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UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS

Summary

Section 206 of the Congressional Accountability Act (CAA) applies certain rights and protections of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) to covered employees. Under provisions of the USERRA, as made applicable by the CAA, covered employees performing service in the uniformed services are protected from discrimination on the basis of such service, denial of reemployment rights, and denial of employment benefits. The Board has not adopted regulations on USERRA rights and protections.

This summary describes the USERRA rights and protections applied by the CAA followed by questions and answers.

1. Coverage

An eligible employee means a covered employee performing service in the uniformed services.

Service in the uniformed services means service in the Armed Forces, the National Guard, the Public Health Service, or any other category designated by the President during time of war.

The covered employee may not have been terminated from the service by dishonorable or bad conduct discharge, separated under other than honorable conditions, dismissed by a general court-martial, by commutation of sentence, or by order of the President in time of war, or dropped from the rolls because of absence without authority for 3 months, or because sentenced to confinement.

The covered employees and employing offices generally subject to the CAA are described in the Introductory section.

2. Discrimination Prohibited

An employing office may not deny initial employment, reemployment, retention in employment, promotion, or any benefit of employment to an eligible employee on the basis of the employee's service in the uniformed services.

3. Right to Reemployment

An eligible employee who leaves work to serve in the uniformed services has certain rights to reemployment within a reasonable time to the same position he or she left or to a position of like seniority, status, and pay. Reemployment rights are conditioned on certain factors, including --

  • The employee must give advance notice of service to the employing office when possible;
  • The cumulative length of the employee's absence and of all previous absences from a position of employment with the current employing office because of service in the uniformed services may not exceed 5 years.

4. Benefits

A reemployed employee is entitled to the seniority and other seniority-based rights and benefits that the employee had on the date he or she began service in the uniformed services, plus any additional seniority and seniority-based rights and benefits for which the employee would have been eligible had he or she remained continuously employed.

An eligible employee may elect to continue coverage under a health insurance plan while absent to perform service. Rights under pension plans are similarly protected. Upon reemployment, each period served by a covered employee in the uniformed services shall be considered service with the employing office for purposes of determining the accrual of benefits and the nonforfeitability of benefits under the plan.

5. Exceptions to the Right to Reemployment

An employing office is not required to reemploy a covered employee returning from service in the uniformed services if any of the following circumstances exists. The employing office will have the burden of proving the existence of the circumstance in question:

  • if the employer's circumstances have so changed that reemployment of the covered employee is unreasonable or impossible;
  • if reemployment would impose an undue hardship on the employer; or
  • if the original employment of the covered employee was for a brief, nonrecurrent period and there was no reasonable expectation that such employment would continue indefinitely or for a substantial period.

6. Intimidation or Reprisal

Intimidation, reprisal, or discrimination against a covered employee for opposing practices or for initiating or participating in a proceeding is prohibited, as described in the Introductory section.

7. Remedies

In case of a violation, several kinds of remedies may be available:

  • requiring the employing office to comply with the USERRA requirements made applicable by the CAA;
  • compensation for any loss of wages or benefits;
  • liquidated damages equal to the amount of lost wages and benefits, in situations where the failure to comply was willful;
  • remedies available under "full equity powers" of the court, including temporary or permanent injunctions, temporary restraining orders, and contempt orders,
  • covered employees may also utilize any provisions of chapter 43 of title 38, United States Code that are applicable to that employee.

A description of the generally applicable remedies (attorneys fees, interest) and limitations (no civil penalties or punitive damages) is found in the Introductory section.


UNIFORMED SERVICES EMPLOYMENT AND
REEMPLOYMENT RIGHTS

Questions and Answers

1. Q. Who is an eligible employee under the Uniformed Services Employment and Reemployment Rights Act, as made applicable by the CAA?

A. Eligible employee means a covered employee performing service in the uniformed services, who has not been terminated by a dishonorable or bad conduct discharge; separated under other than honorable conditions; dismissed by a sentence of a general court-martial, by commutation of sentence, or by order of the President in time of war; or dropped from the rolls because of absence without authority for 3 months or because sentenced to confinement.

2. Q. What does "service in the uniformed services" mean?

A. "Service in the uniformed services" means voluntary or involuntary duty under competent authority and includes active duty, active duty for training, full-time National Guard duty, and time absent for examination for fitness for such duty.

3. Q. What does the term "uniformed services" mean?

A. The term "uniformed services" means the Armed Forces, the Army National Guard, and the Air National Guard when engaged in active duty for training, inactive duty training, or full time National Guard duty, the commissioned corps of the Public Health Service, and any other category of persons designated by the President in time of war or emergency.

4. Q. May an employing office treat an employee who serves in the uniformed services unfavorably?

A. It is unlawful for an employing office to discriminate against an eligible employee, to deny reemployment rights to an eligible employee, or to deny benefits to an eligible employee on the basis of the employee's service in a uniformed service.

5. Q. Is an eligible employee entitled to reemployment when he or she returns from duty in the uniformed services?

A. Members of the uniformed services returning from duty have an "unqualified" right to reemployment if they have been released under honorable conditions and the following requirements are met:

  • The employee gives advance notice of service where possible. Lack of timely notification that does not harm the employing office is not a sufficient basis to deny reemployment rights, and employees are not required to decide before leaving for duty whether they will seek reemployment upon release from service.
  • The cumulative length of the absence and of all previous absences from a position of employment with that employing office by reason of service does not exceed five years.
  • The employee reports to work or applies for reemployment.

6. Q. Are there exceptions to the general rule that an employing office must reinstate an employee returning from duty in the uniformed services?

A. Yes. The employing office is not required to rehire the employee if the circumstances of the employing office have changed so as to make such reemployment impossible or unreasonable; if employment would impose an unreasonable hardship on the employer; or if the employment was entered into with the understanding that it was for a brief, nonrecurrent period, with no reasonable expectation that it would continue indefinitely or for a significant period.

7. Q. Does an eligible employee have to prove that he or she is entitled to reinstatement?

A. No. The burden of proving the impossibility or unreasonableness, undue hardship, brief or nonrecurrent nature or lack of reasonable expectation of reemployment of an eligible employee lies with the employer.

8. Q. Must an employee who has completed a period of service in the uniformed services notify the employing of his or her intent to return to work?

A. Yes. Unless they are injured or disabled during service, employees must apply for reemployment as follows:

  • In the case of an employee whose period of service was less than 31 days: The employee must report for work no later than the beginning of the first full regularly scheduled work period on the first full calendar day after the completion of the period of service, taking into account safe travel from the place of service to the employee's home plus an 8-hour rest period.
  • In the case of an employee whose period of service was for more than 30 days, but less than 181 days: The employee must report no later than 14 days following completion of the period of service, or if reporting is impossible or unreasonable through no fault of the employee, the next first full calendar day when reporting becomes possible.
  • In the case of an employee whose period of service was for more than 180 days: The employee must report no later than 90 days following completion of the period of service.

9. Q. Must an employing office reinstate an employee returning from service in the uniformed services to the same job that the employee held prior to service?

A. In general, the position to which a returning employee is entitled is based on length of military service as follows:

  • In the case of an employee whose period of service was for less than 91 days: The returning employees must be placed in the position he or she would have attained had he or she remained continuously employed, with the same seniority, status and pay, as well as other rights and benefits determined by seniority. This "escalator" position would depend on what has happened to the employment situation in the worker's absence, and could result in reemployment to the same position or a higher, lower or lateral position, or even layoff or severance status. If a returning employee is not qualified to perform in a higher position after "reasonable efforts" to qualify the employee, the preservice position must be offered.
  • In the case of an employee whose period of service was for more than 90 days: The employee must be offered the "escalator" position, or a position of like seniority, status and pay, only if the person is not qualified to perform the duties in the "escalator" position after reasonable efforts by the employing office to qualify the employee.
  • Returning employees who do not qualify for their escalator positions for any reason other than a service-related disability must be placed in a lesser position for which they are qualified, but would still retain full company seniority for all purposes.

10. Q. What benefits is an employee returning from a period of service in the uniformed services entitled to?

A. A reemployed employee is entitled to seniority and other rights and benefits as determined by seniority as of the date of commencement of service, plus additional seniority that would have been attained if the person had remained continuously employed. These rights and benefits include continuation of employee health plan coverage for up to 18 months (or the day after the employee fails to properly apply for or return to work, whichever is earlier), and protection of pension plan rights. Such coverage is at the employer's expense.

Upon reemployment, service members are entitled to health insurance benefits as if their employment had not been interrupted: there should be no lapse in coverage; no waiting period; and no exclusion for preexisting conditions for either employees or their dependents.

11. Q. Will a break in employment occur during the period a covered eligible employee serves in the uniformed services?

A. No. Service in the uniformed services in deemed to be service with the employing office for determining the accrual of benefits and the nonforfeitability of benefits under the plan. Therefore, pension plan accrual and vesting must continue during an employee's military service. In addition, employing offices are required to make, on behalf of returning service members, any contributions to their pensions that the employing office would have made if the employee had not been absent for service.

12. Q. What are the remedies for a violation by the employing office?

A. The remedies for violation(s) by the employing office entitle covered eligible employees to:

  • require that the employing office comply with the provisions of the USERRA, as made applicable by the CAA;
  • require that the employing office pay compensation for lost wages and benefits caused by the employing office's failure to comply with the provisions of the USERRA;
  • require that the employing office pay liquidated damages in the amount of lost wages and benefits in situations where the failure to comply was willful;
  • any appropriate equitable relief including temporary or permanent injunctions, temporary restraining orders, and contempt orders;
  • any eligible employee claiming rights under the USERRA, as applied by the CAA, does not have to pay fees or courts costs.

 

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