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 … Once a service member is reemployed, USERRA provides guidelines on what position she is entitled to. Employers may provide the notice “Your Rights Under USERRA” by posting it where employee notices are customarily placed. The Uniformed Services Employment and Reemployment Rights Act (USERRA) contains an “escalator principle” which requires that employers place service members returning to work into the position the service member would have had but for his or her service–the “escalator position.” In other words, if an employee would have been a supervisor had he not been… §1002.191. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. Upon the timely application for reinstatement, did the employer promptly reinstate the service member to his/her escalator position? Ordered to involuntary service, or retained on active duty during domestic emergency or national security related situations – Section 4312 (c) (4) (A). (This is often referred to as the “escalator principle.”) This may result in a … 4. However, service members cannot be forced to use vacation time for military service. Lance Corporal Jones is not exempted from bad things, like layoffs or reductions in force, that 2. No court fees or costs may be charged to anyone who brings suit. 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 employer cannot require that vacation or other personal leave be used. Protections. 9. 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. 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. application of the escalator principle. Persons ordered to involuntary active duty for operational missions would be covered by the fourth exemption. USERRA also applies to all United States employers operating in Foreign countries. Subsequent case law would wrestle with what benefits of employment were tied to seniority. VETS also has the right of reasonable access to interview any persons with information relevant to the investigation. CITIZEN WARRIOR USERRA. This category includes service not only by persons ordered to involuntary active duty, but also service by volunteers who receive orders to active duty. USERRA. 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? Let’s look at what it means for employers. 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. An official website of the United States government. Its military leave and reemployment provisions apply to all employees absent from work because of service in the uniformed services. Did you notify the employer that you would be leaving the job for military training or service? Required training for Reservists and National Guard members – Section 4312 (c) (3). 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. It can be found in the “elaws” section of the Department of Labor’s home page at www.dol.govhttps://webapps.dol.gov/elaws/userra.htm. The reemployment position may involve transfer to another shift or location, more or less strenuous working conditions, or changed opportunities for advancement, depending upon the application of the escalator principle. Did the service member give advance notice of military service to the employer? 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. Notice may be either written or oral. Disability Provisions, Cont’d. 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). 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. (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. Section 4323 (d) (1) (C) / 20 CFR 1002.312. Employers are prohibited from retaliating against anyone (whether or not they have performed military service) who: whether or not the person has performed military service. Protection from Discrimination and Retaliation. See 5 CFR Part 353. Its military leave and reemployment provisions apply to all employees absent from work because of service in the uniformed services. Disability Provisions, Cont’d. 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. They may do so if they have chosen not to file a complaint with VETS, have chosen not to request that VETS refer their complaint to the Attorney General, or have been refused representation by the Attorney General. .cd-main-content p, blockquote {margin-bottom:1em;} 2. USERRA does not provide protections for independent contractors. Section 4313 (b) (1) & (2) (A) / 20 CFR 1002.199. 4. Dismissal of a commissioned officer in certain situations involving a court martial or by order of the President in time of war. In deciding whether an individual is an independent contractor, the following factors need to .dol-alert-status-error .alert-status-container {display:inline;font-size:1.4em;color:#e31c3d;} ), 4. ol{list-style-type: decimal;} 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. During a period of service, the employees must be treated as if they are on a furlough or leave of absence. The Uniformed Services Employment and Reemployment Rights Act of 1994, enacted October 13, 1994 (Title 38 U.S. Code, Chapter 43, Sections 4301-4335, Public Law 103-353), as amended, provides for the employment and reemployment rights for all uniformed service members. 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. Job protection following return. An application for reemployment must be submitted to the employer no later than 90 days after completion of a person’s military service. 2. 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. Returning service-members are to be reemployed in the job that they would have attained had they not been absent for military service, this is known as the "escalator principle" (See FISHGOLD v. 4 . Section 4318 (a) (2) (B) / 20 CFR 1002.259. If no allocation or cost-sharing arrangement is provided, the full liability to make the retroactive contributions to the plan will be allocated to the last employer employing the person before the period of military service or, if that employer is no longer functional, to the overall plan. The person without the superior right is entitled to employment with full seniority in a position that provides similar seniority, status, and pay in the order of priority that normally determines a reemployment position. Let’s look at what it means for employers. 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. The law gives VETS a right of access to examine and duplicate any documents that it considers relevant to an investigation. Section 12304. A person whose military service lasted 1 to 90 days must be “promptly reemployed” in the following order of priority: 1. Information about USERRA is also available on the Internet. 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. This was the experience of some persons who served in the Global War on Terror. 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). 17 days annual unpaid leave for training. All Rights Reserved. The reemployment position with the highest priority in the reemployment schemes reflects the “escalator” principle that has been a key concept in federal veterans’ reemployment legislation. For example, if an employee’s seniority or job The law protects civilian job rights and benefits for veterans and reservists. 4. Benefits, including insurance, paid time off, vacation, etc. The employer must make reasonable efforts to accommodate a person’s disability so that the person can perform the duties of the reemployment position. The employer bears the burden of proving that it would have taken the adverse action in the absence of the person’s service connection or exercise of any USERRA right. .usa-footer .grid-container {padding-left: 30px!important;} 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. @media (max-width: 992px){.usa-js-mobile-nav--active, .usa-mobile_nav-active {overflow: auto!important;}} •USERRA requires employer make reasonable efforts to accommodate service-incurred disability. Federal government websites often end in .gov or .mil. Section 4311(a). case was not the only early court case on service member reemployment rights. Disabilities Incurred or Aggravated While in Military Service. those who go on military leave do not suffer upon reemployment because of it, five conditions on which reemployment hinges. 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. exercises any right provided under the law. Did the employer grant accrued seniority as if the returning service member had been continuously employed? #and#4318. The U.S. Office of Personnel Management has issued regulations that apply specifically to Federal executive agencies. Notwithstanding the escalator principle, the regulations emphasize that USERRA does not require an employer to reinstate a returning service member in an employment position if the returning service member is not qualified to perform the civilian job, although the employer is obligated to make reasonable efforts to assist the returning employee to become qualified for employment. Before sharing sensitive information, make sure you’re on a federal government site. The Escalator Principle. 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. 8. These include: 1. On the other hand, depending on economic circumstances, reorganizations, layoffs, etc., the position could be at a lower level than the one previously held, it could be a different job, or it could conceivably be in layoff status. Within 30 days after a person is reemployed, an employer who participates in a multi-employer plan must provide written notice to the plan administrator of the person’s reemployment. USERRA Coverage. #block-googletagmanagerfooter .field { padding-bottom:0 !important; } Section 4318 (b) (2) / 20 CFR 1002.262. Pension plans (Section 4318), which are tied to seniority, are given separate, detailed treatment under the law. A right or benefit is seniority-based if it is determined by or accrues with length of employment. 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). Specific questions should be addressed to the State director of the Veterans’ Employment and Training Service listed in the government section of the telephone directory under U.S. Department of Labor. The .gov means it’s official. Section 4312 (e) (2) (A) / 20 CFR 1002.116. Individuals have the option to privately file court actions. Did the employer make reasonable efforts to train or otherwise qualify a returning service member for a position within the organization/company? He sued, claiming that USERRA’s escalator principle required FedEx to pay him the bonus based on his anticipated training level had he not left work for military service. .manual-search ul.usa-list li {max-width:100%;} #block-opa-theme-content > div > div.guidance-search > div.csv-feed.views-data-export-feed {display:none;} The Secretary of Labor issued USERRA regulations covering private and state employers written in a plain English question-and-answer format. Award of back pay or lost benefits may be doubled in cases where violations of the law are found to be “willful.” “Willful” is not defined in the law, but a violation is considered willful if the employer’s conduct was knowingly or recklessly in disregard of the law. Returning service-members are to be reemployed in the job that they would have attained had they not been absent for military service, this is known as the "escalator principle" (See FISHGOLD v. .h1 {font-family:'Merriweather';font-weight:700;} (B) in the position of employment in which the person was employed on the date of the commencement of the service in the uniformed services, or a position of like seniority, status, and pay the duties of which the person is qualified to perform, only if the person is not qualified to perform the duties of a position referred to in subparagraph (A) after reasonable efforts by the employer to qualify the person. While the FMLA requires employers to reinstate workers to the same or an equivalent position upon return from leave, USERRA generally requires employers to rehire eligible service members in an “escalator position.” 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. In such cases, the person will be subject to the employer’s established rules governing unexcused absences. 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. Did the employer allow the service member a leave of absence? The reemployed person is entitled to any accrued benefits contingent upon employee contributions only to the extent that the person repays the employee contributions. 2. (Exclude exceptions identified in the law.). Section 4312 (d) (1) (A) / 20 CFR 1002.139 (a). However, such contributions have to be made promptly for persons who are absent for 90 or fewer days. If the employee cannot become qualified for either position described in (A) or (B) above (other than for a disability incurred in or aggravated by the military service) even after reasonable employer efforts, the person must be reemployed in a position that is the nearest approximation to the positions described above (in that order) which the person is qualified to perform, with full seniority. 6 DOES USERRA COVER INDEPENDENT CONTRACTORS? 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. In other words, the escalator can move up or down. The person cannot be required to pay more than 102 percent of the full premium for the coverage. This concept is known as the “escalator principle.” 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. Generally, the employee must be given the position she would have held had she remained continuously employed. 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.” (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. 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. Service required beyond five years to complete an initial period of obligated service – Section 4312 (c) (1). Call 1-800-336-4590 or visit www.esgr.org. USERRA . These include requirements that employers restore employees to work following certain military leaves. 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