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USERRA OVERVIEW 38 USC 4301-4333 PowerPoint Presentation
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USERRA OVERVIEW 38 USC 4301-4333

USERRA OVERVIEW 38 USC 4301-4333

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USERRA OVERVIEW 38 USC 4301-4333

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  1. USERRA OVERVIEW38 USC 4301-4333 U.S. Department of Labor Nick Dawson, VETS

  2. “Our military personnel can serve secure in the knowledge that their civilian jobs will be waiting for them when they conclude their active service. . . It is imperative that we as a nation do all we can to make sure that the men and women whom we are asking today to stand in harm’s way – whether in the active armed forces or the Guard or Reserves – have every opportunity to provide for themselves and their families when they enter or return to the civilian labor force.”Secretary of Labor Elaine Chao

  3. USERRA HISTORY • Veterans’ Reemployment Rights Act • Development of USERRA • Strengthens and clarifies VRR law • Introduces a number of changes • Much VRR Case Law Applies

  4. USERRA HISTORY • Fishgold v. Sullivan Drydock, 328 U.S. 275 (1946) • “He who was called to the colors was not to be penalized on his return by reason of his absence from his civilian job. . .” • Liberal construction • The “escalator” principle

  5. USERRA HISTORY • USERRA Amendments • 1996 Veterans’ Benefits Improvements Act, Pub.L. No. 104-275 (technical amendments) • 1998 Veterans’ Programs Enhancement Act, Pub.L. No. 105-368 (States enforcement, extraterritorial, MSPB jurisdiction for VRR) • 2000 Veterans’ Benefits and Health Care Improvement Act, Pub.L. 106-419 (funeral honors duty as “uniformed service”)

  6. USERRA HISTORY • USERRA Amendments (cont.) • Public Health Security and Bioterrorism Preparedness and Response Act of 2002, Pub.L. No. 107-188 (indirect USERRA amendment – coverage added for “intermittent disaster response appointees” (DHS) when activated or performing approved training.) See 42 USC 300hh-11(e)(3)

  7. USERRA HISTORY • Relationship With Other Laws and Agreements (4302) • Does not supersede any Federal/State law or any contract, agreement, etc., that provides more beneficial rights • Supersedes any State law or any contract, agreement, etc., that would limit rights or impose additional prerequisites

  8. WHO IS COVERED • “Uniformed Services” (4303(16)) • Active/Reserve components of Armed Forces • PHS Commissioned Corps • Designation by President • “Service” (4303(13)) • Broad range of military duty, voluntary or involuntary • Intermittent disaster response service/training

  9. DISCRIMINATION • Employers May Not Discriminate (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 (4311(b)) • against a person who seeks to enforce rights or who testifies or assists in an investigation

  10. REEMPLOYMENT RIGHTS • Eligibility Criteria • Civilian position • Advance notice (4312(a)(1)) • Five-year service limit (4312(a)(2)) • Character of service (4304) • Timely return to work or application for reemployment following service (4312(a)(3))

  11. REEMPLOYMENT RIGHTS • Exceptions (4312(d)) • employer’s changed circumstances • “undue hardship” • “brief, non-recurrent” position • The Exceptions are Affirmative Defenses

  12. REEMPLOYMENT RIGHTS • Reemployment Position (4313(a)) • “Escalator Principle” • Service up to 90 days • Service of 91 days or more • Disabled returning veteran • Protection from discharge (4316(c))

  13. BENEFITS DURING SERVICE • Non-Seniority Benefits Generally (4316(b)) • Leave of absence provision • Compare with employees on other leave • “Most favorable” treatment • Continuation of Health Plan (4317(a)) • Separate from other benefits • Compare to COBRA for Service > 30 Days

  14. BENEFITS UPON REEMPLOYMENT • Seniority and Seniority-Based Benefits • “Escalator Principle” • “reasonable certainty” • Reinstatement of Health Plan (4317) • No waiting period or exclusion • Exception for service-connected condition

  15. BENEFITS UPON REEMPLOYMENT • Pension Entitlements (4318) • Applies to defined benefit and defined contribution plans • Rights do not accrue until reemployment • No entitlement to earnings/forfeitures • Provision for making up employee contributions in contributory plans

  16. DOL USERRA ROLES • DOL Provides Assistance • Technical assistance since September 11, 2001 • DOL Conducts Outreach • USERRA briefings since September 11, 2001 • DOL/VETS Partnership with ESGR • DOL Has Rulemaking Authority • USERRA regulations being drafted

  17. ENFORCEMENT • Complaint May be Filed with VETS • Right of Private Action as an Option • VETS Investigates • Referral of Cases to DOJ or OSC

  18. REMEDIES • Full Compliance with USERRA, Including • Reinstatement • Back pay • Benefits • Double Damages for Willful Violations • Attorney’s Fees and Costs for Service Member • No State Statute of Limitations

  19. FURTHER INFORMATION • VETS Web Page • www.dol.gov/vets • USERRA E-laws Advisor • Current Issues/Updates • VETS Office Directory • ESGR Web Page • www.esgr.com