Uniformed services employment and reemployment rights act userra
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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

Uniformed Services Employment and Reemployment Rights Act (USERRA)

Atty Paul Conrad, FEMA OGC


Ndms preservation act recruiting retention

$$$$$$$$$$

NDMS PRESERVATION ACT*Recruiting*Retention


Overview

Who gets protections

What are the protections

How are they enforced

Overview


Ndms userra coverage

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


Ndms userra coverage1

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


Ndms userra coverage2

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


Prerequisites for coverage

A civilian (non-NDMS) job

Not Independent Contractor [Consultant/Law firm Partner/Union Officer]

20 C.F.R. §§ 1002.35-.44

Prerequisites for coverage


Prerequisites for coverage1

A civilian job

All employers

Federal

State

Private

Prerequisites for coverage


Prerequisites for coverage2

A civilian job

Prior notice

20 C.F.R. §§ 1002.85 - .88

Prerequisites for coverage


Prerequisites for coverage3

A civilian job

Prior notice

Oral or written

Hint: Written/Certified Mail or Email w/ Receipt is best!

Prerequisites for coverage


Prerequisites for coverage4

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


Prerequisites for coverage5

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


Prerequisites for coverage6

A civilian job

Prior notice

Less than five years absence

Prerequisites for coverage


Prerequisites for coverage7

A civilian job

Prior notice

Less than five years absence

Cumulative

Some service excluded

20 C.F.R. § 1002.99 - .104

Prerequisites for coverage


Prerequisites for coverage8

A civilian job

Prior notice

Less than five years absence

Honorable conditions

Prerequisites for coverage


Prerequisites for coverage9

A civilian job

Prior notice

Less than five years absence

Honorable conditions

Proof? 20 C.F.R. §§ 1002.121 - .123

Prerequisites for coverage


Prerequisites for coverage10

A civilian job

Prior notice

Less than five years absence

Honorable conditions

Report back in a timely manner

Prerequisites for coverage


Reporting rules

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


Prerequisites for coverage11

A civilian job

Prior notice

Less than five years absence

Honorable conditions

Report back in a timely manner

Prerequisites for coverage


Prerequisites for coverage12

GOLDEN RULE

TREAT YOUR EMPLOYER AND NON-NDMS JOB WITH RESPECT!!

Prerequisites for Coverage


Uniformed services employment and reemployment rights act userra

Who gets protections

What are the protections

How are they enforced


Protections

Prompt reinstatement

Status

Accrued seniority

Health insurance coverage

Training or other accommodations

Special protection from discharge

Other nonseniority benefits

Protections


Protections1

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


Protections2

Prompt reinstatement

Status

Accrued seniority

Pension benefits

[20 C.F.R. §§ 1002.259 - .267]

Protections


Protections3

Prompt reinstatement

Status

Accrued seniority

Health insurance coverage

[20 C.F.R. §§ 1002.163 - .171]

Protections


Protections4

Prompt reinstatement

Status

Accrued seniority

Health insurance coverage

During NDMS service

Protections


Protections5

Prompt reinstatement

Status

Accrued seniority

Health insurance coverage

Upon return to civilian job

Protections


Protections6

Prompt reinstatement

Status

Accrued seniority

Health insurance coverage

Training & accommodation

[20 C.F.R. §§ 1002.198 and .226]

Protections


Protections7

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


Protections8

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


Userra and military leave pay for ndms members

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


Anti discrimination provision

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


Userra anti discrimination statute

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


Userra anti discrimination statute1

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


Uniformed services employment and reemployment rights act userra

Who gets protections

What are the protections

How are they enforced


Enforcement

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


Enforcement1

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: [email protected]

Enforcement


Enforcement2

NCESGR

VETS

Civil suit

By DoJ or OSC [Fed EE’s]

Private action

[20 C.F.R. §§ 2001.303 - .314]

Enforcement


Private action against federal employer

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


Private action against local government or private employer

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


Private action against state government employer

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


Employer defenses section 4312 d and 20 c f r 1002 139

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]


New developments

“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


New developments1

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


New developments2

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


New developments3

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


New developments4

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


New developments5

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


New developments6

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


Thank you for your attention

THE END

THANK YOUfor your attention!

ATTY Paul Conrad, FEMA OGC

EMAIL: [email protected]


Uniformed services employment and reemployment rights act

Uniformed Services Employment and Reemployment Rights Act

Atty Paul E. Conrad, FEMA OGC


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