userra u niformed s ervices e mployment and r eemployment r ights a ct of 1994

USERRAUSERRA

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EEmployment and mployment and

RReemploymenteemployment RRightsights AAct ct

of 1994of 1994

USERRA

• Title 38 U.S. Code, Chapter 43, Sections 4301 – 4335

• Annotated at 20 CFR Part 1002 and Public Law 103-353

• Enacted October 13, 1994 as amended, significantly strengthens and expands the employment & reemployment rights of uniformed service members.

Veterans Benefits Improvement Act of 2004 - Public Law 108-454

• Requires employers to provide notice of the rights, benefits and obligations of covered individuals. Employers may provide the notice by posting “Your Rights Under USERRA” where employees notices are customarily placed.

TITLE 38 § 4301-Purpose of USERRA20 CFR Part 1002

Encourages non-career, uniformed service by minimizing the disadvantages of temporarily or periodically leaving covered employment in the public or private sectors in the interest of national defense or public health.

USERRA exempts from coverage

“Brief Nonrecurrent” positions

Section 4312(d)(1)C)

20 CFR Part 1002.21

TITLE 38 § 4303-Covered Positions 20 CFR Part 1002.54-62

• Virtually all other positions whether in the employ of Private sector or Local, State or Federal government.

• Probationary• Career• Casual• Full-time• Part-time

TITLE 38 § 4303(2)-Definitions 20 CFR Part 1002.54-62

• Rights & Benefits means any advantage, profit, privilege, gain, status, account or interest that accrues by reason of employment contract, agreement, policy, plan or practice

• Which includes pension & health plan, stock ownership, insurance coverage, awards, bonuses, vacation, work hours and location.

TITLE 38 § 4303(2)-Definitions 20 CFR Part 1002.54-62

• (4) (A) Employer - any person or entity who pays wages for work performed or

• (iv) Any successor in interest to an employer

• (8) Notice can be Written or Verbal

• (13) Service in the Uniformed Services –

• Voluntary & Required Service is covered.

TITLE 38 § 4312 (b) 20 CFR Part 1002.85-87

• No notice is required if giving such notice is precluded by military necessity or is otherwise impossible or unreasonable.

TITLE 38 § 4311(A)-Covered Activities

20 CFR Part 1002.18 - 20

• A person who is a member of (Membership)• applies to be a member of (INTENT) • Performs, has performed (Present & Past), • applies to perform (VOLUNTARY), • or has an obligation to perform service in a

uniformed service (COMMITMENT)

TITLE 38 §4311(A)-AntiDiscrimination 20 CFR Part 1002.18

• …shall not be denied • initial employment, • reemployment, • retention in employment, • promotion, • or any benefit of employment

TITLE 38 § 4311 (c) 20 CFR Part 1002.18

• ……unless the employer can prove that the action would have been taken in the absence of such membership, application for membership, service, application or obligation for service.

• EVALUATIONS & PERFORMANCE ARE VERY IMPORTANT & WILL BE REVIEWED & COMPAIRED TO ONE’S PEERS

Terminatation Considerations

• How and when should matters of time and attendance be raised as an issue for an employer who is a member of a uniformed service?

• When might that be appropriate? • When might that not be appropriate? • How could such a counseling take place and not

be viewed as a 4311(a) violation?• Does an employer have the right to request

consideration from a military unit commander regarding the possibility of rescheduling a drill?

TITLE 38 § 4312 (d) (1) 20 CFR Part 1002.139

An employer is not required to reemploy a person under this chapter if –

(A) the employer’s circumstances have so changed as to make such reemployment impossible or unreasonable*

TITLE 38 § 4312 (d) (2) 20 CFR Part 1002.139

(in any issue involving whether)• (A) any reemployment is impossible or

unreasonable because of a change in the employer’s circumstances,

• THE EMPLOYER MUST PROVE:• (B) that any accommodation, training or

effort to make the qualified individual ‘whole’ would impose an undue hardship*.

TITLE 38 § 4312 20 CFR Part 1002.99-104

• Protects “Covered Service” max 5 yrs (cumulative) with exceptions:

• Title 10 Section 688, 10147, 12301(a), 12301(g), 12302, 12304 or 12305, 12406

• Title 14 Section 331, 359, 360, 367, or 712

• Title 32 Sections 502(a) or 503

TITLE 38 § 4312 20 CFR Part 1002.99-104

• Initial enlistments of more than 5 years• Hospitalization and convalescence• Ordered to or retained under any provision

of law due to (directly or indirectly) War or National Emergency declared by Congress or the President.

TITLE 38 § 4312 20 CFR Part1002.85-87

Asks Member To:

• Provide advance notice of pending service

• Serve under honorable conditions• Reapply in a timely manner

TITLE 38 § 4312 (e) - “TIMELY” 20 CFR Part 1002.115

• Less than 31 days service – Work Period following travel & 8 hrs rest

• 31-180 days service – Within 14 days of release from service

• More than 180 days - Within 90 days of release of service

What about time off Prior to a Military Service Obligation?

• § 1002.74 Must the employee begin service in the uniformed services immediately after leaving his or her employment position in order to have USERRA reemployment rights?

§ 1002.74• No. At a minimum, an employee must have

enough time after leaving the employment position to travel safely to the uniformed service site and arrive fit to perform the service. Depending on the specific circumstances, including the duration of service, the amount of notice received, and the location of the service, additional time to rest, or to arrange affairs and report to duty, may be necessitated by reason of service in the uniformed services.

§ 1002.74• (a) If the employee performs a full

overnight shift for the civilian employer and travels directly from the work site to perform a full day of uniformed service, the employee would not be considered fit to perform the uniformed service. An absence from that work shift is necessitated so that the employee can report for uniformed service fit for duty.

§ 1002.74• (b) If the employee is ordered to perform an

extended period of service in the uniformed services, he or she may require a reasonable period of time off from the civilian job to put his or her personal affairs in order, before beginning the service. Taking such time off is also necessitated by the uniformed service.

§ 1002.74

• (c) If the employee leaves a position of employment in order to enlist or otherwise perform service in the uniformed services and, through no fault of his or her own, the beginning date of the service is delayed, this delay does not terminate any reemployment rights.

TITLE 38 § 4312 (e) - “TIMELY” 20 CFR Part 1002.115

• Disability incurred or aggravated. • The reporting or application deadlines are

extended for up to two years for persons who are hospitalized or convalescing because of a disability incurred or aggravated during the period of military service.

USERRA Asks Employers

• To release the employee for covered service (military leave, vacation leave* or LWOP)

• * Employee’s option

TITLE 38 § 4312 (h) 20 CFR Part 1002.104

timing, frequency, duration

• A service member’s reemployment rights must be

recognized as long as the individual has complied

with the eligibility requirements

• Employers’ right to request accommodation

• UNITS’ right to refuse

TITLE 38 § 4302 (b) 20 CFR Part 1002.6

USERRA vs. State, Federal, Private, or Union Contracts 

USERRA is to be liberally construed for those who served their country in its hour of great need. No practice of employers or agreements between employers and unions can cut down the benefits which Congress has secured under the Act.

TITLE 38 § 4316 (a) 20 CFR Part 1002.149 /1002.150

• “Escalator position”

• This is precisely the position the service member would have attained, with reasonable certainty, had they remained continuously employed

• Employer must provide notice of, and opportunity for, promotions*

• United States District Court,E.D. New York.Dennis H. FINK, Plaintiff,

• v.

• CITY OF NEW YORK, and New York City Fire Department, Defendants.No. CIV. A. 97-CV-6314 (DGT).March 1, 2001.

• Fire marshal brought action against city and fire department, alleging that he was discriminated and retaliated against in violation of the USERRA and ADA.

• Following verdict in favor of fire marshal, defendants moved for judgment as a matter of law, or, in the alternative, for a new trial. The District Court, Trager, J., held that: (1) veteran established that fire department violated USERRA by failing to offer him a make-up promotional exam immediately upon his return from military service;

Testing, Licenses and Certifications CFR 1002 Part 193

• Where a neutral employment policy provides that a promotional exam shall only be administered on a particular date to all employees, it may constitute discrimination under Uniformed Services Employment and Reemployment Rights Act (USERRA) to refuse to allow veterans away on leave on the date in question to take a make-up exam upon their return from service.

McArthur v. Norfolk & Western Railway Co.,

405 F. Supp. 158, 78 LC }11,211, 91 LRRM 2370 S.D. Ill., 1975)

Fireman Helpers before entering the military, had completed less than 1 year of a training program to become Engineers which included 3 years of actual service and a two-step examination process

McArthur v. Norfolk & Western Railway Co.,

were subsequently reinstated to pre-service jobs, and subsequently satisfied the requirements of the training program

• and were entitled to retroactive seniorityand were entitled to retroactive seniority• since the vast majority of those

completing the training period generally passed the examination and were appointed to Engineer positions.

TITLE 38 § 4316 (a) 20 CFR Part 1002.210, 212

• “Seniority”

– Benefits that would flow or accrue with “reasonable certainty”, with satisfactory performance (presumed), simply through the passage of time

– Entitlement is not seniority based if it is dependent upon hours worked.*

TITLE 38 § 4316 (a) 20 CFR Part 1002.210, 212

• “Seniority” examples

• vacation accrual rate

• sick leave accrual rate

• cost of living adjustments (COLAs) to wage or salary rate

• pension benefits*

TITLE 38 § 4316(b)(1)(A) 20 CFR Part 1002.149

• Entitled to non-seniority employment rights and benefits available to any other employee having similar seniority, status, and pay who [is] on furlough or leave of absence.

• These rights & benefits may be provided under a contract, agreement, policy, practice, or plan in effect at the commencement of or established while such person performs such service.

TITLE 38 § 4316(b)(1)(A) 20 CFR Part 1002.149

• If the employer offers continued life insurance coverage, holiday pay, bonuses, or other non-seniority benefits to its employees on furlough or leave of absence, the employer must also offer the service member similar benefits during the time he or she is absent from work due to military service.

USERRA Reemployment

• USERRA establishes “floor” below which employers’ benefits may not fall:

• Service members’ benefits may be no less than those provided others on any other furlough or leave of absence.

USERRA Hot Spots

• Promotional Testing

During Military Service Obligation?

• Personnel Evaluations

• Attendance and Availability Issues?

• Downsizing and USERRA

• What Would Have Occurred?

• Successor in Interest!

John McKinny; DirectorJohn McKinny; Director

USDOL/VETSUSDOL/VETS

1117 Trinity Street1117 Trinity Street

Austin, Texas 78701Austin, Texas 78701

Phone : (512) 463-2207Phone : (512) 463-2207

E-mail: mckinny.john@dol.govE-mail: mckinny.john@dol.gov

Additional Resources

• http://www.esgr.gov

• Employer Support for the Guard and Reserve

• http://www.dol.gov/vets

• Veterans’ Employment & Training Service

• http://www.dol.gov/pwba

• Pension and Welfare Benefits Administration