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

ROBERT TRAHAN Senior Investigator Veterans Employment and Training Service, U.S. Department of Labor ROB SNEED Assistant United States Attorney U.S. Attorney’s Office, District of South Carolina

TODAY’S AGENDA

• S.C. Military & Veterans Community
• USERRA Overview
• The ADA and USERRA
• Enforcing USERRA
• Quiz/Review
• USERRA Resources

(1) SC MILITARY & VETERANS COMMUNITY (2) USERRA Overview (3) The ADA and USERRA

SOUTH CAROLINA MILITARY AND VETERANS COMMUNITY

(1) South Carolina Veterans Military - Stats

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 Duty Army Navy Marine Corps Air Force Coast Guard 31,984 8,616 6,899 8,246 7,502 721

(1) South Carolina Veterans Military - Stats

Reserve Forces

Total Reserve Forces Air Force Air Nat’l Guard Army Guard Army Reserves Coast Guard Marine Corps Navy 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.

USERRA OVERVIEW

Prohibits employment discrimination on basis of past military service or current or future military

• bligations

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

Covered Employers

• All private

employers

• Federal, state, and

local governments

“It is the sense of Congress that the Federal Government should be a model employer in carrying out the provisions of [USERRA].” 38 U.S.C. § 4301(b)

Basic Protections

• Prohibits discrimination and harassment
• Prohibits retaliation
• Provides for prompt reemployment following

uniformed service

• Ensures certain continued benefits during

military service

Stages of Protection

• 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

Reemployment Eligibility

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

Reporting Back

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 Hospitalization or convalescence 2 yrs

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
• r other means

Employer 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

Escalator Position

• 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

Common USERRA Claims

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
• rganization 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

Cases Opened by VETS in FY 2013: USERRA ISSUE ISSUE ALLEGED NUMBER PERCENT Military obligations discrimination 435 38% Reinstatement 290 25.3% Other non-seniority benefits 43 3.8% Promotion 83 7.3% Vacation 21 1.8% Status 38 3.3% Pay rate 51 4.5% Reasonable accommodation/ retraining for non-qualified/non-disabled 6 0.5% 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 disabled 15 1.3%

Issues Raised Under USERRA

Promotional Claims

• 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

Pension Plans

• 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

Health Benefits

• 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

Employer Rights

• NOT required to reemploy if:
• A change in the employer’s

circumstances would make reemployment impossible or unreasonable

• Reemploying a person who has

incurred a disability during service would impose an undue hardship on the employer

• The employment was only of

brief, nonrecurring nature, and there is no reasonable expectation that employment should continue

• Employer must prove:
• Impossibility
• Undue hardship
• Temporary nature

Types of Relief

• Injunctive relief
• Lost wages and benefits
• Liquidated damages (2x)

for willful violations

• Attorney fees and costs

(for plaintiff)

• No statute of limitations

THE ADA AND USERRA

ADA

Returning Service Members’ Rights under the Americans with Disabilities Act

What does the ADA do?

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.

Employment

• What does it mean

to be “disabled” under the ADA?

• What does it mean

to be “disabled” under USERRA?

Reasonable Accommodation

• USERRA requires employers to go further than

the ADA

• Reasonable accommodation vs. reasonable

efforts to become qualified for a job

• What is reasonable?

• Types of reasonable

accommodations:

• Written materials in

accessible format

• Includes job

applications and

• nline forms
• Interviews/job fairs at

accessible locations

• Assistive technology

devices

• Physical modifications

to workplace

• Modifications to

specific job tasks

Accommodation for Disabled Service Members under USERRA

• Medical conditions that arise during service must be

accommodated

• Latent disabilities must be accommodated
• Priority must be given for reemployment positions for employees

with disabilities incurred or aggravated during uniformed service:

• Reasonable accommodation to allow employee to perform

escalator position.

• Reasonable efforts to make employee qualified to perform a

position equivalent to the escalator position.

• Placement in the position that is the “nearest approximation”

to the escalator position in terms of seniority, status, and pay, consistent with the particular employee’s circumstances.

Public Accommodation

• More than 20,000

veterans wounded during service in Iraq and Afghanistan

• Businesses must make

“reasonable modifications” to policies/practices when necessary

ENFORCING USERRA

Where to file a complaint

• ESGR (DoD), which may attempt informal resolution
• USDOL/VETS (also private right of action)
• USDOL/VETS has 90 days to investigate
• Many claims resolved informally at this stage
• If claim unresolved, can seek representation from USDOJ

(private or state employer) or the Office of Special Counsel (OSC) (federal agency employer)

• SOL must make a representation recommendation within

60 days

• Then DOJ/OSC must make a determination within 60 days

• 95 USERRA Lawsuits filed since 2004, 62 since

2009

• 46 U.S. Attorney’s Offices (USAOs) have

participated in the Department’s USERRA/USAO

• program resulting in 35 of the 52 USERRA

lawsuits PRIOR Administration has filed.

DOJ DOJ-US USAO O OVE VERVI VIEW EW

40

DOJ USERRA CASES

DOJ Employment Litigation Section https://www.justice.gov/crt/employment-litigation-section- cases

Pop Quiz!

• Employee just returned from a year-long

deployment in Afghanistan and is ready to come back to work.

• We have asked him for a copy of his DD

Form-214/215 that confirms the Character of Military Service, so we can be certain he served honorably.

• His military unit has not yet issued the

document(s) Can we delay his reinstatement until he can prove his service was honorable?

No, the employer is not permitted to delay or deny reemployment by demanding documentation that does not exist or is not readily available. The employee is not liable for administrative delays in the issuance of military documentation.

I just received word from one of our of employees who is returning from military service. She is ready to start as soon as possible, but her cube is currently being used for storage and it’ll take some time to clean it out. I know that the federal regulations on USERRA allow for 30 days for reinstatement. The employee said she thought it was a 2 week limit.

Do we have 30 days to bring her back?

• No, the employer must promptly reemploy the

employee when he or she returns from a period

• f service if the employee meets the Act’s

eligibility criteria as described in Subpart C of these regulations. 20 C.F.R. § 1002.180

• “Prompt reemployment’’ means as soon as

practicable under the circumstances of each case. Absent unusual circumstances, reemployment must occur within two weeks of the employee’s application for reemployment. 20 C.F.R. § 1002.181

USERRA RESOURCES

USERRA - FEDERAL AGENCIES AND CONTACTS

DOL Veterans’ Employment and Training Service (VETS) https://www.dol.gov/vets/ DOJ Servicemembers and Veterans Initiative (SVI) https://www.justice.gov/servicemembers DOJ SVI Complaint Assistant https://www.justice.gov/servicemembers/webform/welcome- servicemembers-and-veterans-initiative-s-complaint-assistant DOJ – Other SVI Resources https://www.justice.gov/servicemembers/other-resources U.S. Attorney’s Office, District of South Carolina https://www.justice.gov/usao-sc/civil-rights

U.S. Department of Labor Wage and Hour Division, 200 Constitution Avenue, NW, Washington, DC 20210, 1-866-4-

USWAGE (1-866-487-9243) www.dol.gov/whd

OTHER USERRA RESOURCES, LINKS

USERRA Statute (DOJ), https://www.justice.gov/crt-military/userra-statute USERRA Regulations (DOL) https://www.gpo.gov/fdsys/granule/CFR-2011-title20-vol3/CFR- 2011-title20-vol3-part1002 USERRA Final Rules, 20 CFR part 1002 (DOL) https://www.dol.gov/vets/regs/fedreg/final/2005023961.pdf Elaws – USERRA Advisor (DOL) https://webapps.dol.gov/elaws/userra.htm USERRA A Guide to the Uniformed Services and Employment and Reemployment Rights Act (DOL) https://www.dol.gov/vets/programs/userra/USERRA%20Pocket%20Guide.html ESGR Employer Awards https://www.esgr.mil/Employer-Awards/ESGR-Awards-Programs ESGR Employer Support of the Guard and Reserve https://www.esgr.mil/ ESGR USERRA Contact https://www.esgr.mil/USERRA/USERRA-Contact

OTHER USERRA RESOURCES, LINKS

DOL Wage and Hour Division web site at https://www.dol.gov/whd/fmla/

for resources containing information about the FMLA South Carolina Human Affairs Commission (SCHAC) http://www.state.sc.us/schac Equal Employment Opportunity Commission (EEOC) https://www.eeoc.gov/ ADA National Network, Employment Data for Veterans with Disabilities, https://adata.org/factsheet/employment-data-veterans-disabilities Southeast ADA Center, Honor and Celebrate Veterans, https://www.adasoutheast.org/events/11/veterans-day.php

QUESTIONS