Civilian Employment and Reemployment Rights for Service Members, Former Service Members and Applicants of the Uniformed Services, 10491-10498 [2016-04306]

Agencies

• DEPARTMENT OF DEFENSE
• Office of the Secretary

[Federal Register Volume 81, Number 40 (Tuesday, March 1, 2016)]
[Rules and Regulations]
[Pages 10491-10498]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-04306]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 104

[Docket ID: DOD-2013-OS-0091]
RIN 0790-AJ00


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

AGENCY: Under Secretary of Defense for Personnel and Readiness, DoD.

ACTION: Final rule.

-----------------------------------------------------------------------

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

DATES: This rule is effective on March 1, 2016.

FOR FURTHER INFORMATION CONTACT: Curtis Bell, 571-372-0695.

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

Preamble Outline

I. Authority
II. Executive Summary
III. Background
IV. Summary of Significant Changes to the Final Rule
    A. Purpose
    B. Definitions
    C. Policy
    D. Procedures
V. Administrative Requirements
    A. Executive Order 12866, Regulatory Planning and Review and 
Executive Order 13563, Improving Regulation and Regulatory Review
    B. Section 202, Public Law 104-4, Unfunded Mandates Reform Act
    C. Public Law 96-354, Regulatory Flexibility Act (5 U.S.C. 601)
    D. Section 96-511, Paperwork Reduction Act (44 U.S.C. Chapter 
35)
    E. Executive Order 13132, Federalism

I. Authority

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

II. Executive Summary

A. Purpose

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

B. Legal Authority

    38 U.S.C. chapter 43, specifically to 38 U.S.C. 4312(b) and 38 
U.S.C. 4333.
    The purposes of this chapter are:
    (1) To encourage non-career service in the uniformed services by 
eliminating or minimizing the disadvantages to civilian careers and 
employment which can result from such service;
    (2) to minimize the disruption to the lives of persons performing 
service in the uniformed services as well as to their employers, their 
fellow employees, and their communities, by providing for the prompt 
reemployment of such persons upon their completion of such service; and
    (3) to prohibit discrimination against persons because of their 
service in the uniformed services.

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

    This regulatory action:
    a. Establishes procedures to maintain oversight of an effective 
program to ensure that uniformed Service members, former Service 
members, and individuals who apply for uniformed service with DoD are 
aware of their rights, benefits, and obligations under USERRA.
    b. Describes policies that serve to inform uniformed Service 
members, former Service members, and individuals who apply for 
uniformed service with DoD of their rights under USERRA.

D. Costs and Benefits

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

E. Background

    This rule is designed to provide information about the USERRA 
consistent with its implementing regulations at 20 CFR part 1002 and 5 
CFR part 353 to DoD Service members, former Service members, 
individuals who apply, and their employers, and about an informal 
mediation program run by the Employer Support of the Guard and Reserve 
(ESGR). Additionally, the rule establishes procedures for DOD 
components' responsibilities related to fulfilling their USERRA 
obligations.
    ESGR is a DoD operational agency whose mission is to gain and 
maintain employer support for Guard and Reserve service by advocating 
relevant initiatives, recognizing outstanding support, increasing 
awareness of the law, and resolving conflict between

[[Page 10492]]

employers and Service members. As such, ESGR is the principal agency 
within DoD dedicated to providing its customers and stakeholders with 
an awareness about USERRA.
    ESGR has provided outreach and USERRA assistance to Reserve 
Component (RC) Service members and their employers since its inception 
in 1972. Hundreds of thousands of RC Service members and employers have 
benefited from ESGR services. Considering the National Guard and 
Reserve forces make up nearly 50 percent of our military strength, and 
ongoing global operations and humanitarian response, civilian 
employers' support is critical to our National Defense now more than 
ever.
    The Ombudsman Services Program provides education, information, and 
neutral third-party mediation services in order to resolve employee/
employer USERRA conflicts. ESGR is not an enforcement agency and does 
not participate in formal litigation processes.
    ESGR signed an updated Memorandum of Understanding (MOU) in 2010 
with the Department of Labor that continued organizational cooperation 
and improved services provided to all customers regarding USERRA 
compliance. More than 650 volunteer ombudsmen help to resolve USERRA 
compliance issues throughout the Nation.
    More than 4,900 volunteers support ESGR's mission and serve on ESGR 
State Committees maintaining employer support programs, providing 
informative briefings and mediation, and recognizing employers who go 
above and beyond in their dedication to employees who pledge to be both 
a citizen and protector of our Nation. Since ESGR's creation four 
decades ago, thousands of employers have been honored for their 
commitment to stand beside those who serve. As the use of our military 
evolves, many Guard and Reserve members will return from present-day 
conflicts, changing out of their boots and reintegrating into life at 
home. ESGR is committed to continue assisting the returning Service 
members by ensuring America's heroes have meaningful civilian 
employment when they come home. The benefit is that ESGR relieves DOL 
of the extra cases that may be filed by providing information which the 
inquirer can decide whether to pursue further action with the DOL.

III. Background

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

IV. Summary of Significant Changes to the Final Rule

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

A. Purpose

    Comment: One comment stated the Department does not have the 
authority under 38 U.S.C. chapter 43, but instead assigned duties are 
listed in 38 U.S.C. 4312(b) and 38 U.S.C. 4333. 38 U.S.C. 4312(b) 
provides the determination of ``military necessity'' sufficient to 
excuse an employee from giving advance notice of uniformed service to 
his or her employer ``shall be made pursuant to regulations prescribed 
by the Secretary of Defense.'' 38 U.S.C. 4333 directs the Secretary of 
Defense to take such actions as the Secretary deems appropriate to 
inform Service members and employers of the rights, benefits, and 
obligations under USERRA.
    Response: The Department has clarified in the preamble that the 
authority for this rulemaking stems from two statutory provisions of 
USERRA--38 U.S.C. 4312(b) and 38 U.S.C. 4333, which state the Secretary 
of Defense may take such actions as the Secretary deems appropriate for 
informing Service members and employers of their rights and obligations 
under USERRA. In addition, the Department has revised the Authority 
citation in the table of contents of the rule to reflect these 
provisions.

B. Definitions

    Comment: One comment requested the authority for determining what 
constitutes a critical mission and critical requirement be at the 
Assistant Secretary level.
    Response: The Department stated in the final rule that authority 
for determining what constitutes a critical mission or requirement will 
not be delegated below the Assistant Secretary level.
    Comment: One commenter suggested the two definitions be amended to 
include a reference to Sec.  104.6(a)(2)(iv)(C)(1) where the proposed 
rule stated that the responsible party must be at the Assistant 
Secretary's or higher level official.
    Response: The Department stated in the final rule that authority 
for determining what constitutes a critical mission or requirement will 
not be delegated below the Assistant Secretary level, no additional 
reference is necessary.
    Comment: One comment requested deletion of ``impossible or 
unreasonable'' when giving advance notice of uniformed service.
    Response: The Department recognized that 38 U.S.C. 4312(b) defined 
``impossible or unreasonable'' and has removed the definition of 
``impossible or unreasonable'' from the final rule.
    Comment: One commenter addressed the use of ``non-career service'' 
which should be deleted based on the one-time use of it. The commenter 
added that the term is shorthand for service that does not exceed the 
Act's five-year limit.
    Response: The Department concurred with the removal of ``non-career 
service.'' USERRA protections are not limited to non-career Service 
members. The commenters correctly pointed out that 38 U.S.C. 4301(a) 
protects both non-career and career Service members.

C. Policy

    Comment: One commenter stated that policy of Sec.  104.4 is ``to 
support non-career uniformed service by taking appropriate actions to . 
. . assist uniformed Service members.'' Continuous or repeated active 
service that results in eligibility for a regular retirement from the 
Armed Forces is not considered ``non-career service'' according to the 
definition in Sec.  104.3. By implication, does this mean that the DoD 
will not offer its assistive services, such as Employer Support of the 
Guard and Reserve (ESGR), to Service members who voluntarily commit to 
service beyond their initial obligation? The commenter requested 
clarification of what ways, specifically, does the DoD intend its 
regulations to be limited to the support of ``non-career uniformed 
service.''
    Response: The Department concurs with the commenter's concerns and 
has since removed the definition of non-career service and relies 
instead on the definition of uniformed services in 38 U.S.C. 4303(16) 
and the statutory requirements for reemployment at 38 U.S.C. 4312 for 
purposes of determining an individual's eligibility to receive DoD's 
assistive services. The Department offers its services to all Service 
Members, Former Service Members and Applicants of the Uniformed 
Services. The commenter must refer to 38 U.S.C. 4312 and corresponding 
DOL regulations for the applicability of USERRA. The

[[Page 10493]]

reemployment rights provision of USERRA, is applicable to uniformed 
members whose cumulative years of military service do not exceed five 
years with one employer. To help clarify, it may be of assistance to 
direct the commenter to the preamble to the DOL regulations of USERRA, 
which explains, ``Section 1002.101 clarifies that the five-year period 
pertains only to the cumulative period of uniformed service by the 
employee with respect to one particular employer, and does not include 
periods of service during which the individual was employed by a 
different employer. Therefore, the employee is entitled to be absent 
from employment with a particular employer because of service in the 
uniformed services for up to five years and still retain reemployment 
rights with that employer; this period starts anew with each new 
employer.'' (70 FR 75246-75313, December 19, 2005). The commenter 
mentioned the term ``double dippers.'' USERRA protections with regard 
to reemployment are not applicable to situations where cumulative 
service exceeds five years with one employer. The Military Department 
Secretaries determine which orders are exempt from the five-year 
service limits.

D. Procedures

    Comment: A commenter addressed advance notice concerns stating the 
proposed rule did not address the fact that an appropriate officer of 
the uniformed service concerned may provide the notice.
    Response: The Department stated in the final rule that an employee 
or an appropriate officer of the uniformed services may provide the 
advance notice. See Sec.  104.6(a)(2)(iii)(A)(3)(i).
    Comment: A commenter stated wording in Sec.  104.6(a)(2)(iii)(A)(3) 
may be confusing and open the door to contradictory interpretations of 
the employee's obligation to provide advance notice of military 
service. The first sentence of Sec.  104.6(a)(2)(iii)(A)(3) states that 
the advance notice ``should be provided as early as possible'' and 
recommends the advance notice be provided ``at least 30 days prior to 
departure for service.'' That language is consistent with the current 
32 CFR 104.6(a)(2)(i)(B) provision which states that the advance notice 
``should be provided as early as practicable.'' But the second sentence 
of the proposed Sec.  104.6(a)(2)(iii)(A)(3) seemingly adds a qualifier 
to the ``as early as possible'' policy by inserting new language 
linking the time frame for providing the advance notice to ``the time 
the Service member receives confirmation of upcoming uniformed service 
duty'' (emphasis added). The commenter was concerned that this addition 
of confirmation of service orders will actually result in reduced 
periods of advance notice, because some Service members may interpret 
this as suggesting they withhold notice until they receive a second set 
of orders confirming the initial set of orders. The employer's past 
experience is that most individual Service members will get 
notification from the unit that he/she will be tasked for an upcoming 
mission sometimes weeks or even months in advance, although the mission 
won't get funded and/or orders cut until a point very near the time of 
the mission. If the Service member waited until final orders are cut to 
give notification to the employer, the employer wouldn't learn about an 
individual's planned departure on military leave until very near the 
actual departure time. That runs contrary to the ``as early as 
possible'' goal.
    Response: The Department has recommended a minimum of 30 days to 
trigger notice prior to departure. A Service member cannot be certain 
of the departure date, which is an objective point in time, until he/
she receives confirmation of military duty. Nothing in this section 
prohibits a Service member from providing advance notice when he or she 
first learns that he or she might perform future military duty. The 
commenter was concerned that this guidance could reduce advance 
notification. The Department has revised the regulatory text to make 
clear that this provision is a recommendation only and not mandatory.
    Comment: One of the commenters stated a notice of ``at least 30 
days prior to departure for uniformed service when feasible'' conflicts 
with USERRA. The commenter further added that an employee's failure to 
provide such a notice may result in prejudice. An employer might view 
the regulatory recommendation as a gauge to apply in evaluating the 
employee. For instance, an employee might receive a negative 
performance review and consequent loss of a raise for not meeting the 
Department's recommended notice standard.
    Response: The Department's recommendation in Sec.  
104.6(a)(2)(iii)(A)(3) that employees provide at least 30 days advance 
notice to their employer is just that: a recommendation. Whenever an 
employee is questioned as to whether they provided advance notice, they 
should show that they met the requirement. The Department's 30-day 
recommendation is not dispositive, but can be used as a benchmark for 
analyzing whether advance notice was provided on a case-by-case basis. 
The recommendation does not improperly regulate any mandated standard. 
It is true that Service members and employers may look to the benchmark 
as a reasonable standard, but it does not preclude them from 
considering extenuated circumstances.
    Comment: The commenter recommended a correction to clarify the 
duration of a period of service rather than a length of a Service 
member's absence as it relates to providing documentation to an 
employer. Because only a period of uniformed service of more than 30 
days can trigger an obligation for a returning employee to submit 
certain service-related documentation to his or her employer upon 
request, Sec.  104.6(a)(2)(iii)(B)(2) needs to be clarified to so 
reflect. Rather than measuring just the length of the period of 
service, the proposed rule erroneously measures the length of the 
entire ``absence from civilian employment due to military service.''
    Response: The Department concurred and modified Sec.  
104.6(a)(2)(iii)(B)(2) for clarification to specify the period of 
military service instead of absence from civilian employment. The 
change clarifies and is consistent with the statute and DOL regulation.
    Comment: Two commenters objected to imposing on Service members' 
obligations concerning civilian employment not authorized by USERRA. 
Obliging all returning Service members to give their employers 
``documentation of absence due to uniformed service,'' Sec.  
104.6(a)(2)(iii)(B)(2)(i), as the Department has acknowledged, exceeds 
USERRA's requirements. Section 4312(f)(1) of USERRA requires employees 
returning from service periods exceeding 30 days to furnish employers 
upon request documentation showing that their application for 
reemployment is timely; that they have not exceeded the five-year 
service limit; and that their separation or dismissal from service was 
not under disqualifying conditions. Proposed Sec.  
104.6(a)(2)(iii)(B)(2)(i) directly conflicts with Section 4312(f)(l) of 
USERRA. It is inconsistent with Section 4312(f)(1) of USERRA because it 
would apply to Service members returning from a period of service 
shorter than 31 days; it would apply in the absence of any employer 
request for documentation.
    Response: The Department concurs and has adjusted language in the 
final rule to state ``As a matter of policy the Military Departments 
strongly

[[Page 10494]]

recommend Commanders and Service members provide verification of 
uniformed service absence to civilian employers regardless of the 
duration of service upon request.'' Failure of an employee to comply 
with this policy requirement, does not affect the legal 
responsibilities of the employer under USERRA including prompt 
reemployment. DOL is the regulating party that can implement the 
statute in a way that impacts employers. The proposed rule at Sec.  
104.6(a)(2)(iii)(B)(2)(i) stated that it ``is not intended to, and 
should not, affect the legal responsibilities of the employer. . .''
    Comment: Two commenters stated the proposed Sec.  
104.6(a)(2)(iii)(C) erroneously states that USERRA's five-year 
cumulative service limit is computed on the basis of ``absences from 
each place of civilian employment, due to uniformed service.'' The 
five-year cumulative limit is instead determined on the basis of 
duration of non-exempt period of service in a uniformed service 
performed during an employment relationship.
    Response: The Department concurred and adjusted the five-year 
cumulative service limit for clarification. USERRA imposes a five-year 
cumulative limit on the absences from each place of civilian 
employment, due to uniformed service, except that any such period of 
service shall not include any service excluded pursuant to 38 U.S.C. 
4312(c).
    Comment: Two commenters objected to Sec.  104.6(b)(3) to the extent 
it requires that the military departments accede to civilian employers' 
unilaterally made requests to adjust Reserve and National Guard 
members' ``absences from civilian employment due to uniformed 
service.'' USERRA is designed to encourage voluntary service in the 
Reserves and National Guard. See 38 U.S.C. 4301(a). So long as an 
employee has not exceeded the five-year service limit, USERRA places no 
restriction on the timing, frequency, duration, or nature of the 
employee's service in the uniformed services. 38 U.S.C. 4312(h). Nor 
does the Act grant a civilian employer any right to impose such a 
restriction. In fact, an employer acts unlawfully if it denies an 
employee permission to leave to perform military service, 20 CFR 
1002.87. Allowing the military departments to change Service members' 
military schedules when unilaterally asked to do so by civilian 
employers may discourage the voluntarism that USERRA seeks to achieve. 
USERRA preserves the freedom of employees to volunteer to perform 
military service when they choose. Interference by employers in the 
scheduling of employees' military service would remove that freedom and 
potentially discourage employees from volunteering to perform military 
service. Such deleterious consequences could be avoided by requiring 
that a military department obtain a Service member' s consent prior to 
granting a request of the Service member's civilian employer to change 
the Service member's schedule.
    Response: The Department concurred and adjusted Sec.  104.6(b)(3) 
so that the Reserve Component representatives will consider requests 
from civilian employers of National Guard and Reserve members and 
adjust a Service member's absences when it serves the best interest of 
the military and is reasonable to do so. The change is now consistent 
with 20 CFR 1002.104.
    Comment: One commenter addressed reemployment timeline 
requirements. The commenter requests reconsideration of the timelines 
for reemployment. The commenter states the period of military service 
disrupts personal time with family and getting back to a sense of 
normalcy takes time.
    Response: The Department does not control or make policy on 
reemployment timelines. The DOL regulates the reemployment timelines 
and evaluates each reemployment situation on a case-by-case basis due 
to the Service member's unique circumstances. USERRA at 38 U.S.C. Sec.  
4312, provides that a Service member who served less than 31 days, as 
the employee, must report back to the employer not later than the 
beginning of the first full regularly-scheduled work period on the 
first full calendar day following the completion of the period of 
service, and the expiration of eight hours after a period allowing for 
safe transportation from the place of that service to the employee's 
residence. In accordance with DOL regulation at 20 CFR Sec.  1002.115, 
for a period of service between 31 days and less than 181 days, he or 
she must submit an application for reemployment (written or verbal) 
with the employer not later than 14 days after completing service. If 
the employee's period of service in the uniformed services was for more 
than 180 days, he or she must submit an application for reemployment 
(written or verbal) not later than 90 days after completing service. 
See 20 CFR 1002.115 and 1002.181 for additional information.

V. Administrative Requirements

Regulatory Procedures

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

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

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

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

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

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

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

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

E. Executive Order 13132, ``Federalism''

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

List of Subjects in 32 CFR Part 104

    Government employees, Military personnel.

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

[[Page 10495]]

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

Sec.
104.1 Purpose.
104.2 Applicability.
104.3 Definitions.
104.4 Policy.
104.5 Responsibilities.
104.6 Procedures.

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


Sec.  104.1  Purpose.

    The purpose of this part is to establish policy, assign 
responsibilities, and promulgate procedures for informing current and 
former uniformed Service members of the Department of Defense (DoD) and 
individuals who apply for uniformed service with DoD of their rights, 
benefits, and obligations under USERRA and its implementing regulations 
at 20 CFR part 1002 (applicable to States, local governments, and 
private employers) and 5 CFR part 353 (applicable to the Federal 
Government). Additionally, this part establishes procedures for DOD 
components' responsibilities related to fulfilling their USERRA 
obligations


Sec.  104.2  Applicability.

    This part applies to the Office of the Secretary of Defense, the 
Military Departments (including the Coast Guard at all times, including 
when it is a Service in the Department of Homeland Security by 
agreement with that Department), the Office of the Chairman of the 
Joint Chiefs of Staff and the Joint Staff, the Combatant Commands, the 
Office of the Inspector General of the Department of Defense, the 
Defense Agencies, the DoD Field Activities, and all other 
organizational entities within the DoD (referred to collectively in 
this part as the ``DoD Components''). This part does not apply to the 
National Disaster Medical Response System or with the Commissioned 
Corps of the Public Health Service.


Sec.  104.3  Definitions.

    Unless otherwise noted, the following terms and their definitions 
are for the purposes of this part.
    Critical mission. An operational mission that requires the skills 
or resources available in a Reserve Component or components.
    Critical requirement. A requirement in which the incumbent 
possesses unique knowledge, extensive experience, and specialty skill 
training to successfully fulfill the duties or responsibilities in 
support of the mission and operation or exercise. Also, a requirement 
in which the incumbent must gain the necessary experience to qualify 
for key senior leadership positions within his or her Reserve 
Component.
    Military necessity. For the purpose of determining when providing 
advance notice of uniformed service is not required, a mission, 
operation, exercise, or requirement that is classified, or a pending or 
ongoing mission, operation, exercise, or requirement that may be 
compromised or otherwise adversely affected by public knowledge is 
sufficient justification for not providing advance notice to an 
employer.
    Officer. For determining those Service officials authorized to 
provide advance notice to a civilian employer of pending uniformed 
service by a Service member or an individual who has applied for 
uniformed service, an officer will include all commissioned officers, 
warrant officers, and non-commissioned officers authorized by the 
Secretary concerned to act in this capacity.
    Uniformed services. The Armed Forces, the Army National Guard and 
the Air National Guard when engaged in active duty for training, 
inactive duty training, or full-time National Guard duty, and any other 
category of persons designated by the President in time of war or 
National emergency. (See 38 U.S.C. chapter 4303.) The National Disaster 
Medical Response System and the Commissioned Corps of the Public Health 
Service are not governed by this Rule and are therefore excluded from 
its definition of uniformed services. However, their Service members 
and applicable employees remain protected under Title 38 U.S.C. Chapter 
43 and its definition of Uniformed Services.


Sec.  104.4  Policy.

    It is DoD policy to support uniformed service by taking appropriate 
actions to inform and assist uniformed Service members and former 
Service members and individuals who apply for uniformed service of 
their rights, benefits, and obligations in accordance with 38 U.S.C. 
chapter 43.


Sec.  104.5  Responsibilities.

    (a) The Under Secretary of Defense for Personnel and Readiness 
(USD(P&R)):
    (1) In addition to the responsibilities in paragraph (d) of this 
section, the USD(P&R) has overall responsibility for DoD policy 
pertaining to total force management in accordance with DoD Directive 
5124.02.
    (2) Develops and oversees the implementation of DoD policy 
pertaining to civilian employment and reemployment rights, benefits, 
and obligations.
    (b) Under the authority, direction, and control of USD(P&R), the 
Assistant Secretary of Defense for Reserve Affairs (ASD(RA)), with 
input from the Department of Labor's Veterans Employment and Training 
Service (DOL-VETS) and the Office of Personnel Management (OPM), 
advises the USD(P&R) on policies and procedures to promote and inform 
uniformed Service members and employers on civilian employment and 
reemployment rights, benefits and obligations in accordance with 
USERRA.
    (c) Under the authority, direction, and control of the USD(P&R), 
the Director, Department of Defense Human Resources Activity (DoDHRA), 
oversees the Employer Support of the Guard and Reserve (ESGR).
    (d) The OSD and DoD Component heads develop and implement 
procedures within their respective Components that are appropriate and 
in accordance with public law and DoD policy pertaining to providing 
information to persons entitled to rights, benefits, and obligations 
afforded under USERRA at 38 U.S.C. Chapter 43.


Sec.  104.6  Procedures.

    (a) Service Member Information and Assistance. (1) The Heads of the 
DoD Components and the Commandant of the Coast Guard will:
    (i) Inform the personnel in paragraph (a)(1)(i)(A) and (B) of this 
section of their general employment and reemployment rights, benefits, 
and obligations as described in USERRA.
    (A) Civilian employees who apply for uniformed service.
    (B) Civilian employees who are current members of the uniformed 
services who perform or participate on a voluntary or involuntary basis 
in active duty, inactive duty, or full-time National Guard duty.
    (ii) Provide subject-matter experts to serve as points of contact 
(POCs) to assist applicants for and members of the uniformed service in 
matters related to employment and reemployment rights, benefits, and 
obligations.
    (iii) Provide initial and annual refresher training for all Human 
Resources officials, supervisors, employees, and uniformed Service 
members.
    (2) The Secretaries of the Military Departments and the Commandant 
of the Coast Guard will:
    (i) Provide an annual review of USERRA information to employees of 
the uniformed services.

[[Page 10496]]

    (ii) Upon completion of a period of active duty extending beyond 30 
days, and before separation from active duty, advise Active and Reserve 
Component Service members covered by USERRA of their employment and 
reemployment rights, benefits, and obligations as provided under 
USERRA.
    (iii) Advise members of the uniformed services that as employees 
they must fulfill certain obligations in order to achieve eligibility 
for reemployment rights as specified in USERRA. At a minimum, advice 
given will include the following USERRA notification and reporting 
requirements for returning to civilian employment:
    (A) Advance Notification of Military Service. To be eligible for 
reemployment rights as specified in USERRA, employees must provide 
advance notice of absence due to uniformed service to their civilian 
employers except when giving such notice is prevented by military 
necessity, or otherwise impossible or unreasonable under all the 
circumstances.
    (1) DoD recommends persons applying for and/or performing uniformed 
service to provide advance notice in writing to their civilian 
employers of pending absence.
    (2) Although oral notice is allowed pursuant to USERRA, written 
notice of pending uniformed service provides documentary evidence that 
this basic prerequisite to retaining reemployment rights was fulfilled 
by the Service member and serves to avoid unnecessary disputes.
    (3) Regardless of the means of providing advance notice, whether 
oral or written, it should be provided as early as possible. The DoD 
recommends that advance notice to civilian employers be provided at 
least 30 days prior to departure for uniformed service when feasible, 
based upon the time the Service member receives confirmation of 
upcoming uniformed service duty. While the notice may be informal and 
does not need to follow any particular format, some acceptable methods 
of providing notice include:
    (i) Giving notice on behalf of the employee by an appropriate 
officer in the uniformed Service member's chain of command. Written 
notice is preferred.
    (ii) Providing the employer a copy of the unit's annual training 
schedule for the duty served on those dates, or by providing the 
employer in advance with a signed standardized letter with blanks in 
which the Service member has filled in the appropriate military duty 
dates.
    (iii) Providing advance notification letters. Sample letters are 
provided by the ESGR, DoD's primary office for all matters concerning 
employer support of the National Guard and Reserve. ESGR information is 
provided in Sec.  104.6(c) of this part.
    (B) Reemployment Reporting Requirements. As described in USERRA, 
when notifying employers of their intent to return to work after 
completing uniformed service, employees must meet specific time-lines. 
Depending on the length of service, these time-lines span from less 
than 24 hours up to 90 days after completing uniformed service.
    (1) Sample return notification letters are provided by ESGR.
    (2) When the period of service exceeds 30 days from civilian 
employment, the Service member is required to provide documentation of 
service performed if requested by the employer.
    (i) As a matter of policy the Military Departments strongly 
recommend Commanders and Service members provide verification of 
uniformed service absence to civilian employers regardless of the 
duration of service upon request. Failure of an employee to comply with 
this recommendation, does not, affect the legal responsibilities of the 
employer under USERRA including prompt reemployment.
    (ii) Types of documentation satisfying this requirement are 
detailed in 20 CFR part 1002.
    (C) Five-Year Service Limit. USERRA imposes a five-year cumulative 
limit on the absences from each place of civilian employment, due to 
uniformed service, except that any such period of service shall not 
include any service excluded pursuant to 38 U.S.C. 4312(c).
    (D) Character of Service. Service members must not have been 
separated from service under a disqualifying discharge.
    (iv) Determine and certify in writing, periods of service exempt 
from USERRA's five-year cumulative limit. Established exempt periods 
must be reviewed and recertified via policy memorandum, at a minimum, 
every two years. Failure to comply with this administrative requirement 
does not affect the continued validity of exempt periods certified in a 
writing that is more than two years old.
    (A) Determine and certify in writing those additional training 
requirements not already exempt from USERRA five-year cumulative 
service limit, that are necessary for the professional development or 
skill training or retraining for members of the National Guard or 
Reserve. When the Secretary concerned certifies those training 
requirements, performance of uniformed service to complete a certified 
training requirement is exempt from USERRA five-year cumulative service 
limit.
    (B) Determine and certify in writing those periods of active duty 
when a Service member is ordered to, or retained on, active duty (other 
than for training) under any provision of law because of a war or 
national emergency officially declared by the President or Congress. 
Such orders with the purpose of direct or indirect support of the war 
or national emergency will be annotated accordingly since these periods 
of service are exempt from USERRA five-year cumulative service limit.
    (C) Determine, and certify in writing, those periods of active duty 
performed by a member of the National Guard or Reserve that are 
designated by the Secretary concerned as a critical mission or critical 
requirement, and for that reason are exempt from USERRA five-year 
cumulative service limit.
    (1) The authority for determining what constitutes a critical 
mission or requirement will not be delegated below the Assistant 
Secretary level. The designation of a critical requirement to gain the 
necessary experience to qualify for specific key senior leadership 
positions will be used judiciously, and the necessary experience and 
projected key leadership positions fully documented in the 
determination and certification.
    (2) This authority must not be used to grant exemptions to avoid 
USERRA five-year cumulative service limit or to extend individuals in 
repeated statutory tours.
    (v) Issue orders that span the entire period of service when 
ordering a member of the National Guard or Reserve to active duty for a 
mission or requirement, and reflect USERRA five-year cumulative 
exemption status as appropriate.
    (A) Order modifications will be initiated, as required, to ensure 
continuous active duty should the period required to complete the 
mission or requirement change. Order modifications will be completed, 
as required, to reflect qualifying five-year exemption, as applicable; 
or an official Statement of Service must be generated, indicating 
original qualifying orders as exempt under proper authority, and 
retained in the Service member's personnel file.
    (B) Orders must indicate exemption under USERRA from the five-year 
cumulative service limit on uniformed service absence from employment, 
when applicable. Specify the statutory or Secretarial authority for 
those orders when such authority meets one or more of the exemptions 
from USERRA five-year cumulative service limit. Orders

[[Page 10497]]

qualifying for exemption should include a status reflecting the 
exemption status and authority.
    (vi) Document the length of a Service member's initial period of 
military service obligation performed on active duty.
    (vii) Document those circumstances that prevent a Service member 
from providing advance notification of uniformed service to a civilian 
employer because of military necessity or when advance notification is 
otherwise impossible or unreasonable.
    (viii) Designate those officers who are authorized by the Secretary 
concerned to provide advance notification of service to a civilian 
employer on behalf of a Service member or applicant for uniformed 
service.
    (ix) Provide documentation, upon request from a Service member or 
former Service member that may be used to satisfy the Service member's 
entitlement to statutory reemployment rights and benefits. Appropriate 
documentation may include, as necessary:
    (A) The inclusive dates of the initial period of military service 
obligation performed on active duty.
    (B) Any period of service during which a Service member was 
required to serve because he or she was unable to obtain a release from 
active duty through no fault of the Service member.
    (C) The cumulative length of all periods of active duty performed.
    (D) The authority under which a Service member was ordered to 
active duty when such service was exempt from USERRA five-year 
cumulative service limit.
    (E) The date the Service member was last released from active duty, 
active duty for special work, initial active duty for training, active 
duty for training, inactive duty training, annual training, or full-
time National Guard duty. This documentation establishes the timeliness 
of reporting to, or submitting application to return to, a position of 
civilian employment.
    (F) A statement indicating service requirements prevented providing 
a civilian employer with advance notification of pending service, when 
applicable.
    (G) Proof that the Service member's entitlement to reemployment 
benefits has not been terminated because of the character of service as 
provided in section 4304 of USERRA.
    (H) A statement that sufficient documentation verifying a 
particular period of service, does not exist, when appropriate.
    (x) Establish a central point of contact (POC) at each Reserve 
Component headquarters or Reserve regional command and each National 
Guard State headquarters who can render assistance to:
    (A) Members of the National Guard or Reserve about employment and 
reemployment rights, benefits, and obligations.
    (B) Employers of National Guard and Reserve members about duty or 
training requirements arising from a member's uniformed service or 
service obligation.
    (xi) Inform Reserve Component Service members of services provided 
by ESGR. ESGR's subject-matter expert POCs can render assistance with 
issues regarding employment and reemployment rights, benefits, and 
obligations under USERRA. More information about ESGR is contained in 
paragraph (c) of this section.
    (b) Employer Information and Assistance. The Military Departments 
will:
    (1) Provide verification of absence due to uniformed service to 
civilian employers upon request regardless of the duration of service-
related absence.
    (2) Provide verification of discharge status upon employer request.
    (3) Designate a Reserve Component representative who must be either 
a Commander or Officer in Charge with the military authority to delay, 
defer, cancel, or reschedule military service. The designated Reserve 
Component representative will consider, unless prevented by military 
necessity or otherwise impossible or unreasonable under all the 
circumstances, written requests from civilian employers of National 
Guard and Reserve members to adjust the Service member's absences from 
civilian employment. The civilian employer must submit a written 
justification explaining how the National Guard and Reserve member's 
absence imposes adverse financial or severe operating impact to the 
civilian employer, and advise as to when the hardship due to the 
Service member's absence is anticipated to end. The designated 
representative has discretion to delay, defer, cancel, or rescheduled 
military service, so long as it does not negatively affect military 
operations. The designated representative may make arrangements, other 
than adjusting the period of absence, to accommodate such requests when 
it serves in the best interest of the military and is reasonable to do 
so. Section 104.6(b)(3) does not create any right of action against the 
government by any party.
    (c) Agencies Providing USERRA Assistance--(1) ESGR. ESGR is a 
component of the DoDHRA, a DoD Field Activity under the authority, 
direction, and control of the USD(P&R).
    (i) ESGR is the primary DoD office for all matters concerning 
employer support of the National Guard and Reserve, and serves as the 
lead proponent for USERRA matters within DoD.
    (ii) ESGR informs Service members and their civilian employers 
regarding their rights and responsibilities governed by USERRA.
    (iii) ESGR does not have enforcement authority for USERRA, but 
serves as a free resource for Service members and employers.
    (iv) ESGR's trained ombudsmen provide neutral, informal alternative 
dispute mediation services between Service members and employers for 
issues relating to compliance with USERRA. Headquarters ESGR Ombudsman 
Services representatives can be contacted by calling 1-800-336-4590.
    (v) ESGR's Web site (available at https://www.esgr.mil) provides 
local and State contact information. Additionally, the Web site 
provides links to multiple resources for both Service members and 
employers.
    (2) DOL-VETS. (i) A person may file a complaint with the DOL-VETS 
or initiate private legal action, if alleging that an employer, 
including any Federal Executive Agency or the OPM, has failed or 
refused, or is about to fail or refuse, to comply with employment or 
reemployment rights and benefits under USERRA.
    (ii) Using ESGR's mediation services is not a prerequisite for 
filing a complaint with DOL-VETS. The complaint may be filed in 
writing, or electronically. Instructions and the forms can be accessed 
at the DOL-VETS Web site (available at https://www.dol.gov/elaws/vets/userra/1010.asp).
    (iii) DOL-VETS receives complaints from veterans and service 
members who believe their USERRA rights were violated. DOL-VETS 
investigates these complaints, and if the evidence supports a 
conclusion that a claimant's USERRA rights have been violated, will 
work with the employer and employee to obtain an appropriate 
resolution. If those efforts are unsuccessful--regardless of the 
outcome--the employee/claimant may request that his or her case be 
referred to DOJ or OSC for further review and consideration of 
representation in U.S. District Court or before the Merit Systems 
Protection Board (MSPB) as appropriate.
    (3) DOJ. (i) DOJ is the agency under the Attorney General that 
enforces USERRA matters involving State and local government employers 
and private-sector employers. DOJ receives USERRA cases referred by 
DOL-VETS.

[[Page 10498]]

    (ii) DOJ reviews USERRA cases to determine if representation is 
appropriate. In cases found to have merit, the Attorney General will 
commence court action on behalf of the Service member, to be prosecuted 
by DOJ attorneys.
    (4) OSC. (i) OSC is an independent Federal agency that enforces 
USERRA matters involving State and local government employers and 
private-sector employers. OSC receives USERRA cases referred by DOL-
VETS.
    (ii) OSC reviews USERRA cases to determine if representation is 
appropriate. In cases found to have merit, OSC will initiate an action 
before the Merit Systems Protection Board (MSPB), also an independent, 
Federal agency, serving as the guardian of Federal merit systems. If 
OSC declines representation, the claimant may still file an appeal with 
the MSPB.

    Dated: February 24, 2016.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2016-04306 Filed 2-29-16; 8:45 am]
 BILLING CODE 5001-06-P