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Military - benefits for, incl. USERRA

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Comprehensive FAQs for Employers on Hurricanes and Other Workplace Disasters
"This list of frequently asked questions was originally prepared ... in response to Hurricanes Katrina, Rita and Wilma. It has been updated several times over the course of the past 12 years, most recently in the aftermath of Hurricane Harvey striking Texas and Louisiana in August 2017, and in anticipation of Hurricane Irma striking Florida in September 2017. This article addresses many employment-related issues facing employers in the wake of hurricane-related disasters; ... in addition to federal laws, [it covers] certain state laws, especially those in the Gulf Coast area." (Fisher Phillips)
[Guidance Overview] Hurricane Harvey Deployment: Issues Surrounding Legally Protected Leave
"Any employer may receive requests for leaves related to Hurricane Harvey and the employer does not need to be in the vicinity of Houston as national guard and other first responders are being called upon to assist and employees may have relatives in the areas hit by Hurricane Harvey.... [E]mployers need to remember there are benefit continuation and benefit resumption requirements under both [FMLA and USERRA] as well as implications for when COBRA continuation coverage must be offered." (Winstead PC)
[Discussion] Reservist Becomes Part-time Employee; USERRA Affects Premium Sharing Rate?
"A reservist has been repeatedly called up for 3- and 4-day/week assignments. He has ceased to satisfy the 'regularly works 30 hours/week' requirement for maintaining health plan coverage, i.e., has become a part-time employee. Must we treat each weekly notice as a new period of service and restart the 30-day clock for retaining the eligible employee premium sharing rate? Can we unilaterally classify this pattern of military service as a continuous period of part-time military service and then convert from the active employee rate to the 102% COBRA rate after the employee has lost the active employee coverage and received 30 days of coverage at the active employee rate?" (BenefitsLink Message Boards)
District Court Allows Veteran to Proceed with Claim Employer Reduced His Salary by Disability Benefits Amount
"Refusing to dismiss a former marine's USERRA discrimination claim, a federal district court in Florida found that he sufficiently alleged that the employer reduced his pay by the amount of disability benefits he received from the Department of Veterans Affairs (VA), which was the same as claiming that military service was the 'motivating factor' for the adverse decision.... [T]he court rejected the owner's assertion that he could not be individually liable, because the employee claimed the owner exercised control over the terms of employment and was the individual who made the adverse pay decision." [Rimbey v. The Mucky Duck, Inc., No. 17-103 (M.D. Fla. June 29, 2017)] (Wolters Kluwer Law & Business)
Claim of Miscalculated Military Leave Pension Contributions Can Go to Trial
"[T]he appellate court found that FedEx may have miscalculated [the employee's] contributions.... [He] claimed on appeal that FedEx should have calculated his military leave hours using the average of the hours he worked during the 12-month look-back period. The appellate court ruled that Savage had stated a legitimate issue that a jury would have to decide and reversed the judgment of the district court." [Savage v. Federal Express Corp. dba FedEx Express, No. 16-5244 (6th Cir. May 10, 2017)] (Society for Human Resource Management [SHRM])
Military-Member Employees Sue FedEx Over Alleged USERRA Violations
"According to the lawsuit, because thousands of service members employed by FedEx regularly work hours and receive compensation that are not fixed, their compensation has been 'not reasonably certain.' ... The lawsuit claims that since 2002 FedEx and the pension plan defendants have applied a policy for making pension and retirement contributions for periods of qualified military service that did not comply with USERRA, because they did not apply the 12-month look-back formula that USERRA requires." (planadviser)
Fedex May Have Violated USERRA 12-Month Look-Back Pension Contribution Calculation Rule
"Because a FedEx employee's hours varied from week to week and he often worked overtime, USERRA required FedEx to use a 12-month look-back rule to determine the proper pension contribution for his periods of military service. Finding a triable question on whether FedEx's calculation was inconsistent with USERRA's terms -- it estimated the hours he would have worked during his leave, rather than the hours he actually worked in the prior 12 months -- the [Sixth] Circuit reversed summary judgment on his pension benefits claim." [Savage v. Federal Express Corp. dba FedEx Express, No. 16-5244 (6th Cir. May 10, 2017)] (Wolters Kluwer)
Coordinating FMLA with USERRA
"As a general rule, when the FMLA overlaps with other laws, the employer must follow the law that gives the employee the greatest benefits or is most favorable to the employee.... USERRA requires employers to grant up to 5 years of unpaid leave to employees for active military duty. By contrast, the FMLA entitles employees to 12 weeks of leave for a qualifying exigency and up to 26 weeks of military caregiver leave." (HRDailyAdvisor)
Sixth Circuit Allows USERRA Claim for Improper Continuation of Group Health Plan Coverage
"At least one claim in this lawsuit may have been avoided if the employer had clearly communicated its practices and procedures for continuing health coverage during periods of military leave. DOL regulations allow plan administrators to develop reasonable requirements for electing continued health plan coverage under USERRA, consistent with the plan's terms and USERRA's requirements. Developing and consistently following definite procedures and communicating details such as the cost of continued coverage will provide administrative certainty and may help avoid confusion and inconsistencies that can lead to lawsuits." [Eichaker v. Village of Vicksburg, No. 15-1128 (6th Cir. Oct. 5, 2015)] (Thomson Reuters / EBIA)
Federal District Court: No USERRA Claim Against Employer That Billed Employee for Health Coverage While on Military Leave
"The employer argued that it had continued the health insurance because the employee had not requested that it be discontinued.... Explaining that USERRA does not speak to a servicemember's right to discontinue employer-provided coverage or prohibit an employer from continuing health coverage for a servicemember who has not specifically chosen to continue it, the court held that the employee did not have a claim under USERRA for the way the employer had administered his health benefits." [Eichaker v. Village of Vicksburg, No. 1:12-CV-1350 (W.D. Mich. Jan. 8, 2015)] (Thomson Reuters / EBIA)
Feds to Consider Paying Doctors for End-of-Life Planning
"The federal government may reimburse doctors for talking to Medicare patients and their families about 'advance care planning,' including living wills and end-of-life treatment options -- potentially rekindling one of the fiercest storms in the Affordable Care Act debate.... Now, quietly, the proposal is headed toward reconsideration -- this time through a regulatory procedure rather than legislation." (The Pew Charitable Trusts)
District Court Approves USERRA Class Action Settlement Over Pension Contributions
"United Airlines agreed to pay $6.15 million to a class of pilots who alleged that United's method of calculating and making pension contributions for pilots on military leave violated USERRA." [Tuten v. United Airlines Inc., No. 1:12-cv-01561 (D. Colo., settlement approved May 19, 2014)] (Proskauer's ERISA Practice Center)
Court Considers Rights and Benefits of Employee on Active Military Duty
"A business transaction may or may not create a triggering event that causes a loss of coverage for covered employees and their families. And, as this case illustrates, employees on leave for active military duty, and the resulting interaction of USERRA and COBRA, may significantly increase the complexity and potential for liability. With this in mind, employers may want to review their policies and procedures for military and other leaves of absence and consult legal advisors to ensure compliance with USERRA, COBRA, and other applicable laws." [Dorris v. TXD Services, LP, 2014 WL 747476 (8th Cir. 2014)] (Thomson Reuters / EBIA)
Employers Must Treat Employees on Military Leave Like Those on Comparable Leaves, Eighth Circuit Rules
"USERRA's protection of service members' benefits is sometimes overlooked by employers, including employers that provide benefits beyond those required by statute. Employers should review the benefits available to employees on comparable leaves of absence to ensure those on military leave are receiving comparable benefits. Determining when a leave of absence is comparable can be problematic." [Dorris v. TXD Services, LP, No. 12-3096 (8th Cir. Feb. 27, 2014)] (Jackson Lewis LLP)
[Guidance Overview] Justice Department Charges Employer, Pension Plan With Violating USERRA Reemployment Rights
"[The Justice Department has filed] a lawsuit charging County Employees' and Officers' Annuity and Benefit Fund of Cook County ... and Cook County with willfully violating the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) by refusing to allow an employee to make catch up contributions to the employer�s pension plan when she returned from military leave." (Solutions Law Press)
Vets Get Upgrades on Family and Medical Leave
"The families of eligible vets now will have the same FMLA benefits afforded to active-duty caregivers under the law's expansion. The final rule ... also applies to service members' pre-existing injuries or illnesses aggravated during active duty, and increases the amount of time in the 'qualifying exigency' category that a family member can take off for a service member's 'rest and recuperation' from five to 15 days." (
When Disaster Strikes: Pay, Leave and Related Issues
"When a hurricane, earthquake, flood, fire or other emergency occur, numerous employment laws are implicated, including ... Family and Medical Leave Act (FMLA)... Uniformed Services Employment and Reemployment Rights Act (USERRA).... ERISA and COBRA." [Ed. note: the article includes an extensive list and a discussion of other employment-related legal implications.] (Society for Human Resource Management [SHRM]; membership may be required to view article)
Military Families Must Pay to Extend Health Benefit Coverage to Adult Dependents
"A popular component of the 2010 Affordable Care Act allowing adult children to stay on their parents' health care plans until age 26 has been a little less popular among military members. That's because military families covered by TRICARE must pay as much as $200 a month to benefit from extended coverage.... Most families in private plans do not pay for the extension." (
Proposals to Raise Military Retirees' Health Care Premiums Rejected
"The [Armed Services Committee] advanced the fiscal 2013 National Defense Authorization Act ..., approving a 1.7 percent pay raise for military service members next year as well as limiting increases to enrollee pharmacy co-pays under the TRICARE program.... But the panel rejected the administration�s recommendations to raise premiums for military retirees based on their retirement pay, among other fee hikes." (Government Executive)
[Guidance Overview] USERRA Rights May Apply Even if Employee Refuses Position for Other Reasons
"The Eleventh Circuit held that [the Alabama agency] violated USERRA and owed [the employee] $25,000 in damages for lost wages and benefits because [he]: Properly informed his employer of his deployment; Was absent for less than two years; Filed for reemployment as soon as he returned from duty." (Practical Law Company)
Revised EEOC Guidance Clarifies Interplay Between ADA and USERRA for Employers, Explains Rights to Veterans with Service-Related Disabilities
"The Commission's revised Guide for Employers explains how the ADA applies to recruiting, hiring and accommodating veterans with disabilities. It also explains how protections for veterans with service-connected disabilities differ under the ADA and the Uniformed Services Employment and Reemployment Rights Act, as well as laws and regulations that may be helpful to employers that want to make hiring veterans with disabilities a priority." (Wolters Kluwer Law & Business / CCH)
[Guidance Overview] DOL's Proposed New FMLA Regulations for Military Families and Airline Crew Members (PDF)
"Most NDAA provisions took effect on October 28, 2009 when the NDAA wassigned into law, but the extension of caregiver leave to veterans' family members is not effective until the DOL issues final regulations that define 'serious injury or illness.' Until then, an eligible employee can still take up to 12 weeks of FMLA leave under existing regulations if the veteran with a serious health condition is a spouse, parent, or child (under 18 or disabled)." (Buck Consultants)
Regulations Limiting Incentives to Employees to Use TRICARE (PDF)
"As [requested], CBO has analyzed whether the limitation on employer incentives to TRICARE-eligible beneficiaries (section 707 of the John Warner National Defense Authorization Act for Fiscal Year 2007, Public Law 109-364) has resulted in budgetary savings for the Department of Defense." (U.S. Congressional Budget Office)
Military Vs. Civilian Pay in the Federal Budget
"Labor unions representing federal employees are disappointed with President Obama's fiscal 2013 proposal to end the two-year civilian pay freeze that began in 2011, since the suggested raise of 0.5 percent is negated by another proposal to increase the amount employees must contribute to their pensions by 0.4 percent annually for three years, beginning in 2013." (Government Executive)
Pentagon Wants to Raise Some Retirees' Health Fees
"Defense Secretary Leon E. Panetta has warned that runaway personnel costs at the Pentagon are 'unsustainable,' and on Monday he tried to put a big brake on the spending: Over the next five years the Defense Department plans to nearly quadruple the health insurance fees paid by many working-age military retirees." (The New York Times; free registration required)
[Guidance Overview] Proposed FMLA Changes to Affect Leave Eligibility for Military Caregivers and Airline Crews
"Proposed regulations relating to military caregivers seek to provide job security and peace of mind to military families and caregivers tending to wounded, ill, and injured service members and veterans. While the FMLA already provided for military caregiver leave and qualifying exigency leave for family members of the National Guard and Reserves, the proposed regulations extend the exigency leave provisions to include family members of the regular U.S. Armed Forces." (Ballard Spahr LLP)
Lawmakers Wary of Military Retirement Commission Plan
"The DOD proposal calls for authority similar to what has been provided to past base closure and realignment commissions, so that Congress could only give an up-or-down vote on the commission's final recommendations, with no ability to make any changes." (Gannett Government Media Corporation)
[Opinion] Don't Go After Military Pensions
"The Pentagon has reportedly been considering replacing the guaranteed pension that, for more than a century, has been a fundamental compact between the United States and its soldiers, in favor of a market-based 401(k) approach. But this would be a grave mistake, a disincentive to future volunteers and a threat to national security." (The New York Times; free registration required)
[Guidance Overview] IRS Issues 2011 Cumulative List of Changes for Cycle B Plans
"Due to the small number of new items that could affect 401(k) plans, and the specialized nature of those items, many 401(k) plans that were already up-to-date with items on the 2010 list may discover that they do not have to make any documentation changes in response to the 2011 list." (Thomson Reuters/EBIA)
New Veterans Law Offers Tax Credits to Employers and Recognizes Hostile Work Environment Claims under USERRA
"By amending USERRA to prohibit discrimination with respect to the 'terms, conditions, or privileges of employment,' the VOW to Hire Heroes Act establishes the same standard for hostile work environment claims on account of military status as that governing Title VII and similar employment discrimination laws." (Poyner Spruill LLP)
Cutting Retiree Benefits a Sore Subject for Military
"Military retiree benefits cost the Pentagon $50 billion a year. . . . There are 1.9 million military retirees drawing pay and benefits, compared to 1.5 million in the active duty force. In 2010, then-Defense Secretary Robert Gates said those costs are 'eating the Defense Department alive.'" (NPR)
Inside The Corporate Plan to Occupy The Pentagon
"[T]he push for pension cuts and other corporate 'reforms' at the Pentagon originates from an obscure advisory panel that has existed for a decade: the Defense Business Board. Its 21 members know little about military affairs, but they are rich in Wall Street experience, including with some of the biggest companies implicated in the 2008 financial meltdown." (Mother Jones)
[Guidance Overview] No Individual Liability for Supervisors under Military Service Anti-Discrimination Law
"The court pointed out that some federal decisions impose liability for individuals under the federal USERRA. But the plaintiff was proceeding under state law, and the language of USERRA is different." (Shaw Valenza LLP)
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