Federal Employees and USERRA

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Employer Support of the Guard and Reserve (ESGR) regularly fields inquiries regarding the Uniformed Services Employment and Reemployment Rights Act (USERRA) from service members employed by the Federal Government and from the Federal Government about a service member employee. A vast majority of these questions relate to the application of certain USERRA requirements at the Federal workplace.

To add to the complexity of USERRA’s application in the Federal workplace, the Office of Personnel Management (OPM) regulation provides additional, non-USERRA required benefits to service member employees when performing certain types of military service.

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Discussion: Primarily six (concerns/issues) are regularly raised by service member employees and federal government employers regarding USERRA. ESGR does not have the full view associated with USERRA claims because service members have multiple redress avenues for their USERRA issues or concerns.

However, ESGR believes that targeted education and training focused on the six areas below will greatly reduce USERRA cases in the federal government by service member employees. Mandatory USERRA training that specifically includes OPM’s military leave benefits, monitored and tracked similar to the Information Assurance or government Ethics, or Sexual Harassment training would reduce federal USERRA cases.

Frequent Concerns of Service member employees and Federal employer: Issue 1: Service members feel that they are not properly reinstated to the appropriate position upon completion of military service * Federal agencies fail to reinstate returning service member due to position being filled or position being cut * Service members are not considered for promotional opportunities, miss interviews, face closed application periods upon return from military service * Recommended training focus: 20 CFR 1002. 191-199 and 5 CRF 353. 207 to understand reinstatement position requirements * 20 CFR 1002. 193 (b) and 5 CFR 353. 106 (c) regarding promotional opportunities Issue 2: Request for orders with service member’s name/documentation to prove attendance in advance of service or following service lasting less than 30 days * USERRA does not require documentation to perform service in a leave without pay status * This issue relates to OPM’s paid military leave benefit.

In order to receive paid leave, the agency must have documentation of service and the service must be for the purpose of active duty or active duty training * Service members do not always receive documentation in advance, or have been advised that documentation cannot be required from an employer in advance of service by law * Employers assume that since documentation is required to receive paid military leave, it should be required at all times for consistency * Recommended training focus:

* Highlight 20 CFR 1002. 85, 1002. 121-123 Coordinate with OPM regarding paid time off and requirements to take advantage of benefit * Understand LWOP and LWOP US requirements and that penalty cannot come to SM with advanced verbal/written notice in any format Issue 3: Service members feel discriminated against due to past, present or future military service * Service members report that with knowledge of upcoming service, they are harassed, denied opportunities (i. e. training, consideration for advancement), and treated differently from their peers * Federal agencies must instill in managers and supervisors that discrimination is unlawful * Recommended training focus: 20 CFR 1002. 18-23 and 353. 202 defining anti-discrimination under USERRA Issue 4: Both service members and federal employer have questions about what is / is not exempt from five year service limit

* Most but not all orders will indicate exemptions from the five year service limit * Much of service performed in the last ten years in support of the Global War on Terror is considered exempt service * Service members are not aware that retirement from military service can disqualify service member from reinstatement due to “career status” with military * Recommended training focus: 20 CFR 1002. 99-103 and Secretary memos * Educate SM regarding “career service” retirements and the potential issues when returning to work Issue 5: Federal Employers misunderstand timelines to report back to work * Federal employers have stated confusion regarding ‘application’ for reemployment as defined by law. Since he service member was never separated, some agencies feel that the member does not need additional time to reapply * Concerned agencies wonder what status the service member should be held in during this time * Both Federal employers and the service members have confusion about the relation of their return to work date and the five days paid administrative leave for contingency operations.

* Recommended training focus: * 20 CFR 1002. 115-1002. 119 and 5 CFR 353. 05 to understand the definitions of ‘application’ and ‘reemployment’ * Coordinate with OPM regarding status to determine if the service member maintain LWOP-US status until returned to work * Coordinate with OPM regarding five days of leave administrative leave and it’s coordination with return to work dates Issue 6: Health benefits are not properly stopped, restarted with military service absences * Federal employers will continue health benefits when performing certain contingency missions, but sometimes fail to terminate benefits without affirmative action from the service member * Reinstatement of benefits can be delayed Suspension of and reinstatement of vision / dental FEBH benefits must be done separately from health benefits, but are still covered by the law. * Recommended training focus: * 20 CFR 1002. 163-171 pertaining to stopping/starting benefits * Coordination with OPM regarding what type of orders are eligible for continuation of benefits