Veterans’ Employment and Training Service

1. Veterans’ Employment and Training Service USERRA Tony Smithhart US Department of Labor/VETS October 15, 2008

2. USERRA Overview Uniformed Services Employment and Reemployment Rights Act (USERRA) • Enacted in 1994, but its roots date back to 1940. 38 U.S.C. §§ 4301-4334

3. USERRA • Prohibits employment discrimination on basis of past military service, current or future military obligations • Protects reemployment rights with pre-service employers for veterans, Reserve, and National Guard members VETS investigates complaints from veterans, Reservists, and Guard members who feel that they have been disadvantaged due to their military status

4. What is “Uniformed Service”? • Anyone who performs, applies to perform, or has an obligation to perform: • Service in the armed forces: Active, Reserve and National Guard • Service in the U.S. Public Health Service Commissioned Corps • Service in the National Disaster Medical System • An examination to determine fitness for military service

5. Covered Employers • All private employers • State and local governments • Federal Government – all branches (civilian) • Extraterritorial application • Successors in interest  Control over employment-related responsibilities --- 38 U.S.C. § 4303(4)

6. Who is Eligible for Coverage? • Left a civilian job for uniformed service • Provided notice prior to service • 5 Year rule • Qualifying character of service • Report back in a timely manner

7. Basic USERRA Protections • Discrimination prohibited • Initial hiring • Promotions • Retention in employment • Employment benefits • Reemployment rights protected • Benefits during service • Health plans • Other benefits • Prompt reinstatement

8. Prohibits Discrimination • Employers may not discriminate --- 38 U.S.C. § 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 --- 38 U.S.C. § 4311(b) – Against a person who seeks to enforce rights or who testifies or assists in an investigation

9. Benefits During Service • Employees deemed to be on furlough or leave of absence during service ---38 U.S.C. § 4316(b) • Entitled to all benefits based on seniority as if continuously employed • Entitled to non-seniority benefits given to those on comparable leave See Waltermyer v. Aluminum Co. of America, 804 F.2d 821 (3d Cir. 1986); 38 U.S.C. § 4316(b)(1)(B) ✯ Can be waived by employee if knowing and in writing --- 38 U.S.C. § 4316(b)(2)

10. Health Benefits During Service • Continuation of health plan coverage --- 38 U.S.C. § 4317(a) • May be required to pay 102% of cost, if period of service >30 days • Coverage up to 24 months (was 18) • Like COBRA, but covers all employers

11. Reemployment Position • “Escalator Position” – the job the returning service member would have attained but for the service --- 38 U.S.C. § 4313(a) • Service of 91 days or more – an additional employer option: “like seniority, status, and pay” • Disabled returning veteran – an additional employer obligation: reasonable accommodation and nearest approximate position • Reasonable employer efforts to qualify, including training --- 38 U.S.C. § 4303(10)

12. Protection From Discharge • No discharge except for cause --- 38 U.S.C. § 4316(c) – 1 year for service of 181 days or more – 6 months for service of 31-180 days

13. Relationship to Other Laws and Agreements • Does not supersede any law or agreement that provides more beneficial rights --- 38 U.S.C. § 4302(a) • Some state laws provide more generous benefits • Supersedes any State law or agreement that would limit rights or impose additional prerequisites --- 38 U.S.C. § 4302(b) • Arbitration as a prerequisite for enforcing USERRA rights. See H. Rep. 103-65 at 20 (1993); Garrett v. Circuit City Stores, Inc., 338 F.Supp. 2d (N.D. Tx. 2004) (Binding arbitration agreement superseded by USERRA)

14. USERRA Regulations • Proposed USERRA Regulations first published September 20, 2004 • Written in “plain-English” in a question-and-answer format • Covers all aspects of USERRA as it relates to private employers and state and local governments • USERRA Regulations 20 C.F.R. Part 1002 • OPM Regulations 5 C.F.R. Part 353

15. Significant Provisions • Provides detailed guidance for determining the proper reemployment position • Provides for express coverage of National Disaster Medical System (NDMS) appointees. • Provides clear authoritative guidance on USERRA’s health plan and pension provisions • Explains reinstatement rights of returning disabled employees. • Describes DOL’s compliance assistance initiatives • Describes DOL’s role in enforcing USERRA

16. Employer’s Obligations • Let them notify you • Let them go • Treat military service as if on (non-paid) leave or furlough • Understand that covered employee may waive only non-seniority rights of employment, even if “waiver” appears broader • Allow employee to use accrued leave during period of service • Promptly Reemploy • Place returning employee in position he/she would have been in if continuously employed

17. Employer’s Obligations • Employers must give notice of USERRA rights to persons entitled to such rights • Must use DOL’s text • May use DOL’s poster or other means • Effective March 10, 2005 38 U.S.C. 4334 See 70 Fed. Reg. 12,106 (2005)

19. Narrowly ConstruedEmployer Defenses • Impossible or Unreasonable because of changed circumstances • Undue hardship • Brief, Nonrecurrent period

20. How to avoid a violation • Discipline in real time. Provide immediate performance feedback to employees. • Document without any discriminatory references. Never document or make references to protected characteristics or activities (military leave, whistleblowing, etc.) in relation to an employee’s performance. Doing so can create an inference of discrimination and/or retaliation. • Express no hostility about employees engaged in military duties. • Look at your watches, calendars & sun dials. Map out the protected leave dates and the proposed employment action date(s) on a timeline. • Try a “welcome home” approach. Think about this being the first response rather than the an adverse employment action followed by lawsuits, bad press and hard feelings.

21. Enforcement • State and Private Employers: U.S. Attorney General • Representation may be provided by DOJ • Option of filing directly in U.S. district court having jurisdiction or, if against the state, a state court

22. Remedies • Injunctive relief • Lost wages and benefits • Liquidated damages (2X) for willful • Attorney fees and costs (for plaintiff) • No declaratory judgments • No State statute of limitations 38 U.S.C §§ 4323-24

23. USERRA RESOURCES VETS homepage • www.dol.gov/vets/ USERRA e-laws advisor • www.dol.gov/elaws/userra.htm National Committee for Employer Support of the Guard and Reserve • www.esgr.org/ Call us: • 1-866-4-USA-DOL Contact VETS state director U.S. Dept of Labor/VETS 150 Des Moines St. Des Moines, Iowa 50309 (515) 281-9061

24. Conclusion • The goal: reemploy to the position and with the benefits that the person would have had but for the service (escalator principle) • Construe the statute liberally for the benefit of those who serve their country • Questions?