USERRA, the Five-Year Limit, and the Documentation Requirement By Captain Samuel F. Wright, JAGC, USN (Ret. USERRA also has a safe harbor provision that protects returning employees from discharge if they meet certain conditions. Where the request would require the employee to be absent from work for an extended period, during times of acute need, or when, in light of previous leaves, the requested leave is cumulatively burdensome, the agency may contact the military commander of the employee's military unit to determine if the military duty could be rescheduled or performed by another member. Most Reserve component members are required, as a minimum, to participate in drills for 2 days each month and in 2 weeks of active duty for training per year. The employee is expected to provide the agency with as much advance notice as possible whenever military duty or training will interfere with civilian work. Time limit may be extended in some circumstances. (Under the old law, the length of time an employee had to apply for restoration was determined by the type of military duty performed.) Providing Professional Growth & Development to the HR Benefits Community ... first time and allowed service credit with military deposit ... Review Restoration Rights •Time Limits •Notification Process. Military Deposits Under USERRA. (b) Counting service prior to the effective date of USERRA. USERRA The USERRA law has not changed, but the impact of the provisions will become ... - applies for restoration within the appropriate time limits. The law requires Labor to provide employment and reemployment assistance to any Federal employee or applicant who requests it. To assist with understanding the Uniformed Services Employment and Reemployment Rights Act (USERRA), ESGR has partnered with the Department of Labor to create a list of frequently asked questions (FAQs) concerning USERRA. August 11, 2016, occurs in the 2016 leave year, which ends January 7, 2017. Exceptions to the 5-year limit: • If you are unable to obtain release or if service is required to complete an initial ���D�N iF �����3J ��# The date of restoration of the annual leave is August 11, 2014. So, you can add up the total amount of military leave time with your company. h�bbd```b``�� ��,� &_�H�V��"[��$cH6��y�x$��g`�� 6����?��� ;e Furthermore, while there is no time limit to file a USERRA appeal, the Board can enforce only those rights that existed under USERRA and its predecessor statute (the Vietnam Era Veterans' Readjustment Assistance Act of 1974) at the time the claim accrued. USERRA gives servicemembers a right to be reemployed by their civilian employers when they take leave from their employers to serve in the military and return from serving in the military—in the same position or, in some cases, in a better position than when they began their military service—so long as they give notice of their military duty to their civilian employer, request reemployment on a timely basis after … (v) Called into Federal service as a member of the National Guard under chapter 15 or under section 12406 of title 10, United States Code. Title 32 military duty performed on 11 December 1994 or earlier is exempt from the 5-year limit. Counting service prior to the effective date of USERRA. 176 0 obj <>stream For service of more than 180 days, an application for reemployment must be submitted within 90 days of release from service. 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. - For the first time, the Department of Labor's Veterans' Employment and Training Service (VETS) is directly involved, by law, in the restoration of Federal employees performing military duty. (iii) Ordered to active duty (other than for training) in support, as determined by the Secretary of the military department concerned, of an operational mission for which personnel have been ordered to active duty under 10 U.S.C. (1) That is required beyond 5 years to complete an initial period of obligated service; (2) During which the individual was unable to obtain orders releasing him or her from service in the uniformed services before expiration of the 5-year period, and such inability was through no fault of the individual; (3) Performed as required pursuant to 10 U.S.C. Five-year limit. 12304; (iv) Ordered to active duty in support, as determined by the Secretary of the military department concerned, of a critical mission or requirement of the uniformed services, or. The Ready Reserve as a whole is subject to as much as 24 consecutive months of active duty in a national emergency declared by the President. )2 Update on Sam Wright 1.1.3.1—USERRA applies to voluntary service 1.3.1.2—Character and duration of service 1.3.1.3—Timely application for reemployment … The time limits for returning to work are: USERRA sets a cumulative limit of 5-years on the amount of military leave you can perform and retain reemployment rights with a given employer. An employee who is a member of the Reserve or National Guard has a dual obligation - to the military and to his or her employer. 10147, under 32 U.S.C. For several years the Colorado legislature tried without success to pass paid family and medical leave legislation. 166 0 obj <>/Filter/FlateDecode/ID[<641C82ED2A3298B0AC4C1FD1D771115F><4DF3475F8B3A5A429AA9BE9236D1B5ED>]/Index[154 23]/Info 153 0 R/Length 80/Prev 759753/Root 155 0 R/Size 177/Type/XRef/W[1 3 1]>>stream However, the 5-year period does not include any service - (1) That is required beyond 5 years to complete an initial period of obligated service; These limits vary depending on length of ee's leave & whether they suffered or aggravated a disability while serving. Some accommodation may be necessary by both parties. 2) Compensatory Time and Time-Off Awards which were not used within 1 year of earning them, %PDF-1.5 %���� To be entitled to restoration rights under this part, cumulative service in the uniformed services while employed by the Federal Government may not exceed 5 years. Fernandez v. Department of the Army , 234 F.3d 553 , 556-57 (Fed. Can we extend his DCIP appointment? To maintain reemployment rights under USERRA, you must report back to work, or apply for reemployment, in accordance with the following time schedule: 1-30 Days of Service. Individuals may only hold a Federal Career Intern Program (FCIP/DCIP) appointment for 2 years. Two years after August 11, 2014, is August 11, 2016. limit unless specifically exempted under 38 USC 4312 (see paragraph 7 & 20 CFR 1002.103). The person must report to his or her employer by the beginning of the first regularly scheduled work day that would fall eight hours after the end of the calendar day. We find, based on the MVAs, that orders for these particular jobs with such an exemption noted endstream endobj startxref Then compare to the USERRA regulations at 20 CFR 1002.103, which lists the types of service that are exempt from the five-year limit. endstream endobj 155 0 obj <> endobj 156 0 obj <> endobj 157 0 obj <>stream certain applicants would be exempt from the 5year limit for restoration of employment rights - under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). But some members are required to participate in longer or more frequent training tours. Given the nature of the employee's service obligation, some conflict with job demands is often unavoidable and a good-faith effort on the part of both the employee and the agency is needed to minimize conflict and resolve differences. Thus, if a technician was on a 32 U.S.C. 3.) USERRA rights are not diminished because an employee holds a temporary, part-time, probationary, or seasonal employment position. Counting service after the effective date of USERRA (12/12/94). 502(f) AGR tour on October 13, 1994, (the date USERRA was signed into law), but exercised restoration rights after December 11, 1994, (the date USERRA became fully effective), AGR service prior to December 12 would not count in computing the 5-year total, but all service beginning with that date would count. Electronic Code of Federal Regulations (e-CFR), CHAPTER I - OFFICE OF PERSONNEL MANAGEMENT, PART 353 - RESTORATION TO DUTY FROM UNIFORMED SERVICE OR COMPENSABLE INJURY. After restoration, they may not be discharged (except for cause) for 1 year if they served for more than 180 days, or for 6 months if they served for more than 30 days, but less than 181 days • USERRA prohibits an agency from discriminating against or taking any reprisal against an applicant or employee To be entitled to restoration rights under this part, cumulative service in the uniformed services while employed by the Federal Government may not exceed 5 years. A19. 4.) The article included several frequently asked questions concerning the re-employment of veterans and the restoration of retirement plan benefits. hޤTYo�0�+z\�e�l�� ��t��s��:Z��G`�@��K�vs�]��`H�4�/��U@�*$������#"@͉��Q�$��=�y$� ��9>�q�Wu�ѩ�C�\UF~���ޞ%V[��%��i#�����̈́kN�=ר����&_�U�;�W':3��N�2��\��1)V�X��4-��� �*���Ay� ���p8��8��, �ݐ(zyE~�1`�N�QwL� ���=l�vIZm��pԔ�>���|3�jm �'��&�^5D In determining the 5-year total that may not be exceeded for purposes of exercising restoration rights, service performed prior to December 12, 1994, is considered only to the extent that it would have counted under the previous law (the Veterans' Reemployment Rights statute). If you get a new employer, you get a new 5-year limit. Overview of USERRA Public Law 103-353 revised and restructured the Veteran's Reemployment Rights Law (Chapter 43 of Title 38, U.S. Code), governing the restoration rights of employees who perform military duty. If the President declares a national emergency, the remainder of the Ready Reserve - the Individual Ready Reserve and the Inactive National Guard - may be called up. Must report back to work on the next scheduled work day after safe travel home … II.USERRA ELECTION TYPE (Continued) Notes on effective date of election: 1) If you elect Absent-US and you are using regular compensatory time while on orders, the regular compensatory time must be used immediately upon entry into military duty and your election for Absent-US will be effective the day after you finish using compensatory time. USERRA also requires that service members provide advance written or verbal notice to their employers for all military duty unless giving notice is impossible, unreasonable, or precluded by military necessity. However, title 32, section 502(f) AGR service is not exempt from the cumulative time limits allowed under USERRA and service after the effective date counts under USERRA rules. (a) Counting service after the effective date of USERRA (12/12/94). %%EOF Questions regarding employment, reemployment, restoration rights, and benefits coverage during and after such military duty, should be referred to your servicing personnel office. The employee reports back or applies for reinstatement within specified time limits. The employee was released from military service under honorable conditions. Agencies must re-employ as soon as practicable but no later than 30 days after have restoration rights under USERRA. (d) Mobilization authority. However, the 5-year period does not include any service -. -Notice requirement. h�b```f``��,�" ���@�P0Of��W�gXY2002p}`�� j�0����*��)����@}|�t�0�3p+03�L`Աh� �P �h� e`|s�k�9 ~k"��d5>,w�� �$wn��� � �@����ށ3�wt��wt�U �05@��c�A �`#T�� b. There are several employee rights protected under USERRA and these are: • The right to be re-employed in your previous job before joining the military. 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