they have not performed 
     service in the uniformed services, but who otherwise are 
     covered by the CAA, receive retaliation protections as 
     provided by Section 207 of the CAA.


                Subpart C--Eligibility for Reemployment

       This subpart closely follows the Department of Labor 
     regulations, as well as Section 4316 of USERRA. The Board saw 
     no good cause to modify the regulations from those 
     promulgated by the Secretary of Labor.
       One item to note, however, is the multi-employer language, 
     The Board recognizes that it is possible for an employee to 
     work for two employing offices of the legislative branch, 
     although it is not permitted for an employee to work for a 
     Member office and a Committee at the same time. However, 
     Section 1002.101 was included to discuss the five-year 
     service limit requirement.


  Subpart D--Rights, Benefits, and Obligations of Persons Absent from 
          Employment Due to Service in the Uniformed Services

       This subpart closely follows the Department of Labor 
     regulations, as well as Section 4316 of USERRA. The Board saw 
     no good cause to modify the regulations from those 
     promulgated by the Secretary of Labor.


              Subpart E--Reemployment Rights and Benefits

       This subpart closely follows the Department of Labor 
     regulations, as well as Section 4316 of USERRA. The Board saw 
     no good cause to modify the regulations from those 
     promulgated by the Secretary of Labor, with the exception of 
     deleting language regarding assistance to employees from the 
     Office of Personnel Management.
       The DOL regulations explain that the Office of Personnel 
     Management would assist an agency in obtaining suitable 
     employment for a returning employee who was unable to qualify 
     for the pre-service position or any other position. The 
     corresponding statutory section is not one of the sections 
     Congress applied to the legislative branch through Section 
     1316 of the CAA. Therefore, this language was removed from 
     the text of the proposed regulations.


       Subpart F--Compliance Assistance, Enforcement and Remedies

     Compliance assistance
       This section discusses the role of the Office of Compliance 
     in providing assistance to the covered community regarding 
     the rights and benefits under USERRA, as applied by the CAA. 
     The Board found ``good cause'' to modify the regulations in 
     this subpart. The DOL regulations delineate the 
     responsibilities of the Veterans' Employment and Training 
     Service (``VETS'') in providing assistance to persons and 
     entities regarding their rights and benefits under USERRA. 
     The Board realizes that this service is available to all 
     service members by virtue of their service in the uniformed 
     services and section 225(d)(2) of the CAA specifies that 
     eligible employees may utilize any provisions of chapter 43 
     of title 38, USERRA, that are applicable.
       The CAA, however, limits the application of USERRA to 
     certain provisions, and provides a unique enforcement 
     mechanism for eligible covered employees to remedy violations 
     of USERRA, as applied by the CAA. Section 301(h) of the CAA 
     charges the Office with providing a program of education and 
     information for covered employees and employing offices. This 
     subpart clarifies that covered employees and employing 
     offices may seek education and information on USERRA, as 
     applied by the CAA, from the Office of Compliance pursuant to 
     section 301(h) of the CAA.
     Initiating a claim
       The Board, in this subpart, sets out the procedures 
     available for consideration of an allegation of a violation 
     of USERRA brought under the CAA. The procedures are 
     substantially the same as those followed by an employee who 
     initiates a claim of discrimination under the CAA.
     Enforcement of rights and benefits against an employing 
         office
       The Board makes clear that eligible covered employees must 
     utilize the procedures outlined in the CAA to bring a USERRA 
     claim against a covered employing office. The Board modified 
     these regulations where the CAA gives standing to bring an 
     action under section 206 only to ``eligible employees.'' The 
     Board makes clear that covered employees who are not also 
     eligible, as defined in Subpart A, are protected from 
     retaliation under section 207 of the CAA.
       With respect to a necessary party in an action under CAA's 
     USERRA provisions, the Board found that only a covered 
     employing office may be a necessary party respondent and that 
     the confidentiality requirements of the CAA provide good 
     cause to modify the regulation to disallow interested parties 
     to

[[Page S3191]]

     intervene in an action at the hearing stage. However, the 
     hearing officer has authority to require the filing of 
     briefs, memoranda of law and the presentation of oral 
     argument, as well as order the production of evidence and the 
     appearance of witnesses.
       The Board found that DOL regulations permitting an award of 
     fees and court costs for an individual who has obtained 
     counsel and prevailed in their claim against their employer 
     is consistent with Section 225(a) of the CAA that permits a 
     prevailing covered employee to be awarded reasonable fees and 
     costs. However, to be more fully consistent with the CAA, the 
     Board modified the language removing the requirement that the 
     individual retain private counsel as a condition of such an 
     award. The Board saw no cause to modify the USERRA regulation 
     that does not permit costs to be assessed against an 
     individual who has made a claim under USERRA, regardless of 
     whether or not they prevailed in their claim.
       The Board clarifies that while USERRA does not have a 
     statute of limitations, the procedures for bringing a claim 
     under part A of subchapter II which incorporates USERRA, 
     requires that an action be commenced by requesting counseling 
     by the Office of Compliance not later than 180 days after the 
     date of the alleged violation.
       The Board found that the remedies available under USERRA, 
     as applied by the CAA, are the same as those available to 
     other claimants under USERRA because the CAA adopts USERRA's 
     equitable and legal remedies and directs the hearing officer 
     to award such remedies as are provided in the statute. In 
     order to vest this authority in the hearing officer, the 
     Board found that the authority of the hearing officer under 
     the CAA is the same as the authority of the court under the 
     DOL regulations in that the hearing officer, and not the 
     Board, has the responsibility and authority to develop the 
     record of proceedings and issue a decision that is the final 
     agency decision, unless it is appealed to the Board. The 
     Board's authority to review a hearing officer's decision is 
     limited to a review of the record.
       The Board deleted from its regulations the section on 
     initiating actions in the name of the United States because 
     such actions are not permissible under the CAA. And, in the 
     final section of this subpart, the Board found no cause to 
     modify the equity powers permitted under USERRA, as they are 
     consistent with the authority permitted under the CAA, as 
     stated above.

                             DOL's Sections


                               Subpart A

       Sec. 1002.1 What is the purpose of this subpart?
       Sec. 1002.2 Is USERRA new law?
       Sec. 1002.3 When did USERRA become effective?
       Sec. 1002.4 What is the role of the Secretary of Labor 
     under USERRA?
       Sec. 1002.5 What definitions apply to USERRA?
       Sec. 1002.6 What types of service in the uniformed services 
     are covered by USERRA?
       Sec. 1002.7 How does USERRA relate to other laws, public 
     and private contracts, and employer practices?


                               Subpart B

       Sec. 1002.18 What status or activity is protected from 
     employer discrimination by USERRA?
       Sec. 1002.19 What activity is protected from employer 
     retaliation by USERRA?
       Sec. 1002.20 Does USERRA protect an individual who does not 
     actually perform service in the uniformed services?
       Sec. 1002.21 Do the Act's prohibitions against 
     discrimination and retaliation apply to all employment 
     positions?
       Sec. 1002.22 Who has the burden of proving discrimination 
     or retaliation in violation of USERRA?
       Sec. 1002.23 What must the individual show to carry the 
     burden of proving that the employer discriminated or 
     retaliated against him or her?


                               Subpart C

       Sections 1002.34-1002.139 are the same in both sets of 
     regulations.


                               Subpart D

       Sections 1002.149-171 are the same in both sets of 
     regulations.


                               Subpart E

       Sections 1002.180-267 are the same in both sets of 
     regulations.


                               Subpart F

       Section 1002.277 What assistance does the Department of 
     Labor provide to employees and employers concerning 
     employment, reemployment, or other rights and benefits under 
     USERRA?
       Section 1002.288 How does an individual file a USERRA 
     complaint?
       Section 1002.289 How will VETS investigate a USERRA 
     complaint?
       Section 1002.290 Does VETS have the authority to order 
     compliance with USERRA?
       Section 1002.291 What actions may an individual take if the 
     complaint is not resolved by VETS?
       Section 1002.292 What can the Attorney General do about the 
     complaint?
       Section 1002.303 Is an individual required to file his or 
     her complaint with VETS?
       Section 1002.304 If an individual files a complaint with 
     VETS and VETS' efforts do not resolve the complaint, can the 
     individual pursue the claim on his or her own?
       Section 1002.305 What court has jurisdiction in an action 
     against a State or private employer?
       Section 1002.306 Is a National Guard civilian technician 
     considered a State or Federal employee for purposes of 
     USERRA?
       Section 1002.307 What is the proper venue in an action 
     against a State or private employer?
       Section 1002.308 Who has legal standing to bring an action 
     under USERRA?
       Section 1002.309 Who is a necessary party in an action 
     under USERRA?
       Section 1002.310 How are fees and court costs charged or 
     taxed in an action under USERRA?
       Section 1002.311 Is there a statute of limitations in an 
     action under USERRA?
       Section 1002.312 What remedies may be awarded for a 
     violation of USERRA?
       Section 1002.313 Deleted by Board
       Section 1002.314 May a court use its equity powers in an 
     action or proceeding under the Act?

                             OOC's Sections


                               Subpart A

       Sec. 1002.1 What is the purpose of this subpart?
       Sec. 1002.2 Is USERRA new law?
       Sec. 1002.3 When did USERRA become effective?
       Sec. 1002.4 What is the role of the Executive Director of 
     the Office of Compliance under the USERRA provisions of the 
     CAA?
       Sec. 1002.5 What definitions apply to USERRA?
       Sec. 1002.6 What types of service in the uniformed services 
     are covered by USERRA?
       Sec. 1002.7 How does USERRA relate to other laws, public 
     and private contracts, and employer practices?


                               Subpart B

       Sec. 1002.18 What status or activity is protected from 
     employer discrimination by USERRA?
       Sec. 1002.19 What activity is protected from employer 
     retaliation by USERRA?
       Sec. 1002.20 Do the Act's prohibitions against 
     discrimination and retaliation apply to all employment 
     positions?
       Sec. 1002.21 Does USERRA protect an individual who does not 
     actually perform service in the uniformed services?
       Sections 1002.22-23 deleted by Board.


                               Subpart C

       Sections 1002.34-1002.139 are the same in both sets of 
     regulations.


                               Subpart D

       Sections 1002.149-171 are the same in both sets of 
     regulations.


                               Subpart E

       Sections 1002.180-267 are the same in both sets of 
     regulations.


                               Subpart F

       Section 1002.277 What assistance does the Office of 
     Compliance provide to employees and employers concerning 
     employment, reemployment, or other rights and benefits under 
     USERRA?
       Section 1002.288 How does a covered employee initiate a 
     claim alleging a violation of USERRA under the CAA?
       Sections 1002.289-292 deleted by Board.
       Section 1002.303 Is a covered employee required to bring 
     his or her claim to the Office of Compliance?
       Sections 1002.24-.307 deleted by Board.
       Section 1002.308 Who has legal standing to bring an action 
     under USERRA?
       Section 1002.309 Who is a necessary party in an action 
     under USERRA?
       Section 1002.310 How are fees and court costs charged or 
     taxed in an action under USERRA?
       Section 1002.311 Is there a statute of limitations in an 
     action under USERRA?
       Section 1002.312 What remedies may be awarded for a 
     violation of USERRA?
       Section 1002.313 Deleted by Board.
       Section 1002.314 May a court use its equity powers in an 
     action or proceeding under the Act?

Text of Proposed Uniformed Services Employment and Reemployment Rights 
                            Act Regulations

Subpart A--Introduction to the Regulations Under the Uniformed Services 
   Employment and Reemployment Rights Act of 1994 General Provisions

     Sec. 1002.1  What is the purpose of this part?
       This part implements certain provisions of the Uniformed 
     Services Employment and Reemployment Rights Act of 1994 
     (``USERRA'' or ``the Act''), as applied by the Congressional 
     Accountability Act (``CAA''). 2 U.S.C. 1316. 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 Office of Compliance in administering USERRA as 
     applied by the CAA.

[[Page S3192]]

     Sec. 1002.2  Is USERRA a new law?
       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, with the exception of certain 
     Federal intelligence agencies. For those Federal intelligence 
     agencies, USERRA established a separate program for 
     employees. Section 206 of the CAA requires the Board of 
     Directors of the Office of Compliance to issue regulations to 
     implement the statutory provisions relating to employment and 
     reemployment rights of members of the uniformed services. The 
     regulations are required to be the same as substantive 
     regulations promulgated by the Secretary of Labor, except 
     where a modification of such regulations would be more 
     effective for the implementation of the rights and 
     protections of the Act. The Department of Labor issued its 
     regulations, effective January 18, 2006. The regulations set 
     forth herein are the substantive regulations that the Board 
     of Directors of the Office of Compliance has promulgated for 
     the legislative branch, for the implementation of the USERRA 
     provisions of the CAA. All references to USERAA in these 
     regulations, means USERRA, as applied by the CAA.
     Sec. 1002.3  When did USERRA become effective?
       USERRA, as applied by the CAA, became effective for 
     employing offices of the legislative branch on January 23, 
     1996. These regulations will become effective upon approval 
     by Congress.
     Sec. 1002.4  What is the role of the Executive Director of 
         the Office of Compliance under the USERRA provisions of 
         the CAA?
       (a) As applied by the CAA, the Executive Director of the 
     Office of Compliance is responsible for providing education 
     and information to any covered employing office or employee 
     with respect to their rights, benefits, and obligations under 
     the USERRA provisions of the CAA.
       (b) The Office of Compliance, under the direction of the 
     Executive Director, is responsible for the processing of 
     claims filed pursuant to these regulations. More information 
     about the Office of Compliance's role is contained in Subpart 
     F.
     Sec. 1002.5  What definitions apply to these USERRA 
         regulations?
       (a) Act or USERRA means the Uniformed Services Employment 
     and Reemployment Rights Act of 1994, as applied by the CAA.
       (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 employing 
     office policy, plan, or practice. The term includes rights 
     and benefits under a pension plan, health plan, insurance 
     coverage and awards, bonuses, severance pay, supplemental 
     unemployment benefits, vacations, and, where applicable, the 
     opportunity to select work hours or the location of 
     employment.
       (c) Board means Board of Directors of the Office of 
     Compliance.
       (d) CAA means the Congressional Accountability Act of 1995, 
     as amended (Pub. L. 104-1, 109 Stat. 3, 2 
     U.S.C.Sec. Sec. 301-1438).
       (e) Covered employee means any employee, including an 
     applicant for employment, of (1) the House of 
     Representatives; (2) the Senate; (3) the Capitol Guide 
     Board or the Capitol Guide Service; (4) the Capitol Police 
     Board or the Capitol Police; (5) the Congressional Budget 
     Office; (6) the Office of the Architect of the Capitol; 
     (7) the Office of the Attending Physician; (8) the 
     Government Accountability Office; (9) the Library of 
     Congress; and (10) the Office of Compliance.
       (f) Eligible employee means a covered employee performing 
     service in the uniformed services, as defined in 1002.5 (u) 
     of this subpart, whose service has not been terminated upon 
     occurrence of any of the events enumerated in section 
     1002.135 of these regulations.
       (g) Employee of the Office of the Architect of the Capitol 
     includes any employee of the Office of the Architect of the 
     Capitol, the Botanic Gardens, or the Senate Restaurants.
       (h) Employee of the Capitol Police Board includes any 
     member or officer of the Capitol Police.
       (i) Employee of the House of Representatives includes an 
     individual occupying a position for which the pay is 
     disbursed by the Clerk of the House of Representatives, or 
     another official designated by the House of Representatives, 
     or any employment position in an entity that is paid with 
     funds derived from the clerk-hire allowance of the House of 
     Representatives but not any such individual employed by any 
     entity listed in subparagraphs (2) through (10) of paragraph 
     (e) above.
       (j) Employee of the Senate includes an individual occupying 
     a position for which the pay is disbursed by the Secretary of 
     the Senate, but not any such individual employed by any 
     entity listed in subparagraphs (1) and (3) through (10) of 
     paragraph (e) above.
       (k) Employing office means (1) the personal office of a 
     Member of the House of Representatives or of a Senator; (2) a 
     committee of the House of Representatives or the Senate or a 
     joint committee; (3) any other office headed by a person with 
     the final authority to appoint, hire, discharge, and set the 
     terms, conditions, or privileges of the employment of an 
     employee of the House of Representatives; (4) any other 
     office headed by a person with the final authority to 
     appoint, or be directed by a Member of Congress to appoint, 
     hire, discharge, and set the terms, conditions, or privileges 
     of the employment of an employee of the House of 
     Representatives or the Senate; (5) the Capitol Guide Board; 
     (6) the Capitol Police Board; (7) the Congressional Budget 
     Office; (8) the Office of the Architect of the Capitol; (9) 
     the Office of the Attending Physician; (10) the Government 
     Accountability Office; (11) the Library of Congress; (12) or 
     the Office of Compliance.
       (l) Health plan means an insurance policy, insurance 
     contract, medical or hospital service agreement, membership 
     or subscription contract, or other arrangement under which 
     health services for individuals are provided or the expenses 
     of such services are paid.
       (m) Notice, when the employee is required to give advance 
     notice of service, means any written or oral notification of 
     an obligation or intention to perform service in the 
     uniformed services provided to an employing office by the 
     employee who will perform such service, or by the uniformed 
     service in which the service is to be performed.
       (n) Office means the Office of Compliance.
       (o) Qualified, with respect to an employment position, 
     means having the ability to perform the essential tasks of 
     the position.
       (p) Reasonable efforts, in the case of actions required of 
     an employing office, means actions, including training 
     provided by an employing office that do not place an undue 
     hardship on the employing office.
       (q) Seniority means longevity in employment together with 
     any benefits of employment that accrue with, or are 
     determined by, longevity in employment.
       (r) Service in the uniformed services means the performance 
     of duty on a voluntary or involuntary basis in a uniformed 
     service under competent authority. Service in the uniformed 
     services includes active duty, active and inactive duty for 
     training, National Guard duty under Federal statute, and a 
     period for which a person is absent from a position of 
     employment for an examination to determine the fitness of the 
     person to perform such duty. The term also includes a period 
     for which a person is absent from employment to perform 
     funeral honors duty as authorized by law (10 U.S.C. 12503 or 
     32 U.S.C. 115). The Public Health Security and Bioterrorism 
     Preparedness and Response Act of 2002, Pub. L. 107-188, 
     provides that service as an intermittent disaster-response 
     appointee upon activation of the National Disaster Medical 
     System (NDMS) or as a participant in an authorized training 
     program is deemed ``service in the uniformed services.'' 42 
     U.S.C. 300hh-11(e)(3).
       (s) Undue hardship, in the case of actions taken by an 
     employing office, means an action requiring significant 
     difficulty or expense, when considered in light of--
       (1) The nature and cost of the action needed under USERRA 
     and these regulations;
       (2) The overall financial resources of the employing 
     office; the overall size of the business of an employing 
     office with respect to the number of its employees; the 
     number, type, and location of its facilities; and,
       (3) The type of operation or operations of the employing 
     office, including the composition, structure, and functions 
     of the work force of such employing office; the geographic 
     separateness, administrative, or fiscal relationship of the 
     State, District, or satellite office in question to the 
     employing office.
       (t) Uniformed services means the Armed Forces; the Army 
     National Guard and the Air National Guard when engaged in 
     active duty for training, inactive duty training, or full-
     time National Guard duty; the commissioned corps of the 
     Public Health Service; and any other category of 
     persons designated by the President in time of war or 
     national emergency. For purposes of USERRA coverage only, 
     service as an intermittent disaster response appointee of 
     the National Disaster Medical System (NDMS) when federally 
     activated or attending authorized training in support of 
     their Federal mission is deemed ``service in the uniformed 
     services,'' although such appointee is not a member of the 
     ``uniformed services'' as defined by USERRA.
     Sec. 1002.6  What types of service in the uniformed services 
         are covered by USERRA?
       The 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

[[Page S3193]]

     types of service specified in 42 U.S.C. 300hh-11 by members 
     of the National Disaster Medical System are covered by 
     USERRA.
     Sec. 1002.7  How does USERRA, as applied by the Congressional 
         Accountability Act, relate to other laws, public and 
         private contracts, and employing office practices?
       (a) USERRA establishes a floor, not a ceiling, for the 
     employment and reemployment rights and benefits of those it 
     protects. In other words, an employing office may provide 
     greater rights and benefits than USERRA requires, but no 
     employing office can refuse to provide any right or benefit 
     guaranteed by USERRA, as applied by the CAA.
       (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 office policy 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 employing office to pay an employee for time away 
     from work performing service, an employing office policy, 
     plan, or practice that provides such a benefit is permissible 
     under USERRA.
       (d) If an employing office 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 employing office 
     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 employing office 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 military leave.

          Subpart B--Anti-Discrimination and Anti-Retaliation


        Protection From Employer Discrimination and Retaliation

     Sec. 1002.18  What status or activity is protected from 
         employer discrimination by USERRA?
       An employing office 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.
     Sec. 1002.19  What activity is protected from employer 
         retaliation by USERRA?
       An employing office 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; exercised a right provided for by 
     USERRA; or is performing service in the uniformed services 
     within the meaning of 1002.5 of Subpart A of these 
     regulations.
     Sec. 1002.20  Do the Act's prohibitions against 
         discrimination and retaliation apply to all employment 
         positions?
       Under USERRA, as applied by the CAA, the prohibitions 
     against discrimination and retaliation apply to all positions 
     within covered employing offices, 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, non-recurrent positions of employment.
     Sec. 1002.21  Does USERRA protect a covered employee who does 
         not actually perform service in the uniformed services?
       USERRA's provisions, as applied by Section 206 of the CAA, 
     prohibit discrimination and retaliation against eligible 
     employees. Section 207(a) of the CAA prohibits retaliation 
     against those non-eligible, covered employees under the CAA 
     who have not performed service in the uniformed services.

                Subpart C--Eligibility For Reemployment


           General Eligibility Requirements for Reemployment

     Sec. 1002.32  What criteria must the employee meet to be 
         eligible under USERRA for reemployment after service in 
         the uniformed services?
       (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 Sec. Sec. 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 Sec. 1002.139. The employment position 
     to which the employee is entitled is described in 
     Sec. Sec. 1002.191 through 1002.199.
     Sec. 1002.33  Does the covered employee have to prove that 
         the employing office discriminated against him or her in 
         order to be eligible for reemployment?
       No. The covered employee is not required to prove that the 
     employing office discriminated against him or her because of 
     the employee's uniformed service in order to be eligible for 
     reemployment.


                  Coverage of Employers and Positions

     Sec. 1002.34  Which employing offices are covered by these 
         regulations?
       (a) USERRA applies to all covered employing offices of the 
     legislative branch as defined in Subpart A, section 1002.5, 
     subsection (e) of these regulations.
     Sec. 1002.40  Does USERRA protect against discrimination in 
         initial hiring decisions?
       Yes. The definition of employer in the USERRA provision as 
     applied by the CAA includes an employing office that has 
     denied initial employment to an individual in violation of 
     USERRA's anti-discrimination provisions. An employing office 
     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 employing office 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 employing office denying employment is an 
     employer for purposes of USERRA. Similarly, if an employing 
     office withdraws an offer of employment because the 
     individual is called upon to fulfill an obligation in the 
     uniformed services, the employing office withdrawing the 
     employment offer is an employer for purposes of USERRA.
     Sec. 1002.41  Does an employee have rights under USERRA even 
         though he or she holds a temporary, part-time, 
         probationary, or seasonal employment position?
       USERRA rights are not diminished because an employee holds 
     a temporary, part-time, probationary, or seasonal employment 
     position. However, an employing office 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 employing office bears the burden of 
     proving this affirmative defense.
     Sec. 1002.42  What rights does an employee have under USERRA 
         if he or she is on layoff or on a leave of absence?
       (a) If an employee is laid off with recall rights, 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 employing office would have recalled the employee to 
     employment during the period of service. Similar principles 
     apply if the employee is 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 employing office 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.
     Sec. 1002.43  Does an individual have rights under USERRA 
         even if he or she is an executive, managerial, or 
         professional employee?
       Yes. USERRA applies to all covered employees. There is no 
     exclusion for executive, managerial, or professional 
     employees.

[[Page S3194]]

     Sec. 1002.44  Does USERRA cover an independent contractor?
       (a) No. USERRA, as applied by the CAA, does not provide 
     protections for an independent contractor.


             Coverage of Service in the Uniformed Services

     Sec. 1002.54  Are all military fitness examinations 
         considered ``service in the uniformed services?''
       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.
     Sec. 1002.55  Is all funeral honors duty considered ``service 
         in the uniformed services?''
       (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.''
     Sec. 1002.56  What types of service in the National Disaster 
         Medical System are considered ``service in the uniformed 
         services?''
       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.
     Sec. 1002.57  Is all service as a member of the National 
         Guard considered ``service in the uniformed services?''
       No. Only Federal National Guard service is considered 
     ``service in the uniformed services.'' 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.
     Sec. 1002.58  Is service in the commissioned corps of the 
         Public Health Service considered ``service in the 
         uniformed services?''
       Yes. Service in the commissioned corps of the Public Health 
     Service (PHS) is ``service in the uniformed services'' under 
     USERRA.
     Sec. 1002.59  Are there any circumstances in which special 
         categories of persons are considered to perform ``service 
         in the uniformed services?''
       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.
     Sec. 1002.60  Does USERRA cover an individual attending a 
         military service academy?
       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).
     Sec. 1002.61  Does USERRA cover a member of the Reserve 
         Officers Training Corps?
       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.
     Sec. 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?
       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.


Absence From a Position of Employment Necessitated by Reason of Service 
                       in the Uniformed Services

     Sec. 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?
       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, although such uniformed service must be the main 
     reason for departure from employment. 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.
     Sec. 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?
       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 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.


                         Requirement of Notice

     Sec. 1002.85  Must the employee give advance notice to the 
         employing office of his or her service in the uniformed 
         services?
       (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 employing office that the employee 
     intends to leave the employment position to

[[Page S3195]]

     perform service in the uniformed services, with certain 
     exceptions described below. In cases in which an employee is 
     employed by more than one employing office, the employee, or 
     an appropriate officer of the uniformed service in which his 
     or her service is to be performed, must notify each employing 
     office 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 employing office may be 
     either oral 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 employing office, 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.''
     Sec. 1002.86  When is the employee excused from giving 
         advance notice of service in the uniformed services?
       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 employing office 
     or the employing office's representative, or a requirement 
     that the employee report for uniformed service in an 
     extremely short period of time.
     Sec. 1002.87  Is the employee required to get permission from 
         his or her employer before leaving to perform service in 
         the uniformed services?
       No. The employee is not required to ask for or get the 
     employing office's permission to leave to perform service in 
     the uniformed services. The employee is only required to give 
     the employing office notice of pending service.
     Sec. 1002.88  Is the employee required to tell the employing 
         office that he or she intends to seek reemployment after 
         completing uniformed service before the employee leaves 
         to perform service in the uniformed services?
       No. When the employee leaves the employment position to 
     begin a period of service, he or she is not required to tell 
     the employing office that he or she intends to seek 
     reemployment after completing uniformed service. Even if the 
     employee tells the employing office 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.


                           Period of Service

     Sec. 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?
       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 employing 
     office. The exceptions to this rule are described below.
     Sec. 1002.100  Does the five-year service limit include all 
         absences from an employment position that are related to 
         service in the uniformed services?
       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.
     Sec. 1002.101  Does the five-year service limit include 
         periods of service that the employee performed when he or 
         she worked for a previous employing office?
       No. An employee is entitled to a leave of absence for 
     uniformed service for up to five years with each employing 
     office for whom he or she works or has worked. When the 
     employee takes a position with a new employing office, 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 
     employing office, a separate five-year period runs as to each 
     employing office independently, even if those employing 
     offices share or co-determine the employee's terms and 
     conditions of employment. For example, an employee of the 
     legislative branch may work part-time for two employing 
     offices. In this case, a separate five-year period would run 
     as to the employee's employment with each respective 
     employing office.
     Sec. 1002.102  Does the five-year service limit include 
         periods of service that the employee performed before 
         USERRA was enacted?
       It depends. Under the CAA, USERRA provides reemployment 
     rights to which a covered employee may become entitled 
     beginning on or after January 23, 1996, but any uniformed 
     service performed before January 23, 1996, that was counted 
     against the service limitations of the previous law (the 
     Veterans Reemployment Rights Act), also counts against 
     USERRA's five-year limit.
     Sec. 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?
       (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 member);
       (xi) 14 U.S.C. 367 (involuntary retention of Coast Guard 
     enlisted member on active duty); and
       (xii) 14 U.S.C. 712 (involuntary active duty by Coast Guard 
     Reserve member for natural or man-made disasters).
       (5) Service performed in a uniformed service if the 
     employee was ordered to or retained on active duty (other 
     than for training) under any provision of law because of a 
     war or national emergency declared by the President or the 
     Congress, as determined by the Secretary concerned;
       (6) Service performed in a uniformed service if the 
     employee was ordered to active duty (other than for training) 
     in support of an operational mission for which personnel have 
     been ordered to active duty under 10 U.S.C. 12304, as 
     determined by a proper military authority;
       (7) Service performed in a uniformed service if the 
     employee was ordered to active duty in support of a critical 
     mission or requirement of the uniformed services as 
     determined by the Secretary concerned; and,
       (8) Service performed as a member of the National Guard if 
     the employee was called to respond to an invasion, danger of 
     invasion, rebellion, danger of rebellion, insurrection, or 
     the inability of the President with regular forces to execute 
     the laws of the United States.
       (b) Service performed in a uniformed service to mitigate 
     economic harm where the employee's employing office is in 
     violation of its employment or reemployment obligations to 
     him or her.

[[Page S3196]]

     Sec. 1002.104  Is the employee required to accommodate his or 
         her employer's needs as to the timing, frequency or 
         duration of service?
       No. The employee is not required to accommodate his or her 
     employing office's interests or concerns regarding the 
     timing, frequency, or duration of uniformed service. The 
     employing office cannot refuse to reemploy the employee 
     because it believes that the timing, frequency or duration of 
     the service is unreasonable. However, the employing office 
     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.


                      Application for Reemployment

     Sec. 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?
       Yes. Upon completing service in the uniformed services, the 
     employee must notify the pre-service employing office 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 employing 
     office 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 
     employing office 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 employing 
     office 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 oral) with the employing office not later than 14 days 
     after completing service. If it is impossible or unreasonable 
     for the employee to apply within 14 days through no fault of 
     his or her own, he or she must submit the application not 
     later than the next full calendar day after it becomes 
     possible to do so.
       (c) Period of service more than 180 days. If the employee's 
     period of service in the uniformed services was for more than 
     180 days, he or she must submit an application for 
     reemployment (written or oral) not later than 90 days after 
     completing service.
     Sec. 1002.116  Is the time period for reporting back to an 
         employing office extended if the employee is hospitalized 
         for, or convalescing from, an illness or injury incurred 
         in, or aggravated during, the performance of service?
       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 employing 
     office 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 employing office, and is not applicable 
     following reemployment.
     Sec. 1002.117  Are there any consequences if the employee 
         fails to report for or submit a timely application for 
         reemployment?
       (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. However, the employee does become subject to any 
     conduct rules, established policy, and general practices of 
     the employing office pertaining to an absence from scheduled 
     work.
       (b) If reporting or submitting an employment application to 
     the employing office is impossible or unreasonable through no 
     fault of the employee, he or she may report to the employing 
     office as soon as possible (in the case of a period of 
     service less than 31 days) or submit an application for 
     reemployment to the employing office 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.
     Sec. 1002.118  Is an application for reemployment required to 
         be in any particular form?
       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 employing office. The employee is permitted but not 
     required to identify a particular reemployment position in 
     which he or she is interested.
     Sec. 1002.119  To whom must the employee submit the 
         application for reemployment?
       The application must be submitted to the pre-service 
     employing office or to an agent or representative of the 
     employing office 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.
     Sec. 1002.120  If the employee seeks or obtains employment 
         with an employer other than the pre-service employing 
         office before the end of the period within which a 
         reemployment application must be filed, will that 
         jeopardize reemployment rights with the pre-service 
         employing office?
       No. The employee has reemployment rights with the pre-
     service employing office provided that he or she makes a 
     timely reemployment application to that employing office. The 
     employee may seek or obtain employment with an employer other 
     than the pre-service employing office during the period of 
     time within which a reemployment application must be made, 
     without giving up reemployment rights with the pre-service 
     employing office. However, such alternative employment during 
     the application period should not be of a type that would 
     constitute cause for the employing office to discipline or 
     terminate the employee following reemployment. For instance, 
     if the employing office forbids outside employment, violation 
     of such a policy may constitute cause for discipline or even 
     termination.
     Sec. 1002.121  Is the employee required to submit 
         documentation to the employing office in connection with 
         the application for reemployment?
       Yes, if the period of service exceeded 30 days and if 
     requested by the employing office 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 employing office, 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.
     Sec. 1002.122  Is the employing office required to reemploy 
         the employee if documentation establishing the employee's 
         eligibility does not exist or is not readily available?
       Yes. The employing office 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 re-employed after an 
     absence from employment for more than 90 days, the employing 
     office 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 employing office may terminate employment 
     and any rights or benefits that the employee may have been 
     granted.
     Sec. 1002.123  What documents satisfy the requirement that 
         the employee establish eligibility for reemployment after 
         a period of service of more than thirty days?
       (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 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

[[Page S3197]]

     these documents are available or necessary in every instance 
     to establish reemployment eligibility.


                          Character of Service

     Sec. 1002.134  What type of discharge or separation from 
         service is required for an employee to be entitled to 
         reemployment under USERRA?
       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.
     Sec. 1002.135  What types of discharge or separation from 
         uniformed service will make the employee ineligible for 
         reemployment under USERRA?


         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.
     Sec. 1002.136  Who determines the characterization of 
         service?
       The branch of service in which the employee performs the 
     tour of duty determines the characterization of service.
     Sec. 1002.137  If the employee receives a disqualifying 
         discharge or release from uniformed service and it is 
         later upgraded, will reemployment rights be restored?
       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.
     Sec. 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?
       No. A retroactive upgrade allows the employee to obtain 
     reinstatement with the former employing office, 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 
     employing office in this situation.


                      Employer Statutory Defenses

     Sec. 1002.139  Are there any circumstances in which the pre-
         service employing office is excused from its obligation 
         to reemploy the employee following a period of uniformed 
         service? What statutory defenses are available to the 
         employing office in an action or proceeding for 
         reemployment benefits?
       (a) Even if the employee is otherwise eligible for 
     reemployment benefits, the employing office is not required 
     to reemploy him or her if the employing office establishes 
     that its circumstances have so changed as to make 
     reemployment impossible or unreasonable. For example, an 
     employing office may be excused from re-employing the 
     employee where there has been an intervening reduction in 
     force that would have included that employee. The employing 
     office 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 employing office 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 Sec. 1002.5(s) and discussed 
     in Sec. 1002.198, on the employing office; or,
       (c) Even if the employee is otherwise eligible for 
     reemployment benefits, the employing office 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 employing office defenses included in this section 
     are affirmative ones, and the employing office carries the 
     burden to prove by a preponderance of the evidence that any 
     one or more of these defenses is applicable.

  Subpart D--Rights, Benefits, and Obligations of Persons Absent from 
          Employment Due to Service in the Uniformed Services


                     Furlough and Leave of Absence

     Sec. 1002.149  What is the employee's status with the 
         employing office while performing service in the 
         uniformed services?
       During a period of service in the uniformed services, the 
     employee is deemed to be on leave of absence from the 
     employing office. In this status, the employee is entitled to 
     the non-seniority rights and benefits generally provided by 
     the employing office to other employees with similar 
     seniority, status, and pay that are on leave of absence. 
     Entitlement to these non-seniority rights and benefits is not 
     dependent on how the employing office characterizes the 
     employee's status during a period of service. For example, if 
     the employing office 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 leave of absence, and 
     therefore, entitled to the non-seniority rights and benefits 
     generally provided to employees on leave of absence.
     Sec. 1002.150  Which non-seniority rights and benefits is the 
         employee entitled to during a period of service?
       (a) The non-seniority rights and benefits to which an 
     employee is entitled during a period of service are those 
     that the employing office provides to similarly situated 
     employees by an 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 leave of absence.
       (b) If the non-seniority benefits to which employees on 
     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 employing office to an employee on a military 
     leave of absence only if the employing office provides that 
     benefit to similarly situated employees on comparable leaves 
     of absence.
       (d) Nothing in this section gives the employee rights or 
     benefits to which the employee otherwise would not be 
     entitled if the employee had remained continuously employed 
     with the employing office.
     Sec. 1002.151  If the employing office provides full or 
         partial pay to the employee while he or she is on 
         military leave, is the employing office required to also 
         provide the non-seniority rights and benefits ordinarily 
         granted to similarly situated employees on furlough or 
         leave of absence?
       Yes. If the employing office provides additional benefits 
     such as full or partial pay when the employee performs 
     service, the employing office is not excused from providing 
     other rights and benefits to which the employee is entitled 
     under the Act.
     Sec. 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?
       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.
     Sec. 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?
       (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 employing office during a 
     period of service in the uniformed services, unless the 
     employing office 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 employing office may not require the employee to 
     use accrued vacation, annual, or similar leave during a 
     period of service in the uniformed services.

[[Page S3198]]

                          Health Plan Coverage

     Sec. 1002.163  What types of health plans are covered by 
         USERRA?
       (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 multi-employer plans maintained pursuant 
     to one or more collective bargaining agreements between 
     employers and employee organizations. USERRA applies to 
     multi-employer plans as they are defined in ERISA at 29 
     U.S.C. 1002(37). USERRA contains provisions that apply 
     specifically to multi-employer plans in certain situations.
     Sec. 1002.164  What health plan coverage must the employing 
         office provide for the employee under USERRA?
       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 employing office 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 employing office 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.
     Sec. 1002.165  How does the employee elect continuing health 
         plan coverage?
       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.
     Sec. 1002.166  How much must the employee pay in order to 
         continue health plan coverage?
       (a) If the employee performs service in the uniformed 
     service for fewer than 31 days, he or she cannot be required 
     to pay more than the regular employee share, if any, for 
     health plan coverage.
       (b) If the employee performs service in the uniformed 
     service for 31 or more days, he or she may be required to pay 
     no more than 102% of the full premium under the plan, which 
     represents the employing office's share plus the employee's 
     share, plus 2% for administrative costs.
       (c) USERRA does not specify requirements for methods of 
     paying for continuing coverage. Health plan administrators 
     may develop reasonable procedures for payment, consistent 
     with the terms of the plan.
     Sec. 1002.167  What actions may a plan administrator take if 
         the employee does not elect or pay for continuing 
         coverage in a timely manner?
       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 employing office 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 employing office 
     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 having given advance 
     notice of service but without making an election regarding 
     continuing coverage, the plan administrator may cancel the 
     employee's health plan coverage upon the employee's departure 
     from employment for uniformed service, but must reinstate 
     coverage without the imposition of administrative 
     reinstatement costs under the following conditions:
       (1) Plan administrators who have developed reasonable rules 
     regarding the period within which an employee may elect 
     continuing coverage must permit retroactive reinstatement of 
     uninterrupted coverage to the date of departure if the 
     employee elects continuing coverage and pays all unpaid 
     amounts due within the periods established by the plan;
       (2) In cases in which plan administrators have not 
     developed rules regarding the period within which an employee 
     may elect continuing coverage, the plan must permit 
     retroactive reinstatement of uninterrupted coverage to the 
     date of departure upon the employee's election and payment of 
     all unpaid amounts at any time during the period established 
     in section 1002.164(a).
       (c) Election of continuation coverage without timely 
     payment:
       Health plan administrators may adopt reasonable rules 
     allowing cancellation of coverage if timely payment is not 
     made. Where health plans are covered under COBRA, it may be 
     reasonable for a health plan administrator to adopt COBRA-
     compliant rules regarding payment for continuing coverage, as 
     long as those rules do not conflict with any provision of 
     USERRA or this rule.
     Sec. 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?
       (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.
     Sec. 1002.169  Can the employee elect to delay reinstatement 
         of health plan coverage until a date after the date he or 
         she is reemployed?
       USERRA requires the employing office to reinstate health 
     plan coverage upon request at reemployment. USERRA permits 
     but does not require the employing office to allow the 
     employee to delay reinstatement of health plan coverage until 
     a date that is later than the date of reemployment.
     Sec. 1002.170  In a multi-employer health plan, how is 
         liability allocated for employer contributions and 
         benefits arising under USERRA's health plan provisions?
       Liability under a multi-employer 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.
     Sec. 1002.171  How does the continuation of health plan 
         benefits apply to a multi-employer plan that provides 
         health plan coverage through a health benefits account 
         system?
       (a) Some employees receive health plan benefits provided 
     pursuant to a multi-employer 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:

[[Page S3199]]

       (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 Sec. 1002.166. If an employee's 
     health account balance becomes depleted during the applicable 
     period provided for in Sec. 1002.164(a), the employee must be 
     permitted, at his or her option, to continue coverage 
     pursuant to Sec. 1002.166. Upon reemployment, the plan must 
     provide for immediate reinstatement of the employee as 
     required by Sec. 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 Sec. 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.

              Subpart E--Reemployment Rights and Benefits


                          Prompt Reemployment

     Sec. 1002.180  When is an employee entitled to be reemployed 
         by the employing office?
       The employing office must promptly reemploy the employee 
     when he or she returns from a period of service if the 
     employee meets the Act's eligibility criteria as described in 
     Subpart C of these regulations.
     Sec. 1002.181  How is ``prompt reemployment'' defined?
       ``Prompt reemployment'' means as soon as practicable under 
     the circumstances of each case. Absent unusual circumstances, 
     reemployment must occur within two weeks of the employee's 
     application for reemployment. For example, prompt 
     reinstatement after a weekend National Guard duty generally 
     means the next regularly scheduled working day. On the other 
     hand, prompt reinstatement following several years of active 
     duty may require more time, because the employing office may 
     have to reassign or give notice to another employee who 
     occupied the returning employee's position.


                         Reemployment Position

     Sec. 1002.191  What position is the employee entitled to upon 
         reemployment?
       As a general rule, the employee is entitled to reemployment 
     in the job position that he or she would have attained with 
     reasonable certainty if not for the absence due to uniformed 
     service. This position is known as the escalator position. 
     The principle behind the escalator position is that, if not 
     for the period of uniformed service, the employee could have 
     been promoted (or, alternatively, demoted, transferred, or 
     laid off) due to intervening events. The escalator principle 
     requires that the employee be reemployed in a position that 
     reflects with reasonable certainty the pay, benefits, 
     seniority, and other job perquisites, that he or she would 
     have attained if not for the period of service. Depending 
     upon the specific circumstances, the employing office may 
     have the option, or be required, to reemploy the employee in 
     a position other than the escalator position.
     Sec. 1002.192  How is the specific reemployment position 
         determined?
       In all cases, the starting point for determining the proper 
     reemployment position is the escalator position, which is the 
     job position that the employee would have attained if his or 
     her continuous employment had not been interrupted due to 
     uniformed service. Once this position is determined, the 
     employing office may have to consider several factors before 
     determining the appropriate reemployment position in any 
     particular case. Such factors may include the employee's 
     length of service, qualifications, and disability, if any. 
     The actual reemployment position may be either the escalator 
     position; the pre-service position; a position comparable to 
     the escalator or pre-service position; or, the nearest 
     approximation to one of these positions.
     Sec. 1002.193  Does the reemployment position include 
         elements such as seniority, status, and rate of pay?
       (a) Yes. The reemployment position includes the seniority, 
     status, and rate of pay that an employee would ordinarily 
     have attained in that position given his or her job history, 
     including prospects for future earnings and advancement. The 
     employing office must determine the seniority rights, status, 
     and rate of pay as though the employee had been continuously 
     employed during the period of service. The seniority rights, 
     status, and pay of an employment position include those 
     established (or changed) by a collective bargaining 
     agreement, employer policy, or employment practice. The 
     sources of seniority rights, status, and pay include 
     agreements, policies, and practices in effect at the 
     beginning of the employee's service, and any changes that may 
     have occurred during the period of service. In particular, 
     the employee's status in the reemployment position could 
     include opportunities for advancement, general working 
     conditions, job location, shift assignment, rank, 
     responsibility, and geographical location.
       (b) If an opportunity for promotion, or eligibility for 
     promotion, that the employee missed during service is based 
     on a skills test or examination, then the employing office 
     should give him or her a reasonable amount of time to adjust 
     to the employment position and then give a skills test or 
     examination. No fixed amount of time for permitting 
     adjustment to reemployment will be deemed reasonable in all 
     cases. However, in determining a reasonable amount of time to 
     permit an employee to adjust to reemployment before 
     scheduling a makeup test or examination, an employing office 
     may take into account a variety of factors, including but not 
     limited to the length of time the returning employee was 
     absent from work, the level of difficulty of the test itself, 
     the typical time necessary to prepare or study for the test, 
     the duties and responsibilities of the reemployment position 
     and the promotional position, and the nature and 
     responsibilities of the service member while serving in the 
     uniformed service. If the employee is successful on the 
     makeup exam and, based on the results of that exam, there is 
     a reasonable certainty that he or she would have been 
     promoted, or made eligible for promotion, during the time 
     that the employee served in the uniformed service, then the 
     promotion or eligibility for promotion must be made effective 
     as of the date it would have occurred had employment not been 
     interrupted by uniformed service.
     Sec. 1002.194  Can the application of the escalator principle 
         result in adverse consequences when the employee is 
         reemployed?
       Yes. The Act does not prohibit lawful adverse job 
     consequences that result from the employee's restoration on 
     the seniority ladder. Depending on the circumstances, the 
     escalator principle may cause an employee to be reemployed in 
     a higher or lower position, laid off, or even terminated.
       For example, if an employee's seniority or job 
     classification would have resulted in the employee being laid 
     off during the period of service, and the layoff continued 
     after the date of reemployment, reemployment would reinstate 
     the employee to layoff status. Similarly, the status of the 
     reemployment position requires the employing office to 
     assess what would have happened to such factors as the 
     employee's opportunities for advancement, working 
     conditions, job location, shift assignment, rank, 
     responsibility, and geographical location, if he or she 
     had remained continuously employed. The reemployment 
     position may involve transfer to another shift or 
     location, more or less strenuous working conditions, or 
     changed opportunities for advancement, depending upon the 
     application of the escalator principle.
     Sec. 1002.195  What other factors can determine the 
         reemployment position?
       Once the employee's escalator position is determined, other 
     factors may allow, or require, the employing office to 
     reemploy the employee in a position other than the escalator 
     position. These factors, which are explained in 
     Sec. Sec. 1002.196 through 1002.199, are:
       (a) The length of the employee's most recent period of 
     uniformed service;
       (b) The employee's qualifications; and,
       (c) Whether the employee has a disability incurred or 
     aggravated during uniformed service.
     Sec. 1002.196  What is the employee's reemployment position 
         if the period of service was less than 91 days?
       Following a period of service in the uniformed services of 
     less than 91 days, the employee must be reemployed according 
     to the following priority:
       (a) The employee must be reemployed in the escalator 
     position. He or she must be qualified to perform the duties 
     of this position. The employing office must make reasonable 
     efforts to help the employee become qualified to perform the 
     duties of this position.
       (b) If the employee is not qualified to perform the duties 
     of the escalator position after reasonable efforts by the 
     employing office, the employee must be reemployed in the 
     position in which he or she was employed on the date that the 
     period of service began. The employee must be qualified to 
     perform the duties of this position. The employing office 
     must make reasonable efforts to help the employee become 
     qualified to perform the duties of this position.
       (c) If the employee is not qualified to perform the duties 
     of the escalator position or the pre-service position, after 
     reasonable efforts by the employing office, he or she must be 
     reemployed in any other position that is the nearest 
     approximation first to the escalator position and then to the 
     pre-service position. The employee must be qualified to 
     perform the duties of this position. The employing office 
     must make reasonable efforts to help the employee become 
     qualified to perform the duties of this position.
     Sec. 1002.197  What is the reemployment position if the 
         employee's period of service in the uniformed services 
         was more than 90 days?
       Following a period of service of more than 90 days, the 
     employee must be reemployed according to the following 
     priority:
       (a) The employee must be reemployed in the escalator 
     position or a position of like seniority, status, and pay. He 
     or she must be qualified to perform the duties of this 
     position. The employing office must make reasonable efforts 
     to help the employee become qualified to perform the duties 
     of this position.
       (b) If the employee is not qualified to perform the duties 
     of the escalator position or a like position after reasonable 
     efforts by the employing office, the employee must be 
     reemployed in the position in which he or she was employed on 
     the date that the period of service began or in a position of 
     like seniority, status, and pay. The employee must be

[[Page S3200]]

     qualified to perform the duties of this position. The 
     employing office must make reasonable efforts to help the 
     employee become qualified to perform the duties of this 
     position.
       (c) If the employee is not qualified to perform the duties 
     of the escalator position, the pre-service position, or a 
     like position, after reasonable efforts by the employing 
     office, he or she must be reemployed in any other position 
     that is the nearest approximation first to the escalator 
     position and then to the pre-service position. The employee 
     must be qualified to perform the duties of this position. The 
     employing office must make reasonable efforts to help the 
     employee become qualified to perform the duties of this 
     position.
     Sec. 1002.198  What efforts must the employing office make to 
         help the employee become qualified for the reemployment 
         position?
       The employee must be qualified for the reemployment 
     position. The employing office must make reasonable efforts 
     to help the employee become qualified to perform the duties 
     of this position. The employing office is not required to 
     reemploy the employee on his or her return from service if he 
     or she cannot, after reasonable efforts by the employing 
     office, qualify for the appropriate reemployment position.
       (a)(1) ``Qualified'' means that the employee has the 
     ability to perform the essential tasks of the position. The 
     employee's inability to perform one or more non-essential 
     tasks of a position does not make him or her unqualified.
       (2) Whether a task is essential depends on several factors, 
     and these factors include but are not limited to:
       (i) The employing office's judgment as to which functions 
     are essential;
       (ii) Written job descriptions developed before the hiring 
     process begins;
       (iii) The amount of time on the job spent performing the 
     function;
       (iv) The consequences of not requiring the individual to 
     perform the function;
       (v) The terms of a collective bargaining agreement;
       (vi) The work experience of past incumbents in the job; 
     and/or
       (vii) The current work experience of incumbents in similar 
     jobs.
       (b) Only after the employing office makes reasonable 
     efforts, as defined in Sec. 1002.5(p), may it determine that 
     the employee is not qualified for the reemployment position. 
     These reasonable efforts must be made at no cost to the 
     employee.
     Sec. 1002.199  What priority must the employing office follow 
         if two or more returning employees are entitled to 
         reemployment in the same position?
       If two or more employees are entitled to reemployment in 
     the same position and more than one employee has reported or 
     applied for employment in that position, the employee who 
     first left the position for uniformed service has the first 
     priority on reemployment in that position. The remaining 
     employee (or employees) is entitled to be reemployed in a 
     position similar to that in which the employee would have 
     been re-employed according to the rules that normally 
     determine a reemployment position, as set out in 
     Sec. Sec. 1002.196 and 1002.197.


                     Seniority Rights and Benefits

     Sec. 1002.210  What seniority rights does an employee have 
         when reemployed following a period of uniformed service?
       The employee is entitled to the seniority and seniority-
     based rights and benefits that he or she had on the date the 
     uniformed service began, plus any seniority and seniority-
     based rights and benefits that the employee would have 
     attained if he or she had remained continuously employed. The 
     employee is not entitled to any benefits to which he or she 
     would not have been entitled had the employee been 
     continuously employed with the employing office. In 
     determining entitlement to seniority and seniority-based 
     rights and benefits, the period of absence from employment 
     due to or necessitated by uniformed service is not considered 
     a break in employment. The rights and benefits protected by 
     USERRA upon reemployment include those provided by the 
     employing office and those required by statute.
       For example, under USERRA, a reemployed service member 
     would be eligible for leave under the Family and Medical 
     Leave Act of 1993, 29 U.S.C. 2601-2654 (FMLA), if the number 
     of months and the number of hours of work for which the 
     service member was employed by the employing office, together 
     with the number of months and the number of hours of work for 
     which the service member would have been employed by the 
     employing office during the period of uniformed service, meet 
     FMLA's eligibility requirements. In the event that a service 
     member is denied FMLA leave for failing to satisfy the FMLA's 
     hours of work requirement due to absence from employment 
     necessitated by uniformed service, the service member may 
     have a cause of action under USERRA but not under the FMLA.
     Sec. 1002.211  Does USERRA require the employing office to 
         use a seniority system?
       No. USERRA does not require the employing office to adopt a 
     formal seniority system. USERRA defines seniority as 
     longevity in employment together with any employment benefits 
     that accrue with, or are determined by, longevity in 
     employment. In the absence of a formal seniority system, such 
     as one established through collective bargaining, USERRA 
     looks to the custom and practice in the place of employment 
     to determine the employee's entitlement to any employment 
     benefits that accrue with, or are determined by, longevity in 
     employment.
     Sec. 1002.212  How does a person know whether a particular 
         right or benefit is a seniority-based right or benefit?
       A seniority-based right or benefit is one that accrues 
     with, or is determined by, longevity in employment. 
     Generally, whether a right or benefit is seniority-based 
     depends on three factors:
       (a) Whether the right or benefit is a reward for length of 
     service rather than a form of short-term compensation for 
     work performed;
       (b) Whether it is reasonably certain that the employee 
     would have received the right or benefit if he or she had 
     remained continuously employed during the period of service; 
     and,
       (c) Whether it is the employing office's actual custom or 
     practice to provide or withhold the right or benefit as a 
     reward for length of service.
       Provisions of an employment contract or policies in the 
     employee handbook are not controlling if the employing 
     office's actual custom or practice is different from what is 
     written in the contract or handbook.
     Sec. 1002.213  How can the employee demonstrate a reasonable 
         certainty that he or she would have received the 
         seniority right or benefit if he or she had remained 
         continuously employed during the period of service?
       A reasonable certainty is a high probability that the 
     employee would have received the seniority or seniority-based 
     right or benefit if he or she had been continuously employed. 
     The employee does not have to establish that he or she would 
     have received the benefit as an absolute certainty. The 
     employee can demonstrate a reasonable certainty that he or 
     she would have received the seniority right or benefit by 
     showing that other employees with seniority similar to that 
     which the employee would have had if he or she had remained 
     continuously employed received the right or benefit. The 
     employing office cannot withhold the right or benefit based 
     on an assumption that a series of unlikely events could have 
     prevented the employee from gaining the right or benefit.


                           Disabled Employees

     Sec. 1002.225  Is the employee entitled to any specific 
         reemployment benefits if he or she has a disability that 
         was incurred in, or aggravated during, the period of 
         service?
       Yes. A disabled service member is entitled, to the same 
     extent as any other individual, to the escalator position he 
     or she would have attained but for uniformed service. If the 
     employee has a disability incurred in, or aggravated during, 
     the period of service in the uniformed services, the 
     employing office must make reasonable efforts to accommodate 
     that disability and to help the employee become qualified to 
     perform the duties of his or her reemployment position. If 
     the employee is not qualified for reemployment in the 
     escalator position because of a disability after reasonable 
     efforts by the employing office to accommodate the disability 
     and to help the employee to become qualified, the employee 
     must be reemployed in a position according to the following 
     priority. The employing office must make reasonable efforts 
     to accommodate the employee's disability and to help him or 
     her to become qualified to perform the duties of one of these 
     positions:
       (a) A position that is equivalent in seniority, status, and 
     pay to the escalator position; or,
       (b) A position that is the nearest approximation to the 
     equivalent position, consistent with the circumstances of the 
     employee's case, in terms of seniority, status, and pay.
       A position that is the nearest approximation to the 
     equivalent position may be a higher or lower position, 
     depending on the circumstances.
     Sec. 1002.226  If the employee has a disability that was 
         incurred in, or aggravated during, the period of service, 
         what efforts must the employing office make to help him 
         or her become qualified for the reemployment position?
       (a) USERRA requires that the employee be qualified for the 
     reemployment position regardless of any disability. The 
     employing office must make reasonable efforts to help the 
     employee to become qualified to perform the duties of this 
     position. The employing office is not required to reemploy 
     the employee on his or her return from service if he or she 
     cannot, after reasonable efforts by the employing office, 
     qualify for the appropriate reemployment position.
       (b) ``Qualified'' has the same meaning here as in 
     Sec. 1002.198.


                              Rate of Pay

     Sec. 1002.236  How is the employee's rate of pay determined 
         when he or she returns from a period of service?
       The employee's rate of pay is determined by applying the 
     same escalator principles that are used to determine the 
     reemployment position, as follows:
       (a) If the employee is reemployed in the escalator 
     position, the employing office must compensate him or her at 
     the rate of pay associated with the escalator position. The 
     rate of pay must be determined by taking into account any pay 
     increases, differentials, step increases, merit increases, or 
     periodic increases that the employee would have attained with 
     reasonable certainty had he or she remained continuously 
     employed during

[[Page S3201]]

     the period of service. In addition, when considering whether 
     merit or performance increases would have been attained with 
     reasonable certainty, an employing office may examine the 
     returning employee's own work history, his or her history of 
     merit increases, and the work and pay history of employees in 
     the same or similar position.
       For example, if the employee missed a merit pay increase 
     while performing service, but qualified for previous merit 
     pay increases, then the rate of pay should include the merit 
     pay increase that was missed. If the merit pay increase that 
     the employee missed during service is based on a skills test 
     or examination, then the employing office should give the 
     employee a reasonable amount of time to adjust to the 
     reemployment position and then give him or her the skills 
     test or examination. No fixed amount of time for permitting 
     adjustment to reemployment will be deemed reasonable in all 
     cases. However, in determining a reasonable amount of time to 
     permit an employee to adjust to reemployment before 
     scheduling a makeup test or examination, an employing office 
     may take into account a variety of factors, including but not 
     limited to the length of time the returning employee was 
     absent from work, the level of difficulty of the test itself, 
     the typical time necessary to prepare or study for the test, 
     the duties and responsibilities of the reemployment position 
     and the promotional position, and the nature and 
     responsibilities of the service member while serving in the 
     uniformed service. The escalator principle also applies in 
     the event a pay reduction occurred in the reemployment 
     position during the period of service. Any pay adjustment 
     must be made effective as of the date it would have occurred 
     had the employee's employment not been interrupted by 
     uniformed service.
       (b) If the employee is reemployed in the pre-service 
     position or another position, the employing office must 
     compensate him or her at the rate of pay associated with the 
     position in which he or she is reemployed. As with the 
     escalator position, the rate of pay must be determined by 
     taking into account any pay increases, differentials, step 
     increases, merit increases, or periodic increases that the 
     employee would have attained with reasonable certainty had he 
     or she remained continuously employed during the period of 
     service.


                      Protection Against Discharge

     Sec. 1002.247  Does USERRA provide the employee with 
         protection against discharge?
       It depends. If the employee's most recent period of service 
     in the uniformed services was more than 30 days, a discharge 
     without cause may create a rebuttable presumption that there 
     has been a violation of USERRA--
       (a) For 180 days after the employee's date of reemployment 
     if his or her most recent period of uniformed service was 
     more than 30 days but less than 181 days; or,
       (b) For one year after the date of reemployment if the 
     employee's most recent period of uniformed service was more 
     than 180 days.
     Sec. 1002.248  What constitutes cause for discharge under 
         USERRA?
       The employee may be discharged for cause based either on 
     conduct or, in some circumstances, because of the application 
     of other legitimate nondiscriminatory reasons.
       (a) In a discharge action based on conduct, the employing 
     office bears the burden of proving that it is reasonable to 
     discharge the employee for the conduct in question, and that 
     he or she had notice, which was express or can be fairly 
     implied, that the conduct would constitute cause for 
     discharge.
       (b) If, based on the application of other legitimate 
     nondiscriminatory reasons, the employee's job position is 
     eliminated, or the employee is placed on layoff status, 
     either of these situations would constitute cause for 
     purposes of USERRA. The employing office bears the burden of 
     proving that the employee's job would have been eliminated or 
     that he or she would have been laid off.


                         Pension Plan Benefits

     Sec. 1002.259  How does USERRA protect an employee's pension 
         benefits?
       On reemployment, the employee is treated as not having a 
     break in service with the employing office maintaining a 
     pension plan, for purposes of participation, vesting and 
     accrual of benefits, by reason of the period of absence from 
     employment due to or necessitated by service in the uniformed 
     services.
       (a) Depending on the length of the employee's period of 
     service, he or she is entitled to take from one to ninety 
     days following service before reporting back to work or 
     applying for reemployment (See Sec. 1002.115). This period of 
     time must be treated as continuous service with the employing 
     office for purposes of determining participation, vesting and 
     accrual of pension benefits under the plan.
       (b) If the employee is hospitalized for, or convalescing 
     from, an illness or injury incurred in, or aggravated during, 
     service, he or she is entitled to report to or submit an 
     application for reemployment at the end of the time period 
     necessary for him or her to recover from the illness or 
     injury. This period, which may not exceed two years from the 
     date the employee completed service, except in circumstances 
     beyond his or her control, must be treated as continuous 
     service with the employing office for purposes of determining 
     the participation, vesting and accrual of pension benefits 
     under the plan.
     Sec. 1002.260  What pension benefit plans are covered under 
         USERRA?
       (a) The Employee Retirement Income Security Act of 1974 
     (ERISA) defines an employee pension benefit plan as a plan 
     that provides retirement income to employees, or defers 
     employee income to a period extending to or beyond the 
     termination of employment. Any such plan maintained by the 
     employing office is covered under USERRA. USERRA also covers 
     certain pension plans not covered by ERISA, such as those 
     sponsored by a State, government entity, or church for its 
     employees.
       (b) USERRA does not cover pension benefits under the 
     Federal Thrift Savings Plan; those benefits are covered under 
     5 U.S.C. 8432b.
     Sec. 1002.261  Who is responsible for funding any plan 
         obligation to provide the employee with pension benefits?
       With the exception of multi-employer plans, which have 
     separate rules discussed below, the employing office is 
     liable to the pension benefit plan to fund any obligation of 
     the plan to provide benefits that are attributable to the 
     employee's period of service. In the case of a defined 
     contribution plan, once the employee is reemployed, the 
     employing office must allocate the amount of its make-up 
     contribution for the employee, if any; the employee's make-up 
     contributions, if any; and the employee's elective deferrals, 
     if any; in the same manner and to the same extent that it 
     allocates the amounts for other employees during the period 
     of service. In the case of a defined benefit plan, the 
     employee's accrued benefit will be increased for the period 
     of service once he or she is reemployed and, if applicable, 
     has repaid any amounts previously paid to him or her from the 
     plan and made any employee contributions that may be required 
     to be made under the plan.
     Sec. 1002.262  When is the employing office required to make 
         the plan contribution that is attributable to the 
         employee's period of uniformed service?
       (a) The employing office is not required to make its 
     contribution until the employee is reemployed. For employer 
     contributions to a plan in which the employee is not required 
     or permitted to contribute, the employing office must make 
     the contribution attributable to the employee's period of 
     service no later than ninety days after the date of 
     reemployment, or when plan contributions are normally due for 
     the year in which the service in the uniformed services was 
     performed, whichever is later. If it is impossible or 
     unreasonable for the employing office to make the 
     contribution within this time period, the employer must make 
     the contribution as soon as practicable.
       (b) If the employee is enrolled in a contributory plan, he 
     or she is allowed (but not required) to make up his or her 
     missed contributions or elective deferrals. These makeup 
     contributions, or elective deferrals, must be made during a 
     time period starting with the date of reemployment and 
     continuing for up to three times the length of the employee's 
     immediate past period of uniformed service, with the 
     repayment period not to exceed five years. Makeup 
     contributions or elective deferrals may only be made 
     during this period and while the employee is employed with 
     the post-service employing office.
       (c) If the employee's plan is contributory and he or she 
     does not make up his or her contributions or elective 
     deferrals, he or she will not receive the employer match or 
     the accrued benefit attributable to his or her contribution. 
     This is true because the employing office is required to make 
     contributions that are contingent on or attributable to the 
     employee's contributions or elective deferrals only to the 
     extent that the employee makes up his or her payments to the 
     plan. Any employing office contributions that are contingent 
     on or attributable to the employee's make-up contributions or 
     elective deferrals must be made according to the plan's 
     requirements for employer matching contributions.
       (d) The employee is not required to make up the full amount 
     of employee contributions or elective deferrals that he or 
     she missed making during the period of service. If the 
     employee does not make up all of the missed contributions or 
     elective deferrals, his or her pension may be less than if he 
     or she had done so.
       (e) Any vested accrued benefit in the pension plan that the 
     employee was entitled to prior to the period of uniformed 
     service remains intact whether or not he or she chooses to be 
     reemployed under the Act after leaving the uniformed service.
       (f) An adjustment will be made to the amount of employee 
     contributions or elective deferrals that the employee will be 
     able to make to the pension plan for any employee 
     contributions or elective deferrals he or she actually made 
     to the plan during the period of service.
     Sec. 1002.263  Does the employee pay interest when he or she 
         makes up missed contributions or elective deferrals?
       No. The employee is not required or permitted to make up a 
     missed contribution in an amount that exceeds the amount he 
     or she would have been permitted or required to contribute 
     had he or she remained continuously employed during the 
     period of service.
     Sec. 1002.264  Is the employee allowed to repay a previous 
         distribution from a pension benefits plan upon being 
         reemployed?
       Yes, provided the plan is a defined benefit plan. If the 
     employee received a distribution

[[Page S3202]]

     of all or part of the accrued benefit from a defined benefit 
     plan in connection with his or her service in the uniformed 
     services before he or she became reemployed, he or she must 
     be allowed to repay the withdrawn amounts when he or she is 
     reemployed. The amount the employee must repay includes any 
     interest that would have accrued had the monies not been 
     withdrawn. The employee must be allowed to repay these 
     amounts during a time period starting with the date of 
     reemployment and continuing for up to three times the length 
     of the employee's immediate past period of uniformed service, 
     with the repayment period not to exceed five years (or such 
     longer time as may be agreed to between the employing office 
     and the employee), provided the employee is employed with the 
     post-service employing office during this period.
     Sec. 1002.265  If the employee is reemployed with his or her 
         pre-service employing office, is the employee's pension 
         benefit the same as if he or she had remained 
         continuously employed?
       The amount of the employee's pension benefit depends on the 
     type of pension plan.
       (a) In a non-contributory defined benefit plan, where the 
     amount of the pension benefit is determined according to a 
     specific formula, the employee's benefit will be the same as 
     though he or she had remained continuously employed during 
     the period of service.
       (b) In a contributory defined benefit plan, the employee 
     will need to make up contributions in order to have the same 
     benefit as if he or she had remained continuously employed 
     during the period of service.
       (c) In a defined contribution plan, the benefit may not be 
     the same as if the employee had remained continuously 
     employed, even though the employee and the employing office 
     make up any contributions or elective deferrals attributable 
     to the period of service, because the employee is not 
     entitled to forfeitures and earnings or required to 
     experience losses that accrued during the period or periods 
     of service.
     Sec. 1002.266  What are the obligations of a multi-employer 
         pension benefit plan under USERRA?
       A multi-employer pension benefit plan is one to which more 
     than one employer is required to contribute, and which is 
     maintained pursuant to one or more collective bargaining 
     agreements between one or more employee organizations and 
     more than one employer. The Act uses ERISA's definition of a 
     multi-employer plan. In addition to the provisions of USERRA 
     that apply to all pension benefit plans, there are provisions 
     that apply specifically to multi-employer plans, as follows:
       (a) The last employer that employed the employee before the 
     period of service is responsible for making the employer 
     contribution to the multi-employer plan, if the plan sponsor 
     does not provide otherwise. If the last employer is no longer 
     functional, the plan must nevertheless provide coverage to 
     the employee.
       (b) An employer that contributes to a multi-employer plan 
     and that reemploys the employee pursuant to USERRA must 
     provide written notice of reemployment to the plan 
     administrator within 30 days after the date of reemployment. 
     The returning service member should notify the reemploying 
     employer that he or she has been reemployed pursuant to 
     USERRA. The 30-day period within which the reemploying 
     employer must provide written notice to the multi-
     employer plan pursuant to this subsection does not begin 
     until the employer has knowledge that the employee was re-
     employed pursuant to USERRA.
       (c) The employee is entitled to the same employer 
     contribution whether he or she is reemployed by the pre-
     service employer or by a different employer contributing to 
     the same multi-employer plan, provided that the pre-service 
     employer and the post-service employer share a common means 
     or practice of hiring the employee, such as common 
     participation in a union hiring hall.
     Sec. 1002.267  How is compensation during the period of 
         service calculated in order to determine the employee's 
         pension benefits, if benefits are based on compensation?
       In many pension benefit plans, the employee's compensation 
     determines the amount of his or her contribution or the 
     retirement benefit to which he or she is entitled.
       (a) Where the employee's rate of compensation must be 
     calculated to determine pension entitlement, the calculation 
     must be made using the rate of pay that the employee would 
     have received but for the period of uniformed service.
       (b)(1) Where the rate of pay the employee would have 
     received is not reasonably certain, the average rate of 
     compensation during the 12-month period prior to the period 
     of uniformed service must be used.
       (2) Where the rate of pay the employee would have received 
     is not reasonably certain and he or she was employed for less 
     than 12 months prior to the period of uniformed service, the 
     average rate of compensation must be derived from this 
     shorter period of employment that preceded service.

       Subpart F--Compliance Assistance, Enforcement and Remedies


                         Compliance Assistance

     Sec. 1002.277  What assistance does the Office of Compliance 
         provide to employees and employers concerning employment, 
         reemployment, or other rights and benefits under USERRA?
       The Office of Compliance provides assistance to any person 
     or entity who is covered by the CAA with respect to 
     employment and reemployment rights and benefits under USERRA 
     as applied by the CAA. This assistance includes responding to 
     inquiries, and providing a program of education and 
     information on matters relating to USERRA.


                       Investigation and Referral

     Sec. 1002.288  How does a covered employee initiate a claim 
         alleging a violation of USERRA under the CAA?
       (a) If an individual is claiming entitlement to employment 
     rights or benefits or reemployment rights or benefits and 
     alleges that an employing office has failed or refused, or is 
     about to fail or refuse, to comply with the Act, the 
     individual may file a complaint with the Office of 
     Compliance, after a required period of counseling and 
     mediation.
       (b) To commence a proceeding, a covered employee alleging a 
     violation of the rights and protections of USERRA must 
     request counseling by the Office of Compliance no later than 
     180 days after the date of the alleged violation. If a 
     covered employee misses this deadline, the claim may be time 
     barred under the CAA.
       (c) The following procedures are available under subchapter 
     IV of the CAA for covered employees who believe their rights 
     under USERRA as made applicable by the CAA have been 
     violated:
       (1) counseling;
       (2) mediation; and
       (3) election of either--
       (A) a formal complaint filed with the Office of Compliance 
     (which must meet the requirements as set forth in the Office 
     of Compliance Procedural Rules, Section 5.01(c)), and a 
     hearing before a hearing officer, subject to review by the 
     Board of Directors of the Office of Compliance, and judicial 
     review in the United States Court of Appeals for the Federal 
     Circuit; or
       (B) a civil action in a district court of the United 
     States.
       (d) Regulations of the Office of Compliance describing and 
     governing these procedures can be found at 141 Cong. Rec. 
     H15645-H15655 (December 22, 1995) and 141 Cong. Rec. 
     19239, 143 Cong. Rec. H8316-H8317 (as amended, applying 
     USERRA to the Government Accountability Office and the 
     Library of Congress).


     Enforcement of Rights and Benefits Against an Employing Office

     Sec. 1002.303  Is a covered employee required to bring his or 
         her claim to the Office of Compliance?
       Yes. All covered employees who file claims under Part A of 
     subchapter II of the CAA, which includes USERRA, are required 
     to go through counseling and mediation before electing to 
     file a civil action or a complaint with the Office of 
     Compliance.
     Sec. 1002.308  Who has legal standing to bring a USERRA claim 
         under the CAA?
       An action under Section 206 of the CAA may be brought by an 
     eligible employee, as defined by Section 1002.5 (f) of 
     Subpart A of these regulations. An action under 207(a) of the 
     CAA may be brought by a covered employee, as defined by 
     section 1002.5 (e) of Subpart A of these regulations. An 
     employing office, prospective employing office or other 
     similar entity may not bring an action under the Act.
     Sec. 1002.309  Who is a necessary party in an action under 
         USERRA?
       In an action under USERRA, only the covered employing 
     office or a potential covered employing office, as the case 
     may be, is a necessary party respondent. Under the Office of 
     Compliance Procedural Rules, a hearing officer has authority 
     to require the filing of briefs, memoranda of law, and the 
     presentation of oral argument. A hearing officer also may 
     order the production of evidence and the appearance of 
     witnesses.
     Sec. 1002.310  How are fees and court costs charged or taxed 
         in an action under USERRA?
       No fees or court costs may be charged or taxed against an 
     individual if he or she is claiming rights under the Act. If 
     a covered employee is a prevailing party with respect to any 
     claim under USERRA, the hearing officer, Board, or court may 
     award reasonable attorney fees, expert witness fees, and 
     other litigation expenses.
     Sec. 1002.311  Is there a statute of limitations in an action 
         under USERRA?
       USERRA does not have a statute of limitations. However, 
     Section 402 of the CAA requires an individual to bring a 
     request for counseling alleging a violation of the CAA no 
     later than 180 days after the date of the alleged violation. 
     A claim alleging a USERRA violation as applied by the CAA 
     would follow this requirement.
     Sec. 1002.312  What remedies may be awarded for a violation 
         of USERRA?
       In any action or proceeding the following relief may be 
     awarded:
       (a) The court and/or hearing officer may require the 
     employing office to comply with the provisions of the Act;
       (b) The court and/or hearing officer may require the 
     employing office to compensate the individual for any loss of 
     wages or benefits suffered by reason of the employing 
     office's failure to comply with the Act;
       (c) The court and/or hearing officer may require the 
     employing office to pay the individual an amount equal to the 
     amount of lost wages and benefits as liquidated damages, if 
     the court and/or hearing officer determines that the 
     employing office's failure

[[Page S3203]]

     to comply with the Act was willful. A violation shall be 
     considered to be willful if the employing office either knew 
     or showed reckless disregard for whether its conduct was 
     prohibited by the Act.
       (d) Any wages, benefits, or liquidated damages awarded 
     under paragraphs (b) and (c) of this section are in addition 
     to, and must not diminish, any of the other rights and 
     benefits provided by USERRA (such as, for example, the right 
     to be employed or reemployed by the employing office).
     Sec. 1002.314  May a court and/or hearing officer use its 
         equity powers in an action or proceeding under the Act?
       Yes. A court and/or hearing officer may use its full equity 
     powers, including the issuance of temporary or permanent 
     injunctions, temporary restraining orders, and contempt 
     orders, to vindicate the rights or benefits guaranteed under 
     the Act.

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