The basics:
http://www.dol.gov/vets/programs/use...RRA_Poster.pdf
The above poster is required to be posted. I know it was in the past. Anyone know where it's now located in AOC?
If you think you haven't gotten some of your rights such as imputed earnings, DSA plus-up, pension payments, etc, fill out this form:
http://www.dol.gov/elaws/vets/userra/1010.asp
Do you have a question about USERRA, use the USERRA advisor:
http://www.dol.gov/elaws/userra.htm
The 6 "Pillar" Requirements (Forgive my previous posts for getting the number wrong):
Pillar 1) Must be service in the Uniformed Services, some National Guard providing service to the state for a state emergency many not be covered under USERRA, but sometimes other laws may provide for coverage.
“Service in the Uniformed Services” and “Uniformed Services” Defined (38 U.S.C. Section 4303, 13 & 16)
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:
- Active duty and active duty for training
- Initial active duty for training
- Inactive duty training
- Full-time National Guard duty
- Absence from work for an examination to determine a person’s fitness for any of the above types of duty
- Funeral honors duty performed by National Guard or Reserve members
- 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. L. 107-188, June 2002). See Title 42, U.S. Code, Section 300hh-11(d).
- 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
Advance Notice
Section 4312 (a) (1) / 20 CFR 1002.85
The law requires employees to provide their employers with advance notice of military service, with some exceptions.
Notice may be either written or oral. It may be provided by the employee or by an appropriate officer of the branch of the military in which the employee will be serving. However, no notice is required if:
- Military necessity prevents the giving of notice; or
- The giving of notice is otherwise impossible or unreasonable.
Pillar 3) Your service cumulatively for a single employer must be under 5 years with some exceptions:
Duration of Service
Section 4312 (c) / 20 CFR 1002.99 - .103
USERRA reemployment rights apply if the cumulative length of service that causes a person’s absences from a position does not exceed five years. Most types of service will be counted in the computation of the five-year period.
Exceptions – Eight categories of service are exempt from the five-year limitation. These include:
1. Service required beyond five years to complete an initial period of obligated service – Section 4312 (c) (1). Some military specialties, such as the Navy’s nuclear power program, require initial active service obligations beyond five years.
2. Service from which a person, through no fault of the person, is unable to obtain a release within the five-year limit – Section 4312 (c) (2). 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. Nor will it be applied when service members are involuntarily retained on active duty beyond the expiration of their obligated service date. This was the experience of some persons who served in the Global War on Terror.
3. Required training for Reservists and National Guard members – Section 4312 (c) (3). The two-week annual training sessions and monthly weekend drills mandated by statute for Reservists and National Guard members are not counted toward the five-year limitation. Also excluded are additional training requirements certified in writing by the Secretary of the service concerned to be necessary for individual professional development.
4. Ordered to involuntary service, or retained on active duty during domestic emergency or national security related situations – Section 4312 (c) (4) (A). 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.
5. 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). This category includes service not only by persons ordered to involuntary active duty, but also service by volunteers who receive orders to active duty. For example, since September 11, 2001, Reservists were involuntarily called to active duty under Federal orders for Operations Noble Eagle, Enduring Freedom and Iraqi Freedom. Additionally, Reservists and retirees (who were not called) volunteered for active duty.
6. Active duty (other than for training) by volunteers supporting “operational missions” for which Selected Reservists have been ordered to active duty without their consent – Section 4312 (c) (4) (C). Such operational missions involve circumstances other than war or national emergency for which, under presidential authorization, members of the Selected Reserve may be involuntarily ordered to active duty under Title 10, U.S.C. Section 12304.
This sixth exemption for the five-year limitation covers persons who are called to active duty after volunteering to support operational missions. Persons ordered to involuntary active duty for operational missions would be covered by the fourth exemption.
7. 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). The Secretaries of the various military branches each have authority to designate a military operation as a critical mission or requirement.
8. Federal service by members of the National Guard called into action by the President to suppress an insurrection, repel an invasion, or to execute the laws of the United States – Section 4312 (c) (4) (E).
Pillar 4) Have your period of military leave be honorable. (Don't get Courts Martialed!!!) What can you do to lose USERRA protections:
Disqualifying Service
Section 4304 / 20 CFR 1002.134 - .135
When would a person’s service disqualify him or her from asserting USERRA rights? The statute lists four circumstances:
1. Separation from the service with a dishonorable or bad conduct discharge.
2. Separation from the service under other than honorable conditions. Regulations for each military branch specify when separation from the service would be considered “other than honorable.”
3. Dismissal of a commissioned officer in certain situations involving a court martial or by order of the President in time of war. (Section 1161 (a) of Title 10.)
4. Dropping an individual from the rolls when the individual has been absent without authority for more than three months or is imprisoned by a civilian court. (Section 1161 (b) of Title 10.)
Pillar 5) Report back or request return to work in a timely manner. Note that it's report back for 30 days or under, and request for over 30 days away. When you report back you're allowed time for sleep, travel, etc, so make sure you include that in your military leave request, just to cover your butts once again in case you get injured while travelling.
Reporting Back to Work
Section 4312 (e) / 20 CFR 1002.115
To qualify for USERRA’s protections, a service member must be available to return to work within certain time limits. These time limits for returning to work depend (with the exception of fitness-for-service examinations) on the duration of a person’s military service.
Service of 1 to 30 Days
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. 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. But the employer can require the employee to report for the 6:00 a.m. shift the next morning.
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.
Fitness Exam
The time limit for reporting back to work for a person who is absent from work in order to take a fitness-for-service examination is the same as the one above for persons who are absent for 1 to 30 days. This period will apply regardless of the length of the person’s absence.
Service of 31 to 180 Days
An application for reemployment must be submitted to the employer no later than 14 days after completion of a person’s service. If submission of a timely application is impossible or unreasonable through no fault of the person, the application must be submitted as soon as possible on the next day when submitting the application becomes possible.
Service of 180 or More Days
An application for reemployment must be submitted to the employer no later than 90 days after completion of a person’s military service.
Disability Incurred or Aggravated
Section 4312 (e) (2) (A) / 20 CFR 1002.116
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 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.
Unexcused Delay
Section 4312 (e) (3) / 20 CFR 1002.117
A person’s reemployment rights are not automatically forfeited if the person fails to report to work or to apply for reemployment within the required time limits. In such cases, the person will be subject to the employer’s established rules governing unexcused absences.
Pillar 6) Documentation required on return...needed for more than 30 days.
Documentation Upon Return
Section 4312 (f) / 20 CFR 1002.121
An employer has the right to request that a person who is absent for a period of service of 31 days or more provides documentation showing that
- the person’s application for reemployment is timely;
- the person has not exceeded the five-year service limitation; and
- the person’s separation from service was other than disqualifying under Section 4304.
Section 4312 (f) (3) (A) / 20 CFR 1002.122
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. 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.
Pension Contributions
Section 4312 (f) (3) (B)
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. However, such contributions have to be made promptly for persons who are absent for 90 or fewer days.