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Electronic Code of Federal Regulations

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e-CFR Data is current as of October 22, 2014

Title 20Chapter IXPart 1002


TITLE 20—Employees' Benefits

CHAPTER IX—OFFICE OF THE ASSISTANT SECRETARY FOR VETERANS' EMPLOYMENT AND TRAINING SERVICE, DEPARTMENT OF LABOR

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

rule

Subpart A—INTRODUCTION TO THE REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994

General Provisions

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

Subpart B—ANTI-DISCRIMINATION AND ANTI-RETALIATION

Protection From Employer Discrimination and Retaliation

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

Subpart C—ELIGIBILITY FOR REEMPLOYMENT

General Eligibility Requirements for Reemployment

§1002.32
What criteria must the employee meet to be eligible under USERRA for reemployment after service in the uniformed services?
§1002.33
Does the employee have to prove that the employer discriminated against him or her in order to be eligible for reemployment?

Coverage of Employers and Positions

§1002.34
Which employers are covered by USERRA?
§1002.35
Is a successor in interest an employer covered by USERRA?
§1002.36
Can an employer be liable as a successor in interest if it was unaware that an employee may claim reemployment rights when the employer acquired the business?
§1002.37
Can one employee be employed in one job by more than one employer?
§1002.38
Can a hiring hall be an employer?
§1002.39
Are States (and their political subdivisions), the District of Columbia, the Commonwealth of Puerto Rico, and United States territories, considered employers?
§1002.40
Does USERRA protect against discrimination in initial hiring decisions?
§1002.41
Does an employee have rights under USERRA even though he or she holds a temporary, part-time, probationary, or seasonal employment position?
§1002.42
What rights does an employee have under USERRA if he or she is on layoff, on strike, or on a leave of absence?
§1002.43
Does an individual have rights under USERRA even if he or she is an executive, managerial, or professional employee?
§1002.44
Does USERRA cover an independent contractor?

Coverage of Service in the Uniformed Services

§1002.54
Are all military fitness examinations considered “service in the uniformed services?”
§1002.55
Is all funeral honors duty considered “service in the uniformed services?”
§1002.56
What types of service in the National Disaster Medical System are considered “service in the uniformed services?”
§1002.57
Is all service as a member of the National Guard considered “service in the uniformed services?”
§1002.58
Is service in the commissioned corps of the Public Health Service considered “service in the uniformed services?”
§1002.59
Are there any circumstances in which special categories of persons are considered to perform “service in the uniformed services?”
§1002.60
Does USERRA cover an individual attending a military service academy?
§1002.61
Does USERRA cover a member of the Reserve Officers Training Corps?
§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?

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

§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?
§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?

Requirement of Notice

§1002.85
Must the employee give advance notice to the employer of his or her service in the uniformed services?
§1002.86
When is the employee excused from giving advance notice of service in the uniformed services?
§1002.87
Is the employee required to get permission from his or her employer before leaving to perform service in the uniformed services?
§1002.88
Is the employee required to tell his or her civilian employer that he or she intends to seek reemployment after completing uniformed service before the employee leaves to perform service in the uniformed services?

Period of Service

§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?
§1002.100
Does the five-year service limit include all absences from an employment position that are related to service in the uniformed services?
§1002.101
Does the five-year service limit include periods of service that the employee performed when he or she worked for a previous employer?
§1002.102
Does the five-year service limit include periods of service that the employee performed before USERRA was enacted?
§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?
§1002.104
Is the employee required to accommodate his or her employer's needs as to the timing, frequency or duration of service?

Application for Reemployment

§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?
§1002.116
Is the time period for reporting back to an employer extended if the employee is hospitalized for, or convalescing from, an illness or injury incurred in, or aggravated during, the performance of service?
§1002.117
Are there any consequences if the employee fails to report for or submit a timely application for reemployment?
§1002.118
Is an application for reemployment required to be in any particular form?
§1002.119
To whom must the employee submit the application for reemployment?
§1002.120
If the employee seeks or obtains employment with an employer other than the pre-service employer before the end of the period within which a reemployment application must be filed, will that jeopardize reemployment rights with the pre-service employer?
§1002.121
Is the employee required to submit documentation to the employer in connection with the application for reemployment?
§1002.122
Is the employer required to reemploy the employee if documentation establishing the employee's eligibility does not exist or is not readily available?
§1002.123
What documents satisfy the requirement that the employee establish eligibility for reemployment after a period of service of more than thirty days?

Character of Service

§1002.134
What type of discharge or separation from service is required for an employee to be entitled to reemployment under USERRA?
§1002.135
What types of discharge or separation from uniformed service will make the employee ineligible for reemployment under USERRA?
§1002.136
Who determines the characterization of service?
§1002.137
If the employee receives a disqualifying discharge or release from uniformed service and it is later upgraded, will reemployment rights be restored?
§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?

Employer Statutory Defenses

§1002.139
Are there any circumstances in which the pre-service employer is excused from its obligation to reemploy the employee following a period of uniformed service? What statutory defenses are available to the employer in an action or proceeding for reemployment benefits?
rule

Subpart D—RIGHTS, BENEFITS, AND OBLIGATIONS OF PERSONS ABSENT FROM EMPLOYMENT DUE TO SERVICE IN THE UNIFORMED SERVICES

Furlough and Leave of Absence

§1002.149
What is the employee's status with his or her civilian employer while performing service in the uniformed services?
§1002.150
Which non-seniority rights and benefits is the employee entitled to during a period of service?
§1002.151
If the employer provides full or partial pay to the employee while he or she is on military leave, is the employer required to also provide the non-seniority rights and benefits ordinarily granted to similarly situated employees on furlough or leave of absence?
§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?
§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?

Health Plan Coverage

§1002.163
What types of health plans are covered by USERRA?
§1002.164
What health plan coverage must the employer provide for the employee under USERRA?
§1002.165
How does the employee elect continuing health plan coverage?
§1002.166
How much must the employee pay in order to continue health plan coverage?
§1002.167
What actions may a plan administrator take if the employee does not elect or pay for continuing coverage in a timely manner?
§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?
§1002.169
Can the employee elect to delay reinstatement of health plan coverage until a date after the date he or she is reemployed?
§1002.170
In a multiemployer health plan, how is liability allocated for employer contributions and benefits arising under USERRA's health plan provisions?
§1002.171
How does the continuation of health plan benefits apply to a multiemployer plan that provides health plan coverage through a health benefits account system?
rule

Subpart E—REEMPLOYMENT RIGHTS AND BENEFITS

Prompt Reemployment

§1002.180
When is an employee entitled to be reemployed by his or her civilian employer?
§1002.181
How is “prompt reemployment” defined?

Reemployment Position

§1002.191
What position is the employee entitled to upon reemployment?
§1002.192
How is the specific reemployment position determined?
§1002.193
Does the reemployment position include elements such as seniority, status, and rate of pay?
§1002.194
Can the application of the escalator principle result in adverse consequences when the employee is reemployed?
§1002.195
What other factors can determine the reemployment position?
§1002.196
What is the employee's reemployment position if the period of service was less than 91 days?
§1002.197
What is the reemployment position if the employee's period of service in the uniformed services was more than 90 days?
§1002.198
What efforts must the employer make to help the employee become qualified for the reemployment position?
§1002.199
What priority must the employer follow if two or more returning employees are entitled to reemployment in the same position?

Seniority Rights and Benefits

§1002.210
What seniority rights does an employee have when reemployed following a period of uniformed service?
§1002.211
Does USERRA require the employer to use a seniority system?
§1002.212
How does a person know whether a particular right or benefit is a seniority-based right or benefit?
§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?

Disabled Employees

§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?
§1002.226
If the employee has a disability that was incurred in, or aggravated during, the period of service, what efforts must the employer make to help him or her become qualified for the reemployment position?

Rate of Pay

§1002.236
How is the employee's rate of pay determined when he or she returns from a period of service?

Protection Against Discharge

§1002.247
Does USERRA provide the employee with protection against discharge?
§1002.248
What constitutes cause for discharge under USERRA?

Pension Plan Benefits

§1002.259
How does USERRA protect an employee's pension benefits?
§1002.260
What pension benefit plans are covered under USERRA?
§1002.261
Who is responsible for funding any plan obligation to provide the employee with pension benefits?
§1002.262
When is the employer required to make the plan contribution that is attributable to the employee's period of uniformed service?
§1002.263
Does the employee pay interest when he or she makes up missed contributions or elective deferrals?
§1002.264
Is the employee allowed to repay a previous distribution from a pension benefits plan upon being reemployed?
§1002.265
If the employee is reemployed with his or her pre-service employer, is the employee's pension benefit the same as if he or she had remained continuously employed?
§1002.266
What are the obligations of a multiemployer pension benefit plan under USERRA?
§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?
rule

Subpart F—COMPLIANCE ASSISTANCE, ENFORCEMENT AND REMEDIES

Compliance Assistance

§1002.277
What assistance does the Department of Labor provide to employees and employers concerning employment, reemployment, or other rights and benefits under USERRA?

Investigation and Referral

§1002.288
How does an individual file a USERRA complaint?
§1002.289
How will VETS investigate a USERRA complaint?
§1002.290
Does VETS have the authority to order compliance with USERRA?
§1002.291
What actions may an individual take if the complaint is not resolved by VETS?
§1002.292
What can the Attorney General do about the complaint?

Enforcement of Rights and Benefits Against a State or Private Employer

§1002.303
Is an individual required to file his or her complaint with VETS?
§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?
§1002.305
What court has jurisdiction in an action against a State or private employer?
§1002.306
Is a National Guard civilian technician considered a State or Federal employee for purposes of USERRA?
§1002.307
What is the proper venue in an action against a State or private employer?
§1002.308
Who has legal standing to bring an action under USERRA?
§1002.309
Who is a necessary party in an action under USERRA?
§1002.310
How are fees and court costs charged or taxed in an action under USERRA?
§1002.311
Is there a statute of limitations in an action under USERRA?
§1002.312
What remedies may be awarded for a violation of USERRA?
§1002.313
Are there special damages provisions that apply to actions initiated in the name of the United States?
§1002.314
May a court use its equity powers in an action or proceeding under the Act?
Appendix
Appendix to Part 1002—Notice of Your Rights Under USERRA


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