USERRA for Veterans and RC Servicemembers

USERRA
Uniformed Services Employment and
Reemployment Rights Act
EMPLOYMENT & REEMPLOYMENT RIGHTS FOR
VETERANS AND MILITARY MEMBERS

USERRA Codes & Regulations
 USERRA Codes & Regulations
 38 U.S.C. 4301-4334 (Statute)
20 C.F.R. 1002.1-1002.314 (non-Federal sector regulations)
5 C.F.R. 353.101-353.304 (Federal sector regulations)
 The Secretary of Labor, acting through the Veterans’
Employment and Training Service (VETS) is charged with
administering the USERRA statute itself.
 VETS shall assist any person with respect to employment
and reemployment rights and benefits, will conduct
investigations of alleged violations in both Federal and non-
Federal sectors, and may prescribe regulations implementing
the provisions of the statute with respect to States, local
governments and private employers

USERRA Purpose
 The purposes of the Uniformed Services Employment and
Reemployment Rights Act (USERRA) are: to encourage non-
career service in the uniformed services by eliminating or
minimizing the disadvantages to civilian careers and
employment which can result from such service; to minimize the
disruption to the lives of persons performing service in the
uniformed services as well as to their employers, their fellow
employees, and their communities, by providing for the prompt
reemployment of such persons upon their completion of such
service; and to prohibit discrimination against persons because
of their service in the uniformed services. It is the sense of
Congress that the Federal Government should be a model
employer in carrying out the provisions of USERRA.
Source: 38 U.S.C. § 4301, Purposes and Sense of Congress

LEGISLATIVE BACKGROUND
 Throughout its history, the United States government has
enacted legislation protecting the men and women who serve in
times of armed conflict. During the Civil War, Congress passed
legislation protecting service members from legal proceedings
they could not attend due to their military commitment. Other
recent legislative acts concerning veterans and members of the
military include:
 Servicemembers Civil Relief Act of 1918
 Soldiers’ and Sailors’ Civil Relief Act of 1940
 Selective Training and Service Act of 1940
 Military Selective Service Act in 1968 (often referred to as the
Veterans’ Reemployment Rights Act)
 Veterans’ Readjustment Assistance Act of 1974
 Uniformed Services Employment and Reemployment Rights Act of
1994

LEGISLATIVE BACKGROUND
(cont.)
 USERRA clarifies and strengthens the Veterans'
Reemployment Rights (VRR) Statute by protecting civilian
job rights and benefits for veterans, members of reserve
components, and even individuals activated by the President
of the United States to provide Federal Response for
National Emergencies. USERRA also makes major
improvements in protecting service member rights and
benefits by clarifying the law, improving enforcement
mechanisms, and adding Federal Government employees to
those employees already eligible to receive U.S. Department
of Labor assistance in processing claims of noncompliance.

BASIC USERRA PROTECTIONS
 Discrimination is prohibited in:
 – Initial hiring
 – Promotions
 – Retention in employment
 – Employment benefits (seniority vs non-seniority)
 Benefits during service
 – Health Plans
 – Other benefits
 – TSP not covered under USERRA

JOB RIGHTS FOR VETERANS
AND RESERVE COMPONENT
MEMBERS
 USERRA establishes the cumulative length of time that an individual may be
absent from work for military duty and retain reemployment rights to five years
(the previous law provided four years of active duty, plus an additional year if it
was for the convenience of the Government). There are important exceptions to
the five-year limit, including initial enlistments lasting more than five years,
periodic National Guard and Reserve training duty, and involuntary active duty
extensions and recalls, especially during a time of national emergency. USERRA
clearly establishes that reemployment protection does not depend on the timing,
frequency, duration, or nature of an individual's service as long as the basic
eligibility criteria are met.
 USERRA provides protection for disabled veterans, requiring employers to make
reasonable efforts to accommodate the disability. Service members convalescing
from injuries received during service or training may have up to two years from
the date of completion of service to return to their jobs or apply for reemployment.
Source: DOL http://www.dol.gov/vets/programs/userra/userra_fs.htm

MEMBERS (cont.)
 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. USERRA also requires that
reasonable efforts (such as training or retraining) be made to enable returning
service members to refresh or upgrade their skills to help them qualify for
reemployment. The law clearly provides for alternative reemployment positions if
the service member cannot qualify for the "escalator" position. USERRA also
provides that while an individual is performing military service, he or she is
deemed to be on a furlough or leave of absence and is entitled to the non-
seniority rights accorded other individuals on non-military leaves of absence.
 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 percent 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.

MEMBERS (cont.)
 Forfeiture of rights. Section 4316(b)(2)(A)(ii). If, prior to
leaving for military service, an employee knowingly provides
clear written notice of an intent not to return to work after military
service, the employee waives entitlement to leave-of- absence
rights and benefits not based on seniority.
 At the time of providing the notice, the employee must be aware
of the specific rights and benefits to be lost. If the employee
lacks that awareness, or is otherwise coerced, the waiver will be
ineffective. Notices of intent not to return can waive only leave-
of-absence rights and benefits. They cannot surrender other
rights and benefits that a person would be entitled to under the
law, particularly reemployment rights.
 Source: DOL http://www.dol.gov/vets/whatsnew/uguide.pdf

MEMBERS (cont.)
Protection from discharge
 Persons returning from active duty for training were not explicitly
protected under the old law. Under USERRA, a reemployed employee
may not be discharged without cause as follows: 2 Section 4316(c)(1).
For one year after the date of reemployment if the person’s period of
military service was for more than six months (181 days or more).
 2 Section 4316(c)(2). For six months after the date of reemployment if
the person’s period of military service was for 31 to 180 days.
 Persons who serve for 30 or fewer days are not be protected from
discharge without cause. However, they are protected from
discrimination because of military service or obligation.

Duration of Service Exceptions
 Duration of Service (Section 4312(c)) The cumulative length service that causes a
person’s absences from a position may not exceed five years. Most types of service will
be cumulatively counted in the computation of the five-year period. Exceptions . Eight
categories of service are exempt from the five-year limitation. These include:
 (1) Service required beyond five years to complete an initial period of obligated
service (Section 4312 (c)(1)). Some military specialties, such as the Navy’s nuclear
power program, require initial active service obligations beyond five years.
 (2) Service from which a person, through no fault of the person, is unable to
obtain a release within the five year limit (Section 4312(c)(2)). For example, the five-
year limit will not be applied to members of the Navy or Marine Corps whose obligated
service dates expire while they are at sea.
 Nor will it be applied when service members are involuntarily retained on active duty
beyond the expiration of their obligated service date. This was the experience of some
persons who served in Operations Desert Shield and Storm.
Source: DOL http://www.dol.gov/vets/whatsnew/uguide.pdf

(cont.)
 (3) Required training for reservists and National Guard members (Section
4312(c)(3)). The two-week annual training sessions and monthly weekend drills
mandated by statute for reservists and National Guard members are exempt from the
five-year limitation. Also excluded are additional training requirements certified in writing
by the Secretary of the service concerned to be necessary for individual professional
development.
 (4) Service under an involuntary order to, or to be retained on, active duty during
domestic emergency or national security related situations (Section
4312(c)(4)(A)).
 (5) Service under an order to, or to remain on, active duty (other than for training)
because of a war or national emergency declared by the President or Congress
(Section 4312(c)(4)(B)). This category includes service not only by persons
involuntarily ordered to active duty, but also service by volunteers who receive orders to
active duty.

(cont.)
 (6) Active duty (other than for training) by volunteers supporting
"operational missions" for which Selected Reservists have been
ordered to active duty without their consent (Section 4312(c)(4)(c)).
Such operational missions involve circumstances other than war or
national emergency for which, under presidential authorization,
members of the Selected Reserve may be involuntarily ordered to
active duty under Title 10, U.S.C. Section 12304. The recent U.S.
military involvement in support of restoration of democracy in Haiti
(“Uphold Democracy”) was such an operational mission as is the
current (as of 1998) operation in Bosnia (“Joint Endeavor”).
 This sixth exemption for the five-year limitation covers persons who are
called to active duty after volunteering to support operational missions.
Persons involuntarily ordered to active duty for operational missions
would be covered by the fourth exemption, above.

(cont.)
 . (7) Service by volunteers who are ordered to active duty
in support of a "critical mission or requirement" in times
other than war or national emergency and when no
involuntary call up is in effect (Section 4312 (c)(4)(D)).
The Secretaries of the various military branches each have
authority to designate a military operation as a critical
mission or requirement.
 (8) Federal service by members of the National Guard
called into action by the President to suppress an
insurrection, repel an invasion, or to execute the laws of
the United States (Section 4312(c)(4)(E)).

Escalator Position
 "Escalator" position . The reemployment position with the
highest priority in the reemployment schemes reflects the
"escalator" principle that has been a key concept in federal
veterans’ reemployment legislation. The escalator principle
requires that each returning service member actually step back
onto the seniority escalator at the point the person would have
occupied if the person had remained continuously employed.
 The position may not necessarily be the same job the person
previously held. For instance, if the person would have been
promoted with reasonable certainty had the person not been
absent, the person would be entitled to that promotion upon
reinstatement. On the other hand, the position could be at a
lower level than the one previously held, it could be a different
job, or it could conceivably be in layoff status.

Escalator Position (cont.)
 Qualification efforts. Employers must make reasonable efforts to
qualify returning service members who are not qualified for
reemployment positions that they otherwise would be entitled to hold for
reasons other than a disability incurred or aggravated by military
service.
 Employers must provide refresher training, and any training necessary
to update a returning employee’s skills in situation where the employee
is no longer qualified due to technological advances. Training will not be
required if it is an undue hardship for the employer, as discussed below.
If reasonable efforts fail to qualify a person for the first and second
reemployment positions in the above schemes, the person must be
placed in a position of equivalent or nearest approximation and pay that
the person is qualified to perform (the third reemployment position in the
above schemes).

VETERANS AND RESERVE
COMPONENT MEMBERS
RESPONSIBILITIES
 The period an individual has to make application for reemployment or report back to
work after military service is based on time spent on military duty. For service of less
than 31 days, the service member must return at the beginning of the next regularly
scheduled work period on the first full day after release from service, taking into account
safe travel home plus an eight-hour rest period. For service of more than 30 days but
less than 181 days, the service member must submit an application for reemployment
within 14 days of release from service. For service of more than 180 days, an
application for reemployment must be submitted within 90 days of release from service.
 USERRA also requires that service members provide advance written or verbal notice
to their employers for all military duty unless giving notice is impossible, unreasonable,
or precluded by military necessity. An employee should provide notice as far in advance
as is reasonable under the circumstances. Additionally, service members are able (but
are not required) to use accrued vacation or annual leave while performing military duty.

Employee Reinstatement
 Servicemembers USERRA rights are not diminished because an
employee is employed in a temporary, part-time, probationary or
seasonal employment position.
 An employer is not required to reinstate an employee who was hired for
a brief non-recurrent period without a reasonable expectation that the
employment was indefinite or would have continued for a significant
amount of time. Seasonal employment does not fall under the latter
classification since (while temporary) the employee may have the
reasonable expectation that employment may once again become
available at the start of the next season.
 If the employment position is moved to a lay-off status during an
employee’s service period, the employee is reinstated to a lay-off
status. The same rule would apply if the position was in a recall status
during an employee’s service period.

Employee Reinstatement (cont.)
 If an employee fails to report for work in a timely manner or
apply for reinstatement under the allotted time frames listed
under USERRA, they do not automatically forfeit their
USERRA rights. Rather, employees become subject to their
employers rules and/or workplace policies relating to
unexcused absences.
 Any employee who is recovering from a service-related
illness or injury, is allotted two years from the date of
completion of service to reapply for employment.

 An employee cannot have been separated from service with a
disqualifying discharge or under other than honorable
conditions.
When would service be disqualifying?
 The statute lists four circumstances:
 (1) Separation from the service with a dishonorable or bad conduct
discharge. (2) Separation from the service under other than
honorable conditions. Regulations for each military branch specify
when separation from the service would be considered "other than
honorable."
 (3) Dismissal of a commissioned officer in certain situations involving
a court martial or by order of the President in time of war (Section
1161(a) of Title 10).
 (4) Dropping a individual from the rolls when the individual has been
absent without authority for more than three months or who is
imprisoned by a civilian court. (Section 1161(b) of Title 10)

Disabilities incurred or aggravated while in Military Service Section
4313(a)(3).
 The following three-part reemployment scheme is required for persons with
disabilities incurred or aggravated while in Military Service:
 (1) The employer must make reasonable efforts to accommodate a person’s
disability so that the person can perform the position that person would have
held if the person had remained continuously employed.
 (2) If, despite reasonable accommodation efforts, the person is not qualified
for the position in (1) due to his or her disability, the person must be
employed in a position of equivalent seniority, status, and pay, so long as the
employee is qualified to perform the duties of the position or could become
qualified to perform them with reasonable efforts by the employer.
 (3) If the person does not become qualified for the position in either (1) or
(2), the person must be employed in a position that, consistent with the
circumstances of that person’s case, most nearly approximates the position
in (2) in terms of seniority, status, and pay. The law covers all employers,
regardless of size.

 Conflicting reemployment claims Section 4313(b)(1) &
(2)(A). If two or more persons are entitled to reemployment in
the same position, the following reemployment scheme
applies: 2 The person who first left the position has the
superior right to it.
 2 The person without the superior right is entitled to
employment with full seniority in any other position that
provides similar status and pay in the order of priority under
the reemployment scheme otherwise applicable to such
person.

 Changed circumstances Section 4312(d)(1)(A)).
Reemployment of a person is excused if an employer’s
circumstances have changed so much that reemployment of
the person would be impossible or unreasonable. A
reduction-in-force that would have included the person would
be an example.
 Undue hardship Section 4312(d)(1)(B). Employers are
excused from making efforts to qualify returning service
members or from accommodating individuals with service-
connected disabilities when doing so would be of such
difficulty or expense as to cause "undue hardship."

ESGR
EMPLOYER SUPPORT OF THE
GUARD AND RESERVE
 ESGR is a DOD operational committee whose mission is to
gain and maintain employer support for Guard and Reserve
service by advocating relevant initiatives, recognizing
outstanding support, increasing awareness of the law, and
resolving conflict between employers and service members.
As such, ESGR is the principal advocate within DOD
dedicated to providing its customers and stakeholders with
information about USERRA.

ESGR
GUARD AND RESERVE (cont.)
Outreach Programs
 ESGR conducts awareness and recognition programs aimed
at employers of RC service members to engender positive
support for Guard and Reserve service. These programs
include the voluntary participation by employers in the
Statement of Support Program and recognition of employers
who go “above and beyond” the requirements of USERRA.

ESGR
Outreach Programs (cont.)
Employers who participate in the Statement of Support Program pledge
that:
 They fully recognize, honor and enforce USERRA.
 Their managers and supervisors will have the tools they need to
effectively manage those
 employees who serve in the Guard and Reserve.
 They appreciate the values, leadership, and unique skills service
members bring to the
 workforce and will encourage opportunities to hire Guardsmen,
Reservists, and veterans.
 They will continually recognize and support our country’s service
members and their families
 in peace, in crisis, and in war.

ESGR
Outreach Programs (cont.)
 The ESGR awards program is designed to recognize employers
for employment policies and practices that are supportive of
their employees’ participation in the National Guard and
Reserve. Several employer awards originate from nominations
submitted by service members, recognizing supervisors with the
Patriot Award, and culminating in national recognition of the
most outstanding employers with the annual Secretary of
Defense Employer Support Freedom Award.
 During FY 2012, ESGR recognized 12,073 supervisors of RC
service members with the Patriot Award. HQ ESGR received
3,236 nominations for the 2012 Secretary of Defense Employer
Support Freedom Award. During the same time period, 54,889
employers signed Statements of Support.

ESGR
Ombudsman Services
 The primary means of assisting National Guard and Reserve members
with USERRA conflicts is through a nationwide Ombudsman Services
Program that reduces, resolves and helps prevent employer and/or
employee misunderstandings and problems. The Ombudsman Services
Program provides education, information, and neutral third-party
services in order to resolve employee/employer USERRA conflicts.
ESGR is not an enforcement agency, and does not participate in formal
litigation processes.
 The ESGR Ombudsman Services Program is available to RC service
members and their employers to address USERRA conflicts without
litigation. RC service members may also file complaints directly with
DOL, which has Congressional authority to investigate USERRA
violations and legal authority to subpoena records during an
investigation.

ESGR
There are many ways to contact ESGR. Please choose the method most
convenient for you.
Phone:
 For a workplace issue, conflict or question call the Customer
Service Center to speak with a representative: 1-800-336-4590 -
Option 1
Mail:
 Employer Support of the Guard and Reserve 4800 Mark Center Drive -
Suite 03E25 Alexandria, VA 22350-1200
Online:
 http://www.esgr.mil/Contact/Request-Assistance.aspx

VBIA
VETERANS BENEFITS
IMPROVEMENT ACT OF 2004
 On March 10, 2005, the Veterans' Employment and Training
Service (VETS) of the Department of Labor (Department or
DOL) issued an interim final rule to implement a requirement
of the Veterans Benefits Improvement Act of 2004 (VBIA),
Public Law 108-454 (Dec. 10, 2004). The VBIA amended the
Uniformed Services Employment and Reemployment Rights
Act (USERRA) by adding a requirement that employers
provide a notice of the rights, benefits, and obligations of
employees and employers under USERRA.

USERRA for Veterans and RC Servicemembers

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