1. 6/24/2016www.esgr.mil1 Employer Support of the Guard and Reserve USERRA OVERVIEW Arden Dickey Ombudsman Director, State of Florida

2. 6/24/2016www.esgr.mil2 ESGR Ombudsman Services Typical Ombudsman Cases USERRA Overview Service Member’s Rights Employer’s Responsibilities Service Member’s Responsibilities Where To Go For Additional Information Agenda

3. 6/24/2016www.esgr.mil3 Ombudsman Services Ombudsmen are specially trained volunteers and national staff members Ombudsmen are neutrals who assist civilian employers and service members resolve disputes related to military duty An Ombudsman’s goal is to help the parties reach an agreement that meets the tenets of USERRA

4. 6/24/2016www.esgr.mil4 Types of Cases for Ombudsman Employer is requiring SM to use personal vacation days for weekend duty and annual training Employer denied SM a promotion because “we need someone we can depend on” or because “you miss too much work.” SM returns from 1 year deployment. His old position has been permanently filled by someone else. A lower level position is offered.

5. 6/24/2016www.esgr.mil5 Types of Cases for Ombudsman SM returns from deployment and employer is not ready to rehire her. “Check with me again in a month or so and we’ll see what’s available then.” SM is constantly harrassed by supervisor because his absences (military related) are causing hardships on other employees. “You need to decide if you want a career with us or with the military.” SM returns from deployment. Is given same job (school bus driver), but in a new location which requires him to drive 40 miles further to work each day.

6. 6/24/2016www.esgr.mil6 1. DISAGREEMENT Between Employee & Employer 2. SOMEBODY CALLS CSC: Our “Gateway to ESGR” at 1-800-336-4590. - Is it USERRA related? - Is an Ombudsman Needed? -Open/Assign Case 2a. Online Form 2b. Directly to FC Ombudsman 3A. QUESTION ANSWERED Information only inquiry 3B. Ombudsman Assigned Normally based on Employer location 4. OMBUDSMAN ACTION Possible Outcomes: - Resolved: Agreement reached - Not resolved: provide options to file w/DOL(VETS) – private attorney Document resolution & Close OR Ombudsman Process Overview National Case Managers Regionally aligned Track cases Assist Ombudsmen

7. 6/24/2016www.esgr.mil7 Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA, 38 U.S.C. 4301- 4335) “…is a federal law intended to ensure that persons who serve or have served in the Armed Forces, Reserves, National Guard or other uniformed services: 1) are not disadvantaged in their civilian careers because of their service; 2) are promptly reemployed in their civilian jobs upon their return from duty; 3)are not discriminated against based on past, present, or future military service.” USERRA Overview

8. 6/24/2016www.esgr.mil8 (USERRA) - Uniformed Services Employment and Reemployment Rights Act of 1994 Covers virtually every U.S. employer, regardless of size, both here and overseas Does not apply to Guardmembers on State active duty, self- employed individuals, partners or students Includes discrimination against employment, reemployment, termination, promotion, benefits and “hostile work environments” USERRA protects any person who serves, has served, or will serve in the military Applies to Voluntary as well as Involuntary Service USERRA Overview

9. 6/24/2016www.esgr.mil9 An employer must not deny: –initial employment –reemployment –retention in employment –promotion –or any benefit of employment “…to any individual on the basis of his or her membership, application for membership, performance of service, application for service, or obligation for service in the uniformed services.” USERRA Protections

10. 6/24/2016www.esgr.mil10 Employers’ Obligations Allow employees to participate in military service Prompt reinstatement from active duty Accrued seniority (the “escalator principle”) Reinstatement of all benefits Training and retraining as needed Protection against discrimination USERRA Overview

11. 6/24/2016www.esgr.mil11 On Reemployment “Reemployment” is a misnomer USERRA requires employees to be considered on a leave of absence or furlough – not terminated and then reemployed USERRA Overview

12. 6/24/2016www.esgr.mil126/24/2016www.esgr.mil12 Does the employer need to give the returning service member the exact same job back? –Not always Options: –Pre-service position, or –Escalator position, or –Position of like seniority, status and pay Reemployment Position

13. 6/24/2016www.esgr.mil13 “The Escalator Principle” Upon return, Service Member must be placed in a position, and given benefits of employment he/she would have received if continuously employed. USERRA Overview

14. 6/24/2016www.esgr.mil146/24/201614 Service between 31 – 180 Days –Protected against discharge without cause for a period of 180 days Service greater than 180 Days –Protected against discharge without cause for a period of 1 year Employer has burden of proof Protection Against Discharge

15. 6/24/2016www.esgr.mil15 Employer is obligated to make reasonable efforts to accommodate disability If cannot become qualified, employee must be reemployed in position: –Equivalent in seniority, status and pay –Nearest approx to the equivalent position Reasonable Accommodations for Disabled Veterans

16. 6/24/2016www.esgr.mil16

17. 6/24/2016www.esgr.mil17 Military Leave of Absence – must be allowed to meet service obligations; employer must not require service member to use vacation or personal time Prompt reinstatement back into job Accumulation of seniority as if never left – Escalator Principle Service Member Rights

18. 6/24/2016www.esgr.mil18 Immediate reinstatement of health insurance for service member and dependents Training or retraining of skills as necessary Right to be free from discrimination and retaliation Service Member Rights

19. 6/24/2016www.esgr.mil19 Service Member Provide prior notice to employer (preferably in writing) Served under honorable conditions Return to work in a timely manner: Service Time Requirement 1-30 Days………….. Report next scheduled work day after service, safe transportation, and 8 hours rest 31-180 Days………. within 14 days 181+ Days…………. within 90 days Hospitalization or convalescence Up to 2 years Service Member Responsibilities

20. 6/24/2016www.esgr.mil20 Maximum period of military service to maintain reemployment rights under USERRA for one employer is 5 years Numerous exemptions exists, including; required professional development training, all involuntary service and some voluntary service for critical missions Change employers – the 5-year limit resets Five-Year Limit

21. 6/24/2016www.esgr.mil21 Electronic Code of Federal Regulations USERRA written in “plain-English” in a question-and-answer format Covers all aspects of USERRA as it relates to private employers, federal, state and local governments Easy to find on http://www.ESGR.mil http://www.ESGR.mil Code of Federal Regulations

22. 6/24/2016www.esgr.mil22 Employer leadership Employer Human Resource department Unit Chain of Command ESGR Customer Service Center / Ombudsman US Dept of Labor/VETS Dept of Justice or US Special Counsel Private counsel Statute of limitations? None 38 USC 4321 – 4326 20 CFR § 1002.277 – 313 Assistance and Enforcement

23. 6/24/2016www.esgr.mil23 Employer Support of the Guard and Reserve (ESGR) –Free Education, Consultation, and Mediation –1-800-336-4590 (Option 1) –USERRA@osd.mil –http://www.esgr.milhttp://www.esgr.mil Department of Labor, Veterans Employment and Training Service (DOL/VETS) –Formal Investigation and Assistance –http://www.dol.gov/vetshttp://www.dol.gov/vets –1-866-4-USA-DOL (866-487-2365) Contact Information

24. 6/24/2016www.esgr.mil24 Office of Special Counsel –Protect Federal Employees from prohibited personnel practices –1-202-254-3620 –USERRA@osc.govUSERRA@osc.gov –http://www.osc.gov/userra.htmhttp://www.osc.gov/userra.htm Contact Information (con’t)

25. 6/24/2016www.esgr.mil25 Serving Our Nation - Together