ESGR and USERRA “Employers shouldn’t be at work without it!”

1. ESGR and USERRA“Employers shouldn’t be at work without it!”

2. What is ESGR? Employer Support of the Guard and Reserve, ESGR, is a Department of Defense volunteer agency that seeks to promote a culture in which all American employers support and value the military service of their employees. We recognize outstanding support, increase awareness of the law, and resolve conflicts through informal mediation.

3. What is ESGR? • ESGR is a DoD organization under the Deputy Secretary of Defense for Reserve Affairs. • National Headquarters located in Arlington VA. • More than 4,500 volunteers in 55 ESGR committees – one committee in each state, U.S. territory, D.C., & Europe. • 1.2 million Americans serve in the Reserve Forces – Army Reserve, Army National Guard, Navy Reserve, Marine Corps Reserve, Coast Guard Reserve, Air Force Reserve, Air Guard – and make up nearly half the national defense strength

4. ESGR Mission GAIN AND MAINTAIN active support from all public and private employers for the men and women of the National Guard and Reserve as defined by demonstrated employer commitment to employee military service.

5. Who are ESGR Members? Leaders in Business, Government, Academia and all Senior Military Representatives in South Dakota AllVOLUNTEERmembers

6. ESGR Programs Employer Outreach - Bosslifts -Brief the Boss -Statement of Support Military Unit Liaison - Awards Program Ombudsman Program

7. Community Education…. “Bosslifts” • Develop AWARENESS of Reservist’s role in our nation’s defense • Local (1 day) & National (3 day) VISITS to military sites • RECRUIT future SD ESGR members “BRIEFING WITH THE BOSS” Informal lunch/breakfast to learn Reservist’s role in our national defense. Informational exchange with employers Opportunity to learn mission of local unit(s)

8. Statement of Support An opportunity for community leaders and employers to show their support of the National Guard and Reserve.

9. Ombudsman Services A FREE information and mediation service Available to Employers & Reservists Contacts at local & national levels Free USERRA training for HR managers and first line supervisors

10. Uniformed Services Employment and Reemployment Rights Act Title 38 United State Code Chapter 43 US DOL USERRA Code of Federal Regulation 1002.1

11. GENERAL INFORMATION This slide show is intended to provide basic information about USERRA’s provisions. References at the top of the slides are to the applicable section of the law (e.g., 38 U.S.C. 4301). Links at the bottom of the slides are to the applicable section of the Department of Labor’s USERRA regulations (e.g., 20 C.F.R. 1002.1 LINK).

12. DEFINITIONS38 U.S.C. 4303 • The definitions provided in USERRA and the USERRA regulations must be used in interpreting the law • The definitions of some USERRA terms are different from how those terms are commonly used (e.g., Puerto Rico is a “State” for USERRA purposes) 20 C.F.R. 1002.5 [LINK]

13. DISCRIMINATION38 U.S.C. 4311(a) • There is a broad prohibition of employer discrimination on the basis of a person’s membership or application for membership in the service, performance of service, or serviceobligations • Provision applies to all positions of employment, and to offers of employment 20 C.F.R. 1002.18 [LINK]

14. RETALIATION38 U.S.C. 4311(b) • Employers may not retaliate against a person who enforces a USERRA right, testifies, assists in investigation, etc. • USERRA protects an employee from employer retaliation regardless of whether the employee has any past or current military connection 20 C.F.R. 1002.19 [LINK]

15. EMPLOYERS COVERED38 U.S.C. 4303(4) • Virtually all U.S. employers covered, public or private, regardless of size, here and abroad • Foreign employers covered for their employees working at U.S. job sites 20 C.F.R. 1002.34 [LINK]

16. COVERED SERVICE38 U.S.C. 4303(13) • Most types of military service covered • Voluntary or involuntary • Peacetime or wartime • Active and Reserve components • Fitness-for-service examination • National Disaster Medical System 20 C.F.R. 1002.6 [LINK] 20 C.F.R. 1002.56 [LINK] (NDMS info)

17. NATIONAL GUARD SERVICE • USERRA covers NG duty performed under Federal authority • USERRA does not cover NG duty performed under State law (e.g., call-up by the Governor for a natural disaster) • State call-ups generally covered by State law 20 C.F.R.1002.57 [LINK]

18. REEMPLOYMENT ELIGIBILITY38 U.S.C. 4304, 4312 • Certain criteria must be met to be eligible for reemployment following absence for service • Advance notice • 5-year cumulativeservice limit • Timely return or reemployment application • Character of service 20 C.F.R. 1002.32 [LINK]

19. ADVANCE NOTICE38 U.S.C. 4312(a)(1) • May be given to employer by service member or military unit • May be verbal or written • Should be given as far in advance as is reasonable 20 C.F.R. 1002.85 [LINK]

20. ADVANCE NOTICE38 U.S.C. 4312(b) • Notice not required if precluded by military necessity • Notice not required if giving of notice is impossible or unreasonable under all the circumstances 20 C.F.R. 1002.86 [LINK]

21. 5-YEAR SERVICE LIMIT38 U.S.C. 4312(a)(2) • Applies to period of service, not absence • For example, does not apply to period of absence from employment before or after performance of service • Does not include service performed while working for previous employer(s) • Includes some service performed before USERRA was enacted 20 C.F.R. 1002.99 – 1002.102 [LINK]

22. 5-YEAR LIMIT – EXCEPTIONS38 U.S.C. 4312(c) • Specified types of service do not count toward the 5-year limit • obligated service • required training • involuntary service • support of a war, contingency, etc. 20 C.F.R. 1002.103 [LINK]

23. TIMELY RETURN/APPLICATION38 U.S.C. 4312(e) • If service is 30 days or less • Return to work, generally first shift next day after completion of service, with time added for travel and rest • If service is for more than 30 but less than 181 days • Apply within 14 days after service complete • If service is more than 180 days • Apply within 90 days after service complete 20 C.F.R. 1002.115 [LINK]

24. TIMELY RETURN/APPLICATION38 U.S.C. 4312(e) • Reporting/application deadlines can be extended up to 2 years for recovery from illness or injury incurred or aggravated during period of service 20 C.F.R. 1002.116 [LINK]

25. DOCUMENTATION OF SERVICE38 U.S.C. 4312(f) • Upon employer request, employee must present documentation following service of more than 30 days • Documentation establishes employee is eligible for reemployment, i.e. application is timely, five-year limit not exceeded, separation not disqualifying • Cannot delay reemployment while waiting for documentation 20 C.F.R. 1002.121 – 1002.122 [LINK]

26. CHARACTER OF SERVICE38 U.S.C. 4304 • Certain types of discharge or separation from service make an individual ineligible for reemployment under USERRA • Dishonorable or bad conduct discharge • Separated under other than honorable conditions • Dismissed or dropped from the rolls 20 C.F.R. 1002.135 [LINK]

27. BENEFITS DURING SERVICE38 U.S.C. 4316(b) • Employee considered on furlough or leave of absence while performing service • Entitled to non-seniority benefits (e.g., bonuses, life insurance, vacation accrual) given to similarly situated employees on non- military leave of absence 20 C.F.R. 1002.149 [LINK]

28. BENEFITS DURING SERVICE38 U.S.C. 4316(b) • If non-seniority benefits provided by employer vary for different types of non-military leave, service member is to be given most favorable treatment, so long as non-military leave is “comparable” • “Comparability” explained in the DOL USERRA regulations 20 C.F.R. 1002.150 [LINK]

29. VACATION38 U.S.C. 4316(d) • Employee must be permitted to use accrued vacation or similar paid leave while performing service • Employee may not be required to use accrued vacation or similar paid leave while performing service 20 C.F.R. 1002.153 [LINK]

30. HEALTH PLANS38 U.S.C. 4317 • Employee, upon request, entitled to continuation coverage under employer plan during absence for service (up to 24 months max) • Applies to employee and to covered dependents 20 C.F.R. 1002.164 [LINK]

31. HEALTH PLANS38 U.S.C. 4317 • Employee may be required to pay up to 102% of total cost of continuing coverage if period of service is 31 days or more • Employee only pays normal employee share for coverage if period of service is less than 31 days 20 C.F.R. 1002.166 [LINK]

32. HEALTH PLANS38 U.S.C. 4317 • If coverage is terminated during period of service, it must be reinstated immediately upon reemployment • No waiting periods or exclusions permitted, except for exclusions of conditions determined by VA to be service-connected 20 C.F.R. 1002.167 – 1002.168 [LINK]

33. REEMPLOYMENT POSITION38 U.S.C.4313 • Basic entitlement is to the “escalator” position – the position the person would have attained had employment been continuous • Specific position may be different from the “escalator,” depending on circumstances 20 C.F.R. 1002.191 – 1002.193 [LINK]

34. REEMPLOYMENT POSITION38 U.S.C. 4313 • The “escalator” does not always go up. The “escalator” position reflects what would have happened if person had remained at work • The reemployment position could involve a promotion, no change, or even termination depending on circumstances 20 C.F.R. 1002.194 [LINK]

35. REEMPLOYMENT POSITION38 U.S.C. 4313 • In determining proper reemployment position, certain factors must be considered, including • Length of the most recentmilitary service • Qualifications of employee • Any disability incurred or aggravated during service 20 C.F.R. 1002.195 [LINK]

36. REEMPLOYMENT POSITION38 U.S.C. 4313 • If service was less than 91 days • “escalator” position, or, if not qualified, • pre-service position, or, if not qualified, • nearest approximation of “escalator” or pre-service position (in that order) for which the person is or can become qualified 20 C.F.R. 1002.196 [LINK]

37. REEMPLOYMENT POSITION38 U.S.C. 4313 • If service was more than 90 days • “escalator” position (or like position), or, if not qualified, • pre-service position (or like position), or, if not qualified, • nearest approximation of “escalator” or pre-service position (in that order) for which the person is or can become qualified 20 C.F.R. 1002.197 [LINK]

38. DISABLED DURING SERVICE38 U.S.C. 4313 • Employer must make reasonable efforts to accommodate the disability and qualify the employee for reemployment positions in the following order • “escalator” position • position equivalent to “escalator” position • nearest approximation to the above 20 C.F.R. 1002.225 [LINK]

39. PROTECTION FROM DISCHARGE38 U.S.C. 4316(c) • Reemployed person may not be discharged, except for cause • within one year after reemployment if the period of service was more than 180 days; or, • within 180 days after reemployment if the period of service was for more than 30 but less than 181 days 20 C.F.R. 1002.247 [LINK]

40. PROTECTION FROM DISCHARGE38 U.S.C. 4316(c) • Employer has burden to prove a discharge during protected period was for cause • Proper cause can be based on conduct or on other legitimate reason • if conduct, it must be reasonable to discharge an employee for the conduct in question • example of “other legitimate reason” for discharge would be a company downsizing 20 C.F.R. 1002.248 [LINK]

41. PENSIONS38 U.S.C.4318 • Upon reemployment, a returning service member is treated, for pension purposes, as if employment had been continuous • Credit given for purposes of participation, vesting and accrual of benefits • USERRA applies to most pension plans, but not to the Federal Thrift Savings Plan 20 C.F.R. 1002.259 – 1002.260 [LINK]

42. USERRA ASSISTANCE38 U.S.C. 4321 • DOL/VETS provides assistance to any person or entity concerning USERRA rights and benefits • ESGR is VETS’ partner in providing such assistance, especially to Guard and Reserve members, their employers, and the general public 20 C.F.R. 1002.277 [LINK]

43. Local ESGR Contact Information • State Chairman – Donald W. Kelpin • dwkelp@msn.com • 605-361-9650 • CPT Lona Christensen • lona.christensen@us.army.mil • 605-737-6540