those who go on military leave do not suffer upon reemployment because of it, five conditions on which reemployment hinges. Required training for Reservists and National Guard members – Section 4312 (c) (3). 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 This category includes service not only by persons ordered to involuntary active duty, but also service by volunteers who receive orders to active duty. 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. 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. 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. Section 12304. 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… USERRA. The . Did you make an application or report back to the pre-service employer in a timely manner? The escalator principle is codified in sections 4313(a) and 4316(a) of USERRA.8 After a period of service lasting more than 90 days, the returning service member or veteran who meets the five USERRA conditions is entitled to be reemployed as follows” …in the position of employment in which the person would have been employed if the If the person could not be qualified in a similar position, did the employer place the person in any other position of lesser status and pay which he/she was qualified to perform with full seniority? Returning service members must be “promptly reemployed.” “Prompt reemployment” means as soon as is practicable under the circumstances of each individual case. The following three-part reemployment scheme is required for persons with disabilities incurred or aggravated while in military service. Employers may provide the notice “Your Rights Under USERRA” by posting it where employee notices are customarily placed. Every effort will be made to keep the information provided up-to-date. Section 4311(a). USERRA reemployment rights apply if the cumulative length of service that causes a person’s absences from a position does not exceed five years. 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. 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. 3. The principle behind the escalator position is that, if not for the period of military service, the employee should be reemployed in a position that reflects with reasonable certainty the pay, benefits, seniority, and other job perquisites that he or she would have attained if not for the period of service. 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). Did the employer continue coverage at the regular employee cost for service members whose leave was for less than 31 days? The employer bears the burden of proving that the person knowingly waived entitlement to the specific rights and benefits. (Exception would be discrimination cases.). */. Section 4312 (e) (2) (A) / 20 CFR 1002.116. The employer must make reasonable efforts to accommodate a person’s disability so that the person can perform the duties of the reemployment position. These include: 1. 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. Did the employer provide health coverage upon request of a service member whose leave was more than 30 days? The Escalator Principle. 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. 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. The employer is liable for funding any obligation of the plan to provide required benefits. 6. The National Committee for Employer Support of […] Dropping an individual from the rolls when the individual has been absent without authority for more than three months or is imprisoned by a civilian court. 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. 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. testifies, assists or otherwise participates in an investigation or proceeding under the law; or. Aspects of the law may change over time. These include requirements that employers restore employees to work following certain military leaves. 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. .manual-search ul.usa-list li {max-width:100%;} Protections. When requested by your employer, did you provide readily available documentation showing eligibility for reemployment? 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. This concept is known as the “escalator principle.” How To File A USERRA Complaint Reemployed service members are entitled to the seniority and all rights and benefits based on seniority that they would have attained with reasonable certainty had they remained continuously employed. 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. Under the escalator principle the employee may also be placed in a lower position or even laid off (for example, if the company went through reorganization or layoffs during the employee’s military service). 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. The employer cannot require that vacation or other personal leave be used. 5. Such a position may be a higher or lower position, depending on the circumstances. Did you hold a job other than one that was brief, nonrecurring? Benefits, including insurance, paid time off, vacation, etc. Did the employer grant the reemployed person pension plan benefits that accrued during military service? But the employer can require the employee to report for the 6:00 a.m. shift the next morning. 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. Did you notify the employer that you would be leaving the job for military training or service? This is not a publication of the U.S. Department of Labor. 2. 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. (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. Generally, the employee must be given the position she would have held had she remained continuously employed. 10. case was not the only early court case on service member reemployment rights. On September 20, 2013, the US Court of Appeals for the First Circuit issued an opinion in Rivera-Melendez v. Pfizer Pharmaceuticals, LLC, vacating the district court's judgment and 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" … However, such contributions have to be made promptly for persons who are absent for 90 or fewer days. All Rights Reserved. ), 4. The basic concept behind USERRA’s escalator principle is that employees should not be disadvantaged as a result of serving in the military. Reemployment rights extend to persons who have been absent from a position of employment because of “service in the uniformed services.” “Service in the uniformed services” means the performance of duty on a voluntary or involuntary basis in a uniformed service, including: The ”uniformed services” consist of the following [20 CFR 1002.5 (o)]: This USERRA QuickSeries reference guide is intended primarily for non-Federal employees and employers. 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. 5. USERRA. 6 DOES USERRA COVER INDEPENDENT CONTRACTORS? @media only screen and (min-width: 0px){.agency-nav-container.nav-is-open {overflow-y: unset!important;}} 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. USERRA Coverage. 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. 2. 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. No court fees or costs may be charged to anyone who brings suit. 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. Job protection following return. Separation from the service under other than honorable conditions. Call 1-800-336-4590 or visit www.esgr.org. Employers must provide refresher training, and any other training necessary to update a returning employee’s skills so that he or she has the ability to perform the essential tasks of the position. It cannot surrender other rights and benefits that a person would be entitled to under the law, particularly reemployment rights after service. 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. USERRA’s “escalator principle” is unique among employee leave protections. The giving of notice is otherwise impossible or unreasonable. 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 person’s separation from service was other than disqualifying under Section 4304. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) provides employment protections to military veterans and reservists. Lance Corporal Jones is not exempted from bad things, like layoffs or reductions in force, that 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. USERRA’s “escalator principle” is unique among employee leave protections. … .usa-footer .container {max-width:1440px!important;} In other words, the escalator can move up or down. Did the service member give advance notice of military service to the employer? See 38 U.S.C. (This notice can be written or verbal.). 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. 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. The site is secure. #views-exposed-form-manual-cloud-search-manual-cloud-search-results .form-actions{display:block;flex:1;} #tfa-entry-form .form-actions {justify-content:flex-start;} #node-agency-pages-layout-builder-form .form-actions {display:block;} #tfa-entry-form input {height:55px;} The anti-discrimination principle applies to decisions regarding hiring, promotions, terminations, employee benefits, and wages. 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. 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, … 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. USERRA’s “escalator principle” is unique among employee leave protections. The U.S. Department of Labor’s Veterans’ Employment and Training Service (VETS) administers the Uniformed Services Employment and Reemployment Rights Act (USERRA). Information and technical assistance is provided by the Veterans’ Employment and Training Service (VETS) of the Department of Labor (Section 4321). •If SM cannot perform duties of escalator position after employer’s reasonable efforts, then should be A higher position than the one you held prior to unformed service, The same position you held prior to uniformed service, A position comparable to the one you would have attained under the escalator principle, A position comparable to the one you held prior to uniformed service, The closest approximation to one of these mentioned positions. And duplicate any documents that it considers relevant to an investigation or proceeding under law. A break in service with an employer for vesting and benefit accrual purposes and reservists reinstatement did. 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