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|Posted: Fri Aug 12, 2005 11:31 pm Post subject: Ombudsman Services Program
|Ombudsman Services and The Law
The ESGR Ombudsmen Services Program was established to address potential problems arising among the nation's employers regarding the phasing out of the "draft" or conscription of people into the military by the Selective Service and the establishment of the all-volunteer force. There was concern that the nation's employers, who were used to some of their employees serving in the National Guard and Reserve as an alternative to compulsory active duty service, might question the necessity of such service in a purely voluntary military system. The Ombudsmen Services Program was established in response. It provides information, counseling, and informal mediation of issues relating to compliance with the Uniformed Services Employment and Reemployment Rights Act (USERRA).
Trained ESGR volunteers and the Ombudsmen Services national staff are available to promptly respond to inquiries and conflicts presented by employees or employers. (see ESGR Resources page of this Web site, ESGR Committee Contacts section, for local contact listing; use 1-800-336-4590 or About ESGR page of this Web site, Our Staff section, to contact national staff.) More than 95 percent of all such requests for assistance are resolved in this informal process. Many problems result from poor communication between employers and their employees or from a lack of familiarization with the rights and responsibilities of each as defined by law.
Congress provided clear protection for all members of the uniformed services (including non-career National Guard and Reserve members, as well as active duty personnel) in October 1994, with passage of the Uniformed Services Employment and Reemployment Rights Act (USERRA), Chapter 43 of Title 38, U, S. Code. The Department of Labor is the enforcement authority for USERRA, and it processes all formal complaints of violations of the law. Major sections of the law include:
Expanding coverage to specifically include the Public Health Service, the Coast Guard, and others designated by the President in time of war or emergency;
Placing a 5-year limit (with some exceptions) on the cumulative length of time a person may serve in the military and remain eligible for reemployment rights with the pre-service employer;
Requiring an individual to give written or verbal notice to their employer prior to departure for military service;
Establishing time limits for reporting back to work, based on the length of time in the uniformed service, rather than on the type of service, and requiring documentation of such service, if available;
Providing for the continuation of employer provided health insurance (at the service member's request) for an 24-month period, with payment of up to 102 percent of the full premium by the servicemember;
Requiring that an employee's military service not be considered a break in employment for pension benefit purposes, and providing that the person's military service must be considered service with an employer for vesting and benefit accrual purposes;
Providing that the U.S. Department of Labor Veterans' Employment and Training Service (VETS) shall assist all employees, including federal government workers.
Significant changes in military leave of absence management include:
An employee no longer requests permission to be absent for military leave but rather provides notification of pending military service.
There is no longer any differentiation between voluntary and involuntary service
An employee cannot be required to use earned vacation or similar leave days for military leave of absence
Military service will not be counted as time away from the employer for retirement purposes (Federal employees should review the Code of Federal Regulations, series 5 CFR 353.201-210 for details related to their employment.)
The Act seeks to ensure that members of the uniformed services are entitled to return to their civilian employment upon completion of their service. They should be reinstated with the seniority, status, and rate of pay they would have obtained had they remained continuously employed by their civilian employer. The law also protects individuals from discrimination in hiring, promotion, and retention on the basis of present and future membership in the armed services.
Key features of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA):
USERRA, enacted in October 1994 (and significantly updated in 1996 and 1998), provides reemployment protection and other benefits for veterans and employees who perform military service. It clarifies the rights and responsibilities of National Guard and Reserve members, as well as their civilian employers. USERRA was significantly updated in 1996 and 1998. It applies almost universally to all employers-including the federal government-regardless of the size of their business.
Federal law. No law, policy, practice, etc. that would diminish the rights established in USERRA takes precedence over the provisions of USERRA. Conversely, USERRA does not supersede, nullify, or diminish any federal or state law, or company policy, union agreement, practice or contract that provides greater rights or benefits to service members.
Applicability. USERRA applies to all employers in the United States, regardless of the size of their business. It protects part-time positions, unless the employment is for a brief, non-recurring period and is not expected to last indefinitely or for a significant period. USERRA does not protect independent contractors and others considered to be self-employed.
Definitions. Section 4303 contains a number of definitions, which must be kept in mind when applying the law to a civilian employment rights scenario. For example, the law protects persons who perform service in the uniformed services. "Service" includes active or inactive duty under federal authority, but does not include state call-ups of members of the Army or Air National Guard (The term "employer," as it applies to National Guard technicians, refers to the Adjutant General of the state. Thus, National Guard technicians on other than active or inactive duty for training are considered to be state employees and are not afforded protection under USERRA.) "Uniformed services" includes the active and Reserve components of the Armed Forces, the Army and Air National Guard, the Commissioned Corps of the Public Health Service, and any other category of persons designated by the President in time of war or emergency.
Discrimination. USERRA prohibits discrimination in hiring, retention, promotions, or other benefits of employment against a person because that person "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...." In addition, employers are prohibited from reprisal against anyone who exercises USERRA rights or anyone who assists in the exercise of those rights by testifying or otherwise participating in an investigation, even if that person has no military connection.
Eligibility. In order to qualify for reemployment rights following military service, you must meet the following five eligibility criteria: you must have left a civilian job; you must have given notice that you were leaving to perform military service; the cumulative period of service must not have exceeded five years (there are exceptions); you must have been released from service under honorable or general conditions; and, you must have reported back to work or applied for reemployment within time constraints prescribed by law.
Notice. Under USERRA, you (or an officer from your command) must give your employer advance notice (either written or verbal) of upcoming military service of any type. Otherwise, you will not be eligible for reemployment protection following the period of military service. The only exceptions to the notification requirement would be if the giving of notice is precluded by military necessity (e.g. a classified recall) or if it is otherwise impossible or unreasonable to give notice. These exceptions to the notice requirement are expected to be very rare. Your best course of action is to give as much advance notice to your employer as possible. For an example of a notice letter from a commanding officer (in MS Word format), click here.
Five-year limit. USERRA sets a 5-year cumulative limit on the amount of military leave you can perform and retain reemployment rights with a given employer. If you get a new employer, you get a new 5-year limit. There are some important exceptions to the 5-year limit. If you are unable to obtain release or if service is required to complete an initial period of obligated service, that time of service is exempt (examples: An initial enlistment may last more than 5 years, such as for nuclear power training. In this case, an employee retains reinstatement rights with the employer. If an employee was hospitalized for or is convalescing from an illness or injury incurred in, or aggravated during military service, the limit may be extended up to an additional 2 years.) Drills (inactive duty training), annual training, involuntary active duty extensions (including training certified as necessary by your service), and recalls due to a war or national emergency are not counted in the 5-year cumulative total.
USERRA clearly establishes that reemployment protection does not depend on the timing, frequency, duration, or nature of an individual's service. USERRA clarifies that while an individual is performing military service, he or she is deemed to be on a furlough or leave of absence and is entitled to the non-seniority rights accorded other individuals on nonmilitary leaves of absence.
If you were employed by the same employer both before and after USERRA's effective date of December 12, 1994, duty that you performed under the previous law will count against the USERRA 5-year limit.
Reemployment procedures. The type of military duty performed doesn't relate to getting your job back. Reinstatement is strictly based on the duration of the uniformed service. For periods of military service up to 30 days, you must report back to work at the next regularly scheduled shift on the day following release from the military, safe travel home, and eight hours of rest. For longer periods of services, reinstatement is not necessarily immediate, but should be within a matter of days or at most a few weeks. Following a period of service of 31-180 days, you must apply for reemployment within 14 days following release. Following a period of service of 181 days or more, you must apply for reemployment within 90 days after release. In applying for reemployment, you should identify yourself, state that you left that employer to perform military service, that you have completed the service and want to be reinstated. Failure to return to work or apply for reemployment within the specified time limits through your own fault does not necessarily forfeit your reemployment rights, but makes you subject to the employer's rules concerning unauthorized absence from work.
Reemployment position. Employees returning from military service must be reemployed in the job that they would have attained had they not been absent for military service (the long-standing 'escalator' principle) and with the same seniority, status and pay, as well as other rights and benefits determined by seniority. Reasonable efforts must be made to enable returning employees to refresh or upgrade their skills to enable them to qualify for reemployment. If refresher training is not successful, USERRA provides that the employee must be reinstated in a position that most nearly approximates that position originally held. Employees who are disabled (temporarily or permanently) due to military service must also be accommodated in a position most nearly approximating the original position.
Reemployment entitlements. Following a period of military service, if you meet the eligibility criteria discussed above, you have a number of specific entitlements. You are entitled to prompt reemployment. You are entitled to seniority, seniority-related benefits (including pension), status, and rate of pay as if you were continuously employed during the military absence. You are entitled to immediate reinstatement of health insurance for you and previously covered dependents, with no waiting period and no exclusion of preexisting conditions, except conditions determined by the Government to be service-connected. You are entitled to training or retraining by your employer if that is necessary to qualify you for the reemployment. If you were disabled while on military duty, or a disability is aggravated by military service, your employer must make reasonable efforts to accommodate the disability. If your period of service was 181 days or more, you are protected from discharge, except for cause, for one year. If the service was for 31-180 days, the period of protection from discharge is 180 days.
Documentation. Following a period of service of 31 days or more, be prepared to provide documentation to the employer which establishes that: your application for reemployment was timely; you have not exceeded the cumulative 5-year limit; and, the character of your service was "honorable" (i.e., you did not receive a punitive type of discharge). If the documentation is not readily available, or doesn't exist, the employer can't deny you reemployment, but if documentation later becomes available that shows you did not qualify for reemployment, the employer may immediately terminate you. Suggested forms of documentation could include a DD-214, endorsed orders, or a letter from your command.
Health Care. If the period of service is 30 days or less, you pay the normal employee cost, if any, for the coverage. USERRA provides that you may elect to continue employer-provided health insurance for a period up to the first 24 months of your military service. If the period of service is 31 days or more, you could be required to pay up to 102 percent of the total premium. In addition to this special entitlement, you are also entitled to any non-seniority-related benefits that the employer offers to employees on nonmilitary leaves of absence (e.g. jury duty).
Pensions. Under USERRA, all pension plans in which benefits are earned for length of service are protected.
Vacations. For a period of military service, you may elect to use any personal vacation you have accrued with your employer. The employer cannot require you to use vacation. You do not accrue civilian vacation during a period of military service unless your employer provides this as a benefit for employees on a nonmilitary, non-pay leave of absence of similar duration.
Assistance and enforcement. If you are a Reserve component member and experience employment problems because of your military obligations, you should first notify your command. Often a commander or legal officer can provide prompt and effective assistance in resolving disputes between you and your civilian employer. If local efforts fail, contact Ombudsmen Services at ESGR National Headquarters (telephone: 1-800-336-4590 or DSN 426-1390/91). Ombudsmen are trained to provide information and informal mediation assistance. Of those situations that are brought to the Ombudsmen, they have been able to resolve greater than 95 percent. Situations that are complex or beyond the scope of informal resolution will be immediately referred to the U.S. Department of Labor Veterans' Employment and Training Service (VETS). Department of Labor can be reached at 1-866-4-USA-DOL or via their website at www.dol.gov.
For more information on the USERRA law* and the ESGR Ombudsmen Services program, visit these locations on this page:
Uniformed Services Employment and Reemployment Rights Act of 1994
Department of Labor USERRA Advisor
Law Review Archive: Reserve Officers Association provides an archive of legal articles that cover specific situations. They can be found at http://www.roa.org/home/law_review_archive.asp.
*If you have a specific question about the USERRA law, you're likely to find the answer most quickly in the "Frequently Asked Questions" section of either the Employers or Nat'l Guard and Reserve Members pages of this Web site.
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