Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

Meanwhile, the PBGC has also published a final rule (pdf) that will make it easier for a member of the military to qualify for pension benefits. Under current PBGC regulations, benefits under a terminated single-employer pension plan are guaranteed only if the participant satisfies the conditions for entitlement to that benefit on or before the plan’s termination date. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) entitles military service members to return to their jobs after deployment and to receive credit for benefits, including employee pension plan benefits, that would have accrued during their military-related absence. The new PBGC rule address the scenario that occurs when a service member’s plan terminates while he or she is deployed. Under the new rule, the PBGC will consider the service member to have satisfied the conditions for benefits entitlement as of the plan’s termination date, so long as the service member is reemployed within the time limits set by USERRA. In other words, the rule will treat returning service members as if they had never left their employers at the time the plan terminates.

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• Would have the right to retain their jobs;
• Would be entitled to seniority and other rights and benefits determined by seniority while on leave;
• Would be entitled to any other rights or benefits ordinarily provided to other employees who are on furlough or leave of absence;
• Upon request, could use for absences for service-connected illness, injury or disability treatment any vacation, annual, medical, or other paid leave accrued by the individual;
• Would be treated as if he or she is absent by reason of military service for purposes of entitlement to employer-provided health care and pension benefit plans;
• Would be protected from acts of discrimination or reprisal for taking such leave.

If the employee notifies the employer in writing that he or she does not intend to return to work, the benefits provided by this Act would terminate. In addition, an employer would not be required to retain an employee on leave for service-related illness, injury or disability treatment if (a) compliance with the Act is impossible or unreasonable due to the employer’s significantly changed circumstances; (b) compliance would impose an undue hardship; or (c) the employment from which the person is absent by reason of the receipt of medical treatment is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period. In each of these circumstances, the employer would bear the burden of proof.

After passing the House, this bill was referred to the Senate Committee on Veterans' Affairs. If signed into law, the provisions of this bill would apply to medical treatment received on or after the date of enactment.
 

Economic Stimulus

On Thursday, the House Ways and Means Committee voted 24 to 13 along party lines in favor of its portion of the $825 billion economic recovery package. The bill (H.R. 598) that seeks to provide tax, health and unemployment relief now will be combined with other measures to form H.R. 1, the American Recovery and Reinvestment Act, which is expected to receive full House consideration this week.   H.R. 598 isn't available for complete publication, but its provisions are discussed in a House Ways and Means fact sheet. 

A controversial aspect of this bill for employers is the provision of funds for extended COBRA coverage for the unemployed. The bill would provide a 65 percent subsidy for COBRA continuation premiums for up to 12 months for individuals and their families who have been involuntarily laid off between September 1, 2008 and December 31, 2009. The continuation of health care coverage would last as long as 12 months. Those individuals who were terminated but did not elect COBRA coverage within 60 days as required by law would be given an additional 60 days to do so. This bill also extends COBRA coverage for older (at least 55 years old) and tenured (have been with the employer for at least 10 years) workers. These individuals would be able to maintain their COBRA coverage at their own expense until they become eligible for Medicare or are able to secure alternate employment.

Lawmakers who were concerned about the effect of the cost of continued COBRA coverage for employers offered a number of amendments to the bill, all of which were defeated.

Veterans’ Employment Rights

The Servicemembers Access to Justice Act of 2009 (S. 263) would amend title 38 of the U.S. Code to improve enforcement of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). This bill, among other things, would make agreements to arbitrate a dispute regarding an employee’s USERRA rights unenforceable, except in cases where the agreement is formed after the dispute arises. Moreover, this act would not invalidate the provisions of a collective bargaining agreement. S. 263 would also enhance remedies for USERRA violations. Under this act, an employer found in violation could be liable for both compensatory and punitive damages, as well as attorney’s fees. In addition, this legislation clarifies that USERRA prohibits wage discrimination against a member of the armed forces, and provides for equitable relief when appropriate.

This bill was referred to the Committee on Veterans' Affairs.

Another bill introduced this month seeks to provide employers with an incentive to hire unemployed veterans. The Veterans Jobs Opportunity Act of 2009 (S. 274) would amend the Internal Revenue Code to provide a tax credit to employers that hire an unemployed veteran in 2009 or 2010. An “unemployed veteran” for the purposes of this bill is defined as a veteran who was discharged or released from active duty in the Armed Forces during 2008, 2009 or 2010, and has been receiving unemployment compensation under state or federal law for at least four weeks during the 1-year period ending on the hiring date. This amendment would apply to those hired after December 31, 2008.

This bill was referred to the Committee on Finance. 

Senior Workers

The Health Care and Training for Older Workers Act (S. 281) would, among other things, extend COBRA continuation coverage for certain older workers, and create employment and training programs for seniors. This bill would amend section 602(2) of the Employee Retirement Income Security act of 1974 (ERISA) and section 2202(2)(A) of the Public Health Service Act by inserting a “Special Rule for Certain Older Workers” provision that qualifies an employee for continuing health care coverage if that employee is at least the early retirement age as defined in the Social Security Act, but is not yet entitled to benefits under title XVIII of the Social Security Act based on age.

This bill was referred to the Senate Committee on Health, Education, Labor, and Pensions.

Employee Verification

The Employee Verification Amendment Act of 2009 (H.R. 662) would extend the pilot programs for employment eligibility confirmation, and provide funds to the Commissioner of Social Security and the Secretary of Homeland Security to acquire, install and maintain technological equipment and systems for the implementation of an employment verification confirmation system.

This bill was referred to the Committee on the Judiciary, in addition to the Committees on Education and Labor and Ways and Means.