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USERRA

USERRA. Uniformed Services Employment & Reemployment Rights Act Reserve Officers Association One Constitution Ave. Washington, D.C. HISTORY.

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USERRA

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  1. USERRA Uniformed Services Employment & Reemployment Rights Act Reserve Officers Association One Constitution Ave. Washington, D.C.

  2. HISTORY • Congress enacted reemployment statute in 1940, as part of Selective Training and Service Act. Referred to colloquially as the Veterans’ Reemployment Rights Act (VRRA).

  3. LIBERAL CONSTRUCTION • Reemployment statute should be “liberally construed for he who has laid aside his private concerns to serve his country in its hour of great need.” Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285 (1946).

  4. NOW MORE THAN EVER • Reemployment statute is important and relevant, now more than ever. Almost 700,000 National Guard & Reserve members called to active duty since terrorist attacks of 9/11/2001. Some have been called multiple times.

  5. NOW MORE THAN EVER—CONT. • Reemployment statute enacted for “greatest generation” who won WWII. Applies equally to their children, grand-children, and great-grandchildren winning the Global War on Terrorism today.

  6. USERRA HISTORY • Enacted 1994 to replace VRRA, originally enacted in 1940. • Public Law 103-353, signed 10/13/1994. • Title 38, United States Code, sections 4301-4335. • 38 U.S.C. 4301-4335. • Amended 1996, 1998, 2000, 2004, 2008.

  7. USERRA LEGISLATIVE HISTORY • House Report No. 103-65—substantial excerpt available at 1994 United States Code Congressional & Administrative News pages 2449 through 2515

  8. ROA LAW REVIEW • Initiated 1997 in The Officer. • On Reserve Officers Association (ROA) website since 2000. • www.roa.org/law_review • More than 500 articles, mostly about USERRA • Six new articles added each month.

  9. LAW REVIEW—CONT. • Detailed Subject Index • USERRA numbers start with one • This PowerPoint refers to ROA Law Review Subject Index categories

  10. USERRA APPLIES TO EMPLOYERS • Federal Government—1.1.1.8 • State and local governments—1.1.1.7 • Small and large private employers—1.1.1.2 • You only need one employee to be covered—Cole v. Swint, 961 F.2d 58 (5th Cir. 1992).

  11. HIGHER EXPECTATION FOR FEDERAL GOVERNMENT • “It is the sense of Congress that the Federal Government should be a model employer in carrying out the provisions of this chapter.” 38 U.S.C. 4301(b) • Federal employee is exempted from the descending escalator while on duty—5 CFR 353.209(a). See Law Review 0740.

  12. USERRA EMPLOYERS-Cont. • Applies to U.S. employers overseas—1.1.1.5 • Applies to foreign employers in the U.S.—1.1.1.6 • Applies to joint employers and hiring halls—1.1.1.1 • Applies to successors in interest—1.1.1.9

  13. USERRA--NOT APPLY • USERRA applies to all U.S. employers EXCEPT • Religious institutions—1.1.1.3 • Indian tribes—1.1.1.4 • Foreign embassies • International Organizations—United Nations, World Bank, etc.

  14. USERRA—KINDS OF JOBS • Applies to temporary, probationary, and at-will jobs—1.1.2.1 • Applies to executive employees—1.1.2.5 • Does not apply to partners, independent contractors, but label is not controlling—1.1.2.2 • Applies to laid-off employees—1.1.2.3

  15. USERRA--STUDENTS • USERRA does not apply to the relationship between a student and an educational institution, but 11 states have such laws—1.1.2.4

  16. USERRA—KINDS OF SERVICE • Applies to REGULAR military service, as well as National Guard & Reserve—1.1.3.2 • Applies to voluntary as well as involuntary service—1.1.3.1 • Applies to exam to determine fitness—1.1.3.7 • Applies to funeral honors duty—1.1.3.8

  17. USERRA—KINDS OF SERVICE—CONT. • Applies to Public Health Service (PHS) service—1.1.3.4 • Does NOT apply to National Oceanic & Atmospheric Administration service—1.1.3.5 • Applies to National Disaster Medical System (NDMS) service—1.1.3.6

  18. USERRA—KINDS OF SERVICE—CONT. • Does NOT apply to service in a foreign military service—1.1.3.10 • Does NOT apply to service by military family members, but Family Medical Leave Act (FMLA) applies—1.1.3.9

  19. USERRA FORBIDS DISCRIMINATION • Forbids discrimination in hiring, retention, promotion, benefit—38 U.S.C. 4311 • Because of membership in service, application to join, performance of service, application or obligation to perform service—38 U.S.C. 4311(a) • Because of exercise of right, action to enforce, etc.—38 U.S.C. 4311(b)

  20. USERRA FORBIDS DISCRIMINATION—CONT. • Only need to prove protected status or activity was A MOTIVATING FACTOR—NOT necessarily only reason—38 U.S.C. 4311(c) • BURDEN OF PROOF shifts to employer • 1.2 in Subject Index

  21. PROMOTIONS FOR MOBILIZED EMPLOYEE • “[Federal] Agency promotion plans must provide a mechanism by which employees who are absent because of … uniformed service can be considered for promotion.” 5 C.F.R. 353.106(c). • See Law Review 0855.

  22. USERRA REINSTATEMENT • Only necessary to prove 5 eligibility criteria—don’t need to prove discrimination • 38 U.S.C. 4312—distinguish from section 4311 • 1.3 in Subject Index

  23. REINSTATEMENT CRITERIA • Left for service and gave prior notice—1.3.1.1 • Five-year limit (many exceptions)—1.3.1.2 • Released without punitive or other-than-honorable discharge—1.3.1.2 • Timely application for reemployment—1.3.1.3

  24. AFFIRMATIVE DEFENSES • Not required to reemploy if employer’s changed circumstances make doing so impossible or unreasonable. 38 U.S.C. 4312(d)(1)(A). • Not required to train or accommodate disability if doing so imposes undue hardship on employer. 38 U.S.C. 4312(d)(1)(B).

  25. AFFIRMATIVE DEFENSES—CONT. • Not required to reemploy if pre-service employment relationship was brief, non-recurrent, and no reasonable expectation of continuation indefinitely or for a significant period. 38 U.S.C. 4312(d)(1)(C)

  26. AFFIRMATIVE DEFENSES—CONT. • Employer has burden to raise and establish the affirmative defense. 38 U.S.C. 4312(d)(2) • Subject Index 1.3.1.4

  27. REINSTATEMENT ENTITLEMENTS • Prompt reinstatement—1.3.2.1 • Continuous seniority—1.3.2.2 • Continuous pension credit—1.3.2.3 • Status—1.3.2.4—Includes location, supervisor vice supervisee, hours, promotion opportunity, etc.

  28. ESCALATOR PRINCIPLE • “The returning veteran does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously during the war.” Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 284-85 (1946).

  29. ESCALATOR PRINCIPLE—CONT. • Escalator principle codified at 38 U.S.C. 4316(a). • Applies to perquisites of seniority. • Escalator can descend as well as ascend. • Federal employee exempted from descending escalator—5 CFR 353.209(a) • Subject Index 1.3.2.2

  30. ENTITLEMENTS—CONT. • Rate of pay upon reinstatement—1.3.2.5 • Health insurance reinstatement and continuation—1.3.2.6 • Adequate rest, travel, and prep time before and after service--1.3.2.7 • Training after returning to work—1.3.2.8

  31. DISABLED VETERANS • Applies to disabled veteran otherwise entitled to reemployment • In addition to and broader than Americans with Disabilities Act (ADA) • Employer must make reasonable efforts • Right to ANOTHER job if disability cannot be accommodated—1.3.2.9

  32. FURLOUGH/LEAVE OF ABSENCE • Employee away from work for service deemed to be on leave. 38 U.S.C. 4316(b) • Entitled to non-seniority benefits like others on leave of other kinds. • Escalator principle distinguished. • Subject Index 1.3.2.10

  33. VACATIONS, HOLIDAYS, DAYS OFF • 1.3.2.11 • Don’t generally accrue vacation from civilian employer while away from work for service • Right to use vacation while away from work for service—38 U.S.C. 4316(d)

  34. NO DISCHARGE EXCEPT FOR CAUSE • For one year, if period of service greater than 180 days—38 U.S.C. 4316(c)(1) • For 180 days, if period of service 31-180 days—38 U.S.C. 4316(c)(2) • 38 U.S.C. 4311 distinguished • Subject Index 1.3.2.12

  35. USERRA ENFORCEMENT • Cases against state, local, and private employers—forum is Federal District Court—38 U.S.C. 4323—1.4 • 11th Amendment problem when suing a STATE (does not include local)—1.1.1.7 • No exhaustion of remedies requirement • Subject Index 1.4

  36. ENFORCEMENT—CONT. • Cases against Federal Agencies—forum is the Merit Systems Protection Board (MSPB). 38 U.S.C. 4324 • Appeals to United States Court of Appeals for Federal Circuit • Fed Cir not shy about reversing MSPB • Subject Index 1.1.1.8 and 1.4—Law Review 0755 especially.

  37. USERRA ASSISTANCE • National Committee for Employer Support of the Guard & Reserve (ESGR) • DoD organization established 1972 • Informal, nonconfrontational, and quick • www.esgr.mil • 1-800-336-4590

  38. USERRA ASSISTANCE—CONT. • U.S. Dept. of Labor, Veterans’ Employment & Training Service (DOL-VETS) • Claimant NOT required to exhaust remedies through DOL-VETS before suing, BUT you must go through DOL-VETS if you want free legal help

  39. DOL-VETS—CONT. • Required to assist 38 U.S.C. 4321 • Required to investigate claimed violations—38 U.S.C. 4322 • Has subpoena authority—38 U.S.C. 4326 • Referral to Special Counsel (federal agency) or Attorney General (state, local, or private)—38 U.S.C. 4322(e) • Time limits enacted Oct. 2008

  40. OPM ROLE IN USERRA • Office of Personnel Management responsible for finding another job within Executive Branch, if impossible or unreasonable in old agency. Also applies to Legislative Branch, Judicial Branch, Intelligence Agencies, National Guard technicians. 38 U.S.C. 4314, 4315 • Law Review 0763.

  41. USERRA STATUTE OF LIMITATIONS • No Federal or State statute of limitations applies—38 U.S.C. 4323(i), 4327 (enacted Oct. 2008) • Equitable doctrine of laches applies • I don’t recommend you sleep on rights • Subject Index 1.6

  42. USERRA AND OTHER LAWS/POLICIES • Does not supersede state law, employer policy, contract, collective bargaining agreement (CBA), etc. if greater or additional rights—38 U.S.C. 4302(a) • Supersedes state laws, employer policies, practices, contracts, CBAs, etc. that limit USERRA rights or impose additional prerequisites—38 U.S.C. 4302(b)—1.8

  43. USERRA AND OTHER MATTERS—CONT. • “No practice of employers or agreements between employers and unions can cut down the service adjustment benefits that Congress has secured the veteran.” Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285 (1946)

  44. USERRA ARBITRATION • I believe that 38 U.S.C. 4302(b) overrides agreements to submit future USERRA disputes to binding arbitration—unfortunately the 5th Cir. and 6th Cir. disagree • Need corrective legislation • Subject Index 1.5

  45. USERRA REGULATIONS • Director of Office of Personnel Management (OPM) has authority to promulgate regulations regarding application of USERRA to Federal agencies—38 U.S.C. 4331(b) • OPM USERRA Regulations in Title 5, Code of Federal Regulations (CFR), Part 353

  46. USERRA REGULATIONS—CONT. • Secretary of Labor has authority to promulgate regulations about application of USERRA to state and local governments and private employers—38 U.S.C. 4331(a) • DOL USERRA Regulations in 20 CFR Part 1002

  47. USERRA REGULATIONS—CONT. • DOL USERRA Regulations preamble—2005 Federal Register pages 75246 through 75313 (Dec. 19, 2005). Also available at www.dol.gov/vets. • Subject Index 1.7

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