UNIFORMED SERVICES EMPLOYMENT & REEMPLOYMENT RIGHTS ACT The regulations are at title 20, Code of Federal Regulations, part 1002. They were published last December 19 and, by happy coincidence, are effective today, January 18, 2006. The briefing will include an overview of USERRA, a discussion of the need for these regulations, some of the major provisions of the final rule and a list of some of the methods VETS is using to inform the public about USERRA. We will try to leave some time for questions at the end.

Purpose of USERRA USERRA is a federal statute that protects servicemembers’ and veterans’ civilian employment rights. It requires employers to put individuals back to work and protects from discrimination in the workplace based on affiliation. USERRA is intended to minimize the disadvantages to an individual that can occur when that person needs to be absent from his or her civilian employment in order to serve in the uniformed services

USERRA What does that MEAN? Protects reemployment rights with pre-service employers for veterans, Reserve, and National Guard members. Prohibits employment discrimination on basis of past military service, current or future military obligations. An employee is protected from unlawful discrimination that is based on military affiliation by his/her employer. Discrimination because of past, current, or future military obligations is prohibited. This ban includes discrimination in hiring, promotion, reemployment, termination and in benefits. If the individual’s connection with the military service was a motivating factor, the employer has committed a violation of USERRA. Once a prima facie case of discrimination has been established, the burden of proof lies with the employer..

Coverage Am I ELIGIBLE? Anyone who performs, applies to perform, or has an obligation to perform: Service in the armed forces: Active, Reserve and National Guard An examination to determine fitness for military service Service in the U.S. Public Health Service Commissioned Corps

Employer Responsibilities Excuse for duty (not required to take personal vacation time) Promptly Reemploy in proper position, based on: Seniority Pay Status No arbitrary dismissal\No retaliation Training or retraining if necessary

Service Member Responsibilities Leave to serve in the uniformed service Provide notice of service Written or Oral Serve Honorably Make a timely return to work Refer to guidelines for timely requirements Service does not exceed 5 years Under the VRR law, USERRA's predecessor, certain rights and eligibility criteria were based on the type of service performed. USERRA simplified the law. Periods of service under all categories are considered "service in the uniformed services" and are similarly treated. As will become evident in the subsequent chapters, USERRA's rules depend upon the duration of service, not the category USERRA's definition of "uniformed services" is:   the Armed Forces, the Army National Guard and the Air National Guard when engaged in active duty for training, inactive duty training, or full-time National Guard duty, the commissioned corps of the Public Health Service, and any other category of persons designated by the President in time of war or national emergency.

Timely Return to Work When to go back to work Service Time Requirement 1-30 Days Must Report Next Work Day 31-180 Days Must Apply Within 14 Days 181+ Days Must Apply Within 90 Days Important! Don’t wait until the last minute to tell your employer that you are back! “For a person whose military service was less than 31 days: “Not later than the beginning of the first full regularly scheduled work period on the first full calendar day following the completion of the period of service and the expiration of eight hours after a period allowing for the safe transportation of the person from the place of service to the person’s residence;” or “As soon as possible after the expiration of the eight hour period referred to {above}, if reporting within the period. . .is impossible or unreasonable through no fault of the person.”

Injury on Active Duty & Disability What happens if I get HURT? An employee injured on active duty may have an additional 2 years convalescence before applying to return to his/her job. The employer must make reasonable accommodation to assist an employee, who has become disabled, upon his/her return to employment. The deadline for reinstatement may be extended for up to two years for persons who are convalescing due to a disability incurred or aggravated during military service.

Will I get PAID by my Employer while I’m on Active Duty? Pay Will I get PAID by my Employer while I’m on Active Duty? USERRA does not require an employer to pay an employee while he or she is on Military Leave of Absence. Vacation normally does not accrue while on leave of absence. While many employers offer differential pay or a specific number of paid military leave days, an employer is not required to pay an employee on military leave of absence.

Documentation What do I have to give my Employer? At 31 days or more of service, your Employer has the right to receive documentation: Application for Timely return to work The members service was satisfactory The 5 year limit has not been exceeded “A person who submits an application for reemployment [with service over 30 days] shall provide the person’s employer (upon the request of such employer) documentation to establish that ---The person’s application is timely; The person has not exceeded the service limitations … (except as permitted . . .); and The person’s entitlement to benefits … has not been terminated [because of the character of military service (§4304).” Documentation acceptable to the Secretary must be accepted by the employer; an employer may not specify the form or type of the documentation, so long as it shows the required information. “An employer may not delay or attempt to defeat a reemployment obligation by demanding documentation that does not then exist, or is not readily available.” NOTE: Documentation is provided only on an employer’s request, and is not an automatic condition for reemployment. “Except [for those absent more than 90 days, in connection with pension entitlements], the failure of a person to provide documentation that satisfies regulations prescribed [by the Secretary] shall not be a basis for denying reemployment in accordance with the provisions of this chapter if the failure occurs because such documentation does not exist or is not readily available at the time of the request of the employer. If, after such reemployment documentation becomes available that establishes that such person does not meet one or more of the requirements [for eligibility], the employer of such person may terminate the employment of the person and the provision of any rights or benefits afforded the person under this chapter.”

Escalator Principle What is the Escalator Principle? USERRA provides that returning service-members are reemployed in the job that they would have attained had they not been absent for military service (the long-standing "escalator" principle), with the same seniority, status and pay, as well as other rights and benefits determined by seniority In 1946, the Supreme court, in it’s first decision involving reemployment rights, settled the question of seniority. In Fishgold v. Sullivan Dry-dock and Repair Company, the Court stated, The veteran does not step back on the seniority escalator at the precise point he stepped off. He steps on at the precise point he would have occupied had he kept his position continuously during the war. . . . He acquires not only the same seniority he had; his service in the Armed Services is counted as service to the plant so that he does not lose ground by reason of his absence…. The Escalator Principal became embodied in law first in the Selective Service Act of June 1948 and then continued to be so dignified in the Universal Military Training and Service Act of June 1951, in all it’s amendments and successors. This concept continues through the Veterans Reemployment Rights Act which predated the USERRA Act of 1994.

Reemployment Position If the Period of Service was for less than 91 days Original position, along with seniority If the Period of Service was for more than 90 days Position with “like seniority, status, pay” Employer has a duty to make reasonable effort to qualify service member If the Period of Service was for less than 91 days Escalator Position If not qualified for this position after reasonable effort then Position Held at Beginning of Service If can’t become qualified for either position with reasonable effort Any position of Lesser Status and Pay Qualified to Perform (with full seniority)

Protection from Discharge Will I receive Protection from Termination? Reemployed service members 31 to 180 days - 6 months 181 days or more – 1 year No discharge except for cause

Health & Pension My family still needs my Health Plan while I’m on duty, is that possible? Is my pension still intact? Health and pension plan coverage for service members is provided for by USERRA. Individuals performing military duty of more than 30 days MAY elect to continue employer sponsored health care for up to 24 months; however, they may be required to pay up to 102% of the full premium. For military service of less than 31 days, health care coverage is provided as if the service member had remained employed. USERRA clarifies pension plan coverage by making explicit that all pension plans are protected.

Resources for USERRA Assistance Unit Commands Employer Support of the Guard and Reserve (ESGR) – (800) 336-4590 www.esgr.org www.dol.gov/vets USERRA Advisor DOL-VETS Staff

Q & A Maarla Milligan Assistant Director, Investigator Veterans’ Employment and Training Service 4389 Imperial Ave San Diego, CA 92113 240) 867-2083 Milligan.Maarla.k@dol.gov