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Uniformed Services Employment and Reemployment Rights Act (USERRA)

Uniformed Services Employment and Reemployment Rights Act (USERRA). Atty Paul Conrad, FEMA OGC. $$$$$$$$$$. NDMS PRESERVATION ACT *Recruiting *Retention. Who gets protections What are the protections How are they enforced. Overview.

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Uniformed Services Employment and Reemployment Rights Act (USERRA)

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  1. Uniformed Services Employment and Reemployment Rights Act (USERRA) Atty Paul Conrad, FEMA OGC

  2. $$$$$$$$$$ NDMS PRESERVATION ACT*Recruiting*Retention

  3. Who gets protections What are the protections How are they enforced Overview

  4. Title 42, U.S. Code § 300hh-11(e), enacted as part of Public Law 107-188, June 2002. NDMS members now intermittent federal employees, not volunteers. NDMS USERRA Coverage

  5. NDMS duty is considered “service in the uniformed services” for USERRA [Title 38, U.S. Code chapter 43] purposes when: Activated for deployment “by the Assistant Secretary for Public Health Emergency Preparedness or a comparable official of any Federal agency…”, OR Individual participates in authorized training NDMS USERRA Coverage

  6. What NDMS duty is NOT USERRA COVERED? Working on non-NDMS related logistics projects for FEMA Response Division Extending oneself at a disaster site, without coordination and approval of NDMS staff NDMS USERRA Coverage

  7. A civilian (non-NDMS) job Not Independent Contractor [Consultant/Law firm Partner/Union Officer] 20 C.F.R. §§ 1002.35-.44 Prerequisites for coverage

  8. A civilian job All employers Federal State Private Prerequisites for coverage

  9. A civilian job Prior notice 20 C.F.R. §§ 1002.85 - .88 Prerequisites for coverage

  10. A civilian job Prior notice Oral or written Hint: Written/Certified Mail or Email w/ Receipt is best! Prerequisites for coverage

  11. A civilian job Prior notice to Employer Oral or written By NDMS member or Team Chief, Deputy Team Chief 20 C.F.R. § 1002.123(a) (7) Prerequisites for coverage

  12. A civilian job Prior notice to Employer USERRA Regulations suggest 30 days prior notice should be goal Limited military necessity exception-[20 C.F.R. § 1002.86(a) and 42 USC § 300hh-11(e)(3)(B) ] Prerequisites for coverage

  13. A civilian job Prior notice Less than five years absence Prerequisites for coverage

  14. A civilian job Prior notice Less than five years absence Cumulative Some service excluded 20 C.F.R. § 1002.99 - .104 Prerequisites for coverage

  15. A civilian job Prior notice Less than five years absence Honorable conditions Prerequisites for coverage

  16. A civilian job Prior notice Less than five years absence Honorable conditions Proof? 20 C.F.R. §§ 1002.121 - .123 Prerequisites for coverage

  17. A civilian job Prior notice Less than five years absence Honorable conditions Report back in a timely manner Prerequisites for coverage

  18. Up to 30 days: safe travel + 8 hours 31 - 180 days: w/in 14 days 181 days or more: w/in 90 days Or else . . . [20 C.F.R. §§ 1002.115- .120] Reporting rules

  19. A civilian job Prior notice Less than five years absence Honorable conditions Report back in a timely manner Prerequisites for coverage

  20. GOLDEN RULE TREAT YOUR EMPLOYER AND NON-NDMS JOB WITH RESPECT!! Prerequisites for Coverage

  21. Who gets protections What are the protections How are they enforced

  22. Prompt reinstatement Status Accrued seniority Health insurance coverage Training or other accommodations Special protection from discharge Other nonseniority benefits Protections

  23. Prompt reinstatement [20 C.F.R. §§ 1002.180 - .181] Status [20 C.F.R. §§ 1002.191 - .213] Accrued seniority [20 C.F.R. §§ 1002.210 - .213] “Escalator” Principle Protections

  24. Prompt reinstatement Status Accrued seniority Pension benefits [20 C.F.R. §§ 1002.259 - .267] Protections

  25. Prompt reinstatement Status Accrued seniority Health insurance coverage [20 C.F.R. §§ 1002.163 - .171] Protections

  26. Prompt reinstatement Status Accrued seniority Health insurance coverage During NDMS service Protections

  27. Prompt reinstatement Status Accrued seniority Health insurance coverage Upon return to civilian job Protections

  28. Prompt reinstatement Status Accrued seniority Health insurance coverage Training & accommodation [20 C.F.R. §§ 1002.198 and .226] Protections

  29. Special protection against discharge [20 C.F.R. §§ 1002.247 - .248] > 30 days -180 days consecutive deployment/training, cannot be discharged except for cause for 180 days (6 months) >180 days-cannot be discharged except for cause for one year Protections

  30. Training or other accommodations Special protection from discharge Other nonseniority benefits [20 C.F.R. §§ 2001.149 - .153] Same or most favorable benefits provided by the employer for comparable leave or furloughs. Protections

  31. NDMS members are only considered as Members of the Armed Forces for USERRA purposes only-not military leave pay under federal statute or state laws, local ordinances or local employer policies, unless explicitly stated otherwise. USERRA and Military Leave Pay for NDMS Members

  32. Employers cannot discriminate in hiring, reemployment, retention, promotion or any employment benefit because of military [NDMS] service [Sec. 4311 and 20 C.F.R. §§ 1002.18 - .23] Title VII Analysis- “A motivating factor” -- not sole motivating factor No reprisals Anti-Discrimination Provision

  33. Applies to NDMS Members and former members but not NDMS member spouses. Fed Employees--No exhaustion of remedies requirement, but if DOL-VETs is still investigating the case, the MSPB won’t act until the investigation is completed. USERRA Anti-Discrimination Statute

  34. USERRA military status discrimination claim may be proved by direct evidence (Jasper) or indirect circumstantial evidence (Duncan). MSPB Administrative judge must make finding of USERRA jurisdiction based upon the record--giving notice to claimant of two types of proof and time to develop possible claim. USERRA Anti-Discrimination Statute

  35. Who gets protections What are the protections How are they enforced

  36. DoD: National Committee for Employer Support of the Guard and Reserve (ESGR) 1-800-336-4590 www.esgr.mil http://www.dol.gov/elaws/userra.htm DOL Compliance Assistance and Investigations [20 C.F.R. §§ 1002.277 - .292] Enforcement

  37. ESGR-NDMS Ombudsman Barbara Spurlock - (202) 646-4287 Steve Smith, USPHS – (202) 646-2619 24 Hour Telephone toll-free # 800-872-6367 DoL: Veterans Employment and Training Service (VETS) 1-202-693-4701(Mr. Torrans) Email: Torrans.William@dol.gov Enforcement

  38. NCESGR VETS Civil suit By DoJ or OSC [Fed EE’s] Private action [20 C.F.R. §§ 2001.303 - .314] Enforcement

  39. Covered by Section 4324 of the Act and 5 C.F.R. Parts 200 and 1201 Prevailing Party may be awarded reinstatement, reasonable attorney fees, expert witness fees, and court costs. Representation by Office of Special Counsel before MSPB or private counsel Federal Court may use full equitable powers of TRO, injunction, and contempt orders to get employer to comply with Act Private Action against Federal Employer

  40. Covered by Section 4323 of the Act and 20 C.F.R. §§ 1002.303 - .319 Prevailing Party may be awarded reasonable attorney fees, expert witness fees, and court costs. Willful violation = double damages Federal Court may use full equitable powers of TRO, injunction, and contempt orders to get employer to comply with Act Problems for State Employees Private Action against Local Government or Private Employer

  41. Covered by Section 4323 of the Act Recent U.S. Supreme Court cases prevent State Employee from suing State Gov’t Employer-must request DOJ to sue on behalf of the United States, and proceeds are provided by DOJ to the individual upon winning or settling lawsuit Willful violation = double damages Federal Court may use full equitable powers of TRO, injunction, and contempt orders to get employer to comply with Act Private Action against State Government Employer

  42. Employer Change in Circumstances [Impossibility Defense] Undue Hardship on Employer Brief and Nonrecurrent Employment Waiver or Estoppel Laches Employer Defenses[Section 4312(d) and 20 C.F.R. §§ 1002.139]

  43. “Hostile Work Environment” because of military or NDMS status cases- MSPB and Federal Courts? Petersen v. Dep’t of Interior- MSPB-Yes. Fed Courts-Possibly No. Churchv. City of Reno case Blanket “Key Employee” designations by federal agencies, e.g., FBI, Secret Service upheld. Dew and Thomsen cases. NEW DEVELOPMENTS

  44. USERRA AMENDMENTS of 1998 Fix for State Employee lawsuits against States [Sovereign Immunity- Eleventh Amendment Issue] Alden v. Maine---Unconstitutional?? [38 USC 4323] Extra-Territorial Extension of USERRA protections for American owned corporations and Federal employees worldwide [ 64 F.R. 31485 (11 Jun 99)]. [38 USC 4319] INCLUDES AAFEES Employees NEW DEVELOPMENTS

  45. Veterans’ Benefit Improvement Act of 1996 -- Vacation Pay/Time Provision [Sec. 4316(d)] & Graham v. Hall-McMillen NDMS member specific USERRA coverage- per 42 U.S.C. § 300hh-11(e)(3)(A) for federally activated deployments (voluntary) and federally mandated NDMS training. NEW DEVELOPMENTS

  46. Jury Trials?? Spratt v. Guardian Automotive [Non-Federal Employee cases only] New USERRA Regulation at 20 C.F.R. Part 1002 (Effective January 18, 2006) specifically mentions NDMS coverage and issues. ( Fed. Register, December 19, 2005, pp. 75246-75313) New Employer USERRA Notice (Poster) mentions NDMS members are covered under USERRA. Poster must be posted all workplaces. NEW DEVELOPMENTS

  47. New USERRA Regulation at 20 C.F.R. Part 1002 (Effective January 18, 2006) specifically mentions NDMS coverage and issues. ( Fed. Register, December 19, 2005, pp. 75246-75313) Description of NDMS for Employers NDMS members are covered by USERRA when deployed or on authorized training status NDMS Team Commanders and Admin Officers may provide employers with notice letters for deployment and request for reemployment NEW DEVELOPMENTS

  48. Problem Areas Few, if any, employers/Human Relations staffs or employment attorneys aware that NDMS members are covered under USERRA Notification of ER regarding USERRA rights, obligations, and enforcement Should you tell your employer of your NDMS status? NEW DEVELOPMENTS

  49. Problem Areas No court or MSPB cases regarding NDMS USERRA issues Enforcement Issues, Where Cases Not Voluntarily Settled Federal Employees and OSC- New Policy by Special Counsel to Enforce USERRA for Federal Workers-Special Counsel Bloch Testimony-House Vet’s Affairs Committee- June 23, 2004 State Employees and DOJ NEW DEVELOPMENTS

  50. THE END THANK YOUfor your attention! ATTY Paul Conrad, FEMA OGC EMAIL: paul.conrad1@dhs.gov

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