USERRA The Uniformed Services Employment and Reemployment Rights - PowerPoint PPT Presentation

USERRA The Uniformed Services Employment and Reemployment Rights Act of 1994

USERRA Service Members with Disabilities -------------------------------------- Primer on Federal Disability Employment Law Greenville, SC January 24, 2018 Sponsored by Touch the Future, Greenville CAN, Greenville Technical College, Greenville SHRM

WELCOME

R OBERT T RAHAN Senior Investigator Veterans Employment and Training Service, U.S. Department of Labor R OB S NEED Assistant United States Attorney U.S. Attorney’s Office, District of South Carolina

TODAY’S AGENDA o S.C. Military & Veterans Community o USERRA Overview o The ADA and USERRA o Enforcing USERRA o Quiz/Review o USERRA Resources (1) SC MILITARY & VETERANS COMMUNITY (2) USERRA Overview (3) The ADA and USERRA

SOUTH CAROLINA MILITARY AND VETERANS COMMUNITY

Total S.C. Population (12/2017): 5,000,000+ (5 Million) States with the most active duty and reserve members (May 2016): • California: 190,160 • Texas: 173,118 • North Carolina: 129,049 • Virginia: 117,084 • Florida: 94,288 • Georgia: 88,521 • Washington: 65,731 • New York: 50,824 • South Carolina: 50,426 • Hawaii: 49,347 • Maryland: 49,187 (1) South Carolina Veterans Military - Stats

Active Duty Total Active Marine Army Navy Air Force Coast Guard Duty Corps 31,984 8,616 6,899 8,246 7,502 721 (1) South Carolina Veterans Military - Stats

Reserve Forces Total Air Force Air Nat’l Army Army Coast Marine Reserve Navy Guard Guard Reserves Guard Corps Forces 18,442 2,287 1,327 9,314 4,311 169 427 607 (1) South Carolina Veterans Military - Stats

Veterans with Disabilities Veterans • 385,471 (2014 Estimate) • Veterans Service-Connected Disability: In 2014, the percentage of working-age civilian veterans with a VA determined Service-Connected Disability was 27.3 percent in SC. (1) South Carolina Veterans Military - Stats

USERRA OVERVIEW

Prohibits employment discrimination on basis of past military service or current or future military obligations Protects reemployment rights for individuals who leave their civilian employment to perform military service Provides right to file a complaint with the Department of Labor and potential for representation by the Department of Justice

USERRA Coverage and Applicability

“ It is the sense of Congress that the Federal • All private Government should be a employers model employer • Federal, state, and in carrying out the local governments provisions of [USERRA ].” 38 U.S.C. § 4301(b) Covered Employers

• Prohibits discrimination and harassment • Prohibits retaliation • Provides for prompt reemployment following uniformed service • Ensures certain continued benefits during military service Basic Protections

1. Before hiring 2. While employed 3. When service member gives notice 4. While absent 5. When service member returns (i.e., reemployment) 6. Ongoing protections Stages of Protection

For reemployment eligibility, the employee must: 1. Leave a civilian job for uniformed service 2. Provide notice prior to service 3. <5 years cumulative military service w/ same employer (exceptions apply) 4. Honorable discharge 5. Report back in a timely manner Reemployment Eligibility

Length of Service Reporting Time < 31 days report for work the first fully scheduled shift after the completion of 8 hrs. rest and recovery 31-180 days Apply w/in 14 days 181 days or more Apply w/in 90 days Reporting Hospitalization or 2 yrs convalescence Back

• 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 Employer’s Obligations

Accept notification of upcoming uniformed service and approve the request Promptly reemploy Place returning employee in the position he/she would have held if continuously employed – escalator position Employer Obligations

• Same seniority, status, and pay, as well as other rights and benefits determined by seniority • Alternative reemployment positions if the service member cannot qualify for the "escalator" position Escalator Position

Requiring Lengthy Return to Work Process  USERRA requires “prompt” reemployment Requiring Written Orders  USERRA permits verbal or written notice Denying Military Leave for Voluntary Service  USERRA includes voluntary duty and inactive duty for training Looking Only at Open Positions  USERRA requires reemployment in escalator position, even if that means bumping someone Common USERRA Claims

Negative Statements About The Leave  Referencing the leave in performance evaluations;  Complaining about constant absences from work;  Complaining about the inconvenience to the organization of accommodating periods of leave Terminating Servicemember While On Leave  Must freeze the disciplinary process while the servicemember is on leave  May continue the discipline upon reemployment Common USERRA Claims

ISSUE ALLEGED Cases Opened by VETS in FY 2013: NUMBER PERCENT USERRA ISSUE Issues Military obligations discrimination 435 38% Reinstatemen t 290 25.3% Raised Other non-seniority benefits 43 3.8% Promotion 83 7.3% Vacation 21 1.8% Under Status 38 3.3% Pay rate 51 4.5% USERRA Reasonable accommodation/ retraining for 6 0.5% non-qualified/non-disabled Discrimination as retaliation for any action 86 7.5% Seniority 36 3.1% Pension 41 3.6% Initial hiring discrimination 78 6.8% Layoff 30 2.6% Special protected period discharge 21 1.8% Health benefits 18 1.6% Reasonable accommodations/retraining for 15 1.3% disabled

• Promotions are required upon reemployment when it is “reasonably certain” that a promotion would have occurred during the military leave • Employer should provide a make-up promotional examination to determine escalator position • Employer must backdate the promotion to a time when it would have accrued “but for” the absence for military duty • Subject to “escalator position” if the employee would have been demoted, laid off, or terminated, then those adverse consequences will be applied to the employee Promotional Claims

• Persons returning to their civilian employer following a period of military service have the right to continue in the civilian employer's pension plan without loss of service time • The employer must contribute equally to the service member’s pension plan as it does to other employees not in the service • Exceptions for defined contribution and defined benefit plans Pension Plans

• Individuals performing military duty of more than 30 days may elect to continue employer sponsored health care for up to 24 months • They may be required to pay up to 102% of the full premium, however • Coverage may cease after the person fails to apply or return to employment once service ends Health Benefits

• NOT required to reemploy if: • A change in the employer’s circumstances would make reemployment impossible or unreasonable • Employer must prove: • Reemploying a person who has • Impossibility incurred a disability during service would impose an • Undue hardship undue hardship on the • Temporary nature employer • The employment was only of brief, nonrecurring nature, and there is no reasonable expectation that employment should continue Employer Rights

• Injunctive relief • Lost wages and benefits • Liquidated damages (2x) for willful violations • Attorney fees and costs (for plaintiff) • No statute of limitations Types of Relief

THE ADA AND USERRA

ADA Returning Service Members ’ Rights under the Americans with Disabilities Act

The ADA protects returning service members with disabilities in various aspects of civilian life including employment and accessibility to public spaces 1. Prohibit discrimination against individuals with disabilities in all employment practices. 2. Ensure that public accommodations are accessible to individuals with disabilities. What does the ADA do?

• What does it mean to be “disabled” under the ADA? • What does it mean to be “disabled” under USERRA? Employment

• USERRA requires employers to go further than the ADA • Reasonable accommodation vs. reasonable efforts to become qualified for a job • What is reasonable? Reasonable Accommodation

• Types of reasonable accommodations: • Written materials in accessible format • Includes job applications and online forms • Interviews/job fairs at accessible locations • Assistive technology devices • Physical modifications to workplace • Modifications to specific job tasks