WELCOME USERRA Investigator COURSE

Investigator COURSE Goals of Training

GOALS OF TRAINING Standardize Procedures Improve Staff Competency Encourage Early Resolution Enhance Quality of Technical Assistance

COMPETENCIES All Participants will: Know their role and be able to understand, utilize and implement USERRA law. Have a knowledge of the documentation and letters utilized throughout case processing process. Understand the case processing process. Have an understanding of the investigation concept. Understand case conferences and know when and how to conduct these conferences.

Competencies Continued Training on how to plan and conduct an effective interview with a variety of witnesses. Training on how to utilize a variety of communication techniques during an interview. Training on how to write complete, relevant and accurate notes while interviewing. Training on how to develop notes into accurate, signed witness statements at the time of the interview

Competencies Continued 10. Training on ethics and confidentiality for investigations in relation to basic issues of confidentiality when talking to any person involved in the investigation process Training on how and when to negotiate in order to fairly benefit the parties involved and stay within the law Training on how to keep information and documentation in such a fashion as to support litigation (subpoena, testimony, deposition, etc.)

Phase I Phase II Phase III USERRA Distance Phase I Phase II Phase III

Distance Learning Objectives Phase I Training to become more knowledgeable about “reasonable accommodation” with regard to resources, rights and application Training on ethics and confidentiality for investigations in relation to my personal liability in doing investigation Training on how to determine when and what information should be shared with all parties (Cont:) Distance Learning Objectives

Distance Learning Objectives Phase I Training on ethics and confidentiality for investigations in relation to legal requirements under the code of ethics for federal employees Training on ethics and confidentiality for investigations in relation to my role as a public employee (Cont:) Distance Learning Objectives

Distance Learning Objectives Phase I 6. Training to become knowledgeable about applicable laws as they apply to witnesses Training to become knowledgeable about the information employers are required to maintain Distance Learning Objectives

Distance Learning Objectives Phase II 8. Training on how to write in a clear, accurate, legal manner in order to refer cases for litigation 9. Training on how to write letters appropriate for investigations Distance Learning Objectives

Distance Learning Objectives Phase III Training on how to analyze documents and recognize the need for additional information Training on how to evaluate evidence to ensure that all issues have been addressed Distance Learning Objectives

Investigator COURSE USERRA

USERRA OVERVIEW Subchapter I – General 4301-4304 Purpose of Congress     Relation to other law, plans or agreements     Definitions    Character of Service 9/18/2018

USERRA OVERVIEW Subchapter II- Employment and Reemployment Rights and Limitations; Prohibitions 4311-4319        Discrimination        Reemployment Rights        Reemployment positions        Reemployment Federal Government        Reemployment of Certain Federal Agencies        Rights, Benefits and Obligations        Health Plans        Pension Rights in Foreign Countries 9/18/2018

USERRA OVERVIEW Subchapter III- Procedures for Assistance, Enforcement, and Investigation 4321-4327 Assistance in obtaining reemployment or other employment rights Enforcement of employment or reemployment rights Enforcement to a state or private employer Enforcement of rights with Federal Executive agencies Enforcement of rights with certain Federal agencies Conduct of investigations; subpoenas Noncompliance of Federal officials with deadlines 9/18/2018

USERRA OVERVIEW Subchapter IV – Miscellaneous Provisions 4331-4335     Regulations     Reports Outreach Notice of rights and duties Training for Federal executive agency 9/18/2018

Pinpointing Law: Certain Federal Agencies, not under Judicial review Multi-employer health plan where sponsor does not provide -- it is the last employer employing 4317(a)(3)(B)(i)/1002.170 Successor-in-interest factor, similarity of jobs 4303(4)(D)(i)(IV)/1002.35 9/18/2018

Regulations Overview (20 CFR) General Provisions Subpart B –Anti-Discrimination and Anti- Retaliation Subpart C – Eligibility for Reemployment Subpart D – Rights, Benefits, and Obligations of Persons Absent from Employment Due to Service in the Uniformed Services Subpart E – Reemployment Rights and Benefits Subpart F – Compliance Assistance, Enforcement and Remedies 9/18/2018

Regulations Overview (5 CFR) Subpart A – General Provisions Subpart B – Uniformed Service Subpart C – Compensable Injury 9/18/2018

Jacob works for Friends Shoe Manufacturing Company when he decides to join the military on December 18, 2014, Jacob gives notice to Friends that he is leaving to enter the military. After 4 years, Jacob returns to find that the company is now owned by Pals Jeans Manufacturing Company. As many of Friends’ employees were hired by Pals, Jacob makes proper application to Pals. Pals refuses to hire Jacob because he did not give notice to them before he went into the military and Friends did not tell them of a potential reemployment rights claim. Scenario

Does VETS investigate? Successor in interest TSA Supervisor TSA employee Judicial employee Post Office employee Employer with 2 employees Employer with 500 employees 9/18/2018

Does VETS Investigate? Legislative employee FAA employee FBI, CIA employee Hiring Hall State Employee Foreign Employer with branch in United States American Company in Foreign country 9/18/2018

Regulations Subpart B- Anti-Discrimination and Anti-Retaliation/ USERRA section 4311 Sec 1002.18 – What employment actions are protected from discrimination? Sec 1002.19 - What actions are protected from retaliation? Sec 1002.20 – Protects non-service members Sec 1002.21 – Brief non-recurring positions Sec 1002.22 – Burden of Proof Sec 1002.23 – Causal Connection

Case Elements for Discrimination Cases Protected Class Member? Adverse Employment Action? Motivating factor or Causal Connection? 9/18/2018

Similarly Situated Covered under the same policy Similar circumstances Covered within same policy timeframes Same/Similar Decision-maker Text Text Text Text Text Text Text 9/18/2018

Regulations Subpart C Eligibility for Reemployment/ USERRA section 4312 Notice (1002.85 to 1002.88) Cumulative Length of Service (1002.99 to 1002.104) Timely Reporting Back (1002.115- 1002.120) Character of Service (1002.134- 1002.138 9/18/2018

Regulations Subpart C Eligibility for Reemployment/ USERRA section 4312 Coverage of Employers and Positions Sec. 1002.34 to 1002.44 Coverage of Service in the Uniformed Services Sec. 1002.54 to 1002.62 Absences From a Position of Employment Necessitated by Reason of Service in the Uniformed Services Sec. 1002.73 to 1002.74 9/18/2018

Regulations Subpart C Eligibility for Reemployment USERRA section 4312d Employer Statutory Defenses 1002.139 Changed Circumstances Undue Hardship Nonrecurring Position Employer has the Burden of Proof 9/18/2018

USERRA Operations Manual WWW.NVTI.UCDENVER.EDU/VITAL

Electronic Operations Manual 276 Pages Regulations Included (5 and 20 CFR) Statute Included Usability Search Functions Interactive Electronic Operations Manual

WWW.NVTI.UCDENVER.EDU/VITAL

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Issue Codes and Toggle

LAW LAB Issue: What sections of Chapter 43? What section of REGS: 5 year limit 4312 (c) (3) & (4) Sec. 1002.99 & 103

Investigator COURSE USERRA