Veterans' Employment and Training Service

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					      Veterans’ Employment and
           Training Service
                              USERRA



Tony Smithhart
US Department of Labor/VETS
October 15, 2008
   USERRA Overview

    Uniformed Services Employment and
    Reemployment Rights Act (USERRA)

• Enacted in 1994, but its roots date back to
  1940. 38 U.S.C. §§ 4301-4334
             USERRA

• Prohibits employment discrimination on basis
  of past military service, current or future military
  obligations

• Protects reemployment rights with pre-service
  employers for veterans, Reserve, and National
  Guard members

      VETS investigates complaints from
   veterans, Reservists, and Guard members
  who feel that they have been disadvantaged
           due to their military status
What is “Uniformed Service”?
• Anyone who performs, applies to perform, or has
  an obligation to perform:

   – Service in the armed forces: Active, Reserve
     and National Guard

   – Service in the U.S. Public Health Service
     Commissioned Corps

   – Service in the National Disaster Medical
     System

   – An examination to determine fitness for
     military service
        Covered Employers

   All private employers
   State and local governments
   Federal Government – all branches (civilian)
   Extraterritorial application
   Successors in interest

 Control over employment-related
 responsibilities --- 38 U.S.C. § 4303(4)
Who is Eligible for Coverage?
 • Left a civilian job for uniformed service

 • Provided notice prior to service

 • 5 Year rule

 • Qualifying character of service

 • Report back in a timely manner
    Basic USERRA Protections
•    Discrimination prohibited
    – Initial hiring
    – Promotions
    – Retention in employment
    – Employment benefits
•       Reemployment rights protected
    –  Benefits during service
      • Health plans
      • Other benefits
    – Prompt reinstatement
  Prohibits Discrimination

• Employers may not discriminate --- 38 U.S.C. §
  4311(a)
  – In hiring, promotions, retention,
     reemployment, other benefits
  – On the basis of a person’s prior service,
     current obligations, or intent to join a
     uniformed service
• Employers may not retaliate --- 38 U.S.C. §
  4311(b)
  – Against a person who seeks to enforce
     rights or who testifies or assists in an
     investigation
   Benefits During Service
• Employees deemed to be on furlough or leave
  of absence during service ---38 U.S.C. §
  4316(b)

• Entitled to all benefits based on seniority as if
  continuously employed

• Entitled to non-seniority benefits given to those
  on comparable leave See Waltermyer v.
  Aluminum Co. of America, 804 F.2d 821 (3d
  Cir. 1986); 38 U.S.C. § 4316(b)(1)(B)

✯ Can be waived by employee if knowing and
  in writing --- 38 U.S.C. § 4316(b)(2)
Health Benefits During Service

• Continuation of health plan
  coverage --- 38 U.S.C. § 4317(a)
• May be required to pay 102% of
  cost, if period of service >30 days
• Coverage up to 24 months
  (was 18)
• Like COBRA, but covers all
  employers
     Reemployment Position

• “Escalator Position” – the job the returning
  service member would have attained but for
  the service --- 38 U.S.C. § 4313(a)
• Service of 91 days or more – an additional
  employer option: “like seniority, status, and
  pay”
• Disabled returning veteran – an additional
  employer obligation: reasonable
  accommodation and nearest approximate
  position
• Reasonable employer efforts to qualify,
  including training --- 38 U.S.C. § 4303(10)
Protection From Discharge

• No discharge except for cause
  --- 38 U.S.C. § 4316(c)
     – 1 year for service of 181
     days or more
      – 6 months for service of
     31-180 days
      Relationship to Other Laws and
               Agreements

•   Does not supersede any law or agreement
    that provides more beneficial rights
     --- 38 U.S.C. § 4302(a)

•   Some state laws provide more generous
    benefits

•   Supersedes any State law or agreement that would
    limit rights or impose additional prerequisites
     --- 38 U.S.C. § 4302(b)

•   Arbitration as a prerequisite for enforcing
    USERRA rights. See H. Rep. 103-65 at 20
    (1993); Garrett v. Circuit City Stores, Inc., 338
    F.Supp. 2d (N.D. Tx. 2004) (Binding arbitration
    agreement superseded by USERRA)
           USERRA Regulations
• Proposed USERRA Regulations first published September
  20, 2004

• Written in “plain-English” in a question-and-answer format

• Covers all aspects of USERRA as it relates to private
  employers and state and local governments

• USERRA Regulations 20 C.F.R. Part 1002

• OPM Regulations 5 C.F.R. Part 353
       Significant Provisions
• Provides detailed guidance for determining the
  proper reemployment position

• Provides for express coverage of National
  Disaster Medical System (NDMS) appointees.

• Provides clear authoritative guidance on
  USERRA’s health plan and pension provisions

• Explains reinstatement rights of returning disabled
  employees.

• Describes DOL’s compliance assistance initiatives

• Describes DOL’s role in enforcing USERRA
    Employer’s Obligations
• Let them notify you

• Let them go

• Treat military service as if on (non-paid) leave or
  furlough

• Understand that covered employee may waive only
  non-seniority rights of employment, even if “waiver”
  appears broader

• Allow employee to use accrued leave during period
  of service

• Promptly Reemploy

• Place returning employee in position he/she would
  have been in if continuously employed
  Employer’s Obligations

• Employers must give notice of
  USERRA rights to persons entitled
  to such rights
• Must use DOL’s text
• May use DOL’s poster or other
  means
• Effective March 10, 2005
  38 U.S.C. 4334
  See 70 Fed. Reg. 12,106 (2005)
       Narrowly Construed
      Employer Defenses

• Impossible or Unreasonable
  because of changed
  circumstances

• Undue hardship

• Brief, Nonrecurrent period
          How to avoid a violation

•   Discipline in real time. Provide immediate performance feedback to
    employees.

•   Document without any discriminatory references. Never document
    or make references to protected characteristics or activities (military
    leave, whistleblowing, etc.) in relation to an employee’s performance.
    Doing so can create an inference of discrimination and/or retaliation.

•   Express no hostility about employees engaged in military duties.

•   Look at your watches, calendars & sun dials. Map out the protected
    leave dates and the proposed employment action date(s) on a timeline.

•   Try a “welcome home” approach. Think about this being the first
    response rather than the an adverse employment action followed by
    lawsuits, bad press and hard feelings.
           Enforcement

• State and Private Employers: U.S.
  Attorney General

• Representation may be provided by
  DOJ

• Option of filing directly in U.S.
  district court having jurisdiction or,
  if against the state, a state court
             Remedies

• Injunctive relief
• Lost wages and benefits
• Liquidated damages (2X) for willful
• Attorney fees and costs (for plaintiff)
• No declaratory judgments
• No State statute of limitations

  38 U.S.C §§ 4323-24
       USERRA RESOURCES

VETS homepage
• www.dol.gov/vets/
USERRA e-laws advisor
• www.dol.gov/elaws/userra.htm
National Committee for Employer Support of the Guard and
  Reserve
• www.esgr.org/
Call us:
• 1-866-4-USA-DOL
Contact VETS state director

U.S. Dept of Labor/VETS
150 Des Moines St.
Des Moines, Iowa 50309
(515) 281-9061
            Conclusion

• The goal: reemploy to the position
  and with the benefits that the
  person would have had but for the
  service (escalator principle)

• Construe the statute liberally for the
  benefit of those who serve their
  country

• Questions?