U.S. Department of JusticeUnited States AttorneyEastern District of North Carolina310 New Bern Avenue, Suite 800Raleigh, North Carolina 27601(919) 856-4530

EMPLOYMENT RIGHTS OFTHE NATIONAL GUARD &

RESERVE

Since the founding of our Republic, the citizen soldier has been readyon-call to leave home and protect our nation. Although the UnitedStates has the greatest standing military force in the world today, thatforce cannot accomplish its mission of protecting liberty without thesupport and augmentation of citizen soldiers, whether from the Armyor Air National Guard or from the Army, Navy, Marine, Air Force, orCoast Guard Reserve. When citizen soldiers leave their families andcivilian employment to protect our liberty, we have an obligation tothem to protect their legal rights. This handbook summarizes andexplains in plain language the legal rights of citizen soldiers under threefederal statutes: the Uniformed Services Employment andReemployment Rights Act (USERRA), the Soldiers’ and Sailors’ CivilRelief Act (SSCRA), and the Family and Medical Leave Act (FMLA).We hope citizen soldiers, their family members, and employers find thishandbook useful.

Frank D. WhitneyUnited States AttorneyEastern District of North Carolina -i-

Table of ContentsUSERRA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Major sections of the law . . . . . . . . . . . . . . . . . . 2Federal law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3Applicability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6Five-year limit . . . . . . . . . . . . . . . . . . . . . . . . . . . 6Reemployment procedures . . . . . . . . . . . . . . . . 8Reemployment position . . . . . . . . . . . . . . . . . . . 9Reemployment entitlements . . . . . . . . . . . . . . . . 9Documentation . . . . . . . . . . . . . . . . . . . . . . . . . 10Health Care . . . . . . . . . . . . . . . . . . . . . . . . . . . 11Pensions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11Vacations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11Assistance and enforcement . . . . . . . . . . . . . . 12

USERRA Provisions . . . . . . . . . . . . . . . . . . . . . . . . . 13Protection of accrual rights . . . . . . . . . . . . . . . . 13Protection of contributions . . . . . . . . . . . . . . . . 13Protection of company match contributions . . . 13Protection of loan provisions . . . . . . . . . . . . . . 14Protection of vesting rights . . . . . . . . . . . . . . . . 14

Making It Easier For Civilian Employers Of Those Who Serve In The National-Guard And Reserve . . 16

USERRA FAQs for Employers . . . . . . . . . . . . . . . . . 19

A Smooth Transition For National Guard And Reserve Members: Avoiding Job Conflicts . . . . . . 27

Talk to your boss . . . . . . . . . . . . . . . . . . . . . . . 27Federal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

U.S. Department of JusticeUnited States AttorneyEastern District of North Carolina310 New Bern Avenue, Suite 800Raleigh, North Carolina 27601(919) 856-4530

EMPLOYMENT RIGHTS OFTHE NATIONAL GUARD &

RESERVE

Since the founding of our Republic, the citizen soldier has been readyon-call to leave home and protect our nation. Although the UnitedStates has the greatest standing military force in the world today, thatforce cannot accomplish its mission of protecting liberty without thesupport and augmentation of citizen soldiers, whether from the Armyor Air National Guard or from the Army, Navy, Marine, Air Force, orCoast Guard Reserve. When citizen soldiers leave their families andcivilian employment to protect our liberty, we have an obligation tothem to protect their legal rights. This handbook summarizes andexplains in plain language the legal rights of citizen soldiers under threefederal statutes: the Uniformed Services Employment andReemployment Rights Act (USERRA), the Soldiers’ and Sailors’ CivilRelief Act (SSCRA), and the Family and Medical Leave Act (FMLA).We hope citizen soldiers, their family members, and employers find thishandbook useful.

Frank D. WhitneyUnited States AttorneyEastern District of North Carolina -i-

Table of ContentsUSERRA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Major sections of the law . . . . . . . . . . . . . . . . . . 2Federal law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3Applicability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6Five-year limit . . . . . . . . . . . . . . . . . . . . . . . . . . . 6Reemployment procedures . . . . . . . . . . . . . . . . 8Reemployment position . . . . . . . . . . . . . . . . . . . 9Reemployment entitlements . . . . . . . . . . . . . . . . 9Documentation . . . . . . . . . . . . . . . . . . . . . . . . . 10Health Care . . . . . . . . . . . . . . . . . . . . . . . . . . . 11Pensions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11Vacations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11Assistance and enforcement . . . . . . . . . . . . . . 12

USERRA Provisions . . . . . . . . . . . . . . . . . . . . . . . . . 13Protection of accrual rights . . . . . . . . . . . . . . . . 13Protection of contributions . . . . . . . . . . . . . . . . 13Protection of company match contributions . . . 13Protection of loan provisions . . . . . . . . . . . . . . 14Protection of vesting rights . . . . . . . . . . . . . . . . 14

Making It Easier For Civilian Employers Of Those Who Serve In The National-Guard And Reserve . . 16

USERRA FAQs for Employers . . . . . . . . . . . . . . . . . 19

A Smooth Transition For National Guard And Reserve Members: Avoiding Job Conflicts . . . . . . 27

Talk to your boss . . . . . . . . . . . . . . . . . . . . . . . 27Federal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

-ii-

Drill Schedules . . . . . . . . . . . . . . . . . . . . . . 28Annual Training Schedules . . . . . . . . . . . . . 29Extra training . . . . . . . . . . . . . . . . . . . . . . . 29Non-Training Active Duty . . . . . . . . . . . . . . 29Emergency / Contingency Duty . . . . . . . . . 30Scheduling . . . . . . . . . . . . . . . . . . . . . . . . . 30Vacation . . . . . . . . . . . . . . . . . . . . . . . . . . . 30Vacation Accrual . . . . . . . . . . . . . . . . . . . . . 31Pay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31Federal Employees Paid Military Leave . . . 31National Guard and Reserve Members that

are Students . . . . . . . . . . . . . . . . . . 32Reward the Boss for Supporting Your

Service . . . . . . . . . . . . . . . . . . . . . . . 32

USERRA FAQS for Service Members . . . . . . . . . . . 34

Employment Rights And Benefits Of Federal Civilian Employees Who Perform Active Military Duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Employee Assistance Programs (EAPs) . . . 44Pay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44Military Leave . . . . . . . . . . . . . . . . . . . . . . . 45Annual Leave . . . . . . . . . . . . . . . . . . . . . . . 46Leave Without Pay (LWOP) . . . . . . . . . . . . 46Lump-sum Leave Payments . . . . . . . . . . . . 47Health Benefits . . . . . . . . . . . . . . . . . . . . . . 47Termination . . . . . . . . . . . . . . . . . . . . . . . . . 48Return to Active Federal Service . . . . . . . . 49Life Insurance . . . . . . . . . . . . . . . . . . . . . . . 50Return to Active Federal Service . . . . . . . . 51Retirement . . . . . . . . . . . . . . . . . . . . . . . . . 51Thrift Savings Plan . . . . . . . . . . . . . . . . . . . 52Return to Civilian Duty . . . . . . . . . . . . . . . . 53Appeal Rights . . . . . . . . . . . . . . . . . . . . . . . 55Documenting Personnel Actions . . . . . . . . . 55

-iii-

Veterans' Reemployment Rights (VRR)Expiration of the Veterans Readjustment AppointmentAuthority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

Who is Covered? . . . . . . . . . . . . . . . . . . . . . . . 58Basic Provisions/ Requirements . . . . . . . . . . . . 58Assistance Available . . . . . . . . . . . . . . . . . . . . 60Relation to State, Local and Other Federal

Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . 60Veterans’ Readjustment Act . . . . . . . . . . . . . . . 60Service Requirements. . . . . . . . . . . . . . . . . . . . 61Time Limit . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62Training Requirement . . . . . . . . . . . . . . . . . . . . 62Grade Level of Jobs That Can be Filled . . . . . . 62Conditions of Employment. . . . . . . . . . . . . . . . 62How to Apply. . . . . . . . . . . . . . . . . . . . . . . . . . . 63

30% or More Disabled Veteran Program . . . . . . . . . 64Who is Eligible? . . . . . . . . . . . . . . . . . . . . . . . . 64Grade Level of Jobs That Can be Filled. . . . . . 64Conditions of Employment. . . . . . . . . . . . . . . 64Conditions of Qualifications. . . . . . . . . . . . . . . . 64How to Apply . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Soldiers' And Sailors' Civil Relief Act . . . . . . . . . . . 66Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . 66Termination of Pre-Service Lease Agreements 66Evictions From Leased Housing . . . . . . . . . . . . 686% Interest Rate . . . . . . . . . . . . . . . . . . . . . . . 68Court Proceedings . . . . . . . . . . . . . . . . . . . . . . 69Installment Contracts and Auto Leases . . . . . . 71Enforcement of Obligations, Liabilities, Taxes . 71

Family and Medical Leave Act (FMLA) . . . . . . . . . . 72What is the Family and Medical Leave Act? . . 72What are the leave eligibility provisions of the

FMLA? . . . . . . . . . . . . . . . . . . . . . . . . . . 72

-ii-

Drill Schedules . . . . . . . . . . . . . . . . . . . . . . 28Annual Training Schedules . . . . . . . . . . . . . 29Extra training . . . . . . . . . . . . . . . . . . . . . . . 29Non-Training Active Duty . . . . . . . . . . . . . . 29Emergency / Contingency Duty . . . . . . . . . 30Scheduling . . . . . . . . . . . . . . . . . . . . . . . . . 30Vacation . . . . . . . . . . . . . . . . . . . . . . . . . . . 30Vacation Accrual . . . . . . . . . . . . . . . . . . . . . 31Pay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31Federal Employees Paid Military Leave . . . 31National Guard and Reserve Members that

are Students . . . . . . . . . . . . . . . . . . 32Reward the Boss for Supporting Your

Service . . . . . . . . . . . . . . . . . . . . . . . 32

USERRA FAQS for Service Members . . . . . . . . . . . 34

Employment Rights And Benefits Of Federal Civilian Employees Who Perform Active Military Duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Employee Assistance Programs (EAPs) . . . 44Pay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44Military Leave . . . . . . . . . . . . . . . . . . . . . . . 45Annual Leave . . . . . . . . . . . . . . . . . . . . . . . 46Leave Without Pay (LWOP) . . . . . . . . . . . . 46Lump-sum Leave Payments . . . . . . . . . . . . 47Health Benefits . . . . . . . . . . . . . . . . . . . . . . 47Termination . . . . . . . . . . . . . . . . . . . . . . . . . 48Return to Active Federal Service . . . . . . . . 49Life Insurance . . . . . . . . . . . . . . . . . . . . . . . 50Return to Active Federal Service . . . . . . . . 51Retirement . . . . . . . . . . . . . . . . . . . . . . . . . 51Thrift Savings Plan . . . . . . . . . . . . . . . . . . . 52Return to Civilian Duty . . . . . . . . . . . . . . . . 53Appeal Rights . . . . . . . . . . . . . . . . . . . . . . . 55Documenting Personnel Actions . . . . . . . . . 55

-iii-

Veterans' Reemployment Rights (VRR)Expiration of the Veterans Readjustment AppointmentAuthority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

Who is Covered? . . . . . . . . . . . . . . . . . . . . . . . 58Basic Provisions/ Requirements . . . . . . . . . . . . 58Assistance Available . . . . . . . . . . . . . . . . . . . . 60Relation to State, Local and Other Federal

Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . 60Veterans’ Readjustment Act . . . . . . . . . . . . . . . 60Service Requirements. . . . . . . . . . . . . . . . . . . . 61Time Limit . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62Training Requirement . . . . . . . . . . . . . . . . . . . . 62Grade Level of Jobs That Can be Filled . . . . . . 62Conditions of Employment. . . . . . . . . . . . . . . . 62How to Apply. . . . . . . . . . . . . . . . . . . . . . . . . . . 63

30% or More Disabled Veteran Program . . . . . . . . . 64Who is Eligible? . . . . . . . . . . . . . . . . . . . . . . . . 64Grade Level of Jobs That Can be Filled. . . . . . 64Conditions of Employment. . . . . . . . . . . . . . . 64Conditions of Qualifications. . . . . . . . . . . . . . . . 64How to Apply . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Soldiers' And Sailors' Civil Relief Act . . . . . . . . . . . 66Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . 66Termination of Pre-Service Lease Agreements 66Evictions From Leased Housing . . . . . . . . . . . . 686% Interest Rate . . . . . . . . . . . . . . . . . . . . . . . 68Court Proceedings . . . . . . . . . . . . . . . . . . . . . . 69Installment Contracts and Auto Leases . . . . . . 71Enforcement of Obligations, Liabilities, Taxes . 71

Family and Medical Leave Act (FMLA) . . . . . . . . . . 72What is the Family and Medical Leave Act? . . 72What are the leave eligibility provisions of the

FMLA? . . . . . . . . . . . . . . . . . . . . . . . . . . 72

-iv-

What effect does USERRA have on these requirements? . . . . . . . . . . . . . . . . . 73

How should the 12-month FMLA requirement becalculated for returning service members? . . . . . . . . . . . . . . . . . . . . 73

How should the 1250 hours-of-service requirement be calculated for returningservice members? . . . . . . . . . . . . . . 74

USERRA - A Quick Look . . . . . . . . . . . . . . . . . . . . . 75Reemployment Timing . . . . . . . . . . . . . . . . 76Going Above and Beyond . . . . . . . . . . . . . . 77Retirement Plan Participant Practical

Checklist . . . . . . . . . . . . . . . . . . . . . 77

USERRA Complaints . . . . . . . . . . . . . . . . . . . . . . . . 82What do I do if I believe my veterans'

preference rights were violated? . . . 82Filing a USERRA Complaint with OSC . . . . 83Disclosure Unit . . . . . . . . . . . . . . . . . . . . . . 84Uniformed Services Employment and

Reemployment Rights Act (Veterans' Rights) . . . . . . . . . . . . . . 84

Corrective Action . . . . . . . . . . . . . . . . . . . . 84Intervention . . . . . . . . . . . . . . . . . . . . . . . . . 85How can a person file a complaint of prohibited

personnel practices or other prohibitedemployment activity with the OSC? . 85

Are federal employees required to cooperate with OSC investigations? 86

What legal responsibilities do federal agencies have to prevent prohibited personnel practices? . . . . . . . . . . . . . . . . . . . . 86

Answers to frequently asked questions about the 2302(c) program . . . . . . . 87

Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

1

USERRAThe Uniformed Services Employment and ReemploymentRights Act (USERRA) was enacted to ensure that members ofthe uniformed services are entitled to return to their civilianemployment upon completion of their service. They should bereinstated with the seniority, status, and rate of pay they wouldhave obtained had they remained continuously employed by theircivilian employer. The law also protects individuals fromdiscrimination in hiring, promotion, and retention on the basis ofpresent and future membership in the armed services.

USERRA is a follow up to the Veterans Reemployment Rights(VRR). The Soldier and Sailors Civil Relief Act (SSCRA) andthe Family and Medical Leave Act (FMLA) go further to protectour service members and is used in conjunction with USERRA.Congress provided clear protection for all members of theuniformed services (including non-career National Guard andReserve members, as well as active duty personnel). On October13, 1994, Congress enacted Pub. Law 103-353, The UniformedServices Employment and Reemployment Rights Act(USERRA), Chapter 43 of Title 38, U.S. code.

USERRA defines the employment and reemployment rights of alluniformed service members; the law is administered and enforcedby the Department of Labor Veterans' Employment and TrainingService (DoL/VETS).

The Department of Labor is the enforcement authority forUSERRA, and it processes all formal complaints of violations ofthe law.

-iv-

What effect does USERRA have on these requirements? . . . . . . . . . . . . . . . . . 73

How should the 12-month FMLA requirement becalculated for returning service members? . . . . . . . . . . . . . . . . . . . . 73

How should the 1250 hours-of-service requirement be calculated for returningservice members? . . . . . . . . . . . . . . 74

USERRA - A Quick Look . . . . . . . . . . . . . . . . . . . . . 75Reemployment Timing . . . . . . . . . . . . . . . . 76Going Above and Beyond . . . . . . . . . . . . . . 77Retirement Plan Participant Practical

Checklist . . . . . . . . . . . . . . . . . . . . . 77

USERRA Complaints . . . . . . . . . . . . . . . . . . . . . . . . 82What do I do if I believe my veterans'

preference rights were violated? . . . 82Filing a USERRA Complaint with OSC . . . . 83Disclosure Unit . . . . . . . . . . . . . . . . . . . . . . 84Uniformed Services Employment and

Reemployment Rights Act (Veterans' Rights) . . . . . . . . . . . . . . 84

Corrective Action . . . . . . . . . . . . . . . . . . . . 84Intervention . . . . . . . . . . . . . . . . . . . . . . . . . 85How can a person file a complaint of prohibited

personnel practices or other prohibitedemployment activity with the OSC? . 85

Are federal employees required to cooperate with OSC investigations? 86

What legal responsibilities do federal agencies have to prevent prohibited personnel practices? . . . . . . . . . . . . . . . . . . . . 86

Answers to frequently asked questions about the 2302(c) program . . . . . . . 87

Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

1

USERRAThe Uniformed Services Employment and ReemploymentRights Act (USERRA) was enacted to ensure that members ofthe uniformed services are entitled to return to their civilianemployment upon completion of their service. They should bereinstated with the seniority, status, and rate of pay they wouldhave obtained had they remained continuously employed by theircivilian employer. The law also protects individuals fromdiscrimination in hiring, promotion, and retention on the basis ofpresent and future membership in the armed services.

USERRA is a follow up to the Veterans Reemployment Rights(VRR). The Soldier and Sailors Civil Relief Act (SSCRA) andthe Family and Medical Leave Act (FMLA) go further to protectour service members and is used in conjunction with USERRA.Congress provided clear protection for all members of theuniformed services (including non-career National Guard andReserve members, as well as active duty personnel). On October13, 1994, Congress enacted Pub. Law 103-353, The UniformedServices Employment and Reemployment Rights Act(USERRA), Chapter 43 of Title 38, U.S. code.

USERRA defines the employment and reemployment rights of alluniformed service members; the law is administered and enforcedby the Department of Labor Veterans' Employment and TrainingService (DoL/VETS).

The Department of Labor is the enforcement authority forUSERRA, and it processes all formal complaints of violations ofthe law.

2

MAJOR SECTIONS OF THE LAW:

! Coverage now encompasses the Public HealthService, the Coast Guard, and others designated bythe President in time of war or emergency;

! A 5-year limit (with some exceptions) is imposed onthe cumulative length of time a person may serve inthe military and remain eligible for reemploymentrights with the pre-service employer; this does notinclude scheduled drills and applies to per employer;

! An individual is required to give advance notice eitherwritten or verbal to their employer prior to departingfor military service;

! Time limits have been set for reporting back to work,based on the length of time in the uniformed service,not the type of service, and requires documentation ofsuch service, if available;

! Employer provided health insurance continues at theservice member's request for an 18-month period,with payment of up to 102% of the full premium bythe service member;

! An employee's military service is not to be considereda break in employment for pension benefit purposes,and provides that the person's military service must beconsidered service with an employer for vesting andbenefit accrual purposes;

! The U.S. Department of Labor Veterans' Employmentand Training Service (VETS) shall assist allemployees, including federal government workers.

3

Important changes in military leave of absence managementinclude:

! An employee no longer requests permission to be absentfor military leave but rather provides notification ofpending military service.

! There is no longer any differentiation between voluntaryand involuntary service.

! An employee cannot be required to use earned vacationor similar leave days for military leave of absence.

! Military service will not be counted as time away fromthe employer for retirement purposes (Federal employeesshould review the Code of Federal Regulations, series 5CFR 353.201-210 for details related to theiremployment.).

USERRA was significantly updated in 1996 and 1998. It providesreemployment protection and other benefits for veterans andemployees who perform military service. It clarifies the rightsand responsibilities of National Guard and Reserve members, aswell as their civilian employers. It applies almost universally toall employers - including the federal government - regardless ofthe size of their business.

FEDERAL LAW.

No law, policy, practices, etc. that would diminish the rightsestablished in USERRA will take precedence over the provisionsof USERRA. In contrast, USERRA does not supersede, nullify,or diminish any federal or state law, or company policy, unionagreement, practice or contract that provides greater rights orbenefits to service members.

2

MAJOR SECTIONS OF THE LAW:

! Coverage now encompasses the Public HealthService, the Coast Guard, and others designated bythe President in time of war or emergency;

! A 5-year limit (with some exceptions) is imposed onthe cumulative length of time a person may serve inthe military and remain eligible for reemploymentrights with the pre-service employer; this does notinclude scheduled drills and applies to per employer;

! An individual is required to give advance notice eitherwritten or verbal to their employer prior to departingfor military service;

! Time limits have been set for reporting back to work,based on the length of time in the uniformed service,not the type of service, and requires documentation ofsuch service, if available;

! Employer provided health insurance continues at theservice member's request for an 18-month period,with payment of up to 102% of the full premium bythe service member;

! An employee's military service is not to be considereda break in employment for pension benefit purposes,and provides that the person's military service must beconsidered service with an employer for vesting andbenefit accrual purposes;

! The U.S. Department of Labor Veterans' Employmentand Training Service (VETS) shall assist allemployees, including federal government workers.

3

Important changes in military leave of absence managementinclude:

! An employee no longer requests permission to be absentfor military leave but rather provides notification ofpending military service.

! There is no longer any differentiation between voluntaryand involuntary service.

! An employee cannot be required to use earned vacationor similar leave days for military leave of absence.

! Military service will not be counted as time away fromthe employer for retirement purposes (Federal employeesshould review the Code of Federal Regulations, series 5CFR 353.201-210 for details related to theiremployment.).

USERRA was significantly updated in 1996 and 1998. It providesreemployment protection and other benefits for veterans andemployees who perform military service. It clarifies the rightsand responsibilities of National Guard and Reserve members, aswell as their civilian employers. It applies almost universally toall employers - including the federal government - regardless ofthe size of their business.

FEDERAL LAW.

No law, policy, practices, etc. that would diminish the rightsestablished in USERRA will take precedence over the provisionsof USERRA. In contrast, USERRA does not supersede, nullify,or diminish any federal or state law, or company policy, unionagreement, practice or contract that provides greater rights orbenefits to service members.

4

APPLICABILITY.

USERRA applies to all employers in the United States,regardless of the size of their business. It protects part-timepositions, unless the employment is for a brief, non-recurringperiod and is not expected to last indefinitely or for a significantperiod. USERRA does not protect independent contractors andothers considered to be self-employed.

DEFINITIONS.

Section 4303 contains a number of definitions which help clarifythe law when applying to a civilian employment rights scenario.

! The law protects persons who perform service in theuniformed services. "Service" includes active orinactive duty under federal authority.

! State call-ups of members of the Army or AirNational Guard are not protected under USERRA,because the term "employer," as it applies to NationalGuard technicians, refers to the Adjutant General ofthe state. Therefore, National Guard technicians onother than active or inactive duty for training areconsidered to be state employees and are not affordedprotection under USERRA.

! "Uniformed services" encompasses the active andReserve components of the Armed Forces, the Armyand Air National Guard, the Commissioned Corps ofthe Public Health Service, and any other category ofpersons designated by the President in time of war oremergency.

5

DISCRIMINATION.

USERRA prohibits discrimination in hiring, retention,promotions, or other benefits of employment against a personbecause that person "is a member of, applies to be a member of,performs, has performed, applies to perform, or has an obligationto perform service in a uniformed service...." Employers areprohibited from retaliation against anyone who exercisesUSERRA rights or anyone who assists in the exercise of thoserights by either testifying or participating in an investigation,even if that person has no military connection.

ELIGIBILITY.

To qualify for reemployment rights following military service,you must meet the following five eligibility criteria:

! You must have left a civilian job;

! You must have given notice that you were leaving toperform military service;

! The cumulative period of service must not have exceededfive years (there are exceptions);

! You must have been released from service underhonorable or general conditions; and

! You must have reported back to work or applied forreemployment within time constraints prescribed by law.

4

APPLICABILITY.

USERRA applies to all employers in the United States,regardless of the size of their business. It protects part-timepositions, unless the employment is for a brief, non-recurringperiod and is not expected to last indefinitely or for a significantperiod. USERRA does not protect independent contractors andothers considered to be self-employed.

DEFINITIONS.

Section 4303 contains a number of definitions which help clarifythe law when applying to a civilian employment rights scenario.

! The law protects persons who perform service in theuniformed services. "Service" includes active orinactive duty under federal authority.

! State call-ups of members of the Army or AirNational Guard are not protected under USERRA,because the term "employer," as it applies to NationalGuard technicians, refers to the Adjutant General ofthe state. Therefore, National Guard technicians onother than active or inactive duty for training areconsidered to be state employees and are not affordedprotection under USERRA.

! "Uniformed services" encompasses the active andReserve components of the Armed Forces, the Armyand Air National Guard, the Commissioned Corps ofthe Public Health Service, and any other category ofpersons designated by the President in time of war oremergency.

5

DISCRIMINATION.

USERRA prohibits discrimination in hiring, retention,promotions, or other benefits of employment against a personbecause that person "is a member of, applies to be a member of,performs, has performed, applies to perform, or has an obligationto perform service in a uniformed service...." Employers areprohibited from retaliation against anyone who exercisesUSERRA rights or anyone who assists in the exercise of thoserights by either testifying or participating in an investigation,even if that person has no military connection.

ELIGIBILITY.

To qualify for reemployment rights following military service,you must meet the following five eligibility criteria:

! You must have left a civilian job;

! You must have given notice that you were leaving toperform military service;

! The cumulative period of service must not have exceededfive years (there are exceptions);

! You must have been released from service underhonorable or general conditions; and

! You must have reported back to work or applied forreemployment within time constraints prescribed by law.

6

NOTICE.

Under USERRA, you (or an officer from yourcommand) must give your employer advance notice (eitherwritten or verbal) of scheduled/upcoming military service of anytype. If not you will not be eligible for reemployment protectionfollowing the period of military service. The only exceptions tothe notification requirement would be if the giving of notice isprecluded by military necessity (e.g. a classified recall) or if it isotherwise impossible or unreasonable to give notice. Theseexceptions to the notice requirement are expected to be very rare.The best course of action is to give as much advance notice toyour employer as possible.

FIVE-YEAR LIMIT.

USERRA sets a cumulative limit of 5-years on theamount of military service you can perform and retainreemployment rights with a given employer. If you get a newemployer, you get a new 5-year limit.

Exceptions to the 5-year limit:

! If you are unable to obtain release or if service isrequired to complete an initial period of obligatedservice, that time of service is exempt (examples:An initial enlistment may last more than 5 years,such as for nuclear power training. In this case, anemployee retains reinstatement rights with theemployer).

7

! If an employee washospitalized for or isconvalescing from an illnessor injury incurred in, oraggravated during militaryservice, the limit may beextended up to an additional2 years.

! Drills (inactive dutytraining), annual training,involuntary active dutyextensions (includingtraining certified asnecessary by your service),and recalls due to a war ornational emergency are notcounted in the 5-yearcumulative total.

USERRA establishes that reemployment protection does notdepend on the timing, frequency, duration, or nature of anindividual's service. USERRA states that while an individual isperforming military service he or she is deemed to be on afurlough or leave of absence and is entitled to the non-seniorityrights accorded other individuals on nonmilitary leaves ofabsence.

NOTE: If you were employed by the same employer both beforeand after USERRA's effective date of December 12, 1994,military service that you performed under the previous law willcount against the USERRA 5-year limit.

6

NOTICE.

Under USERRA, you (or an officer from yourcommand) must give your employer advance notice (eitherwritten or verbal) of scheduled/upcoming military service of anytype. If not you will not be eligible for reemployment protectionfollowing the period of military service. The only exceptions tothe notification requirement would be if the giving of notice isprecluded by military necessity (e.g. a classified recall) or if it isotherwise impossible or unreasonable to give notice. Theseexceptions to the notice requirement are expected to be very rare.The best course of action is to give as much advance notice toyour employer as possible.

FIVE-YEAR LIMIT.

USERRA sets a cumulative limit of 5-years on theamount of military service you can perform and retainreemployment rights with a given employer. If you get a newemployer, you get a new 5-year limit.

Exceptions to the 5-year limit:

! If you are unable to obtain release or if service isrequired to complete an initial period of obligatedservice, that time of service is exempt (examples:An initial enlistment may last more than 5 years,such as for nuclear power training. In this case, anemployee retains reinstatement rights with theemployer).

7

! If an employee washospitalized for or isconvalescing from an illnessor injury incurred in, oraggravated during militaryservice, the limit may beextended up to an additional2 years.

! Drills (inactive dutytraining), annual training,involuntary active dutyextensions (includingtraining certified asnecessary by your service),and recalls due to a war ornational emergency are notcounted in the 5-yearcumulative total.

USERRA establishes that reemployment protection does notdepend on the timing, frequency, duration, or nature of anindividual's service. USERRA states that while an individual isperforming military service he or she is deemed to be on afurlough or leave of absence and is entitled to the non-seniorityrights accorded other individuals on nonmilitary leaves ofabsence.

NOTE: If you were employed by the same employer both beforeand after USERRA's effective date of December 12, 1994,military service that you performed under the previous law willcount against the USERRA 5-year limit.

8

REEMPLOYMENT PROCEDURES.

The type of military duty performed doesn't relate to getting yourjob back. Reinstatement is strictly based on the duration of theuniformed service.

! For periods of military service 30 days or less, you mustreport back to work at the next regularly scheduled shift onthe day following release from the military, albeit safetravel home, and eight hours of rest.

! For longer periods of service, reemployment is notnecessarily immediate, however should be within a matterof days or at most a few weeks. For a period of 31-180days of service, you must apply for reemployment within14 days following release.

! For a period of service of 181 days or more, you mustapply for reemployment within 90 days after release.

! When applying for reemployment you should identifyyourself, explain that you left that employer to performmilitary service, that you have completed the service andwant to be reinstated. Failure to do so within the specifiedtime limits through your own fault does not necessarilyforfeit your reemployment rights, but makes you subject tothe employer's rules concerning unauthorized absence fromwork.

9

REEMPLOYMENT POSITION.

Employees returning from military service must be reemployedin the job that they would have attained had they not been absentfor military service and with the same seniority, status and pay,as well as other rights and benefits determined by seniority.Reasonable efforts must be made to enable returning employeesto refresh or upgrade their skills to enable them to qualify forreemployment. If refresher training is not successful, USERRAstates that the employee must be reinstated in a position that mostnearly approximates the originally held position.

Employees who are disabled (temporarily or permanently) due tomilitary service must also be accommodated in a position mostnearly approximating their original position.

REEMPLOYMENT ENTITLEMENTS.

Upon completion of military service, if you meet the eligibilitycriteria outlined above, you have several specific entitlements.Such as:

! Prompt reemployment.

! Seniority, seniority-related benefits (including pension),status, and rate of pay as if you were continuouslyemployed during the military absence.

! Immediate reinstatement of health insurance for you andpreviously covered dependents, with no waiting period andno exclusion of preexisting conditions, except conditionsdetermined by the Government to be service-connected.

! Training or retraining by your employer if that is necessaryto qualify you for the reemployment.

8

REEMPLOYMENT PROCEDURES.

The type of military duty performed doesn't relate to getting yourjob back. Reinstatement is strictly based on the duration of theuniformed service.

! For periods of military service 30 days or less, you mustreport back to work at the next regularly scheduled shift onthe day following release from the military, albeit safetravel home, and eight hours of rest.

! For longer periods of service, reemployment is notnecessarily immediate, however should be within a matterof days or at most a few weeks. For a period of 31-180days of service, you must apply for reemployment within14 days following release.

! For a period of service of 181 days or more, you mustapply for reemployment within 90 days after release.

! When applying for reemployment you should identifyyourself, explain that you left that employer to performmilitary service, that you have completed the service andwant to be reinstated. Failure to do so within the specifiedtime limits through your own fault does not necessarilyforfeit your reemployment rights, but makes you subject tothe employer's rules concerning unauthorized absence fromwork.

9

REEMPLOYMENT POSITION.

Employees returning from military service must be reemployedin the job that they would have attained had they not been absentfor military service and with the same seniority, status and pay,as well as other rights and benefits determined by seniority.Reasonable efforts must be made to enable returning employeesto refresh or upgrade their skills to enable them to qualify forreemployment. If refresher training is not successful, USERRAstates that the employee must be reinstated in a position that mostnearly approximates the originally held position.

Employees who are disabled (temporarily or permanently) due tomilitary service must also be accommodated in a position mostnearly approximating their original position.

REEMPLOYMENT ENTITLEMENTS.

Upon completion of military service, if you meet the eligibilitycriteria outlined above, you have several specific entitlements.Such as:

! Prompt reemployment.

! Seniority, seniority-related benefits (including pension),status, and rate of pay as if you were continuouslyemployed during the military absence.

! Immediate reinstatement of health insurance for you andpreviously covered dependents, with no waiting period andno exclusion of preexisting conditions, except conditionsdetermined by the Government to be service-connected.

! Training or retraining by your employer if that is necessaryto qualify you for the reemployment.

10

! If you were disabled while on military duty, or a disabilityis aggravated by military service, your employer mustmake reasonable efforts to accommodate the disability. Ifyour period of service was 181 days or more, you areprotected from discharge, except for cause, for one year. Ifthe service was for 31-180 days, the period of protectionfrom discharge is 180 days.

DOCUMENTATION.

Upon completion of service of 31 days or more you should beprepared to provide documentation to the employer.

! The documentation establishes that your application forreemployment was timely;

! You have not exceeded the cumulative 5-year limit;

! You were discharged under “honorable” or “general”conditions (i.e., you did not receive a punitive type ofdischarge). If the documentation is not readily available, ordoesn't exist, the employer can't deny you reemployment,although if documentation later becomes available andshows you did not qualify for reemployment, the employermay immediately terminate you. Legal forms ofdocumentation could include a DD-214, endorsed orders,or a letter from your command.

11

HEALTH CARE.

If the period of service is 30 days or less, you pay the normalemployee cost, if any, for the coverage. You may elect tocontinue employer-provided health insurance for a period up tothe first 18 months of your military service. However, if theservice is 31 days or more, you could be required to pay up to102 % of the total premium. You are also entitled to any non-seniority-related benefits that the employer offers to employeeson nonmilitary leaves of absence (e.g. jury duty).

PENSIONS.

All pension plans in which benefits are earned for length ofservice are protected.

VACATIONS.

While on active duty, you may choose to use any personalvacation you have earned with your employer. The employercannot require you to use vacation. You do not earn civilianvacation during a period of military service unless your employerprovides this as a benefit for employees on a nonmilitary, non-pay leave of absence of similar duration.

10

! If you were disabled while on military duty, or a disabilityis aggravated by military service, your employer mustmake reasonable efforts to accommodate the disability. Ifyour period of service was 181 days or more, you areprotected from discharge, except for cause, for one year. Ifthe service was for 31-180 days, the period of protectionfrom discharge is 180 days.

DOCUMENTATION.

Upon completion of service of 31 days or more you should beprepared to provide documentation to the employer.

! The documentation establishes that your application forreemployment was timely;

! You have not exceeded the cumulative 5-year limit;

! You were discharged under “honorable” or “general”conditions (i.e., you did not receive a punitive type ofdischarge). If the documentation is not readily available, ordoesn't exist, the employer can't deny you reemployment,although if documentation later becomes available andshows you did not qualify for reemployment, the employermay immediately terminate you. Legal forms ofdocumentation could include a DD-214, endorsed orders,or a letter from your command.

11

HEALTH CARE.

If the period of service is 30 days or less, you pay the normalemployee cost, if any, for the coverage. You may elect tocontinue employer-provided health insurance for a period up tothe first 18 months of your military service. However, if theservice is 31 days or more, you could be required to pay up to102 % of the total premium. You are also entitled to any non-seniority-related benefits that the employer offers to employeeson nonmilitary leaves of absence (e.g. jury duty).

PENSIONS.

All pension plans in which benefits are earned for length ofservice are protected.

VACATIONS.

While on active duty, you may choose to use any personalvacation you have earned with your employer. The employercannot require you to use vacation. You do not earn civilianvacation during a period of military service unless your employerprovides this as a benefit for employees on a nonmilitary, non-pay leave of absence of similar duration.

12

ASSISTANCE AND ENFORCEMENT.

Members of a Reserve component who experience employmentproblems because of your military obligations should first notifyyour command. Usually a commander or legal officer can provideprompt and effective assistance in resolving disagreementsbetween you and your civilian employer. If local efforts fail,contact Ombudsmen Services at ESGR National Headquarters(telephone: 1-800-336-4590 or DSN 426-1390/91; Web site -www.esgr.org.) Ombudsmen are trained to provide informationand informal mediation assistance. They will help your employerbetter understand the law and how it applies to them. Situationsthat are complex or cannot be resolved informally will beimmediately referred to the U.S. Department of Labor Veterans'Employment and Training Service (VETS), or you can contactthem at your local listing.

13

USERRA PROVISIONS

PROTECTION OF ACCRUAL RIGHTS:

Employee pension benefit plans and profit sharing plans continuefor the duration of active military duty (not exceeding five years)as if the employee was never away and counts as service with theemployer, therefore benefits must accrue accordingly.

PROTECTION OF CONTRIBUTIONS:

In plans with contribution features such as a 401(k) plan, theemployee has the right to make up any missed contributions thatwould have otherwise been made if not for active military duty.The employee has three times the duration of military service (upto five years) to make up these contributions after reemployment.There is no waiting period for the reemployed employee to beginparticipation in the company retirement plan.

PROTECTION OF COMPANY MATCH CONTRIBUTIONS:If the plan provides for matching contributions, the employermust make any matching contributions relating to the employeecontributions during the make-up period. Earnings and forfeituresare not included in determining the make-up benefits.

12

ASSISTANCE AND ENFORCEMENT.

Members of a Reserve component who experience employmentproblems because of your military obligations should first notifyyour command. Usually a commander or legal officer can provideprompt and effective assistance in resolving disagreementsbetween you and your civilian employer. If local efforts fail,contact Ombudsmen Services at ESGR National Headquarters(telephone: 1-800-336-4590 or DSN 426-1390/91; Web site -www.esgr.org.) Ombudsmen are trained to provide informationand informal mediation assistance. They will help your employerbetter understand the law and how it applies to them. Situationsthat are complex or cannot be resolved informally will beimmediately referred to the U.S. Department of Labor Veterans'Employment and Training Service (VETS), or you can contactthem at your local listing.

13

USERRA PROVISIONS

PROTECTION OF ACCRUAL RIGHTS:

Employee pension benefit plans and profit sharing plans continuefor the duration of active military duty (not exceeding five years)as if the employee was never away and counts as service with theemployer, therefore benefits must accrue accordingly.

PROTECTION OF CONTRIBUTIONS:

In plans with contribution features such as a 401(k) plan, theemployee has the right to make up any missed contributions thatwould have otherwise been made if not for active military duty.The employee has three times the duration of military service (upto five years) to make up these contributions after reemployment.There is no waiting period for the reemployed employee to beginparticipation in the company retirement plan.

PROTECTION OF COMPANY MATCH CONTRIBUTIONS:If the plan provides for matching contributions, the employermust make any matching contributions relating to the employeecontributions during the make-up period. Earnings and forfeituresare not included in determining the make-up benefits.

14

PROTECTION OF LOAN PROVISIONS:

Plans are permitted - but not required - to suspend participantloan payments during the military service period withoutviolating loan requirements under IRC §72. The Summary PlanDocument (SPD) for the qualified plan may include languagerelating to the authorization of participant loans. If so, theemployer should modify the SPD to include USERRA loanprovisions under these circumstances. As "interested parties," theemployee should also retain the right to take out a loan duringtheir service period.

PROTECTION OF VESTING RIGHTS:

The duration of active military duty (not exceeding five years)also counts toward the employee's vesting schedule relative to thecompany retirement plan. The employee must be treated as nothaving a break in service.

USERRA applies to all pension benefit plans, but are not limitedto qualified plans or those subject to the Employee RetirementIncome Security Act (ERISA). (Bonus plans, severance plans andstock option plans appear to be excluded; these would beconsidered to be benefits protected by other guidelines includingseniority.)

Employee's compensation during military service is based on therate of pay that would have been received if not for the militaryabsence. Upon reemployment, employee contributions during themake up period are not to be included as part of the plan'snondiscrimination testing. These contributions are subject to thegeneral plan contribution and deduction limitations relative to theyear for which they are made rather than the year in which theyare made.

15

Employers must provide military leave rights regardless of anyother policy they may have established. Other protectedemployee benefits must also be available to military reservepersonnel, including employment protection andnondiscrimination, health care coverage, disability and lifeinsurance. Sponsors should consult with their providers regardingthese types of benefit provisions established under USERRA.

14

PROTECTION OF LOAN PROVISIONS:

Plans are permitted - but not required - to suspend participantloan payments during the military service period withoutviolating loan requirements under IRC §72. The Summary PlanDocument (SPD) for the qualified plan may include languagerelating to the authorization of participant loans. If so, theemployer should modify the SPD to include USERRA loanprovisions under these circumstances. As "interested parties," theemployee should also retain the right to take out a loan duringtheir service period.

PROTECTION OF VESTING RIGHTS:

The duration of active military duty (not exceeding five years)also counts toward the employee's vesting schedule relative to thecompany retirement plan. The employee must be treated as nothaving a break in service.

USERRA applies to all pension benefit plans, but are not limitedto qualified plans or those subject to the Employee RetirementIncome Security Act (ERISA). (Bonus plans, severance plans andstock option plans appear to be excluded; these would beconsidered to be benefits protected by other guidelines includingseniority.)

Employee's compensation during military service is based on therate of pay that would have been received if not for the militaryabsence. Upon reemployment, employee contributions during themake up period are not to be included as part of the plan'snondiscrimination testing. These contributions are subject to thegeneral plan contribution and deduction limitations relative to theyear for which they are made rather than the year in which theyare made.

15

Employers must provide military leave rights regardless of anyother policy they may have established. Other protectedemployee benefits must also be available to military reservepersonnel, including employment protection andnondiscrimination, health care coverage, disability and lifeinsurance. Sponsors should consult with their providers regardingthese types of benefit provisions established under USERRA.

16

MAKING IT EASIER FOR CIVILIANEMPLOYERS OF THOSE WHO SERVE INTHE NATIONAL-GUARD AND RESERVE

Each employer plays an important role in maintaining a strongnational defense. The National Guard and Reserve are an integralpart of our defense forces. Many of the men and women servingin our armed forces are members of the National Guard andReserve. Their performance must meet the same standards astheir active duty counterparts. Because they do not serve full-time, the cost to the government is far less. As an employer, youare vital to empowering your employees who are members of theNational Guard and Reserve to serve their country. Your activesupport and encouragement are essential to their success. Hereare some ways you can help them protect our nation:

! Educate yourself and the company more about the role ofthe National Guard and Reserve. Become a dynamic leaderby attending open houses and public functions at localmilitary units. Speak with military and civilian leaders inyour community about the National Guard and Reserve.Learn more about your employees concerning what theydo and how they fit into the "big picture" of nationaldefense.

! Get to know your employees' military commanders andsupervisors. Ask them to provide you with advance noticeof your employees’ annual military training schedule andwork out conflicts as early as possible, alternativearrangements may be possible. Remember they are humantoo, therefore they are not unapproachable.

17

! Review your personnel policies to see how theyaccommodate and support participation in the NationalGuard or Reserve. For example, are there provisions formilitary leave of absence (exclusive of earned vacationtime); are job opportunities and benefits equivalent to thoseof other employees? Get your entire management team topromote your support of the National Guard and Reserve.Explain your position and address problems or concernsthat may arise.

! Encourage employee participation in the National Guardand Reserve. Recognize and publicize their dedication andcommitment to your business and the nation. Apply thetraining they receive from military duty. You'll be surprisedto realize how much it enhances their job performance andvalue to your organization.

! Understand that there may be occasional conflicts orconcerns with the employment of "citizen soldiers" andtheir requirement to perform military duty. Try to resolvethem as soon as they arise. Discuss with your employeestheir service requirements before problem situations arise,and keep an open dialogue to prevent them.

! Seek assistance from your ESGR Committee or from theNational ESGR Headquarters (1-800-336-4590). Ask tospeak with an ombudsman. Ombudsmen serve asconfidential, neutral liaisons for employers and employeeswho seek assistance or clarification regarding their rightsand responsibilities. More than 95% of the calls theyreceive are resolved to the satisfaction of everyoneinvolved. ESGR ombudsmen work closely with the U.S.Department of Labor Veterans’ Employment and TrainingService (“VETS”) and will refer you to them if formalassistance is needed.

16

MAKING IT EASIER FOR CIVILIANEMPLOYERS OF THOSE WHO SERVE INTHE NATIONAL-GUARD AND RESERVE

Each employer plays an important role in maintaining a strongnational defense. The National Guard and Reserve are an integralpart of our defense forces. Many of the men and women servingin our armed forces are members of the National Guard andReserve. Their performance must meet the same standards astheir active duty counterparts. Because they do not serve full-time, the cost to the government is far less. As an employer, youare vital to empowering your employees who are members of theNational Guard and Reserve to serve their country. Your activesupport and encouragement are essential to their success. Hereare some ways you can help them protect our nation:

! Educate yourself and the company more about the role ofthe National Guard and Reserve. Become a dynamic leaderby attending open houses and public functions at localmilitary units. Speak with military and civilian leaders inyour community about the National Guard and Reserve.Learn more about your employees concerning what theydo and how they fit into the "big picture" of nationaldefense.

! Get to know your employees' military commanders andsupervisors. Ask them to provide you with advance noticeof your employees’ annual military training schedule andwork out conflicts as early as possible, alternativearrangements may be possible. Remember they are humantoo, therefore they are not unapproachable.

17

! Review your personnel policies to see how theyaccommodate and support participation in the NationalGuard or Reserve. For example, are there provisions formilitary leave of absence (exclusive of earned vacationtime); are job opportunities and benefits equivalent to thoseof other employees? Get your entire management team topromote your support of the National Guard and Reserve.Explain your position and address problems or concernsthat may arise.

! Encourage employee participation in the National Guardand Reserve. Recognize and publicize their dedication andcommitment to your business and the nation. Apply thetraining they receive from military duty. You'll be surprisedto realize how much it enhances their job performance andvalue to your organization.

! Understand that there may be occasional conflicts orconcerns with the employment of "citizen soldiers" andtheir requirement to perform military duty. Try to resolvethem as soon as they arise. Discuss with your employeestheir service requirements before problem situations arise,and keep an open dialogue to prevent them.

! Seek assistance from your ESGR Committee or from theNational ESGR Headquarters (1-800-336-4590). Ask tospeak with an ombudsman. Ombudsmen serve asconfidential, neutral liaisons for employers and employeeswho seek assistance or clarification regarding their rightsand responsibilities. More than 95% of the calls theyreceive are resolved to the satisfaction of everyoneinvolved. ESGR ombudsmen work closely with the U.S.Department of Labor Veterans’ Employment and TrainingService (“VETS”) and will refer you to them if formalassistance is needed.

18

! Don't hesitate to call upon your employees' militarycommander or supervisor if you have a conflict. They facesome of the same challenges you do in their "business" andknow that it is in everyone's best interest to work together.Usually, they can offer alternatives to meet individualneeds. By taking a more active role in supporting themembers of the National Guard and Reserve that work foryou, you'll improve the quality of life for all youremployees, you'll directly enhance the success of yourorganization, and you'll provide an invaluable service to thenation.

19

USERRA FAQs for Employers1. Is an employee protected from unlawful discrimination

by an employer based on military affiliation?

Yes. USERRA provides protections for initial hiringand adverse employment actions by an employer ifthe action is motivated even in part by theemployee's military service. This protection alsoextends to witnesses who assist or testify in aUSERRA investigation.

2. Can an employer refuse to allow an employee to attendscheduled drills or annual training?

No. Employees must be excused from work toattend inactive duty training (drill) or annual trainingand the employer must reemploy the employee as ifhe or she has not been absent.

3. Is there a limit to the amount of military leave anemployer must permit?

Yes. However, there is no longer any differentiationbetween voluntary and involuntary military duty,there is a 5-year cumulative service limit on theamount of voluntary military leave an employee canuse and still retain reemployment rights.

18

! Don't hesitate to call upon your employees' militarycommander or supervisor if you have a conflict. They facesome of the same challenges you do in their "business" andknow that it is in everyone's best interest to work together.Usually, they can offer alternatives to meet individualneeds. By taking a more active role in supporting themembers of the National Guard and Reserve that work foryou, you'll improve the quality of life for all youremployees, you'll directly enhance the success of yourorganization, and you'll provide an invaluable service to thenation.

19

USERRA FAQs for Employers1. Is an employee protected from unlawful discrimination

by an employer based on military affiliation?

Yes. USERRA provides protections for initial hiringand adverse employment actions by an employer ifthe action is motivated even in part by theemployee's military service. This protection alsoextends to witnesses who assist or testify in aUSERRA investigation.

2. Can an employer refuse to allow an employee to attendscheduled drills or annual training?

No. Employees must be excused from work toattend inactive duty training (drill) or annual trainingand the employer must reemploy the employee as ifhe or she has not been absent.

3. Is there a limit to the amount of military leave anemployer must permit?

Yes. However, there is no longer any differentiationbetween voluntary and involuntary military duty,there is a 5-year cumulative service limit on theamount of voluntary military leave an employee canuse and still retain reemployment rights.

20

4. What is not included in the 5-year cumulative total?

The 5-year total does not include: inactive dutytraining (drills); annual training; involuntary recall toor retention on active duty; voluntary or involuntaryactive duty in support of a war, national emergency,or certain operational missions; or additional trainingrequirements determined and certified in writing bythe Service Secretary, and considered to be necessaryfor professional development or for completion ofskill training or retraining.

5. Is prior notice to the employer required for leave ofabsence for military duty?

Yes. Unless precluded by military necessity, advancenotice must be provided either orally or in writing.The context for what constitutes timeliness ofnotification was not spelled out. However,employees who participate in the National Guard orReserve should provide their employers as muchadvance notice as possible. Failure to provide noticecould result in a denial of the protection ofUSERRA.

6. What are valid military orders?

All written or verbal orders are considered validwhen issued by competent military authority. Amilitary member in receipt of official orders isobligated by federal statute to execute them. Therecurring requirement to perform inactive dutytraining (drill) is an example of when written ordersmay not be formally issued.

21

7. When may an employer require an employee to providedocumentation of military service?

After periods of military leave of absence for morethan 30 days, the employer has the right to requestsuch documentation, which can be used to establishthe employee's basic eligibility for protection underUSERRA. All National Guard and Reserve membersare encouraged to provide a copy of orders, theannual drill schedule, or other type of documentationto employers as soon as available and, if possible,before the commencement of military duty.

8. What if the employee cannot provide satisfactorydocumentation for military service in excess of 30 days?

The employer must promptly reinstate the employeepending their availability. The employer may contactthe military unit if necessary.

9. Can an employer require an employee to apply formilitary leave of absence or otherwise submit officialdocumentation for approval of military leave ofabsence?

No. As stated previously, an employer may notrequire documentation for notification prior tomilitary duty. Further, an employer does not have a"right of refusal" for military leave of absence, solong as the employee has not exceeded the 5 yearsof cumulative service provided under USERRA.

20

4. What is not included in the 5-year cumulative total?

The 5-year total does not include: inactive dutytraining (drills); annual training; involuntary recall toor retention on active duty; voluntary or involuntaryactive duty in support of a war, national emergency,or certain operational missions; or additional trainingrequirements determined and certified in writing bythe Service Secretary, and considered to be necessaryfor professional development or for completion ofskill training or retraining.

5. Is prior notice to the employer required for leave ofabsence for military duty?

Yes. Unless precluded by military necessity, advancenotice must be provided either orally or in writing.The context for what constitutes timeliness ofnotification was not spelled out. However,employees who participate in the National Guard orReserve should provide their employers as muchadvance notice as possible. Failure to provide noticecould result in a denial of the protection ofUSERRA.

6. What are valid military orders?

All written or verbal orders are considered validwhen issued by competent military authority. Amilitary member in receipt of official orders isobligated by federal statute to execute them. Therecurring requirement to perform inactive dutytraining (drill) is an example of when written ordersmay not be formally issued.

21

7. When may an employer require an employee to providedocumentation of military service?

After periods of military leave of absence for morethan 30 days, the employer has the right to requestsuch documentation, which can be used to establishthe employee's basic eligibility for protection underUSERRA. All National Guard and Reserve membersare encouraged to provide a copy of orders, theannual drill schedule, or other type of documentationto employers as soon as available and, if possible,before the commencement of military duty.

8. What if the employee cannot provide satisfactorydocumentation for military service in excess of 30 days?

The employer must promptly reinstate the employeepending their availability. The employer may contactthe military unit if necessary.

9. Can an employer require an employee to apply formilitary leave of absence or otherwise submit officialdocumentation for approval of military leave ofabsence?

No. As stated previously, an employer may notrequire documentation for notification prior tomilitary duty. Further, an employer does not have a"right of refusal" for military leave of absence, solong as the employee has not exceeded the 5 yearsof cumulative service provided under USERRA.

22

10. Can an employee be required to find someone to coverhis or her work period when military duty interruptsthe work schedule?

No. An employee is responsible for notification butnot for altering the work schedule or finding areplacement.

11. Can an employer require an employee to rescheduledrills, annual training, or any other military dutyobligation?

No. When military duties would require an employeeto be absent from work for an extended period,during times of acute need, or when (in light ofprevious leaves) the requested military leave iscumulatively burdensome, the employer may contactthe military commander of the employee's militaryunit to determine if the duty could be rescheduled orperformed by another member. If the militarycommander determines that the military duty cannotbe rescheduled or canceled, the employer is requiredto permit the employee to perform his or her militaryduty.

12. Is an employer required to pay an employee who is onmilitary leave of absence?

No. While many employers offer differential pay ora specific number of paid military leave days, anemployer is not required to pay an employee onmilitary leave of absence.

23

13. Are there time limits for an employee to return to workafter completion of military duty?

Yes. There are three formats for reinstatement(application for reemployment), dependent on theduration of military service. Please refer to question15 for a detailed breakdown of these formats. Anemployer should reinstate an employee within amatter of days of application, if not on the same dayas the application is made.

14. After completion of weekend drill, what is the timelimit for an employee to return to work?

The beginning of the next regularly scheduled workperiod on the first full day following completion ofservice and expiration of an 8-hour rest periodfollowing safe transportation home. For example, anemployer cannot require a service member whoreturns home at 10 p.m. to report to work 2.5 hourslater at 12:30 a.m. However, the employer canrequire the employee to report for the 6 a.m. shift, orscheduled work period, the next morning (afterreasonable commute from military duty to homefollowed by 8-hours). Included in the 8-hour periodis time for rest and the commute to work.

15. What is the time limit for an employee to return towork after Annual Training or other types of extendedmilitary leave of absence?

Time limits for returning to work depend on theduration of the orders. The rules are:

22

10. Can an employee be required to find someone to coverhis or her work period when military duty interruptsthe work schedule?

No. An employee is responsible for notification butnot for altering the work schedule or finding areplacement.

11. Can an employer require an employee to rescheduledrills, annual training, or any other military dutyobligation?

No. When military duties would require an employeeto be absent from work for an extended period,during times of acute need, or when (in light ofprevious leaves) the requested military leave iscumulatively burdensome, the employer may contactthe military commander of the employee's militaryunit to determine if the duty could be rescheduled orperformed by another member. If the militarycommander determines that the military duty cannotbe rescheduled or canceled, the employer is requiredto permit the employee to perform his or her militaryduty.

12. Is an employer required to pay an employee who is onmilitary leave of absence?

No. While many employers offer differential pay ora specific number of paid military leave days, anemployer is not required to pay an employee onmilitary leave of absence.

23

13. Are there time limits for an employee to return to workafter completion of military duty?

Yes. There are three formats for reinstatement(application for reemployment), dependent on theduration of military service. Please refer to question15 for a detailed breakdown of these formats. Anemployer should reinstate an employee within amatter of days of application, if not on the same dayas the application is made.

14. After completion of weekend drill, what is the timelimit for an employee to return to work?

The beginning of the next regularly scheduled workperiod on the first full day following completion ofservice and expiration of an 8-hour rest periodfollowing safe transportation home. For example, anemployer cannot require a service member whoreturns home at 10 p.m. to report to work 2.5 hourslater at 12:30 a.m. However, the employer canrequire the employee to report for the 6 a.m. shift, orscheduled work period, the next morning (afterreasonable commute from military duty to homefollowed by 8-hours). Included in the 8-hour periodis time for rest and the commute to work.

15. What is the time limit for an employee to return towork after Annual Training or other types of extendedmilitary leave of absence?

Time limits for returning to work depend on theduration of the orders. The rules are:

24

! Service of 1 to 30 days: the beginning ofthe next regularly scheduled work period onthe first full day following completion ofservice and expiration of an 8-hour restperiod following safe transportation home.

! Service of 31 to 180 days: application forreinstatement must be submitted not laterthan 14 days after completion of militaryduty.

! Service of 181 or more days: application forreinstatement must be submitted not laterthan 90 days after completion of militaryduty.

16. What if the employee has an accident, is delayed by lackof military transportation, or is otherwise unable toreport back in a timely manner?

The employee must report back to work as soon aspossible. Unless the delay is through no fault of theemployee, he or she is subject to the personnelpolicies and practices the employer would normallyapply to employees with unexcused absences.

17. What if an employee is injured or incurs a disabilityduring military duty?

The deadline for reinstatement may be extended forup to 2 years for persons who are convalescing dueto a disability incurred or aggravated during militaryservice, and employers must make reasonableaccommodations for the impairment.

25

18. What job position is an employee returned to after amilitary leave of absence?

Except with respect to persons whose disabilityoccurred in or was aggravated by military service,the position into which an employee is reinstated isdetermined by priority, based on the length ofmilitary service. The rules are:

! Service of 1 to 90 days: (a) in the job theperson would have held had he or sheremained continuously employed (possiblya promoted position), so long as the personis qualified for the job or can becomequalified after reasonable efforts by theemployer, or (b), if the person cannotbecome qualified, in the position the personwas employed on the date of thecommencement of the military service.

! Service of 91 or more days: (a) same as forservice of 1 to 90 days, or a position of likeseniority, status and pay, so long as he orshe is qualified, or (b) if the person cannotbecome qualified, in the position the personwas employed on the date of thecommencement of the military service orwhich nearly approximates that position.

24

! Service of 1 to 30 days: the beginning ofthe next regularly scheduled work period onthe first full day following completion ofservice and expiration of an 8-hour restperiod following safe transportation home.

! Service of 31 to 180 days: application forreinstatement must be submitted not laterthan 14 days after completion of militaryduty.

! Service of 181 or more days: application forreinstatement must be submitted not laterthan 90 days after completion of militaryduty.

16. What if the employee has an accident, is delayed by lackof military transportation, or is otherwise unable toreport back in a timely manner?

The employee must report back to work as soon aspossible. Unless the delay is through no fault of theemployee, he or she is subject to the personnelpolicies and practices the employer would normallyapply to employees with unexcused absences.

17. What if an employee is injured or incurs a disabilityduring military duty?

The deadline for reinstatement may be extended forup to 2 years for persons who are convalescing dueto a disability incurred or aggravated during militaryservice, and employers must make reasonableaccommodations for the impairment.

25

18. What job position is an employee returned to after amilitary leave of absence?

Except with respect to persons whose disabilityoccurred in or was aggravated by military service,the position into which an employee is reinstated isdetermined by priority, based on the length ofmilitary service. The rules are:

! Service of 1 to 90 days: (a) in the job theperson would have held had he or sheremained continuously employed (possiblya promoted position), so long as the personis qualified for the job or can becomequalified after reasonable efforts by theemployer, or (b), if the person cannotbecome qualified, in the position the personwas employed on the date of thecommencement of the military service.

! Service of 91 or more days: (a) same as forservice of 1 to 90 days, or a position of likeseniority, status and pay, so long as he orshe is qualified, or (b) if the person cannotbecome qualified, in the position the personwas employed on the date of thecommencement of the military service orwhich nearly approximates that position.

26

NOTE: The reemployment position with thehighest priority reflects the "escalator" principle,which requires that a returning service member stepsback onto the seniority escalator at the point theperson would have occupied if the person hadremained continuously employed. USERRAspecifies that returning employees must be "promptlyreemployed." What is prompt will depend onindividual circumstances. Reinstatement after 3 yearson active duty might require two weeks to allowgiving notice to an incumbent employee who mighthave to vacate the position.

27

A SMOOTH TRANSITION FOR NATIONALGUARD AND RESERVE MEMBERS:

AVOIDING JOB CONFLICTS

Most conflicts can be avoided by being open with your employerabout your obligations as a member of a Reserve component.Don't take your employer's support for granted. Keep yoursupervisor informed about what you do in the military and whenyou do it. Let him or her know the vital mission that is supportedby your participation in the National Guard or Reserve. Let themknow how your military experience and training will make youa more valuable employee. Take time to comprehend thesacrifice your boss and co-workers make when they support you.

TALK TO YOUR BOSS.

No matter what your military assignment or specialty, let youremployer know about it. Many people hold down military jobsthat relate directly to their civilian careers. If yours is one ofthem, your boss would be pleased to know that you are learningand practicing military skills that can pay off on the job. Even ifwhat you do in the military is different from your civilian job,sharing the details can impress your boss. The soft skills that youdevelop while being in the military makes you a better employee.At the same time you are using your spare time to participate ina second career that is of great importance to your communityand the nation. That is a strong indication to people at work thatyou are the type of person who seeks-out and can handle seriousresponsibility.

26

NOTE: The reemployment position with thehighest priority reflects the "escalator" principle,which requires that a returning service member stepsback onto the seniority escalator at the point theperson would have occupied if the person hadremained continuously employed. USERRAspecifies that returning employees must be "promptlyreemployed." What is prompt will depend onindividual circumstances. Reinstatement after 3 yearson active duty might require two weeks to allowgiving notice to an incumbent employee who mighthave to vacate the position.

27

A SMOOTH TRANSITION FOR NATIONALGUARD AND RESERVE MEMBERS:

AVOIDING JOB CONFLICTS

Most conflicts can be avoided by being open with your employerabout your obligations as a member of a Reserve component.Don't take your employer's support for granted. Keep yoursupervisor informed about what you do in the military and whenyou do it. Let him or her know the vital mission that is supportedby your participation in the National Guard or Reserve. Let themknow how your military experience and training will make youa more valuable employee. Take time to comprehend thesacrifice your boss and co-workers make when they support you.

TALK TO YOUR BOSS.

No matter what your military assignment or specialty, let youremployer know about it. Many people hold down military jobsthat relate directly to their civilian careers. If yours is one ofthem, your boss would be pleased to know that you are learningand practicing military skills that can pay off on the job. Even ifwhat you do in the military is different from your civilian job,sharing the details can impress your boss. The soft skills that youdevelop while being in the military makes you a better employee.At the same time you are using your spare time to participate ina second career that is of great importance to your communityand the nation. That is a strong indication to people at work thatyou are the type of person who seeks-out and can handle seriousresponsibility.

28

FEDERAL LAW.

Experience has shown that members of the National Guard andReserve, as well as their employers, do not always have a clearunderstanding about employment and reemployment rights forReserve component members. Federal law guarantees the right totake time off from work to attend to your military responsibilities.The more that you, your boss, and your personnel office knowabout the federal laws and legal precedents that spell out Reservereemployment rights, rules and obligations protected by the laws,the less chance there is for misunderstanding. The details ofUSERRA's provisions are discussed in some detail in thepreceding pages.

DRILL SCHEDULES.

Don't make your boss guess about your National Guard orReserve duties. The more you share with your boss and the earlieryou share it the better. Such as: drill schedules, annual trainingplans, reemployment rights and rules, and any extra time-offrequirements. Many units meet on the same weekend of eachmonth, with exceptions for holidays or when scheduled annualtraining intervenes. If your unit follows this pattern, let youremployer know. Remember, you must give your employeradvance notice of any military service, including drills. Let yourboss know as early as possible when you will be absent fromwork. When schedule changes occur, notify your employer assoon as you know about them.

29

ANNUAL TRAINING SCHEDULES.

The same rules apply for Annual Training (AT). Most unitsschedule their AT months in advance - that is the time to providenotification to your employer. A change in orders can be moreeasily handled than an unplanned absence. If you are going to beon an advance party, or if your AT will exceed the traditional twoweeks, make sure your employer knows about it well in advance.

EXTRA TRAINING.

When you or your unit needs additional training, or you arescheduled to attend a service school, let your boss know about it.Giving employers the maximum lead-time enables them to makeplans to accommodate your absence. To the extent that you havecontrol over the scheduling of additional training, try to minimizeany adverse impact your absence will cause your civilian job.Show consideration for your boss and your co-workers when youvolunteer for nonessential training.

NON-TRAINING ACTIVE DUTY.

Many Reserve component members perform tours of active dutythat are not for training. This can range from short active dutytours, to support exercises or work on special projects, to years ofactive duty in the Active Guard Reserve (AGR) or similarprograms. Again, under USERRA, prior notice of this type ofduty must be given to your employer. Remember most duty ofthis type is subject to a cumulative 5-year time limit after whichyou no longer have reemployment rights under USERRA with agiven employer.

28

FEDERAL LAW.

Experience has shown that members of the National Guard andReserve, as well as their employers, do not always have a clearunderstanding about employment and reemployment rights forReserve component members. Federal law guarantees the right totake time off from work to attend to your military responsibilities.The more that you, your boss, and your personnel office knowabout the federal laws and legal precedents that spell out Reservereemployment rights, rules and obligations protected by the laws,the less chance there is for misunderstanding. The details ofUSERRA's provisions are discussed in some detail in thepreceding pages.

DRILL SCHEDULES.

Don't make your boss guess about your National Guard orReserve duties. The more you share with your boss and the earlieryou share it the better. Such as: drill schedules, annual trainingplans, reemployment rights and rules, and any extra time-offrequirements. Many units meet on the same weekend of eachmonth, with exceptions for holidays or when scheduled annualtraining intervenes. If your unit follows this pattern, let youremployer know. Remember, you must give your employeradvance notice of any military service, including drills. Let yourboss know as early as possible when you will be absent fromwork. When schedule changes occur, notify your employer assoon as you know about them.

29

ANNUAL TRAINING SCHEDULES.

The same rules apply for Annual Training (AT). Most unitsschedule their AT months in advance - that is the time to providenotification to your employer. A change in orders can be moreeasily handled than an unplanned absence. If you are going to beon an advance party, or if your AT will exceed the traditional twoweeks, make sure your employer knows about it well in advance.

EXTRA TRAINING.

When you or your unit needs additional training, or you arescheduled to attend a service school, let your boss know about it.Giving employers the maximum lead-time enables them to makeplans to accommodate your absence. To the extent that you havecontrol over the scheduling of additional training, try to minimizeany adverse impact your absence will cause your civilian job.Show consideration for your boss and your co-workers when youvolunteer for nonessential training.

NON-TRAINING ACTIVE DUTY.

Many Reserve component members perform tours of active dutythat are not for training. This can range from short active dutytours, to support exercises or work on special projects, to years ofactive duty in the Active Guard Reserve (AGR) or similarprograms. Again, under USERRA, prior notice of this type ofduty must be given to your employer. Remember most duty ofthis type is subject to a cumulative 5-year time limit after whichyou no longer have reemployment rights under USERRA with agiven employer.

30

EMERGENCY / CONTINGENCY DUTY.

Many Reserve component members have served on active dutyin support of such operations as the Operation Enduring Freedomconflict. When you have been activated involuntarily for aparticular mission, your period of service will not count againstthe cumulative 5-year limit established under USERRA. In mostcases, voluntary duty will also be exempt from the 5-year limit ifit is in direct support of a contingency operation.

SCHEDULING.

If you miss work while you perform military service, youremployer is not obligated to reschedule you to make up the timelost. However, if employees who miss work for nonmilitaryreasons are afforded opportunities to make up the time lost, youmust be treated in the same manner. Further, you cannot berequired to find a replacement worker for the shift(s) you willmiss as a condition of being given the time off by your employerto perform military service.

VACATION.

Federal law allows you the option to use earned vacation whileperforming military service, but you cannot be required to do so.The only case where you could be required to use your vacationwould be if your company has a planned shutdown period wheneveryone must take vacation, and your military service coincideswith that period of time.

31

VACATION ACCRUAL.

Your employer is not required to provide for vacation accrualwhile you are absent from work performing military service,unless accrual is permitted for employees on nonmilitary leave ofabsence of similar length.

PAY.

Although some private and many government employers providefull or partial civilian pay to employees absent on military duty– usually for a limited period of time – the law requires only anunpaid leave of absence.

FEDERAL EMPLOYEES PAID MILITARY LEAVE.

Federal employees are entitled to time off at full pay for certaintypes of active or inactive duty in the National Guard or as aReserve of the Armed Forces. More information is available fromthe Office of Personnel Management site at:

http://www.opm.gov/oca/leave/html/military.htm.

30

EMERGENCY / CONTINGENCY DUTY.

Many Reserve component members have served on active dutyin support of such operations as the Operation Enduring Freedomconflict. When you have been activated involuntarily for aparticular mission, your period of service will not count againstthe cumulative 5-year limit established under USERRA. In mostcases, voluntary duty will also be exempt from the 5-year limit ifit is in direct support of a contingency operation.

SCHEDULING.

If you miss work while you perform military service, youremployer is not obligated to reschedule you to make up the timelost. However, if employees who miss work for nonmilitaryreasons are afforded opportunities to make up the time lost, youmust be treated in the same manner. Further, you cannot berequired to find a replacement worker for the shift(s) you willmiss as a condition of being given the time off by your employerto perform military service.

VACATION.

Federal law allows you the option to use earned vacation whileperforming military service, but you cannot be required to do so.The only case where you could be required to use your vacationwould be if your company has a planned shutdown period wheneveryone must take vacation, and your military service coincideswith that period of time.

31

VACATION ACCRUAL.

Your employer is not required to provide for vacation accrualwhile you are absent from work performing military service,unless accrual is permitted for employees on nonmilitary leave ofabsence of similar length.

PAY.

Although some private and many government employers providefull or partial civilian pay to employees absent on military duty– usually for a limited period of time – the law requires only anunpaid leave of absence.

FEDERAL EMPLOYEES PAID MILITARY LEAVE.

Federal employees are entitled to time off at full pay for certaintypes of active or inactive duty in the National Guard or as aReserve of the Armed Forces. More information is available fromthe Office of Personnel Management site at:

http://www.opm.gov/oca/leave/html/military.htm.

32

NATIONAL GUARD AND RESERVE MEMBERS THATARE STUDENTS.

Currently, federal law does not guarantee equal rights andprotections across the country to members of the National Guardand Reserve who are enrolled in schools, colleges anduniversities. Student members of the National Guard and Reserveare not guaranteed refunds of tuition and fees paid for the termthey cannot complete. There are no provisions for partial coursecredit, or the right to return to the college or university uponcompletion of active service. However, help is on the way. TheService Members Opportunity Colleges (SOC) organization isprepared to intercede for members experiencing problems, suchas loss of credit in school courses due to call-up. If a studentcalled to active duty is experiencing problems related to coursecredit, tuition, fees or re-enrollment in a program of study, he/shecan call, toll free, 1-800-368-5622, or write to: Service MembersOpportunity Colleges, 1 DuPont Circle, NW, Suite 680,Washington, DC 20036. A representative from SOC will workwith the student soldier and the institution involved to resolve theissue. Unit commanders with members experiencing suchproblems are urged to make every effort to ensure these membersknow this help is available.

REWARD THE BOSS FOR SUPPORTING YOUR SERVICE.

The Department of Defense will send your boss - through yourunit commander - a personally prepared certificate ofappreciation if you, the National Guard or Reserve member, justapply for it. The certificate comes mounted in a handsome folder,bearing the DoD seal embossed in gold. Take time to do yourbest to "brag" about your boss. The stronger your boss's support(as shown in the application), the greater the likelihood that he orshe will also receive a higher award. Each ESGR Committee (onein each state, the District of Columbia, Guam,

33

Puerto Rico, and the Virgin Islands) presents plaques to their sixmost supportive employers each year. The ESGR NationalHeadquarters sponsors the prestigious PRO PATRIA award,presented each year by each ESGR Committee to their singlemost supportive employer. The Secretary of Defense presents thehighest awards, the Employer Support Freedom Award, to themost outstanding employers for the year-one national winner andfour regional semifinalists. Applications can be obtained fromyour unit ESGR representative, any member of your ESGRCommittee, the Web site, www.esgr.org or by calling ESGRdirectly at 1-800-336-4590.

Take advantage of unit and ESGR programs and services to helpyou explain to your employer the vital role of the National Guardand Reserve in the National Military Strategy.

Inform your employer and your community about the impact ofthe military on the local economy. Work with your leadership topublish an annual financial report. Let the community know whatyour unit and others in the region contribute to the local economythrough salaries, construction, and local purchases. Encourageyour Public Affairs offices to develop and distribute pressreleases to local papers and television stations whenever eventsor actions occur that stimulate the economy. Visithttp://webl.whs.osd.mil/mmid/pubs.htm for statistical informationon the military in your state.

Be active in the community. Make the unit a live, vital elementin the community. Cooperate in community affairs and work onsupportive projects whenever possible within the military missionand you will see increased employer and community support.

32

NATIONAL GUARD AND RESERVE MEMBERS THATARE STUDENTS.

Currently, federal law does not guarantee equal rights andprotections across the country to members of the National Guardand Reserve who are enrolled in schools, colleges anduniversities. Student members of the National Guard and Reserveare not guaranteed refunds of tuition and fees paid for the termthey cannot complete. There are no provisions for partial coursecredit, or the right to return to the college or university uponcompletion of active service. However, help is on the way. TheService Members Opportunity Colleges (SOC) organization isprepared to intercede for members experiencing problems, suchas loss of credit in school courses due to call-up. If a studentcalled to active duty is experiencing problems related to coursecredit, tuition, fees or re-enrollment in a program of study, he/shecan call, toll free, 1-800-368-5622, or write to: Service MembersOpportunity Colleges, 1 DuPont Circle, NW, Suite 680,Washington, DC 20036. A representative from SOC will workwith the student soldier and the institution involved to resolve theissue. Unit commanders with members experiencing suchproblems are urged to make every effort to ensure these membersknow this help is available.

REWARD THE BOSS FOR SUPPORTING YOUR SERVICE.

The Department of Defense will send your boss - through yourunit commander - a personally prepared certificate ofappreciation if you, the National Guard or Reserve member, justapply for it. The certificate comes mounted in a handsome folder,bearing the DoD seal embossed in gold. Take time to do yourbest to "brag" about your boss. The stronger your boss's support(as shown in the application), the greater the likelihood that he orshe will also receive a higher award. Each ESGR Committee (onein each state, the District of Columbia, Guam,

33

Puerto Rico, and the Virgin Islands) presents plaques to their sixmost supportive employers each year. The ESGR NationalHeadquarters sponsors the prestigious PRO PATRIA award,presented each year by each ESGR Committee to their singlemost supportive employer. The Secretary of Defense presents thehighest awards, the Employer Support Freedom Award, to themost outstanding employers for the year-one national winner andfour regional semifinalists. Applications can be obtained fromyour unit ESGR representative, any member of your ESGRCommittee, the Web site, www.esgr.org or by calling ESGRdirectly at 1-800-336-4590.

Take advantage of unit and ESGR programs and services to helpyou explain to your employer the vital role of the National Guardand Reserve in the National Military Strategy.

Inform your employer and your community about the impact ofthe military on the local economy. Work with your leadership topublish an annual financial report. Let the community know whatyour unit and others in the region contribute to the local economythrough salaries, construction, and local purchases. Encourageyour Public Affairs offices to develop and distribute pressreleases to local papers and television stations whenever eventsor actions occur that stimulate the economy. Visithttp://webl.whs.osd.mil/mmid/pubs.htm for statistical informationon the military in your state.

Be active in the community. Make the unit a live, vital elementin the community. Cooperate in community affairs and work onsupportive projects whenever possible within the military missionand you will see increased employer and community support.

34

USERRA FAQS FORSERVICE MEMBERS

1. Is an employee protected from unlawfuldiscrimination by an employer due to militaryaffiliation?

Yes. USERRA provides protections forinitial hiring and adverse employmentactions by an employer if the actionsrelate, even in part, to the employee'smilitary service. This protection alsoextends to potential witnesses of adiscriminatory action on the part of theemployer.

2. What are the basic eligibility requirements for jobprotection under USERRA?

To be protected, a National Guard orReserve member must have a civilian job,must provide timely notification to theemployer of military duty, and must reportback to work for reemployment in atimely manner. Reemployment rights areprovided even if the civilian job isdescribed as "temporary," unless theemployment was for a brief period withno reasonable expectation of continuancefor a significant period of time.

35

3. Is there a limit to the amount of active duty anemployee can perform and still have reemploymentrights?

Yes. There is a 5-year cumulative total ofmilitary service an employer is required tosupport. Not included in that total are: involuntaryrecall to active duty, drills (inactive duty training),annual training, and additional trainingrequirements determined and certified in writingby the Service Secretary concerned to benecessary for professional development or forcompletion of skill training or retraining.

4. Does USERRA apply to "state" military duty orgovernor call-ups of National Guard members?

No. However, protection for such duty isgenerally provided by state statutes and in mostinstances is comparable to protections providedunder the USERRA.

5. When should an employee provide notification ofupcoming duty?

Written or oral notification must be made toemployers prior to going on duty, unlessprecluded by military necessity. Employees arehighly encouraged to notify their employer of anyanticipated military activity when application fororders is made, or if notified of possibleinvoluntary recall. Employees should be

34

USERRA FAQS FORSERVICE MEMBERS

1. Is an employee protected from unlawfuldiscrimination by an employer due to militaryaffiliation?

Yes. USERRA provides protections forinitial hiring and adverse employmentactions by an employer if the actionsrelate, even in part, to the employee'smilitary service. This protection alsoextends to potential witnesses of adiscriminatory action on the part of theemployer.

2. What are the basic eligibility requirements for jobprotection under USERRA?

To be protected, a National Guard orReserve member must have a civilian job,must provide timely notification to theemployer of military duty, and must reportback to work for reemployment in atimely manner. Reemployment rights areprovided even if the civilian job isdescribed as "temporary," unless theemployment was for a brief period withno reasonable expectation of continuancefor a significant period of time.

35

3. Is there a limit to the amount of active duty anemployee can perform and still have reemploymentrights?

Yes. There is a 5-year cumulative total ofmilitary service an employer is required tosupport. Not included in that total are: involuntaryrecall to active duty, drills (inactive duty training),annual training, and additional trainingrequirements determined and certified in writingby the Service Secretary concerned to benecessary for professional development or forcompletion of skill training or retraining.

4. Does USERRA apply to "state" military duty orgovernor call-ups of National Guard members?

No. However, protection for such duty isgenerally provided by state statutes and in mostinstances is comparable to protections providedunder the USERRA.

5. When should an employee provide notification ofupcoming duty?

Written or oral notification must be made toemployers prior to going on duty, unlessprecluded by military necessity. Employees arehighly encouraged to notify their employer of anyanticipated military activity when application fororders is made, or if notified of possibleinvoluntary recall. Employees should be

36

sensitive to employer schedulingrequirements when providing notificationand when submitting application to theunit commander for orders. Wherepossible, an employee should submitrequests for orders during calendarperiods outside of peak business seasonsand not during the most popular vacationcycles.

6. Does an employee have reinstatement rightsfollowing voluntary military service?

Yes. There is no longer any differentiationbetween voluntary and involuntary ordersunder the USERRA, so long as the basiceligibility requirements are met.

7. What if an employee does not return in a timelymanner to work?

The employee is subject to the personnelpolicies and practices of the employer forunexcused absences.

8. How does military service affect employee statusor seniority in the workplace?

An employee must be considered not tohave been absent from the workplace ifthe only reason for that absence wasservice in a uniformed service. Areturning employee must be made"whole" by:

37

! being allowed to contribute to the pensionplan any amount that would have beencontributed had the employee not beenabsent; and

! being reinstated with privileges and statusthe employee earned by length of service(for example, after 3 years with acompany an employee may be entitled toaccrue more vacation per year, or after 5years an employee is automaticallyadvanced to a management position).

9. What are the rules on contribution to the pension orthrift savings plan for periods of military leave ofabsence?

Upon reemployment, the employee has 3 timesthe length of service (not to exceed 5 years) tomake payments and the employer is liable to fundany resulting obligation of the plan within thesame time frame.

10. Can an employee contribute to the pension plan whenon military leave of absence?

There is no burden under the law for an employerto continue pension contributions while theemployee is away from the worksite. Anemployer may choose to offer this benefit.

11. What are the rules for entitlement to healthinsurance?

For absence of less than 30 days, benefitscontinue as if the employee has not been absent.

36

sensitive to employer schedulingrequirements when providing notificationand when submitting application to theunit commander for orders. Wherepossible, an employee should submitrequests for orders during calendarperiods outside of peak business seasonsand not during the most popular vacationcycles.

6. Does an employee have reinstatement rightsfollowing voluntary military service?

Yes. There is no longer any differentiationbetween voluntary and involuntary ordersunder the USERRA, so long as the basiceligibility requirements are met.

7. What if an employee does not return in a timelymanner to work?

The employee is subject to the personnelpolicies and practices of the employer forunexcused absences.

8. How does military service affect employee statusor seniority in the workplace?

An employee must be considered not tohave been absent from the workplace ifthe only reason for that absence wasservice in a uniformed service. Areturning employee must be made"whole" by:

37

! being allowed to contribute to the pensionplan any amount that would have beencontributed had the employee not beenabsent; and

! being reinstated with privileges and statusthe employee earned by length of service(for example, after 3 years with acompany an employee may be entitled toaccrue more vacation per year, or after 5years an employee is automaticallyadvanced to a management position).

9. What are the rules on contribution to the pension orthrift savings plan for periods of military leave ofabsence?

Upon reemployment, the employee has 3 timesthe length of service (not to exceed 5 years) tomake payments and the employer is liable to fundany resulting obligation of the plan within thesame time frame.

10. Can an employee contribute to the pension plan whenon military leave of absence?

There is no burden under the law for an employerto continue pension contributions while theemployee is away from the worksite. Anemployer may choose to offer this benefit.

11. What are the rules for entitlement to healthinsurance?

For absence of less than 30 days, benefitscontinue as if the employee has not been absent.

38

For absence of 31 days or more, coveragestops unless the employee elects to pay forcobra-like coverage (for a period of up to18 months). Health insurance must bereinstated the day an employee isreinstated with no waiting period.

12. Does an employee accrue vacation or medical/sickdays from the employer while on military leave ofabsence?

No. However, as in the previousquestion, an employer may choose to offeraccrual of vacation or medical/sick daysas an additional benefit. An employer isnot required under USERRA to provideany paid benefit when an employee is notworking at the worksite.

13. Does an employee have the right to make upperiods of work missed due to drill or militaryleave of absence?

No. An employer may choose to offer anemployee the opportunity to work hoursmissed as a benefit not provided under theUSERRA. For example, an employer isnot required to provide hours of work foran average 2-week, 80-hour period if partof that period is missed due to militaryservice.

39

14. After completion of weekend drill, what is the timelimit for an employee to return to work?

Either the beginning of the next regularlyscheduled work day or during that portion of thenext regularly scheduled shift that would fall eighthours after the end of drill and a reasonableamount of time to commute home. For example,an employer cannot require a service memberwho returns home at 10 p.m. to report to work 2.5hours later at 12:30 a.m. However, the employercan require the employee to report for the 6 a.m.shift, or scheduled work period, the next morning(after a reasonable time to commute from militaryduty to home followed by 8-hours). Included inthe 8- hour period is time for rest and thecommute to work.

15. What is the time limit for an employee to return towork after Annual Training or other types of extendedmilitary leave of absence?

Time limits for returning to work depend on theduration of the orders. The rules are:

! Service of 1 to 30 days: the beginning ofthe first regularly scheduled work day or8 hours after the end of the military duty,plus reasonable commuting time from themilitary duty station to home.

! Service of 31 to 180 days: application forreinstatement must be submitted not laterthan 14 days after completion of militaryduty.

38

For absence of 31 days or more, coveragestops unless the employee elects to pay forcobra-like coverage (for a period of up to18 months). Health insurance must bereinstated the day an employee isreinstated with no waiting period.

12. Does an employee accrue vacation or medical/sickdays from the employer while on military leave ofabsence?

No. However, as in the previousquestion, an employer may choose to offeraccrual of vacation or medical/sick daysas an additional benefit. An employer isnot required under USERRA to provideany paid benefit when an employee is notworking at the worksite.

13. Does an employee have the right to make upperiods of work missed due to drill or militaryleave of absence?

No. An employer may choose to offer anemployee the opportunity to work hoursmissed as a benefit not provided under theUSERRA. For example, an employer isnot required to provide hours of work foran average 2-week, 80-hour period if partof that period is missed due to militaryservice.

39

14. After completion of weekend drill, what is the timelimit for an employee to return to work?

Either the beginning of the next regularlyscheduled work day or during that portion of thenext regularly scheduled shift that would fall eighthours after the end of drill and a reasonableamount of time to commute home. For example,an employer cannot require a service memberwho returns home at 10 p.m. to report to work 2.5hours later at 12:30 a.m. However, the employercan require the employee to report for the 6 a.m.shift, or scheduled work period, the next morning(after a reasonable time to commute from militaryduty to home followed by 8-hours). Included inthe 8- hour period is time for rest and thecommute to work.

15. What is the time limit for an employee to return towork after Annual Training or other types of extendedmilitary leave of absence?

Time limits for returning to work depend on theduration of the orders. The rules are:

! Service of 1 to 30 days: the beginning ofthe first regularly scheduled work day or8 hours after the end of the military duty,plus reasonable commuting time from themilitary duty station to home.

! Service of 31 to 180 days: application forreinstatement must be submitted not laterthan 14 days after completion of militaryduty.

40

! Service of 181 or more days:application for reinstatement must besubmitted not later than 90 days aftercompletion of military duty.

16. What if the employee has an accident, is delayedby lack of military transportation, or is otherwiseunable to report back in a timely manner?

The employee must report back to work assoon as possible. If the reason for theemployee's delay is not related to militaryduties, the employee is subject to thepersonnel policies and practices theemployer would normally apply toemployees with unexcused absences.

17. What if an employee is injured or incurs adisability during military duty?

The deadline for reinstatement may beextended for up to 2 years for persons whoare convalescing due to a disabilityincurred or aggravated during militaryservice and employers must makereasonable accommodations for theimpairment.

41

18. What job position is an employee returned to aftermilitary leave of absence?

Except with respect to persons whose disabilityoccurred in or was aggravated by military service,the position into which an employee is reinstatedis determined by priority, based on the length ofmilitary service. The rules are:

! Service of 1 to 90 days: (a) in the job theperson would have held had he or sheremained continuously employed(possibly a promoted position), so long asthe person is qualified for the job or canbecome qualified after reasonable effortsby the employer, or (b), if the personcannot become qualified, in the positionthe person was employed on the date ofthe commencement of the militaryservice.

! Service of 91 or more days: (a) same asfor service of 1 to 90 days, or a position oflike seniority, status and pay, so long as heor she is qualified, or (b) if the personcannot become qualified, in the positionthe person was employed on the date ofthe commencement of the military serviceor which nearly approximates thatposition.

40

! Service of 181 or more days:application for reinstatement must besubmitted not later than 90 days aftercompletion of military duty.

16. What if the employee has an accident, is delayedby lack of military transportation, or is otherwiseunable to report back in a timely manner?

The employee must report back to work assoon as possible. If the reason for theemployee's delay is not related to militaryduties, the employee is subject to thepersonnel policies and practices theemployer would normally apply toemployees with unexcused absences.

17. What if an employee is injured or incurs adisability during military duty?

The deadline for reinstatement may beextended for up to 2 years for persons whoare convalescing due to a disabilityincurred or aggravated during militaryservice and employers must makereasonable accommodations for theimpairment.

41

18. What job position is an employee returned to aftermilitary leave of absence?

Except with respect to persons whose disabilityoccurred in or was aggravated by military service,the position into which an employee is reinstatedis determined by priority, based on the length ofmilitary service. The rules are:

! Service of 1 to 90 days: (a) in the job theperson would have held had he or sheremained continuously employed(possibly a promoted position), so long asthe person is qualified for the job or canbecome qualified after reasonable effortsby the employer, or (b), if the personcannot become qualified, in the positionthe person was employed on the date ofthe commencement of the militaryservice.

! Service of 91 or more days: (a) same asfor service of 1 to 90 days, or a position oflike seniority, status and pay, so long as heor she is qualified, or (b) if the personcannot become qualified, in the positionthe person was employed on the date ofthe commencement of the military serviceor which nearly approximates thatposition.

42

NOTE: The reemployment position withthe highest priority reflects the "escalator"principle, which requires that a returningservice member steps back onto theseniority escalator at the point the personwould have occupied if the person hadremained continuously employed.

19. Where do I go for information or assistance?

Even with the best of communication and partnershipbetween employers and their employees that aremembers of the National Guard or Reserve, questionsand concerns do arise related to the adverseconsequences of military service. How should youhandle them?

! For members of the National Guard orReserve, your first approach should beto go to your employer. Most often, acalm, objective discussion can lead toan acceptable solution if it isconducted in an atmosphere of mutualrespect and cooperation.

43

! If you can't come up with a workablesolution, go to your unit commander foradvice and support. Even with their focuson mission accomplishment, commandershave a vested, long-range interest in theirpeople. It's best for the unit to resolveyour problem. They may be able to betterexplain the situation to you and youremployer. A lot of times, they can suggestcompromises or alternatives that willsatisfy everyone's needs.

42

NOTE: The reemployment position withthe highest priority reflects the "escalator"principle, which requires that a returningservice member steps back onto theseniority escalator at the point the personwould have occupied if the person hadremained continuously employed.

19. Where do I go for information or assistance?

Even with the best of communication and partnershipbetween employers and their employees that aremembers of the National Guard or Reserve, questionsand concerns do arise related to the adverseconsequences of military service. How should youhandle them?

! For members of the National Guard orReserve, your first approach should beto go to your employer. Most often, acalm, objective discussion can lead toan acceptable solution if it isconducted in an atmosphere of mutualrespect and cooperation.

43

! If you can't come up with a workablesolution, go to your unit commander foradvice and support. Even with their focuson mission accomplishment, commandershave a vested, long-range interest in theirpeople. It's best for the unit to resolveyour problem. They may be able to betterexplain the situation to you and youremployer. A lot of times, they can suggestcompromises or alternatives that willsatisfy everyone's needs.

44

EMPLOYMENT RIGHTS AND BENEFITS OFFEDERAL CIVILIAN EMPLOYEES WHOPERFORM ACTIVE MILITARY DUTY

Civilian Federal employees who are members of the UniformedServices and who are called to active duty (or volunteer for activeduty) are entitled to the following rights and benefits:

EMPLOYEE ASSISTANCE PROGRAMS (EAPs).

Employee Assistance Programs can be very helpful to employeesand their families in coping with the stress and disruptionassociated with a call to active military duty. EAPs provide short-term counseling and referral services to help with financial,emotional, and dependent care problems. These services areavailable to employees who have been called to active militaryduty (or who volunteer for such duty) and to employees who arefamily members of those who are performing active militaryduty. In addition, many EAPs offer services to family membersof employees.

PAY.

Employees performing active military duty will receivecompensation from the Armed Forces in accordance with theterms and conditions of their military enlistment or commission.They will not receive any compensation from their civilianemploying agency unless they elect to use military leave orannual leave as described below. As usual, agencies shouldcontinue the payment of availability pay for criminalinvestigators and annual premium pay for AdministrativelyUncontrollable Overtime (AUO) work, or regularly scheduledstandby duty, on days of military leave or annual leave.

45

MILITARY LEAVE.

Employees who perform active military duty may request paidmilitary leave, as specified in 5 U.S.C. 6323(a).

! Under the law, an eligible full-time employee accrues 15days (120 hours) of military leave each fiscal year. Inaddition, an employee may carry over up to 15 days (120hours) of unused military leave from one fiscal year to thenext. When the 15 days of military leave that are carriedover are combined with the 15 days of military leaveaccrued at the beginning of the new fiscal year, thisproduces a maximum military leave benefit of 30 days ina fiscal year. However, since an employee cannot carryover more than 15 calendar days to the next fiscal year,any unused military leave in excess of 15 days will beforfeited at the beginning of the next fiscal year.

! Part-time career employees accrue military leave on aprorated basis. Employees who elect to use military leavewill receive full compensation from their civilian positionfor each hour charged to military leave, in addition totheir military pay for the same period. We remindagencies that 5 U.S.C. 6323 was amended in 2001 torequire charges for military leave to be made on an hourfor hour basis for all hours the employee would haveworked. This does not apply to employees of the UnitedStates Postal Service. Additional information on chargingmilitary leave can be found in OPM's memorandum ofJanuary 25, 2001, at OPM's website at:

http://www.opm.gov/oca/compmemo/2001/2001-02.htm

44

EMPLOYMENT RIGHTS AND BENEFITS OFFEDERAL CIVILIAN EMPLOYEES WHOPERFORM ACTIVE MILITARY DUTY

Civilian Federal employees who are members of the UniformedServices and who are called to active duty (or volunteer for activeduty) are entitled to the following rights and benefits:

EMPLOYEE ASSISTANCE PROGRAMS (EAPs).

Employee Assistance Programs can be very helpful to employeesand their families in coping with the stress and disruptionassociated with a call to active military duty. EAPs provide short-term counseling and referral services to help with financial,emotional, and dependent care problems. These services areavailable to employees who have been called to active militaryduty (or who volunteer for such duty) and to employees who arefamily members of those who are performing active militaryduty. In addition, many EAPs offer services to family membersof employees.

PAY.

Employees performing active military duty will receivecompensation from the Armed Forces in accordance with theterms and conditions of their military enlistment or commission.They will not receive any compensation from their civilianemploying agency unless they elect to use military leave orannual leave as described below. As usual, agencies shouldcontinue the payment of availability pay for criminalinvestigators and annual premium pay for AdministrativelyUncontrollable Overtime (AUO) work, or regularly scheduledstandby duty, on days of military leave or annual leave.

45

MILITARY LEAVE.

Employees who perform active military duty may request paidmilitary leave, as specified in 5 U.S.C. 6323(a).

! Under the law, an eligible full-time employee accrues 15days (120 hours) of military leave each fiscal year. Inaddition, an employee may carry over up to 15 days (120hours) of unused military leave from one fiscal year to thenext. When the 15 days of military leave that are carriedover are combined with the 15 days of military leaveaccrued at the beginning of the new fiscal year, thisproduces a maximum military leave benefit of 30 days ina fiscal year. However, since an employee cannot carryover more than 15 calendar days to the next fiscal year,any unused military leave in excess of 15 days will beforfeited at the beginning of the next fiscal year.

! Part-time career employees accrue military leave on aprorated basis. Employees who elect to use military leavewill receive full compensation from their civilian positionfor each hour charged to military leave, in addition totheir military pay for the same period. We remindagencies that 5 U.S.C. 6323 was amended in 2001 torequire charges for military leave to be made on an hourfor hour basis for all hours the employee would haveworked. This does not apply to employees of the UnitedStates Postal Service. Additional information on chargingmilitary leave can be found in OPM's memorandum ofJanuary 25, 2001, at OPM's website at:

http://www.opm.gov/oca/compmemo/2001/2001-02.htm

46

! Employees who perform active military duty may begranted an additional 22 days of military leave under5 U.S.C. 6323(b) if such leave is granted for thepurpose of providing military aid to assist domesticcivilian authorities to enforce the law or protect lifeand property.

ANNUAL LEAVE.

Employees who perform active military duty may request the useof accrued and accumulated annual leave to their credit (under 5U.S.C. 6303 and 6304), and such requests must be granted by theagency. Requests for advanced annual leave may be granted atthe agency's discretion. Employees who use annual leave willreceive compensation from their civilian position for all hourscharged to annual leave in addition to their military pay for thesame period.

LEAVE WITHOUT PAY (LWOP).

The Uniformed Services Employment and Reemployment RightsAct of 1994 (USERRA) generally requires an agency to place anemployee entering the military on LWOP unless the employeechooses to be placed on military leave or annual leave, asappropriate, or the employee requests to be separated.

Full-time employees do not earn annual or sick leave in a payperiod in which they have accumulated 80 hours of LWOP.Part-time employees on LWOP also earn less annual and sickleave, since they earn leave based on the number of hours in apay status.

47

LUMP-SUM LEAVE PAYMENTS.

Employees who enter into active military duty may choose to:

(1) have their annual leave remain to their credit untilthey return to their civilian position;

(2) receive a lump-sum payment for all accrued andaccumulated annual leave. However, an agencymust make a lump-sum payment for any restoredannual leave under 5 U.S.C. 6304(d). There is norequirement to separate from a civilian position inorder to receive a lump-sum leave payment under5 U.S.C. 5552.

Return to active Federal service. When an employee who hasbeen on military duty returns to active Federal service prior to theend of the period covered by the lump sum payment, theemployee must refund an amount equal to the pay that covers theperiod between the date of reemployment and the expiration ofthe lump-sum leave period. Agencies may not recredit anyrestored annual leave to the employee's leave account. Furtherguidance on the repayment of a lump-sum payment for annualleave can be found at:

http://www.opm.gov/oca/leave/html/lumpsum.pdf.

HEALTH BENEFITS.

Employees who are put in a non-pay status or separated while onmilitary duty may keep their Federal Employees Health Benefits(FEHB) coverage for up to 18 months from the date the absenceto serve on military duty begins.

46

! Employees who perform active military duty may begranted an additional 22 days of military leave under5 U.S.C. 6323(b) if such leave is granted for thepurpose of providing military aid to assist domesticcivilian authorities to enforce the law or protect lifeand property.

ANNUAL LEAVE.

Employees who perform active military duty may request the useof accrued and accumulated annual leave to their credit (under 5U.S.C. 6303 and 6304), and such requests must be granted by theagency. Requests for advanced annual leave may be granted atthe agency's discretion. Employees who use annual leave willreceive compensation from their civilian position for all hourscharged to annual leave in addition to their military pay for thesame period.

LEAVE WITHOUT PAY (LWOP).

The Uniformed Services Employment and Reemployment RightsAct of 1994 (USERRA) generally requires an agency to place anemployee entering the military on LWOP unless the employeechooses to be placed on military leave or annual leave, asappropriate, or the employee requests to be separated.

Full-time employees do not earn annual or sick leave in a payperiod in which they have accumulated 80 hours of LWOP.Part-time employees on LWOP also earn less annual and sickleave, since they earn leave based on the number of hours in apay status.

47

LUMP-SUM LEAVE PAYMENTS.

Employees who enter into active military duty may choose to:

(1) have their annual leave remain to their credit untilthey return to their civilian position;

(2) receive a lump-sum payment for all accrued andaccumulated annual leave. However, an agencymust make a lump-sum payment for any restoredannual leave under 5 U.S.C. 6304(d). There is norequirement to separate from a civilian position inorder to receive a lump-sum leave payment under5 U.S.C. 5552.

Return to active Federal service. When an employee who hasbeen on military duty returns to active Federal service prior to theend of the period covered by the lump sum payment, theemployee must refund an amount equal to the pay that covers theperiod between the date of reemployment and the expiration ofthe lump-sum leave period. Agencies may not recredit anyrestored annual leave to the employee's leave account. Furtherguidance on the repayment of a lump-sum payment for annualleave can be found at:

http://www.opm.gov/oca/leave/html/lumpsum.pdf.

HEALTH BENEFITS.

Employees who are put in a non-pay status or separated while onmilitary duty may keep their Federal Employees Health Benefits(FEHB) coverage for up to 18 months from the date the absenceto serve on military duty begins.

48

! During the first 365 days, they are responsible for theemployee share of the premium; they can either payon a current basis or repay it when they return toactive Federal service, just as any other employee onnon-pay status.

! During the remainder of the 18 months, they areresponsible for both the employee and governmentshare of the premium, plus a 2% administrative fee;these must be paid on a current basis.

Federal agencies have discretionary authority to pay both theemployee and Government shares of the premium for employeeswho are called to active military duty in support of a contingencyoperation (5 U.S.C. 8906(e) as amended by sec. 519, Public Law107-107). Department of Defense (DoD) agencies should contacttheir DoD Headquarters health benefits officer for informationspecific to them. Additional information can be found at:

http//www.opm.gov/insure/handbook/fehb00.asp.

TERMINATION.

FEHB coverage terminates at the end of 18 months. Employeesget a free 31-day extension of coverage during which they canconvert to a non-group policy. (They are not eligible forTemporary Continuation of Coverage (TCC).) An employeewho does not want to continue FEHB while on military dutymay elect in writing to have the coverage terminated.Employees participating in premium conversion who wantto terminate FEHB may do so only within 60 days ofbeginning their leave of absence (as this is a qualifying lifeevent (QLE)), or during an annual open season.

49

Employees who prefer to have the option of terminatingcoverage at a later date must waive premium conversionparticipation within 60 days of this QLE or during an annualopen season, since only those who do not participate inpremium conversion may terminate FEHB at any time.

Additional information on FEHB coverage and military servicemay be found at:

www.opm.gov/insure/health/qa/reservists. asp.

RETURN TO ACTIVE FEDERAL SERVICE.

The FEHB enrollment of an employee whose enrollment wasterminated during military service is automatically reinstatedwhen the employee is restored to a civilian position under theprovisions of 5 CFR Part 353. However, if the employee waiveshis/her rights to immediate reinstatement of FEHB to takeadvantage of transitional TRICARE benefits, agencies may delayreinstatement until the transitional TRICARE ends. (Section 736of the 2002 Defense Authorization Act provides for transitionalTRICARE for up to 120 days.) The employee may make anychanges to his enrollment or premium conversion participationwithin 60 days of reinstatement of the enrollment.

Employees who return to their civilian positions but are notrestored under the provisions of 5 CFR Part 353, may enrollwithin 60 days of returning to civilian service provided theposition is not excluded from FEHB coverage. FEHB Handbookinformation for employees who enter military service can befound at:

www.opm.gov/insure/health/handbook.

48

! During the first 365 days, they are responsible for theemployee share of the premium; they can either payon a current basis or repay it when they return toactive Federal service, just as any other employee onnon-pay status.

! During the remainder of the 18 months, they areresponsible for both the employee and governmentshare of the premium, plus a 2% administrative fee;these must be paid on a current basis.

Federal agencies have discretionary authority to pay both theemployee and Government shares of the premium for employeeswho are called to active military duty in support of a contingencyoperation (5 U.S.C. 8906(e) as amended by sec. 519, Public Law107-107). Department of Defense (DoD) agencies should contacttheir DoD Headquarters health benefits officer for informationspecific to them. Additional information can be found at:

http//www.opm.gov/insure/handbook/fehb00.asp.

TERMINATION.

FEHB coverage terminates at the end of 18 months. Employeesget a free 31-day extension of coverage during which they canconvert to a non-group policy. (They are not eligible forTemporary Continuation of Coverage (TCC).) An employeewho does not want to continue FEHB while on military dutymay elect in writing to have the coverage terminated.Employees participating in premium conversion who wantto terminate FEHB may do so only within 60 days ofbeginning their leave of absence (as this is a qualifying lifeevent (QLE)), or during an annual open season.

49

Employees who prefer to have the option of terminatingcoverage at a later date must waive premium conversionparticipation within 60 days of this QLE or during an annualopen season, since only those who do not participate inpremium conversion may terminate FEHB at any time.

Additional information on FEHB coverage and military servicemay be found at:

www.opm.gov/insure/health/qa/reservists. asp.

RETURN TO ACTIVE FEDERAL SERVICE.

The FEHB enrollment of an employee whose enrollment wasterminated during military service is automatically reinstatedwhen the employee is restored to a civilian position under theprovisions of 5 CFR Part 353. However, if the employee waiveshis/her rights to immediate reinstatement of FEHB to takeadvantage of transitional TRICARE benefits, agencies may delayreinstatement until the transitional TRICARE ends. (Section 736of the 2002 Defense Authorization Act provides for transitionalTRICARE for up to 120 days.) The employee may make anychanges to his enrollment or premium conversion participationwithin 60 days of reinstatement of the enrollment.

Employees who return to their civilian positions but are notrestored under the provisions of 5 CFR Part 353, may enrollwithin 60 days of returning to civilian service provided theposition is not excluded from FEHB coverage. FEHB Handbookinformation for employees who enter military service can befound at:

www.opm.gov/insure/health/handbook.

50

LIFE INSURANCE.

Employees who are put in a non-pay status while on militaryduty can keep their Federal Employees' Group Life Insurance(FEGLI) coverage for up to 12 months. This coverage is free.However at the end of 12 months in a non-pay status, thecoverage terminates. Employees get a free 31-day extension ofcoverage and have the right to convert to a non-group policy.

Employees who separate from service while on military dutyare considered to be in a non-pay status for FEGLI purposes.These individuals also can keep their FEGLI coverage for up to12 months, or until 90 days after their military service ends,whichever date comes first. This coverage is free. Again at theend of 12 months (or 90 days after military service ends), thecoverage terminates. These individuals also get the 31-dayextension of coverage and the right to convert.

Being called up to active duty status or being sent to a combatzone does NOT cancel FEGLI coverage. Nor does itautomatically make an employee ineligible for accidental deathand dismemberment (AD&D) coverage. All FEGLI coverageremains in effect for the period of time described above.

If a Federal employee with FEGLI is called-up to activemilitary duty and is killed, "regular" death benefits are payableto the employee's beneficiaries. Accidental death benefits arealso payable under Basic insurance (and Option A, if theemployee had that coverage) unless the employee was in actualcombat (or unless nuclear weapons are being used) at the timeof the injury that caused the employee's death. Accidentaldeath benefits are in addition to regular death benefits. Even ifaccidental death benefits are not payable, regular death benefitsARE payable.

51

RETURN TO ACTIVE FEDERAL SERVICE.

When an employee who has been on military duty returns toactive Federal service, he or she gets back whatever type(s) of lifeinsurance he or she had prior to going into non-pay status (as longas the position is not excluded from coverage). The employeedoes not get an opportunity to elect more coverage unless he orshe has been separated from service for at least 180 days.

RETIREMENT.

An employee who is placed in an LWOP status while performingactive military duty continues to be covered by the retirement law– i.e., the Civil Service Retirement System (CSRS) or the FederalEmployees Retirement System (FERS).

! Death benefits will be paid as if the person were still in thecivilian position.

! If the employee becomes disabled for their civilian positionduring the LWOP and has the minimum amount of civilianservice necessary to be eligible for disability benefits (5years for CSRS, 18 months for FERS), the employee willbecome entitled to disability benefits under the retirementlaw. Upon retirement from civilian service, the period ofmilitary service is creditable under either CSRS or FERS,subject to the rules for crediting military service.

! If an employee separates to enter active military duty, he orshe generally will receive retirement credit for the periodof separation when the employee exercises restorationrights to his or her civilian position.

50

LIFE INSURANCE.

Employees who are put in a non-pay status while on militaryduty can keep their Federal Employees' Group Life Insurance(FEGLI) coverage for up to 12 months. This coverage is free.However at the end of 12 months in a non-pay status, thecoverage terminates. Employees get a free 31-day extension ofcoverage and have the right to convert to a non-group policy.

Employees who separate from service while on military dutyare considered to be in a non-pay status for FEGLI purposes.These individuals also can keep their FEGLI coverage for up to12 months, or until 90 days after their military service ends,whichever date comes first. This coverage is free. Again at theend of 12 months (or 90 days after military service ends), thecoverage terminates. These individuals also get the 31-dayextension of coverage and the right to convert.

Being called up to active duty status or being sent to a combatzone does NOT cancel FEGLI coverage. Nor does itautomatically make an employee ineligible for accidental deathand dismemberment (AD&D) coverage. All FEGLI coverageremains in effect for the period of time described above.

If a Federal employee with FEGLI is called-up to activemilitary duty and is killed, "regular" death benefits are payableto the employee's beneficiaries. Accidental death benefits arealso payable under Basic insurance (and Option A, if theemployee had that coverage) unless the employee was in actualcombat (or unless nuclear weapons are being used) at the timeof the injury that caused the employee's death. Accidentaldeath benefits are in addition to regular death benefits. Even ifaccidental death benefits are not payable, regular death benefitsARE payable.

51

RETURN TO ACTIVE FEDERAL SERVICE.

When an employee who has been on military duty returns toactive Federal service, he or she gets back whatever type(s) of lifeinsurance he or she had prior to going into non-pay status (as longas the position is not excluded from coverage). The employeedoes not get an opportunity to elect more coverage unless he orshe has been separated from service for at least 180 days.

RETIREMENT.

An employee who is placed in an LWOP status while performingactive military duty continues to be covered by the retirement law– i.e., the Civil Service Retirement System (CSRS) or the FederalEmployees Retirement System (FERS).

! Death benefits will be paid as if the person were still in thecivilian position.

! If the employee becomes disabled for their civilian positionduring the LWOP and has the minimum amount of civilianservice necessary to be eligible for disability benefits (5years for CSRS, 18 months for FERS), the employee willbecome entitled to disability benefits under the retirementlaw. Upon retirement from civilian service, the period ofmilitary service is creditable under either CSRS or FERS,subject to the rules for crediting military service.

! If an employee separates to enter active military duty, he orshe generally will receive retirement credit for the periodof separation when the employee exercises restorationrights to his or her civilian position.

52

! If the separated employee does not exercise therestoration right, but later re-enters Federal civilianservice, the military service may be credited under theretirement system, subject to the rules governingcredit for military service.

THRIFT SAVINGS PLAN.

For purposes of the Thrift Savings Plan (TSP), no contributionscan be made, either by the agency or the employee, for any timein an LWOP status or for a period of separation. Agencies shouldrefer to the Thrift Savings Plan Bulletin for Agency TSPRepresentatives, No. 01-22, dated May 3, 2001. For additionalinformation, agency representatives may contact the FederalRetirement Thrift Investment Board at (202) 942-1460.Employees should refer to the TSP Fact Sheet - Effect of Non-pay Status on TSP Participation. Both issuances are availablefrom the TSP Internet web site at:

http://www.tsp.gov/forms/index-factsheets.html.

If employees are subsequently reemployed in, or restored to, aposition covered by FERS or CSRS pursuant to 38 U.S.C. chapter43, they may make up missed contributions. FERS employees areentitled to receive retroactive Agency Automatic (1 percent)Contributions and, if they make up their own contributions,retroactive Agency Matching Contributions.

If FERS employees separate and their Agency Automatic (1percent) Contributions and associated earnings are forfeitedbecause they did not meet the TSP vesting requirement, theemployees are entitled to have these funds restored to theiraccounts after they are reemployed.

53

If employees separate and their accounts are disbursed asautomatic cash outs, the employees may return to the TSP anamount equal to the full amount of the payment after they arereemployed. For additional information see the TSP Fact Sheet --Benefits that Apply to Members of the Military Who Return toFederal Civilian Service" at:

http://www.tsp.gov/forms/index-factsheets.html.

RETURN TO CIVILIAN DUTY.

An employee, who enters active military duty (voluntarily orinvoluntarily) from any position, including a temporary position,has full job protection, provided he or she applies forreemployment within the following time limits:

! Employees who served less than 31 days mustreport back to work at the beginning of the nextscheduled workday following their release fromservice and the expiration of 8 hours after a timefor safe transportation back to the employee'sresidence.

! Employees who served more than 30 days, butless than 181 days; must apply for reemploymentwithin 14 days of release by the military.

! Employees who served more than 180 days have90 days to apply for reemployment.

52

! If the separated employee does not exercise therestoration right, but later re-enters Federal civilianservice, the military service may be credited under theretirement system, subject to the rules governingcredit for military service.

THRIFT SAVINGS PLAN.

For purposes of the Thrift Savings Plan (TSP), no contributionscan be made, either by the agency or the employee, for any timein an LWOP status or for a period of separation. Agencies shouldrefer to the Thrift Savings Plan Bulletin for Agency TSPRepresentatives, No. 01-22, dated May 3, 2001. For additionalinformation, agency representatives may contact the FederalRetirement Thrift Investment Board at (202) 942-1460.Employees should refer to the TSP Fact Sheet - Effect of Non-pay Status on TSP Participation. Both issuances are availablefrom the TSP Internet web site at:

http://www.tsp.gov/forms/index-factsheets.html.

If employees are subsequently reemployed in, or restored to, aposition covered by FERS or CSRS pursuant to 38 U.S.C. chapter43, they may make up missed contributions. FERS employees areentitled to receive retroactive Agency Automatic (1 percent)Contributions and, if they make up their own contributions,retroactive Agency Matching Contributions.

If FERS employees separate and their Agency Automatic (1percent) Contributions and associated earnings are forfeitedbecause they did not meet the TSP vesting requirement, theemployees are entitled to have these funds restored to theiraccounts after they are reemployed.

53

If employees separate and their accounts are disbursed asautomatic cash outs, the employees may return to the TSP anamount equal to the full amount of the payment after they arereemployed. For additional information see the TSP Fact Sheet --Benefits that Apply to Members of the Military Who Return toFederal Civilian Service" at:

http://www.tsp.gov/forms/index-factsheets.html.

RETURN TO CIVILIAN DUTY.

An employee, who enters active military duty (voluntarily orinvoluntarily) from any position, including a temporary position,has full job protection, provided he or she applies forreemployment within the following time limits:

! Employees who served less than 31 days mustreport back to work at the beginning of the nextscheduled workday following their release fromservice and the expiration of 8 hours after a timefor safe transportation back to the employee'sresidence.

! Employees who served more than 30 days, butless than 181 days; must apply for reemploymentwithin 14 days of release by the military.

! Employees who served more than 180 days have90 days to apply for reemployment.

54

Employees who served less than 91 days must be restored to theposition for which they qualified and which they would haveattained had their employment not been interrupted. Employeeswho served more than 90 days have essentially the same rights,except that the agency has the option of placing an employee ina position for which they qualify of like seniority, status, and pay.

Upon return or restoration, an employee generally is entitled tobe treated as though he or she had never left for purposes ofrights and benefits based upon length of service. This means thatthe employee must be considered for career ladder promotions,and the time spent in the military will be credited for seniority,successive within-grade increases, probation, career tenure,annual leave accrual rate, and severance pay.

An employee, who was on a temporary appointment serves outthe remaining time, if any, left on the appointment. (The militaryactivation period does not extend the civilian appointment.)

An employee performing active military duty is protected fromreduction in force (RIF) and may not be discharged fromemployment for a period of 1 year following separation (6months in the case of a Reservist called to active duty under 10U.S.C. 12304 for more than 30 days, but less than 181 days, orordered to an initial period of active duty for training of not lessthan 12 consecutive weeks), except for poor performance orconduct or for suitability reasons.

NOTE: Employees in the intelligenceagencies have substantially the samerights, but are covered under agencyregulations, rather than the Office ofPersonnel Management's regulations, andhave different appeal rights.

55

APPEAL RIGHTS.

An employee or former employee of an agency in the executivebranch (including the U.S. Postal Service) who is entitled torestoration in connection with military duty may appeal anagency's failure to properly carry out the law directly to the MeritSystems Protection Board (MSPB), or the employee may firstsubmit a complaint to the Department of Labor, which willattempt to resolve it. If a resolution is not possible, theDepartment may present the case to the Office of the SpecialCounsel, which may represent the employee in an appeal to theMSBP. Appeals to the Board must be submitted within 30calendar days after the effective date of the action beingappealed.

DOCUMENTING PERSONNEL ACTIONS.

Leave without Pay. LWOP must be documented on an SF 50,Notification of Personnel Action, with nature of action473/LWOP-US and legal authorities Q3K/5 CFR 353 andZJW/Operation Enduring Freedom. (Note: ZJW is a new legalauthority that has been established to enable OPM and agenciesto identify reservists who are involved in the effort underOperation Enduring Freedom). These same authorities must alsobe used on the 292/RTD action when the reservist returns tocivilian employment.

Health Benefits and Life Insurance. For those reservists withhealth benefits coverage while absent for reasons related tomilitary duty, enter in block 45 of the SF 50 remark B66.Health benefits coverage will continue for 18 months unless youelect to terminate coverage. Contact your servicing HumanResources Office or see the FEHB Handbook at:http://www.opm.gov/insure for detailed information. Reservistswith Federal Employees' Group Life Insurance (FEGLI)coverage, enter in block 45 of the SF 50 remark B72.

54

Employees who served less than 91 days must be restored to theposition for which they qualified and which they would haveattained had their employment not been interrupted. Employeeswho served more than 90 days have essentially the same rights,except that the agency has the option of placing an employee ina position for which they qualify of like seniority, status, and pay.

Upon return or restoration, an employee generally is entitled tobe treated as though he or she had never left for purposes ofrights and benefits based upon length of service. This means thatthe employee must be considered for career ladder promotions,and the time spent in the military will be credited for seniority,successive within-grade increases, probation, career tenure,annual leave accrual rate, and severance pay.

An employee, who was on a temporary appointment serves outthe remaining time, if any, left on the appointment. (The militaryactivation period does not extend the civilian appointment.)

An employee performing active military duty is protected fromreduction in force (RIF) and may not be discharged fromemployment for a period of 1 year following separation (6months in the case of a Reservist called to active duty under 10U.S.C. 12304 for more than 30 days, but less than 181 days, orordered to an initial period of active duty for training of not lessthan 12 consecutive weeks), except for poor performance orconduct or for suitability reasons.

NOTE: Employees in the intelligenceagencies have substantially the samerights, but are covered under agencyregulations, rather than the Office ofPersonnel Management's regulations, andhave different appeal rights.

55

APPEAL RIGHTS.

An employee or former employee of an agency in the executivebranch (including the U.S. Postal Service) who is entitled torestoration in connection with military duty may appeal anagency's failure to properly carry out the law directly to the MeritSystems Protection Board (MSPB), or the employee may firstsubmit a complaint to the Department of Labor, which willattempt to resolve it. If a resolution is not possible, theDepartment may present the case to the Office of the SpecialCounsel, which may represent the employee in an appeal to theMSBP. Appeals to the Board must be submitted within 30calendar days after the effective date of the action beingappealed.

DOCUMENTING PERSONNEL ACTIONS.

Leave without Pay. LWOP must be documented on an SF 50,Notification of Personnel Action, with nature of action473/LWOP-US and legal authorities Q3K/5 CFR 353 andZJW/Operation Enduring Freedom. (Note: ZJW is a new legalauthority that has been established to enable OPM and agenciesto identify reservists who are involved in the effort underOperation Enduring Freedom). These same authorities must alsobe used on the 292/RTD action when the reservist returns tocivilian employment.

Health Benefits and Life Insurance. For those reservists withhealth benefits coverage while absent for reasons related tomilitary duty, enter in block 45 of the SF 50 remark B66.Health benefits coverage will continue for 18 months unless youelect to terminate coverage. Contact your servicing HumanResources Office or see the FEHB Handbook at:http://www.opm.gov/insure for detailed information. Reservistswith Federal Employees' Group Life Insurance (FEGLI)coverage, enter in block 45 of the SF 50 remark B72.

56

FEGLI coverage continues until a reservist's time in non-paystatus totals 12 months. Reservists should contact their servicingHuman Resources Office or see the FEGLI Handbook athttp://www.opm.gov/insure for detailed information.

Separations. If the reservist requests separation rather thanLWOP, the separation must be documented with nature of action353/Separation-US and legal authorities Q3K/5 CFR 353 andZJW/Operation Enduring Freedom. Follow the instructions inChapter 9 or 11 (as appropriate) of The Guide to ProcessingPersonnel Actions, to document the reservist's restoration uponcompletion of his or her military service.

Updated February 2003

PREMIUM PAY FOR FEDERAL CIVILIAN EMPLOYEESWHO PERFORM EMERGENCY WORK IN SUPPORT OFTHE NATIONAL EMERGENCY DECLARED BYPRESIDENTIAL PROCLAMATION OF SEPTEMBER 14,2001.

The purpose of this attachment is to provide updated informationabout premium pay for civilian employees who performemergency work in support of the National Emergency declaredby the Presidential Proclamation of September 14, 2001.

Under 5 U.S.C. 5547(a) and 5 CFR 550.105, General Scheduleemployees and other covered employees, including lawenforcement officers, may receive certain types of premium payfor a biweekly pay period only to the extent that the sum of basicpay and premium pay for the pay period does not exceed thegreater of the biweekly rate for (1) GS-15, step 10 (includingany applicable locality rate or special salary rate), or (2) level Vof the Executive Schedule. Please refer to our biweekly premiumpay limitation fact sheet at:

57

http://www.opm.gov/oca/pay/HTML/03GSCap.asp

for further information and guidance. Agencies are reminded oftheir authority under the law (5 U.S.C. 5547(b)) and OPMregulations (5 CFR 550.106) to make exception to the biweeklypremium pay limitation. (Please note that overtime pay under theFair Labor Standards Act of 1938, as amended, does not counttoward this limitation.).

The head of an agency may apply an annual cap to certain typesof premium pay for any pay period for:

(1) employees performing work in connection with anemergency, including work performed in the aftermath ofsuch an emergency; or

(2) employees performing work critical to the mission of theagency. Such employees may receive certain types ofpremium pay only to the extent that the aggregate of basicpay and premium pay for the calendar year does not exceedthe greater of the annual rate for:

(a) GS-15, step 10 (including any applicable specialsalary rate or locality rate of pay); or

(b) Level V of the Executive Schedule. (Also see 5CFR 550.107 for information on premiumpayments that remain subject to the biweeklylimitation when other premium payments arelimited to the annual limitation.)

56

FEGLI coverage continues until a reservist's time in non-paystatus totals 12 months. Reservists should contact their servicingHuman Resources Office or see the FEGLI Handbook athttp://www.opm.gov/insure for detailed information.

Separations. If the reservist requests separation rather thanLWOP, the separation must be documented with nature of action353/Separation-US and legal authorities Q3K/5 CFR 353 andZJW/Operation Enduring Freedom. Follow the instructions inChapter 9 or 11 (as appropriate) of The Guide to ProcessingPersonnel Actions, to document the reservist's restoration uponcompletion of his or her military service.

Updated February 2003

PREMIUM PAY FOR FEDERAL CIVILIAN EMPLOYEESWHO PERFORM EMERGENCY WORK IN SUPPORT OFTHE NATIONAL EMERGENCY DECLARED BYPRESIDENTIAL PROCLAMATION OF SEPTEMBER 14,2001.

The purpose of this attachment is to provide updated informationabout premium pay for civilian employees who performemergency work in support of the National Emergency declaredby the Presidential Proclamation of September 14, 2001.

Under 5 U.S.C. 5547(a) and 5 CFR 550.105, General Scheduleemployees and other covered employees, including lawenforcement officers, may receive certain types of premium payfor a biweekly pay period only to the extent that the sum of basicpay and premium pay for the pay period does not exceed thegreater of the biweekly rate for (1) GS-15, step 10 (includingany applicable locality rate or special salary rate), or (2) level Vof the Executive Schedule. Please refer to our biweekly premiumpay limitation fact sheet at:

57

http://www.opm.gov/oca/pay/HTML/03GSCap.asp

for further information and guidance. Agencies are reminded oftheir authority under the law (5 U.S.C. 5547(b)) and OPMregulations (5 CFR 550.106) to make exception to the biweeklypremium pay limitation. (Please note that overtime pay under theFair Labor Standards Act of 1938, as amended, does not counttoward this limitation.).

The head of an agency may apply an annual cap to certain typesof premium pay for any pay period for:

(1) employees performing work in connection with anemergency, including work performed in the aftermath ofsuch an emergency; or

(2) employees performing work critical to the mission of theagency. Such employees may receive certain types ofpremium pay only to the extent that the aggregate of basicpay and premium pay for the calendar year does not exceedthe greater of the annual rate for:

(a) GS-15, step 10 (including any applicable specialsalary rate or locality rate of pay); or

(b) Level V of the Executive Schedule. (Also see 5CFR 550.107 for information on premiumpayments that remain subject to the biweeklylimitation when other premium payments arelimited to the annual limitation.)

58

VETERANS' REEMPLOYMENT RIGHTS(VRR)

EXPIRATION OF THE VETERANSREADJUSTMENT APPOINTMENT

AUTHORITY

The authority to noncompetitively appoint Vietnam era veteransunder the Veterans' Readjustment Appointment authority expiredon December 31, 1995. This applied to all Vietnam veterans whowere released from active duty more than 10 years ago. Theauthority to appoint post-Vietnam era veterans and those Vietnamera veterans who were released from active duty within the past10 years, and veterans with a 30 percent or more disability are notaffected. We know of no plans by Congress to extend theauthority at this time (see 38 U.S.C. 4214 (b)).

WHO IS COVERED?

VRR applies to persons who were inducted into the ArmedForces, persons who volunteer directly for active duty andReservists and members of the National Guard who are called toactive duty either voluntarily or involuntarily. VRR coversmembers of the Reserves and National Guard during active dutytraining and inactive duty training.

BASIC PROVISIONS/ REQUIREMENTS:

Veterans returning from active duty must meet the followingfive eligibility requirements to be covered by VRR:

(1) Held an "other than temporary" (not necessarily"permanent") civilian job;

59

(2) Have left the civilian job for the purpose of going on activeduty;

(3) Did not remain on active duty longer than 4 years, unlessthe period beyond 4 years (up to an additional year) was "atthe request and for the convenience of the FederalGovernment";

(3) Was discharged or released from active duty "underhonorable conditions"; and

(4) Applied for reemployment with the pre-service employeror successor in interest within 90 days after separation fromactive duty.

Eligible veterans are entitled to reinstatement within a reasonabletime to a position of like seniority, status and pay. The returningveterans do not step back on the seniority escalator at the pointthey stepped off. Rather the veterans step back on at the precisepoint that they would have occupied had they kept the positioncontinuously during the military service.

VRR provides that a Reservist or member of the National Guardshall upon request be granted a leave of absence by such person'semployer to perform active duty training or inactive duty trainingand that the employee shall not be denied retention inemployment or any promotion or other incident or advantage ofemployment because of any obligation as a member of a Reservecomponent of the Armed Forces. In addition, while the employeris not required to pay the Reservist or National Guard member forthe hours or days not worked because of military trainingobligations, it is unlawful to require the employee to use earnedvacation time for military training. A person who leaves acivilian job in order to perform active duty is not required torequest a leave of absence or even to notify the employer thatmilitary service is the reason for leaving the job, however such

58

VETERANS' REEMPLOYMENT RIGHTS(VRR)

EXPIRATION OF THE VETERANSREADJUSTMENT APPOINTMENT

AUTHORITY

The authority to noncompetitively appoint Vietnam era veteransunder the Veterans' Readjustment Appointment authority expiredon December 31, 1995. This applied to all Vietnam veterans whowere released from active duty more than 10 years ago. Theauthority to appoint post-Vietnam era veterans and those Vietnamera veterans who were released from active duty within the past10 years, and veterans with a 30 percent or more disability are notaffected. We know of no plans by Congress to extend theauthority at this time (see 38 U.S.C. 4214 (b)).

WHO IS COVERED?

VRR applies to persons who were inducted into the ArmedForces, persons who volunteer directly for active duty andReservists and members of the National Guard who are called toactive duty either voluntarily or involuntarily. VRR coversmembers of the Reserves and National Guard during active dutytraining and inactive duty training.

BASIC PROVISIONS/ REQUIREMENTS:

Veterans returning from active duty must meet the followingfive eligibility requirements to be covered by VRR:

(1) Held an "other than temporary" (not necessarily"permanent") civilian job;

59

(2) Have left the civilian job for the purpose of going on activeduty;

(3) Did not remain on active duty longer than 4 years, unlessthe period beyond 4 years (up to an additional year) was "atthe request and for the convenience of the FederalGovernment";

(3) Was discharged or released from active duty "underhonorable conditions"; and

(4) Applied for reemployment with the pre-service employeror successor in interest within 90 days after separation fromactive duty.

Eligible veterans are entitled to reinstatement within a reasonabletime to a position of like seniority, status and pay. The returningveterans do not step back on the seniority escalator at the pointthey stepped off. Rather the veterans step back on at the precisepoint that they would have occupied had they kept the positioncontinuously during the military service.

VRR provides that a Reservist or member of the National Guardshall upon request be granted a leave of absence by such person'semployer to perform active duty training or inactive duty trainingand that the employee shall not be denied retention inemployment or any promotion or other incident or advantage ofemployment because of any obligation as a member of a Reservecomponent of the Armed Forces. In addition, while the employeris not required to pay the Reservist or National Guard member forthe hours or days not worked because of military trainingobligations, it is unlawful to require the employee to use earnedvacation time for military training. A person who leaves acivilian job in order to perform active duty is not required torequest a leave of absence or even to notify the employer thatmilitary service is the reason for leaving the job, however such

60

a person is encouraged to provide the employer with as muchinformation as possible. However, a Reservist or member of the

National Guard must request a leave of absence when leaving thecivilian job to perform active duty training or inactive dutytraining.

VRR is enforced by DOL's Veterans' Employment and TrainingService (VETS).

ASSISTANCE AVAILABLE.

VETS have published two fact sheets covering the veteranreemployment and job rights. These are OASVET 90-09 entitled"Job Rights for Reservists and Members of the National Guard"and OAVET 90-10 entitled "Reemployment Rights for ReturningVeterans." Copies of these and other VETS' publications oranswers to questions on VRR may be obtained from the nearestVETS office.

RELATION TO STATE, LOCAL AND OTHER FEDERALLAWS.

The VRR does not preempt state laws providing greater oradditional rights, but it does preempt state laws providing lesserrights or imposing additional eligibility criteria.

VETERANS’ READJUSTMENT ACT.

Special Appointing Authorities for Veterans, Veterans'Readjustment Appointment (VRA) is a special authority bywhich agencies can, if they wish, appoint an eligible veteranwithout competition. The candidate does not have to be on a listof eligibles, but must meet the basic qualification requirementsfor the position. The VRA is a convenient method of

61

appointment for both the agency and the veteran. The use of theauthority is entirely discretionary and no one is entitled to a VRAappointment. VRA appointees initially are hired for a 2-yearperiod. Successful completion of the 2-year VRA appointmentleads to a permanent civil service appointment.

SERVICE REQUIREMENTS.

You must have served on active duty for a period of more than180 days which occurred after August 4, 1964, and received otherthan a dishonorable discharge. Active duty is full-time duty in theArmed Forces, other than active duty for training. You do notneed to serve more than 180 days of active duty if you weredischarged or released from active duty because of a service-connected disability. Reserve and National Guard members donot need to serve more than 180 days of active duty if:

(1) they were ordered to active duty under section 672(a),672(d), 672(g), 673, or 673(b) of Title 10, and

(2) their active duty was during a period of war or in acampaign or expedition for which a campaign badge isauthorized.

For VRA eligibility, the term "period of war" includes DesertStorm/Shield, beginning 08/02/90. No ending date has been set.

60

a person is encouraged to provide the employer with as muchinformation as possible. However, a Reservist or member of the

National Guard must request a leave of absence when leaving thecivilian job to perform active duty training or inactive dutytraining.

VRR is enforced by DOL's Veterans' Employment and TrainingService (VETS).

ASSISTANCE AVAILABLE.

VETS have published two fact sheets covering the veteranreemployment and job rights. These are OASVET 90-09 entitled"Job Rights for Reservists and Members of the National Guard"and OAVET 90-10 entitled "Reemployment Rights for ReturningVeterans." Copies of these and other VETS' publications oranswers to questions on VRR may be obtained from the nearestVETS office.

RELATION TO STATE, LOCAL AND OTHER FEDERALLAWS.

The VRR does not preempt state laws providing greater oradditional rights, but it does preempt state laws providing lesserrights or imposing additional eligibility criteria.

VETERANS’ READJUSTMENT ACT.

Special Appointing Authorities for Veterans, Veterans'Readjustment Appointment (VRA) is a special authority bywhich agencies can, if they wish, appoint an eligible veteranwithout competition. The candidate does not have to be on a listof eligibles, but must meet the basic qualification requirementsfor the position. The VRA is a convenient method of

61

appointment for both the agency and the veteran. The use of theauthority is entirely discretionary and no one is entitled to a VRAappointment. VRA appointees initially are hired for a 2-yearperiod. Successful completion of the 2-year VRA appointmentleads to a permanent civil service appointment.

SERVICE REQUIREMENTS.

You must have served on active duty for a period of more than180 days which occurred after August 4, 1964, and received otherthan a dishonorable discharge. Active duty is full-time duty in theArmed Forces, other than active duty for training. You do notneed to serve more than 180 days of active duty if you weredischarged or released from active duty because of a service-connected disability. Reserve and National Guard members donot need to serve more than 180 days of active duty if:

(1) they were ordered to active duty under section 672(a),672(d), 672(g), 673, or 673(b) of Title 10, and

(2) their active duty was during a period of war or in acampaign or expedition for which a campaign badge isauthorized.

For VRA eligibility, the term "period of war" includes DesertStorm/Shield, beginning 08/02/90. No ending date has been set.

62

TIME LIMIT.

Eligible post-Vietnam era veterans qualify for 10 years after thedate of their last discharge or release from active duty or untilDecember 31, 1999, whichever is later.

Eligible Vietnam era veterans (those who served on active dutybetween August 5, 1964, and May 7, 1975) qualify until 10 yearsafter their last discharge or separation from active duty or untilDecember 31, 1995, whichever is later.

Eligible veterans with a service-connected disability of 30% ormore have no time limit.

TRAINING REQUIREMENT.

If you were selected for a VRA and have less than 15 years ofeducation, you must agree to participate in a training oreducational program.

GRADE LEVEL OF JOBS THAT CAN BE FILLED.

Agencies can use the VRA authority to fill white collar positionsup through GS-11 and equivalent jobs under other pay systems.

CONDITIONS OF EMPLOYMENT.

Veterans Readjustment Appointments are in the excepted service.After two years of substantially continuous service under a VRA,providing your performance has been satisfactory, yourappointment shall be converted to the competitive service.

63

HOW TO APPLY.

You should contact the Federal agency personnel office whereyou are interested in working to find out about VRAopportunities. Agencies recruit candidates and make VRAappointments directly.

For a list of local agency personnel offices consult your telephonedirectory under "U.S. Government" for the nearest location andtelephone number.

62

TIME LIMIT.

Eligible post-Vietnam era veterans qualify for 10 years after thedate of their last discharge or release from active duty or untilDecember 31, 1999, whichever is later.

Eligible Vietnam era veterans (those who served on active dutybetween August 5, 1964, and May 7, 1975) qualify until 10 yearsafter their last discharge or separation from active duty or untilDecember 31, 1995, whichever is later.

Eligible veterans with a service-connected disability of 30% ormore have no time limit.

TRAINING REQUIREMENT.

If you were selected for a VRA and have less than 15 years ofeducation, you must agree to participate in a training oreducational program.

GRADE LEVEL OF JOBS THAT CAN BE FILLED.

Agencies can use the VRA authority to fill white collar positionsup through GS-11 and equivalent jobs under other pay systems.

CONDITIONS OF EMPLOYMENT.

Veterans Readjustment Appointments are in the excepted service.After two years of substantially continuous service under a VRA,providing your performance has been satisfactory, yourappointment shall be converted to the competitive service.

63

HOW TO APPLY.

You should contact the Federal agency personnel office whereyou are interested in working to find out about VRAopportunities. Agencies recruit candidates and make VRAappointments directly.

For a list of local agency personnel offices consult your telephonedirectory under "U.S. Government" for the nearest location andtelephone number.

64

30% OR MORE DISABLED VETERANPROGRAM

Federal agencies have the authority, by law, to givenoncompetitive appointments to any veteran who has a service-connected disability of 30% or more. Like the VRA, thisauthority is discretionary with the agency.

WHO IS ELIGIBLE?

To be eligible you must be a disabled veteran who has acompensable service-connected disability of 30 percent or moreand the disability must be officially documented by theDepartment of Defense or the Department of Veterans Affairs.

GRADE LEVEL OF JOBS THAT CAN BE FILLED.

This authority covers all grade levels and occupations.

CONDITIONS OF EMPLOYMENT.

You must serve initially under a temporary appointment notlimited to 60 days or less. After successfully performing on sucha temporary appointment, the Federal agency may convert you toa permanent position.

CONDITIONS OF QUALIFICATIONS.

You must meet all qualification requirements for any position towhich you are appointed. This could include the requirement toachieve a passing score on a written test.

65

HOW TO APPLY.

You should contact the Federal agency personnel office whereyou are interested in working to find out about opportunities.Agencies recruit candidates and make appointments directly. Asa part of your application package, you will need a copy of aletter dated within the last 12 months from the Department ofVeterans Affairs or the Department of Defense certifying receiptof compensation for a service-connected disability of 30% ormore.

64

30% OR MORE DISABLED VETERANPROGRAM

Federal agencies have the authority, by law, to givenoncompetitive appointments to any veteran who has a service-connected disability of 30% or more. Like the VRA, thisauthority is discretionary with the agency.

WHO IS ELIGIBLE?

To be eligible you must be a disabled veteran who has acompensable service-connected disability of 30 percent or moreand the disability must be officially documented by theDepartment of Defense or the Department of Veterans Affairs.

GRADE LEVEL OF JOBS THAT CAN BE FILLED.

This authority covers all grade levels and occupations.

CONDITIONS OF EMPLOYMENT.

You must serve initially under a temporary appointment notlimited to 60 days or less. After successfully performing on sucha temporary appointment, the Federal agency may convert you toa permanent position.

CONDITIONS OF QUALIFICATIONS.

You must meet all qualification requirements for any position towhich you are appointed. This could include the requirement toachieve a passing score on a written test.

65

HOW TO APPLY.

You should contact the Federal agency personnel office whereyou are interested in working to find out about opportunities.Agencies recruit candidates and make appointments directly. Asa part of your application package, you will need a copy of aletter dated within the last 12 months from the Department ofVeterans Affairs or the Department of Defense certifying receiptof compensation for a service-connected disability of 30% ormore.

66

SOLDIERS' AND SAILORS'CIVIL RELIEF ACT

INTRODUCTION

The Soldiers' and Sailors' Civil Relief Act (SSCRA), was passedby Congress to provide protection to persons entering or called toactive duty in the U.S. Armed Forces. Reservists and members ofthe National Guard (when in active federal service) are alsoprotected under the SSCRA. The protection begins on the datethe soldier entered active duty service and terminates uponrelease from active duty. However, some protections under theact extend for a limited time beyond discharge but are tied to thedischarge date. Additionally, some of the Act’s protectionsextend to the soldier's dependents.

Termination of Pre-Service Lease Agreements

! A service member who is leasing/rentingproperty used for dwelling, professional,business, agricultural or similar purposes mayterminate a lease that was:

- signed before the service memberentered active duty; and

- the leased/rented premises have beenoccupied for the above purposes bythe service member or his/herdependents.

67

! The service member must deliver written noticeof termination to the landlord after entry on activeduty or receipt of orders for active duty. Thetermination date for a month-to-monthlease/rental is 30 days after the first date on whichthe next rental payment is due after thetermination notice is delivered. For example, ifrent is due on the 1st of the month and notice isdelivered to the landlord on August 5th, the nextrent due is September 1st. Therefore, thelease/rental agreement will terminate on October1st.

! For all other lease/rental agreements, thetermination date will be the last day of the monthafter the month in which the notice was given. Forexample, if the term of the lease/rental agreementis yearly and notice was given August 5th, thenthe termination date will be September 30th.

! If the rent has been paid in advance, then thelandlord must return any unearned portion. Thelandlord may not withhold the refund of a servicemember's security deposit for early termination ofthe lease/rental agreement. However, the landlordmay withhold return of the security deposit fordamages, repairs, and other lawful provisions ofthe lease/rental agreement.

66

SOLDIERS' AND SAILORS'CIVIL RELIEF ACT

INTRODUCTION

The Soldiers' and Sailors' Civil Relief Act (SSCRA), was passedby Congress to provide protection to persons entering or called toactive duty in the U.S. Armed Forces. Reservists and members ofthe National Guard (when in active federal service) are alsoprotected under the SSCRA. The protection begins on the datethe soldier entered active duty service and terminates uponrelease from active duty. However, some protections under theact extend for a limited time beyond discharge but are tied to thedischarge date. Additionally, some of the Act’s protectionsextend to the soldier's dependents.

Termination of Pre-Service Lease Agreements

! A service member who is leasing/rentingproperty used for dwelling, professional,business, agricultural or similar purposes mayterminate a lease that was:

- signed before the service memberentered active duty; and

- the leased/rented premises have beenoccupied for the above purposes bythe service member or his/herdependents.

67

! The service member must deliver written noticeof termination to the landlord after entry on activeduty or receipt of orders for active duty. Thetermination date for a month-to-monthlease/rental is 30 days after the first date on whichthe next rental payment is due after thetermination notice is delivered. For example, ifrent is due on the 1st of the month and notice isdelivered to the landlord on August 5th, the nextrent due is September 1st. Therefore, thelease/rental agreement will terminate on October1st.

! For all other lease/rental agreements, thetermination date will be the last day of the monthafter the month in which the notice was given. Forexample, if the term of the lease/rental agreementis yearly and notice was given August 5th, thenthe termination date will be September 30th.

! If the rent has been paid in advance, then thelandlord must return any unearned portion. Thelandlord may not withhold the refund of a servicemember's security deposit for early termination ofthe lease/rental agreement. However, the landlordmay withhold return of the security deposit fordamages, repairs, and other lawful provisions ofthe lease/rental agreement.

68

Evictions From Leased Housing

A service member may seek protection from eviction underSSCRA. The rented/leased property must be occupied by theservice member or his/her dependents for the purpose of housingand the rent can not exceed $1,200. The service member ordependent who has received notice of an eviction must submit arequest to the court for protection under the SSCRA. If the courtfinds that the service member's military duties have materiallyaffected his ability to pay his rent timely, the judge may order astay, postponement of the eviction proceeding for up to 3 monthsor make any other "just" order.

6% Interest Rate

! If a service member's military obligation hasaffected his/her ability to pay on financialobligations such as credit cards, loans,mortgages, etc., the service member can havehis/her interest rate capped at 6% for theduration of the service member's militaryobligation.

! Qualifying debts:

-- Debts that were incurred prior to theservice member coming on activeduty;

-- The service member must be on activeduty at the time of the request;

-- The service member's military careermust have materially affected theservice member's ability to pay on thedebt;

69

-- This provision does not apply to federallyguaranteed student loans.

! How to implement the 6% cap. The servicemember should contact his/her creditor andrequest that his/her interest rate be reduced to 6%according to the provisions of the SSCRA. Thecreditor may request a copy of the servicemember's orders. The burden is on the creditor toseek relief in court if the creditor believes that theservice member's military career does notmaterially affect his/her ability to pay.

Court Proceedings

! A service member who is either the plaintiff orthe defendant in a civil lawsuit may request a stayor postponement of a court proceeding in whichhe/she is a party. A service member may requesta stay at any point in the proceedings. However,courts are reluctant to grant stays at the pre-trialphase of a lawsuit, such as discovery, depositions,etc. If a judgment is entered against a servicemember who is unavailable due to military orders,the service member may be able to have thatjudgment voided.

! Criteria:

-- The service member must actually be aparty to the suit.

-- The provision only applies to civillawsuits, suits for paternity, child custodysuits, and bankruptcy debtor/creditormeetings.

68

Evictions From Leased Housing

A service member may seek protection from eviction underSSCRA. The rented/leased property must be occupied by theservice member or his/her dependents for the purpose of housingand the rent can not exceed $1,200. The service member ordependent who has received notice of an eviction must submit arequest to the court for protection under the SSCRA. If the courtfinds that the service member's military duties have materiallyaffected his ability to pay his rent timely, the judge may order astay, postponement of the eviction proceeding for up to 3 monthsor make any other "just" order.

6% Interest Rate

! If a service member's military obligation hasaffected his/her ability to pay on financialobligations such as credit cards, loans,mortgages, etc., the service member can havehis/her interest rate capped at 6% for theduration of the service member's militaryobligation.

! Qualifying debts:

-- Debts that were incurred prior to theservice member coming on activeduty;

-- The service member must be on activeduty at the time of the request;

-- The service member's military careermust have materially affected theservice member's ability to pay on thedebt;

69

-- This provision does not apply to federallyguaranteed student loans.

! How to implement the 6% cap. The servicemember should contact his/her creditor andrequest that his/her interest rate be reduced to 6%according to the provisions of the SSCRA. Thecreditor may request a copy of the servicemember's orders. The burden is on the creditor toseek relief in court if the creditor believes that theservice member's military career does notmaterially affect his/her ability to pay.

Court Proceedings

! A service member who is either the plaintiff orthe defendant in a civil lawsuit may request a stayor postponement of a court proceeding in whichhe/she is a party. A service member may requesta stay at any point in the proceedings. However,courts are reluctant to grant stays at the pre-trialphase of a lawsuit, such as discovery, depositions,etc. If a judgment is entered against a servicemember who is unavailable due to military orders,the service member may be able to have thatjudgment voided.

! Criteria:

-- The service member must actually be aparty to the suit.

-- The provision only applies to civillawsuits, suits for paternity, child custodysuits, and bankruptcy debtor/creditormeetings.

70

-- The provision does not apply to:

! administrative hearings;! criminal proceedings;! child support determination;! proceedings in which the

service member is merely amaterial witness to the lawsuit,but not an actual party; or

! the service member has leaveavailable and has made noattempt to use his/her leave toattend the proceedings.

! How to invoke a stay. A service member shouldhave his commander write a letter to the courtand the opposing party's attorney stating thatthe service member is unable to attend theproceedings. The soldier should not have anattorney draft such a letter to the court. A letterby an attorney could be considered anappearance by the service member and couldsubject the service member to the jurisdictionof the court.

71

Installment Contracts and Auto Leases

A service member or spouse may request protection under theSSCRA for pre-service debts incurred under installment contractsand auto leases. The service member or the spouse must provethat the service member's military obligations have materiallyaffected his/her ability to pay on the debts. Also, at least onedeposit or installment payment must have been made on thecontract prior to entering active duty. If the contract falls underthe protection of the SSCRA, the creditor is thereafter prohibitedfrom exercising any right or option under the contract, such as torescind or terminate the contract or to repossess the property,unless authorized by a court order.

Enforcement of Obligations, Liabilities, Taxes

A service member or dependent may, at any time during his/hermilitary service, or within 6 months thereafter, apply to a courtfor relief of any obligation or liability incurred by the servicemember or dependent prior to active duty or in respect to any taxor assessment whether falling during or prior to the servicemember's active military service. The court may grant stays ofenforcement during which time no fine or penalty can accrue.

70

-- The provision does not apply to:

! administrative hearings;! criminal proceedings;! child support determination;! proceedings in which the

service member is merely amaterial witness to the lawsuit,but not an actual party; or

! the service member has leaveavailable and has made noattempt to use his/her leave toattend the proceedings.

! How to invoke a stay. A service member shouldhave his commander write a letter to the courtand the opposing party's attorney stating thatthe service member is unable to attend theproceedings. The soldier should not have anattorney draft such a letter to the court. A letterby an attorney could be considered anappearance by the service member and couldsubject the service member to the jurisdictionof the court.

71

Installment Contracts and Auto Leases

A service member or spouse may request protection under theSSCRA for pre-service debts incurred under installment contractsand auto leases. The service member or the spouse must provethat the service member's military obligations have materiallyaffected his/her ability to pay on the debts. Also, at least onedeposit or installment payment must have been made on thecontract prior to entering active duty. If the contract falls underthe protection of the SSCRA, the creditor is thereafter prohibitedfrom exercising any right or option under the contract, such as torescind or terminate the contract or to repossess the property,unless authorized by a court order.

Enforcement of Obligations, Liabilities, Taxes

A service member or dependent may, at any time during his/hermilitary service, or within 6 months thereafter, apply to a courtfor relief of any obligation or liability incurred by the servicemember or dependent prior to active duty or in respect to any taxor assessment whether falling during or prior to the servicemember's active military service. The court may grant stays ofenforcement during which time no fine or penalty can accrue.

72

FAMILY AND MEDICAL LEAVE ACT(FMLA)

WHAT IS THE FAMILY AND MEDICAL LEAVE ACT?

FMLA is a Federal law that provides "qualifying" employees ofa covered employer the right to take up to 12 weeks of unpaid,job-protected leave, during any 12 months, for the birth and careof a newborn, adoption or foster care, or a serious healthcondition of the employee or certain family members. An"eligible" employee is one who meets certain requirementsspecified in the statute. FMLA was enacted in 1993 and iscodified at 29 U.S.C. § 2601 to § 2645 and 5 U.S.C. § 6381 to §6387, relating to Federal civil service employees.

WHAT ARE THE LEAVE ELIGIBILITY PROVISIONS OFTHE FMLA?

In order to be eligible for leave under the FMLA, employees mustmeet several eligibility criteria. Two of these criteria affected byUSERRA are:

1) the person must have been employed by theemployer for at least 12 months; and

2) the person must have worked at least 1250hours for that employer during the 12 monthperiod preceding the start of the leave. Therequirement of 1250 hours worked applies topersons employed by private employers, stateand local governments, and the Postal Service.

73

WHAT EFFECT DOES USERRA HAVE ON THESEREQUIREMENTS?

USERRA requires that the service members who conclude theirtours of duty and who are reemployed by their civilian employersreceive all benefits of employment that they would have obtainedif they had been continuously employed, except those benefitsthat are considered a form of short-term compensation, such asaccrued paid vacation. If a service member had been continuouslyemployed, one such benefit to which he or she might have beenentitled is leave under the FMLA. The service member'seligibility will depend upon whether the service member wouldhave met the eligibility requirements outlined above had he or shenot performed military service.

HOW SHOULD THE 12-MONTH FMLA REQUIREMENTBE CALCULATED FOR RETURNING SERVICE MEMBERS?

USERRA requires that a person reemployed under its provisionsbe given credit for any months he or she would have beenemployed but for the military service in determining eligibilityfor FMLA leave. A person reemployed following military serviceshould be given credit for the period of military service towardsthe months-of-employment eligibility requirement. Each monthserved performing military service counts as a month activelyemployed by the employer. For example, someone who has beenemployed by an employer for 9 months and is ordered to activemilitary service for 9 months after which he or she is reemployed.Upon reemployment, the person must be considered to have beenemployed by the employer for more than the required 12 months(9 months actually employed plus 9 months while serving in themilitary service) for purposes of FMLA eligibility. It should benoted that the 12 months of employment do no have to beconsecutive to meet this FMLA requirement.

72

FAMILY AND MEDICAL LEAVE ACT(FMLA)

WHAT IS THE FAMILY AND MEDICAL LEAVE ACT?

FMLA is a Federal law that provides "qualifying" employees ofa covered employer the right to take up to 12 weeks of unpaid,job-protected leave, during any 12 months, for the birth and careof a newborn, adoption or foster care, or a serious healthcondition of the employee or certain family members. An"eligible" employee is one who meets certain requirementsspecified in the statute. FMLA was enacted in 1993 and iscodified at 29 U.S.C. § 2601 to § 2645 and 5 U.S.C. § 6381 to §6387, relating to Federal civil service employees.

WHAT ARE THE LEAVE ELIGIBILITY PROVISIONS OFTHE FMLA?

In order to be eligible for leave under the FMLA, employees mustmeet several eligibility criteria. Two of these criteria affected byUSERRA are:

1) the person must have been employed by theemployer for at least 12 months; and

2) the person must have worked at least 1250hours for that employer during the 12 monthperiod preceding the start of the leave. Therequirement of 1250 hours worked applies topersons employed by private employers, stateand local governments, and the Postal Service.

73

WHAT EFFECT DOES USERRA HAVE ON THESEREQUIREMENTS?

USERRA requires that the service members who conclude theirtours of duty and who are reemployed by their civilian employersreceive all benefits of employment that they would have obtainedif they had been continuously employed, except those benefitsthat are considered a form of short-term compensation, such asaccrued paid vacation. If a service member had been continuouslyemployed, one such benefit to which he or she might have beenentitled is leave under the FMLA. The service member'seligibility will depend upon whether the service member wouldhave met the eligibility requirements outlined above had he or shenot performed military service.

HOW SHOULD THE 12-MONTH FMLA REQUIREMENTBE CALCULATED FOR RETURNING SERVICE MEMBERS?

USERRA requires that a person reemployed under its provisionsbe given credit for any months he or she would have beenemployed but for the military service in determining eligibilityfor FMLA leave. A person reemployed following military serviceshould be given credit for the period of military service towardsthe months-of-employment eligibility requirement. Each monthserved performing military service counts as a month activelyemployed by the employer. For example, someone who has beenemployed by an employer for 9 months and is ordered to activemilitary service for 9 months after which he or she is reemployed.Upon reemployment, the person must be considered to have beenemployed by the employer for more than the required 12 months(9 months actually employed plus 9 months while serving in themilitary service) for purposes of FMLA eligibility. It should benoted that the 12 months of employment do no have to beconsecutive to meet this FMLA requirement.

74

HOW SHOULD THE 1250 HOURS-OF-SERVICEREQUIREMENT BE CALCULATED FOR RETURNINGSERVICE MEMBERS?

An employee returning after military service should be creditedwith the hours-of-service that would have been performed but forthe period of military service in determining FMLA eligibility.Accordingly, a person reemployed following military service hasthe hours that would have been worked for the employer addedto any hours actually worked during the previous 12-monthperiod to meet the 1250 hour requirement. In order to determinethe hours that would have been worked during the period ofmilitary service, the employee's pre-service work schedule cangenerally be used for calculations. For example, an employeewho works 40 hours per week for the employer returns toemployment following 20 weeks of military service and requestsleave under the FMLA. To determine the person's eligibility, thehours he or she worked during the period of military service (20x 40 = 800 hours) must be added to the hours actually workedduring the 12-month period prior to the start of the leave todetermine if the 1250-hour requirement is met.

75

USERRA - A QUICK LOOK

Know Who IsAffected

Military reserve personnel are required to giveemployers advanced notification of their service statuseither verbally or in writing. There is no requirementfor how far in advance such notice must be provided. It is wise to canvas your employee base to be certainyou are aware of all military reservists in the company.

Know YourObligations

Become familiar with all aspects of USERRAprovisions. Consult with all benefits providersincluding the tools made available for this purpose.

EducateEmployees

Communicate with employees to be sure they fullyunderstand all their rights and their options. Also,consider communicating with all employees so theyunderstand what will happen in an employee's absenceand upon their return.

Provide FlexibleOptions

Many military reservists will not have the luxury oftime to put all affairs in order before going into activeduty. Furthermore, they may need to make provisionsfor themselves and their families even after they leave. Be sure they have options available to them allowingfor personal business to be conducted even after thecommencement of their military duties.

Provide a SmoothTransition Into

Military Service

This can be a very hectic time for these employees,often with little planning time available. Providing thisguide and advice from other benefits providers canhelp to ensure that employees understand all theiroptions before they go into active duty.

Provide a SmoothTransition Back

to a CivilianLivelihood

USERRA provides for the specific - yet flexible -timeframe in which reemployment must occur.Employers who lay the groundwork before anemployee leaves for active duty will help to ensure hisor her smooth return to civilian work life. Consult withall benefits providers.

NOTE: To qualify for USERRA, the employee must be honorablydischarged.

74

HOW SHOULD THE 1250 HOURS-OF-SERVICEREQUIREMENT BE CALCULATED FOR RETURNINGSERVICE MEMBERS?

An employee returning after military service should be creditedwith the hours-of-service that would have been performed but forthe period of military service in determining FMLA eligibility.Accordingly, a person reemployed following military service hasthe hours that would have been worked for the employer addedto any hours actually worked during the previous 12-monthperiod to meet the 1250 hour requirement. In order to determinethe hours that would have been worked during the period ofmilitary service, the employee's pre-service work schedule cangenerally be used for calculations. For example, an employeewho works 40 hours per week for the employer returns toemployment following 20 weeks of military service and requestsleave under the FMLA. To determine the person's eligibility, thehours he or she worked during the period of military service (20x 40 = 800 hours) must be added to the hours actually workedduring the 12-month period prior to the start of the leave todetermine if the 1250-hour requirement is met.

75

USERRA - A QUICK LOOK

Know Who IsAffected

Military reserve personnel are required to giveemployers advanced notification of their service statuseither verbally or in writing. There is no requirementfor how far in advance such notice must be provided. It is wise to canvas your employee base to be certainyou are aware of all military reservists in the company.

Know YourObligations

Become familiar with all aspects of USERRAprovisions. Consult with all benefits providersincluding the tools made available for this purpose.

EducateEmployees

Communicate with employees to be sure they fullyunderstand all their rights and their options. Also,consider communicating with all employees so theyunderstand what will happen in an employee's absenceand upon their return.

Provide FlexibleOptions

Many military reservists will not have the luxury oftime to put all affairs in order before going into activeduty. Furthermore, they may need to make provisionsfor themselves and their families even after they leave. Be sure they have options available to them allowingfor personal business to be conducted even after thecommencement of their military duties.

Provide a SmoothTransition Into

Military Service

This can be a very hectic time for these employees,often with little planning time available. Providing thisguide and advice from other benefits providers canhelp to ensure that employees understand all theiroptions before they go into active duty.

Provide a SmoothTransition Back

to a CivilianLivelihood

USERRA provides for the specific - yet flexible -timeframe in which reemployment must occur.Employers who lay the groundwork before anemployee leaves for active duty will help to ensure hisor her smooth return to civilian work life. Consult withall benefits providers.

NOTE: To qualify for USERRA, the employee must be honorablydischarged.

76

REEMPLOYMENT TIMING

USERRA addresses the timeframe to which employees mustadhere when reporting back to work or submitting reemploymentapplications with their civilian employers. Normally, this isdependent upon the duration of your military service.

Less Than 31Days

Employees should return to work the firstday following completion of their serviceperiod.

30 - 180 DaysEmployees must submit reemploymentapplications within 14 days followingcompletion of their service period.

Over 180 DaysEmployees must submit reemploymentapplications within 90 days of completingtheir military service.

Upon receipt of reemployment applications, the employer mustpromptly reemploy these individuals.

USERRA further provides specific guidelines for the position(s)that employers must offer, including requirements if theemployee suffers a disability as a result of their military duty. Italso includes "escalator" provisions that allow the returningservice member to return to the same level of seniority they hadprevious to the service period. Employers may not terminatethese employees after reemployment, except for cause.

77

GOING ABOVE AND BEYOND

Certainly, the nation's uniformed services personnel go above andbeyond the call of duty to their country. It is urged that all plansponsors examine their ability - even during difficult economictimes - to go beyond USERRA provisions to continue providinguninterrupted benefits to these employees. Military pay andbenefits are minimal at best. Many of these reservists must stillprovide for their families even as they are away from home.

RETIREMENT PLAN PARTICIPANT PRACTICALCHECKLIST

Of course, you will want to communicate with your employerregarding your status as a military service person. It is importantto take appropriate steps to prepare for your leave of absence ifyou have the ability to do so.

Before you go ...

Know AllYour Rights

USERRA and SBJPA offer protection for youremployee benefits, including reemployment. Consultthe USERRA provisions included in this guide and askyour employer for information relevant to all yourbenefits, including healthcare and life insurancecoverage, vacation time, compensation and senioritystatus.

Establish orUpdate Your

Will

No one likes to think about this, but it is very importantto take care of all that you have worked for and toprovide for those you love. Military lawyers areavailable to help with Will preparation, but you shouldconsider that they might be busy with many otherduties. If you can utilize your own attorney before yougo, it is highly recommended, particularly if you have aspouse, children and/or a sizeable estate. You shouldalso see if your attorney suggests a Power of Attorneyfor your situation.

76

REEMPLOYMENT TIMING

USERRA addresses the timeframe to which employees mustadhere when reporting back to work or submitting reemploymentapplications with their civilian employers. Normally, this isdependent upon the duration of your military service.

Less Than 31Days

Employees should return to work the firstday following completion of their serviceperiod.

30 - 180 DaysEmployees must submit reemploymentapplications within 14 days followingcompletion of their service period.

Over 180 DaysEmployees must submit reemploymentapplications within 90 days of completingtheir military service.

Upon receipt of reemployment applications, the employer mustpromptly reemploy these individuals.

USERRA further provides specific guidelines for the position(s)that employers must offer, including requirements if theemployee suffers a disability as a result of their military duty. Italso includes "escalator" provisions that allow the returningservice member to return to the same level of seniority they hadprevious to the service period. Employers may not terminatethese employees after reemployment, except for cause.

77

GOING ABOVE AND BEYOND

Certainly, the nation's uniformed services personnel go above andbeyond the call of duty to their country. It is urged that all plansponsors examine their ability - even during difficult economictimes - to go beyond USERRA provisions to continue providinguninterrupted benefits to these employees. Military pay andbenefits are minimal at best. Many of these reservists must stillprovide for their families even as they are away from home.

RETIREMENT PLAN PARTICIPANT PRACTICALCHECKLIST

Of course, you will want to communicate with your employerregarding your status as a military service person. It is importantto take appropriate steps to prepare for your leave of absence ifyou have the ability to do so.

Before you go ...

Know AllYour Rights

USERRA and SBJPA offer protection for youremployee benefits, including reemployment. Consultthe USERRA provisions included in this guide and askyour employer for information relevant to all yourbenefits, including healthcare and life insurancecoverage, vacation time, compensation and senioritystatus.

Establish orUpdate Your

Will

No one likes to think about this, but it is very importantto take care of all that you have worked for and toprovide for those you love. Military lawyers areavailable to help with Will preparation, but you shouldconsider that they might be busy with many otherduties. If you can utilize your own attorney before yougo, it is highly recommended, particularly if you have aspouse, children and/or a sizeable estate. You shouldalso see if your attorney suggests a Power of Attorneyfor your situation.

78

Review BeneficiaryDesignations

Carefully review the list of beneficiaries youhave named for your retirement plan and otherpertinent plans with survivors benefits. Be sure toprovide any updates including change in maritalstatus, the birth of a child, or changes of address. It is important to note that beneficiarydesignations are not governed by terms of a Will. Each plan or insurance policy is considered to be"outside" the Will and as such requires thatspecific beneficiaries be named with separatedocumentation.

Examine the AssetAllocation of Your

Retirement Plan

Diversified asset allocation is a sound investingstrategy in any climate. The circumstances younow face demand even more prudent investing.Because you may not have the same accessibilityto your retirement plan assets after thecommencement of military duty, we encourageyou to look at your current allocation. Consideran allocation that you would be comfortable withfor the next two years ... with no adjustments toyour portfolio. A "Timing the Market" strategyis never a good policy, especially during periodsof uncertainty that include a restriction of accessto your account.

While on military duty ...

It is understandable that you may have many critical things onyour mind as you prepare for active duty. If you do not have theopportunity or the time to make the changes you'd like before yougo, you do have other options even after you've gone intomilitary service.

79

Know All YourOptions

If you have taken the appropriate steps, you can stillconduct your personal business while you are in theservice. Should you find it necessary to reallocateyour retirement plan asset allocation during thistime, a designated person can utilize your PIN orPower of Attorney on your behalf.

You Still HaveAccess to Your

Account

You may or may not have Internet access while youare on your leave of absence for military duty. Ifyou do not have Internet access, a person youdesignate can look in on your account and makeany reallocations for you (e.g., a spouse or trustedadviser).

You Still ReceiveStatements

During your leave of absence, quarterly retirementplan statements will continue to be sent to yourhome. Particularly during times of marketvolatility, you may wish to have someone monitoryour account and its asset allocation on your behalf.

You Still HaveAccess to a Loan

From YourAccount

Some retirement plans allow for participant loans.Taking out a loan against your retirement plan isonly a good idea as a last resort, but you may needto have access to your funds for the short term.Should this become necessary during your militaryservice, you will likely still have the ability to takeout a loan if this is a provision of your companyplan. Consult your plan sponsor for properprocedures and required documentation. Remember, this should only be used as a last resort:retirement planning is a long-term proposition andtime out of the market could hurt your ability toreach your retirement goals.

78

Review BeneficiaryDesignations

Carefully review the list of beneficiaries youhave named for your retirement plan and otherpertinent plans with survivors benefits. Be sure toprovide any updates including change in maritalstatus, the birth of a child, or changes of address. It is important to note that beneficiarydesignations are not governed by terms of a Will. Each plan or insurance policy is considered to be"outside" the Will and as such requires thatspecific beneficiaries be named with separatedocumentation.

Examine the AssetAllocation of Your

Retirement Plan

Diversified asset allocation is a sound investingstrategy in any climate. The circumstances younow face demand even more prudent investing.Because you may not have the same accessibilityto your retirement plan assets after thecommencement of military duty, we encourageyou to look at your current allocation. Consideran allocation that you would be comfortable withfor the next two years ... with no adjustments toyour portfolio. A "Timing the Market" strategyis never a good policy, especially during periodsof uncertainty that include a restriction of accessto your account.

While on military duty ...

It is understandable that you may have many critical things onyour mind as you prepare for active duty. If you do not have theopportunity or the time to make the changes you'd like before yougo, you do have other options even after you've gone intomilitary service.

79

Know All YourOptions

If you have taken the appropriate steps, you can stillconduct your personal business while you are in theservice. Should you find it necessary to reallocateyour retirement plan asset allocation during thistime, a designated person can utilize your PIN orPower of Attorney on your behalf.

You Still HaveAccess to Your

Account

You may or may not have Internet access while youare on your leave of absence for military duty. Ifyou do not have Internet access, a person youdesignate can look in on your account and makeany reallocations for you (e.g., a spouse or trustedadviser).

You Still ReceiveStatements

During your leave of absence, quarterly retirementplan statements will continue to be sent to yourhome. Particularly during times of marketvolatility, you may wish to have someone monitoryour account and its asset allocation on your behalf.

You Still HaveAccess to a Loan

From YourAccount

Some retirement plans allow for participant loans.Taking out a loan against your retirement plan isonly a good idea as a last resort, but you may needto have access to your funds for the short term.Should this become necessary during your militaryservice, you will likely still have the ability to takeout a loan if this is a provision of your companyplan. Consult your plan sponsor for properprocedures and required documentation. Remember, this should only be used as a last resort:retirement planning is a long-term proposition andtime out of the market could hurt your ability toreach your retirement goals.

80

When you return ...

Contact YourEmployer

You are required to contact your employer within aspecific period of time as defined by your length ofservice during the military leave of absence. Youmust also apply for reemployment within thefollowing timeframe after your service has ended:

Service less than 31 days: the next day, plus at least8 hours within returning to your residence

Service 31 - 180 days: within 14 days

Service more than 180 days: within 90 days

Examine YourRetirement Plan

Account

Whether or not you had access to youryour retirement account during your absence, itis a good idea to reevaluate your situationand make a proper asset allocation. Remember, youalways have access to your information.

Consider YourAbility to Make

Up AnyContributions

If your plan permits employee contributions, it maybe that you were not contributing to your retirementaccount while you were on duty unless youremployer continued your compensation through thisperiod. You have the right to immediately beginmaking new contributions to your plan. You alsohave the option of making up the contributions youmissed while on military leave. In fact, you havethree times the period of service (not to exceed fiveyears) to make up the employee portion of yourcontributions that were missed. If your plan providesfor matching contributions, your employer isrequired to also make any matching contributions onany of your make-up contributions. This does notcount toward the maximum amount you and youremployer are permitted to contribute for the tax yearwhen these contributions commence. Rather, theyare applied to the tax year for which thecontributions were missed.

81

Note Provisionsfor Repaying

Loans From thePlan

If you took out a new or pre-existing loan fromyour 401(k) or other retirement plan before orduring your service, it is likely that your plansponsor suspended the loan payment requirementwhile you were on military leave. Check with yourplan sponsor to find out when payments mustcommence.

Know YourRights for AllOther Benefits

You Have

USERRA protects other benefits you haveincluding life insurance and health coverage,vacation, seniority status, etc. Check with yourplan sponsor about specific details concerning theseemployee benefits.

80

When you return ...

Contact YourEmployer

You are required to contact your employer within aspecific period of time as defined by your length ofservice during the military leave of absence. Youmust also apply for reemployment within thefollowing timeframe after your service has ended:

Service less than 31 days: the next day, plus at least8 hours within returning to your residence

Service 31 - 180 days: within 14 days

Service more than 180 days: within 90 days

Examine YourRetirement Plan

Account

Whether or not you had access to youryour retirement account during your absence, itis a good idea to reevaluate your situationand make a proper asset allocation. Remember, youalways have access to your information.

Consider YourAbility to Make

Up AnyContributions

If your plan permits employee contributions, it maybe that you were not contributing to your retirementaccount while you were on duty unless youremployer continued your compensation through thisperiod. You have the right to immediately beginmaking new contributions to your plan. You alsohave the option of making up the contributions youmissed while on military leave. In fact, you havethree times the period of service (not to exceed fiveyears) to make up the employee portion of yourcontributions that were missed. If your plan providesfor matching contributions, your employer isrequired to also make any matching contributions onany of your make-up contributions. This does notcount toward the maximum amount you and youremployer are permitted to contribute for the tax yearwhen these contributions commence. Rather, theyare applied to the tax year for which thecontributions were missed.

81

Note Provisionsfor Repaying

Loans From thePlan

If you took out a new or pre-existing loan fromyour 401(k) or other retirement plan before orduring your service, it is likely that your plansponsor suspended the loan payment requirementwhile you were on military leave. Check with yourplan sponsor to find out when payments mustcommence.

Know YourRights for AllOther Benefits

You Have

USERRA protects other benefits you haveincluding life insurance and health coverage,vacation, seniority status, etc. Check with yourplan sponsor about specific details concerning theseemployee benefits.

82

USERRA COMPLAINTS

The Department of Labor is the enforcement authority forUSERRA, and it processes all formal complaints of violations ofthe law.

USERRA authorizes the U.S. Office of Special Counsel (“OSC”)to investigate alleged violations of the act by Federal ExecutiveAgencies, and to prosecute meritorious claims before the MeritSystems Protection Board (“MSPB”) on behalf of the aggrievedperson.

Ref: 38 U.S.C. § 4301, et. seq.

WHAT DO I DO IF I BELIEVE MY VETERANS'PREFERENCE RIGHTS WERE VIOLATED?

You should file a complaint with the U.S. Department of Labor,Veterans Employment and Training Service.

The Veterans Employment Opportunities Act of 1998 (VEOA),5 U.S.C. § 3330 et seq., created a new avenue of administrativeredress specifically for a preference eligible who alleges that afederal agency violated such individual's rights under any statuteor regulation relating to a veteran's preference eligibility.

Under the VEOA, in order to seek corrective action, a preferenceeligible is to file a written complaint with the U.S. Department ofLabor, Veterans Employment and Training Service (VETS),within 60 days of the alleged violation. VEOA requires theSecretary of Labor, through VETS, to investigate the complaintand, upon determining that a violation occurred, to attempt toresolve the complaint by making reasonable efforts to ensure thatthe agency complies with the statute or regulation relating toveteran's' preference.

83

If the Secretary is unable to resolve a complaint within 60 days,the Secretary is to provide notification of an unsuccessful effortto resolve the complaint to the complainant.

Because of the VEOA, OSC does not investigate allegations ofviolations of veterans' preference rights for corrective actionpurposes. (OSC still investigates such allegations for possibledisciplinary action, however.) Thus, you should file a complaintalleging a violation of a veterans' preference rights with VETS,not OSC.

FILING A USERRA COMPLAINT WITH OSC

OSC is not authorized to receive a USERRA complaint directlyfrom the claimant.

! First, claimant must file a complaint withthe Department of Labor's Veterans'Employment and Training Service(VETS).

! If VETS is unsuccessful in resolving thecomplaint, the claimant may request thatVETS refer the complaint to OSC.

! If the Special Counsel believes there ismerit to the complaint, OSC will initiatean action before the MSPB and appear onbehalf of the claimant. The successfulclaimant is entitled to receive theemployment benefits that he/she wasdenied as the result of the agency'sviolation of USERRA. Additionally, aprevailing claimant is entitled to attorney'sfees, expert witness fees, and otherlitigation expenses.

82

USERRA COMPLAINTS

The Department of Labor is the enforcement authority forUSERRA, and it processes all formal complaints of violations ofthe law.

USERRA authorizes the U.S. Office of Special Counsel (“OSC”)to investigate alleged violations of the act by Federal ExecutiveAgencies, and to prosecute meritorious claims before the MeritSystems Protection Board (“MSPB”) on behalf of the aggrievedperson.

Ref: 38 U.S.C. § 4301, et. seq.

WHAT DO I DO IF I BELIEVE MY VETERANS'PREFERENCE RIGHTS WERE VIOLATED?

You should file a complaint with the U.S. Department of Labor,Veterans Employment and Training Service.

The Veterans Employment Opportunities Act of 1998 (VEOA),5 U.S.C. § 3330 et seq., created a new avenue of administrativeredress specifically for a preference eligible who alleges that afederal agency violated such individual's rights under any statuteor regulation relating to a veteran's preference eligibility.

Under the VEOA, in order to seek corrective action, a preferenceeligible is to file a written complaint with the U.S. Department ofLabor, Veterans Employment and Training Service (VETS),within 60 days of the alleged violation. VEOA requires theSecretary of Labor, through VETS, to investigate the complaintand, upon determining that a violation occurred, to attempt toresolve the complaint by making reasonable efforts to ensure thatthe agency complies with the statute or regulation relating toveteran's' preference.

83

If the Secretary is unable to resolve a complaint within 60 days,the Secretary is to provide notification of an unsuccessful effortto resolve the complaint to the complainant.

Because of the VEOA, OSC does not investigate allegations ofviolations of veterans' preference rights for corrective actionpurposes. (OSC still investigates such allegations for possibledisciplinary action, however.) Thus, you should file a complaintalleging a violation of a veterans' preference rights with VETS,not OSC.

FILING A USERRA COMPLAINT WITH OSC

OSC is not authorized to receive a USERRA complaint directlyfrom the claimant.

! First, claimant must file a complaint withthe Department of Labor's Veterans'Employment and Training Service(VETS).

! If VETS is unsuccessful in resolving thecomplaint, the claimant may request thatVETS refer the complaint to OSC.

! If the Special Counsel believes there ismerit to the complaint, OSC will initiatean action before the MSPB and appear onbehalf of the claimant. The successfulclaimant is entitled to receive theemployment benefits that he/she wasdenied as the result of the agency'sviolation of USERRA. Additionally, aprevailing claimant is entitled to attorney'sfees, expert witness fees, and otherlitigation expenses.

84

The OSC is an independent federal investigative andprosecutorial agency. Their basic authorities come from threefederal statutes, the Civil Service Reform Act, the WhistleblowerProtection Act, and the Hatch Act.

DISCLOSURE UNIT

OSC provides a secure channel through its Disclosure Unit forfederal workers to disclose information about various workplaceimproprieties, including a violation of law, rule or regulation,gross mismanagement and waste of funds, abuse of authority, ora substantial danger to public health or safety.

UNIFORMED SERVICES EMPLOYMENT ANDREEMPLOYMENT RIGHTS ACT (VETERANS' RIGHTS)

OSC protects the reemployment rights of federal employees,military veterans and reservists under the Uniformed ServicesEmployment and Reemployment Rights Act (USERRA).

CORRECTIVE ACTION

The OSC may enter into discussions with an agency at any stageof a pending matter in pursuit of a resolution acceptable to allparties. The OSC follows a policy of early and firm negotiationto obtain appropriate corrective action (and/or disciplinary action)for apparent violations.

85

INTERVENTION

The Special Counsel may intervene as a matter of right, orotherwise participate in most proceedings before the MSPB. TheSpecial Counsel may not intervene in certain proceedings(individual rights of action brought under 5 U.S.C. §1221, ormatters otherwise appealable to the MSPB under 5 U.S.C. §7701) without the consent of the person initiating the proceeding.

Ref: 5 U.S.C. § 1212(c)

HOW CAN A PERSON FILE A COMPLAINT OFPROHIBITED PERSONNEL PRACTICES OR OTHERPROHIBITED EMPLOYMENT ACTIVITY WITH THEOSC?

Filers must use Form OSC-11 (Complaint of Possible ProhibitedPersonnel Practice or Other Prohibited Activity) to submitallegations of prohibited personnel practices or other prohibitedemployment activity to OSC. Form OSC-11 may be printed fromthe Web site. The OSC will not process a complaint submitted inany format other than a completed Form OSC-11 (except for acomplaint alleging only a Hatch Act violation).

If a person uses any other format to file a complaint, the materialreceived will be returned to the filer with a blank Form OSC-11to complete and return to the OSC. The complaint will beconsidered to be filed on the date on which the OSC receives thecompleted Form OSC-11.

84

The OSC is an independent federal investigative andprosecutorial agency. Their basic authorities come from threefederal statutes, the Civil Service Reform Act, the WhistleblowerProtection Act, and the Hatch Act.

DISCLOSURE UNIT

OSC provides a secure channel through its Disclosure Unit forfederal workers to disclose information about various workplaceimproprieties, including a violation of law, rule or regulation,gross mismanagement and waste of funds, abuse of authority, ora substantial danger to public health or safety.

UNIFORMED SERVICES EMPLOYMENT ANDREEMPLOYMENT RIGHTS ACT (VETERANS' RIGHTS)

OSC protects the reemployment rights of federal employees,military veterans and reservists under the Uniformed ServicesEmployment and Reemployment Rights Act (USERRA).

CORRECTIVE ACTION

The OSC may enter into discussions with an agency at any stageof a pending matter in pursuit of a resolution acceptable to allparties. The OSC follows a policy of early and firm negotiationto obtain appropriate corrective action (and/or disciplinary action)for apparent violations.

85

INTERVENTION

The Special Counsel may intervene as a matter of right, orotherwise participate in most proceedings before the MSPB. TheSpecial Counsel may not intervene in certain proceedings(individual rights of action brought under 5 U.S.C. §1221, ormatters otherwise appealable to the MSPB under 5 U.S.C. §7701) without the consent of the person initiating the proceeding.

Ref: 5 U.S.C. § 1212(c)

HOW CAN A PERSON FILE A COMPLAINT OFPROHIBITED PERSONNEL PRACTICES OR OTHERPROHIBITED EMPLOYMENT ACTIVITY WITH THEOSC?

Filers must use Form OSC-11 (Complaint of Possible ProhibitedPersonnel Practice or Other Prohibited Activity) to submitallegations of prohibited personnel practices or other prohibitedemployment activity to OSC. Form OSC-11 may be printed fromthe Web site. The OSC will not process a complaint submitted inany format other than a completed Form OSC-11 (except for acomplaint alleging only a Hatch Act violation).

If a person uses any other format to file a complaint, the materialreceived will be returned to the filer with a blank Form OSC-11to complete and return to the OSC. The complaint will beconsidered to be filed on the date on which the OSC receives thecompleted Form OSC-11.

86

Complaints of prohibited personnel practices or other prohibitedemployment activities within the investigative authority of theOSC should be sent to the U.S. Office of Special Counsel,Complaints Examining Unit, 1730 M Street, NW, Suite 201,Washington, DC 20036-4505.

Ref: 5 C.F.R. § 1800.1

ARE FEDERAL EMPLOYEES REQUIRED TOCOOPERATE WITH OSC INVESTIGATIONS?

Title 5 of the U.S. Code authorizes the OSC to issue subpoenasfor documents or the attendance and testimony of witnesses.During an investigation, the OSC may require employees andothers to testify under oath, sign written statements, or respondformally to written questions.

Federal employees are also required to provide to the OSC anyinformation, testimony, documents, and material, the disclosureof which is not otherwise prohibited by law or regulation, ininvestigations of matters under civil service law, rule, orregulation. The same rule requires federal agencies to makeemployees available to testify, on official time, and to providepertinent records to the OSC.

Ref: 5 U.S.C. § 1212(b); Civil Service Rule 5.4

WHAT LEGAL RESPONSIBILITIES DO FEDERALAGENCIES HAVE TO PREVENT PROHIBITEDPERSONNEL PRACTICES?

Section 2302(c) of title 5 requires federal agency heads, andofficials with delegated authority for any aspect of personnelmanagement, to:

! prevent prohibited personnel practices,including reprisal for whistle blowing;

87

! comply with and enforce civil servicelaws, rules and regulations; and

! ensure (in consultation with the OSC)that federal employees are informed oftheir rights and remedies.

ANSWERS TO FREQUENTLY ASKED QUESTIONSABOUT THE 2302(C) PROGRAM

Question: Is the program voluntary?

The program itself is voluntary but the requirementto inform agency employees of the rights andremedies available to them under the PPP andwhistleblower provisions of Title 5 is a statutoryobligation. The program provides a mechanism tomeet this obligation. Moreover, the Office ofPersonnel Management recently announced that2302(c) certification is a "suggested performanceindicator" for “getting to green” on the StrategicManagement of Human Capital element of thePresident's Management Agenda.

Question: What are the consequences of failing to complywith the statutory obligation?

OSC will report annually to Congress federalagencies' participation with the 2302(c) program.

86

Complaints of prohibited personnel practices or other prohibitedemployment activities within the investigative authority of theOSC should be sent to the U.S. Office of Special Counsel,Complaints Examining Unit, 1730 M Street, NW, Suite 201,Washington, DC 20036-4505.

Ref: 5 C.F.R. § 1800.1

ARE FEDERAL EMPLOYEES REQUIRED TOCOOPERATE WITH OSC INVESTIGATIONS?

Title 5 of the U.S. Code authorizes the OSC to issue subpoenasfor documents or the attendance and testimony of witnesses.During an investigation, the OSC may require employees andothers to testify under oath, sign written statements, or respondformally to written questions.

Federal employees are also required to provide to the OSC anyinformation, testimony, documents, and material, the disclosureof which is not otherwise prohibited by law or regulation, ininvestigations of matters under civil service law, rule, orregulation. The same rule requires federal agencies to makeemployees available to testify, on official time, and to providepertinent records to the OSC.

Ref: 5 U.S.C. § 1212(b); Civil Service Rule 5.4

WHAT LEGAL RESPONSIBILITIES DO FEDERALAGENCIES HAVE TO PREVENT PROHIBITEDPERSONNEL PRACTICES?

Section 2302(c) of title 5 requires federal agency heads, andofficials with delegated authority for any aspect of personnelmanagement, to:

! prevent prohibited personnel practices,including reprisal for whistle blowing;

87

! comply with and enforce civil servicelaws, rules and regulations; and

! ensure (in consultation with the OSC)that federal employees are informed oftheir rights and remedies.

ANSWERS TO FREQUENTLY ASKED QUESTIONSABOUT THE 2302(C) PROGRAM

Question: Is the program voluntary?

The program itself is voluntary but the requirementto inform agency employees of the rights andremedies available to them under the PPP andwhistleblower provisions of Title 5 is a statutoryobligation. The program provides a mechanism tomeet this obligation. Moreover, the Office ofPersonnel Management recently announced that2302(c) certification is a "suggested performanceindicator" for “getting to green” on the StrategicManagement of Human Capital element of thePresident's Management Agenda.

Question: What are the consequences of failing to complywith the statutory obligation?

OSC will report annually to Congress federalagencies' participation with the 2302(c) program.

88

Question: How do I know if my agency is currently incompliance with 5 U.S.C. §2302(c)?

Call the OSC Director of Outreach at 202-653-8962 to discuss what outreachactivities your agency is currentlyengaged in. He/She will inform you ifyour agency is in compliance.

Question: Once I register for the program, how will I knowthat my agency is in compliance with 5 U.S.C. §2302(c)?

If you have registered for the program,after completing the five requirements ofthe program, you will be asked to fill outa certificate of compliance form on theOSC web site. After OSC reviews theform, OSC will grant you a certificate ofcompliance indicating your conformitywith 5 U.S.C. §2302(c).

Question: How often will agencies need to be certified asbeing in compliance with 5 U.S.C. §2302(c)?

Agencies need to be certified every threeyears.

Question: How often does an agency need to train supervisorson PPP's and the WPA?

Supervisors need to be trained every threeyears.

89

Question: How often do employees need to get notification oftheir rights and remedies under the WPA?

Employees need to get annual notification.

Question: Will this program generate frivolous complaints?

Agency-wide education programs have not resultedin a substantial increase in the number of complaintsfiled by employees of that agency.

Question: If an agency has employees that are not covered byall Title 5 provisions, will they need to comply with 5 U.S.C.§2302(c)?

Some agencies have federal employees that are onlycovered by a limited number of Title 5 provisions. Ifany provisions of the WPA cover these employees,the agency is responsible for informing theemployees of their rights and responsibilities underthe statute.

88

Question: How do I know if my agency is currently incompliance with 5 U.S.C. §2302(c)?

Call the OSC Director of Outreach at 202-653-8962 to discuss what outreachactivities your agency is currentlyengaged in. He/She will inform you ifyour agency is in compliance.

Question: Once I register for the program, how will I knowthat my agency is in compliance with 5 U.S.C. §2302(c)?

If you have registered for the program,after completing the five requirements ofthe program, you will be asked to fill outa certificate of compliance form on theOSC web site. After OSC reviews theform, OSC will grant you a certificate ofcompliance indicating your conformitywith 5 U.S.C. §2302(c).

Question: How often will agencies need to be certified asbeing in compliance with 5 U.S.C. §2302(c)?

Agencies need to be certified every threeyears.

Question: How often does an agency need to train supervisorson PPP's and the WPA?

Supervisors need to be trained every threeyears.

89

Question: How often do employees need to get notification oftheir rights and remedies under the WPA?

Employees need to get annual notification.

Question: Will this program generate frivolous complaints?

Agency-wide education programs have not resultedin a substantial increase in the number of complaintsfiled by employees of that agency.

Question: If an agency has employees that are not covered byall Title 5 provisions, will they need to comply with 5 U.S.C.§2302(c)?

Some agencies have federal employees that are onlycovered by a limited number of Title 5 provisions. Ifany provisions of the WPA cover these employees,the agency is responsible for informing theemployees of their rights and responsibilities underthe statute.

90

RESOURCES

U.S. Department of Labor:

http://www.dol.gov

U.S. Department of Labor Veterans Employment and TrainingService (VETS):

http://www.dol.gov

Employer Support of the Guard and Reserve:

1-800-336-4590 / 703-696-1400 http://www.esgr.org

U.S. Office of Personnel Management:

http://www.opm.gov

U.S. Office of Special Council:

http://www.osc.gov

Invesmart:

http://www.invesmart.com

Service Members Opportunity Colleges:

1-800-368-5622

Federal Retirement Thrift Investment Board:

202-942-1460http://www.tsp.gov