The 2008 Veterans’ Benefits Improvement Act, signed into law in October, enhances veterans’ compensation and pensions, and housing and insurance benefits. It also extends protections of veterans’ and military reservists’ employment rights under the Uniformed Services Employment and Re-employment Rights Act (USERRA).
USERRA prohibits discrimination against anyone serving in the armed forces or taking military leave from a civilian job. This includes discrimination in hiring, promotion, re-employment or any other benefit of employment.
The new law clarifies that there is no limit on the period for filing a complaint under USERRA. It also requires agencies responsible for handling USERRA complaints to comply with a new set of deadlines, where previously they had none, to ensure claims don’t pile up as they have in the past. With more than 300 claims from vets and reservists in both federal and private-sector jobs currently backlogged at the Labor Department, this reform is a welcome one.
A service member who believes he or she has been discriminated against under USERRA may file a complaint with the Labor Department’s Veterans’ Employment and Training Service (VETS). VETS will investigate the complaint, determine whether it has merit, and attempt to resolve meritorious complaints. Under the new regulations, VETS is required to complete its investigations and notify the claimant of its findings within 90 days of receiving the complaint.
If VETS can’t resolve the complaint, the complainant has the right to have the agency forward his or her complaint to the Office of Special Counsel (OSC) or the Justice Department. The new law requires that VETS refer the complaint within 60 days of the complainant’s request. OSC or Justice then has 60 days to determine whether to provide legal representation to the employee and to notify the employee of its decision. If the complainant is denied representation, he can appeal to the Merit Systems Protection Board (MSPB) with the assistance of a privately retained attorney. Service members also have the right to private representation from the beginning of the claim process.
The Labor Department also has other new steps: It must notify the veteran or reservist, in writing, of his or her USERRA rights within five days following the filing of a complaint. It also must report to Congress on USERRA enforcement actions — indicating the number of actions initiated by OSC and the cases heard by the MSPB. In the past, Labor was required only to report the number of complaints filed by the Justice Department.
One of the more important elements of the act calls for agency human resources personnel to receive training on USERRA.
The training is to be developed and provided in consultation with the Office of Personnel Management. The frequency of the training is at OPM’s discretion, but must be often enough to ensure agency personnel are kept fully informed of USERRA and its application in the daily workplace.
And this type of training is long overdue. While there’s a basic understanding of the law, USERRA is complex and requires careful comprehension to ensure employees’ rights and to keep uninformed managers out of legal hot water.
Even before the mandated training kicks in, managers and human resources departments can ensure they are taking care of their veterans and reservists from a legal perspective in the following ways:
*Offer veteran and reservist employees opportunities to grow in their jobs by enhancing the training they’ve already received in the military.
*Remember, employees who are absent for military service are entitled to the same benefits as employees who are on nonmilitary leaves of absence.
*Most military commands will work with your agency to try to avoid a hardship as a consequence of deployment. There are special offices available at most commands to assist both you and the soldier.
*You should work out a plan with the employee regarding notification of when the military duty is expected and for what length of time to plan how his work will be handled in his absence.
— Greg Rinckey, a former military and federal attorney, is managing partner of Tully Rinckey PLLC, a law firm with offices in Albany, N.Y., and Washington. E-mail your legal questions to askthelawyer@federaltimes.com.
