(See 20 CFR Part 1002, 70FR75246, Dec. 19, 2005.). •USERRA requires employer make reasonable efforts to accommodate service-incurred disability. Benefits, including insurance, paid time off, vacation, etc. The following three-part reemployment scheme is required for persons with disabilities incurred or aggravated while in military service. An interactive system, The USERRA Advisor, answers many of the most-often-asked questions about the law. 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. 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. 6. 4. If, prior to leaving for military service, an employee knowingly provides clear written notice of an intent not to return to work after military service, the employee waives entitlement to leave-of-absence rights and benefits not based on seniority. (Section 1161 (a) of Title 10. 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). A reduction-in-force that would have included the person would be an example. 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. 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. Disability Provisions, Cont’d. Unpaid leave for state active duty or drills with reinstatement according to the escalator principle. See 38 U.S.C. 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. The reemployed person is entitled to any accrued benefits contingent upon employee contributions only to the extent that the person repays the employee contributions. Section 4317 / 20 CFR 1002.164 / 20 CFR 1002.166. The anti-discrimination principle applies to decisions regarding hiring, promotions, terminations, employee benefits, and wages. Section 4313 (b) (1) & (2) (A) / 20 CFR 1002.199. United States: Returning Military Reservist Allowed To Invoke USERRA "Escalator Principle" For Failure To Reinstate Into Higher-Level Job 18 November 2013 by Michael A. Sands the person’s separation from service was other than disqualifying under Section 4304. 3. 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. 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. 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. 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. The escalator principle helps ensure that uniformed service does not prevent you from moving forward with your career by requiring employers to reemploy you in the position you would most likely have held had the period of uniformed service not occurred, and provide you with any seniority-based benefits you would have earned had you not been on military leave. 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). The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) provides employment protections to military veterans and reservists. If the sponsor makes no provision for allocation, liability is to be allocated to the last employer employing the person before the person’s military service or, if that employer is no longer functional, to the plan. 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 […] 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. @media only screen and (min-width: 0px){.agency-nav-container.nav-is-open {overflow-y: unset!important;}} .manual-search-block #edit-actions--2 {order:2;} Section 4312 (e) (2) (A) / 20 CFR 1002.116. 4. The law authorizes VETS to subpoena the attendance and testimony of witnesses and the production of documents relating to any matter under investigation. 2. USERRA applies to all U.S. employers, regardless of size. 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. 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. Ordered to involuntary service, or retained on active duty during domestic emergency or national security related situations – Section 4312 (c) (4) (A). The person who first left the position has the superior right to it. Section 4318 (b) (1) / 20 CFR 1002.261. A notice of intent not to return can waive only leave-of-absence rights and benefits. Persons who serve for 30 or fewer days are not protected from discharge without cause. Section 4323 (a) (1) / 20 CFR 1002.291-292. Section 4318 (a) (2) (A) / 20 CFR 1002.259. ), 4. This “escalator principle” requires that the employee be reemployed in a position that reflects, with reasonable certainty, the pay, benefits, seniority, and other job perquisites, that he would have attained if not for the period of service. At the time of providing the notice, the employee must be aware of the specific rights and benefits to be lost. 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 employer cannot require that vacation or other personal leave be used. On the other hand, reinstatement following five years on active duty might require reassigning or giving notice to an incumbent employee who has occupied the service member’s position. testifies, assists or otherwise participates in an investigation or proceeding under the law; or. 2. See Gates et al., 2013, Chapter Two, for more on the current application of the escalator principle under . Did you hold a job other than one that was brief, nonrecurring? .table thead th {background-color:#f1f1f1;color:#222;} #block-opa-theme-content > div > div.guidance-search > div.csv-feed.views-data-export-feed {display:none;} Dismissal of a commissioned officer in certain situations involving a court martial or by order of the President in time of war. See Title 42, U.S. Code, Section 300hh-11(d). 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. Section 4311(a). To qualify for USERRA’s protections, a service member must be available to return to work within certain time limits. 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. 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 * 4 . Let’s look at what it means for employers. (This notice can be written or verbal.). Notice may be either written or oral. This sixth exemption for the five-year limitation covers persons who are called to active duty after volunteering to support operational missions. Section 4323 (d) (1) (C) / 20 CFR 1002.312. “Service in the Uniformed Services” and “Uniformed Services” Defined (38 U.S.C. All Rights Reserved. USERRA modifies the common rule of at-will employment. div#block-eoguidanceviewheader .dol-alerts p {padding: 0;margin: 0;} Regulations for each military branch specify when separation from the service would be considered “other than honorable.”, 3. The National Committee for Employer Support of […] Were you discharged under conditions other than disqualifying under section 4304? USERRA. Did the service member give advance notice of military service to the employer? .manual-search ul.usa-list li {max-width:100%;} Protection from Discrimination and Retaliation. Under the “escalator principle” and “reasonable certainty” concepts that are incorporated into USERRA, Mr. Rivera should have been considered for the promotion to team leader, said a unanimous three-judge panel. VETS also has the right of reasonable access to interview any persons with information relevant to the investigation. Did the employer make reasonable efforts to train or otherwise qualify a returning service member for a position within the organization/company? USERRA’s “escalator principle” is unique among employee leave protections. 4 . Section 4313 (a) (1) (A) & (B) / 20 CFR 1002.196. 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. When requested by your employer, did you provide readily available documentation showing eligibility for reemployment? .cd-main-content p, blockquote {margin-bottom:1em;} The escalator goes down as well as up. .dol-alert-status-error .alert-status-container {display:inline;font-size:1.4em;color:#e31c3d;} 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. … Separation from the service with a dishonorable or bad conduct discharge. 7. The U.S. Department of Labor’s Veterans’ Employment and Training Service (VETS) administers the Uniformed Services Employment and Reemployment Rights Act (USERRA). 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. [CDATA[/* >