Disabilities Incurred or Aggravated While in Military Service. Required training for Reservists and National Guard members – Section 4312 (c) (3). Did you hold a job other than one that was brief, nonrecurring? Did you notify the employer that you would be leaving the job for military training or service? ), 4. •USERRA requires employer make reasonable efforts to accommodate service-incurred disability. The giving of notice is otherwise impossible or unreasonable. 7. The escalator principle requires that a returning servicemember be given the status he would have been “reasonably certain” to have attained absent the leave for military service. USERRA provides that a returning employee is entitled to all the rights and benefits, including promotions, to which he or she would have been entitled if he or she had never left to participate in uniformed service. Separation from the service under other than honorable conditions. California : Unpaid leave for state active duty with reinstatement for all full-time employees and part time employees when there is an open position. This concept is known as the “escalator principle.” Call 1-800-336-4590 or visit www.esgr.org. If the Attorney General is satisfied that a complaint is meritorious, the Attorney General may file a court action on the complainant’s behalf. The person without the superior right is entitled to employment with full seniority in a position that provides similar seniority, status, and pay in the order of priority that normally determines a reemployment position. Reemployment rights extend to persons who have been absent from a position of employment because of “service in the uniformed services.” “Service in the uniformed services” means the performance of duty on a voluntary or involuntary basis in a uniformed service, including: The ”uniformed services” consist of the following [20 CFR 1002.5 (o)]: This USERRA QuickSeries reference guide is intended primarily for non-Federal employees and employers. Reinstatement after weekend National Guard duty will generally be the next regularly scheduled working day. Returning service-members are to be reemployed in the job that they would have attained had they not been absent for military service, this is known as the "escalator principle" (See FISHGOLD v. •USERRA escalator principle still applies. Employers must make reasonable efforts to qualify a returning service member for the reemployment position. The following three-part reemployment scheme is required for persons with disabilities incurred or aggravated while in military service. This concept is known as the “escalator principle.” How To File A USERRA Complaint However, if, after reemploying the person, documentation becomes available that shows one or more of the reemployment requirements were not met, the employer may terminate the person and any rights or benefits that may have been granted. Section 4312 (d) (1) (B) / 20 CFR 1002.139 (b) / 20 CFR 1002.5 (n), Employers are excused from making efforts to qualify returning service members or from accommodating individuals with service-connected disabilities only when doing so would be of such difficulty or expense as to cause “undue hardship.”, Exception for “Brief Non-Recurrent Positions”, Section 4312 (d) (1) (C) / 20 CFR 1002.139 (c). Notwithstanding the escalator principle, the regulations emphasize that USERRA does not require an employer to reinstate a returning service member in an employment position if the returning service member is not qualified to perform the civilian job, although the employer is obligated to make reasonable efforts to assist the returning employee to become qualified for employment. The reemployment position with the highest priority in the reemployment schemes reflects the “escalator” principle that has been a key concept in federal veterans’ reemployment legislation. See Title 42, U.S. Code, Section 300hh-11(d). An excellent site to research USERRA issues, for example, the application of the “escalator principle” go to www.servicemembers-lawcenter.org, where you will find more than 700 articles, mostly about USERRA, some 112 of which were added in 2011 alone. The reporting or application deadlines are extended for up to two years for persons who are hospitalized or convalescing because of an injury or illness incurred or aggravated during the performance of military service. The escalator principle requires that a returning servicemember be given the status he would have been "reasonably certain" to have attained absent the leave for military service. Service required beyond five years to complete an initial period of obligated service – Section 4312 (c) (1). Army, Navy, Marine Corps, Air Force and Coast Guard, Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve and Coast Guard Reserve, Army National Guard and Air National Guard, Commissioned Corps of the Public Health Service, Any other category of persons designated by the President in time of war or emergency, Military necessity prevents the giving of notice; or. For example, the five-year limit will not be applied to members of the Navy or Marine Corps whose obligated service dates expire while they are at sea. Did you make an application or report back to the pre-service employer in a timely manner? Its military leave and reemployment provisions apply to all employees absent from work because of service in the uniformed services. In such cases, the person will be subject to the employer’s established rules governing unexcused absences. An employer is not required to reemploy a person if the pre-service position was for a brief or non-recurrent period and there was no reasonable expectation that employment would continue indefinitely or for a significant period. Employment discrimination because of past, current, or future military obligations is prohibited. The National Committee for Employer Support of the Guard and Reserve (ESGR) is a Department of Defense agency that provides free USERRA education, consultation and, if necessary, informal mediation services. (This is often referred to as the “escalator principle.”) This may result in a … This is not a publication of the U.S. Department of Labor. Service by members who are ordered to active duty in support of a “critical mission or requirement” of the uniformed services as determined by the Secretary involved – Section 4312 (c) (4) (D). 866.512.2465. Cause for discharge may be based on conduct or the application of legitimate nondiscriminatory reasons. Employers are also free to provide the notice to employees in other ways that will minimize costs while ensuring that the full text of the notice is provided (e.g., by handing or mailing out the notice, or distributing the notice by e-mail). case was not the only early court case on service member reemployment rights. Washington, DC 20210 See 20 CFR 1002.225. application of the escalator principle. p.usa-alert__text {margin-bottom:0!important;} 3. Depending on the circumstances, the escalator principle may cause an employee to be reemployed in a higher or lower position, laid off, or even terminated. If, due to no fault of the employee, timely reporting back to work would be impossible or unreasonable, the employee must report back to work as soon as possible after the expiration of the 8-hour period. 5. USERRA also applies to all United States employers operating in Foreign countries. The person must report to his or her employer by the beginning of the first regularly scheduled work period that begins on the next calendar day following completion of service, after allowance for safe travel home from the military duty location and an 8-hour rest period. div#block-eoguidanceviewheader .dol-alerts p {padding: 0;margin: 0;} 17 days annual unpaid leave for training. Aspects of the law may change over time. If, prior to leaving for military service, an employee knowingly provides clear written notice of an intent not to return to work after military service, the employee waives entitlement to leave-of-absence rights and benefits not based on seniority. A notice of intent not to return can waive only leave-of-absence rights and benefits. Specific questions should be addressed to the State director of the Veterans’ Employment and Training Service listed in the government section of the telephone directory under U.S. Department of Labor. USERRA’s “escalator principle” is unique among employee leave protections. Were you discharged under conditions other than disqualifying under section 4304? If a person has been absent for military service for 91 or more days, an employer may delay treating the person as not having incurred a break in service for pension purposes until the person submits satisfactory documentation establishing reemployment eligibility. An interactive system, The USERRA Advisor, answers many of the most-often-asked questions about the law. 11. When would a person’s service disqualify him or her from asserting USERRA rights? VETS investigates complaints and attempts to resolve them. Award of back pay or lost benefits may be doubled in cases where violations of the law are found to be “willful.” “Willful” is not defined in the law, but a violation is considered willful if the employer’s conduct was knowingly or recklessly in disregard of the law. Under the “escalator principle” and “reasonable certainty” concepts that are incorporated into USERRA, Mr. Rivera should have been considered for the promotion to team leader, said a unanimous three-judge panel. 4 . Pension plans (Section 4318), which are tied to seniority, are given separate, detailed treatment under the law. #block-googletagmanagerheader .field { padding-bottom:0 !important; } On the other hand, reinstatement following five years on active duty might require reassigning or giving notice to an incumbent employee who has occupied the service member’s position. Separation from the service with a dishonorable or bad conduct discharge. The employer bears the burden of proving that the person knowingly waived entitlement to the specific rights and benefits. Employers should keep in mind that USERRA is construed very broadly in favor of the employee/military member, and the escalator principle will always apply … See 38 U.S.C. Regulations for each military branch specify when separation from the service would be considered “other than honorable.”, 3. The law authorizes VETS to subpoena the attendance and testimony of witnesses and the production of documents relating to any matter under investigation. Service members must, at their request, be permitted to use any vacation leave that had accrued before the beginning of their military service instead of unpaid leave.