The employer cannot require that vacation or other personal leave be used. Disabilities Incurred or Aggravated While in Military Service. 5. The person cannot be required to pay more than 102 percent of the full premium for the coverage. 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. 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. (This is often referred to as the “escalator principle.”) This may result in a … 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 … This period will apply regardless of the length of the person’s absence. Federal government websites often end in .gov or .mil. Generally, the employee must be given the position she would have held had she remained continuously employed. Employers are prohibited from retaliating against anyone (whether or not they have performed military service) who: whether or not the person has performed military service. USERRA also applies to all United States employers operating in Foreign countries. (A) In the job the person would have held had the person remained continuously employed, so long as the person is qualified for the job or can become qualified after reasonable efforts by the employer; Section 4313 (a) (1) (A), or. See Title 42, U.S. Code, Section 300hh-11(d). Protection from Discrimination and Retaliation. See 38 U.S.C. The position may not necessarily be the same job the person previously held. 2. case was not the only early court case on service member reemployment rights. If a person does not provide satisfactory documentation because it is not readily available or does not exist, the employer still must promptly reemploy the person. Section 12304. The giving of notice is otherwise impossible or unreasonable. 8. For instance, if the person would have been promoted with reasonable certainty had the person not been absent, the person would be entitled to that promotion upon reinstatement. 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). Filing of complaints with VETS is optional; the employee may freely choose to pursue a claim with private counsel (Section 4322). If the employee cannot become qualified for either position described in (A) or (B) above: in any other position that most nearly approximates the above positions (in that order) that the employee is qualified to perform with full seniority. Its military leave and reemployment provisions apply to all employees absent from work because of service in the uniformed services. For example, as a result of the attacks on the World Trade Center in New York City, President Bush declared that a national emergency existed and members of the Ready Reserve were called to active duty. application of the escalator principle. 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. He sued, claiming that USERRA’s escalator principle required FedEx to pay him the bonus based on his anticipated training level had he not left work for military service. the person’s application for reemployment is timely; the person has not exceeded the five-year service limitation; and. Unpaid leave for state active duty or drills with reinstatement according to the escalator principle. 7. 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. These include requirements that employers restore employees to work following certain military leaves. 3. •USERRA escalator principle still applies. 1. In Rivera-Melendez v. Pfizer Pharmaceuticals, LLC, the US Court of Appeals for the First Circuit vacated the district court's judgment, holding that the "escalator principle" and "reasonable certainty" test governing reinstatement claims under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) apply to non-automatic, "discretionary" promotions. The ban is broad, extending to most areas of employment, including: The law prohibits discrimination against past members, current members, and persons who apply to be a member of any of the branches of the uniformed services. In deciding whether an individual is an independent contractor, the following factors need to An application for reemployment must be submitted to the employer no later than 14 days after completion of a person’s service. 866.512.2465. Duty performed by intermittent employees of the National Disaster Medical System (NDMS), which is part of the Department of Health and Human Services, when activated for a public health emergency, and approved training to prepare for such service (added by Pub. .agency-blurb-container .agency_blurb.background--light { padding: 0; } Employment discrimination because of past, current, or future military obligations is prohibited. The regulations that implement the USERRA specifically state that “the escalator principle may cause an employee to be reemployed in a higher or lower position, laid off, or even terminated.” Lance Corporal Jones is not exempted from bad things, like layoffs or reductions in force, that #and#4318. .manual-search ul.usa-list li {max-width:100%;} Section 4311(a). Arkansas : USERRA rights apply for state active duty. 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. USERRA applies to all U.S. employers, regardless of size. An official website of the United States government. (A) In the job the person would have held had the person remained continuously employed, or a position of like seniority status and pay so long as the person is qualified for the job or can become qualified after reasonable efforts by the employer; Section 4313 (a) (2) (A), or. #views-exposed-form-manual-cloud-search-manual-cloud-search-results .form-actions{display:block;flex:1;} #tfa-entry-form .form-actions {justify-content:flex-start;} #node-agency-pages-layout-builder-form .form-actions {display:block;} #tfa-entry-form input {height:55px;} USERRA . 2. 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. Did the employer make reasonable efforts to train or otherwise qualify a returning service member for a position within the organization/company? 11. A reduction-in-force that would have included the person would be an example. A notice of intent not to return can waive only leave-of-absence rights and benefits. Protections. Generally, the employee must be given the position she would have held had she remained continuously employed. Benefits, including insurance, paid time off, vacation, etc. Reemployed service members are entitled to the seniority and all rights and benefits based on seniority that they would have attained with reasonable certainty had they remained continuously employed. Call 1-800-336-4590 or visit www.esgr.org. However, such contributions have to be made promptly for persons who are absent for 90 or fewer days. Service required beyond five years to complete an initial period of obligated service – Section 4312 (c) (1). 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. 7. Ordered to involuntary service, or retained on active duty during domestic emergency or national security related situations – Section 4312 (c) (4) (A). 6. The USERRA Code of Federal Regulations has this to say about the escalator principle: The principle behind the escalator position is that, if not for the period of uniformed service, the employee could have been promoted (or, alternatively, demoted, transferred, or laid off) due to intervening events. p.usa-alert__text {margin-bottom:0!important;} If the person could not be qualified in a similar position, did the employer place the person in any other position of lesser status and pay which he/she was qualified to perform with full seniority? 2. The law requires employees to provide their employers with advance notice of military service, with some exceptions. 4 . USERRA’s “escalator principle” is unique among employee leave protections. Understanding the Escalator Principle Under USERRA The basic concept behind USERRA’s escalator principle is that employees should not be disadvantaged as a result of serving in the military. Under the escalator principle the employee may also be placed in a lower position or even laid off (for example, if the company went through reorganization or layoffs during the employee’s military service). The law authorizes VETS to subpoena the attendance and testimony of witnesses and the production of documents relating to any matter under investigation. Subsequent case law would wrestle with what benefits of employment were tied to seniority. An application for reemployment must be submitted to the employer no later than 90 days after completion of a person’s military service. In other words, the escalator can move up or down. The Secretaries of the various military branches each have authority to designate a military operation as a critical mission or requirement. This concept is known as the “escalator principle.” How To File A USERRA Complaint But the employer can require the employee to report for the 6:00 a.m. shift the next morning. Separation from the service with a dishonorable or bad conduct discharge. Under the escalator principle the employee may also be placed in a lower position or even laid off (for example, if the company went through reorganization or layoffs during the employee’s military service). USERRA’s “escalator principle” is unique among employee leave protections. .news-button {display:none;} The Uniformed Services Employment and Reemployment Rights Act (USERRA) contains an “escalator principle” which requires that employers place service members returning to work into the position the service member would have had but for his or her service–the “escalator position.” In other words, if an employee would have been a supervisor had he not been […] See 5 CFR Part 353. USERRA provides that returning service-members are reemployed in the job that they would have attained had they not been absent for military service (the long-standing "escalator" principle), with the same seniority, status and pay, as well as other rights and benefits determined by seniority. Employers must provide refresher training, and any other training necessary to update a returning employee’s skills so that he or she has the ability to perform the essential tasks of the position. USERRA modifies the common rule of at-will employment. Relevant to Layoffs. 2. For example, an employer cannot require a service member who returns home at 10:00 p.m. to report to work at 12:30 a.m. that night. 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. Persons ordered to involuntary active duty for operational missions would be covered by the fourth exemption. .manual-search-block #edit-actions--2 {order:2;} The escalator goes down as well as up. Except with respect to persons who have a disability incurred in or aggravated by military service, the position into which a person is reinstated is based on the length of a person’s military service. Some military specialties, such as the Navy’s nuclear power program, require initial active service obligations beyond five years. The U.S. Office of Personnel Management has issued regulations that apply specifically to Federal executive agencies. Ordered to service, or to remain on active duty (other than for training) because of a war or national emergency declared by the President or Congress – Section 4312 (c) (4) (B). Did you notify the employer that you would be leaving the job for military training or service? Reemployment of a person is excused if an employer’s circumstances have changed so that reemployment of the person would be impossible or unreasonable. An interactive system, The USERRA Advisor, answers many of the most-often-asked questions about the law. This category includes service not only by persons ordered to involuntary active duty, but also service by volunteers who receive orders to active duty. 2. 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. Required training for Reservists and National Guard members – Section 4312 (c) (3). The employer does have in its favor the principle that an indefinite leave of absence with no reasonably certain end date or range is not a reasonable accommodation. Did the employer provide health coverage upon request of a service member whose leave was more than 30 days? 4. #block-googletagmanagerheader .field { padding-bottom:0 !important; } Copyright © 2020 Pilot Law Corp, P.C. 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. •If SM cannot perform duties of escalator position after employer’s reasonable efforts, then should be If the disabled person cannot become qualified for the reemployment position despite reasonable efforts by the employer to accommodate the employee, and qualify him or her to perform the duties of the position, the employee must be reemployed in a position according to the following priority: (a) a position that is equivalent in seniority, status, and pay to the escalator position, or (b) a position that is the nearest approximation to the equivalent position, consistent with the circumstances of the employee’s case. However, service members cannot be forced to use vacation time for military service. Most types of service will be counted in the computation of the five-year period. Once a service member is reemployed, USERRA provides guidelines on what position she is entitled to. The . The employee must be qualified to perform the duties of this position or be able to become qualified to perform them with reasonable efforts by the employer. Separation from the service under other than honorable conditions. •USERRA requires employer make reasonable efforts to accommodate service-incurred disability. Information about USERRA is also available on the Internet. The Secretary of Labor issued USERRA regulations covering private and state employers written in a plain English question-and-answer format. No court fees or costs may be charged to anyone who brings suit. On the other hand, a right or benefit is not seniority-based if it is compensation for work performed or is made available without regard to length of employment. 20 CFR §1002.42 . The two-year period will be extended by the minimum time required to accommodate a circumstance beyond an individual’s control that would make reporting within the two-year period impossible or unreasonable. Section 4318 (b) (1) / 20 CFR 1002.261. If a person’s health plan coverage would terminate because of an absence due to military service, the person may elect to continue the health plan coverage for up to 24 months after the absence begins or for the period of service (plus the time allowed to apply for reemployment), whichever period is shorter. 11. The reemployment position may involve transfer to another shift or location, more or less strenuous working conditions, or changed opportunities for advancement, depending upon the application of the escalator principle. Disability Provisions, Cont’d. The . USERRA applies to virtually all employers, regardless of size, including the Federal Government. The Uniformed Services Employment and Reemployment Rights Act (USERRA) contains an “escalator principle” which requires that employers place service members returning to work into the position the service member would have had but for his or her service–the “escalator position.” In other words, if an employee would have been a supervisor had he not been… On the other hand, depending on economic circumstances, reorganizations, layoffs, etc., the position could be at a lower level than the one previously held, it could be a different job, or it could conceivably be in layoff status. USERRA FACT SHEET NGAUS Legislation Benefits Helpful Links NGAUS Notes USERRA Military Forms Golf Courses Guard & Reserve Links Guard & Reserve Articles The Uniformed Services Employment and Reemployment Rights Act (USERRA), provides job protection and rights of reinstatement to employees who participate in the National Guard and Reserve. 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. When requested by your employer, did you provide readily available documentation showing eligibility for reemployment? While the FMLA requires employers to reinstate workers to the same or an equivalent position upon return from leave, USERRA generally requires employers to rehire eligible service members in an “escalator position.” those who go on military leave do not suffer upon reemployment because of it, five conditions on which reemployment hinges. 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). 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