# Uniformed Services Employment and Reemployment Rights Act of 1994, As Amended > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A05-23961 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** December 19, 2005 - **Citation:** 70 FR 75246 ## Text DEPARTMENT OF LABOR Veterans' Employment and Training Service 20 CFR Part 1002 [Docket No. VETS-U-04] RIN 1293-AA09 Uniformed Services Employment and Reemployment Rights Act of 1994, As Amended AGENCY: Veterans' Employment and Training Service, Department of Labor. ACTION: Final rules. SUMMARY: The Veterans' Employment and Training Service (“VETS” or “the Agency”) issued proposed rules implementing the Uniformed Services Employment and Reemployment Rights Act of 1994, as amended (USERRA). This document sets forth the Agency's review of and response to comments on the proposal and any changes made in response to those comments. Congress enacted USERRA to protect the rights of persons who voluntarily or involuntarily leave employment positions to undertake military service. USERRA authorizes the Secretary of Labor (in consultation with the Secretary of Defense) to prescribe rules implementing the law as it applies to States, local governments, and private employers. VETS proposed rules under that authority in order to provide guidance to employers and employees concerning their rights and obligations under USERRA. The Agency invited written comments on these proposed rules, and any specific issues related to the proposal, from members of the public. DATES: Effective Date: This rule will be effective on January 18, 2006. FOR FURTHER INFORMATION CONTACT: Robert Wilson, Chief, Investigations and Compliance Division, Veterans' Employment and Training Service, U.S. Department of Labor, 200 Constitution Avenue, NW., Room S-1312, Washington, DC 20210, Wilson.Robert@dol.gov, (202) 693-4719 (this is not a toll-free number). For press inquiries, contact Michael Biddle, Office of Public Affairs, U.S. Department of Labor, 200 Constitution Avenue, NW., Room S-1032, Washington, DC 20210, Biddle.Michael@dol.gov, (202) 693-5051 (this is not a toll-free number). SUPPLEMENTARY INFORMATION: I. Background On September 20, 2004, the Department of Labor (“the Department”) issued proposed regulations to implement the Uniformed Services Employment and Reemployment Rights Act of 1994, as amended (USERRA), 38 U.S.C. 4301-4334. The Department invited written comments on the proposed regulations from interested parties. The Department also invited public comment on specific issues. The written comment period closed on November 19, 2004, and the Department has considered all timely comments received in response to the proposed regulations. The Department received 80 timely comments from a wide variety of sources. Commenters included: a member of Congress; service members and veterans; organizations representing human resource professionals and employee benefits providers; law firms; individual employers and employer associations; individual employees and employee representatives; and members of the interested public. The comments were composed of well over 300 individual queries or concerns addressed to approximately 200 specific topics set out in the Department's notice of proposed rulemaking. While a few of the comments were generalized plaudits or individualized complaints, the great majority of comments specifically addressed issues contained in the Department's proposed rule. The Department recognizes and appreciates the value of comments, ideas, and suggestions from members of the uniformed services, employers, industry associations, labor organizations and other parties who have an interest in uniformed service members' and veterans' employment and reemployment rights and benefits. Following the publication of the NPRM, the Department issued an interim final rule, Notice of Rights and Duties Under the Uniformed Services Employment and Reemployment Act, 70 FR 12106 (March 10, 2005), to comply with an amendment made to USERRA by the Veterans Benefits Improvement Act of 2004 (VBIA), Public Law 108-454 (Dec. 10, 2004). In part, the VBIA imposed a new requirement that “Each employer shall provide to persons entitled to rights and benefits under [USERRA] a notice of the rights, benefits, and obligations of such persons and such employers under [USERRA].” 38 U.S.C. 4334(a). The VBIA required the Secretary of Labor to make available to employers the text of the required notice, 38 U.S.C. 4334(b), and the Department's publication of the interim final rule set forth such text as an appendix to these USERRA regulations. II. Statutory Authority Section 4331 of USERRA authorizes the Secretary of Labor (in consultation with the Secretary of Defense) to prescribe regulations implementing the law as it applies to States, local governments, and private employers. 38 U.S.C. 4331(a). The Department has consulted with the Department of Defense, and issues these regulations under that authority in order to provide guidance to employers and employees concerning the rights and obligations of both under USERRA. III. Prior Laws and Interpretation USERRA was enacted in part to clarify prior laws relating to the reemployment rights of service members, rights that were first contained in the Selective Training and Service Act of 1940, 54 Stat. 885, 50 U.S.C. 301, et seq. USERRA's immediate predecessor was the Vietnam Era Veterans' Readjustment Assistance Act of 1974, 38 U.S.C. 2021-2027 (later recodified at 38 U.S.C. 4301-4307 and commonly referred to as the Veterans' Reemployment Rights Act “VRRA”), which was amended and recodified as USERRA. In construing USERRA and these prior laws, courts have followed the Supreme Court's admonition that: This legislation is to be liberally construed for the benefit of those who left private life to serve their country in its hour of great need. * * * And no practice of employers or agreements between employers and unions can cut down the service adjustment benefits which Congress has secured the veteran under the Act. See Fishgold v. Sullivan Drydock and Repair Corp., 328 U.S. 275, 285 (1946), cited in Alabama Power Co. v. Davis , 431 U.S. 581, 584-85 (1977); King v. St. Vincent's Hosp., 502 U.S. 215, 221 n.9 (1991). The Department intends that this interpretive maxim apply with full force and effect in construing USERRA and these regulations. This preamble also selectively refers to many other cases decided under USERRA and its predecessor statutes, to explain and illustrate the rights and benefits established under the Act. The failure to cite or refer to a particular court decision in this preamble is not intended to indicate the Department's approval or disapproval of the reasoning or holding of that case. IV. Plain Language The Department wrote the proposed rule in the more personal style advocated by the Presidential Memorandum on Plain Language. “Plain language” encourages the use of: • Personal pronouns (we and you); • Sentences in the active voice; and, • A greater use of headings, lists, and questions. The Department received three comments regarding its use of “you,” “I,” and “my” to refer to employees, whom the Department viewed as the primary beneficiaries of USERRA rights and benefits. These commenters appreciated the use of plain language and the use of question and answer format, but expressed a preference for the use of third person pronouns so that both employers and employees are included as the audience of the rule. In response, the Department has revised the pronoun usage in the final rule, and has employed third person pronouns to refer to the rights and obligations of both employers and employees. In addition, one of these commenters recommended the Department use a more formal style when addressing complex topics such as health and pension plan rights and obligations. In response, the Department has adopted the use of more technical guidance on these matters without unduly sacrificing clarity. V. Section-by-Section Summary of the Final Rule and Discussion of Comments This preamble sets out the Department's interpretation of USERRA, section by section. The preamble generally follows the outline of the rule, which in turn follows the outline of USERRA. Within each section of the preamble, the Department has noted and responded to those comments that are addressed to that particular section of the rule. Before setting out the section-by-section analysis, however, the Department will first acknowledge and respond to comments that did not easily fit into this organizational scheme. A. General Comments The Department received a number of general comments from members of the public expressing gratitude to the Department for the long-awaited USERRA regulations. In particular, Rep. John Boehner, Chairman of the U.S. House of Representatives Committee on Education and the Workforce, commended the Department for “undertaking this most important endeavor.” Conversely, the Department received a few comments from individuals complaining about their specific USERRA claims. The Department also received several comments offering assistance with grammar and punctuation. In all cases—the plaudits, the complaints, and the offers of assistance— the Department acknowledges and appreciates the thorough and thoughtful comments. The Department also received several comments requesting that particular text cross-reference other text or make reference to related text elsewhere in the rule. As a general matter of style, the Department views such cross-references as cumbersome and ultimately detrimental to the clarity of the text and, with few exceptions, has declined to make such revisions. Finally, the Department received several comments asking about the application of these regulations to the Federal Government when it is acting as an employer. The Federal Office of Personnel Management has issued a separate body of regulations that govern the USERRA rights of Federal employees. See 5 CFR part 353. B. Compliance With USERRA and Compliance With the Internal Revenue Code The Department received a number of comments from individuals and employers seeking guidance on compliance with USERRA in those cases in which the commenters perceived a conflict between USERRA's mandates and the mandates of the Internal Revenue Code (IRC). These comments arose primarily with regard to the health and pension plan provisions of the rule, and suggested that in some cases compliance with USERRA may cause the plan to be out of compliance with the IRC. See Subparts D and E. The Department can provide guidance only with regard to the requirements of USERRA. However, the Internal Revenue Service (IRS) and the Department of the Treasury have indicated that a health or pension plan will be deemed not to be in conflict with the applicable IRC requirements merely because of compliance with USERRA or its regulations. C. Comments Addressing the National Disaster Medical System The Department received several comments from an attorney employed by the Federal Emergency Management Agency (FEMA) regarding the rule's treatment of the National Disaster Medical System (NDMS). The NDMS is a section within the U.S. Department of Homeland Security, and supports Federal agencies in the management and coordination of the Federal medical response to major emergencies and Federally declared disasters. The NDMS is composed primarily of teams of professional and para-professional volunteers, who may be activated for training or in response to public health emergencies. NDMS volunteers who are activated are considered to be serving in the uniformed services for the purposes of USERRA. 42 U.S.C. 300hh-11(e)(3). The FEMA commenter suggests several instances in which the Department should clarify the coverage of members of the NDMS under USERRA. The Department agrees with a number of these suggestions, and rejects others, as follows: 1. The commenter recommends that section 1002.2, which provides background and historical information on USERRA, include the statutory reference, 42 U.S.C. 300hh-11(e)(3), that provides USERRA coverage to members of the NDMS. The Department declines this suggestion, because this section of the rule is intended as a general discussion, and contains no mention of any statutory provisions that have directly or indirectly amended USERRA. However, the Department will take the opportunity to highlight the NDMS coverage issues elsewhere in this final rule. 2. The commenter recommends that the Department include a description of the NDMS in section 1002.5, which contains a number of definitions that are considered helpful in understanding USERRA. The Department has adopted this proposal. See 1002.5(f). 3. The commenter recommends a style change in NPRM section 1002.5(k), which has been incorporated. See 1002.5(l). 4. The commenter suggests that the Department include in NPRM section 1002.5 that NDMS appointees are considered members of the uniformed services when Federally activated or attending authorized training. The Department has revised section 1002.5(o) to reflect that, pursuant to the statute creating the NDMS, service in the NDMS is considered to be service in the uniformed services for the purposes of USERRA, although the appointee is not considered to be a member of the uniformed services. See 42 U.S.C. 300hh-11(e)(3). 5. The commenter suggests that the Department clarify in section 1002.6 that service in the NDMS is a type of service covered by USERRA. The Department agrees. See 1002.6. 6. The commenter requests that the Department modify 1002.41 to include a reference to the intermittent nature of the service of the NDMS. The Department rejects this suggestion because the section in question refers to the brief or intermittent nature of civilian employment, not the service in the uniformed services. 7. The commenter suggests that the Department clarify that, with regard to section 1002.56, not all NDMS service is protected by USERRA, and that the Department remove the phrase “even if you are not a member of the uniformed services” from this section. While the Department did not adopt these suggestions, the Department reexamined the question set out in section 1002.56 and concluded it needed revision to accurately reflect the scope of the coverage of NDMS service. 8. The commenter properly suggests that the Department modify section 1002.86 to indicate that the Secretary of Homeland Security may, in consultation with the Secretary of Defense, make a determination that giving of notice by intermittent disaster-response appointees of the National Disaster Medical System is precluded by “military necessity.” The revision has been made. See 1002.86. 9. The commenter requests that the Department correct a reference in section 1002.103(a)(5) and (a)(7), which addresses the types of service that do not count toward the general five-year limit on service after which a person is not entitled to reemployment rights. The correction has been made to follow precisely the corresponding sections of the statute. See 38 U.S.C. 4312(c)(4)(B) and 4312(c)(4)(D). 10. The commenter requests that the Department include within section 1002.123 an additional type of document that establishes an employee's eligibility for reemployment following covered NDMS service. The Department agrees. See section 1002.123(a)(7). 11. The commenter suggests that the Department modify section 1002.35, which specifies the types of discharge following service that will cause a person to lose reemployment rights under USERRA. The commenter sought inclusion on this list the termination of an intermittent NDMS appointee for misconduct or cause. Because no statutory or regulatory guidance was provided as a basis for this suggestion, and the Department is aware of none, the suggestion is not adopted. Subpart A—Introduction to the Regulations Under the Uniformed Services Employment and Reemployment Rights Act of 1994 General Provisions Sections 1002.1 through 1002.7 describe the regulation's purpose, scope, and background, as well as the sense of the Congress in enacting USERRA. Section 1002.1 sets out the purpose of these regulations. See 38 U.S.C. 4301. Sections 1002.2 through 1002.4 provide additional background on USERRA, its effective date, and its purposes. Section 1002.5 defines the important terms used in the regulation. See 38 U.S.C. 4303. Sections 1002.6 and 1002.7 describe the general coverage of the rule, its applicability and its relationship to other laws, contracts, agreements, and workplace policies and practices. See 38 U.S.C. 4302. The Department received one comment from the Equal Employment Advisory Council regarding the breadth of USERRA's definition of “employer.” The proposed rule adopted, in Section 1002.5(d), USERRA's definition of “employer,” which includes “any person, institution, organization or other entity that pays salary of wages for work performed or that has control over employment opportunities, including * * * a person, institution, organization, or entity to whom the employer has delegated the performance of employment-related responsibilities.” 38 U.S.C. 4303(4). The EEAC proposed that the regulatory definition of employer explicitly exclude from liability for statutory violations individuals, such as managers or supervisors, who are not directly responsible for paying wages to employees. In support of this proposal, the EEAC cited case law under various civil rights statutes holding that individuals cannot be held personally liable for statutory violations if the individual does not independently meet the statute's definition of a covered “employer.” See, e.g., EEOC v. AIC Security Investigations, LTD, 55 F.3d 1276, 1281 (7th Cir. 1995), and cases cited therein. Under the statutory definitions of “employer” in the Americans with Disabilities Act (ADA), 42 U.S.C 12111(5), the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 630(b), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e(b), which are essentially the same, the weight of authority is that Congress intended the doctrine of respondeat superior to apply, and to impose liability upon employers for acts of their agents. Id. The Department has considered this comment and disagrees with the conclusion reached by the commenter. In comparison to the ADA, the ADEA, and Title VII of the Civil Rights Act, USERRA's definition of “employer” is quite different and much broader. USERRA imposes liability for violations upon “any person * * * [who] * * * has control over employment opportunities” including “a person * * * to whom the employer has delegated the performance of employment-related responsibilities.” 38 U.S.C. 4303(4)(A)(i). At least two courts have held that, based on this definition, individual supervisors may be liable under the Act. See Brandasse v. City of Suffolk, 72 F.Supp.2d 608, 617-18 (E.D.Va. 1999) (both a city, as a police officer's direct employer, and its director of personnel, who had authority over hiring and firing for the city, were subject to liability as “employers” under USERRA); Jones v. Wolf Camera, Inc., 1997 WL 22678 (N.D.Tex. 1997) (at Fed.R.Civ.P. 12(b)(6) stage, individual supervisors may be liable under USERRA as “persons” with control over hiring and firing and to whom the employer has delegated the performance of employment-related responsibilities). But see Satterfield v. Borough of Schuykill Haven, 12 F.Supp.2d 423 (E.D.Pa. 1998) (plaintiff could not bring an action under USERRA against individual members of a borough council, alleging that the council terminated him because of his military status, because such members did not have any individual power over the plaintiff and the plaintiff was not required to report to them individually); Brooks v. Fiore, 2001 WL 1218448 (D. Del. 2001) (supervisor was not covered by USERRA because he did not have the power to hire and fire the plaintiff). Thus, courts have construed USERRA's definition of “employer” as including supervisors and managers in appropriate cases. Those courts that have found no individual liability have done so not because the language of the statute precludes it, but rather because the facts and circumstances of the case do not warrant the imposition of individual liability. Based on these considerations, the Department declines to adopt the position that individual supervisors and managers should be excluded from the regulatory definition of “employer” under USERRA. The Department received two additional comments, one from an association of third-party employee benefit administrators and one from a trade association of firms providing health insurance products to employers, regarding the statute's broad definition of “employer” and its implications in the employee benefits area. Each commenter was concerned that USERRA's definition of “employer” was so broad as to impute liability to third parties to whom employers had delegated only ministerial responsibilities for employee benefits plans. Congress intended that the definition of employer be broad enough to “apply to insurance companies that administer employers' life, long-term disability, or health plans, so that such entities cannot refuse to modify their policies in order for employers to comply with requirements under [USERRA].” S. Rep. No. 158, 103d Cong., 2d Sess. 42 (1993). However, the Department agrees with the commenters that entities to whom employers or plan sponsors have delegated purely ministerial functions regarding the administration of employee benefits plans are not intended to be covered by USERRA's definition of “employer.” For instance, firms whose activities are strictly limited to the preparation and maintenance of plan benefit forms, without engaging in substantive decisions regarding plan benefits, would not be considered employers for the purposes of USERRA. The Department received comments on the rule's definitions regarding an employer's obligation to make reasonable efforts, without imposing an undue hardship on the employer, to qualify an employee returning from military service for reemployment. One commenter suggested that the definition of “reasonable efforts” in section 1002.5(i) should explicitly include an employer's obligation to provide evaluative testing, assistance with obtaining licensing, and other similar employer efforts. The Department views the definition of “reasonable efforts,” which requires actions by employers “including training * * * that do not place undue hardship on the employer,” as sufficiently broad so as to include other actions not specified in the definition. The same commenter requested that the Department delete from the definition of “undue hardship” in section 1002.5(n) any consideration based on “the nature and cost of the action needed.” The “nature and the cost of the action” is one of the factors expressly included in USERRA's definition of “undue hardship,” and the Department views consideration of all factors essential to evaluation of what constitutes “undue hardship.” 38 U.S.C. 4303(15)(A)-(D). Additionally, another commenter requested that the Department exclude “former employees” from the definition of “employee” in section 1002.5(c). Congress intended “that the term ‘employee' would include former employees of an employer.” H.R. Rep. No. 65, 103d Cong., 2d Sess. 21 (1993); S. Rep. No. 103-158, at 41 (1993). Therefore, the Department will retain “former employees” within this definition. One comment suggests a revision to section 1002.6, which describes the various types of service that are covered under USERRA. USERRA's predecessor, the VRRA, provided reemployment protections that varied (in many instances) based on the type of service performed. One of the ways in which USERRA modified the old law was to base many of the reemployment rights on the length of the service performed rather than its type. The commenter requests the deletion of the sentence from section 1002.6 that erroneously indicates that the statute's reemployment provisions vary only according to the length of service. The Department agrees, and has made the deletion. See 1002.6. Finally, the Department received one comment regarding USERRA's relationship to the Internal Revenue Code. The commenter has requested the Department clarify how “differential pay” should be reported for tax purposes. The term “differential pay” refers to payments by employers to their employees absent to perform military service, and this pay is neither required by nor addressed in USERRA. In some cases, employers provide employees their full civilian pay, but more often they provide payments that represent the difference between the employee's military pay and civilian pay. Differential pay is a generous show of support by employers for their employees who are in service to the nation. The commenter correctly points out that USERRA requires that a person absent from a position of employment on account of service in the uniformed services is to be considered on a furlough or leave of absence, a provision that has been incorporated in the reemployment rights statute since its first enactment in 1940. 38 U.S.C. 4316(b)(1)(A). On the other hand, the commenter notes that the Internal Revenue Service (IRS) has issued guidance that such person is considered to be “terminated” for certain tax purposes. The Department reiterates that for the purposes of determining the rights and obligations set out in USERRA, an employee absent to perform service in the uniformed services is to be considered as on furlough or leave of absence. 38 U.S.C. 4316(b). Therefore, for the purposes of compliance with USERRA, an employee should be treated as on furlough or leave of absence, and for the purposes of compliance with the Internal Revenue Code (IRC), the IRS guidance should be followed. See IRS Revenue Ruling 69-136 (1969). Subpart B—Anti-Discrimination and Anti-Retaliation Protection From Employer Discrimination and Retaliation USERRA prohibits an employer from engaging in acts of discrimination against past and present members of the uniformed services, as well as applicants to the uniformed services. 38 U.S.C. 4311(a). The anti-discrimination prohibition applies to both employers and potential employers. No employer may deny a person initial employment, reemployment, retention in employment, promotion, or any benefit of employment based on the person's membership, application for membership, performance of service, application to perform service, or obligation for service in the uniformed services. USERRA also protects any person who participates in an action to protect past, present or future members of the uniformed services in the exercise of their rights under the Act. The Act prohibits any employer from discriminating or taking reprisals against any person who acts to enforce rights under the Act; testifies in any proceeding or assists a statutory investigation; or exercises any right under the statute pertaining to any person. 38 U.S.C. 4311(b). A person is protected against discrimination and reprisal regardless whether he or she has served in the military. Proposed sections 1002.18, 1002.19 and 1002.20 implement the protections of section 4311(a) and (b). Proposed section 1002.21 makes clear that the prohibition on discrimination applies to any employment position, regardless of its duration, including a position of employment that is for a brief, non-recurrent period, and for which there is no reasonable expectation that the employment position will continue indefinitely or for a significant period. The Department received two comments on proposed section 1002.21. The first commenter suggests that the application of USERRA's anti-discrimination and anti-retaliation provisions to brief, non-recurrent positions is “unduly burdensome for employers and contains unnecessary verbiage.” Because the statute explicitly requires the application of the anti-discrimination and anti-retaliation provisions to such employment positions, see 38 U.S.C. 4311(d), the Department will retain the provision unchanged. A second commenter requests that 1002.21 include a cross-reference to section 1002.41 to reflect that persons employed in brief, non-recurrent employment positions enjoy the protections of USERRA's anti- discrimination and anti-retaliation provisions, while persons employed in temporary and seasonal employment positions are not protected by USERRA's reemployment provisions. The commenter mistakenly equates the terms “brief, non-recurrent” with “temporary” and “seasonal” when referring to employment positions. Some employment positions, such as a life guard at a swimming pool or a football coach, are temporary, seasonal positions, and such positions enjoy both the anti-discrimination/anti-retaliation and the reemployment protections afforded under USERRA. See 38 U.S.C. 4311(d) and 4312(d)(1)(C); S. Rep. No. 103-158, at 46 (1993). By contrast, some, but not all, temporary, seasonal employment positions are brief and non-recurrent, and provide the employee no reasonable expectation of continued employment, such as an employment contract that covers a one-time-only, three-month-long position. Such brief, non-recurrent positions enjoy the protections afforded by USERRA's anti-discrimination/anti-retaliation provisions, but are not protected by the statute's reemployment provisions. See 38 U.S.C. 4312(d)(1)(C); S. Rep. No. 103-158, at 46 (1993). Proposed section 1002.22 explains who has the burden of proving that a certain action violates the statute. Proposed section 1002.23 sets out the evidentiary elements of a claimant's and an employer's case under USERRA. The Department received several comments regarding these two provisions. Two commenters, including the National Employment Lawyers Association (NELA), criticized the provisions for failing to state explicitly in the text of the rule that once an employee has met his or her burden to prove that the employee's USERRA-protected status or activity was a reason for an employer's adverse action against the employee, that the employer's rebuttal case is an affirmative defense, which places the burden of proof on the employer to show by a preponderance of evidence that it would have taken the adverse action in the absence of the protected status or activity. In addition, two commenters, including NELA, criticized the provisions for erroneously stating that the burden of proof shifts back to the employee if the employer successfully prevails on its affirmative defense. The Department agrees that the structures of proof set forth in proposed sections 1002.22 and 1002.23 are susceptible to confusion and should be clarified. Congress intended that the evidentiary scheme set forth by the United States Supreme Court in NLRB v. Transportation Management Corp., 462 U.S. 393, 401 (1983), apply to the analysis of violations under USERRA. See S. Rep. No. 103-158, at 45 (1993), and H.R. Rep. No. 103-65, Pt. I, at 18, 24 (1993). See also Gummo v. Village of Depew, NY, 75 F.3d 98, 106 (2d Cir. 1996) (citing USERRA's legislative history); Sheehan v. Dept. of the Navy, 240 F.3d 1009, 1013-1014 (Fed. Cir. 2001) (same). Under this structure, in order to establish a case of employer discrimination, the person's membership, application for membership, performance of service, application for service, or obligation for service in the uniformed services must be a “motivating factor” in the employer's actions or conduct. 38 U.S.C. 4311(c)(1). The initial burden of proving discrimination or retaliation rests with the person alleging discrimination (the claimant). A person alleging discrimination under USERRA must first establish that his or her protected activities or status as a past, present or future service member was a motivating factor in the adverse employment action. See Robinson v. Morris Moore Chevrolet-Buick, Inc., 974 F.Supp. 571 (E.D. Tex. 1997). The claimant alleging discrimination must prove the elements of a violation—i.e., membership in a protected class (such as past, present or future affiliation with the uniformed services); an adverse employment action by the employer or prospective employer; and a causal relationship between the claimant's protected status and the adverse employment action (the “motivating factor”). To meet this burden, a claimant need not show that his or her protected activities or status was the sole cause of the employment action; the person's activities or status need be only one of the factors that “a truthful employer would list if asked for the reasons for its decision.” Kelley v. Maine Eye Care Associates, P.A , 37 F. Supp.2d 47, 54 (D. Me. 1999); see Robinson, 974 F. Supp. at 575 (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989) (addressing Title VII gender discrimination claim and related defense)). “Military status is a motivating factor if the defendant relied on, took into account, considered, or conditioned its decision on that consideration.” Fink v. City of New York, 129 F.Supp.2d 511, 520 (E.D.N.Y. 2001), citing Robinson, 974 F.Supp. at 576. The employee is not required to provide direct proof of employer animus at this stage of the proceeding; intent to discriminate or retaliate may be established through circumstantial evidence. See Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003); United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 714 (1983); Sheehan, 240 F.3d at 1014. After the employee establishes the elements of an alleged violation, the employer may avoid liability by proving by a preponderance of the evidence that the claimant's military activities or status was not a motivating factor in the adverse employment action. See Gummo, 75 F.3d at 106. At this stage, the employer carries the burden to prove as an affirmative defense that it would have taken the action anyway, without regard to the employee's protected status or activity. Sheehan, 240 F.3d at 1014. Because the employer's defenses are affirmative under USERRA, if the employer fails to counter the employee's evidence, the claimant's proof establishes that the adverse employment action was more likely than not motivated by unlawful reasons. This framework is set forth in sections 1002.22 and 1002.23, which have been revised in response to the comments noted above and to accurately reflect the nature of the evidentiary structure intended by Congress. Section 4311(c)(2) provides the same evidentiary framework for adjudicating allegations of reprisal against any person (including individuals unaffiliated with the military) for engaging in activities to enforce a protected right; providing testimony or statements in a USERRA proceeding; assisting or participating in a USERRA investigation; or exercising a right provided by the statute. 38 U.S.C. 4311(c)(2). Section 1002.19 addresses the elements of a case of retaliation. One commenter highlighted an ambiguity in the question posed in section 1002.19, and the Department has narrowed the question to clarify that the section applies only to employer retaliation. The Department received responses to its request for comment on the application of the anti-discrimination provisions of the Act to potential employers. Because this issue is also addressed in section 1002.40, which explains in some detail the obligations of potential employers, the Department will respond to those comments in its summary of Subpart C, below. The Department received one comment requesting clarification in the text of the final rule that USERRA protects not just a service member's activities, but also protects a service member's status in the uniformed services. For example, an employer may not discriminate against a person because of his or her status as a military veteran or member of a uniformed service, regardless of whether that status results in the performance of military activities. The Department agrees with the comment, and has revised sections 1002.18, 1002.22 and 1002.23 to reflect that USERRA protects both military status and activities. The Department received numerous additional comments regarding this part of the rule. One comment criticized the rule for failing to state that the evidentiary scheme set forth in sections 1002.22 and 1002.23 applies only to court proceedings and does not apply to the earlier administrative stage during which VETS investigates an employee's USERRA claim. While the evidentiary structure in the rule certainly pertains to the litigation of USERRA claims in court, the Department regards the analysis as one that should be taken into account during the investigative stage, so that adequate assessments can be made regarding the claims of any party to a USERRA dispute. An additional comment criticized the proposed rule for failing to explicitly state that an employee need only show that his or her protected status or activity was one of the factors motivating the adverse employment action. Section 1002.22 states that the employee's burden is to prove that the protected activity or status was “one of the factors for the employer's adverse action,” and therefore no revision is necessary. Another commenter faulted the proposed rule for failing to state that the employee's initial burden of proof includes showing by a preponderance of evidence that the protected activity or status was a “substantial and motivating” factor. The Department has concluded that under Transportation Management, an employee must show that the protected status or activity was a “substantial or motivating” factor. 462 U.S. at 401. One commenter suggested the addition of the phrase “or more” to the first sentence of Section 1002.23(b) so that it states, “If you prove that the employer's action against you was based on one or more of the prohibited motives listed in paragraph (a) of this Section * * *.” The Department regards this suggestion as unnecessary to clarify the meaning of the provision. Finally, the Department received one comment suggesting that in a reinstatement case in which the employer has failed to reemploy a service member in a position of like pay, status and seniority, the burden of proof should be on the employer to show that its failure was not a result of protected activity or service, and that the burden should be on the employee only after reinstatement. Because the comment is ambiguous and does not offer clarification of any provision of the regulation, no revision has been made to respond to the comment. Subpart C—Eligibility for Reemployment General Eligibility Requirements for Reemployment USERRA requires that the service member meet five general criteria in order to establish eligibility for reemployment: (1) That the service member be absent from a position of civilian employment by reason of service in the uniformed services; (2) That the service member's employer be given advance notice of the service; (3) That the service member have five years or less of cumulative service in the uniformed services with respect to a position of employment with a particular employer; (4) That the service member return to work or apply for reemployment in a timely manner after conclusion of service; and (5) That the service member not have been separated from service with a disqualifying discharge or under other than honorable conditions. Section 1002.32 sets out these general eligibility requirements. Sections 1002.34-.74 explain the “absent from a position of civilian service” requirement, sections 1002.85-.88 explain the “advance notice” requirement, sections 1002.99-.104 explain the “five years or less of cumulative service” requirement, sections 1002.115-.123 explain the “return to work or apply for reemployment” requirement, and sections 1002.134-.138 explain the “no disqualifying discharge” requirement. A person who meets these eligibility criteria, which are contained in 38 U.S.C. 4312(a)-(c) and 4304, is entitled to be reemployed in the position described in 38 U.S.C. 4313, unless the employer can establish one of the three affirmative defenses contained in 38 U.S.C. 4312(d). The Department received two comments on the general eligibility criteria set out in proposed section 1002.32. The first commenter recommended that the phrase “in the uniformed services” be inserted after the word “service” in section 1002.32(a)(2) so that the sentence more accurately states, “You have five years or less of cumulative service in the uniformed services with respect to your position of employment.” The Department agrees that this amendment improves the clarity of the text, and has made the revision. See 1002.32(a)(2). The second commenter also requested a clarification to the same sentence. In order to reflect that the five-year service limit applies to an employee's entire employment relationship with a particular employer, including any changes in employment position with that particular employer, the Department has revised this sentence accordingly. See 1002.32(a)(2). There has been some disagreement in the courts over the appropriate burden of proof in cases brought under 38 U.S.C. 4312, the provision in USERRA establishing the reemployment rights of persons who serve in the uniformed services. One court has interpreted that provision to be “a subsection of section 4311 [the anti-discrimination and anti-retaliation provision].” Curby v. Archon, 216 F.3d 549, 556 (6th Cir. 2000). Other courts have interpreted section 4312 to establish a statutory protection distinct from section 4311, creating an entitlement to re-employment for qualifying service members rather than a protection against discrimination. Wrigglesworth v. Brumbaugh, 121 F. Supp.2d 1126, 1134 (W.D. Mich. 2000) (stating that requirements of section 4311 do not apply to section 4312). Brumbaugh relies in part on legislative history and the Department's interpretation of USERRA. Id. at 1137. Another district court supports the Brumbaugh decision and characterizes the contrary view in Curby as dicta. Jordan v. Air Products and Chem., 225 F. Supp.2d 1206, 1209 (C.D. Ca. 2002). In the proposed rule, the Department agreed with the district court decisions in Brumbaugh and Jordan that sections 4311 and 4312 of USERRA are separate and distinct. Accordingly, proposed section 1002.33 provided that a person seeking relief under section 4312 need not meet the additional burden of proof requirements for discrimination cases brought under section 4311. The Department disagreed with the decision in Curby v. Archon discussed above, insofar as it interprets USERRA to the contrary, and the Department invited comment regarding the proper interpretation of the statute regarding the burden of proof for relief under section 4312. The Department received four comments regarding this issue, and all four agreed with the Department's interpretation that a person alleging a violation of section 4312 of USERRA need not prove the elements of an alleged violation of section 4311. In the absence of any negative comment to consider, the Department will incorporate this provision of the proposed rule in the final rule. In addition, one of the four commenters on this topic requested that section 1002.33 contain much more detail about VETS' administrative procedures that follow the filing of a complaint stating a claim under section 4312. The Department declines this request, as it suggests the insertion of material that is covered below in Subpart F of this rule, Compliance Assistance, Enforcement and Remedies. Coverage of Employers and Positions Sections 1002.34 through 1002.44 of the final rule list the employers and employment positions that are covered by USERRA. Section 1002.34 provides that the Act's coverage extends to virtually all employers in the United States; the statute contains no threshold or minimum size to limit its reach. The Department received two comments regarding this coverage provision. First, the Department was asked whether USERRA applies to Native American tribes when they act as employers. Section 1002.34(a) reiterates USERRA's broad applicability to all employers, explicitly including the Federal government and the States. 38 U.S.C. 4303(4). While the face of the statute does not explicitly cover Native American tribal employers, USERRA's legislative history reflects the Act was intended to apply to “Native American tribes and their business enterprises.” S. Rep. No. 103-158, at 42 (1993). Thus, although the Department concludes that USERRA likely applies to Native American tribal employers, the Department recognizes that there is a difference between the right to demand compliance with the law and the means to enforce it. Kiowa Tribe of Oklahoma v. Manufacturing Techs., Inc. , 523 U.S. 751, 754 (1998). Native American tribes, like the States, possess sovereign immunity from suit except where “Congress has authorized the suit or the tribe has waived its immunity.” Kiowa Tribe of Oklahoma , 523 U.S. at 754. As a result, judicial enforcement of the Act against an Indian tribe depends on whether the tribe has waived its immunity, and such a waiver “cannot be implied but must be unequivocally expressed.” Santa Clara Pueblo v. Martinez , 436 U.S. 49, 58 (1978). Accordingly, the Department recognizes that the application of USERRA's provisions to Native American tribal employers is a complicated and heavily fact-dependent issue that, if raised in a USERRA proceeding, will ultimately be resolved by the courts on a case-by-case basis. See, e.g., C & L Enterprises, Inc. v. Citizen Band Potawatomi Tribe of Oklahoma , 532 U.S. 411 (2001) (arbitration provisions in contract amounted to clear waiver of tribal immunity). An additional commenter suggests the elimination of section 1002.34(c), which states that USERRA applies to American firms operating in a foreign country, because it “attempts to create an extraterritorial application that is not established under the statute.” To the contrary, the text set out in section 1002.34(c) is based on an unambiguous statutory provision establishing such applicability. See 38 U.S.C. 4319. Accordingly, the Department has retained this provision in the final rule. See 1002.34. Other provisions in this section address various aspects of the employment relationship subject to the Act. Section 1002.35 defines the term “successor in interest,” and section 1002.36 further addresses the issue. Section 1002.37 addresses the situation in which more than one employer may be responsible for one employee. The Department received two comments on this provision regarding multiple employers. The first commenter suggested that, as with regulations promulgated under the Family and Medical Leave Act, see, e.g. 29 CFR 825.106, the provision should allocate statutory responsibilities and liability between “primary” and “secondary” employers. Similarly, an additional commenter submitted that the statute's reemployment provisions should apply only to the “primary” employer and not the “secondary” employer. In response to these two comments, the Department again notes USERRA's broad definition of “employer” as an entity “that has control over employment opportunities.” 38 U.S.C. 4303(4). In addition, USERRA's legislative history instructs that the term “employer” is intended to be broadly construed to cover situations where more than one entity exercises control over different aspects of the employment relationship. S. Rep. No. 103-158, at 41 (1993); H.R. Rep. 103-65, Pt. I, at 21(1993), citing, e.g., Magnuson v. Peak Technical Services, Inc., 808 F.Supp. 500, 507-511 (E.D. Va. 1992) (the legal issue is whether one or more of the entities exercise requisite control over significant aspects of employment relationship so as to be deemed an “employer” under the statute). Thus, in cases in which more than one entity employs an individual, the entity's status, responsibility and liability as an employer under USERRA is assessed by determining whether the entity controls the employee's employment opportunities, not by reference to shorthand labels such as “primary employer” and “secondary employer.” Indeed, under this analytical framework, employers may share or co-determine certain aspects of the employment relationship, and in those cases there will not be a “primary” and “secondary” employer. Accordingly, the Department will retain the provision unmodified. See 1002.37. The Department received a comment from the Building and Construction Trades Department of the AFL-CIO (“BCTD”) regarding the Department of Labor's treatment of hiring halls in proposed section 1002.38, which provides that a hiring hall is an “employer” if “the hiring and job assignment functions have been delegated by an employer to the hiring hall.” The BCTD recommends that this provision be eliminated, arguing that hiring halls in the unionized construction industry represent an “arrangement” between the union and local employers to facilitate referral of available union members for work. According to the BCTD, hiring halls do not perform any hiring or assignment functions beyond referring the number and types of workers requested by the employer. The BCTD suggests that the multi-employer group using the hiring hall to obtain workers should be the “employer” rather than the hiring hall. In order to effectuate this suggestion, the BCTD proposes, in addition to eliminating section 1002.38, that the Department modify the regulatory definition of “employer” (section 1002.5(d)) to state, “In industries in which exclusive hiring halls are utilized, all employers who are required to obtain applicants through a given hiring hall arrangement, may constitute a single employer under the Act.” The Department's response to the BCTD's proposal lies again in the breadth of the statutory definition of “employer,” and in Congress's unambiguous intent that this definition be read broadly to include entities, such as hiring halls, to whom job referral responsibilities have been delegated. See S. Rep. No. 103-158, at 42 (1993); H.R. Rep. 103-65, Pt. I, at 21(1993). In addition, the BCTD's proposed amendment to the definition of employer in section 1002.5, which seeks the permanent application of a “single employer” framework to multiple hiring hall employers, is misplaced. The term “single employer” applies to firms that operate as an integrated enterprise and “exert [ ] significant control over” the employees in question. G. Heileman Brewing Co. v. NLRB, 879 F.2d 1526, 1530 (7th Cir. 1989). To determine whether firms are sufficiently integrated to constitute a single employer, courts look to (1) common management; (2) centralized control of labor relations; (3) interrelation of operations; and (4) common ownership or financial control. See Radio and Television Broadcast Technicians Local Union 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256, 85 S. Ct. 876, 13 L. Ed. 2d 789 (1965); see also Naperville Ready Mix, Inc. v. NLRB, 242 F.3d 744, 752 (7th Cir. 2001), cert. denied, 534 U.S. 1040 (2001). While one or more employers utilizing the same hiring hall may or may not operate as an integrated enterprise so that they meet the criteria of the “single employer” test, such criteria are not essential to determine whether the entity is an employer for the purposes of USERRA. Accordingly, the Department rejects the BCTD's suggestions, and will retain the provision regarding hiring halls in unchanged form. See 1002.38. Proposed section 1002.39 covers States and other political subdivisions of the United States as employers, and the Department received one comment regarding this provision. The commenter noted USERRA's specific treatment for reemployment of employees of the Federal legislative and judicial branches and, seeing no similar provision for employees of State legislative and judicial branches, asked whether USERRA's protections applied to the latter group. In response, the Department again notes USERRA's broad applicability to all employers, explicitly including the States, 38 U.S.C. 4303(4), without regard to whether the State employer is the State's judicial or legislative branch. The Department received three favorable comments in response to proposed section 1002.40, which confirms that USERRA makes it unlawful for any employer to deny employment to a prospective employee on the basis of his or her membership, application for membership, performance of service, application to perform service, or obligation for service in the uniformed services, or on the basis of his or her exercise of any right guaranteed under the Act. In addition to these favorable comments, the Department received two comments regarding the application of this principle in specific circumstances. The first commenter submits a hypothetical in which a person is on extended active duty and cannot interview for a job or be present for the job's start date because of service in the uniformed services. In the scenario presented, the job advertisement states clearly that the “most qualified” applicants must be interviewed and the selectee is desired to start work immediately upon selection. The person on active duty can do neither, but does apply for the job by mail and is among the most qualified based on the application. The employer eliminates all applicants who cannot for whatever reason appear for an interview or start work immediately upon selection. The commenter requests that the Department determine that such conduct on the part of an employer would not constitute a violation of USERRA. The second commenter suggests a scenario in which a prospective employer withdraws an offer of employment because of a person's military service or obligations, and urges the Department to state in the final rule that while such a withdrawal may constitute discrimination under USERRA, the prospective employee is not entitled to reemployment rights under section 4312 of the statute. The Department declines to include either of these hypothetical scenarios or their suggested outcomes in the final rule. Each individual case involving an issue under USERRA must be decided based on the specific facts of that case, with all the attendant and potentially influential details, together with the appropriate and applicable legal standards. In addition, the Department received three comments regarding whether employer inquiries about military service or obligations during the hiring process are permissible under USERRA. The Department concludes that it is not unlawful in itself for a prospective employer to ask an applicant about military service or obligations. Indeed, in many instances a prospective employee's military experience may enhance his or her potential value to the employer. However, if information elicited in response to such questions forms the basis of the employer's decision not to hire the applicant, or to take other adverse action against the person once hired, the inquiries may constitute evidence of unlawful discrimination. As stated earlier, temporary, part-time, probationary, and seasonal employment positions are also covered by USERRA. The Department received one comment on proposed section 1002.41, which establishes that an employer does not have reemployment obligations under USERRA if the temporary or seasonal position is for a brief, non-recurrent period and the employee has no reasonable expectation of continued employment indefinitely or for a significant period. The commenter submits that the Department should state in the final rule that in such cases, an employer need not provide employment benefits during the absence from employment due to military service. Section 4312(d)(1)(C) of USERRA clearly provides that an employer does not possess any reemployment obligations if an employee departing for military service is in a brief, non-recurrent position and has no reasonable expectation that such employment will continue indefinitely or for a significant period. However, an employee in a brief, non-recurrent position may be entitled to non-seniority benefits under certain situations. Because section 4316(b)(1)(B) requiring employers to provide non-seniority benefits to employees is not limited by an exception regarding employees occupying brief, nonrecurrent employment positions, the Department interprets the mandate of section 4316(b)(1)(B) to apply to all employees, including those in brief, nonrecurrent positions of employment. However, as discussed below in Subpart D and in section 1002.150 of this rule, the employer is obligated to provide non-seniority benefits to employees on military leave only to the extent that the employer provides such benefits to similarly situated employees on comparable non-military furlough or leave of absence. As a result, if an employer provides non-seniority benefits to similarly situated employees in brief, nonrecurrent employment positions on comparable, non-military leave, those benefits must also be provided to employees in brief, nonrecurrent employment positions on military leave. Section 1002.42 explains that USERRA covers employees on strike, layoff, or leave of absence, and section 1002.43 makes clear that persons occupying professional, executive and managerial positions also are entitled to USERRA rights and benefits. The Department received two comments on proposed section 1002.44, which addresses the distinction between an independent contractor and an employee under USERRA. This section provides that USERRA does not apply to individuals who act as independent contractors rather than as employees of an employer, and outlines six factors that must be considered in deciding whether a person is an independent contractor. One commenter suggested the Department eliminate as too limiting the word “managerial” from one of the six factors that addresses a “person's opportunity for profit or loss that depends on his or her managerial skill.” The second commenter disputed the six-factor test entirely, and stated the appropriate legal standard for determining whether a person is an employee or an independent contractor is found in Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318 (1992), a case decided under the Employee Retirement Income Security Act (ERISA). In Darden, the Supreme Court set forth a common-law-based “degree of control” test that focuses primarily on “the hiring party's right to control the manner and means by which the product is accomplished.” Id. The commenter sought the elimination of three of the six factors set out in 1002.44 as inconsistent with the common law test and because “they do not help to inform the decision.” The independent contractor provision in this rule is based on Congress's intent that USERRA's definition of “employee” be interpreted in the same expansive manner as the term is defined under the Fair Labor Standards Act (FLSA). H.R. Rep. No. 103-65, Pt. I, at 29 (1993) (citing Brock v. Mr. W. Fireworks, Inc., 814 F.2d 1042 (5th Cir.), cert. denied, 484 U.S. 924 (1987)); S. Rep. No. 103-58, at 40 (1993). In determining whether a person is a statutory employee or an independent contractor under the FLSA, the “economic reality” test is employed. See, e.g., Mr. W. Fireworks, 814 F.2d at 1043; see also Debra T. Landis, Determination of “Independent Contractor” and “Employee” Status for Purposes of the FLSA, 51 A.L.R. Fed. 702 (2005). The focal point of the test is whether the individual is economically dependent on the business to which he or she renders service or is, as a matter of economic fact, in business for him- or herself. Bartels v. Birmingham, 332 U.S. 126, 130 (1947). In applying the test, courts generally examine five or six factors. Landis, supra, section 2. No one of the factors is determinative. Rutherford Food Corp. v. McComb, 331 U.S. 722 (1947). Moreover, the factors are “simply analytical tools,” thus, “their weight, number and composition are variable.” Dole v. Snell, 875 F.2d 802, 805 n. 2 (10th Cir. 1989). In Mr. W. Fireworks, the court examined five factors to use in determining independent contractor status: “(1) The degree of control exercised by the alleged employer; (2) the extent of the relative investments of the putative employee and employer; (3) the degree to which the ‘employee's’ opportunity for profit and loss is determined by the employer; (4) the skill and initiative required in performing the job; and (5) the permanency of the relationship.” Id. (citing United States v. Silk, 331 U.S. 704 (1947)). Many courts also examine a sixth factor: Whether the service rendered is an integral part of the employer's business. See, e.g., Henderson v. Interchem Coal Co., 41 F.3d 567, 570 (10th Cir. 1994); Real v. Driscoll Strawberry Associates, Inc., 603 F.2d 748 (9th Cir. 1979). Consistent with USERRA's legislative history, the proposed section essentially restates the test used under the FLSA to determine independent contractor status. In addition, in FLSA cases, “the courts have generally indicated that the common law degree of control test is not controlling.” See Landis , supra, section 2. Indeed, even in Darden , the Supreme Court indicated that the common law test is inappropriate in FLSA cases. 503 U.S. at 326 (“While the FLSA, like ERISA, defines an ‘employee’ to include ‘any individual employed by an employer,’ it defines the verb ‘employ’ expansively to mean ‘suffer or permit to work.’ This latter definition [* * *] stretches the meaning of ‘employee’ to cover some parties who might not qualify as such under a strict application of traditional agency law principles.” (internal citations omitted)). USERRA's legislative history shows that Congress made a clear choice between the test employed under the FLSA and the degree-of-control test, and explicitly chose the former. In addition, with respect to the proposal to delete the word managerial from the second factor of the test set out in section 1002.44(b), the Department notes that most courts use that term when applying the test. See, e.g., Imars v. Contractors Manufacturing Services, Inc., 165 F.3d 27 (6th Cir. 1998). As a result, the Department will retain the test for independent contractor as set forth in section 1002.44. Coverage of Service in the Uniformed Service Sections 1002.54 through 1002.62 explain the term “service in the uniformed services,” list the various types of uniformed services, and clarify that both voluntary and involuntary duty are covered under USERRA. Section 1002.54 provides that “service in the uniformed services” includes a period for which a person is absent from a position of employment for the purpose of an examination to determine his or her fitness to perform duty in the uniformed services. Sections 1002.55 and 1002.56 provide that service under certain authorities for funeral honors duty or as a disaster-response appointee also constitute service in the uniformed services. Section 1002.57 clarifies when service in the National Guard is covered by USERRA, and section 1002.58 addresses service in the commissioned corps of the Public Health Service, a division of the Department of Health and Human Services. Section 1002.59 recognizes coverage for persons designated by the President in time of war or national emergency. Sections 1002.60, 1002.61, and 1002.62 address the coverage of a cadet or midshipman attending a service academy, and members of the Reserve Officers Training Corps, Commissioned Corps of the National Oceanic and Atmospheric Administration, Civil Air Patrol, and Coast Guard Auxiliary. The Department received one comment regarding the provision in section 1002.61, which states that training performed by members of ROTC is not considered “service in the uniformed services” under USERRA's definition of that term, except in very limited circumstances. In particular, section 1002.61 explains that, on occasion, Reserve and National Guard units will enroll enlisted unit members in a local college's ROTC program in order to train them to become officers. In such cases, the ROTC member may perform ROTC training while in a duty status with the National Guard or Reserve unit, either active duty training or inactive duty training. Under these circumstances, the ROTC duty would be considered “service in the uniformed services” for USERRA purposes, and the ROTC member would be entitled to reemployment rights following such service. 38 U.S.C. 4303(13). The commenter has requested that the Department modify section 1002.61 to establish broader USERRA protection for ROTC members. Specifically, the commenter points out that where an ROTC member has a contractual obligation to complete the ROTC course of training, he or she should have USERRA protection against discrimination. An ROTC member generally signs an agreement that specifies he or she will complete the ROTC program and accept a commission upon graduation, or serve as an enlisted member of the service if he or she fails to successfully complete ROTC training. The Department agrees with the commenter and, following consultation with the Department of Defense, has made the necessary revision by adding subsection (b) to 1002.61. The Department's consultation with the Department of Defense also resulted in technical modifications to section 1002.61(a). See section 1002.61. Absence From a Position of Employment Necessitated by Reason of Service in the Uniformed Services The Department received four comments regarding proposed section 1002.73, which addresses the issue of the employee's reason for leaving employment as it bears on his or her reemployment rights. Section 4312(a) of the Act states that “any person whose absence from a position of employment is necessitated by reason of service in the uniformed services” is entitled to the reemployment rights and benefits of USERRA, assuming the Act's eligibility requirements are met. Military service need not be the only reason the employee leaves, provided such service is at least one of the reasons. See H.R. Rep. No. 103-65, Pt. I, at 25 (1993). All four commenters expressed unease about the apparent latitude given employees in this section. The first commenter, concerned about an employee's opportunity to seek other employment during absence for military leave, suggested that the Department permit employers to evaluate whether it was reasonable that an employee's absence included a particular purpose other than the actual time engaged in service itself. Similarly, a second commenter suggested that the Department indicate in this provision that a neutral observer must be able to conclude that the absence is related to performing military service. Although the commenters did not say so explicitly, the presumed result of imposing such requirements on an employee's non-military activities would be to permit employers to deny reemployment if the employer concludes that the employee's absence included a purpose that was unreasonable or inappropriate. The effect of these suggestions would be to impose an additional requirement for reemployment eligibility based on an employee's conduct during absence from employment for military service beyond the requirements contained in the statute. Consequently, the Department will not include the proposed addition. The third commenter requests that the Department state in section 1002.73 that an employee cannot extend the USERRA-protected period of absence for non-military purposes. Because section 1002.73 clearly provides that the period of absence from employment must be necessitated by military service, there is no need for modification on this point. The final commenter on this provision requests that the Department require an employee to return to work within a prescribed period of time if the employee's mobilization orders are cancelled. The Department will not prescribe a set period of time within which an employee must report back to work following the cancellation of mobilization orders, because the facts and circumstances of each case will differ. However, in the event that a mobilization is cancelled, an employee on military leave of absence should report back to his or her employer as soon as practicable. USERRA does not impose a limit on the amount of time that may elapse between the date the employee leaves his or her position and the date he or she actually enters the service. Proposed section 1002.74 recognized that no such limit is warranted. A person entering military service generally needs a period of time to organize his or her personal affairs, travel safely to the site where the service is to be performed, and arrive fit to perform service. The amount of time needed for these preparations will vary from case to case. Moreover, the actual commencement of the period of service may be delayed for reasons beyond the employee's control. If an unusual delay occurs between the time the person leaves civilian employment and the commencement of the uniformed service, the circumstances causing the delay may be relevant to establish that the person's absence from civilian employment was “necessitated by reason of service in the uniformed services.” See Lapine v. Town of Wellesley, 304 F.3d 90, 100 (1st Cir. 2002). The Department received two comments suggesting this provision could be subject to abuse. One commenter suggested that the Department should restrict the time off to prepare for military service solely to travel or to a prescribed time period. The second commenter requested that the Department state that USERRA permits time off from employment to put one's affairs in order only immediately and seamlessly before the military service itself and not on an intermittent or periodic basis during the weeks prior to military service. The final commenter was more concerned that employees facing an extended period of military service are ensured an adequate period of time to prepare for service, so requested that the rule provide that an employee is entitled to a minimum of one week off from employment prior to service. The Department is averse to placing in this provision the limitations or specific time frames suggested by these commenters. The amount of time that an employee may need to prepare for military service will vary, and will depend on the facts of each case. In addition, employees may need intermittent time off from work prior to military service for brief but repeated periods to put their affairs in order, and such periods may be necessary to, for example, interview child care providers, go to meetings with bank officers regarding financial matters, or seek assistance for elderly parents. Although the Department is disinclined to include the commenter's limitations in section 1002.74, the Department has revised the text of the provision to reflect that the duration of the military service, the amount of notice supplied to an employee called to military service, and the location of the service are all factors that influence the amount of time an employee may need in order to rest and/or put his or her affairs in order. Requirement of Advance Notice Section 1002.85 explains one of the basic obligations imposed on the service member by USERRA as a prerequisite to reemployment rights: the requirement to notify the employer in advance about impending military service. 38 U.S.C. 4312(a)(1). Section 4312(a)(1) of USERRA contains three general components of adequate notice: (i) The sender of the notice; (ii) the type of notice; and (iii) the timing of notice. First, the employee must notify his or her employer that the employee will be absent from the employment position due to service in the uniformed services. An “appropriate officer” from the employee's service branch, rather than the employee, may also provide the notice to the employer on behalf of the employee. Second, the notice may be either verbal or in writing. See 38 U.S.C. 4303(8) (defining “notice” to include both written and verbal notification) and 38 U.S.C. 4312(a)(1). Although written notice by the employee provides evidence that can help establish the fact that notice was given, the sufficiency of verbal notice recognizes the “informality and current practice of many employment relationships[.]” S. Rep. No. 103-158, at 47 (1993). The act of notification is therefore more important than its particular form. Third, the notice should be given in advance of the employee's departure. USERRA does not establish any bright-line rule for the timeliness of advance notice, i.e., a minimum amount of time before departure by which the employee must inform the employer of his or her forthcoming service. Instead, timeliness of notice must be determined by the facts in any particular case, although the employee should make every effort to give notice of impending military service as far in advance as is reasonable under the circumstances. See H.R. Rep. No. 103-65, Pt. 1, at 26 (1993). The Department received several comments concerning the general requirement of notice. One commenter suggested the regulations address situations in which an employee is employed by more than one employer, for instance, in cases in which an employee is referred by a hiring hall to various employers in a common industry, or cases in which an employment agency assigns an employee to a particular job site. The commenter suggests that the rule provide that where an employee is employed by one or more employers, the employee must provide the required notice to each employer. The Department agrees with the submission, and has modified section 1002.85 accordingly. See section 1002.85(a). Four commenters requested the regulations adopt a general requirement that notice be given 30 days in advance of impending service. Another commenter requested the Department employ stronger language with respect to an employee's obligation to give timely notice, suggesting the final rule state the employee should “make every effort” to give advance notice “as promptly as possible.” The Department does not intend that these regulations impose any new requirements, either explicit or implied, upon the exercise of the rights granted to protected persons by the statute. Therefore, the Department did not adopt these suggestions concerning the timeliness of notice. However, the Department has revised Section 1002.85 to note that the Department of Defense, in their USERRA regulations, “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.” See 32 CFR 104.6(a)(2)(i)(B). While this provision does not establish an inflexible 30-day requirement for the provision of advance notice, it does serve to demonstrate that the Department of Defense expects that service members exercise care when providing notice to their employers of impending service in the uniformed services. The Department received seven comments related to the provision in section 1002.85 that advance notice may be either written or verbal. One commenter requested the final rule contain a “recommendation” that notice be in writing. Another commenter requested the regulation provide that an employee use the employer's established procedure for requesting other types of leave ( i.e. , written), except in cases where written notice is precluded pursuant to USERRA. Five commenters requested the final rule require the employee to provide, either before or shortly after the commencement of the uniformed service, some form of documentation, either a written notice or a copy of military orders or similar documentation of the service. As noted above, both the statutory language and the legislative history make clear Congress's intent that advance notice may be either verbal or written. However, the Department again notes that the Department of Defense regulations under USERRA provide guidance to service members that “strongly recommends” that advance notice be given in writing, while acknowledging that verbal notice is sufficient. See 32 CFR 104.6(a)(2)(i)(B). The Department of Defense regulations also make clear that the military services must consider and, where military requirements permit, accommodate legitimate concerns of civilian employers concerning the military service or obligations of their employees. See 32 CFR 104.4(c) and (d); 104.5(b)(6); and 104.6(n), (o). Section 1002.86 implements the statutory exceptions to the requirement of advance notice of entry into the uniformed services. The statute recognizes that in rare cases it may be very difficult or impossible for an employee to give advance notice to his or her employer. To accommodate these cases, the advance notice requirement may be excused by reason of “military necessity” or circumstances that make notice to the employer “otherwise impossible or unreasonable.” 38 U.S.C. 4312(b). Section 4312(b) also provides that the uniformed services make the determination whether military necessity excuses an individual from notifying his or her employer about forthcoming military service. Any such determination is to be made according to regulations issued by the Secretary of Defense. See 32 CFR part 104. Finally, section 4312(b) states that the “military necessity” determination is not subject to judicial review. The same finality and exemption from review, however, do not apply if the employee fails to provide notice to his or her employer because the particular circumstances allegedly make notification “impossible or unreasonable.” Whether the circumstances of the case support the employee's failure to provide advance notice of service are questions to be decided by the appropriate fact-finder. See S. Rep. No. 103-158, at 47 (1993). One commenter requested the Department note in section 1002.86 that situations in which the provision of advance notice is precluded because it is “impossible or unreasonable” will be rare, especially in light of the access to telephones, e-mail and other readily available sources by which contact with an employer may be made. The commenter also requested the section provide that in such rare cases, the employee must give the employer notice at the employee's earliest opportunity. The Department views the current language in subsection 1002.86(b) as sufficient to address the notice requirement in “impossible or unreasonable” circumstances, and therefore has not adopted the commenter's suggested revision. Proposed section 1002.87 makes explicit that the employee is not required to obtain the employer's permission before departing for uniformed service in order to protect his or her reemployment rights. Imposing a prior consent requirement would improperly grant the employer veto authority over the employee's ability to perform service in the uniformed services by forcing the employee to choose between service and potential loss of his or her employment position, if consent were withheld. Section 1002.88 implements the long-standing legal principle that an employee departing for service is not required to decide at that time whether he or she intends to return to the pre-service employer upon completion of the tour of duty. Rather, the employee may defer the decision until after he or she concludes the period of service, and the employer may not press the employee for any assurances about his or her plans. See H.R. Rep. No. 103-65, Pt. I, at 26 (1993) (“One of the basic purposes of the reemployment statute is to maintain the service member's civilian job as an ‘unburned' bridge.”) and S. Rep. No. 103-158, at 47 (1993), both of which cite Fishgold v. Sullivan Drydock and Repair Corp., 328 U.S. 275, 284 (1946). Section 1002.88 also provides that an employee cannot waive the right to reemployment by informing the employer that he or she does not intend to seek reemployment following the service. This general principle that an employee cannot waive USERRA's right to reemployment until it has matured, i.e. , until the period of service is completed, is reiterated in the discussion of USERRA's “Furlough and Leave of Absence” provisions. See section 1002.152. The Department received three comments regarding section 1002.88, all of which contested the Department's conclusion that a person cannot waive the right to reemployment by notifying the employer prior to or during the period of military service that he or she does not intend to seek reemployment upon completion of the service. Commenters included the Equal Employment Advisory Council, the U.S. Chamber of Commerce, and a law firm. The Department's conclusion is based on both the USERRA's broad prohibition against waivers of statutory rights, and the statute's legislative history on this point. Section 4302(b) of USERRA states that the statute supersedes “any * * * contract, agreement, policy, plan, practice, or other matter that reduces, limits, or eliminates in any manner any right or benefit provided by [the Act].” 38 U.S.C. 4302(b). This provision against waivers has been interpreted expansively; for instance, it includes a prohibition against the waiver in an arbitration agreement of an employee's right to bring a USERRA suit in Federal court. See, e.g., Garrett v. Circuit City Stores, Inc., 338 F.Supp.2d 717, 721-22 (N.D.Tex. 2004). USERRA's legislative history underscores that this provision is intended to prohibit “employer practices and agreements, which provide fewer rights or otherwise limit rights provided under amended chapter 43 or put additional conditions on those rights * * *.” H. Rep. No. 103-65, Pt. I, at 20 (1993). This provision, coupled with the mandate to courts to liberally construe USERRA to the benefit of the service member, supports the Department's determination regarding waivers of reemployment rights made before or during service. However, in light of the comments received on this point, the Department has revised section 1002.88 to clarify that a person cannot waive his or her reemployment rights prior to or during a period of service in the uniformed services. See section 1002.88. Period of Service USERRA provides that an individual may serve up to five years in the uniformed services, in a single period of service or in cumulative periods totaling five years, and retain the right to reemployment by his or her pre-service employer. 38 U.S.C. 4312(c). Sections 1002.99 through 1002.104 implement this statutory provision. The Department received one comment on Section 1002.99, which implements the basic five-year period established by the statute, requesting that the five-year period be reduced to two years. Because the time period is established by statute, the Department has rejected the suggestion. See section 1002.99. Section 1002.100 provides that the five-year period includes only actual uniformed service time. Periods of time preceding or following actual service are not included even if those periods may involve absences from the employment position for reasons that are service-related, for example, travel time to and from the duty station, time to prepare personal affairs before entering the service, delays in activation, etc. The Department received one comment regarding this provision, indicating that employers may have difficulty in ascertaining which part of the absence from employment is attributable to actual time in the uniformed service, and which part of the absence was service-related. As a result, the commenter suggests that employers either be allowed to assess an employee's entire absence from employment for the purposes of the five-year limit or, alternatively, be permitted to request documentation from an employee that will demonstrate the precise length of the actual military service. Because the text of the provision comports with the statute and its legislative history, the Department declines the suggestion to amend the text of the rule. However, in response to the stated concerns, the Department advises employers that the Secretaries of the Military Departments and the Commandant of the Coast Guard are expected to provide assistance to civilian employers of employees covered by USERRA, 32 CFR 104.5(b)(6). Such assistance may include support to employers to ascertain which part of the absence from employment constituted service in the uniformed services. 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 respect to that employer; this period starts anew with each new employer. The regulation derives from section 4312(c)'s language tying the five-year period “to the employer relationship for which a person seeks reemployment[.]” 38 U.S.C. 4312(c). One commenter requested guidance on applying the five-year limit to cases in which an employee is employed by more than one employer. The Department has revised section 1002.101 to reflect that if an employee is employed by more than one employer, a separate five-year period runs as to each employer independently, even if those employers share or co-determine the employee's terms and conditions of employment. See section 1002.101. Section 1002.102 addresses periods of service undertaken prior to the enactment of USERRA, when the Veterans' Reemployment Rights Act (VRRA) was in effect. If an individual's service time counted towards the VRRA's four or five-year periods for reemployment rights, then that service also counts towards USERRA's five-year period. The regulation implements section (a)(3) of the rules governing the transition from the VRRA to USERRA, which appear in a note following 38 U.S.C. 4301. The Department invited comments as to whether its interpretation in proposed section 1002.102 best effectuates the purpose of the Act, and received one comment in response. The commenter indicated that in reply to the question posed in section 1002.102 regarding whether the five-year service limit includes periods of service that the employee performed before USERRA was enacted, the Department should not provide an unqualified “yes,” but instead should indicate that “it depends” on whether the individual's service time counted towards the VRRA's four or five-year periods for reemployment rights. The Department agrees, and has made the change to the text of this provision. See 1002.102. Section 4312(c) enumerates eight specific exceptions to the five-year limit on uniformed service that allow an individual to serve longer than five years while working for a single employer and retain reemployment rights under USERRA. 38 U.S.C. 4312(c)(1)-(4)(A)-(E). The exceptions involve unusual service requirements, circumstances beyond the individual's control, or service (voluntary or involuntary) under orders issued pursuant to specific statutory authority or the authority of the President, Congress or a Service Secretary. Section 1002.103 implements this provision by describing each exception set out in the statute. The regulation also recognizes a ninth exception based on equitable considerations. A service member is expected to mitigate economic damages suffered as a consequence of an employer's violation of the Act. See Graham v. Hall-McMillen Co., Inc., 925 F. Supp. 437, 446 (N.D. Miss. 1996). If an individual remains in (or returns to) the service in order to mitigate economic losses caused by an employer's unlawful refusal to reemploy that person, the additional service is not counted against the five-year limit. The Department sought comment on whether an exception to the five-year limit based on the service member's mitigation of economic loss furthers the purposes of the statute, and received four comments in support of the provision. Section 1002.104 implements section 4312(h), which prohibits the denial of reemployment rights based on the “timing, frequency, and duration” of the individual's training or service, as well as the nature of that service or training. 38 U.S.C. 4312(h). A service member's reemployment rights must be recognized as long as the individual has complied with the eligibility requirements specified in the Act. Id. The legislative history of section 4312(h) makes clear the Congress' intent to codify the holding of the United States Supreme Court in King v. St. Vincent's Hospital, 502 U.S. 215 (1991). See H.R. Rep. No. 103-65, Pt. I, at 30 (1993); S. Rep. No. 103-158, at 52 (1993). In King, the court held that no service limit based on a standard of reasonableness could be implied from the predecessor version of USERRA. Section 4312(h). Section 1002.104 therefore prohibits applying a “reasonableness” standard in determining whether the timing, frequency, or duration of the employee's service should prejudice his or her reemployment rights. Consistent with views expressed in the House report, Section 1002.104 counsels an employer to contact the appropriate military authority to discuss its concerns over the timing, frequency, and duration of an employee's military service. The Department received two comments regarding this provision. One commenter suggests that section 1002.104 state that employer contacts with a military authority to discuss concerns regarding timing, frequency, and duration of an employee's military service should not be considered as evidence of discrimination in violation of section 4311 of USERRA. The Department declines the opportunity to make such a categorical statement in the final rule that would apply in all circumstances. However, the Department notes that good faith contacts with the military to express legitimate concerns about timing, frequency, and duration of an employee's military service do not evidence a discriminatory motive. The second comment regarding section 1002.104 involves the provision stating that “military authorities are required to consider requests from employers of National Guard and Reserve members to adjust scheduled absences from civilian employment to perform service.” The commenter asks whether this statement subjects the military authority to suit under the Administrative Procedures Act (APA) in cases in which it may be alleged that the military authority's response to such requests is arbitrary and capricious. The Department views this inquiry as raising an issue beyond the scope of these regulations. However, the Department notes that this requirement is established by Department of Defense regulations. See 32 CFR 104.6(o). Application for Reemployment In order to protect reemployment rights under USERRA, the returning service member must make a timely return to, or application for reinstatement in, his or her employment position after completing the tour of duty. 38 U.S.C. 4312(a)(3). Sections 4312(e) and (f) establish the required steps of the reinstatement process. 38 U.S.C. 4312(e), (f). Section 4312(e) of USERRA establishes varying time periods for requesting reinstatement, and section 1002.115 explains that the three statutory time periods for making a request for reinstatement are dependent on the length of the period of military service, except in the case of an employee's absence for an examination to determine fitness to perform service. The Department received three general comments with regard to the time periods set out in section 1002.115. Two commenters suggest that the Department indicate that employees and employers may lawfully agree to extend the time periods for making a request for reinstatement. Section 4302(a) of USERRA states that “[n]othing in this chapter shall supersede, nullify or diminish any * * * contract, agreement, policy, plan, practice, or other matter that establishes a right or benefit that is more beneficial to, or is in addition to, a right or benefit provided” under USERRA. The Department concludes that this statutory provision permits the types of agreements to which the commenters refer, and finds it unnecessary to add such a provision to the final rule. A final general comment suggests that the Department indicate that an employee's separate but proximate periods of service be accumulated into one period for the purposes of determining the time period within which to apply for reemployment. The Department disagrees with the approach offered by the commenter. Under USERRA, an employee may not add together service days from separate but proximate periods of military service to create a longer period within which to apply for reemployment with the employer. Similarly, if an additional period of military service intervenes in the statutory period within which to apply for reemployment with the employer, an employee may not bank any remaining days from that period and add them on to the subsequent period within which to report back to or apply for reemployment with the employer. Section 1002.115 also specifies the actions that must be taken by the employee. Section 4312(e)(1)(A)(i) of USERRA provides that the employee reporting back to the employer following a period of service of less than 31 days must report: (i) 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 the safe transportation of the person from the place of that service to the person's residence * * * 38 U.S.C. 4312(e)(1)(A)(i). The Department interprets this provision as requiring the employee to report at the beginning of the first full shift on the first full day following the completion of service, provided the employee has a period of eight hours to rest following safe transportation to the person's residence. See H.R. Rep. No. 103-65, Pt. I, at 29 (1993). If it is impossible or unreasonable for the employee to report within this time period, he or she must report to the employer as soon as possible after the expiration of the eight-hour period. The Department invited comment as to whether the interpretations in section 1002.115(a) best effectuate the statute, and received four comments in response. Two commenters asserted that the statute requires that an employee report back to the employer “by the beginning of the first full shift on the first calendar day that falls after the eight hour rest period ends.” One commenter requested that this provision be re-drafted to improve its clarity, and one commenter requested that the Department extend the 8-hour period of rest because it is too brief. After reviewing these comments, and the arguments in support of a modification to this provision, the Department views section 1002.115(a), which requires an employee to report back to the employer no 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, provided the employee has an 8-hour rest period, as a proper and accurate interpretation of section 4312(e)(1)(A)(i). Neither the statute nor the legislative history suggests that an employee must report back on the first full shift on the day following the day that includes the period of rest. Nor can the Department extend that period of rest beyond eight hours, as is called for in the statute. An additional commenter sought guidance on the application of section 1002.115(a) to a case in which an employee is subject to rotating shifts. This rule is not intended as an opportunity to resolve issues arising under individual facts and circumstances. However, the Department views the text of section 1002.115(a), which requires an employee to report back “at the beginning of the first full regularly-scheduled work period on the first full calendar day following the completion of the period of service,” as capable of resolving the inquiry. Under this provision, an employee need not report back until the beginning of the first full regularly scheduled work period, whether the shift is conventional or rotating. Two final commenters on this provision asked the Department to clarify the application of USERRA's rules covering reporting back to work following periods of service for less than 31 days in light of a recent case from a Federal appeals court, Gordon v. WAWA, Inc., 388 F.3d 78 (3rd Cir. 2004). In Gordon, an employee returning from weekend duty with the Army Reserve stopped by his workplace to collect his paycheck and was allegedly ordered by the employer to return to work before he had an opportunity to return home and rest. The employer allegedly threatened Gordon with termination if he did not work the upcoming shift. The employee apparently did not insist on his rest period, and worked the upcoming (midnight) shift. He was not denied reemployment. After working his shift, the employee suffered a fatal automobile accident while driving home. The court reviewed USERRA's legislative history, which demonstrates Congressional intent that service members reporting back to their civilian employment “be allowed sufficient time to return to their residence and be rested before they are to perform their work.” 388 F.3d at 83, citing S. Rep. No. 103-158, at 50 (1993). However, the court held that the time periods provided by USERRA in which a returning service member must notify the pre-service employer of his or her intent to return to work are obligations the service member must meet to reclaim the pre-service job, not rights that can be enforced under USERRA in cases where, as here, the person was in fact reemployed. As a result, the court held that the statute's reporting-back requirement, 38 U.S.C. 4312(e)(1), “does not confer a right to rest” to a returning service member. Although Gordon did not interpret USERRA to provide relief to an employee allegedly injured by the employer's denial of the eight-hour rest period, the Department's view is that the case does not interfere with the eight-hour, 14-day, and 90-day rest/notification periods allowed under USERRA. The facts in Gordon were unusual; the employer reportedly threatened the employee with termination if he did not work the upcoming shift, but the employee apparently did not insist on his rest period, and was not denied reemployment. Consequently, the employee was not denied his USERRA right to be reemployed. Gordon also does not change the procedure that a service member must follow to be entitled to reemployment rights. An employee must report to the employer or apply for reemployment within the specified time periods to be eligible for reemployment. If the employee is required by the employer to report to work, or apply for reemployment, earlier than is provided by USERRA, the employee should seek assistance from VETS or seek relief in the courts to prevent the employer from enforcing such a policy. A service member may not be required by an employer to forego any portion of the applicable eight-hour, 14-day, or 90-day rest/notification period as a condition of reemployment. Section 1002.115(b) and (c) set out the other time periods in which an employee must report back to an employer. If the individual served between 31 and 180 days, he or she must make an oral or written request for reemployment no more than 14 days after completing service. If it is impossible or unreasonable for the employee to apply within 14 days through no fault of the employee, he or she must submit the application not later than the “next full calendar day after it becomes possible to do so.” The Department indicated in the proposed rule that it understands the term “next” in the clause “next first full calendar day” in section 4312(e)(1)(C) to be superfluous, and received one comment agreeing with the position. Finally, if the individual served more than 180 days, he or she must make an oral or written request for reemployment no more than 90 days after completing service. Section 1002.116 addresses the situation in which a service member is unable to meet the foregoing timeframes due to the individual's hospitalization for or convalescence from a service-related illness or injury. Such a person must comply with the notification procedures determined by the length of service, after the time period required for the person's recovery. The recovery period may not exceed two years unless circumstances beyond the individual's control make notification within the required two-year period impossible or unreasonable. The Department received two requests for guidance on section 1002.116 from one commenter. The commenter would like to know whether the two-year period begins on the date of military discharge, on the date the recovery period ends, or on the date the employee returns to work, and how to apply the rule in a situation in which the returning service member has already reported to the employer and a service-related medical condition arises requiring absence from work. As to the first issue, section 4312(e)(2)(A) of the statute states that a “person who is hospitalized for, or convalescing from, an illness or injury incurred in, or aggravated during, the performance of service in the uniformed services shall, at the end of the period that is necessary for the person to recover from such illness or injury, report to the person's employer * * * or submit an application for reemployment with such employer * * * [and] such period of recovery may not exceed two years.” The Department concludes, based on this provision of USERRA, that the two-year recuperation period begins on the date of completion of the service. This represents a change from USERRA's predecessor law, under which an employee with a service-related injury or illness could seek reemployment within 90 days of the conclusion of a period of hospitalization of not more than one year (a maximum of one year plus 90 days). USERRA's enactment extended the period for recuperation and recovery from one year to two years, but did not allow any additional time for application or reporting back after the end of the recuperation period. USERRA's legislative history supports this reading by indicating that if time were needed for recuperation and recovery, the time for application or reporting back would be extended “by up to two years.” See, e.g., S. Rep. No. 103-158, at 51 (1993) (USERRA “provides for extending reemployment reporting or application dates for up to two years.”); H.R. Rep. No. 103-65, Pt. I, at 29 (1993) (USERRA extends the reporting deadlines “by up to two years.”). As a result, unless extended to accommodate circumstances beyond the control of the employee that make reporting within such period impossible or unreasonable, the entire period between the date of completion of service and the date of reporting to work or applying for reemployment can be no greater than two years, and there is no longer an additional extension of 14 or 90 days for applying for reemployment at the end of the recuperation period. However, because the recuperation period is coextensive with the 14- or 90-day application period under USERRA, the service member is entitled to whichever period is longer, but not both. The second request for guidance on section 1002.116 asks whether the provision of section 1002.116 applies in a situation in which the returning service member has already reported to the employer and a service-related medical condition arises, necessitating absence from work. The Department concludes that the extension of time for recuperation and recovery applies only to the period in which the employee has to report back or apply for reemployment, and does not apply after the person is reemployed. Although this conclusion does not provide for cases in which service-related injuries or illnesses, such as post-traumatic stress disorder or exposure to battlefield toxins, become apparent only following reemployment, it is nevertheless consistent with the unambiguous statutory language on this issue. The Department has revised section 1002.116 to reflect this position. Section 1002.117 covers the situation where the employee fails to report or to submit a timely application for reemployment. Such failure does not automatically divest the individual of his or her statutory reemployment rights. See 38 U.S.C. 4312(e)(3). However, the employer may subject the employee to the workplace rules, policies and practices that ordinarily apply to an employee's unexcused absence from work. Sections 1002.118 through 1002.123 establish procedures for notifying the employer that the service member intends to return to work. These sections also address the requirement that the returning service member provide documentation to the employer in certain instances. The documentation provides evidence that the service member meets three of the basic requirements for reemployment: Timely application for reinstatement, permissible duration of service, and appropriate type of service discharge. USERRA expressly provides that the Secretary may prescribe, by regulation, the documentation necessary to demonstrate that a service member applying for employment or reemployment meets these requirements. The Department received two comments on section 1002.119 of the proposed rule, which indicates to whom an employee must submit an application for reemployment. The first commenter suggests that the Department incorporate in this provision a statement that an employee is “encouraged, but not required, to notify [the employee's] human resources officer and * * * supervisors as soon as practicable.” The second commenter suggests that the provision include a statement that if a pre-service employer “has an established channel for receiving employment or reemployment applications, [an employee] should follow that channel.” The Department views both suggestions as ones that can be construed as imposing on service members obligations not set forth in the statute and, as a result, declines the proposals. The Department received two comments on proposed section 1002.120, which, as originally drafted, provided unconditionally that the service member does not forfeit reemployment rights with one employer by working for another employer after completing his or her military service, as long as the service member complies with USERRA's reinstatement procedures. The commenters suggested either deletion of the provision entirely, or the placement of some limitations on the right to seek alternative employment during the application period. One commenter suggests that such limitations are required in cases in which such alternative employment may violate the pre-service employer's workplace policies, such as employment with a competitor of the pre-service employer that violates an employer's policy against non-competition, or employment that presents a conflict of interest for the employee. The Department agrees with the comments, and has modified this provision accordingly. Section 1002.120 now reflects that a service member's alternative employment during the application period must not violate the pre-service employer's employment policy to such a degree that it constitutes just cause for discipline or termination by the pre-service employer. The Department views this new language as striking an appropriate balance between protecting the proprietary interests of pre-service employers and providing flexibility for employees to explore other post-service employment opportunities. In addition, the modification comports with USERRA's provision protecting reemployed service members from discharge for a certain period following reemployment, except for “cause.” 38 U.S.C. 4316(c). Section 4312(f) of USERRA describes the documentary evidence that the service member must submit to the employer in order to establish that the service member meets the statutory requirements for reinstatement, and the rule implements these documentation requirements at 1002.121 to .123. Section 1002.121 establishes that an individual applying for reemployment who served more than 30 days in military service must provide certain documentation upon the employer's request. The documentation must establish that the individual's application is timely; he or she has not exceeded the five-year service limitation; and the type of separation from service does not disqualify the individual from reemployment. Section 1002.122 provides that an employer is required to reemploy a service member even if documentation establishing the service member's reemployment eligibility does not exist or is not readily available. The Department received five comments on sections 1002.121 and 1002.122, each of which addresses a different aspect of the provisions. One comment urged the Department to include language in section 1002.122 imposing an affirmative obligation on the employee to make a “reasonable effort” to secure the documentation, and assist the employer in obtaining such documentation. Section 4312(f)(1) of USERRA states that an employee applying for reinstatement “ shall provide to the person's employer” the requested documentation (emphasis supplied). Section 1002.121 follows the directive of the statute and similarly states that the employee “must” provide the documentation. The Department concludes that adding the “reasonable effort” language to the rule is redundant, and arguably diminishes the mandatory directive of the statute. Furthermore, Department of Defense regulations under USERRA obligate the military services to provide documentation upon request by the service member “that may be used to satisfy the Service member's entitlement to statutory reemployment rights and benefits.” 32 CFR 104.6(l). The service branch is therefore ultimately obligated to provide the documentation that the employee requires in order to satisfy his or her own obligation to the employer. The Department concludes that a service member seeking reemployment will realistically make every effort to obtain the documentation or assist the employer in doing so. However, in difficult cases, the military services can assist employers. Two comments regarding these provisions were very similar in their suggested solutions to the situation in which documentation is unavailable in a timely fashion. One comment suggested specific time frames for the employee to provide the documentation, and both suggested sanctions for failing to do so in a timely manner. The suggestions included a three-step proposal that should apply to an employee who is unable to produce documentation at the time he or she applies for reemployment: First, the employer may require the employee to execute an affidavit confirming the dates of service, and the employer may terminate the employee if the information is later proven incorrect; second, if the employee does not provide requested documentation within a specific period (28 business days is suggested), the employer may place him or her on unpaid leave; and third, if the employee does not provide the documentation after a specific period of unpaid leave (28 days is again suggested), the employer may terminate him or her. The Department concludes that the proposed change is inconsistent with the statute and USERRA's general policy of eliminating obstacles to prompt reemployment. Both section 1002.122 and the legislative history of USERRA's section 4312(f) clearly establish that the employer may not deny or delay reemployment if the requested documentation is nonexistent or not “readily available.” H.R. Rep. No. 103-65, Pt. I, at 29-30 (1993); S. Rep. No. 103-158, at 51 (1993). Requiring an affidavit in lieu of documentation at the time of reemployment places an additional condition on reemployment beyond the general obligation to obtain the documentation. Furthermore, both sections 4312(f)(3)(A) and 1002.122 permit an employer to terminate an employee only if the documentation ultimately proves the employee was not eligible for reemployment. Terminating the employee for failure to provide the documentation after a prescribed period is inconsistent with the statute. The fourth comment suggests that 1002.122 be modified to state that an employer may terminate an employee following reemployment if documentation received after reemployment indicates that the employee was not entitled to reemployment, “unless the employer's policy, plan, or practice provides otherwise under the circumstances.” The Department views the provision permitting an employer to terminate an employee if documentation fails to support the employee's entitlement to reemployment as permissive and not a mandatory directive. The proposed addition neither enhances nor circumscribes the employer's discretion on this subject, and is therefore unnecessary. The final comment with respect to these provisions urged the Department to require the employee to provide the documentation within a reasonable time. The Department concludes that adoption of this option imposes an additional obligation on the employee not contemplated by the statute, particularly in those cases in which delays in obtaining documentation following return from service may be caused by the military unit and not by the employee. After considering all the comments on these provisions, the Department has concluded that it will retain them in unchanged form. See sections 1002.121 and 1002.122. Character of Service USERRA makes entitlement to reemployment benefits dependent on the characterization of an individual's separation from the uniformed service, or “character of service.” 38 U.S.C. 4304. The general requirement is that the individual's service separation be under other than dishonorable conditions. Section 1002.135 lists four grounds for terminating the individual's reemployment rights based on character of service: (i) Dishonorable or bad conduct discharge; (ii) “other than honorable” discharge as characterized by the regulations of the appropriate service Secretary; (iii) dismissal of a commissioned officer by general court-martial or Presidential order during a war (10 U.S.C. 1161(a)); and, (iv) removal of a commissioned officer from the rolls because of unauthorized absence from duty or imprisonment by a civil authority (10 U.S.C. 1161(b)). 38 U.S.C. 4304(1)-(4). The uniformed services determine the individual's character of service, which is referenced on Defense Department Form 214. See section 1002.136. For USERRA purposes, Reservists who do not receive character of service certificates are considered honorably separated; many short-term tours of duty do not result in an official separation or the issuance of a Form 214. Sections 1002.137 and 1002.138 address the consequences of a subsequent upgrading of an individual's disqualifying discharge. Upgrades may be either retroactive or prospective in effect. An upgrade with retroactive effect may reinstate the individual's reemployment rights provided he or she otherwise meets the Act's eligibility criteria, including having made timely application for reinstatement. However, a retroactive upgrade does not restore entitlement to the back pay and benefits attributable to the time period between the individual's discharge and the upgrade. The Department received two comments regarding the character-of-service provisions. The meaning of the first comment was difficult to discern, but appeared to be related to an obligation an employer might have to pay back-wages to an employee who receives a retroactive upgrade in the characterization of his or her service. Section 1002.137 expressly provides that in such a case an employer is not required to pay back-wages for the period from the date of completion of service to the date of the retroactive upgrade. The final commenter requests that in the event a service member otherwise eligible for reemployment receives an upgrade to the characterization of his or her service months or even years later, the employer should enjoy some flexibility in its obligation to reemploy. Because a person who receives a retroactive upgrade and meets all other eligibility requirements is eligible for reemployment, there is no basis for providing flexibility regarding an employer's obligation to reemploy. However, such employers may rely on the undue hardship or changed circumstances defenses, if applicable. After considering all the comments on the character-of-service provisions, the Department will retain them as originally proposed. See sections 1002.137 and 1002.138. Employer Statutory Defenses USERRA provides three statutory defenses that an employer may assert against a claim for USERRA benefits. The employer bears the burden of proving any of these defenses. 38 U.S.C. 4312(d)(2)(A)-(C). An employer is not required to reemploy a returning service member if the employer's circumstances have so changed as to make such reemployment impossible or unreasonable. 38 U.S.C. 4312(d)(1)(A). In view of USERRA's remedial purposes, this exception must be narrowly construed. The employer bears the burden of proving that changed circumstances make it impossible or unreasonable to reemploy the returning veteran. 38 U.S.C. 4312(d)(2)(A); proposed section 1002.139. The change must be in the pre-service employer's circumstances, as distinguished from the circumstances of its employees. For example, the defense of changed circumstances is available where reemployment would require the creation of a “useless job or mandate reinstatement where there has been a reduction in the workforce that reasonably would have included the veteran.” H.R. Rep. No. 103-65, Pt. I, at 25 (1993), citing Watkins Motor Lines v. De Galliford , 167 F.2d 274, 275 (5th Cir. 1948); Davis v. Halifax County School System , 508 F. Supp. 966, 969 (E.D. N.C. 1981). However, an employer cannot establish that it is unreasonable or impossible to reinstate the returning service member solely by showing that no opening exists at the time of the reemployment application or that another person was hired to fill the position vacated by the veteran, even if reemploying the service member would require terminating the employment of the replacement employee. See Davis at 968; see also Cole v. Swint , 961 F.2d 58, 60 (5th Cir. 1992); Fitz v. Bd. of Education of Port Huron Area Schools , 662 F. Supp. 1011, 1015 (E.D. Mich. 1985), aff'd, 802 F.2d 457 (6th Cir. 1986); Anthony v. Basic American Foods, Inc. , 600 F. Supp. 352, 357 (N.D. Cal. 1984); Goggin v. Lincoln St. Louis , 702 F.2d 698, 704 (8th Cir. 1983). Id. An employer is also not required to reemploy a returning service member if such reemployment would impose an undue hardship on the employer. 38 U.S.C. 4312(d)(1)(B). As explained in USERRA's legislative history, this defense only applies where a person is not qualified for a position due to disability or other bona fide reason, after reasonable efforts have been made by the employer to help the person become qualified. H.R. Rep. No. 103-65, Pt. I, at 25 (1993). USERRA defines “undue hardship” as actions taken by the employer requiring significant difficulty or expense when considered in light of the factors set out in 38 U.S.C. 4303(15). USERRA defines “reasonable efforts” as “actions, including training provided by an employer, that do not place an undue hardship on the employer.” 38 U.S.C. 4303(10). USERRA defines “qualified” in this context to mean having the ability to perform the essential tasks of the position. 38 U.S.C. 4303(9). These definitions are set forth in sections 1002.5(n) (“undue hardship”), 1002.5(i) (“reasonable efforts”), and 1002.5(h) (“qualified”). The third statutory defense against reemployment requires the employer to establish that “the employment from which the pers [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A05-23961. Public record. Not legal advice.