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. The law requires employers to promptly reemploy persons returning from military service of 91 or more days in the following order of priority: 1. The . 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). Subsequent case law would wrestle with what benefits of employment were tied to seniority. Individuals have the option to privately file court actions. 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. The federal First Circuit Court of Appeals in Rivera-Melendez v. Pfizer considered a returning veteran’s claim that Pfizer violated the "escalator principle" that is a unique element of the federal Uniformed Services Employment and Reemployment Rights Act. If the employee’s compensation was not based on a fixed rate, or the determination of such rate is not reasonably certain, the employee’s compensation during the period of service is computed on the basis of the employee’s average rate of compensation during the 12-month period immediately preceding the employee’s period of military service (or, if shorter, the period of employment immediately preceding such period). 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. 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. .manual-search-block #edit-actions--2 {order:2;} An interactive system, The USERRA Advisor, answers many of the most-often-asked questions about the law. 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. 20 CFR §1002.42 . If two or more persons are entitled to reemployment in the same position, the following procedure applies: Employer defenses to reemployment are affirmative ones and the employer carries the burden of proving them by a preponderance of the evidence. Awards of attorney fees, expert witness fees, and other litigation expenses to successful plaintiffs who retain private counsel may be made at the court’s discretion. .manual-search ul.usa-list li {max-width:100%;} Applying this principle is reasonably simple when job advancement is … The U.S. Department of Labor’s Veterans’ Employment and Training Service (VETS) administers the Uniformed Services Employment and Reemployment Rights Act (USERRA). #and#4318. #block-opa-theme-content > div > div.guidance-search > div.csv-feed.views-data-export-feed {display:none;} 2. CITIZEN WARRIOR USERRA. testifies, assists or otherwise participates in an investigation or proceeding under the law; or. 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. Section 4318 (a) (2) (B) / 20 CFR 1002.259. These include: 1. div#block-eoguidanceviewheader .dol-alerts p {padding: 0;margin: 0;} Section 12304. Copyright © 2020 Pilot Law Corp, P.C. 7. 3. .table thead th {background-color:#f1f1f1;color:#222;} Although it's most commonly applied to determine placement in higher- or lower-level jobs (depending on what had transpired during the employee's absence), it also applies to benefits that flow from length of service. 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? If the employee has a disability incurred or aggravated during the performance of uniformed service, the employer must make reasonable efforts to accommodate the disability and to help the employee become qualified to perform the duties of the reemployment position. 8. 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. (B) in the job in which the person was employed on the date of the commencement of the service in the uniformed services, only if the person is not qualified to perform the duties of the position referred to in subparagraph (A) after reasonable efforts by the employer to qualify the person. Once a service member is reemployed, USERRA provides guidelines on what position she is entitled to. 17 days annual unpaid leave for training. .usa-footer .container {max-width:1440px!important;} 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. 2. The principle behind the escalator position is that, if not for the period of military service, the employee should be reemployed in a position that reflects with reasonable certainty the pay, benefits, seniority, and other job perquisites that he or she would have attained if not for the period of service. Section 4318 (b) (2) / 20 CFR 1002.262 (b). The U.S. Office of Personnel Management has issued regulations that apply specifically to Federal executive agencies. USERRA also applies to all United States employers operating in Foreign countries. On September 20, 2013, the US Court of Appeals for the First Circuit issued an opinion in Rivera-Melendez v. Pfizer Pharmaceuticals, LLC, vacating the district court's judgment and 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" … 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). Once a service member is reemployed, USERRA provides guidelines on what position she is entitled to. “Service in the Uniformed Services” and “Uniformed Services” Defined (38 U.S.C. The following three-part reemployment scheme is required for persons with disabilities incurred or aggravated while in military service. 4. 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. Section 4313 (a) (4). 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). 1-866-4-USA-DOL, Uniformed Services Employment and Reemployment Rights Act (USERRA), USERRA - Uniformed Services Employment and Reemployment Rights Act, DISABILITITES INCURRED OR AGGRAVATED WHILE IN MILITARY SERVICE, EXCEPTION FOR “BRIEF NON-RECURRENT POSITIONS”, PROTECTION FROM DISCRIMINATION AND RETALIATION, www.dol.govhttps://webapps.dol.gov/elaws/userra.htm, Severe Storm and Flood Recovery Assistance, 1. Returning service members must be “promptly reemployed.” “Prompt reemployment” means as soon as is practicable under the circumstances of each individual case. Military service must be considered service with an employer for vesting and benefit accrual purposes. Section 4323 (d) (1) (C) / 20 CFR 1002.312. Did the employer delay or attempt to defeat a reemployment rights obligation by demanding documentation that did not then exist or was not then readily available? But the employer can require the employee to report for the 6:00 a.m. shift the next morning. If the employee cannot become qualified for the position in either (1) or (2), the person must be employed in a position that, consistent with the circumstances of that person’s case, most nearly approximates the position in (2) in terms of seniority, status, and pay. USERRA 3-13 ESGR Ombudsman Services 13 Tips for Employers 14 Above and Beyond the USERRA Requirements 15 ... the escalator principle may cause an employee to be reemployed in a higher or lower position, laid off or even terminated. A reemployed person must be treated as not having incurred a break in service with the employer maintaining a pension plan. Ordered to involuntary service, or retained on active duty during domestic emergency or national security related situations – Section 4312 (c) (4) (A). This applies to the rights and benefits determined by seniority, including status rate of pay, pension vesting, and credit for the period for pension benefit computations. No court fees or costs may be charged to anyone who brings suit. The escalator goes down as well as up. •USERRA escalator principle still applies. In the event a person’s coverage under a health plan was terminated because of military service, a waiting period or exclusion cannot be imposed upon reinstatement of health coverage of the reemployed service member or any eligible dependents if one would not have been imposed had the person not been absent for military service. USERRA’s “escalator principle” is unique among employee leave protections. A higher position than the one you held prior to unformed service, The same position you held prior to uniformed service, A position comparable to the one you would have attained under the escalator principle, A position comparable to the one you held prior to uniformed service, The closest approximation to one of these mentioned positions. Under USERRA's "escalator principle," employers are required to re-employ a returning service member to the following: (1) the status that he or she would have acquired by virtue of continued employment if it had not been for his or her absence during military service; and (2) the position that he or she would have attained with "reasonable certainty" if not for the absence. 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. Job protection following return. 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. The escalator principle requires that each returning service member be reemployed in the position the person would have occupied with reasonable certainty if the person had remained continuously employed, … Under USERRA's "escalator principle," employers are required to re-employ a returning service member to the following: (1) the status that he or she would have acquired by virtue of continued employment if it had not been for his or her absence during military service; and (2) the position that he or she would have attained with "reasonable certainty" if not for the absence. L. 107-188, June 2002). Some military specialties, such as the Navy’s nuclear power program, require initial active service obligations beyond five years. Pension plans (Section 4318), which are tied to seniority, are given separate, detailed treatment under the law. The escalator principle requires that each returning service member be reemployed in the position the person would have occupied with reasonable certainty if the person had remained continuously employed, with full seniority. This was the experience of some persons who served in the Global War on Terror. The Escalator Principle. 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. 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.” While the information presented herein applies primarily to private employers, there are parallel provisions in the statute that apply to Federal, State and Local Government employers. Fishgold . An official website of the United States government. (Section 1161 (a) of Title 10. Arkansas : USERRA rights apply for state active duty. Every effort will be made to keep the information provided up-to-date. It cannot surrender other rights and benefits that a person would be entitled to under the law, particularly reemployment rights after service. exercises any right provided under the law. Reinstatement after weekend National Guard duty will generally be the next regularly scheduled working day. The Secretaries of the various military branches each have authority to designate a military operation as a critical mission or requirement. 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). The Escalator Principle 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. Persons whose complaints against a private employer or a State or Local Government are not successfully resolved by VETS may request that their complaints be referred to the Attorney General for possible representation. USERRA reemployment rights apply if the cumulative length of service that causes a person’s absences from a position does not exceed five years. (Exclude exceptions identified in the law.). Required training for Reservists and National Guard members – Section 4312 (c) (3). 7. (Exception would be discrimination cases.). 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. 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. The reemployed person is entitled to any accrued benefits contingent upon employee contributions only to the extent that the person repays the employee contributions. 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. 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. Section 4312 (d) (1) (A) / 20 CFR 1002.139 (a). 6 DOES USERRA COVER INDEPENDENT CONTRACTORS? Filing of complaints with VETS is optional; the employee may freely choose to pursue a claim with private counsel (Section 4322). In deciding whether an individual is an independent contractor, the following factors need to 4. The law provides that: A “pension plan” that must comply with the requirements of the reemployment law would be any plan that provides retirement income to employees upon the termination of employment or later. See 38 U.S.C. Did the service member give advance notice of military service to the employer? However, service members cannot be forced to use vacation time for military service. 6. USERRA. Section 4303, 13 & 16). (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. Persons ordered to involuntary active duty for operational missions would be covered by the fourth exemption. Consequently, during their period of service they are entitled to participate in any rights and benefits not based on seniority that are available to employees on comparable nonmilitary leaves of absence, whether paid or unpaid. 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 . In other words, the escalator can move up or down. This sixth exemption for the five-year limitation covers persons who are called to active duty after volunteering to support operational missions. Employers, regardless of size, are required to provide to persons entitled to the rights and benefits under USERRA, a notice of their rights, benefits and obligations. California : Unpaid leave for state active duty with reinstatement for all full-time employees and part time employees when there is an open position. 8. The National Committee for Employer Support of […] 5. This concept is known as the “escalator principle.” How To File A USERRA Complaint For example, if an employee’s seniority or job For purposes of determining an employer’s liability or an employee’s contributions under a pension benefit plan, the employee’s compensation during the period of his or her military service will be based on the rate of pay the employee would have received from the employer but for the absence during the period of service. 6. case was not the only early court case on service member reemployment rights. 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. 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. 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. USERRA’s “escalator principle” is unique among employee leave protections. USERRA Coverage. Did the employer allow the service member a leave of absence? Returning military reservist allowed to invoke USERRA “escalator principle” for failure to reinstate into higher-level job Fenwick & West LLP + Follow x Following x Following - Unfollow Contact Reemployment Rights Act (USERRA). Section 4313 (a) (1) (B). This concept is known as the “escalator principle.” The anti-discrimination principle applies to decisions regarding hiring, promotions, terminations, employee benefits, and wages. Did you make an application or report back to the pre-service employer in a timely manner? These include requirements that employers restore employees to work following certain military leaves. An application for reemployment must be submitted to the employer no later than 90 days after completion of a person’s military service. Did the employer provide training or retraining and other accommodations to persons with service-connected disabilities? 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. seniority#escalator#atthe#pointhe#stepped#off.#He#steps#back#on#atthe#precise#pointhe#would# have#occupied#had#he#kepthis#position#continuously#during#the#war.” 8 # # The#escalator#principle#is#codified#in#sections#4313(a)(2)(A), 9 #4316(a), 10. 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. Separation from the service under other than honorable conditions. Although it's most commonly applied to determine placement in higher- or lower-level jobs (depending on what had transpired during the employee's absence), it also applies to benefits that flow from length of 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. Such a position may be a higher or lower position, depending on the circumstances. The position may not necessarily be the same job the person previously held. Did the employer grant the reemployed person pension plan benefits that accrued during military service? USERRA’s “ escalator principle ” says that returning service-members must be promptly reemployed in the same position that they would have attained had they not been absent for military service, with the same seniority, status and pay, as well as other rights and benefits determined by … In connection with USERRA’s health plan provisions, liability for employer contributions and benefits under multi-employer plans is to be allocated by the plan sponsor in such manner as the plan sponsor provides. 7. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. Washington, DC 20210 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. This is not a publication of the U.S. Department of Labor. The person who first left the position has the superior right to it. Section 4323 (a) (1) / 20 CFR 1002.291-292. •USERRA requires employer make reasonable efforts to accommodate service-incurred disability. The Secretary of Labor issued USERRA regulations covering private and state employers written in a plain English question-and-answer format. Under USERRA, a reemployed employee may not be discharged without cause: (1) For one year after the date of reemployment if the person’s period of military service was for 181 days or more; (2) For 180 days after the date of reemployment if the person’s period of military service was for 31 to 180 days. Section 4311(a). USERRA applies to all U.S. employers, regardless of size. .manual-search ul.usa-list li {max-width:100%;} Employers may provide the notice “Your Rights Under USERRA” by posting it where employee notices are customarily placed. •If SM cannot perform duties of escalator position after employer’s reasonable efforts, then should be 3. 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. Section 4318 (a) (2) (A) / 20 CFR 1002.259. To qualify for USERRA’s protections, a service member must be available to return to work within certain time limits. Subject to the rules and exceptions discussed below, USERRA guarantees an employee returning from military service or training the right to be reemployed at his or her former job (or as nearly comparable a job as possible) with the same benefits. 11. 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. 4. The escalator principle requires that an employee’s career trajectory be viewed as if uninterrupted by military duty. The escalator principle is codified in sections 4313(a) and 4316(a) of USERRA.8 After a period of service lasting more than 90 days, the returning service member or veteran who meets the five USERRA conditions is entitled to be reemployed as follows” …in the position of employment in which the person would have been employed if the The giving of notice is otherwise impossible or unreasonable. Its military leave and reemployment provisions apply to all employees absent from work because of service in the uniformed services. •USERRA escalator principle still applies. .agency-blurb-container .agency_blurb.background--light { padding: 0; } 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). The employer cannot require that vacation or other personal leave be used. Employees are entitled not only to nonseniority rights and benefits available at the time they left for military service, but also those that become effective during their service and that are provided to similarly situated employees on furlough or leave of absence. Protection from Discrimination and Retaliation. Let’s look at what it means for employers. The law protects civilian job rights and benefits for veterans and reservists. /*-->*/. Exceptions – Eight categories of service are exempt from the five-year limitation. Service required beyond five years to complete an initial period of obligated service – Section 4312 (c) (1). (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. Information and technical assistance is provided by the Veterans’ Employment and Training Service (VETS) of the Department of Labor (Section 4321). 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. 11. 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. 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. If there is a variation in benefits among different types of nonmilitary leaves of absence, the service member is entitled to the most favorable treatment so long as the nonmilitary leave is comparable. Did the employer continue coverage at the regular employee cost for service members whose leave was for less than 31 days? §4313(a)(2) and 20 C.F.R. This category includes service not only by persons ordered to involuntary active duty, but also service by volunteers who receive orders to active duty. Federal government websites often end in .gov or .mil. •If SM cannot perform duties of escalator position after employer’s reasonable efforts, then should be Let’s look at what it means for employers. The law authorizes VETS to subpoena the attendance and testimony of witnesses and the production of documents relating to any matter under investigation. Section 4317 / 20 CFR 1002.164 / 20 CFR 1002.166. Be cautious (and generous, if possible) before taking action that might make it a COVID-19 test case for failure to accommodate. USERRA prohibits discrimination against servicemembers and veterans based on their military ... current, or future service in the military is breaking the law. those who go on military leave do not suffer upon reemployment because of it, five conditions on which reemployment hinges. (This is often referred to as the “escalator principle.”) This may result in a … .cd-main-content p, blockquote {margin-bottom:1em;} However, a health plan is permitted to impose an exclusion or waiting period for coverage of disabilities determined by the Secretary of Veterans’ Affairs (VA) to be service-connected. 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. The escalator principle requires that an employee’s career trajectory be viewed as if uninterrupted by military duty. If a disability could not be accommodated after reasonable efforts by the employer, did the employer reemploy the person in some other position he/she was qualified to perform which is the "nearest approximation" of the position to which the person was otherwise entitled, in terms of status and pay, and with full seniority? @media (max-width: 992px){.usa-js-mobile-nav--active, .usa-mobile_nav-active {overflow: auto!important;}} Returning military reservist allowed to invoke USERRA “escalator principle” for failure to reinstate into higher-level job * USERRA escalator requirement not limited to automatic promotions * Lance Corporal Jones is not exempted from bad things, like layoffs or reductions in force, that Section 4312 (e) (2) (A) / 20 CFR 1002.116. Protections. 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