The Uniformed Services Employment and Reemployment Rights Act (USERRA) clarifies and strengthens the Veterans’ Reemployment Rights (VRR) Statute. USERRA protects civilian job rights and benefits for veterans and members of Reserve components.

USERRA also makes major improvements in protecting service member rights and benefits by clarifying the law, improving enforcement mechanisms, and adding Federal Government employees to those employees already eligible to receive Department of Labor assistance in processing claims.

USERRA establishes the cumulative length of time that an individual may be absent from work for military duty and retain reemployment rights up to five years (the previous law provided four years of active duty, plus an additional year if it was for the convenience of the Government). There are important exceptions to the five-year limit, including initial enlistments lasting more than five years, periodic National Guard and Reserve training duty, and involuntary active duty extensions and recalls, especially during a time of national emergency. USERRA clearly establishes that reemployment protection does not depend on the timing, frequency, duration, or nature of an individual’s service as long as the basic eligibility criteria are met.

In addition, USERRA provides protection for disabled veterans, requiring employers to make reasonable efforts to accommodate the disability. Service members convalescing from injuries received during service or training may have up to two years from the date of completion of service to return to their jobs or apply for reemployment.

USERRA provides that returning service-members are reemployed in the job that they would have attained had they not been absent for military service (the long-standing “escalator” principle), with the same seniority, status, and pay, as well as other rights and benefits determined by seniority. USERRA also requires that reasonable efforts (such as training or retraining) be made to enable returning service members to refresh or upgrade their skills to help them qualify for reemployment. The law clearly provides for alternative reemployment positions if the service member cannot qualify for the “escalator” position. USERRA also provides that while an individual is performing military service, he or she is deemed to be on a furlough or leave of absence and is entitled to the non-seniority rights accorded other individuals on non-military leaves of absence.

Health and pension plan coverage for service members is provided for by USERRA. Individuals performing military duty of more than 30 days may elect to continue employer sponsored health care for up to 24 months; however, they may be required to pay up to 102 percent of the full premium. For military service of less than 31 days, health care coverage is provided as if the service member had remained employed. USERRA clarifies pension plan coverage by making clear that all pension plans are protected.

The period an individual has to make application for reemployment or report back to work after military service is based on time spent on military duty. For service of less than 31 days, the service member must return at the beginning of the next regularly scheduled work period on the first full day after release from service, taking into account safe travel home plus an eight-hour rest period. For service of more than 30 days but less than 181 days, the service member must submit an application for reemployment within 14 days of release from service. For service of more than 180 days, an application for reemployment must be submitted within 90 days of release from service.

USERRA also requires that service members provide advance written or verbal notice to their employers for all military duty unless giving notice is impossible, unreasonable, or precluded by military necessity. An employee should provide notice as far in advance as is reasonable under the circumstances. Additionally, service members are able (but are not required) to use accrued vacation or annual leave while performing military duty.

The Department of Labor, through the Veterans’ Employment and Training Service (VETS), provides assistance to all persons having claims under USERRA, including Federal and Postal Service employees.

Answers to Frequently Asked Questions For Reservists Being Called To Active Duty may be viewed at: http://www.dol.gov/ebsa/faqs/faq_911_2.html.

To access a copy of the final rule and poster, visit http://www.dol.gov/vets/programs/userra/poster.htm.

From USCIS Website
The applicability date of the final rule requiring federal contractors and subcontractors to begin using U.S. Citizenship and Immigration Services’ (USCIS) E-Verify system has been pushed back by six weeks to June 30, 2009.

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (collectively known as the Federal Acquisitions Regulatory Councils) will publish an amendment in the Federal Register tomorrow postponing the applicability of the final rule until June 30, 2009. The rule requiring federal contractors and subcontractors to agree to electronically verify the employment eligibility of their employees was first published on Nov. 14, 2008, and went into effect on Jan 19, 2009.

The extension provides the Administration an adequate opportunity to review the entire rule prior to its applicability to federal contractors and subcontractors.

For more information on E-Verify, visit www.uscis.gov/everify.

Related Document at Applicability Date for E-Verify Federal Contractor Rule Extended (27KB PDF)

DALLAS, TX. (March 26, 2009) – Staff One, Inc., a leading provider of HR Outsourcing solutions, today announced a new program that will help small and medium-sized companies optimize their Human Resources costs, stay current with new employment laws and gain access to benefits typically enjoyed by much larger companies.

The Staff One HR Outsourcing Business Stimulus Program is designed for businesses with fewer than 750 employees. Participants in the program will receive a wide array of HR services that are typically only available to FORTUNE 500 companies.

For additional details on the program, companies can visit www.staffone.com/stimulus. To qualify for the program, companies must contact Staff One prior to April 15, 2009 and become a client by June 1, 2009. Existing clients are not eligible for the program.

To read the full press release, click here.

U.S. Citizenship and Immigration Services (USCIS) has submitted to the Federal Register an interim final rule that revises the list of documents acceptable for the Form I-9, Employment Eligibility Verification, process. The revised form will improve the security of the employment authorization verification process.  Your company will be required to use the revised form for all new hires and to re-verify any employee with expiring employment authorization beginning on April 3, 2009.

The revised Form I-9 reflects changes made to the list of documents acceptable for Form I-9 in accordance with the Department of Homeland Security’s (DHS) recent interim final rule. The rule furthers DHS’s ongoing effort to increase the security of the employment authorization verification process.

What is the difference between the revised Form I-9 and the old one?

The biggest difference in the revised Form I-9 is that all documents presented during the verification process must be unexpired. Other than several technical updates, the following documents have been added or removed:

Two documents have been added to List A (Documents that Establish Both Identity and Employment Authorization) on the List of Acceptable Documents:

• A temporary I-551 printed notation on a machine-readable immigrant visa in addition to the foreign passport with a temporary I-551 stamp; and
• A passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with a valid Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI.

Three documents were removed from List A of the List of Acceptable Documents:

• Form I-688, Temporary Resident Card;
• Form I-688A, Employment Authorization Card; and
• Form I-688B, Employment Authorization Card.

Beginning April 3, 2009, your company may only accept documents listed on the List of Acceptable Documents on the revised Form I-9. When an employee must be re-verified because his or her employment authorization has expired, you should ensure that they use the revised Form I-9 with its new List of Acceptable Documents. You cannot re-verify the employee by completing Section 3 – Updating and Re-verification on a previous version of the Form I-9.

The current edition of Form I-9, dated 06/05/2007, will no longer be valid for use on or after April 3, 2009.  Employers who continue to use the 06/05/2007 edition of Form I-9 on or after that date may be subject to civil money penalties.

The revised I-9 will be available on the Staff One online forms repository beginning on April 3, 2009.

For more details on employment eligibility verification, you can visit the U.S. Citizenship and Immigration Services website at www.uscis.gov.

The new ADA Amendments Act of 2008 (ADAAA) became effective January 1, 2009 with significant changes to the ADA’s definition of a “disability”.  The ADAAA retains the basic definition of “disability” as an impairment that substantially limits one or more major life activities.  However, the ADAAA broadens the definition of “disability” by expanding the definition of “major life activities, redefining who is “regarded as” having a disability, modifying the regulatory definition of “substantially limits”, specifying that “disability” includes any impairment that is episodic or in remission if it would substantially limit a major life activity when active; and prohibiting consideration of the ameliorative effects of “mitigating measures” when assessing whether an impairment substantially limits a person’s major life activities with one exception. 

The one exception to the rule is the use of “ordinary eyeglasses or contact lenses”, when determining whether a person is substantially limited in the major life activity of seeing.  The person’s vision should be assessed in its corrected state when using eyeglasses or contact lenses.    

The ADAAA also adds a new provision that restricts employers’ use of qualification standards, tests, or other selection criteria that are based on uncorrected vision standards; clarifies that an individual who satisfy only the “regarded as” prong of the definition of disability is not entitled to “reasonable accommodation”; and modifies the language of the ADA’s “General Rule” that prohibited discrimination against “a qualified individual with a disability because of the disability of such individual”.

By NAPEO Staff
A little-discussed provision of the American Recovery and Reinvestment Act (ARRA) substantially expands whistleblower protections with regard to any activity by entities involved in the stimulus funds. Known as the McCaskill Amendment, Section 1553 extends to those contracting with entities receiving stimulus funds, even when only a portion of the activities are covered by the funds. The protection covers any disclosure by a person to a newly created oversight board, an inspector general, a government agency, a court, or a grand jury if the employee reasonably believes there is gross mismanagement of any agency contract or grant involving the funds, a gross waste of the funds, a substantial danger to public health or safety, an abuse of authority, or a violation of law, rule, or regulation. Protected disclosures will include those made in the ordinary course of an employee’s duties. The law prohibits waivers or releases of the rights and remedies in any agreement (including any pre-dispute arbitration agreement). Covered employers will be required to post notice of these rights.

On February 17, 2009, President Obama signed into law H.R. 1, the American Recovery and Reinvestment Act of 2009 (ARRA). Among many other provisions designed to encourage economic recovery, Title III of ARRA expands the federal Consolidated Omnibus Budget Reconciliation Act (COBRA) Continuation Coverage to provide a federal subsidy toward an eligible worker’s COBRA premium.

• The provisions in ARRA providing this subsidy are effective as of the date of the President’s signing.
• Eligible workers may receive a 65% subsidy toward their COBRA continuation premium for up to 9 months. Previously any individual enrolling in COBRA was responsible for 100% of the cost of the coverage, plus a 2% administrative fee.
• The Treasury Dept. will administer the subsidy, providing employers or health plans, if they administer COBRA benefits, with a credit against payroll taxes for the cost of the subsidy.
• The subsidy terminates the date the individual becomes eligible for any new employer-sponsored health plan or Medicare coverage.
• Individuals involuntarily terminated from employment between September 1, 2008 and December 1, 2009 and who have annual incomes less than $125k (single) or $250k (joint filers) for the taxable year in which the subsidy is received are eligible for the COBRA assistance, along with their families.
• Qualified individuals who initially decline COBRA coverage prior to ARRA will be given an additional 60 days after they receive notice of the special election period to elect to receive the subsidy.
• The special election opportunity is also available to a qualified beneficiary who elected COBRA coverage but who is no longer enrolled on the date of enactment of ARRA, for example, because the beneficiary was unable to continue paying the premium.
• COBRA notices must include information on the availability of the premium assistance and must be provided to all individuals who terminated employment during the applicable time period, not just individuals who were involuntarily terminated.

The Department of Labor has 30 days after the enactment of ARRA to issue model notices for use by employers.

Effective January 16, 2009, the new FMLA rules will have an impact on companies in PEO relationships. In addition to other changes, these rules make FMLA compliance optional to employer with less than 50 employees.  At a high level, the new rules require that HR professionals master 10 key changes to the regulation:

• Military caregiver leave: Implements the requirement to expand FMLA protections for family members caring for a covered service member with a serious injury or illness incurred while on active duty. These family members are able to take up to 26 workweeks of leave in a 12-month period.
• Leave for “qualifying exigencies” for families of National Guard and Reserve members: The law allows families of National Guard and Reserve personnel on active duty to take FMLA job-protected leave to manage their affairs – “qualifying exigencies.” The rules define “qualifying exigencies” as situations involving: 1) short-notice deployment, 2) military events and related activities, 3) childcare and school activities, 4) financial and legal arrangements, 5) counseling, 6) rest and recuperation, 7) post-deployment activities and 8 ) additional activities where the employer and employee agree to the leave.
• New employer notice obligations: The final rules consolidate all employer notice requirements into a “one-stop” section of the regulations to clear up some conflicting provisions and time periods. Further, they clarify and strengthen employer notice requirements so employers can better inform employees about their FMLA rights and obligations, and allow for a smoother exchange of information between employers and employees.
• New employee notice rights: The final rules modify the current provision that had been interpreted to allow some employees to notify their employers of their need for FMLA leave up to two full business days after an absence, even if they could provide notice sooner. Under the final rules, the employee must follow the employer’s normal and customary call-in procedures, unless there are unusual circumstances.
• New medical certification process: The final rules recognize the advent of the Health Insurance Portability and Accountability Act (HIPAA) and the applicability of HIPAA’s medical privacy rule to communications between employers and employees’ health care providers. Responding to concerns about medical privacy, the rules add a requirement that limits who may contact the health care provider and bans an employee’s direct supervisor from making the contact.
• Clarification of waivers of rights: The DOL has finalized its longstanding position that employees may voluntarily settle their FMLA claims without court or departmental approval. However, prospective waivers of FMLA rights will continue to be prohibited.
• Definition of “serious health condition”: While the rules retain individual definitions of “serious health condition,” they add guidance on some regulatory matters. If an employee is taking leave involving more than three consecutive calendar days of incapacity plus two visits to a health care provider, the two visits must occur within 30 days of the period of incapacity. The rules define “periodic visits to a health care provider” for chronic serious health conditions as at least two visits to a health care provider per year.
• Clarification of light-duty FMLA rules: At least two courts have held that an employee uses up his or her 12-week FMLA leave while on a “light-duty” assignment. Under the final rules, time spent in light-duty work does not count against an employee’s FMLA leave entitlement, and the employee’s right to job restoration is held in abeyance during the light-duty period. If an employee is voluntarily doing light-duty work, he or she is not on FMLA leave.
• Application of FMLA leave to awarding perfect attendance awards: The final rules change how perfect attendance awards are treated to allow employers to deny a “perfect attendance” award to an employee who does not have perfect attendance because he or she took FMLA leave-but only if the employer treats employees taking non-FMLA leave in an identical way.
• Clarification of “leave stacking” rules: The updated rule contains technical changes to be consistent with the U.S. Supreme Court’s decision in Ragsdale v. Wolverine World Wide Inc. The court ruled that the regulation’s so-called “categorical” penalty (requiring an employer to provide 12 additional weeks of FMLA-protected leave after the employee had already taken 30 weeks of leave ) was inconsistent with the statutory limit of only 12 weeks of FMLA leave and contrary to the law’s remedial requirement that an employee demonstrate individual harm. The new rule removes these penalties and clarifies that if an employee suffers individual harm because the employer did not follow the notification rules, the employer may be liable.

The new employer notice obligation will be the most critical to follow.  There are new FMLA forms and deadlines for the notification.

A number of programs were included in the Act, which focus on providing tax relief to both individuals and businesses. Some of the more notable provisions are:

“Making Work Pay” Tax Credit
The Making Work Pay credit, which is available in 2009 and 2010, is worth up to $400 for an individual and $800 for spouses filing jointly. This credit begins to phase out for taxpayers with adjusted gross incomes in excess of $75,000 for individuals and $150,000 for married couples filing jointly. This credit can either be claimed on tax returns or by reducing the amount of taxes that are withheld from paychecks.

“American Opportunity” Education Credit
This credit renames and expands the HOPE education credit. It allows a taxpayer to receive a credit of 100% for the first $2,000 in qualifying tuition and related expenses, and 25% for the second $2,000 of such expenses, for a maximum of $2,500. This credit is subject to a phase-out for individual taxpayers with an adjusted gross income in excess of $80,000 or $160,000 for married couples filing jointly.

Alternative Minimum Tax Patch
The Alternative Minimum Tax exemption is increased to $46,700 for individuals and $70,950 for married couples filing jointly, and allows personal credits against the Alternative Minimum Tax. This patch protects an estimated 26 million taxpayers from becoming subject to the AMT.

Above the Line Deduction for Automobiles
This is a new tax deduction for state and local sales tax paid on the purchase of new cars, from the effective date of the Act, February 17, 2009, through December 31, 2009. This deduction begins to phase out for taxpayers earning $125,000 per year for individuals and $250,000 for joint returns.

Extension of Bonus Depreciation
The bonus depreciation rules, which were set to expire after 2008, are extended for one year. The extended rule allows a 50% bonus depreciation for certain property placed in service by businesses in 2009, allowing businesses to deduct from their taxes 50% of the value of that property in addition to amounts that may otherwise be claimed under depreciation rules, after the item’s value is adjusted to account for the bonus depreciation.

Small Business Capital Gains
The law allows for a 75% exclusion for individuals on the gain from the sale of qualified stock held for more than five years. This applies to stock issued between February 17, 2009 and January 1, 2011. This exclusion is limited to individual investments and not the investments of a corporation.

Five-Year Carryback of Net Operating Losses
Businesses are allowed to “carryback” certain operating losses for up to five years, as opposed to the two year limitation previously allowed. Once a business opts to use the extended period, it becomes irrevocable.

Advanced Energy Investment Credit
A 30% investment tax credit is established for manufacturing advanced energy property, such as facilities that manufacture components for the production of renewable energy, energy conservation and other green technologies.

Non-Business & Residential Energy Property Credit
The tax credit for non-business energy property is increased to 30%. This credit may be claimed against expenses for certain energy-efficient improvements to existing homes, such as new furnaces, energy-efficient windows and doors, or insulation. To qualify, such expenses must occur in 2009.

New Markets Tax Credit
The dollars available for the New Markets Tax Credit increase to $5 billion for 2008 and 2009.

By SHRM Online staff
Officials with the U.S. Citizenship and Immigration Services (USCIS) have delayed until April 3, 2009, a requirement that employers must use a revised version of the employment eligibility verification form–known as the I-9 form. According to an interim rule published in December 2008, employers were supposed to begin using the revised verification form on Feb. 2, 2009. However, when President Obama took office, the White House issued a directive to all federal agencies asking them to review any regulations introduced by the Bush administration that had not taken effect before Jan. 20, 2009.

USCIS officials stated that the 60-day delay should provide adequate time to complete a full review of the new form and employment verification requirements. A notice announcing the delay was set to appear in the Federal Register. In addition, the USCIS will reopen the public comment period on the new rule for 30 days, until March 4, 2009. Employers must complete a Form I-9 for all newly hired employees to verify their identity and authorization to work in the United States. The interim final rule as published would have revised the types of acceptable identity and employment authorization documents employers can accept from new hires.