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Sent: Saturday, December 24, 2005 7:10 AM
Subject: Better Late Than Never
Better Late Than Never
By Daniel Pulliam
More than a decade after the passage of a law designed to protect the
employment rights of military service members, the Labor Department has
finalized the first-ever set of regulations addressing its implementation.
The 1994 Uniformed Services Employment and Re-employment Act builds on the
Veterans' Re-employment Rights law passed in the 1940s by barring
discrimination against military members and veterans, and by establishing
re-employment rights for those who want to return to the jobs they held
prior to serving. Written by the Veterans' Employment and Training Service,
the rules are intended to explain and clarify the 1994 law.
The nearly 70-page document was
v/2005/05-23961.htm> published in the Federal Register Monday
and will take effect on Jan. 18. The regulations come at a time when the
mobilization of National Guard and Reserve service members is the largest
since World War II, with a total of 529,310 called to duty since the Sept.
11, 2001, terrorist attacks. Complaints of USERRA violations are
correspondingly on the rise, though there was a dip in fiscal 2005.
In fiscal 2002, there was a 35 percent jump over the previous year in the
number of cases opened. This was followed by increases of about 10 percent
each year until fiscal 2005 when there was a 9 percent drop. According to a
Labor spokesman, a lack of awareness and understanding has been the biggest
cause of USERRA complaints. The law is "very complicated," he said.
The new regulations "provide comprehensive guidance on USERRA, which works
to preserve the seniority, promotion, health care, pension and other
benefits of our citizen soldiers when they return home to the jobs they left
to serve our country," Labor Secretary Elaine Chao said in a statement.
Publication of regulations was mandated in the original USERRA law, but
Labor did not complete a draft until Sept. 20, 2004. It yielded 80 comments
from a variety of sources, including Rep. John Boehner, R-Ohio, chairman of
the House Education and Workforce Committee, who commended Labor for
"undertaking this most important endeavor."
year by the American Bar Association was critical of USERRA enforcement
efforts. The Veterans' Employment and Training Service, which is charged
with reviewing initial complaints of USERRA violations, was taking too long
to investigate cases, according to the report.
The new regulations address some key issues, but time will tell on others,
said John Odom Jr., a partner in the Shreveport, La.-based law firm Jones,
Odom, Davis & Politz and a retired Air Force Reserve colonel who served as a
judge advocate. Odom wrote the USERRA section of ABA's report. "It's a very
interesting piece of work product," Odom said of the regulations.
"Every practitioner is going to be thrilled that [they] have finally
emerged." Odom said the rules will not please everyone and won't cover every
situation, but represent a major step forward. "We now have some teeth in
the way of regulations, to argue with and to argue to employers about, on
many specifics," he said.
The regulations are written in plain English and were intended to be used by
human resource departments and not lawyers, because USERRA works best with
voluntary compliance as opposed to lawsuits, Odom said. The Labor
Department's Veterans' Employment and Training Service typically is the
first to see complaints that the law has been violated.
But in February 2005, the Office of Special Counsel
investigating the USERRA claims of federal workers with Social Security
numbers ending in an odd-numbered digit. The effort was a demonstration
project and was intended to relieve some of Labor's burden. Labor has
continued to handle state and local government claims.
Odom said the appointment of Special Counsel Scott Bloch to head OSC has
made a world of difference in improving USERRA enforcement. He also noted
that the Labor and Justice departments have put together a working group
tasked with representing service members in USERRA cases.
Along with the final regulations, Labor has also published the final version
of information leaflets--one for
workers and another for the State & Local
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