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. 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. Also excluded are additional training requirements certified in writing by the Secretary of the service concerned to be necessary for individual professional development. 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. Such a position may be a higher or lower position, depending on the circumstances. 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.” 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. 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. 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. 8. Did the employer in any way discriminate in employment, reemployment, retention in employment, promotion, or any benefit of employment on the basis of past or present membership, performance of service, application for service or obligation for military service? The statute lists four circumstances: 1. Relevant to Layoffs. Be cautious (and generous, if possible) before taking action that might make it a COVID-19 test case for failure to accommodate. USERRA applies to all U.S. employers, regardless of size. Were you discharged under conditions other than disqualifying under section 4304? Repayment of employee contributions or elective deferrals attributable to the period of service can be made over three times the period of military service but no longer than five years from the date of reemployment. Notice may be either written or oral. Federal government websites often end in .gov or .mil. 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. Military service must be considered service with an employer for vesting and benefit accrual purposes. 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 person’s separation from service was other than disqualifying under Section 4304. Section 4316(a) of USERRA codifies this “escalator principle.” The escalator can descend as well as ascend. 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. 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. Pension plans (Section 4318), which are tied to seniority, are given separate, detailed treatment under the law. The escalator goes down as well as up. 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. 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. No. 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. See 20 CFR 1002.225. 4 . The employer is liable for funding any obligation of the plan to provide required benefits. Applying this principle is reasonably simple when job advancement is … 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. Exceptions – Eight categories of service are exempt from the five-year limitation. •If SM cannot perform duties of escalator position after employer’s reasonable efforts, then should be 3. 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? This concept is known as the “escalator principle.” (This notice can be written or verbal.). The employee must be qualified to perform the duties of this position or be able to become qualified to perform them with reasonable efforts by the employer. exercises any right provided under the law. .news-button {display:none;} 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? 3. 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 […] Section 4303, 13 & 16). 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. This is not a publication of the U.S. Department of Labor. USERRA applies to all U.S. employers, regardless of size. A reemployed person must be treated as not having incurred a break in service with the employer maintaining a pension plan. USERRA. The employer cannot require that vacation or other personal leave be used. 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. 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 2. 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. Employers must make reasonable efforts to qualify a returning service member for the reemployment position. Reemployment Rights Act (USERRA). When requested by your employer, did you provide readily available documentation showing eligibility for reemployment? 4. 3. 6. The U.S. Department of Labor’s Veterans’ Employment and Training Service (VETS) administers the Uniformed Services Employment and Reemployment Rights Act (USERRA). Did you exceed the 5-year limit on periods of service? Section 4313 (a) (1) (B). Section 4318 (b) (2) / 20 CFR 1002.262 (b). (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. See Gates et al., 2013, Chapter Two, for more on the current application of the escalator principle under . Service members must, at their request, be permitted to use any vacation leave that had accrued before the beginning of their military service instead of unpaid leave. #and#4318. The employer does have in its favor the principle that an indefinite leave of absence with no reasonably certain end date or range is not a reasonable accommodation. On the other hand, a right or benefit is not seniority-based if it is compensation for work performed or is made available without regard to length of employment. Section 4318 (a) (2) (B) / 20 CFR 1002.259. 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. USERRA Coverage. 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. A person whose military service lasted 1 to 90 days must be “promptly reemployed” in the following order of priority: 1. In Rivera-Melendez v. Pfizer Pharmaceuticals, LLC, the US Court of Appeals for the First Circuit vacated the district court's judgment, 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" promotions. Did you notify the employer that you would be leaving the job for military training or service? (This is often referred to as the “escalator principle.”) This may result in a … Did you make an application or report back to the pre-service employer in a timely manner? 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. Cause for discharge may be based on conduct or the application of legitimate nondiscriminatory reasons. Section 4318 (b) (3) / 20 CFR 1002.267 (a) - 267 (b) (1). 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. 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. Most types of service will be counted in the computation of the five-year period. The reemployed person is entitled to any accrued benefits contingent upon employee contributions only to the extent that the person repays the employee contributions. 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. Job protection following return. (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. The employer must make reasonable efforts to accommodate a person’s disability so that the person can perform the duties of the reemployment position. Section 4312 (d) (1) (A) / 20 CFR 1002.139 (a). The escalator principle requires that an employee’s career trajectory be viewed as if uninterrupted by military duty. Unpaid leave for state active duty or drills with reinstatement according to the escalator principle. 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. 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. 4 . A notice of intent not to return can waive only leave-of-absence rights and benefits. The escalator goes down as well as up. Section 4311(a). The Secretaries of the various military branches each have authority to designate a military operation as a critical mission or requirement. USERRA reemployment rights apply if the cumulative length of service that causes a person’s absences from a position does not exceed five years. Protections. 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. 11. 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. Some military specialties, such as the Navy’s nuclear power program, require initial active service obligations beyond five years. The National Committee for Employer Support of […] ‘Escalator’ Principle. Upon the timely application for reinstatement, did the employer promptly reinstate the service member to his/her escalator position? §4313(a)(2) and 20 C.F.R. §1002.191. An employer has the right to request that a person who is absent for a period of service of 31 days or more provides documentation showing that, Section 4312 (f) (3) (A) / 20 CFR 1002.122. For example, if an employee’s seniority or job “Service in the Uniformed Services” and “Uniformed Services” Defined (38 U.S.C. 5. Section 4318 (c). 2. 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. 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. CITIZEN WARRIOR USERRA. 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. ol{list-style-type: decimal;} 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. The Escalator Principle. 6. those who go on military leave do not suffer upon reemployment because of it, five conditions on which reemployment hinges. (Section 1161 (b) of Title 10.). 2. Section 4313 (a) (4). (Exclude exceptions identified in the law.). 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. 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. p.usa-alert__text {margin-bottom:0!important;} Section 4312 (e) (2) (A) / 20 CFR 1002.116. Did the employer discriminate in employment against or take adverse employment action against any person who assisted in enforcement of a protection afforded any returning service member under this Statute? •USERRA requires employer make reasonable efforts to accommodate service-incurred disability. Section 12304. 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. 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. Service members may be required to pay the employee cost, if any, of any funded benefit to the extent that other employees on leave of absence are so required. Section 4318 (b) (2) / 20 CFR 1002.262. 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. 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. VETS investigates complaints and attempts to resolve them. In other words, the escalator can move up or down. Did the employer grant the reemployed person pension plan benefits that accrued during military service? Lance Corporal Jones is not exempted from bad things, like layoffs or reductions in force, that 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. USERRA’s “escalator principle” is unique among employee leave protections. 7. Call 1-800-336-4590 or visit www.esgr.org. case was not the only early court case on service member reemployment rights. VETS also has the right of reasonable access to interview any persons with information relevant to the investigation. The .gov means it’s official. (Exception would be discrimination cases.). 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. Ultimately, USERRA provides essential protection for your civilian employment. 2. Individuals have the option to privately file court actions. 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. Benefits, including insurance, paid time off, vacation, etc. Did you hold a job other than one that was brief, nonrecurring? The . Reinstatement after weekend National Guard duty will generally be the next regularly scheduled working day. Arkansas : USERRA rights apply for state active duty. This concept is known as the “escalator principle.” How To File A USERRA Complaint 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). .cd-main-content p, blockquote {margin-bottom:1em;} Disability Provisions, Cont’d. Job protection following return. 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. Did the employer provide training or retraining and other accommodations to persons with service-connected disabilities? To qualify for USERRA’s protections, a service member must be available to return to work within certain time limits. This is called the “escalator principle,” the analogy being that the employee is entitled to be placed back on the employment status escalator where he would have been if he hadn’t stepped off to enter military service. Employment discrimination because of past, current, or future military obligations is prohibited. In deciding whether an individual is an independent contractor, the following factors need to USERRA prohibits discrimination against servicemembers and veterans based on their military ... current, or future service in the military is breaking the law. 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. 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. 7. The basic concept behind USERRA’s escalator principle is that employees should not be disadvantaged as a result of serving in the military. 11. 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. Section 4313 (b) (1) & (2) (A) / 20 CFR 1002.199. The two-year period will be extended by the minimum time required to accommodate a circumstance beyond an individual’s control that would make reporting within the two-year period impossible or unreasonable. 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. .manual-search-block #edit-actions--2 {order:2;} Before sharing sensitive information, make sure you’re on a federal government site. Disabilities Incurred or Aggravated While in Military Service. USERRA prohibits discrimination against servicemembers and veterans based on their military ... current, or future service in the military is breaking the law. Fishgold . For example, an employer cannot require a service member who returns home at 10:00 p.m. to report to work at 12:30 a.m. that night. No court fees or costs may be charged to anyone who brings suit. Accordingly,#the#districtcourtfound#that"the#purpose#of#the#escalator#principle#is#to# 'assure#thatthose#changes#and#advancements#thatwould#necessarily#have#occurred# simply#by#virtue#of#continued#employmentwill#notbe#denied#the#veteran#because#of#his# absence#in#the#military#service,'"#Dist.#Ct.#Op.#at18#(quoting#McKinney,#357#U.S.#at272) … ), 4. Persons who serve for 30 or fewer days are not protected from discharge without cause. @media only screen and (min-width: 0px){.agency-nav-container.nav-is-open {overflow-y: unset!important;}} An application for reemployment must be submitted to the employer no later than 90 days after completion of a person’s military service. 10. Service by members who are ordered to active duty in support of a “critical mission or requirement” of the uniformed services as determined by the Secretary involved – Section 4312 (c) (4) (D). The anti-discrimination principle applies to decisions regarding hiring, promotions, terminations, employee benefits, and wages. 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. Section 4313 (a) (1) (A) & (B) / 20 CFR 1002.196. 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. … application of the escalator principle. When would a person’s service disqualify him or her from asserting USERRA rights? The giving of notice is otherwise impossible or unreasonable. Absence from work for an examination to determine a person’s fitness for any of the above types of duty, Funeral honors duty performed by National Guard or Reserve members. Its military leave and reemployment provisions apply to all employees absent from work because of service in the uniformed services. USERRA also applies to all United States employers operating in Foreign countries. Defined benefit plans, defined contribution plans, and profit-sharing plans that are retirement plans are covered. [CDATA[/* >