USERRA Investigator Course: Standardize Procedures, Improve Staff Competency

1. WELCOME USERRA Investigator COURSE

2. Investigator COURSE Goals of Training

3. GOALS OF TRAINING • Standardize Procedures • Improve Staff Competency • Encourage Early Resolution • Enhance Quality of Technical Assistance

4. COMPETENCIESAll Participants will: • Know their role and be able to understand, utilize and implement USERRA law. • Have a knowledge of the documentation and letters utilized throughout case processing process. • Understand the case processing process. • Have an understanding of the investigation concept. • Understand case conferences and know when and how to conduct these conferences.

5. Competencies Continued • Training on how to plan and conduct an effective interview with a variety of witnesses. • Training on how to utilize a variety of communication techniques during an interview. • Training on how to write complete, relevant and accurate notes while interviewing. • Training on how to develop notes into accurate, signed witness statements at the time of the interview

6. Competencies Continued • 10. Training on ethics and confidentiality for investigations in relation to basic issues of confidentiality when talking to any person involved in the investigation process • Training on how and when to negotiate in order to fairly benefit the parties involved and stay within the law • Training on how to keep information and documentation in such a fashion as to support litigation (subpoena, testimony, deposition, etc.)

7. USERRA Distance Phase I Phase II Phase III

8. Phase I • Training to become more knowledgeable about “reasonable accommodation” with regard to resources, rights and application • Training on ethics and confidentiality for investigations in relation to my personal liability in doing investigation • Training on how to determine when and what information should be shared with all parties Distance Learning Objectives (Cont:)

9. Phase I • Training on ethics and confidentiality for investigations in relation to legal requirements under the code of ethics for federal employees • Training on ethics and confidentiality for investigations in relation to my role as a public employee Distance Learning Objectives (Cont:)

10. Phase I • 6. Training to become knowledgeable about applicable laws as they apply to witnesses • Training to become knowledgeable about the information employers are required to maintain Distance Learning Objectives

11. Phase II 8. Training on how to write in a clear, accurate, legal manner in order to refer cases for litigation 9. Training on how to write letters appropriate for investigations Distance Learning Objectives

12. Phase III • Training on how to analyze documents and recognize the need for additional information • Training on how to evaluate evidence to ensure that all issues have been addressed Distance Learning Objectives

13. Investigator COURSE USERRA

14. USERRA OVERVIEW Subchapter I – General 4301-4304 •     Purpose of Congress •     Relation to other law, plans or agreements •     Definitions •    Character of Service

15. USERRA OVERVIEW Subchapter II- Employment and Reemployment Rights and Limitations; Prohibitions 4311-4319 •        Discrimination •        Reemployment Rights •        Reemployment positions •        Reemployment Federal Government •        Reemployment of Certain Federal Agencies •        Rights, Benefits and Obligations •        Health Plans •        Pension • Rights in Foreign Countries

16. USERRA OVERVIEW Subchapter III- Procedures for Assistance, Enforcement, and Investigation 4321-4327 • Assistance in obtaining reemployment or other employment rights • Enforcement of employment or reemployment rights • Enforcement to a state or private employer • Enforcement of rights with Federal Executive agencies • Enforcement of rights with certain Federal agencies • Conduct of investigations; subpoenas • Noncompliance of Federal officials with deadlines

17. USERRA OVERVIEW Subchapter IV – Miscellaneous Provisions 4331-4335 •     Regulations •     Reports • Outreach • Notice of rights and duties • Training for Federal executive agency

18. Pinpointing Law: Certain Federal Agencies, not under Judicial review • 4315(c )(3)/353.102 Multi-employer health plan where sponsor does not provide -- it is the last employer employing • 4317(a)(3)(B)(i)/1002.170 Successor-in-interest factor, similarity of jobs • 4303(4)(D)(i)(IV)/1002.35

19. Regulations Overview (20 CFR) • General Provisions • Subpart B –Anti-Discrimination and Anti-Retaliation • Subpart C – Eligibility for Reemployment • Subpart D – Rights, Benefits, and Obligations of Persons Absent from Employment Due to Service in the Uniformed Services • Subpart E – Reemployment Rights and Benefits • Subpart F – Compliance Assistance, Enforcement and Remedies

20. Regulations Overview (5 CFR) • Subpart A – General Provisions • Subpart B – Uniformed Service • Subpart C – Compensable Injury

21. Scenario Jacob works for Friends Shoe Manufacturing Company when he decides to join the military on December 18, 2014, Jacob gives notice to Friends that he is leaving to enter the military. After 4 years, Jacob returns to find that the company is now owned by Pals Jeans Manufacturing Company. As many of Friends’ employees were hired by Pals, Jacob makes proper application to Pals. Pals refuses to hire Jacob because he did not give notice to them before he went into the military and Friends did not tell them of a potential reemployment rights claim.

22. Does VETS investigate? • Successor in interest • TSA Supervisor • TSA employee • Judicial employee • Post Office employee • Employer with 2 employees • Employer with 500 employees

23. Does VETS Investigate? • Legislative employee • FAA employee • FBI, CIA employee • Hiring Hall • State Employee • Foreign Employer with branch in United States • American Company in Foreign country

24. Regulations Subpart B- Anti-Discrimination and Anti-Retaliation/ USERRA section 4311 Sec 1002.18 – What employment actions are protected from discrimination? Sec 1002.19 - What actions are protected from retaliation? Sec 1002.20 – Protects non-service members Sec 1002.21 – Brief non-recurring positions Sec 1002.22 – Burden of Proof Sec 1002.23 – Causal Connection

25. Case Elements for Discrimination Cases • Protected Class Member? • Adverse Employment Action? • Motivating factor or Causal Connection?

26. Similarly Situated • Covered under the same policy • Similar circumstances • Covered within same policy timeframes • Same/Similar Decision-maker Text Text Text Text Text Text Text Text

27. Regulations Subpart C Eligibility for Reemployment/ USERRA section 4312 • Notice (1002.85 to 1002.88) • Cumulative Length of Service (1002.99 to 1002.104) • Timely Reporting Back (1002.115-1002.120) • Character of Service (1002.134-1002.138

28. Regulations Subpart C Eligibility for Reemployment/ USERRA section 4312 • Coverage of Employers and Positions • Sec. 1002.34 to 1002.44 • Coverage of Service in the Uniformed Services • Sec. 1002.54 to 1002.62 • Absences From a Position of Employment Necessitated by Reason of Service in the Uniformed Services • Sec. 1002.73 to 1002.74

29. Regulations Subpart C Eligibility for Reemployment USERRA section 4312d • Changed Circumstances • Undue Hardship • Nonrecurring Position Employer has the Burden of Proof Employer Statutory Defenses 1002.139

30. USERRA Operations Manual WWW.NVTI.UCDENVER.EDU/VITAL

31. Electronic Operations Manual 276 Pages Regulations Included (5 and 20 CFR) Statute Included Usability Search Functions Interactive

32. WWW.NVTI.UCDENVER.EDU/VITAL

33. Thumbnails • View • Navigation Pane • Select multi-view

36. Search Functions WORD • CTRL + F

37. Zoom • CTRL + SCROLL

38. Toolbox Interactive Links for all USERRA Investigator Resources!

39. Issue Codes and Toggle

40. LAW LAB 5 year limit Issue: What sections of Chapter 43? What section of REGS: • 4312 (c) (3) & (4) Sec. 1002.99 & 103

41. Investigator COURSE USERRA