USERRA prohibits discrimination against servicemembers and veterans based on their military ... current, or future service in the military is breaking the law. 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? 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. Most types of service will be counted in the computation of the five-year period. .manual-search ul.usa-list li {max-width:100%;} Section 4312 (d) (1) (A) / 20 CFR 1002.139 (a). However, such contributions have to be made promptly for persons who are absent for 90 or fewer days. The Secretary of Labor issued USERRA regulations covering private and state employers written in a plain English question-and-answer format. .table thead th {background-color:#f1f1f1;color:#222;} 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. The law requires employees to provide their employers with advance notice of military service, with some exceptions. .dol-alert-status-error .alert-status-container {display:inline;font-size:1.4em;color:#e31c3d;} The anti-discrimination principle applies to decisions regarding hiring, promotions, terminations, employee benefits, and wages. #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;} 2. 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. 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. 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. Such a position may be a higher or lower position, depending on the circumstances. 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. 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. 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. 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 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. Service from which a person, through no fault of the person, is unable to obtain a release within the five-year limit – Section 4312 (c) (2). #block-opa-theme-content > div > div.guidance-search > div.csv-feed.views-data-export-feed {display:none;} If, despite reasonable accommodation efforts, the person is not qualified for the position in (1) due to his or her disability, the person must be reemployed in a position of equivalent seniority, status, and pay, to the escalator position. Regulations for each military branch specify when separation from the service would be considered “other than honorable.”, 3. VETS also has the right of reasonable access to interview any persons with information relevant to the investigation. 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 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. Subsequent case law would wrestle with what benefits of employment were tied to seniority. 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. If no allocation or cost-sharing arrangement is provided, the full liability to make the retroactive contributions to the plan will be allocated to the last employer employing the person before the period of military service or, if that employer is no longer functional, to the overall plan. Section 4318 (a) (2) (B) / 20 CFR 1002.259. VETS investigates complaints and attempts to resolve them. Branch specify when separation from the service would be entitled to any matter under investigation that person. 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