UNIFORMED SERVICES EMPLOYMENT AND re-employment RIGHTS ACT (USERRA)

1. UNIFORMED SERVICES EMPLOYMENT AND re-employment RIGHTS ACT (USERRA) Mark John Holady,, Attorney at Law, Admitted in Oregon & Washington Captain, Judge Advocate General’s Corps, United States Army Reserve Cur1 JUN 0

2. USERRABriefingOutline • Background • Prerequisites to coverage • USERRA protections • Possible employer defenses • Whom to contact if you have a USERRA-related issue

3. USERRA BackgroundInformation • Enacted in 1994; roots date back to the 1940s • Applies to nearly every U.S. employer, both here and overseas • Implementing authority is the U.S. Department of Labor (DOL) • DOL prescribed regulations implementingUSERRA in December 2005

4. USERRA Background Information In general, USERRA: Prohibits employment discrimination on basis of past military service, and current or future military obligations Protects re-employment rights for persons absent from employment because of military service Preserves benefits for persons absent from employment because of military service

5. Prerequisites for Coverage • Civilian job • Absence due to military service • Advance notice to employer • Military service cannot exceed 5 years • Separation under honorable conditions • Report back in a timely manner

6. Civilian Job • Claimant must be “employed by someone else” • USERRA does NOT cover persons who are: • Self-employed • Employed for brief, non-recurrent periods • Independent contractors; or • Students

7. Absence Due to Military Service • “Service in the uniformed services” includes: • Active and Reserve components of the Armed Forces of the United States (to include National Guard duty under federal authority); • Public Health Service; • As designated by President in emergencies • Voluntary or involuntary call-ups; • Intermittent disaster response service/training • USERRA does NOT cover national guard duty in state status for disaster relief, riots, et cetera.

8. Was Advance Notice toSoldier’s Employer? • Notice can be either oral or written BUT Should be in writing to protect all parties • No time-frame specified in USERRA BUT Dept. of Defense recommends at least 30 days • Exception to notice requirement: “military necessity” or “unreasonableness”

9. The 5-Year Rule: Period of military service cannot exceed 5 cumulative years • BUT • The 5-year rule does NOT include: • Inactive Duty Training (weekend drills), Annual Training (2- week summer training), involuntary recall/retention, and/or service in time of partial mobilization, full mobilization, or presidential selected reserve call-up • OR • Periods of military service with previous civilian employer; • there is a separate 5-year clock for each employer Military Service Cannot Exceed 5 Years

10. Discharge Characterization No USERRA rights if: • Dishonorable or Bad Conduct Discharge (enlisted) • Dismissal (officers) (v. resignation) • Under Other Than Honorable Conditions discharge • Dropped from rolls (absent without leave)

11. Discharge Characterization What about a retroactive upgrade? • USERRA applies, and employee gets reinstated • Employee does not, however, get back pay

12. Timely Reporting • Service period up to 30 days: Soldier reports to work after safe travel + 8 hours (i.e. a good night’s rest) • 31 - 180 days: Soldier submits application for re-employment w/in 14 days • 181 days or more: submit application for re-employment w/in 90 days • If Soldier does not comply with the above timelines, normal employer rules apply

13. Timely Reporting • Disabled / Impaired due to military service: • Have up to 2 years to request reinstatement • Employer must make “reasonable accommodations” unless doing so results in an undue hardship

14. USERRA Protections • Protection from discrimination due to military status • Prompt re-employment / training • Accrued seniority • Health insurance coverage • Special protection from discharge

15. Anti-Discrimination Provision “A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be deniedemployment, re-employment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership. . . .”

16. Benefit or Benefit of Employment “[A]ny advantage, profit privilege, gain, status, account, or interest (other than wages or salary for work performed) that accrues by reason of an employment contract or agreement or an employer policy, plan, or practice and includes rights and benefits under a pension plan, a health plan, an employee stock ownership plan, insurance coverage and awards, bonuses, severance pay, supplemental unemployment benefits, vacations, and the opportunity to select work hours or location of employment.”

17. Prompt Re-Employment • USERRA: an employee who meets the criteria “upon completion of a period of service in the uniformed services, shall be promptly reemployed in a position of employment.”

18. Prompt Re-Employment • USERRA: “a position of employment” • Period of service fewer than 91 days • Period of service more than 90 days • Training for the Soldier’s position • Disability: any other position which is equivalent in seniority, status, or pay, or position that is the nearest approximation to that equivalent

19. Seniority “A person who is re-employed under this chapter is entitled to the seniority and other rights and benefits determined by seniority that the person had on the date of the commencement of service in the uniformed services plus the additional seniority and rights and benefits that such person would have attained if the person had remained continuously employed.

20. Escalator Principle: • Employeeput back on seniority escalator at same point he or she would have been had he or she remained continuously employed Escalator Principle

21. Health Insurance Coverage If the Soldier had a health plan, the Soldier is allowed to continue coverage for the least of the following time periods: • 24-month period beginning on date of service-related absence; • Period beginning on date of service-related absence and ending on date employee fails to return to employment under USERRA guidelines

22. Health Insurance Coverage If the Soldier elects to continue coverage, he or she must pay the following depending on the length of service: • Under 31 days: regular employee share of premiums • 31 or more days: no more than 102% of the full premium under the plan • Employee share • Employer share • 2% administrative costs

23. Grace Period – Can’t be discharged from employment (except for cause) • < 30 days – no grace period • 31-180 days – 180 day grace period • >180 days – 1 year grace period Special Protection From Discharge

24. Employee can’t be forced to use vacation time to perform military service • Employer, not employee, responsible for covering employee’s shift/job (i.e. finding replacement) • Pension Benefits: • Time performing military service counts toward pension “time” requirements; • Soldier must make contributions if that is part of plan Miscellaneous ProtectionsSome “little known facts.”

25. Employer Defenses • Employer change in circumstances (“Impossibility Defense”) • Undue hardship on employer • Brief and non-recurrent employment • Burden of Proof: On employer

26. USERRA Contacts • Employer Support of the Guard & Reserve • www.esgr.org • U.S. Dept. of Labor Veterans' Employment & Training Service (VETS) • http://www.dol.gov/VETS/ • Local Staff Judge Advocate Office • Oregon Army National Guard, 776 Militia Way, Salem, OR 97309

27. Private Lawsuit to Enforce USERRA If the Soldier decides not to use ESGR, VETS, or Attorney General assistance, he or she can still file a private lawsuit • State employee, file suit in state court • Private employee, file suit in federal court • Federal employee, special rules apply

28. Legal Assistance Attorney (JAG) • A Soldier can contact legal assistance JAGs for informational purposes only • AR 27-3, Para. 3-6e(2)(a): legal assistance attorneys cannot take action which could be construed as representation on a USERRA case. DOL and DOJ WILL NOT pursue relief in a USERRA case if the service member is represented by an attorney • Legal assistance attorneys may assist with redress exclusively in State courts or State agencies

29. Conclusion • Know the USERRA rights and obligations • Keep the employer informed • Know whom to contact if you have a USERRA-related problem or issue • Mark J. Holady mark@holadylaw.com 4800 SW Griffith Drive, #320 Beaverton, OR 97005 (503) 646-5454