Civilian Employment and Reemployment Rights for Service Members, Former Service Members and Applicants of the Uniformed Services

AGENCY:

Under Secretary of Defense for Personnel and Readiness, DoD.

ACTION:

Final rule.

SUMMARY:

The purpose of this rule is to establish policy, assign responsibilities, and promulgate procedures for informing current and former uniformed Service members of the Department of Defense (DoD) and individuals who apply for uniformed service with DoD of their rights, benefits, and obligations under USERRA and its implementing regulations. This rule does not apply to Service members who have served or applied to serve with the National Disaster Medical Response System or with the Commissioned Corps of the Public Health Service. Additionally, the rule establishes procedures for DOD components' responsibilities related to fulfilling their USERRA obligations.

DATES:

This rule is effective on March 1, 2016.

FOR FURTHER INFORMATION CONTACT:

Curtis Bell, 571-372-0695.

SUPPLEMENTARY INFORMATION:

This final rule is part of DoD's retrospective plan, completed in August 2011, under Executive Order 13563, ”Improving Regulation and Regulatory Review.” DoD's full plan and updates can be accessed at: http://www.regulations.gov/#!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=DOD-2011-OS-0036.

Preamble Outline

I. Authority

II. Executive Summary

III. Background

IV. Summary of Significant Changes to the Final Rule

A. Purpose

B. Definitions

C. Policy

D. Procedures

V. Administrative Requirements

A. Executive Order 12866, Regulatory Planning and Review and Executive Order 13563, Improving Regulation and Regulatory Review

B. Section 202, Public Law 104-4, Unfunded Mandates Reform Act

C. Public Law 96-354, Regulatory Flexibility Act (5 U.S.C. 601)

D. Section 96-511, Paperwork Reduction Act (44 U.S.C. Chapter 35)

E. Executive Order 13132, Federalism

I. Authority

This action is authorized by 38 U.S.C. 4312(b) and 38 U.S.C. 4333.

II. Executive Summary

A. Purpose

The purpose of this part is to establish policy, assign responsibilities, and promulgate procedures for informing current and former uniformed Service members of the Department of Defense (DoD) and individuals who apply for uniformed service with DoD of their rights, benefits, and obligations under USERRA and its implementing regulations at 20 CFR part 1002 (applicable to States, local governments, and private employers) and 5 CFR part 353 (applicable to the Federal Government). This part does not apply to Service members who have served or applied to serve with the National Disaster Medical Response System or with the Commissioned Corps of the Public Health Service. Additionally, the rule establishes procedures for DoD components' responsibilities related to fulfilling their USERRA obligations.

B. Legal Authority

38 U.S.C. chapter 43, specifically to 38 U.S.C. 4312(b) and 38 U.S.C. 4333.

The purposes of this chapter are:

(1) To encourage non-career service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service;

(2) to minimize the disruption to the lives of persons performing service in the uniformed services as well as to their employers, their fellow employees, and their communities, by providing for the prompt reemployment of such persons upon their completion of such service; and

(3) to prohibit discrimination against persons because of their service in the uniformed services.

C. Summary of the Major Provisions of the Regulatory Action in Question

This regulatory action:

a. Establishes procedures to maintain oversight of an effective program to ensure that uniformed Service members, former Service members, and individuals who apply for uniformed service with DoD are aware of their rights, benefits, and obligations under USERRA.

b. Describes policies that serve to inform uniformed Service members, former Service members, and individuals who apply for uniformed service with DoD of their rights under USERRA.

D. Costs and Benefits

The average cost of $2,475 for Federal agencies such as DOL and the Office of Special Counsel (OSC) to formally investigate has saved the Federal government over $6.9 million dollars annually (GAO Highlights 15-77, November 2014). ESGR operates and maintains a Customer Service Center (CSC) that acts as the initial entry point for USERRA complaints, inquiries, and information requests. The CSC provides prompt, expert telephonic and email responses to Service members and employers on all USERRA related matters. During Fiscal Years 2012, 2013 and 2014 (FY (12, 13 and 14)), ESGR received 21,521; 19,938; 16,089 contacts by telephone and email, respectively. Of those contacts, 2,793 in FY 12; 2,544 in FY 13; and 2,374 in FY 14 resulted in actual USERRA cases for mediation purposes. ESGR mediators are unpaid volunteers whose services are accepted pursuant to 10 U.S.C. 1588. As such, the only cost to the general public is general administrative expenses in managing the mediation program. The approximate cost of $3000 is the estimated cost for the DOL to investigate formal complaints if ESGR's mediation program was not in place. The benefits of using ESGR services are Service members receive a timely response without additional cost.

E. Background

This rule is designed to provide information about the USERRA consistent with its implementing regulations at 20 CFR part 1002 and 5 CFR part 353 to DoD Service members, former Service members, individuals who apply, and their employers, and about an informal mediation program run by the Employer Support of the Guard and Reserve (ESGR). Additionally, the rule establishes procedures for DOD components' responsibilities related to fulfilling their USERRA obligations.

ESGR is a DoD operational agency whose mission is to gain and maintain employer support for Guard and Reserve service by advocating relevant initiatives, recognizing outstanding support, increasing awareness of the law, and resolving conflict between employers and Service members. As such, ESGR is the principal agency within DoD dedicated to providing its customers and stakeholders with an awareness about USERRA.

ESGR has provided outreach and USERRA assistance to Reserve Component (RC) Service members and their employers since its inception in 1972. Hundreds of thousands of RC Service members and employers have benefited from ESGR services. Considering the National Guard and Reserve forces make up nearly 50 percent of our military strength, and ongoing global operations and humanitarian response, civilian employers' support is critical to our National Defense now more than ever.

The Ombudsman Services Program provides education, information, and neutral third-party mediation services in order to resolve employee/employer USERRA conflicts. ESGR is not an enforcement agency and does not participate in formal litigation processes.

ESGR signed an updated Memorandum of Understanding (MOU) in 2010 with the Department of Labor that continued organizational cooperation and improved services provided to all customers regarding USERRA compliance. More than 650 volunteer ombudsmen help to resolve USERRA compliance issues throughout the Nation.

More than 4,900 volunteers support ESGR's mission and serve on ESGR State Committees maintaining employer support programs, providing informative briefings and mediation, and recognizing employers who go above and beyond in their dedication to employees who pledge to be both a citizen and protector of our Nation. Since ESGR's creation four decades ago, thousands of employers have been honored for their commitment to stand beside those who serve. As the use of our military evolves, many Guard and Reserve members will return from present-day conflicts, changing out of their boots and reintegrating into life at home. ESGR is committed to continue assisting the returning Service members by ensuring America's heroes have meaningful civilian employment when they come home. The benefit is that ESGR relieves DOL of the extra cases that may be filed by providing information which the inquirer can decide whether to pursue further action with the DOL.

III. Background

The Department of Defense (hereinafter the “Department” or “DoD”) published a proposed rule in the Federal Register on July 28, 2014 (79 FR 43700-43704). The public comment period for the proposed rule ended on September 26, 2014. Fourteen comments were received. This preamble addresses the comments and the Department's responses.

IV. Summary of Significant Changes to the Final Rule

This section contains the Department's responses to the comments received on the proposed rule.

A. Purpose

Comment: One comment stated the Department does not have the authority under 38 U.S.C. chapter 43, but instead assigned duties are listed in 38 U.S.C. 4312(b) and 38 U.S.C. 4333. 38 U.S.C. 4312(b) provides the determination of “military necessity” sufficient to excuse an employee from giving advance notice of uniformed service to his or her employer “shall be made pursuant to regulations prescribed by the Secretary of Defense.” 38 U.S.C. 4333 directs the Secretary of Defense to take such actions as the Secretary deems appropriate to inform Service members and employers of the rights, benefits, and obligations under USERRA.

Response: The Department has clarified in the preamble that the authority for this rulemaking stems from two statutory provisions of USERRA—38 U.S.C. 4312(b) and 38 U.S.C. 4333, which state the Secretary of Defense may take such actions as the Secretary deems appropriate for informing Service members and employers of their rights and obligations under USERRA. In addition, the Department has revised the Authority citation in the table of contents of the rule to reflect these provisions.

B. Definitions

Comment: One comment requested the authority for determining what constitutes a critical mission and critical requirement be at the Assistant Secretary level.

Response: The Department stated in the final rule that authority for determining what constitutes a critical mission or requirement will not be delegated below the Assistant Secretary level.

Comment: One commenter suggested the two definitions be amended to include a reference to § 104.6(a)(2)(iv)(C)(1) where the proposed rule stated that the responsible party must be at the Assistant Secretary's or higher level official.

Response: The Department stated in the final rule that authority for determining what constitutes a critical mission or requirement will not be delegated below the Assistant Secretary level, no additional reference is necessary.

Comment: One comment requested deletion of “impossible or unreasonable” when giving advance notice of uniformed service.

Response: The Department recognized that 38 U.S.C. 4312(b) defined “impossible or unreasonable” and has removed the definition of “impossible or unreasonable” from the final rule.

Comment: One commenter addressed the use of “non-career service” which should be deleted based on the one-time use of it. The commenter added that the term is shorthand for service that does not exceed the Act's five-year limit.

Response: The Department concurred with the removal of “non-career service.” USERRA protections are not limited to non-career Service members. The commenters correctly pointed out that 38 U.S.C. 4301(a) protects both non-career and career Service members.

C. Policy

Comment: One commenter stated that policy of § 104.4 is “to support non-career uniformed service by taking appropriate actions to . . . assist uniformed Service members.” Continuous or repeated active service that results in eligibility for a regular retirement from the Armed Forces is not considered “non-career service” according to the definition in § 104.3. By implication, does this mean that the DoD will not offer its assistive services, such as Employer Support of the Guard and Reserve (ESGR), to Service members who voluntarily commit to service beyond their initial obligation? The commenter requested clarification of what ways, specifically, does the DoD intend its regulations to be limited to the support of “non-career uniformed service.”

Response: The Department concurs with the commenter's concerns and has since removed the definition of non-career service and relies instead on the definition of uniformed services in 38 U.S.C. 4303(16) and the statutory requirements for reemployment at 38 U.S.C. 4312 for purposes of determining an individual's eligibility to receive DoD's assistive services. The Department offers its services to all Service Members, Former Service Members and Applicants of the Uniformed Services. The commenter must refer to 38 U.S.C. 4312 and corresponding DOL regulations for the applicability of USERRA. The reemployment rights provision of USERRA, is applicable to uniformed members whose cumulative years of military service do not exceed five years with one employer. To help clarify, it may be of assistance to direct the commenter to the preamble to the DOL regulations of USERRA, which explains, “Section 1002.101 clarifies that the five-year period pertains only to the cumulative period of uniformed service by the employee with respect to one particular employer, and does not include periods of service during which the individual was employed by a different employer. Therefore, the employee is entitled to be absent from employment with a particular employer because of service in the uniformed services for up to five years and still retain reemployment rights with that employer; this period starts anew with each new employer.” (70 FR 75246-75313, December 19, 2005). The commenter mentioned the term “double dippers.” USERRA protections with regard to reemployment are not applicable to situations where cumulative service exceeds five years with one employer. The Military Department Secretaries determine which orders are exempt from the five-year service limits.

D. Procedures

Comment: A commenter addressed advance notice concerns stating the proposed rule did not address the fact that an appropriate officer of the uniformed service concerned may provide the notice.

Response: The Department stated in the final rule that an employee or an appropriate officer of the uniformed services may provide the advance notice. See § 104.6(a)(2)(iii)(A)(3)(i).

Comment: A commenter stated wording in § 104.6(a)(2)(iii)(A)(3) may be confusing and open the door to contradictory interpretations of the employee's obligation to provide advance notice of military service. The first sentence of § 104.6(a)(2)(iii)(A)(3) states that the advance notice “should be provided as early as possible” and recommends the advance notice be provided “at least 30 days prior to departure for service.” That language is consistent with the current 32 CFR 104.6(a)(2)(i)(B) provision which states that the advance notice “should be provided as early as practicable.” But the second sentence of the proposed § 104.6(a)(2)(iii)(A)(3) seemingly adds a qualifier to the “as early as possible” policy by inserting new language linking the time frame for providing the advance notice to “the time the Service member receives confirmation of upcoming uniformed service duty” (emphasis added). The commenter was concerned that this addition of confirmation of service orders will actually result in reduced periods of advance notice, because some Service members may interpret this as suggesting they withhold notice until they receive a second set of orders confirming the initial set of orders. The employer's past experience is that most individual Service members will get notification from the unit that he/she will be tasked for an upcoming mission sometimes weeks or even months in advance, although the mission won't get funded and/or orders cut until a point very near the time of the mission. If the Service member waited until final orders are cut to give notification to the employer, the employer wouldn't learn about an individual's planned departure on military leave until very near the actual departure time. That runs contrary to the “as early as possible” goal.

Response: The Department has recommended a minimum of 30 days to trigger notice prior to departure. A Service member cannot be certain of the departure date, which is an objective point in time, until he/she receives confirmation of military duty. Nothing in this section prohibits a Service member from providing advance notice when he or she first learns that he or she might perform future military duty. The commenter was concerned that this guidance could reduce advance notification. The Department has revised the regulatory text to make clear that this provision is a recommendation only and not mandatory.

Comment: One of the commenters stated a notice of “at least 30 days prior to departure for uniformed service when feasible” conflicts with USERRA. The commenter further added that an employee's failure to provide such a notice may result in prejudice. An employer might view the regulatory recommendation as a gauge to apply in evaluating the employee. For instance, an employee might receive a negative performance review and consequent loss of a raise for not meeting the Department's recommended notice standard.

Response: The Department's recommendation in § 104.6(a)(2)(iii)(A)(3) that employees provide at least 30 days advance notice to their employer is just that: a recommendation. Whenever an employee is questioned as to whether they provided advance notice, they should show that they met the requirement. The Department's 30-day recommendation is not dispositive, but can be used as a benchmark for analyzing whether advance notice was provided on a case-by-case basis. The recommendation does not improperly regulate any mandated standard. It is true that Service members and employers may look to the benchmark as a reasonable standard, but it does not preclude them from considering extenuated circumstances.

Comment: The commenter recommended a correction to clarify the duration of a period of service rather than a length of a Service member's absence as it relates to providing documentation to an employer. Because only a period of uniformed service of more than 30 days can trigger an obligation for a returning employee to submit certain service-related documentation to his or her employer upon request, § 104.6(a)(2)(iii)(B)(2) needs to be clarified to so reflect. Rather than measuring just the length of the period of service, the proposed rule erroneously measures the length of the entire “absence from civilian employment due to military service.”

Response: The Department concurred and modified § 104.6(a)(2)(iii)(B)(2) for clarification to specify the period of military service instead of absence from civilian employment. The change clarifies and is consistent with the statute and DOL regulation.

Comment: Two commenters objected to imposing on Service members' obligations concerning civilian employment not authorized by USERRA. Obliging all returning Service members to give their employers “documentation of absence due to uniformed service,” § 104.6(a)(2)(iii)(B)(2)(i), as the Department has acknowledged, exceeds USERRA's requirements. Section 4312(f)(1) of USERRA requires employees returning from service periods exceeding 30 days to furnish employers upon request documentation showing that their application for reemployment is timely; that they have not exceeded the five-year service limit; and that their separation or dismissal from service was not under disqualifying conditions. Proposed § 104.6(a)(2)(iii)(B)(2)(i) directly conflicts with Section 4312(f)(l) of USERRA. It is inconsistent with Section 4312(f)(1) of USERRA because it would apply to Service members returning from a period of service shorter than 31 days; it would apply in the absence of any employer request for documentation.

Response: The Department concurs and has adjusted language in the final rule to state “As a matter of policy the Military Departments strongly recommend Commanders and Service members provide verification of uniformed service absence to civilian employers regardless of the duration of service upon request.” Failure of an employee to comply with this policy requirement, does not affect the legal responsibilities of the employer under USERRA including prompt reemployment. DOL is the regulating party that can implement the statute in a way that impacts employers. The proposed rule at § 104.6(a)(2)(iii)(B)(2)(i) stated that it “is not intended to, and should not, affect the legal responsibilities of the employer. . .”

Comment: Two commenters stated the proposed § 104.6(a)(2)(iii)(C) erroneously states that USERRA's five-year cumulative service limit is computed on the basis of “absences from each place of civilian employment, due to uniformed service.” The five-year cumulative limit is instead determined on the basis of duration of non-exempt period of service in a uniformed service performed during an employment relationship.

Response: The Department concurred and adjusted the five-year cumulative service limit for clarification. USERRA imposes a five-year cumulative limit on the absences from each place of civilian employment, due to uniformed service, except that any such period of service shall not include any service excluded pursuant to 38 U.S.C. 4312(c).

Comment: Two commenters objected to § 104.6(b)(3) to the extent it requires that the military departments accede to civilian employers' unilaterally made requests to adjust Reserve and National Guard members' “absences from civilian employment due to uniformed service.” USERRA is designed to encourage voluntary service in the Reserves and National Guard. See 38 U.S.C. 4301(a). So long as an employee has not exceeded the five-year service limit, USERRA places no restriction on the timing, frequency, duration, or nature of the employee's service in the uniformed services. 38 U.S.C. 4312(h). Nor does the Act grant a civilian employer any right to impose such a restriction. In fact, an employer acts unlawfully if it denies an employee permission to leave to perform military service, 20 CFR 1002.87. Allowing the military departments to change Service members' military schedules when unilaterally asked to do so by civilian employers may discourage the voluntarism that USERRA seeks to achieve. USERRA preserves the freedom of employees to volunteer to perform military service when they choose. Interference by employers in the scheduling of employees' military service would remove that freedom and potentially discourage employees from volunteering to perform military service. Such deleterious consequences could be avoided by requiring that a military department obtain a Service member' s consent prior to granting a request of the Service member's civilian employer to change the Service member's schedule.

Response: The Department concurred and adjusted § 104.6(b)(3) so that the Reserve Component representatives will consider requests from civilian employers of National Guard and Reserve members and adjust a Service member's absences when it serves the best interest of the military and is reasonable to do so. The change is now consistent with 20 CFR 1002.104.

Comment: One commenter addressed reemployment timeline requirements. The commenter requests reconsideration of the timelines for reemployment. The commenter states the period of military service disrupts personal time with family and getting back to a sense of normalcy takes time.

Response: The Department does not control or make policy on reemployment timelines. The DOL regulates the reemployment timelines and evaluates each reemployment situation on a case-by-case basis due to the Service member's unique circumstances. USERRA at 38 U.S.C. § 4312, provides that a Service member who served less than 31 days, as the employee, must report back to the employer not later than the beginning of the first full regularly-scheduled work period on the first full calendar day following the completion of the period of service, and the expiration of eight hours after a period allowing for safe transportation from the place of that service to the employee's residence. In accordance with DOL regulation at 20 CFR § 1002.115, for a period of service between 31 days and less than 181 days, he or she must submit an application for reemployment (written or verbal) with the employer not later than 14 days after completing service. If 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 verbal) not later than 90 days after completing service. See 20 CFR 1002.115 and 1002.181 for additional information.

V. Administrative Requirements

Regulatory Procedures

A. Executive Order 12866, “Regulatory Planning and Review” and Executive Order 13563, “Improving Regulation and Regulatory Review”

DoD consulted with the Office of Management and Budget (OMB) and determined this NPRM meets the criteria for a significant regulatory action under Executive Order 12866, as supplemented by Executive Order 13563, and was subject to OMB review.

B. Sec. 202, Public Law 104-4, “Unfunded Mandates Reform Act” (2 U.S.C. Chapter 25)

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4) requires agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any one year of $100 million in 1995 dollars, updated annually for inflation. In 2014, that threshold is approximately $141 million. This final rule will not mandate any requirements for State, local, or tribal governments, nor will it affect private sector costs.

C. Public Law 96-354, “Regulatory Flexibility Act” (5 U.S.C. 601)

We certify this final rule will not have a significant economic impact on a substantial number of small entities. Therefore, the Regulatory Flexibility Act, as amended, does not require us to prepare a regulatory flexibility analysis.

D. Public Law 96-511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35)

This final rule does not create any new or affect any existing collections, and therefore, does not require OMB approval under the Paperwork Reduction Act of 1995.

E. Executive Order 13132, “Federalism”

Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. This final rule will not have a substantial effect on State and local governments.

List of Subjects in 32 CFR Part 104

• Government employees
• Military personnel

Accordingly 32 CFR part 104 is revised to read as follows:

PART 104—CIVILIAN EMPLOYMENT AND REEMPLOYMENT RIGHTS FOR SERVICE MEMBERS, FORMER SERVICE MEMBERS AND APPLICANTS OF THE UNIFORMED SERVICES

Authority: 38 U.S.C. chapter 43, specifically 38 U.S.C. 4312(b) and 38 U.S.C. 4333.