USERRA for Veterans and RC Servicemembers

USERRAUniformed Services Employment and

Reemployment Rights Act

EMPLOYMENT & REEMPLOYMENT RIGHTS FOR VETERANS AND MILITARY MEMBERS

USERRA Codes & Regulations USERRA Codes & Regulations 38 U.S.C. 4301-4334 (Statute)

20 C.F.R. 1002.1-1002.314 (non-Federal sector regulations) 5 C.F.R. 353.101-353.304 (Federal sector regulations)

The Secretary of Labor, acting through the Veterans’ Employment and Training Service (VETS) is charged with administering the USERRA statute itself.

VETS shall assist any person with respect to employment and reemployment rights and benefits, will conduct investigations of alleged violations in both Federal and non-Federal sectors, and may prescribe regulations implementing the provisions of the statute with respect to States, local governments and private employers

USERRA Purpose The purposes of the Uniformed Services Employment and

Reemployment Rights Act (USERRA) are: to encourage non-career service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service; to minimize the disruption to the lives of persons performing service in the uniformed services as well as to their employers, their fellow employees, and their communities, by providing for the prompt reemployment of such persons upon their completion of such service; and to prohibit discrimination against persons because of their service in the uniformed services. It is the sense of Congress that the Federal Government should be a model employer in carrying out the provisions of USERRA.

Source: 38 U.S.C. § 4301, Purposes and Sense of Congress

LEGISLATIVE BACKGROUND Throughout its history, the United States government has enacted

legislation protecting the men and women who serve in times of armed conflict. During the Civil War, Congress passed legislation protecting service members from legal proceedings they could not attend due to their military commitment. Other recent legislative acts concerning veterans and members of the military include:

Servicemembers Civil Relief Act of 1918 Soldiers’ and Sailors’ Civil Relief Act of 1940 Selective Training and Service Act of 1940 Military Selective Service Act in 1968 (often referred to as the Veterans’

Reemployment Rights Act) Veterans’ Readjustment Assistance Act of 1974 Uniformed Services Employment and Reemployment Rights Act of 1994

LEGISLATIVE BACKGROUND (cont.) USERRA clarifies and strengthens the Veterans'

Reemployment Rights (VRR) Statute by protecting civilian job rights and benefits for veterans, members of reserve components, and even individuals activated by the President of the United States to provide Federal Response for National Emergencies. 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 U.S. Department of Labor assistance in processing claims of noncompliance.

BASIC USERRA PROTECTIONS Discrimination is prohibited in:

– Initial hiring – Promotions – Retention in employment – Employment benefits (seniority vs non-seniority)

Benefits during service – Health Plans – Other benefits – TSP not covered under USERRA

JOB RIGHTS FOR VETERANS AND RESERVE COMPONENT MEMBERS

USERRA establishes the cumulative length of time that an individual may be absent from work for military duty and retain reemployment rights 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.

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.

Source: DOL http://www.dol.gov/vets/programs/userra/userra_fs.htm

JOB RIGHTS FOR VETERANS AND RESERVE COMPONENT MEMBERS (cont.) 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 explicit that all pension plans are protected.


JOB RIGHTS FOR VETERANS AND RESERVE COMPONENT MEMBERS (cont.) Forfeiture of rights. Section 4316(b)(2)(A)(ii). If, prior to leaving for

military service, an employee knowingly provides clear written notice of an intent not to return to work after military service, the employee waives entitlement to leave-of- absence rights and benefits not based on seniority.

At the time of providing the notice, the employee must be aware of the specific rights and benefits to be lost. If the employee lacks that awareness, or is otherwise coerced, the waiver will be ineffective. Notices of intent not to return can waive only leave-of-absence rights and benefits. They cannot surrender other rights and benefits that a person would be entitled to under the law, particularly reemployment rights.

Source: DOL http://www.dol.gov/vets/whatsnew/uguide.pdf

JOB RIGHTS FOR VETERANS AND RESERVE COMPONENT MEMBERS (cont.)Protection from discharge Persons returning from active duty for training were not explicitly

protected under the old law. Under USERRA, a reemployed employee may not be discharged without cause as follows: 2 Section 4316(c)(1). For one year after the date of reemployment if the person’s period of military service was for more than six months (181 days or more).

2 Section 4316(c)(2). For six months after the date of reemployment if the person’s period of military service was for 31 to 180 days.

Persons who serve for 30 or fewer days are not be protected from discharge without cause. However, they are protected from discrimination because of military service or obligation.


Duration of Service Exceptions Duration of Service (Section 4312(c)) The cumulative length service that causes a

person’s absences from a position may not exceed five years. Most types of service will be cumulatively counted in the computation of the five-year period. Exceptions . Eight categories of service are exempt from the five-year limitation. These include:

(1) Service required beyond five years to complete an initial period of obligated service (Section 4312 (c)(1)). Some military specialties, such as the Navy’s nuclear power program, require initial active service obligations beyond five years.

(2) Service from which a person, through no fault of the person, is unable to obtain a release within the five year limit (Section 4312(c)(2)). For example, the five-year limit will not be applied to members of the Navy or Marine Corps whose obligated service dates expire while they are at sea.

Nor will it be applied when service members are involuntarily retained on active duty beyond the expiration of their obligated service date. This was the experience of some persons who served in Operations Desert Shield and Storm.


Duration of Service Exceptions (cont.) (3) Required training for reservists and National Guard members (Section 4312(c)

(3)). The two-week annual training sessions and monthly weekend drills mandated by statute for reservists and National Guard members are exempt from the five-year limitation. Also excluded are additional training requirements certified in writing by the Secretary of the service concerned to be necessary for individual professional development.

(4) Service under an involuntary order to, or to be retained on, active duty during domestic emergency or national security related situations (Section 4312(c)(4)(A)).

(5) Service under an order to, or to remain on, active duty (other than for training) because of a war or national emergency declared by the President or Congress (Section 4312(c)(4)(B)). This category includes service not only by persons involuntarily ordered to active duty, but also service by volunteers who receive orders to active duty.


Duration of Service Exceptions (cont.) (6) Active duty (other than for training) by volunteers supporting

"operational missions" for which Selected Reservists have been ordered to active duty without their consent (Section 4312(c)(4)(c)). Such operational missions involve circumstances other than war or national emergency for which, under presidential authorization, members of the Selected Reserve may be involuntarily ordered to active duty under Title 10, U.S.C. Section 12304. The recent U.S. military involvement in support of restoration of democracy in Haiti (“Uphold Democracy”) was such an operational mission as is the current (as of 1998) operation in Bosnia (“Joint Endeavor”).

This sixth exemption for the five-year limitation covers persons who are called to active duty after volunteering to support operational missions. Persons involuntarily ordered to active duty for operational missions would be covered by the fourth exemption, above.


Duration of Service Exceptions (cont.) . (7) Service by volunteers who are ordered to active duty in

support of a "critical mission or requirement" in times other than war or national emergency and when no involuntary call up is in effect (Section 4312 (c)(4)(D)). The Secretaries of the various military branches each have authority to designate a military operation as a critical mission or requirement.

(8) Federal service by members of the National Guard called into action by the President to suppress an insurrection, repel an invasion, or to execute the laws of the United States (Section 4312(c)(4)(E)).


Escalator Position "Escalator" position . The reemployment position with the highest

priority in the reemployment schemes reflects the "escalator" principle that has been a key concept in federal veterans’ reemployment legislation. The escalator principle requires that each returning service member actually step back onto the seniority escalator at the point the person would have occupied if the person had remained continuously employed.

The position may not necessarily be the same job the person previously held. For instance, if the person would have been promoted with reasonable certainty had the person not been absent, the person would be entitled to that promotion upon reinstatement. On the other hand, the position could be at a lower level than the one previously held, it could be a different job, or it could conceivably be in layoff status.


Escalator Position (cont.) Qualification efforts. Employers must make reasonable efforts to qualify

returning service members who are not qualified for reemployment positions that they otherwise would be entitled to hold for reasons other than a disability incurred or aggravated by military service.

Employers must provide refresher training, and any training necessary to update a returning employee’s skills in situation where the employee is no longer qualified due to technological advances. Training will not be required if it is an undue hardship for the employer, as discussed below. If reasonable efforts fail to qualify a person for the first and second reemployment positions in the above schemes, the person must be placed in a position of equivalent or nearest approximation and pay that the person is qualified to perform (the third reemployment position in the above schemes).


VETERANS AND RESERVE COMPONENT MEMBERS RESPONSIBILITIES

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.


Employee Reinstatement Servicemembers USERRA rights are not diminished because an

employee is employed in a temporary, part-time, probationary or seasonal employment position.

An employer is not required to reinstate an employee who was hired for a brief non-recurrent period without a reasonable expectation that the employment was indefinite or would have continued for a significant amount of time. Seasonal employment does not fall under the latter classification since (while temporary) the employee may have the reasonable expectation that employment may once again become available at the start of the next season.

If the employment position is moved to a lay-off status during an employee’s service period, the employee is reinstated to a lay-off status. The same rule would apply if the position was in a recall status during an employee’s service period.

Employee Reinstatement (cont.) If an employee fails to report for work in a timely manner or

apply for reinstatement under the allotted time frames listed under USERRA, they do not automatically forfeit their USERRA rights. Rather, employees become subject to their employers rules and/or workplace policies relating to unexcused absences.

Any employee who is recovering from a service-related illness or injury, is allotted two years from the date of completion of service to reapply for employment.

Employee Reinstatement (cont.) An employee cannot have been separated from service with a

disqualifying discharge or under other than honorable conditions.

When would service be disqualifying? The statute lists four circumstances:

(1) Separation from the service with a dishonorable or bad conduct discharge. (2) Separation from the service under other than honorable conditions. Regulations for each military branch specify when separation from the service would be considered "other than honorable."

(3) Dismissal of a commissioned officer in certain situations involving a court martial or by order of the President in time of war (Section 1161(a) of Title 10).

(4) Dropping a individual from the rolls when the individual has been absent without authority for more than three months or who is imprisoned by a civilian court. (Section 1161(b) of Title 10)

Employee Reinstatement (cont.)Disabilities incurred or aggravated while in Military Service Section 4313(a)(3).

The following three-part reemployment scheme is required for persons with disabilities incurred or aggravated while in Military Service:

(1) The employer must make reasonable efforts to accommodate a person’s disability so that the person can perform the position that person would have held if the person had remained continuously employed.

(2) If, despite reasonable accommodation efforts, the person is not qualified for the position in (1) due to his or her disability, the person must be employed in a position of equivalent seniority, status, and pay, so long as the employee is qualified to perform the duties of the position or could become qualified to perform them with reasonable efforts by the employer.

(3) If the person does not become qualified for the position in either (1) or (2), the person must be employed in a position that, consistent with the circumstances of that person’s case, most nearly approximates the position in (2) in terms of seniority, status, and pay. The law covers all employers, regardless of size.


Employee Reinstatement (cont.) Conflicting reemployment claims Section 4313(b)(1) & (2)

(A). If two or more persons are entitled to reemployment in the same position, the following reemployment scheme applies: 2 The person who first left the position has the superior right to it.

2 The person without the superior right is entitled to employment with full seniority in any other position that provides similar status and pay in the order of priority under the reemployment scheme otherwise applicable to such person.


Employee Reinstatement (cont.) Changed circumstances Section 4312(d)(1)(A)).

Reemployment of a person is excused if an employer’s circumstances have changed so much that reemployment of the person would be impossible or unreasonable. A reduction-in-force that would have included the person would be an example.

Undue hardship Section 4312(d)(1)(B). Employers are excused from making efforts to qualify returning service members or from accommodating individuals with service- connected disabilities when doing so would be of such difficulty or expense as to cause "undue hardship."


ESGREMPLOYER SUPPORT OF THE GUARD AND

RESERVE

ESGR is a DOD operational committee whose mission is to gain and maintain employer support for Guard and Reserve service by advocating relevant initiatives, recognizing outstanding support, increasing awareness of the law, and resolving conflict between employers and service members. As such, ESGR is the principal advocate within DOD dedicated to providing its customers and stakeholders with information about USERRA.


RESERVE (cont.)

Outreach Programs

ESGR conducts awareness and recognition programs aimed at employers of RC service members to engender positive support for Guard and Reserve service. These programs include the voluntary participation by employers in the Statement of Support Program and recognition of employers who go “above and beyond” the requirements of USERRA.


RESERVE (cont.)

Outreach Programs (cont.)

Employers who participate in the Statement of Support Program pledge that:

They fully recognize, honor and enforce USERRA. Their managers and supervisors will have the tools they need to effectively

manage those employees who serve in the Guard and Reserve. They appreciate the values, leadership, and unique skills service members

bring to the workforce and will encourage opportunities to hire Guardsmen, Reservists,

and veterans. They will continually recognize and support our country’s service members

and their families in peace, in crisis, and in war.


RESERVE (cont.)

Outreach Programs (cont.)

The ESGR awards program is designed to recognize employers for employment policies and practices that are supportive of their employees’ participation in the National Guard and Reserve. Several employer awards originate from nominations submitted by service members, recognizing supervisors with the Patriot Award, and culminating in national recognition of the most outstanding employers with the annual Secretary of Defense Employer Support Freedom Award.

During FY 2012, ESGR recognized 12,073 supervisors of RC service members with the Patriot Award. HQ ESGR received 3,236 nominations for the 2012 Secretary of Defense Employer Support Freedom Award. During the same time period, 54,889 employers signed Statements of Support.


RESERVE (cont.)

Ombudsman Services

The primary means of assisting National Guard and Reserve members with USERRA conflicts is through a nationwide Ombudsman Services Program that reduces, resolves and helps prevent employer and/or employee misunderstandings and problems. The Ombudsman Services Program provides education, information, and neutral third-party services in order to resolve employee/employer USERRA conflicts. ESGR is not an enforcement agency, and does not participate in formal litigation processes.

The ESGR Ombudsman Services Program is available to RC service members and their employers to address USERRA conflicts without litigation. RC service members may also file complaints directly with DOL, which has Congressional authority to investigate USERRA violations and legal authority to subpoena records during an investigation.


RESERVE (cont.)

There are many ways to contact ESGR. Please choose the method most convenient for you.

Phone: For a workplace issue, conflict or question call the Customer Service

Center to speak with a representative: 1-800-336-4590 - Option 1

Mail: Employer Support of the Guard and Reserve4800 Mark Center Drive -

Suite 03E25Alexandria, VA 22350-1200

Online: http://www.esgr.mil/Contact/Request-Assistance.aspx

tel:1-800-336-4590

tel:1-800-336-4590

tel:1-800-336-4590

VBIAVETERANS BENEFITS IMPROVEMENT ACT OF 2004

On March 10, 2005, the Veterans' Employment and Training Service (VETS) of the Department of Labor (Department or DOL) issued an interim final rule to implement a requirement of the Veterans Benefits Improvement Act of 2004 (VBIA), Public Law 108-454 (Dec. 10, 2004). The VBIA amended the Uniformed Services Employment and Reemployment Rights Act (USERRA) by adding a requirement that employers provide a notice of the rights, benefits, and obligations of employees and employers under USERRA.

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USERRA for Veterans and RC Servicemembers

Recruiting & HR

Transcript of USERRA for Veterans and RC Servicemembers