[Federal Register Volume 63, Number 15 (Friday, January 23, 1998)]
[Rules and Regulations]
[Pages 3465-3472]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-1583]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 104
[DoD Instruction 1205.12]
RIN 0790-AG52
Civilian Employment and Reemployment Rights of Applicants for,
and Service Members and Former Service Members of the Uniformed
Services
AGENCY: Department of Defense.
ACTION: Final rule.
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SUMMARY: This part identifies DoD guidelines for implementing policy,
assigns responsibilities, and prescribes procedures for informing
Service members of their reemployment protections. It updates,
codifies, and strengthens the civilian employment rights and benefits
of Service members and individuals who apply for uniformed service, and
specifies the
[[Page 3466]]
obligations of Service members and applicants for uniformed service.
DATES: This part is effective February 1, 1998. Comments must be
received no later than March 24, 1998.
FOR FURTHER INFORMATION CONTACT:
Colonel Rowan W. Bronson, OASD/RA (M&P), (703) 693-7490.
SUPPLEMENTARY INFORMATION:
Executive Order 12866, ``Regulatory Planning and Review''
It has been determined that 32 CFR part 104 does not pertain to a
military or foreign affairs function of the United States. It is not a
significant regulatory action. This final rule does not:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy; a section of the
economy; productivity; competition; jobs; the environment; public
health or safety; or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another Agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive Order.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
It has been determined that this rule is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601) because it is related to a
military or foreign affairs function of the United States. It would
not, if promulgated, have a significant economic impact on a
substantial number of small entities. The law provides employment and
reemployment protections for Active and Reserve Component members, as
well as individuals who apply to be members of the Uniformed Services.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter
35)
It has been determined that this part does not impose any reporting
or recordkeeping requirements on the public under the Paperwork
Reduction Act of 1995.
List of Subjects in 32 CFR Part 104
Government employees, Military personnel.
Accordingly, Title 32, Chapter 1, 32 CFR part 104, is added to read
as follows:
PART 104--CIVILIAN EMPLOYMENT AND REEMPLOYMENT RIGHTS OF APPLICANTS
FOR, AND SERVICE MEMBERS AND FORMER SERVICE MEMBERS OF THE
UNIFORMED SERVICES
Sec.
104.1 Purpose.
104.2 Applicability.
104.3 Definitions.
104.4 Policy.
104.5 Responsibilities.
104.6 Procedures.
Appendix A to part 104--Civilian Employment And Reemployment Rights,
Benefits And Obligations For Applicants For, And Service Members And
Former Service Members Of The Uniformed Services
Appendix B to part 104--Sample Employer Notification Of Uniformed
Service
Authority: 10 U.S.C. 1161.
Sec. 104.1 Purpose.
This part:
(a) Updates implementation policy, assigns responsibilities, and
prescribes procedures for informing Service members who are covered by
the provisions of 38 U.S.C chapter 43 and individuals who apply for
uniformed service, of their civilian employment and reemployment
rights, benefits and obligations.
(b) Implements 38 U.S.C. chapter 43, which updated, codified, and
strengthened the civilian employment and reemployment rights and
benefits of Service members and individuals who apply for uniformed
service, and specifies the obligations of Service members and
applicants for uniformed service.
Sec. 104.2 Applicability.
This part applies to the Office of the Secretary of Defense; the
Military Departments, including the Coast Guard when it is not
operating as a Military Service in the Department of the Navy by
agreement with the Department of Transportation; the Chairman of the
Joint Chiefs of Staff; and the Defense Agencies (referred to
collectively in this part as ``the DoD Components''). The term
``Military Departments,'' as used in this part, refers to the
Departments of the Army, Navy, and Air Force. The term ``Secretary
concerned'' refers to the Secretaries of the Military Departments and
the Secretary of Transportation with respect to the Coast Guard when it
is not operating as a Service in the Department of the Navy. The term
``Military Services'' refers to the Army, the Navy, the Air Force, the
Marine Corps, and the Coast Guard.
Sec. 104.3 Definitions.
Critical mission. An operational mission that requires the skills
or resources available in a Reserve component or components.
Critical requirement. A requirement in which the incumbent
possesses unique knowledge, extensive experience, and specialty skill
training to successfully fulfill the duties or responsibilities in
support of the mission, operation or exercise. Also, a requirement in
which the incumbent must gain the necessary experience to qualify for
key senior leadership positions within his or her Reserve component.
Escalator position. This is established by the principle that the
returning Service member is entitled to the position of civilian
employment that he or she would have attained had he or she remained
continuously employed by that civilian employer. This may be a position
of greater or lesser responsibilities, to include a layoff status, when
compared to the employees of the same seniority and status employed by
the company.
Impossible or unreasonable. For the purpose of determining when
providing advance notice of uniformed service to an employer is
impossible or unreasonable, the unavailability of an employer or
employer representative to whom notification can be given, an order by
competent military authority to report for uniformed service within
forty-eight hours of notification, or other circumstances that the
Office of the Assistant Secretary of Defense for Reserve Affairs may
determine are impossible or unreasonable are sufficient justification
for not providing advance notice of pending uniformed service to an
employer.
Military necessity. For the purpose of determining when providing
advance notice of uniformed service is not required, a mission,
operation, exercise or requirement that is classified, or a pending or
ongoing mission, operation, exercise or requirement that may be
compromised or otherwise adversely affected by public knowledge is
sufficient justification for not providing advance notice to an
employer.
Non-career service. The period of active uniformed service required
to complete the initial uniformed service obligation; a period of
active duty or full-time National Guard duty that is for a specified
purpose and duration with no expressed or implied commitment for
continued active duty; or participation in a Reserve component as a
member of the Ready Reserve performing annual training, active duty for
training or inactive duty training.
[[Page 3467]]
Continuous or repeated active uniformed service or full-time National
Guard duty that results in eligibility for a regular retirement from
the Armed Forces is not considered non-career service.
Officer. For determining those Service officials authorized to
provide advance notice to a civilian employer of pending uniformed
service by a Service member or an individual who has applied for
uniformed service, an officer shall include all commissioned officers,
warrant officers, and non-commissioned officers authorized by the
Secretary concerned to act in this capacity.
Uniformed service. Performance of duty on a voluntary or
involuntary basis in the Army, the Navy, the Air Force, the Marine
Corps or the Coast Guard, including their Reserve components, when the
Service member is engaged in active duty, active duty for special work,
active duty for training, initial active duty for training, inactive
duty training, annual training or full-time National Guard duty, and,
for purposes of this part, a period for which a person is absent from a
position of employment for the purpose of an examination to determine
the fitness of the person to perform such duty.
Sec. 104.4 Policy.
It is DoD policy to support non-career service by taking
appropriate actions to inform and assist uniformed Service members and
former Service members who are covered by the provisions of 38 U.S.C.
chapter 43, and individuals who apply for uniformed service of their
rights, benefits, and obligations under 38 U.S.C. Chapter 43. Such
actions include:
(a) Advising non-career Service members and individuals who apply
for uniformed service of their employment and reemployment rights and
benefits provided in 38 U.S.C. chapter 43, as implemented by this part,
and the obligations they must meet to exercise those rights.
(b) Providing assistance to Service members, former Service members
and individuals who apply for uniformed service in exercising
employment and reemployment rights and benefits.
(c) Providing assistance to civilian employers of non-career
Service members in addressing issues involving uniformed service as it
relates to civilian employment or reemployment.
(d) Considering requests from civilian employers of members of the
National Guard and Reserve to adjust a Service member's scheduled
absence from civilian employment because of uniformed service or make
other accommodations to such requests, when it is reasonable to do so.
(e) Documenting periods of uniformed service that are exempt from a
Service member's cumulative 5-year absence from civilian employment to
perform uniformed service as provided in 38 U.S.C. chapter 43 and
implemented by this part.
(f) Providing, at the Service member's request, necessary
documentation concerning a period or periods of service, or providing a
written statement that such documentation is not available, that will
assist the Service member in establishing civilian reemployment rights,
benefits and obligations.
Sec. 104.5 Responsibilities.
(a) The Assistant Secretary of Defense for Reserve Affairs, under
the Under Secretary of Defense for Personnel and Readiness, shall:
(1) In conjunction with the Departments of Labor (DoL) and Veterans
Affairs, the Office of Personnel Management (OPM), and other
appropriate Departments and activities of the executive branch,
determine actions necessary to establish procedures and provide
information concerning civilian employment and reemployment rights,
benefits and obligations.
(2) Establish procedures and provide guidance to the Secretaries
concerned about civilian employment and reemployment rights, benefits
and obligations of Service members who are covered by the provisions of
38 U.S.C. chapter 43 and individuals who apply for uniformed service as
provided in 38 U.S.C. chapter 43. This responsibility shall be carried
out in coordination with DoL, OPM, and the Federal Retirement Thrift
Investment Board.
(3) Monitor compliance with 38 U.S.C. chapter 43 and this part.
(4) Publish in the Federal Register, DoD policies and procedures
established to implement 38 U.S.C. chapter 43.
(b) The Secretaries of the Military Departments and the Commandant
of the Coast Guard shall establish procedures to:
(1) Ensure compliance with this part.
(2) Inform Service members who are covered by the provisions of 38
U.S.C. chapter 43 and individuals who apply for uniformed service of
the provisions of 38 U.S.C. chapter 43 as implemented by this part.
(3) Provide available documentation, upon request from a Service
member or former Service member, that can be used to establish
reemployment rights of the individual.
(4) Specify, as required, and document those periods of active duty
that are exempt from the 5-year cumulative service limitation that a
Service member may be absent from a position of civilian employment
while retaining reemployment rights.
(5) Provide assistance to Service members and former Service
members who are covered by the provisions of 38 U.S.C. chapter 43, and
individuals who apply for uniformed service in exercising employment
and reemployment rights.
(6) Provide assistance, as appropriate, to civilian employers of
Service members who are covered by the provisions of 38 U.S.C. chapter
43 and individuals who apply for uniformed service.
(7) Cooperate with the DoL in discharging its responsibilities to
assist persons with employment and reemployment rights and benefits.
(8) Cooperate with OPM in carrying out its placement
responsibilities under 38 U.S.C. chapter 43.
Sec. 104.6 Procedures.
The Secretaries of the Military Departments and the Commandant of
the Coast Guard shall:
(a) Inform individuals who apply for uniformed service and members
of a Reserve component who perform or participate on a voluntary or
involuntary basis in active duty, active duty for special work, initial
active duty for training, active duty for training, inactive duty
training, annual training and full-time National Guard duty, of their
employment and reemployment rights, benefits, and obligations as
provided under 38 U.S.C. chapter 43 and described in Appendix A of this
part. Other appropriate materials may be used to supplement the
information contained in Appendix A of this part.
(1) Persons who apply for uniformed service shall be advised that
DoD strongly encourages applicants to provide advance notice in writing
to their civilian employers of pending uniformed service or any absence
for the purpose of an examination to determine the person's fitness to
perform uniformed service. Providing written advance notice is
preferable to verbal advance notice since it is easier to establish
that this basic prerequisite to retaining reemployment rights was
fulfilled. Regardless of the means of providing advance notice, whether
verbal or written, it should be provided as early as practicable.
(2) Annually and whenever called to duty for a contingency
operation, advise Service members who are participating in a Reserve
component of:
[[Page 3468]]
(i) The requirement to provide advance written or verbal notice to
their civilian employers for each period of military training, active
and inactive duty, or full-time National Guard duty.
(A) Reserve component members shall be advised that DoD strongly
encourages that they provide advance notice to their civilian employers
in writing for each period of pending uniformed service. Providing
written advance notice is preferable to verbal advance notice since it
easily establishes that this prerequisite to retaining reemployment
rights was fulfilled.
(B) Regardless of the means of providing advance notice, whether
written or verbal, it should be provided as early as practicable. DoD
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.
(C) The advance notice requirement can be met by providing the
employer with a copy of the unit annual training schedule or preparing
a standardized letter. The sample employer notification letter in
Appendix B of this part may be used for this purpose.
(ii) The 5-year cumulative limit on absences from their civilian
employment due to uniformed service and exemptions to that limit.
(iii) The requirements for reporting or submitting application to
return to their position of civilian employment.
(iv) Their general reemployment rights and benefits.
(v) The option for continuing employer provided health care, if the
employer provides such a benefit.
(vi) The opportunity to use accrued leave in order to perform
uniformed service.
(vii) Who they may contact to obtain assistance with employment and
reemployment questions and problems.
(b) Inform Service members who are covered by the provisions of 38
U.S.C. Chapter 43, upon completion of an extended period of active duty
and before separation from active duty of their employment and
reemployment rights, benefits, and obligations as provided under 38
U.S.C. Chapter 43. This shall, as a minimum, include notification and
reporting requirements for returning to employment with their civilian
employer. While Appendix A of this part provides the necessary
information to satisfy this requirement, other appropriate materials
may be used to supplement this information.
(c) Issue orders that span the entire period of service when
ordering a member of the National Guard or Reserve to active duty for a
mission or requirement. Order modifications shall be initiated, as
required, to ensure continuous active duty should the period required
to complete the mission or requirement change.
(d) Document the length of a Service member's initial period of
military service obligation performed on active duty.
(e) Determine and certify in writing those additional training
requirements not already exempt for the 5-year cumulative service limit
which are necessary for the professional development, or skill training
or retraining for members of the National Guard or Reserve. Once the
Secretary concerned certifies those training requirements, performance
of uniformed service to complete a certified training requirement is
exempt from the 5-year cumulative service limit.
(f) Determine those periods of active duty when a Service member is
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 Congress. If the purpose of the order to, or retention
on, active duty is for the direct or indirect support of the war or
national emergency, then the orders of the Service member should be so
annotated, since that period of service is exempt from the 5-year
cumulative service limit established in 38 U.S.C. Chapter 43.
(g) Determine those periods of active duty performed by a member of
the National Guard or Reserve that are designated by the Secretary
concerned as a critical mission or critical requirement, and for that
reason are exempt form the 5-year cumulative service limit. The
authority for determining what constitutes a critical mission or
requirement shall not be delegated below the Assistant Secretary level
or the Commandant of the Coast Guard. The designation of a critical
requirement to gain the necessary experience to qualify for key senior
leadership positions shall be used judiciously, and the necessary
experience and projected key leadership positions fully documented.
This authority shall not be used to grant exemptions to avoid the
cumulative 5-year service limit established by 38 U.S.C. Chapter 43 or
to extend individuals in repeated statutory tours. The Assistant
Secretary of Defense for Reserve Affairs shall be notified in writing
of all occasions in which a Service member is granted more than one
exemption for a critical requirement when the additional exemption(s)
extend the Service member beyond the 5-year cumulative service limit
established in 38 U.S.C. Chapter 43.
(h) When appropriate, ensure that orders to active duty or orders
retaining members on active duty specify the statutory or Secretarial
authority for those orders when such authority meets one or more of the
exemptions from the 5-year cumulative service limit provided in 38
U.S.C. Chapter 43. If circumstances arise that prevent placing this
authority on the orders, the authority shall be included in a
separation document and retained in the Service member's personnel
file.
(i) Ensure that appropriate documents verifying any period of
service exempt from the 5-year cumulative service limit are place in
the Service member's personnel record or other appropriate record.
(j) Document those circumstances that prevent a Service member from
providing advance notification of uniformed service to a civilian
employer because of military necessity or when advance notification is
otherwise impossible or unreasonable, as defined in Sec. 104.3.
(k) Designate those officers, as defined in Sec. 104.3, who are
authorized by the Secretary concerned to provide advance notification
of service to a civilian employer on behalf of a Service member or
applicant for uniformed service.
(l) Provide documentation, upon request from a Service member or
former Service member, that may be used to satisfy the Service member's
entitlement to statutory reemployment rights and benefits. Appropriate
documentation may include, as necessary:
(1) The inclusive dates of the initial period of military service
obligation performed on active duty.
(2) Any period of service during which a Service member was
required to serve because he or she was unable to obtain a release from
active duty though no fault of the Service member.
(3) The cumulative length of all periods of active duty performed.
(4) The authority under which a Service member was ordered to
active duty when such service was exempt from the 5-year cumulative
service limit.
(5) The date the Service member was last released from active duty,
active duty for special work, initial active duty for training, active
duty for training, inactive duty training, annual training or full-time
National Guard duty. This documentation establishes the timeliness of
reporting to, or submitting application to return to, a position of
civilian employment.
(6) Whether service requirements prevent providing a civilian
employer
[[Page 3469]]
with advance notification of pending service.
(7) That the Service member's entitlement to reemployment benefits
has not been terminated because of the character of service as provided
in 38 U.S.C. 4304.
(8) When appropriate, a statement that sufficient documentation
does not exist.
(m) Establish a central point of contact at a headquarters or
regional command who can render assistance to active duty Service
members and applicants for uniformed service about employment and
reemployment rights, benefits and obligations.
(n) Establish points of contact in each Reserve component
headquarters or Reserve regional command, and each National Guard State
headquarters who can render assistance to:
(1) Members of the National Guard or Reserve about employment and
reemployment rights, benefits and obligations.
(2) Employers of National Guard and Reserve members about duty or
training requirements arising from a member's uniformed service or
service obligation.
(o) A designated Reserve component representative shall consider,
and accommodate when it does not conflict with military requirements, a
request from a civilian employer of a National Guard and Reserve member
to adjust a Service member's absence from civilian employment due to
uniformed service when such service has an adverse impact on the
employer. The representative may make arrangements other than adjusting
the period of absence to accommodate such a request when it serves the
best interest of the military and is reasonable to do so.
Appendix A to Part 104--Civilian Employment and Reemployment Rights,
Benefits and Obligations for Applicants for, and Service Members and
Former Service Members of the Uniformed Services
A. Scope of Coverage
1. The Uniformed Services Employment and Reemployment Rights Act
(USERRA) which is codified in 38 U.S.C. Chapter 43 provides
protection to anyone absent from a position of civilian employment
because of uniformed service if:
a. Advance written or verbal notice was given to the civilian
employer.
(1) Advance notice is not required if precluded by military
necessity, or is otherwise unreasonable or impossible.
(2) DoD strongly encourages Service members and or applicants
for service to provide advance notice to their civilian employer in
writing for each period of pending uniformed service. Providing
written advance notice is preferable to verbal advance notice since
it easily establishes that this prerequisite to retaining
reemployment rights was fulfilled. Regardless of the means of
providing advance notice, whether written or verbal, it should be
provided as early as practicable. Also, DoD strongly recommends that
Reserve component members provide advance notice to their civilian
employers at least 30 days in advance when it is feasible to do so.
The advance notice requirement can be met by providing the employer
with a copy of the unit annual training schedule or preparing a
standardized letter. The sample employer notification letter in
Appendix B of this part may be used for this purpose;
b. The cumulative length of absences does not exceed 5 years;
c. The individual reports to, or submits an application for
reemployment, within the specified period based on duration of
services as described in section D of this Appendix; and,
d. The person's character of service was not disqualifying as
described in paragraphs A.2.d. and e. of this appendix.
2. A civilian employer is not required to reemploy a person if:
a. The civilian employment was for a brief, non-recurrent period
and there was no reasonable expectation that the employment would
continue indefinitely or for a significant period.
b. The employer's circumstances have so changed as to make
reemployment impossible or unreasonable.
c. The reemployment imposes an undue hardship on the employer in
the case of an individual who:
(1) Has incurred a service connected disability; or,
(2) Is not qualified for the escalator position or the position
last held, and cannot become qualified for any other position of
lesser status and pay after a reasonable effort by the employer to
qualify the person for such positions.
d. The Service member or former Service member was separated
from a uniformed service with a dishonorable or bad conduct
discharge, or separated from a uniformed service under other than
honorable conditions.
e. An officer dismissed from any Armed Force or dropped from the
rolls of any Armed Force as prescribed under 10 U.S.C. 1161.
f. The cumulative length of service exceeds five years and no
portion of the cumulative five years of uniformed service falls
within the exceptions described in section C. of this Appendix.
g. An employer asserting that he or she is not required to
reemploy an individual because the employment was for a brief, non-
recurrent period, or reemployment is impossible or unreasonable, or
reemployment imposes an undue hardship on the employer, that
employer has the burden of proving his or her assertion.
3. Entitlement to protection under 38 U.S.C. Chapter 43 does not
depend on the timing, frequency, and duration of training or
uniformed service.
B. Prohibition Against Discrimination and Acts of Reprisal
1. A person who is a member of, applies to be a member of, has
performed, applies to perform, or has an obligation to perform
service in a uniformed service shall not be denied initial
employment, reemployment, retention in employment, promotion, or any
employment benefit by an employer on the basis of that membership,
an application for membership, performance of service, or an
obligation for service in the uniformed services.
2. A person, including a non-Service member, shall not be
subject to employment discrimination or any adverse employment
action because he or she has taken an action to enforce a protection
afforded a Service member, has testified or made a statement in or
in connection with any proceeding concerning employment and
reemployment rights of a service member, has assisted or
participated in an investigation, or has otherwise exercised any
right provided by 38 U.S.C. Chapter 43.
3. An employer shall be considered to have engaged in an act of
discrimination if an individual's membership, application for
membership, service, application for service, or obligation for
service in the uniformed services is a motivating factor in the
employer's action, unless the employer can prove that the action
would have been taken in the absence of such membership, application
for membership, performance of service, application for service or
obligation.
C. Exceptions to the Maximum Period of Service for Coverage
In order to retain reemployment rights and benefits provided by
38 U.S.C. Chapter 43, the cumulative length of absences from the
same employer cannot exceed 5 years. Not counted toward this limit
is:
1. Service beyond 5 years if required to complete an initial
service obligation;
2. Service during which an individual was unable to obtain
release orders before the expiration of the 5-year cumulative
service limit through no fault of his or her own;
3. Inactive duty training; annual training; ordered to active
duty for unsatisfactory participation; active duty by National
Guardsmen for encampments, maneuvers, field operations or coastal
defense; or to fulfill additional training requirements, as
determined by the Secretary concerned, for professional skill
development, or to complete skill training or retraining;
4. Involuntary order or call to active duty, or retention on
active duty;
5. Ordered to or retained on active duty during a war or
national emergency declared by the President or Congress;
6. Ordered to active duty in support of an operational mission
for which personnel have been involuntarily called to active duty;
7. Performing service in support of a critical mission or
requirement, as determined by the Secretary concerned;
8. Performing service in the National Guard when ordered to
active duty by the President to suppress an insurrection or
rebellion, repel an invasion, or execute laws of the United States;
and,
9. Voluntary recall to active duty of retired regular Coast
Guard officers or retired enlisted Coast Guard members.
[[Page 3470]]
D. Applications for Reemployment
1. For service of 30 days or less, or for an absence for an
examination to determine the individual's fitness to perform
uniformed service, the Service member or applicant must report to
work not later than the beginning of the first full regularly
scheduled work period on the first full calendar day following the
completion of service or the examination, after allowing for an
eight hour rest period following safe transportation to his or her
residence.
2. For service of 31 days or more but less that 181 days, the
Service member must submit an application for reemployment not later
than 14 days after completion of service, or by the next full
calendar day when submitting an application within the 14 day limit
was impossible or unreasonable through no fault of the Service
member.
3. For service of 181 days or more, the Service member must
submit an application for reemployment not later than 90 days after
the completion of service.
4. If hospitalized or convalescing from an illness or injury
incurred or aggravated during service, the Service member must, at
the end of the period necessary for recovery, follow the same
procedures, based on length of service, as described in sections
D.1. through D.3. of this appendix. The period of hospitalization or
convalescence may not normally exceed 2 years.
5. Anyone who fails to report or apply for reemployment within
the specified period shall not automatically forfeit entitlement to
reemployment rights and benefits, but is subject to the rules of
conduct, established policies, general practices of the employer
pertaining to explanations and discipline because of an absence from
scheduled work.
E. Documentation Upon Return
1. If service is for 31 days or more, a Service member must
provide documentation, upon request from the employer, that
establishes:
a. He or she made application to return to work within the
prescribed time period;
b. He or she has not exceeded the 5-year cumulative service
limit; and
c. His or her reemployment rights were not terminated because of
character of service as described in paragraphs A.2.d. and e. of
this appendix.
2. Failure to provide documentation cannot serve as a basis for
denying reemployment to the Service member, former Service member,
or applicant if documentation does not exist or is not readily
available at the time of the employer's request. However, if after
reemployment, documentation becomes available that establishes that
the Service member or former Service member does not meet one or
more of the requirements contained in section E.1. of this appendix,
the employer may immediately terminate the employment.
F. Position To Which Entitled Upon Reemployment
1. Reemployment position for service of 90 days or less:
a. The position the person would have attained if continuously
employed (the ``escalator'' position) and if qualified to perform
the duties; or,
b. The position in which the person was employed in when he or
she departed for uniformed service, but only if the person is not
qualified to perform the duties of the escalator position, despite
the employer's reasonable efforts to qualify the person for the
escalator position.
2. Reemployment position for service of 91 days or more:
a. The escalator position, or a position of like seniority,
status and pay, the duties of which the person is qualified to
perform; or,
b. The position in which the person was employed in when he or
she departed for uniformed service or a position of like seniority,
status and pay, the duties of which the person is qualified to
perform, but only if the person is not qualified to perform the
duties of the escalator position after the employer has made a
reasonable effort to qualify the person for the escalator position.
3. If a person cannot become qualified, after reasonable efforts
by the employer to qualify the person, for either the escalator
position or the position formerly occupied by the employee as
provided in sections F.1. and F.2. of this appendix, for any reason
(other than disability), the person must be employed in any other
position of lesser status and pay that the person is qualified to
perform, with full seniority.
G. Position To Which Entitled if Disabled
If a person who is disabled because of service cannot (after
reasonable efforts by the employer to accommodate the disability) be
employed in the escalator position, he or she must be reemployed:
1. In any other position that is equivalent to the escalator
position in terms of seniority, status, and pay that the person is
qualified or can become qualified to perform with reasonable efforts
by the employer; or,
2. In a position, consistent with the person's disability, that
is the nearest approximation to the position in terms of seniority,
status, and pay to the escalator or equivalent position.
H. Reemployment by the Federal Government
1. A person who was employed by a Federal Executive Agency when
he or she departed for uniformed service must be reemployed using
the same order of priorities as prescribed in sections F. and G. of
this appendix as appropriate. If the Director of OPM determines that
the Federal Executive Agency that employed the person no longer
exists and the functions have not been transferred to another
Federal Executive Agency, or it is impossible or unreasonable for
the agency to reemploy the person, the Director of OPM shall
identify a position of like seniority, status, and pay at another
Federal Executive Agency that satisfies the reemployment criteria
established for private sector employers, sections F. and G. of this
appendix, and for which the person is qualified and ensure that the
person is offered such position.
2. If a person was employed by the Judicial Branch or the
Legislative Branch of the Federal Government when he or she departed
for uniformed service, and the employer determines that it is
impossible or unreasonable to reemploy the person, the Director of
OPM shall, upon application by the person, ensure that an offer of
employment in a Federal Executive Agency is made.
3. If the Adjutant General of a State determines that it is
impossible or unreasonable to reemploy a person who was employed as
a National Guard technician, the Director of OPM shall, upon
application by the person, ensure that an offer of employment in a
Federal Executive Agency is made.
I. Reemployment by Certain Federal Agencies
1. The heads of the Federal Bureau of Investigation, the Central
Intelligence Agency, the Defense Intelligence Agency, the National
Imagery and Mapping Agency, the National Security Agency, and, as
determined by the President, any Executive Agency or unit thereof,
the principal function of which is to conduct foreign intelligence
or counterintelligence activities, shall prescribe procedures for
reemployment rights for their agency that are similar to those
prescribed for private and other Federal agencies.
2. If an appropriate officer of an agency referred to in
subsection I.1. of this appendix determines that reemployment of a
person who was an employee of that agency when he or she departed
for uniformed service is impossible or unreasonable, the agency
shall notify the person and the Director of OPM. The Director of OPM
shall, upon application by that person, ensure that the person is
offered employment in a position in a Federal Executive Agency.
J. General Rights and Benefits
1. A person who is reemployed under 38 U.S.C. Chapter 43 is
entitled to the seniority, and other rights and benefits determined
by seniority that the person had upon commencing uniformed service,
and any additional seniority, and rights and benefits he or she
would have attained if continuously employed.
2. A person who is absent by reason of uniformed service shall
be deemed to be on furlough or leave of absence from his or her
civilian employer and is entitled to such other rights and benefits
not determined by seniority as generally provided by the employer to
employees on furlough or leave of absence having similar seniority,
status and pay who are also on furlough or leave of absence, as
provided under a contract, policy, agreement, practice or plan in
effect during the Service member's absence because of uniformed
service.
3. The individual may be required to pay the employee cost, if
any, of any funded benefit continued to the same extent other
employees on furlough or leave of absence are required to pay.
K. Loss of Rights and Benefits
If, after being advised by his or her employer of the specific
rights and benefits to be lost, a Service member, former Service
member or applicant of uniformed service knowingly provided written
notice of intent not to seek reemployment after completion of
uniformed service, he or she is no longer entitled to any non-
seniority based rights and
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benefits. This includes all non-seniority based rights and benefits
provided under any contract, plan, agreement, or policy in effect at
the time of entry into uniformed service or established while
performing such service, and are generally provided by the employer
to employees having similar seniority, status and pay who are on
furlough or leave of absence.
L. Retention Rights
A person who is reemployed following uniformed service cannot be
discharged from employment, except for cause:
1. Within 1 year after the date of reemployment if that person's
service was 181 days or more; or,
2. Within 180 days after the date of reemployment if such
service was 31 days or more but less than 181 days.
M. Accrued Leave
During any period of uniformed service, a person may, upon
request, use any vacation, annual leave, or similar leave with pay
accrued before the commencement of that period of service.
N. Health Plans
An employer who provides employee health plan coverage,
including group health plans, must allow the Service member to elect
to continue personal coverage, and coverage for his or her
dependents under the following circumstances:
1. The maximum period of coverage of a person and the person's
dependents under such an election shall be the lesser of:
a. The 18 month period beginning on the date on which the
person's absence begins; or
b. The day after the date on which the person was required to
apply for or return to a position or employment as specified in
section D. of this appendix, and fails to do so.
2. A person who elects to continue health plan coverage may be
required to pay up to 102 percent of the full premium under the
plan, except a person on active duty for 30 days or less cannot be
required to pay more than the employee's share, if any, for the
coverage.
3. An exclusion or waiting period may not be imposed in
connection with the reinstatement of coverage upon reemployment if
one would not have been imposed had coverage not been terminated
because of service. However, an exclusion or waiting period may be
imposed for coverage of any illness or injury determined by the
Secretary of Veterans Affairs to have been incurred in, or
aggravated during, the performance of uniformed service.
O. Employee Pension Benefit Plans
1. This section applies to individuals whose pension benefits
are not provided by the Federal Employees' Retirement System (FERS)
or the Civil Service Retirement System (CSRS), or a right provided
under any Federal or State law governing pension benefits for
governmental employees.
2. A person reemployed after uniformed service shall be treated
as if no break in service occurred with the employer(s) maintaining
the employee's pension benefit plan. Each period of uniformed
service, upon reemployment, shall be deemed to constitute service
with the employer(s) for the purpose of determining the
nonforfeitability of accrued benefits and accrual of benefits.
3. An employer reemploying a Service member or former Service
member under 38 U.S.C. Chapter 43 is liable to the plan for funding
any obligation attributable to the employer of the employee's
pension benefit plan that would have been paid to the plan on behalf
of that employee but for his or her absence during a period of
uniformed service.
4. Upon reemployment, a person has three times the period of
military service, but not to exceed five years after reemployment,
within which to contribute the amount he or she would have
contributed to the pension benefit plan if he or she had not been
absent for uniformed service. He or she is entitled to accrued
benefits of the pension plan that are contingent on the making of,
or are derived from, employee contributions or elective deferrals
only to the extent the person makes payment to the plan.
P. Federal Employees' Retirement System (FERS)
1. Federal employees enrolled in FERS who are reemployed with
the Government are allowed to make up contributions to the Thrift
Savings Fund over a period specified by the employee. However, the
makeup period may not be shorter than two times nor longer than four
times the period of absence for uniformed service.
2. Employees covered by the FERS are entitled to have
contributions made to the Thrift Savings Fund on their behalf by the
employing agency for their period of absence in an amount equal to
one percent of the employee's basic pay. If an employee covered by
FERS makes contributions, the employing agency must make matching
contributions on the employee's behalf.
3. The employee shall be credited with a period of civilian
service equal to the period of uniformed service, and the employee
may elect, for certain purposes, to have his or her separation
treated as if it had never occurred.
4. This benefit applies to any employee whose release from
uniformed service, discharge from hospitalization, or other similar
event make him or her eligible to seek reemployment under 38 U.S.C.
Chapter 43 on or after August 2, 1990.
5. Additional information about Thrift Saving Plan (TSP)
benefits is available in TSP Bulletins 95-13 and 95-20. A fact sheet
is included in TSP Bulletin 95-20 which describes benefits and
procedures for eligible employees. Eligible employees should contact
their personnel office for information and assistance.
Q. Civil Service Retirement System (CSRS)
1. Employees covered by CSRS may make up contributions to the
TSP, as in section P.1. of this appendix. However, no employer
contributions are made to the TSP account of CSRS employees.
2. This benefit applies to any employee whose release from
uniformed service, discharge from hospitalization, or other similar
event makes him or her eligible to seek reemployment under 38 U.S.C.
Chapter 43 on or after August 2, 1990.
3. Additional information about TSP benefits is available in TSP
Bulletins 95-13 and 95-20. A fact sheet is included in TSP Bulletin
95-20 which describes benefits and procedures for eligible
employees. Eligible employees should contact their personnel office
for information and assistance.
R. Information and Assistance
Information and informal assistance concerning civilian
employment and reemployment is available through the National
Committee for Employer Support of the Guard and Reserve (NCESGR).
NCESGR representatives can be contacted by calling 1-800-336-4590.
S. Assistance in Asserting Claims
1. A person may file a complaint with the Secretary of Labor if
an employer, including any Federal Executive Agency or OPM, has
failed or refused, or is about to fail or refuse, to comply with
employment or reemployment rights and benefits. The complaint must
be in writing, and include the name and address of the employer, and
a summary of the allegation(s).
2. The Secretary of Labor shall investigate each complaint and,
if it is determined that the allegation(s) occurred, make reasonable
efforts to ensure compliance. If these efforts are unsuccessful, the
Secretary of Labor shall notify the complainant of the results and
advise the complainant of his or her entitlement to pursue
enforcement.
3. The Secretary of Labor shall, upon request, provide technical
assistance to a claimant and, when appropriate, to the claimant's
employer.
T. Enforcement
1. State or Private Employers.
a. A person may request that the Secretary of Labor refer a
complaint to the Department of Justice. If the Department of Justice
is reasonably satisfied that the person is entitled to the rights or
benefits sought, the Department of Justice may appear on behalf of,
and act as attorney for, the complainant, and commence an action for
appropriate relief, or the individual may commence an action on his
or her own behalf in the appropriate Federal district court.
b. The district court hearing the complaint can require the
employer to:
(1) Comply with the law;
(2) Compensate the person for any loss of wages or benefits
suffered; and
(3) If the court determines that the employer willfully failed
to comply with the law, pay the person an amount equal to the amount
of lost wages or benefits as liquidated damages.
c. A person may file a private suit against an employer without
the Secretary of Labor's assistance if he or she:
(1) Has chosen not to seek the Secretary's assistance;
(2) Has chosen not to request that the Secretary refer the
complaint to the Department of Justice; or
(3) Has refused the Department of Justice's representation of
his or her complaint.
d. No fees or court costs shall be charged or taxed against any
person filing a claim.
[[Page 3472]]
The court may award the person who prevails reasonable attorney
fees, expert witness fees, and other litigation expenses.
2. Federal Government as the Employer.
a. The same general enforcement procedures established for
private employers are applied to Federal Executive Agencies as an
employer; however, if unable to resolve the complaint, the Secretary
of Labor shall refer the complaint to the Office of Special Counsel,
which shall represent the individual in a hearing before the Merit
Systems Protection Board if reasonably satisfied that the individual
is entitled to the rights and benefits sought. The claimant also has
the option of directly filing a complaint with the Merit Systems
Protection Board on his or her own behalf.
b. A person who is adversely affected or aggrieved by a final
order or decision of the Merit Systems Protection Board may petition
the United States Court of Appeals for the Federal Circuit to review
the final order or decision.
3. Federal Intelligence Agency as the Employer. An individual
employed by a Federal Intelligence Agency listed in subparagraph
I.1. of this appendix, may submit a claim to the inspector general
of the agency.
Appendix B to Part 104--Sample Employer Notification of Uniformed
Service
This is to inform you that (insert applicant or Service member's
name) must report for military training or duty on (insert date). My
last period of work will be on (insert date), which will allow me
sufficient time to report for military duty. I will be absent from
my position of civilian employment for approximately (enter expected
duration of duty as specified on your orders, and include the
applicable period you have to return or submit notification of your
return to work) while performing military training or duty unless
extended by competent military authority or delayed by circumstances
beyond my control. I otherwise expect to return to work on (insert
date).
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Signature and date
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Employer acknowledgment and date
Dated: January 16, 1998.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 98-1583 Filed 1-22-98; 8:45 am]
BILLING CODE 5000-04-M