Beyond USERRA - OPM Regulations

1. Beyond USERRA - OPM Regulations • 103 • 104 • 106 • 107 • 109 • 205 • 209 5 CFR 353

2. Beyond USERRA - OPM Regulations • 103 TLA 5 CFR 353

3. Beyond USERRA - OPM Regulations • 103 TLA • 104 Notice of Rights - agency obligation 5 CFR 353

4. Beyond USERRA - OPM Regulations • 103 TLA • 104 Notice of Rights - agency obligation • 106 Mechanism for personnel actions/POS 5 CFR 353

5. Beyond USERRA - OPM Regulations • 103 TLA • 104 Notice of Rights - agency obligation • 106 Mechanism for personnel actions/POS • 107 Probationary…as if they never left 5 CFR 353

6. Beyond USERRA - OPM Regulations • 103 TLA • 104 Notice of Rights - agency obligation • 106 Mechanism for personnel actions/POS • 107 Probationary…as if they never left • 109 Transferring – 2nd agency responsible 5 CFR 353

7. Beyond USERRA - OPM Regulations • 103 TLA • 104 Notice of Rights - agency obligation • 106 Mechanism for personnel actions/POS • 107 Probationary…as if they never left • 109 Transferring – 2nd agency responsible • 205 Not timely – not automatically forfeit rights 5 CFR 353

8. Beyond USERRA - OPM Regulations • 103 TLA • 104 Notice of Rights - agency obligation • 106 Mechanism for personnel actions/POS • 107 Probationary…as if they never left • 109 Transferring – 2nd agency responsible • 205 Not timely – not automatically forfeit rights • 209 General RIF rule 5 CFR 353

9. USERRA Assistance and Enforcement Employer has failed only? Complaint in what form? Complaint has merit? Complaint is not resolved? Next step after VETS investigation is not resolved?

10. Enforcement of rights State or Private employer • Who handles the case if referred after from VETS? • Remedies?

11. Enforcement of rights Federal Executive Agencies • Who handles the case? • When can a person go before the “Board” alone? • Remedies? (What is different?) • Appeal Process?

14. Investigative Ethics • Maintain absolute integrity and honesty • Conduct the investigation fairly and without bias • Do not accept anything from either employers or claimants • Do not become emotionally involved • Do not handle cases where relations to self exist • Do not casually discuss cases with other than USERRA personnel • Any questions – consult with supervisor

15. Subpoena Purpose, Issuance, Authority and Enforcement • Purpose: Attendance and testimony of witness and production of documents • Issuance: Signed and issued by RA • Enforcement: Section 4326 or USERRA and 1002.289 of 20 CFR authorizes Federal court action to enforce subpoenas

16. TYPES OF SUBPOENAS • Subpoena Duces Tecum Person or organization to appear, produce designated records • Subpoena Ad Testificandum Individual or corporation to appear, give oral testimony

17. Evidence: Operations Manual • Relevant evidence • Best evidence

18. Analyzing a USERRA Case 1.  Proximity in time 2.  Inconsistencies 3.  Employer’s expressed hostility coupled protected class knowledge 4.  Disparate treatment

19. The whole idea around disparate treatment is that if there are meaningful differences in treatment between two employees in similar positions and circumstances, then the difference in treatment might be attributable to the employer’s intent to discriminate against one of the employees.  The central issue is whether the employer's actions were motivated by his or her intent to discriminate.

20. Similarly Situated Determination: • Covered under the same benefits policy • Covered under the same employee manual • Same/similar decision maker/supervisor • Same employee class, rank, and responsibility • Covered under the same collective bargaining agreement • Same opportunities for advancement • Same general working conditions, location, and hours • Same or similar seniority, skills, and experience

21. Pat worked for Priam in Records Management for 3 years. Pat left a Level 12 position to join the Air Force. After serving in the Air Force, he returned to the Records Management Section and informed his previous supervisor that he wanted to activate his reemployment rights. Since Pat left the position the Section had undergone a RIF and position standard changes. His previous position, along with all other Level 12 positions had been downgraded to 9’s. The agency now required a bachelor’s degree for all 12 positions, which Pat did not have. The agency agreed to place Pat in a 9 position at another location.                

22. Questions… • Does Pat have rights under USERRA? • What happened to others who did not have the degree?