USERRA TUTORIALUSERRA TUTORIAL

GENERAL INFORMATIONGENERAL INFORMATION

This slide show is intended to provide This slide show is intended to provide basic information about USERRA’s basic information about USERRA’s provisions. References at the top of the provisions. References at the top of the slides are to the applicable section of the slides are to the applicable section of the law (e.g., 38 U.S.C. 4301). law (e.g., 38 U.S.C. 4301).

Links at the bottom of the slides are to the Links at the bottom of the slides are to the applicable section of the Department of applicable section of the Department of Labor’s USERRA regulations (e.g., 20 Labor’s USERRA regulations (e.g., 20 C.F.R. 1002.1 C.F.R. 1002.1 LINKLINK).).

GENERAL INFORMATIONGENERAL INFORMATION

Only selected sections of the USERRA Only selected sections of the USERRA regulations are available through the regulations are available through the links provided. The complete links provided. The complete regulation is available in the regulation is available in the “Resources” section of USERRA 101.“Resources” section of USERRA 101.

Some State laws provide greater Some State laws provide greater rights than USERRA. National Guard rights than USERRA. National Guard legal offices usually have information legal offices usually have information on their State law. on their State law.

GENERAL INFORMATIONGENERAL INFORMATION

These slides do These slides do notnot cover all of USERRA’s cover all of USERRA’s provisions. Should questions or issues provisions. Should questions or issues arise that are not covered in this arise that are not covered in this presentation, please refer to the statute presentation, please refer to the statute and the DOL regulations for guidance. and the DOL regulations for guidance. If more help is needed, ESGR volunteers If more help is needed, ESGR volunteers and VETS employees should never and VETS employees should never hesitate to ask for assistance through hesitate to ask for assistance through their respective “chains of command.” their respective “chains of command.”

DEFINITIONSDEFINITIONS38 U.S.C. 430338 U.S.C. 4303

The definitions provided in USERRA and The definitions provided in USERRA and the USERRA regulations must be used the USERRA regulations must be used in interpreting the lawin interpreting the law

The definitions of some USERRA terms The definitions of some USERRA terms are different from how those terms are are different from how those terms are commonly used (e.g., Puerto Rico is a commonly used (e.g., Puerto Rico is a “State” for USERRA purposes)“State” for USERRA purposes)

20 C.F.R. 1002.5 [20 C.F.R. 1002.5 [LINK]]

DISCRIMINATIONDISCRIMINATION38 U.S.C. 4311(a)38 U.S.C. 4311(a)

There is a broad prohibition of employer There is a broad prohibition of employer discrimination on the basis of a person’s discrimination on the basis of a person’s membership or application for membership or application for membership in the service, performance membership in the service, performance of service, or serviceof service, or service obligationsobligations

Provision applies to all positions of Provision applies to all positions of employment, and to offers of employment, and to offers of employmentemployment

20 C.F.R. 1002.18 [20 C.F.R. 1002.18 [LINK]]

RETALIATIONRETALIATION38 U.S.C. 4311(b)38 U.S.C. 4311(b)

Employers may not retaliate against a Employers may not retaliate against a person who enforces a USERRA right, person who enforces a USERRA right, testifies, assists in investigation, etc.testifies, assists in investigation, etc.

USERRA protects an employee from USERRA protects an employee from employer retaliation regardless of employer retaliation regardless of whether the employee has any past or whether the employee has any past or current military connectioncurrent military connection

20 C.F.R. 1002.19 [20 C.F.R. 1002.19 [LINK]]

EMPLOYERS COVEREDEMPLOYERS COVERED38 U.S.C. 4303(4)38 U.S.C. 4303(4)

Virtually all U.S. employers covered, Virtually all U.S. employers covered, public or private, regardless of size, public or private, regardless of size, here and abroadhere and abroad

Foreign employers covered for their Foreign employers covered for their employees working at U.S. job sitesemployees working at U.S. job sites

20 C.F.R. 1002.34 [20 C.F.R. 1002.34 [LINK]]

COVERED SERVICECOVERED SERVICE38 U.S.C. 4303(13)38 U.S.C. 4303(13)

Most types of military service coveredMost types of military service covered Voluntary or involuntaryVoluntary or involuntary Peacetime or wartimePeacetime or wartime Active and Reserve componentsActive and Reserve components Fitness-for-service examination Fitness-for-service examination

National Disaster Medical SystemNational Disaster Medical System

20 C.F.R. 1002.6 [20 C.F.R. 1002.6 [LINK]] 20 C.F.R. 1002.56 [20 C.F.R. 1002.56 [LINK] (NDMS info)] (NDMS info)

NATIONAL GUARD SERVICENATIONAL GUARD SERVICE

USERRA covers NG duty performed USERRA covers NG duty performed under Federal authorityunder Federal authority

USERRA does USERRA does notnot cover NG duty cover NG duty performed under State law (e.g., call-up performed under State law (e.g., call-up by the Governor for a natural disaster)by the Governor for a natural disaster) State call-ups generally covered by State State call-ups generally covered by State

lawlaw

20 C.F.R.1002.57 [20 C.F.R.1002.57 [LINK]]

REEMPLOYMENT ELIGIBILITYREEMPLOYMENT ELIGIBILITY38 U.S.C. 4304, 431238 U.S.C. 4304, 4312

Certain criteria must be met to be Certain criteria must be met to be eligible for reemployment following eligible for reemployment following absence for serviceabsence for service Advance noticeAdvance notice 5-year cumulative5-year cumulative service limitservice limit Timely return or reemployment Timely return or reemployment

applicationapplication Character of serviceCharacter of service

20 C.F.R. 1002.32 [20 C.F.R. 1002.32 [LINK]]

ADVANCE NOTICEADVANCE NOTICE38 U.S.C. 4312(a)(1)38 U.S.C. 4312(a)(1)

May be given to employer by service May be given to employer by service member or military unitmember or military unit

May be verbal or writtenMay be verbal or written Should be given as far in advance as Should be given as far in advance as

is reasonableis reasonable

20 C.F.R. 1002.85 [20 C.F.R. 1002.85 [LINK]]

ADVANCE NOTICEADVANCE NOTICE38 U.S.C. 4312(b)38 U.S.C. 4312(b)

Notice not required if precluded by Notice not required if precluded by military necessitymilitary necessity

Notice not required if giving of notice Notice not required if giving of notice is impossible or unreasonable under is impossible or unreasonable under all the circumstancesall the circumstances

20 C.F.R. 1002.86 [20 C.F.R. 1002.86 [LINK]]

5-YEAR SERVICE LIMIT5-YEAR SERVICE LIMIT38 U.S.C. 4312(a)(2)38 U.S.C. 4312(a)(2)

Applies to period of Applies to period of serviceservice, not , not absenceabsence For example, does not apply to period of For example, does not apply to period of

absence from employment before or after absence from employment before or after performance of serviceperformance of service

Does Does notnot include service performed include service performed while working for previous employer(s)while working for previous employer(s)

Includes some service performed Includes some service performed before USERRA was enactedbefore USERRA was enacted

20 C.F.R. 1002.99 – 1002.102 [20 C.F.R. 1002.99 – 1002.102 [LINK]]

5-YEAR LIMIT – EXCEPTIONS5-YEAR LIMIT – EXCEPTIONS38 U.S.C. 4312(c)38 U.S.C. 4312(c)

Specified types of service do not Specified types of service do not count toward the 5-year limitcount toward the 5-year limit obligated serviceobligated service required training required training involuntary serviceinvoluntary service support of a war, contingency, etc.support of a war, contingency, etc.

20 C.F.R. 1002.103 [20 C.F.R. 1002.103 [LINK]]

TIMELY TIMELY RETURN/APPLICATIONRETURN/APPLICATION

38 U.S.C. 4312(e)38 U.S.C. 4312(e) If service is 30 days or lessIf service is 30 days or less

Return to work, generally first shift next day Return to work, generally first shift next day after completion of service, with time added for after completion of service, with time added for travel and resttravel and rest

If service is for more than 30 but less If service is for more than 30 but less than 181 daysthan 181 days Apply within 14 days after service completeApply within 14 days after service complete

If service is more than 180 daysIf service is more than 180 days Apply within 90 days after service completeApply within 90 days after service complete

20 C.F.R. 1002.115 [20 C.F.R. 1002.115 [LINK]]

TIMELY TIMELY RETURN/APPLICATIONRETURN/APPLICATION

38 U.S.C. 4312(e)38 U.S.C. 4312(e) Reporting/application deadlines can Reporting/application deadlines can

be extended up to 2 years for be extended up to 2 years for recovery from illness or injury recovery from illness or injury incurred or aggravated during incurred or aggravated during period of serviceperiod of service

20 C.F.R. 1002.116 [20 C.F.R. 1002.116 [LINK]]

DOCUMENTATION OF DOCUMENTATION OF SERVICESERVICE

38 U.S.C. 4312(f)38 U.S.C. 4312(f) Upon employer request, employee must Upon employer request, employee must

present documentation following present documentation following service of more than 30 daysservice of more than 30 days

Documentation establishes employee is Documentation establishes employee is eligible for reemployment, i.e. eligible for reemployment, i.e. application is timely, five-year limit not application is timely, five-year limit not exceeded, separation not disqualifyingexceeded, separation not disqualifying

Cannot delay reemployment while Cannot delay reemployment while waiting for documentationwaiting for documentation

20 C.F.R. 1002.121 – 1002.122 [20 C.F.R. 1002.121 – 1002.122 [LINK]]

CHARACTER OF SERVICECHARACTER OF SERVICE38 U.S.C. 430438 U.S.C. 4304

Certain types of discharge or Certain types of discharge or separation from service make an separation from service make an individual ineligible for reemployment individual ineligible for reemployment under USERRAunder USERRA Dishonorable or bad conduct dischargeDishonorable or bad conduct discharge Separated under other than honorable Separated under other than honorable

conditionsconditions Dismissed or dropped from the rollsDismissed or dropped from the rolls

20 C.F.R. 1002.135 [20 C.F.R. 1002.135 [LINK]]

BENEFITS DURING SERVICEBENEFITS DURING SERVICE38 U.S.C. 4316(b)38 U.S.C. 4316(b)

Employee considered on furlough or Employee considered on furlough or leave of absence while performing leave of absence while performing serviceservice

Entitled to non-seniority benefits (e.g., Entitled to non-seniority benefits (e.g., bonuses, life insurance, vacation accrual) bonuses, life insurance, vacation accrual) given to similarly situated employees on given to similarly situated employees on non- military leave of absencenon- military leave of absence

20 C.F.R. 1002.149 [20 C.F.R. 1002.149 [LINK]]

BENEFITS DURING SERVICEBENEFITS DURING SERVICE38 U.S.C. 4316(b)38 U.S.C. 4316(b)

If non-seniority benefits provided by If non-seniority benefits provided by employer vary for different types of employer vary for different types of non-military leave, service member is non-military leave, service member is to be given most favorable treatment, to be given most favorable treatment, so long as non-military leave is so long as non-military leave is “comparable”“comparable”

““Comparability” explained in the DOL Comparability” explained in the DOL USERRA regulations USERRA regulations

20 C.F.R. 1002.150 [20 C.F.R. 1002.150 [LINK]]

VACATIONVACATION38 U.S.C. 4316(d)38 U.S.C. 4316(d)

Employee must be Employee must be permittedpermitted to use to use accrued vacation or similar paid accrued vacation or similar paid leave while performing serviceleave while performing service

Employee may not be Employee may not be requiredrequired to use to use accrued vacation or similar paid accrued vacation or similar paid leave while performing serviceleave while performing service

20 C.F.R. 1002.153 [20 C.F.R. 1002.153 [LINK]]

HEALTH PLANSHEALTH PLANS38 U.S.C. 431738 U.S.C. 4317

Employee, upon request, entitled to Employee, upon request, entitled to continuation coverage under employer continuation coverage under employer plan during absence for service (up to plan during absence for service (up to 24 months max)24 months max)

Applies to employee and to covered Applies to employee and to covered dependentsdependents

20 C.F.R. 1002.164 [20 C.F.R. 1002.164 [LINK]]

HEALTH PLANSHEALTH PLANS38 U.S.C. 431738 U.S.C. 4317

Employee may be required to pay up Employee may be required to pay up to 102% of total cost of continuing to 102% of total cost of continuing coverage if period of service is 31 coverage if period of service is 31 days or moredays or more

Employee only pays normal Employee only pays normal employee share for coverage if employee share for coverage if period of service is less than 31 daysperiod of service is less than 31 days

20 C.F.R. 1002.166 [20 C.F.R. 1002.166 [LINK] ]

HEALTH PLANSHEALTH PLANS38 U.S.C. 431738 U.S.C. 4317

If coverage is terminated during If coverage is terminated during period of service, it must be period of service, it must be reinstated immediately upon reinstated immediately upon reemploymentreemployment

No waiting periods or exclusions No waiting periods or exclusions permitted, except for exclusions of permitted, except for exclusions of conditions determined by VA to be conditions determined by VA to be service-connectedservice-connected

20 C.F.R. 1002.167 – 1002.168 [20 C.F.R. 1002.167 – 1002.168 [LINK]]

REEMPLOYMENT POSITIONREEMPLOYMENT POSITION38 U.S.C.431338 U.S.C.4313

Basic entitlement is to the “escalator” Basic entitlement is to the “escalator” position – the position the person position – the position the person would have attained had employment would have attained had employment been continuousbeen continuous

Specific position may be different from Specific position may be different from the “escalator,” depending on the “escalator,” depending on circumstancescircumstances

20 C.F.R. 1002.191 – 1002.193 [LINK]20 C.F.R. 1002.191 – 1002.193 [LINK]

REEMPLOYMENT POSITIONREEMPLOYMENT POSITION38 U.S.C. 431338 U.S.C. 4313

The “escalator” does not always go The “escalator” does not always go up. The “escalator” position reflects up. The “escalator” position reflects what would have happened if person what would have happened if person had remained at workhad remained at work

The reemployment position could The reemployment position could involve a promotion, no change, or involve a promotion, no change, or even termination depending on even termination depending on circumstancescircumstances

20 C.F.R. 1002.194 [LINK]20 C.F.R. 1002.194 [LINK]

REEMPLOYMENT POSITIONREEMPLOYMENT POSITION38 U.S.C. 431338 U.S.C. 4313

In determining proper reemployment In determining proper reemployment position, certain factors must be position, certain factors must be considered, includingconsidered, including Length of the most recentLength of the most recent military servicemilitary service Qualifications of employeeQualifications of employee Any disability incurred or aggravated during Any disability incurred or aggravated during

serviceservice

20 C.F.R. 1002.195 [LINK]20 C.F.R. 1002.195 [LINK]

REEMPLOYMENT POSITIONREEMPLOYMENT POSITION38 U.S.C. 431338 U.S.C. 4313

If service was less than 91 daysIf service was less than 91 days ““escalator” position, or, if not qualified,escalator” position, or, if not qualified, pre-service position, or, if not qualified,pre-service position, or, if not qualified, nearest approximation of “escalator” or nearest approximation of “escalator” or

pre-service position (in that order) for pre-service position (in that order) for which the person is or can become which the person is or can become qualifiedqualified

20 C.F.R. 1002.196 [LINK]20 C.F.R. 1002.196 [LINK]

REEMPLOYMENT POSITIONREEMPLOYMENT POSITION38 U.S.C. 431338 U.S.C. 4313

If service was more than 90 daysIf service was more than 90 days ““escalator” position (or like position), or, if escalator” position (or like position), or, if

not qualified,not qualified, pre-service position (or like position), or, if pre-service position (or like position), or, if

not qualified,not qualified, nearest approximation of “escalator” or nearest approximation of “escalator” or

pre-service position (in that order) for which pre-service position (in that order) for which the person is or can become qualifiedthe person is or can become qualified

20 C.F.R. 1002.197 [LINK]20 C.F.R. 1002.197 [LINK]

DISABLED DURING SERVICEDISABLED DURING SERVICE38 U.S.C. 431338 U.S.C. 4313

Employer must make reasonable efforts Employer must make reasonable efforts to accommodate the disability and to accommodate the disability and qualify the employee for reemployment qualify the employee for reemployment positions in the following orderpositions in the following order ““escalator” positionescalator” position position equivalent to “escalator” positionposition equivalent to “escalator” position nearest approximation to the abovenearest approximation to the above

20 C.F.R. 1002.225 [LINK]20 C.F.R. 1002.225 [LINK]

PROTECTION FROM DISCHARGEPROTECTION FROM DISCHARGE38 U.S.C. 4316(c)38 U.S.C. 4316(c)

Reemployed person may not be Reemployed person may not be discharged, discharged, except for causeexcept for cause within one year after reemployment if the within one year after reemployment if the

period of service was more than 180 days; period of service was more than 180 days; or,or,

within 180 days after reemployment if the within 180 days after reemployment if the period of service was for more than 30 but period of service was for more than 30 but less than 181 daysless than 181 days

20 C.F.R. 1002.247 [LINK]20 C.F.R. 1002.247 [LINK]

PROTECTION FROM DISCHARGEPROTECTION FROM DISCHARGE38 U.S.C. 4316(c)38 U.S.C. 4316(c)

Employer has burden to prove a Employer has burden to prove a discharge during protected period was for discharge during protected period was for causecause

Proper cause can be based on conduct or Proper cause can be based on conduct or on other legitimate reasonon other legitimate reason if conduct, it must be reasonable to discharge if conduct, it must be reasonable to discharge

an employee for the conduct in questionan employee for the conduct in question example of “other legitimate reason” for example of “other legitimate reason” for

discharge would be a company downsizingdischarge would be a company downsizing

20 C.F.R. 1002.248 [LINK]20 C.F.R. 1002.248 [LINK]

PENSIONSPENSIONS38 U.S.C.431838 U.S.C.4318

Upon reemploymentUpon reemployment, a returning service , a returning service member is treated, for pension purposes, member is treated, for pension purposes, as if employment had been continuousas if employment had been continuous

Credit given for purposes of participation, Credit given for purposes of participation, vesting and accrual of benefitsvesting and accrual of benefits

USERRA applies to most pension plans, USERRA applies to most pension plans, but not to the Federal Thrift Savings Planbut not to the Federal Thrift Savings Plan

20 C.F.R. 1002.259 – 1002.260 [LINK]20 C.F.R. 1002.259 – 1002.260 [LINK]

USERRA ASSISTANCEUSERRA ASSISTANCE38 U.S.C. 432138 U.S.C. 4321

DOL/VETS provides assistance to any DOL/VETS provides assistance to any person or entity concerning USERRA person or entity concerning USERRA rights and benefitsrights and benefits

ESGR is VETS’ partner in providing such ESGR is VETS’ partner in providing such assistance, especially to Guard and assistance, especially to Guard and Reserve members, their employers, and Reserve members, their employers, and the general publicthe general public

20 C.F.R. 1002.277 [LINK]20 C.F.R. 1002.277 [LINK]