NSBA's comments on the proposed rules on the Uniform Services Employment and Reemployment Rights Act of 1994

November 19, 2004

Elaine L. Chao
Secretary, U.S. Department of Labor
Room S-3502
200 Constitution Avenue NW
Washington, D.C. 20210

Michael A. Resnick
Associate Executive Director, Advocacy and Issues Management
National School Boards Association
1680 Duke Street
Alexandria, VA 22314

Docket No. VETS-U-04

Dear Ms. Chao:

The National School Boards Association (NSBA), representing 95,000 public school board members in 15,000 school districts, offers the following comments to the proposed rules on the Uniform Services Employment and Reemployment Rights Act of 1994 (USERRA). NSBA asks the Department of Labor (DOL) to consider NSBA’s comments carefully as public elementary and secondary schools in the United States employ about 6 million workers. School board members are extremely grateful for the military service performed by American men and women. Likewise, NSBA completely supports the goals of USERRA to encourage military service, to the minimize the disruption to the lives of persons performing military service, and to prohibit discrimination against persons because of their service in the military.

Sections 1002.180-181 state that employees must be reinstated within two weeks of application for reemployment "absent unusual circumstances." NSBA asks for further guidance regarding what are "unusual circumstances." Specifically, a math teacher might return from military service near the end of the semester and his or her escalator position might be teaching math. However, it might not be in the best interests of the students that the math teacher immediately return to a math teaching position until after the semester is over for a number of reasons. First, the current math teacher knows exactly where the students are academically, and it might be difficult and unnecessarily burdensome to get the returning teacher up to speed considering the semester is about to end. Second, the current teacher’s understanding of the students’ knowledge and ability is particularly important as the teacher prepares students to take finals and possibly standardized tests pursuant to the No Child Left Behind Act and gives classroom grades based on non-numerical factors which must be observed over a period of time, such as attitude and effort.

NSBA asserts that this is precisely the kind of scenario that presents "unusual circumstances" in which the employer should not necessarily have to reinstate the employee in his or her escalator position within two weeks of the employee’s application. Because of the disruption of switching teachers so near the end of the semester, DOL has recognized that "instructional employees" (teachers, athletic coaches, driving instructors, and special education assistants such as signers for the hearing impaired) do not have to be reinstated immediately under the Family Medical Leave Act (FMLA) when they want to return from leave near the end of the semester.

Specifically, the FLMA regulations at 29 C.F.R. § 825.602 spell out special rules that determine if an instructional employee may be required to must extend his or her leave until the end of the term. The rules depend on whether the leave begins more than five weeks before the end of the term, less than five weeks before the end of the term, or less than three weeks before the end of the term. 29 C.F.R. § 825.602(a). If an instructional employee begins leave more than five weeks before the semester ends, the employer can require the employee to take leave until the end of the term if the leave will last at least three weeks and the employee will return to work during the three-week period before the end of the term. 29 C.F.R. § 825.602(a)(1). If an instructional employee takes leave during the five-week period before the semester ends, the employer can require the employee to take leave until the end of the term if the leave will last more than two weeks and the employee will return to work during the two-week period before the end of the term. 29 C.F.R. § 825.602(a)(2). If an instructional employee takes leave during the three-week period before the end of the term and the leave lasts more than five working days the employer can require the employee to take leave until the end of the term. 29 C.F.R. § 825.602(3).

It will be equally disruptive to students if an instructional employee returns to work near the end of the semester if the employee is returning to work after FLMA leave or military leave. For this reason, NSBA asks DOL to consider the circumstances described in 29 C.F.R. § 825.602 (substituting military leave for FMLA leave, of course) "unusual circumstances" in which an instructional employee does not have to be reemployed until the beginning of the next semester.

NSBA recognizes that a serviceperson might realize economic hardship if he or she has to wait until the beginning of another semester before being reemployed even though the wait will not likely exceed a few weeks. However, it may be possible that the serviceperson could substitute teach until the next semester begins, depending on the needs of the school district, or work in a vacant administrative the employee is qualified for. While substitute teaching or an administrative position is not the "escalator position" and may not provide a serviceperson with full-time employment, it may provide some income for a teacher returning from military leave and help the teacher readjust to classroom teaching.

NSBA asks DOL to determine whether a probationary teacher accrues time towards completing his or her probationary period while on military leave or whether a probationary teacher resumes his or her probationary period upon returning from military leave as if military leave was not taken. NSBA urges DOL to take the latter position, i.e., that time away on military leave does not count toward completing the probationary period.

In most states, teachers are on probationary status for two or three years. The purpose of the probationary period is to observe and evaluate the teacher to determine if the teacher’s skills and abilities meet the district’s expectations and if the teacher has the ability to teach and work with children. Teachers are also trained during the probationary period to develop the skills to carry out the mission of the district. Not all persons with teaching degrees are satisfactory teachers for a variety of reasons. Schools districts use the probationary period to determine if a particular teacher is capable of doing the important job of educating children. During the probationary period, teachers are generally employed at-will and can be dismissed without just cause, unless a liberty interest is implicated.

When the probationary period is up, teachers are granted tenure. Tenure is a significant right. Specifically, tenure gives teachers a property right to continuous employment, which is protected by the Fourteenth Amendment of the Constitution. This right guarantees teachers significant substantive and procedural due process rights in the event the district attempts to dismiss them. In terms of substantive rights, local school districts frequently can terminate tenured teachers only under statutorily defined conditions. While these criteria vary by state, typical grounds for dismissal include incompetence, immorality, insubordination, and neglect of duty. The procedural rights guaranteed by state statutes and case law likewise vary among jurisdictions. Generally, a tenured teacher is entitled to timely and adequate notice of the reasons for dismissal, a fair hearing with legal counsel before the school board, an opportunity to cross-examine witnesses, and an impartial decision based solely on the evidence presented.

NSBA believes that probationary teachers should not accrue time toward completing their probationary period while they are performing military service for a number of reasons. First, § 1002.193, which discusses how to determine an employee’s reemployment position, supports this position. Section 1002.193 states that if an opportunity for promotion based on passing a skills test or examination came up while an employees was on military leave, after an reasonable amount of time passes following the employee’s return, the employee is then given the skills test or examination. If the employee is successful on the test, and if there is reasonable certainty an employee would have been promoted, the employee is then promoted. The teaching probationary period is similar to a promotion based on a skills test. That is, a probationary period is like a long skills test. If the employee passes the probationary period, tenure is the reward or promotion. The regulations do not assume that an employee automatically passes a skills test to receive a promotion; rather, the skills test is administered upon the employee’s return. Likewise, the regulations should not assume that an employee automatically passes a probationary period; rather, the probationary period should continue from where it was left off when the employee returns.

The second reason that probationary teachers should not accrue time toward completing their probationary period while they are performing military service is that successfully completing the probationary period is not a seniority right. Section 1002.212 indicates that a seniority right is based on longevity in employment and accrues with the passage of time. The probationary period for a teacher is not successfully completed because a teacher has been employed by a district for a certain amount of time alone; but rather, it is successfully completed when a teacher has been employed by the district for a certain amount of time and has meet the district’s performance expectations. Probationary teachers who have only been teaching for a short period of time do not have enough of a track record with the district for the district to determine with reasonable certainty that the teacher would have successfully completed the probationary period.

Some state statutes make the relationship between the employee’s performance and the successful completion of the probationary period very clear. For example, Tennessee defines probation as "a condition and period of trial during which a teacher is under observation to determine such teacher's fitness for tenure status." Tenn. Code Ann. § 49-5-501(9). To be employed in Tennessee as a tenured teacher, a teacher must have, among other things, a professional teaching license. Tenn. Code Ann. § 49-5-503(2). To obtain a professional teaching license a teacher must have been evaluated through "classroom or position observation and assessment." Tenn. Code Ann. § 49-5-5402(a)(1). Similarly, in New Jersey, a non-tenured teacher must be evaluated at least three times in a year and at least once a semester. N.J. Stat. Ann. § 18A:27-3.1. Other state statutes make it less clear that the probationary period is to evaluate the performance of teachers. For example, in Kansas statutory due process rights apply to teachers who have, among other things, completed no less than three consecutive years of teaching and have been offered a fourth contract. Kan. Stat. Ann. § 72-5445(a)(1)(A). Similarly, the Colorado statutes state that the school superintendent may recommend any probationary teachers’ contract not be renewed for any reason the superintendent deems sufficient. Colo. Rev. Stat. § 22-63-203(4)(a). The Kansas statutes do not specifically state that one of the reasons a district may not offer a teacher a fourth contract is unsatisfactory work performance, and the Colorado statute does not specifically state that poor performance might be a reason an administrator "deems sufficient" to not renew a probationary teacher’s contract-perhaps because this is obvious.

Regardless of how clear state law is regarding the purposes of the probationary period, if a probationary period is not for the purposes of evaluation the capabilities of a teacher what is it for? The fact that such significant substantive and procedural rights are granted to teachers who successfully complete the probationary period indicates that the tenure rights must be earned based on a teacher’s ability.

In summary, NSBA asks DOL to clearly indicate in the regulations that time away on military leave is not counted toward a teacher completing his or her probationary period.

The above regulations state that employees on military leave are entitled to the same non-seniority rights and benefits such employees would receive if they were on furlough or leave of absence. Section 1002.150(b) states that if non-seniority benefits vary according to the type of leave, employees must be given the most favorable treatment afforded to any form of leave comparable to military service. Comparing military leave to any other "comparable" leaves is a confusing and unworkable standard that is unnecessary and not supported by the USERRA statute. DOL should instead define "furlough or leave of absence" to include unpaid, long-term absences from work.

School districts and other employers offer a variety of leaves including sick leave, emergency leave, personal leave, vacation, jury duty leave, FMLA leave, and sabbatical leave. Most leaves are paid except sabbatical leave. Also, jury duty leave may not be paid and FMLA leave may or may not be paid or may be partially paid if employees use available sick leave. Most paid leaves are short term i.e. a few days or a few weeks at most. The only leaves that might be longer than this amount of time are sabbatical leave, sick leave, FLMA leave (up to 12 weeks), and occasionally jury duty leave. It is unlikely that any leave, other than sabbatical leave, would equal an entire year. Employees generally receive all non-seniority benefits for all leaves except sabbatical and possibly unpaid FMLA leave because most leaves are so short that it is not worth the time and effort of temporarily stopping non-seniority benefits like life insurance.

Section 1002.150(b) is confusing and unworkable because it does not give a clear indication of how employers are supposed to determine what kind of leave military leave is comparable to. It maybe difficult to consider any of the leaves offered by a school district "comparable" to military leave depending on the actual length of an employees’ service. After all, in some instances military leave could last up to five years, and it is doubtful that any leave offered by a school district other than sabbatical leave will even last one year. It is possible to compare paid military leave to "other" paid leave and compare unpaid military leave to unpaid "other" leave. However, this result can be unsatisfactory if, for example, jury duty leave is unpaid. Specifically, unpaid military leave could last up to five years while it is likely unpaid jury duty leave will only last a week or two at most. Most employers likely continue non-seniority benefits during unpaid jury duty leave because the leave is generally very short.

Not only is Section 1002.150(b) confusing and unworkable, there is no support in the USERRA statute, 38 U.S.C. § 4316(b)(1)(A)-(B), indicates that employers have to look at all types of leaves they offer and give employees on military leave the most favorable benefits given under any comparable form of leave. Section 38 U.S.C. 4316(b)(1)(A)-(B) merely states that employees on military leave must receive the same non-seniority benefits as employees on "furlough or leave of absence." NSBA urges DOL to define "furlough or leave of absence" in order to provide clarity regarding what seniority benefits must be continued while an employee is on military leave.

NSBA suggests that DOL should define "furlough or leave of absence" to include unpaid, long-term absences from work. If Congress wanted employees to be treated as if they were on a short-term, paid leave for the purposes of determining what non-seniority benefits employees on military leave would continue to receive, Congress could have chosen to deem employees on military leave "on sick leave or vacation leave." Instead Congress chose to use the words "furlough or leave of absence"-words that imply, particularly in light of the words not chosen, that Congress had long-term, unpaid leave in mind.

NSBA asks DOL to specifically address whether or not sick leave is a seniority right or benefit. Similarly, NSBA asks whether other "annual leave" such as vacation leave, personal leave, emergency leave, etc. is a seniority right or benefit. By annual leave, NSBA means leave that renews each year or can be calculated on a yearly basis. NSBA is most interested in how DOL views sick leave because unlike the other forms of annual leave, employees can often carry forward from year-to-year up to and over 100 sick leave days. So, sick leave can be a far more costly benefit than the other forms of leave.

Regarding sick leave, an employee may get a certain number of days each year that he or she can use all at once starting the first day of the year or throughout the year, or the employee may accrue sick leave in increments each month and may only use leave actually accrued. Similarly, sometimes sick leave correlates with the number of months an employee works, for example a teacher might receive 9 days of sick leave per year and administrators might receive 12 days of sick leave per year (one day for each month worked). In other instances employees may receive a seemingly random number of sick leave days per year such as 10. In some school districts, employees can receive cash for each sick day not taken (generally up to a cap of days) as a benefit when they retire.

Regarding vacation, employees typically get a certain number of weeks per year of time off. Generally, more senior employees receive more vacation time. Vacation time often accrues in increments per month. However, employees are generally able to take vacation time before it accrues as long as they "pay it back" if they quit before they have earned all the vacation time taken. Employees can generally carry over some amount of unused vacation leave to the next year.

Employees are typically given a limited number of personal, emergency leave, and similar leave - generally two or three days a year which can be used to deal with personal problems and emergencies that do not involve illness. Personal and emergency leave generally may be taken anytime during the year and does not carry forward to the next year if unused.

Section 1002.212 states that seniority benefits do not include short-term compensation. It is fairly easy to conclude that in instances where sick leave is earned in a certain increment each month and can only be used after it has been earned that it is short-term compensation. That is, the amount of sick leave an employee has and the employee’s ability to use sick leave is directly based on a short amount of work performed-one month. In situations where sick leave can be used all at once at the beginning of the year and/or it is not clear whether an employee earns a specific increment of time each month, it is less obvious that sick leave is short-term compensation. Similar confusion arises when considering the nature and timing of other forms of annual leave.

NSBA believes that regardless of how annual leave accrues and when it can be used, annual leave should not be considered a seniority benefit. First, the method of accrual and the timing of when employees are allowed to use leave determine when and how employees may use leave, but not necessarily how much leave employees actually have. However, how much leave an employee has is generally what makes the benefit most valuable. It seems unfair that whether or not a serviceperson receives leave while away should depend on the "form" of the leave rather than the "substance." Second, if DOL tries to create a standard for determining what kinds of annual leave are short-term compensation and what kinds of leave are a seniority benefit, DOL will more likely create more confusion than clarity. Almost all employers offer most if not all of the annual leaves described above in one form or another. Each type of leave offered by each employer has a variety of nuances and may work in a manner similar to the leave described above or work totally different. Rather than determining all the factors that might affect whether leave is short-term compensation or a seniority benefit, it makes more sense to adopt a bright-line rule all employers can follow. Finally, it does not make sense to allow employees on military leave to accrue annual leave from their civilian employer. Employees performing military service receive vacation time, sick time, and other personal time off while on military duty from the military and therefore do not need to accrue these benefits from their civilian employer.

Section 1002.194 states that when determining the escalator position it is possible that based on the employee’s seniority rank, an employee on military leave could receive a higher or lower rank, be laid off or terminated from their civilian position. However, in schools, particularly regarding teachers, rarely is seniority the only factor that affects who is laid off. Specifically, pursuant to either statutory requirements or collective bargaining agreements, lay offs at school districts are typically done based on the certification, seniority, and often other factors such as the quality of performance evaluations, of a teacher. Specifically, if a school district decides it needs to layoff a teacher, it generally will first determine the subject matter and grade level that it believes is most appropriate for a lay off. The district will then consider the factors that are required by state law or collective bargaining agreement to determine which specific employee must be laid-off. If the district is only allowed to consider seniority it might have to lay off a kindergarten teacher because he or she is the least senior teacher in the district when the district wants to eliminate a high school French position.

NSBA asks DOL to change § 1002.194 to make clear that an employer may apply whatever factors it considers by statute, employment contract, agreement, policy, practice, or plan effective in the workplace to both employees on military leave and employees not on military leave when deciding who to promote, lay off, or terminate-not just seniority. If the escalator position is to reflect the position an employee would have attained with reasonable certainty if not for the absence for military service, all factors relevant to an employer’s decision regarding promotions, lay offs, and terminations must be considered and applied to all employees, including those on USERRA leave. If only seniority is considered when making these decisions in relation to employees on military leave, such employees might receive far greater benefits than other employees who are not on military leave.

DOL asked for comments regarding what requirements should be made for employees on military leave who want to elect continuing health insurance coverage. The proposed regulations allow health plan administrators to develop requirements addressing how employees should elect to continue coverage. DOL also asks for comments regarding whether DOL should select a date by which employees must notify employers that employees want to continue coverage. NSBA suggests that the ideal situation for employers would be to receive notice regarding continuing health insurance from the employee on or before the last day the employee works before beginning leave. If DOL agrees that notice by this date is acceptable, NSBA asks DOL to make this clear in the final regulations. NSBA recognizes that this deadline might not be ideal for employees, so NSBA discusses the merits of other possible ways of handling this issue in the paragraphs below.

In an employer’s ideal world, the employer would receive notice regarding whether the employee wants to continue health insurance coverage no later than the last day the employee works before leaving for military service, absent unusual circumstances when such notice could not be provided. This day is ideal for employers because that day is the last day the employer is obligated to cover the employee - on the next day the employee may remain covered if the employee chooses to remain covered. While this day may be ideal for the employer, it may not be realistic for the employee to decide whether he or she wants to continue coverage by that day depending on how much notice an employee has that he or she has been called up for duty. An employee may find himself or herself overwhelmed by the huge impending life change and making a quick decision about health insurance coverage might seem overwhelming. However, if most servicepersons generally receive notice of military service months or even weeks in advance, requiring the employee to give notice by his or her last day of work is not unrealistic. Perhaps DOL should determine how much notice a serviceperson generally receives before they must leave for military service. It is not clear in the proposed regulations if the employer could select the last day the employee works before leave begins, absent unusual circumstances, as the day the employee must notify the employer that the employee wants to continue health insurance coverage. If this practice is acceptable, DOL should make this clear in the regulations.

In the alternative, it seems likely that most persons on military leave would continue their health insurance coverage for at least the first 31 days of service because during this time servicepersons are not required to pay any more for health insurance coverage than they would pay if they were still working for their civilian employer. Moreover, after the first 31 days servicepersons receive military health insurance and have to start paying 102% the cost of employer coverage. This may mean very few servicepersons continue employer health insurance coverage beyond the first 31 days of service. If DOL determines that most servicepersons continue employer health care coverage for the first 31 days and almost no servicepersons continue employer health care coverage beyond 31 days, it might make sense to require employees to notify their employer that they want to continue or discontinue health insurance care coverage by the 31st day of absence. A disadvantage of this approach is that if the employer always continues an employee’s health insurance coverage for the first 31 days and the employer receives notice from an employee on the 31st day that the employee did not want any coverage for even the first 31 days, who should have to pay the employee’s portion of the premium for the first 31 days? A solution to this problem might be employers discontinuing coverage for all employees on military leave the day after the employee stops working until the employees notify the employer (within 31 days) that he or she want to continue coverage. This is how Consolidated Omnibus Budget Reconciliation Act (COBRA) works. COBRA allows an employee to be covered by health insurance even if the employer cancelled coverage immediately after a qualifying event if the employee notifies the employer within a specific amount of time after receiving COBRA election rights notice that the employee wanted to be covered by COBRA and pays the premiums.

Finally, DOL might consider adopting COBRA’s notice requirements under USERRA. COBRA requires employers to send a COBRA election notice to employees not later than 14 days after a qualifying event, such as termination that makes the employer no longer responsible to cover the employee. Employees then have 60 days to decide whether to elect COBRA coverage. After election, employees have 45 days to pay the initial premium. The advantage of using COBRA notice is that employers are used to it and would not have to apply two different processes for dealing with continuing health insurance coverage for USERRA and non-USERRA employees. Another advantage to employees of using the COBRA process is the employer notifies the employee that the employee can elect continued coverage. The USERRA regulations do not appear to require the employer to take an affirmative step to inform employees of their rights to continue health insurance. A disadvantage of COBRA is that the time deadlines are rather long and such deadlines might not makes sense under USERRA if most servicepersons want to continue coverage for the first 31 days. Specifically, it might not make sense for the employer to discontinue a serviceperson’s health insurance as soon as they go on military leave, send them an election notice within 14 days, and wait 60 days to receive a response-all to have servicepersons say 70 plus days after they have been on leave that they wanted health insurance continued for the first 31 days-especially if most servicepersons will choose to continue leave for the first 31 days only. As discussed above, it might make more sense to require the serviceperson by their last day of work to decide if they want to continue health care coverage.

Sections 1002.247-248 discuss the requirement that employees on military leave receive "cause" protection from discharge for varying amounts of time depending on the length of their service. However, in the comments on page 56,278 of the Federal Register discusses "just cause." NSBA cautions DOL to not use the phrase "just cause" in either the regulations or the comments. "Just cause" is a legal term of art often described in statutes, collective bargaining agreements, judicial case law, and arbitration opinions which gives employees specific rights defined in the bodies of law above. For example, an employee with "just cause" protection might have a right to progressive discipline, an investigation conducted in a certain manner, an arbitration hearing, etc. Because "just cause" refers to specific rights that DOL likely does not intend to have applied under USERRA, DOL should refrain from using this term in the comments.

School boards value the military service performed by members of the armed forces who are also school district employees. Consequently, school boards seek to make the transition from military service to school district employment as seamless as possible. NSBA’s comments reflect school boards’ desires to accomplish this goal and effectively carry out the important mission of educating our Nations’ children.

Please consider these comments when adopting final rules. If you have any questions, please contact Lisa Soronen at (703) 838-6712.

Respectively submitted,

Michael A. Resnick
Associate Executive Director, Advocacy and Issues Management