On December 10, 2004, President Bush signed the new Veterans Benefits Improvement Act (VBIA) into law as an amendment to the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). This new Act requires employers to notify covered employees about USERRA rights, benefits and obligations. Starting March 10, 2005, all U.S. employers were required to post the new law.

The Department of Labor has now issued a poster containing the information employers are required to provide to employees regarding USERRA. The poster includes information such as:

• Reemployment rights and obligations;
• Health insurance protection ( the new Act extends the maximum period for health plan continuation coverage under USERRA from 18 months to 24 months);
• Non-discrimination and non-retaliation provisions of USERRA;
• USERRA enforcement provisions.x

Employers can meet the notice requirements by displaying the USERRA poster, which can be downloaded from www.dol.gov, where notices for employees are posted.

Federal Court Awards Former Employee Nearly $500,000 For USERRA Violation

On March 31, 2005, in Duarte v. Agilent Technologies, Inc., a federal judge awarded a Marine Corps Reserve officer nearly $500,000 after finding his employer terminated him 4 months after his return from an overseas combat assignment. The company said that Duarte's performance was inadequate. It also claimed his job was cut in a restructuring move, but advertised the same position a few months later.

Duarte started working for Hewlett-Packard (HP) in 1984. In 1999, Agilent Technologies spun off from HP and became in independent company in 2000. During his employment with Agilent, Duarte was twice deployed, from October 2001 to April 2002 and from November 2003 to July 2003. When he returned from his second deployment, Agilent did not reinstate him to his previous position because someone else was temporarily performing it. Instead, Duarte was assigned to a special project.

At the time, Agilent was facing serious financial losses, and Duarte's supervisor was under pressure to cut costs. On November 10, 2003, his supervisor told him he was being laid-off because his special project had been terminated. In February of 2004, Duarte discovered Agilent advertising for a position identical to his previous job.

Persons returning from a period of service of more than 90 days, and meeting the USERRA eligibility criteria (including timely notice of deployment and return from deployment) must be reemployed in their former positions or a position of equal pay and responsibility for at least 6 months or one year, depending on length of active duty. The only way a returning veteran can be discharged earlier is for cause or for poor performance. Duarte met the eligibility criteria, and was fired 4 months after his return.

As part of its defense, Agilent tried to prove Duarte did not perform well enough to remain employed. The judge did not agree. Instead, the judge concluded, following a three-day trial, that (1) Agilent violated USERRA's reemployment rights provision based on Duarte's diminished status upon his return to employment; and (2) Agilent failed to meet its burden of establishing that Duarte's termination within one year of his reemployment was for cause within the intent of USERRA.

The judge recognized the company's serious financial hardship in recent years, but held that hardship did not excuse the company from its obligations under USERRA. Duarte was seriously disadvantaged as a result of his military deployment and the corresponding diminished status and responsibilities assigned to him upon his return. This, the judge concluded, "is the harm USERRA was enacted to prevent."

This Newsletter is designed to provide information of a general nature only and is not intended to replace or provide professional legal advice.