Texas State Auditors Office

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Texas State Auditors Office

• UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT
  RIGHTS ACT (USERRA)
• March 24, 2005

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USERRA
Uniformed Services Employment and Reemployment
Rights Act of 1994
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TITLE 38 4301 Purpose of USERRA

• Encourages non-career, uniformed service
• by minimizing the disadvantages of temporarily or
  periodically leaving
• covered employment in the public or private
  sectors
• in the interest of national defense or public
  health.

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USERRA

• Replaces Veterans Reemployment Rights, formerly,
  Title 38 USC, Sections 4301-4307
• Now, Title 38 USC, Sections 4301-4333

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USERRA exempts from coverage

• Service members whose pre-service job was/is for
  a brief, non-recurrent period
• where the circumstances of their employment would
  cause no reasonable expectation that their
  employment would continue indefinitely.

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USERRA Includes

• Virtually all other positions whether in the
  employ of Private sector or Local, State or
  Federal government.
• Probationary
• Career
• Casual
• Full-time
• Part-time

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TITLE 38 4303 (2) DEFINITIONS

• The Term Benefit of Employment, or Rights
  Benefits means
• any advantage, profit, privilege, gain, status,
  account or interest (other than salary)
• that accrues by reason of employment contract,
  agreement, policy, plan or practice
• which includes pension health plan, stock
  ownership, insurance coverage, awards, bonuses,
  vacation, work hours and location.

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TITLE 38 4303 DEFINITIONS

• (4) (A) Employer - any person or entity who pays
  wages for work performed or
• (iv) Any successor in interest to an employer
• (8) Notice can be Written or Verbal
• (13) Service in the Uniformed Services
• Voluntary Required Service is covered.

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TITLE 38 4303 DEFINITIONS

• (15) The term undue hardship, means actions
  requiring significant difficulty or expense, when
  considered in light of
• the number of persons employed
• the effect on expenses and resources or the
  impact of such action upon the business
  operations of such employer.
• VETS frequently recovers thousands of dollars
  in lost wages and benefits for claimants due to
  4311 and 4316 violations from large and small
  employers.

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TITLE 38 4312 (b)

• No notice is required if giving such notice is
  precluded by military necessity or is otherwise
  impossible or unreasonable.

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TITLE 38 4311 (A) Provides That

• 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

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TITLE 38 4311 (A) Provides That

• shall not be denied
• initial employment,
• reemployment,
• retention in employment,
• promotion,
• or any benefit of employment

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TITLE 38 4311 (c)

• unless the employer can prove that the action
  would have been taken in the absence of such
  membership, application for membership, service,
  application or obligation for service.

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TITLE 38 4312 (d) (1)

• An employer is not required to reemploy a person
  under this chapter if
• (A) the employers circumstances have so changed
  as to make such reemployment impossible or
  unreasonable

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TITLE 38 4312 (d) (2) (in any issue involving
whether)

• (A) any reemployment is impossible or
  unreasonable because of a change in the
  employers circumstances,
• THE EMPLOYER MUST PROVE
• (B) that any accommodation, training or effort to
  make the qualified individual whole would
  impose an undue hardship.

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TITLE 38 4312

• Protects Covered Service up to 5 years
  (cumulative, under honorable conditions) with
  exceptions
• Most frequent exceptions
• initial enlistments of more than 5 years
• hospitalization and convalescence

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TITLE 38 4312 Asks Member To

• Provide notice of pending service
• Serve under honorable conditions
• Reapply in a timely manner

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TITLE 38 4312 (e) TIMELY MANNER

• Less than 31 days service
• Work Period following travel 8 hrs rest
• 31-180 days service
• Within 14 days of release from service
• More than 180 days
• Within 90 days of release of service
• notice to return

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USERRA Asks Employers

• To release the employee for covered service
  (military leave, vacation leave or LWOP)
• Employees option

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USERRA Reemployment

• 4312 (h) timing, frequency, duration
• 4302 (b) USERRA vs. State, federal, private, or
  union contracts 
• Employers right to request accommodation
• UNITS right to refuse

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TITLE 38 4316 (a)

• Escalator position
• This is precisely the position the service member
  would have attained, with reasonable certainty,
  had they remained continuously employed
• Must provide notice of, and opportunity for,
  promotions

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McArthur v. Norfolk Western Railway Co., 405
F. Supp. 158, 78 LC 11,211, 91 LRRM 2370 S.D.
Ill., 1975)

• Fireman Helpers
• before entering the military,
• had completed less than 1 year of a training
  program to become Engineers
• which included 3 years of actual service and a
  two-step examination process

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McArthur v. Norfolk Western Railway Co., 405
F. Supp. 158, 78 LC 11,211, 91 LRRM 2370 S.D.
Ill., 1975)

• were subsequently reinstated to pre-service jobs,
  and subsequently satisfied the requirements of
  the training program
• and were entitled to retroactive seniority
• since the vast majority of those completing the
  training period generally passed the examination
  and were appointed to Engineer positions.

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TITLE 38 4316 (a)

• Seniority
• Benefits that would flow or accrue with
  reasonable certainty, with satisfactory
  performance (presumed), simply through the
  passage of time
• Entitlement is not seniority based if it is
  dependent upon hours worked.

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TITLE 38 4316 (a)

• Seniority examples
• vacation accrual rate
• sick leave accrual rate
• cost of living adjustments (COLAs) to wage or
  salary rate
• pension benefits

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USERRA Reemployment

• USERRA establishes floor below which employers
  benefits may not fall
• Service members benefits may be
• no less than those provided others
• on any other furlough or leave of absence.

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USERRA Hot Spots

• Promotional Testing
• During Military Service Obligation?
• Personnel Evaluations
• Attendance and Availability Issues?
  
• Downsizing and USERRA
• What Would Have Occurred?
• Successor in Interest!

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Additional Resources

• http//www.esgr.gov
• Employer Support for the Guard and Reserve
• http//www.dol.gov/vets
• Veterans Employment Training Service

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U. S. Department of Labor

• Harvey King, Assistant Director
• USDOL/VETS
• 1117 Trinity Rm 516-T
• P.O. Box 1468
• Austin, TX 78767
• Phone [phone]
• E-mail king-harvey_at_dol.gov