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03-936coun�n F,ie # 03 - � =�(� GreenSheet# ab5/b RESOLUTION SAINT PAUL, MINNESOTA Presented Referred To � Comuuttee Date City o'f"Sainf Paul Miiitary Reservists Employment CaII-up Poiicy 2 � WHEREAS, the United States of America is at war with terrorism and has military commihnents that span the globe including but not limited to Iraq, Afghanistan, the Phillippines, Bosnia and South Korea; and WHEREAS, these military commitments have required the deployment of our standing military forces; and 5 WHEREAS, these forces need to be augmented by military reserves from the fifty States; and 6 WHEREAS, Minnesota has a great tradition of supplying the armed forces of the United States with brave and competent 7 men and women military reservists, from our cities, towns and farms; and 8 WHEREAS,someofthesereservistsareCityofSaintPaulemployeeswhomrequireimportantinformationconcerningtheir 9 employment rights in light of national and state policies concerning the call up of reserves in wartime; now therefore be it 10 RESOLVED, that the Saint Paul City Council requests that the Office of Human Resources and Risk Management provide 11 all relevant information to City employees who are in the military reserves, who have been called-up or who might be called- 12 up, as to their rights and responsibilities in matters of employment, re-employment and benefits having to do with their status 13 as reservists; be it further 14 RESOLVED, that this information be presented before the City Council on Wednesday, November 5, 2003 at the City 15 Council meeting; and be it further 16 RESOLVED, that this mforma be made available to all el igible city employees no later than Friday, November 7, 2003. —�� - � - � ��-- :. . s�� o�� :-,.,. o�� .,, ■�� :.�.,�� —�� Requested by Departmern of: � Form Approved by City Attomey � Adopted by Council: Date /e— I d� /�.3 Adoprion Certified by Council Secretary � Approved by Mayor for Submission to Council Appi � 03-93� DEPARTMINffOFFICHCOUNCIL -,. , DATEWRwrEO - , CI7'YCOUNCII. October9 GREEN SHEET No 205108 COMAC7 PQ2SOM & PFiONE INUallmh InXWloaSe Cotmcilmember Jeny Blakey 266-8610 o[...+renow�rw arrca.ca MUSi BE ON COUNCIL AGEND.48Y (DA't� Ass�cx wureErtwrs �an�nonear a�rmK ROIfT11K ORDQt ❑ w1Y1Ct�LaFRY1CFi0R A11411GLaFR1I�ACCfC ❑wvonloawaasrsxp ❑ TOTAL # OF SIGNATURE PAC,ES (CLJP ALL LOCATIONS FOR SIGNATURE) CTION REQUESTED Requesting the Office ofHuman Resoisces andRiskManagementprovide information to the City Council and City employees who aze military reservists as to their employment rights afrer being called up for military service. RECAMMENDATION Apprwe (A) or Reject (R) VERSONAL SERVICE CONTR4Ci5 MUSTANSWE2TXE FOLLOWING QUESRONS: 1. Has fhis perwNfirm ever vrorked urMer e cantract Tor Nis tlepa�finent') PLANNING COMMISSION VES NO CIB COMMITTEE 2. Has thie peisoNfirtn ever been a ciry empbyee7 C1VIL SERVICE COMMISSION YES NO 3. Does this persoMrm possess a sltill not nwmalryP� bY �Y ��nt aly emPloyee? VES NO 4. Is ihis personfirtn e targetetl vendoR VES NO F�piain a0 yw answeis on separa[e sheK antl adach M green sheet INITIATING PROBLEM ISSUE, OPPoRTUNITY (Who, What, When, Where, Why) ADVANTAGESIFAPPROVED . DISADVANTAGESIFAPPROVED . DISADVANTAGES IF NOT APPROVED TOTAL AMOUNT OF TRANSACf10N S C0.4T/REVENUE BUDGETW �CIRCLE ONE) YES NO PUNDINGSOURCE ACTNINNUMBER FlNlWCIAL INFORMA710N (IXPWN) �oui/�.% //-� D.3 35 Report from the Office of Human Resources and the Risk Management Division regarding employment rights after City employees who are military reservists are called up for military service. (Report requested by Council October 15; C.F. 03- 936) CTTY OF SAINT�UL BmrdY G %P.l1Y, Maya> /J � �j �� - 1� i f / G / ,! G Du�c. % �43 OFFICE OF HUMe�Q RESOURCES AngelaS.Ndeem�;D"vector �� 400 Cily Hall Amees TeZephpne: 657-266-6500 25 WestFowth Sueet SamtP¢u1,Mimle,rota 55102-1631 Joblbie: 651-266-6502 Facsunile: 651-292-7656 To: City Council President Bostrom and City Council Members From: Angela Nalezny, Auman Resources I}irector Date: Re: November 4, 2003 Report on Military Leave and Employee Rights, Responsibilities and Benefits The Office of Human Resources has been asked to provide a11 relevant information to city employees who are in the military reserves, who have been called up or who might be called up, as to their rights and responsibilities in the matters of employment, re-employment and benefits having to do with their status as reservists and to present the same before the City Council on Wednesday, November 5, 2003. The information presented here will be mailed to City ReservisYs and Cruard's home addresses and will be posted on Human Resources' intemet and intrauet websites. The City of Saint Paul currently has 10 employees called to active duty; we have a total of 33 employees (including the 10) in the Guards or Reserves who potentially may be called up. The cantact person from Employer Support of the Guard and Reserve (ESGR) indicated a strong possibility that a11 will be called up in the next year. Applicable Laws Federal: The Uniformed Services Employment and Reemployment Rights Act (LTSERRA), enacted October 1994 and significantly updated 'm 1996 and 1998, provides job protection and rights of reinstaYement to employees who participate m the National Guard and Reserve. A`�requenUy Asked Questions" fact sheet, developed by the ESGR, is attached. Tfris fact sheet is the best representation I have found that explains employee's rights and responsibilities in mattes of employment, re-employment and benefits having to do with their status as reservists called to active duty. State: M.S. 192.26 provides for a maximum of 15 paid days per calendar year with no loss of pay, seniority, vacation/sick leaue accrua.ls, or other benefits (life/health insurance) during the 15 day period. A day has been defined as whatever the employee's regularly scheduled shift entails. For example, fire fighters are allowed fifteen 24-hour paid days per calendar year. Unpaid leaue is available for up to four years of active service. (5tate law, enacted in the 2003 legislative session, allows municipalities to make up the differenrial in salary.) Upon reriun from leaue, any sick leave, vacation rime, and seniority accumulated during military leave is granted to the employee as if s/he has not left city employment. An Affmnative Action Equa1 Opportunity ADA Employer i�/.�/�� Military Leave, Benefits, Rights and Responsibilities Page 2 Current City Benefits for Employees on Active Duty Each yeaz employees aze paid for 15 days militazy lea�e. For employees called to active duty, they eam vacation and sick accrual and step increases. I3pon their retum they aze given the vacation and sick leaue ho�ss that would have accrued and they are slotted into a pay step as if they had not been gone. Addirionally, the employee is eligible to pay lus ar her share of what they would have normally paid (as if they were working for the City) into PERA upon their rehttu and the City also pays its shaze to PERA on behalf of the employee. Under State law, the employee must pay their shaze first and then PERA bills the City for the employer shaze plus interest on both. Health Insurance The City Provides health msurance for the first 30 days an mdividual is on military leave. After the 30 days, the mdividual is provided with smgle or family coverage through the military. Individuals are given COBRA rights after 30 days of military leaue. If one has smgie coverage, it generally does not make sense to contuiue coverage through the City as the miliary provides health benefits and the mdividual may be out of the country. One may want to contmue family coverage through COBRA if fiunily members do not want to use the military benefit. USERRA (I7niformed Services Employment and Reemployment Rights Act) provides for military health benefits (TriCaze) for members of the Reserves or Guards called to active duty for more than 30 days. TriCaze provides many oprions for singles and faznily members mclud'mg deduch'ble plans, co-pay plans, and one may always receive fully paid coverage at the Veteran's Clmic or Hospital. In all the cases we have eaperienced recently, it has been cost effective for the employee to select Tri-Caze than contmue family coverage through the City. For more information on Tri-Care, see:www.triwest.com and www.tricare.osd.mil As always, if you have any questions, please let me lrnow. My phone number is 266-6515. Attachment: Frequently Asked Questions on USERRA An Affirniative Action Equal Opportunity ADA Employer ��- � _/�3 �3� SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT Questions and Answers for Employees The Uniformed Services Employment and Reemployment Rights Act (LTSERRA) is codified 'm title 38, United States Code, sections 4301-4333 (38 U.S.C. 4301-4333). The mformation provided herein should not be considered legal authority. Rather, it is provided as general mformation about USERRA and is taken from the Employer Support of the Guard and Reserve (ESGR) website, October 2003 (www.es�.com). A person who leaves a civilian job for voluntary or involuntary "service in the uniformed services" is entitled to reemployment in the civilian job (with accrued seniority) if he or she meets the following eligi�bility criteria: • Must have left the job for the purpose of perfornvng service in the uniformed services. 38 U.S.C. 4312(a). • Must have given prior oral or written notice to the civilian employer. 38 U.S.C. 4312(a)(1) Prior notice is not required if it is precluded by military necessity or otherwise impossible or unreasonable. 38 U.S.C. 4312(b). • Cumulative period or periods of service in the uniformed services, relating to that particulaz civilian employer, must not have exceeded the five-year limit. All involuntary service and some voluntary service are exetnpted from the five-year limit. 38 U.S.C. 4312(c). • Must have been released from the period of service, without having been °dropped from the rolls" or having received a punitive or other-than-honorable discharge. 38 U.S.C. 4304. • Must have reported back to work in a timely u�anner, or have submitted a timely application for reemployment. 38 U.S.C. 4312(e)(1). FREQUENTLY ASKED QUESTIONS 1. What aze the uniformed services? USERRA defines the uniformed services as the Atmy, Navy, Marine Corps, Air Force, Coast Guard, and the commissioned corps of the Public Health Service. The Army National Guard and Air National Guard qualify when perfornvng active duty for training, inactive duty training, or full-time National Guard duty. Finally, during a period of war or national emergency the President can designate any other category of persons to be a"uniformed service" for purposes of USERRA. 38 U.S.C. 4303(16). 2. What is "service in the uniformed services?" "The term 'service in the uniformed services' means the perfoni�ance of duty on a voluntary or involuntary basis in a uniformed service under competent authority and includes active duty, �i/s/o� �� active duty for trammg, inactive duty trammg, full-tune National Guard duty, a period for wluch a person is absent from a position of employment for the pttrpose of an e�**�ma�on to determme the fitness of the person for any such duty, and a period for wluch a person is absent from a position of e�loyment for the piupose of performing fitneral honors duty as authorized by section 12503 oftitle 10 or section 115 oftitle 32." 38 U.S.C. 4303(13). 3. Does IISERRA apply to voluntary service? Yes. Please see language above. 4. How much norice am I reqused to give to my employer, prior to a period of service? ESGR recommends that reservists and National Guard members give as much advance notice as possble, but USERRA does not specify any mmimum period ofnotice. Circumstances arise, especially in a mobi]ization scenario, when the mdividual has very little advance notice from military authorities. USERRA's legislative history mdicates that Congress intended that the lateness of the notice to the civilian employer should not defeat the right to reemployment, especially when the individual had little or no notice from the military. 5. Am I required to provide my employer a copy of my military orders when I give notice of an upcommg period of service? No. USERRA imposes no such requsement. ESGR recommends that National Guard and Reserve personnel provide to theff employers such documernation as is readily available. Your civilian employer is pernritted and encouraged to call your commanding officer with questions about your service. 6. I take a lot of time off far military traming and service. Now, I haue been asked to perform service at a time that is particulazly mconvenient for my employer. Is my employer permitted to veto my request for military leave? No. 38 U.S.C. 4312(h). You aze only requ.sed to give yotu employer notice, not to obtam your employer's permission However, as a matter of courtesy, ESGR recommends that you pLrase your notice as a request for permission. The employer has no right to veto the timmg, frequency, duration, etc. of your military traming and service. However, the employer is pernritted to contact your commanding officer. It is Department of Defense (DOD) policy that the commanding officer should work with yo� employer to resolve conflicts of this l�d The commaud'mg officer will accede to your employer's reasonable request to resohedule military trainmg, unless domg so would detract from unit read'mess and mission accomplishment. If the timmg of this traming period presents a real problem for your employer, the commanding officer will try to adjust the schedule, but please understand that such rescheduling must be kept to a m'mimum National Guard and Reserve units train together, and they must go to war together. The trainmg periods aze scheduled so that the unit can be tramed together. If you perform trammg at a different time, you may miss important teammg that the rest of the unit received As a result, you may not leam how to perform some critical task, resaltiug in additional casualties and endangering the accomplislunent of the mission. 2 iil�l��. -�-�� Under the "Total Force Policy," our nation is more dependent thau ever before upon the National Guard and Reserve for essential military readiness. The National Guard and Reserve make up almost half of the total pool of a�ailable military personnel. Is my employer permitted to make me find a replacement for the time that I will be away from work performing service? No. You are respons�ble for giving the e�loyer advance notice, if possble, but not for rearrangmg yo� schedule or finding a replacement. 8. Is my employer permitted to make me use vacation for my military trammg or service? No. If you want to use vacation, he or she has the right to do so, but it is unlawfixl for your employer to make you use vacation. 38 U.S.C. 4316(d). 9. Is my employer requffed to pay me for the period that I am away from work performmg military tca.ining or service? USERRA does not require aa employer to pay aa mdividual for time not worked due to service. Another Federal law (5 U.S.C. 6323) gives Federal civilian employees the right to 120 hours per fiscal year ofpaid military leaue. About 40 states have suuilaz laws far state and local government employees. If you aze exempt from the Fau� Labor Standards Act (FLSA) overtime rules (because you are a manager, for example), the employer is not permitted to make a deduction for a part of a day missed because of temporary military leaue. See 29 Code of Federal Regiilations 541.118(4). This is aa FLSA requu�ement, not a USERRA requirement. 10. Is my employer required to provide me other benefits of employment while I am away from work performmg service? If and to the extent that your employer provides benefits to employees who have been furloughed (laid o� or to employees on some l�d of non-militazy leave (jucy leave, educarional leave, etc.), your employer must provide similar benefits to employees who aze away from work performing service m the uniformed services. 38 U.S.C. 4316(b). An employee who is away from work performmg service m the uniformed services is entitled to elect contutued hea$h plau coverage through the civilian job. If the period of service is less thau 31 days, the employer is permitted to charge the employee only the employee share (if any) of the cost of the coverage. If the period of service is 31 days or more, the employer is permitted (but not requu�ed) to charge the employee up to 102% of the entu�e premnuv, mctud'mg the part that the employer normallypays in the case ofactive employees. 38 U.S.C. 4317(a). 11. After a period of military trammg or service, how quickly am I requrced to rehun to work? Il�S�d� �3� ThaY depends upon the duration of the period of service from which you aze retuming. If the period of service is less than 31 days, you aze requffed to report for work "not ]ater than the begmnmg of the first regutazly scheduled work period on the first fiill calendar day followmg the completion of the period of service and the expiration of eight hours after a period allowing for the safe transportation of the person from the place of that service to the person's residence." 38 U.S.C. 4312(e)(1)(A)(i). Ifreporting at that time is �ossble or imreasonable through no fault of yotus (e.g., automobile accident on ret�sn tr�), you are required to report for work as soon as possble thereafter. 38 U.S.C. 4312(e)(1)(A)(ri). If the period of service was 31-180 days, you are reqnffed to submit an application for reemployment withm 14 days after the end of the period of service. 38 U.S.C. 4312(e)(1)(C). If the period of service was 181 days or more, you must submit the application for reemg�loyment withm 90 days. 38 U.S.C. 4312(e)(1)(D). These deadlines can be ea�tended by up to two years if you aze hospitalized for or convalescing from a service-connected 'mjury or illness. 38 U.S.C. 4312(e)(2)(A). 12. Does that mean that I must wait 90 days to get my job back? No. The 90 days belong to you, not the employer. If you aze ax�.zious to get back on the payroll as quickly as poss�ble, you should submit your application for reemployment right away. If you need time to readjust to civilian life, you should wait to submit your application. Once you apply, you aze in effect saying that you aze ready, willmg, and able to return to work. Do not submit the application until that is the case. 13. If I am one day late in reportmg for work or submitting my application for reemg�loyment, do I lose_ the right to the job? Not necessarily. "A person who fails to report or apply for employment or ree�loyment withm the appropriate period specified 'm tivs subsection shall not automatically forfeit such person's entitlement to the rights aad benefits provided 'm subsection (a) but shall be subject to the conduct rules, established policy, and general practices of the employer pertainmg to earplanations and discipline with respect to absence from scheduled work." 38 U.S.G 4312(e)(3). If you were one day late m reportmg back to work, and if your empioyer's usual sanction for one day of unexcused absence is a two-week suspension without pay, you would be entitled to the job but would be subject to the two-week suspension. 14. What does it meaa to "submit aa application for reemployment?° No garticulaz form is requu�ed. The message is: "I used to work here. I left for service. Now, I am back from service, and I want my job back." Your employer must not treat you as if you were applymg for a new job. ESGR recommends that you make an eaplicit written notice for reemployment. However, the application for reemployment can also be made orally, or even by nnplication. 15. How quickly am I entitled to return to work? //-� �� If the period of service was less tUan 31 days, and you show up for work at 8 a.m on the next workday, you must be put back on the payroll immediately. ff the period of service was 31 days or more, your employer is requffed to act promptly upon your application for reemployment. Tbis should be a matter of days, not weeks or months. The right to reemployment is not contingent upon the existence of a vacancy. Sometimes it is necessazy for the employer to displace another employee in order to reemploy the returning veteran. Congress recognized tbat this law irnposes b�sdens on employers, and that sometunes those burdens can be severe. Congress decided that �asing such b�udens on employers is justified by the national defense needs of o� nation. 16. I was the manager of a department, and I have been reinstated as the assistant manager of the same department. The assistant manager's salary was mcreased to equal that of the man�er, but I am not satisfied Have my rights been violated? Yes. Even if the salary is the same, bemg the assistant manager is not of equal status to bemg the manager. See Ryan v. Rush-Presbyterian-St. Luke's Medical Center, 15 F3d 697 (7th Cir. 1994). 17. Other than status and prompt remstatement, what are my other entitlements as a returnnig veteran? You aze entitled to immediate reinstatement of your health plan coverage, through the job, mchuimg coverage for family members. There mtut be no waitmg period and no exclusion of "pre-existmg conditions° (except conditions that the U.S. Depariment of Veterans Aflairs has determmed tb be service-connected). 38 U.S.C. 4317(b). You must be treated, for seniority purposes, as if you had been contmuously employed. You aze also entitled to receive missed employer contnbutions to your pension plan, as if you had been continuously emQloyed. 18. At our company, employees (as well as the employer) contnbute to the pension plan. Am I requu�ed to coutnbute that wluch I would have contnbuted if I had been contmuously employed? Is there a deadline for mal�g up missed contnbutions? Yes to both questions. If you want to be treated as corninuously employed durmg yoiu period of service, you must make up the contnbutions you would have made if you had been contmuously employed. After reemployment, you must make up the missed contnburions withm the period that amounts to three tunes yo� period of service, but not more than five years. 38 U.S.C. 4318(b)(2)• 19. Does USERRA protect me from discrimination by an employer or prospective employer? Yes. "A person who is a member o� applies to be a member o� performs, has performed, appfies to perform, or bas an obligaYion to perform service m a tmiformed service shall not be denied initial employment, reemployment, retenrion m employmeut, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation." 38 U.S.C. 4311(a). ll �a`�D 3 �� S I� at any tune you have a concern about yo� rights or responsbilities, please contact Human Resources. If these attempts don't succeed, please read the followmg carefully: Important Note. Through the National Co�ittee for Employer Support of the Guard and Reserve (ESGR), the Department of Defense (DoD) works hazd to obtain and svstam employer and community support for National Guard aad Reserve members who periodically aze absent from the's civilian jobs to perform military duty. If you have a question about employment rights, the e�ert� DoD, the U.S. Department of Labor Veterans' Employment and Trammg Service (VETS), and ESGR-suggest you start by contac:tmg ESGR This is not only your best option for speedy resolution; it protects all your levels of appeal if they aze needed. You can contact ESGR Ombudsmen Services through your local ESGR Committee or the National ESGR Headquarters or toll-free number, (8Q0) 33fi-4590-ask for Ombudsmen Services. ESGR Ombudsmen aze qualified to help, sympathetic to the needs of both the employers and employees, and committed to remammg impariial in the's counsel. The Ombudsmen Services Prograzu was established 'm 1974 to provide information, counselmg, and 'uiformal mediation of issues relating to compliance with the Uniformed Services Employment and Reemployment Rights Act (USERRA). The Ombudsmen Services Program provides mformation, mforn�al mediation, and referral service to resolve employer conflicts. ESGR is not an enforcement agency and does not offer legal counsel or advice. More than 95 percent of all such requests for assistance aze resolved 'm this mfoxmal process, without requffing refenal to the Depaztment of Labor for foimal investigarion. CTTY OF SAINT PAUL Rmidy C. Kelly, Mayor OFFICE OF HUMAN RESOURCES Angel¢ S Nal�my, Director 400 Ciry Hall Annu 25 Wesi Fwrth Street SaintPaul,iNinnuota Si102-l631 � J� jl� � Telephone: 65l-26�6500 Jobline: 651-266-6502 Factimile: 657-29?-7656 To: City Council President Bosirom and City Council Members From: Angela Nalezny, Human Resources Director Date: November 4, 2003 Re: Report on Military Leave and Employee Rights, Responsibilities and Benefits The Office of Human Resources has been asked to provide all relevant information to city employees who are in the military reserves, who have been called up or who might be called up, as to their rights and responsibilities in the matters of employment, re-employment and benefits having to do with their status as reservists and to present the same befare the City Council on Wednesday, November 5, 2003. The information presented here will be mailed to City ReservisYs and Guard's home addresses and will be posted on Human Resources' internet and intranet websites. The City of Saint Paul cunently has 10 employees called to active duty; we have a total of 33 employees (including the 10) in the Guards or Reserves who potentially may be called up. The contact person from Employer Support of the Guard and Reserve (ESGR) indicated a strong possibility that all will be called up in the next year. Applicable Laws Federal: The Uniformed Services Employment and Reemployment Rights Act (USERRA), enacted October 1994 and significantly updated in 1996 and 1998, provides j ob protection and rights of reinstatement to employees who participate in the National Guazd and Reserve. A"Frequently Asked Questions" fact sheet, developed by the ESGR, is attached. This fact sheet is the best representarion I have found that explains employee's rights and responsibilities in mattes of employment, re-employment and benefits having to do with their status as reservists called to active duty. State: M.S. 192.26 provides for a masimum of 15 paid days per calendaz yeaz with no loss ofpay, seniority, vacation/sick leave accruals, or other benefits (life/health insurance) during the 15 day period. A day has been defined as whatever the employee's regularly scheduled shift entails. For example, fire fighters are allowed fifteen 24-hour paid days per calendaz year. Unpaid leave is availabie for up to four years of active service. (State law, enacted in the 2003 legislative session, allows municipalities to make up the differential in salary.) Upon return from leave, any sick leave, vacation time, and seniority accumulated during military leaue is granted to the employee as if s/he has not left city employment. An Affirmative Action Equal Opportunity ADA Employer Current City Benefits for Employees on Active Duty Each yeaz employees aze paid for 15 days military leave. For employees called to active duty, they eam vacation and sick accrual and step increases. Upon their return they are given the vacarion and sick leave hours that would have accrued and they aze slotted into a pay step as if they had not been gone. Additionally, the employee is eligible to pay his or her share of what they would have normally paid (as if they were working for the City) into PERA upon their retum and the City also pays its shaze to PERA on behalf of the employee. Under State law, the employee must pay their shaze first and then PERA biIls the City for the employer share plus interest on both. Health Insurance The City Provides health insurance for the first 30 days an individual is on milifary leave. After the 30 days, the individual is provided with single or fanuly coverage through the military. Individuals are given COBRA rights after 30 days of military leave. If one has single coverage, it generally does not make sense to confinue coverage through the City as the miliary provides health benefits and the individual may be out of the country. One may want to continue family coverage through COBRA if family members do not want to use the military benefit. USERRA (Uniformed Services Employment and Reemployment Rights Act) provides for military health benefits (TriCare) for members of the Reserves or Guards called to active duty for more than 30 days. TriCare provides many options for singles and family members including deductible plans, co-pay plans, and one may always receive fully paid coverage at the Veteran's Clinic or Hospital. In all the cases we have experienced recently, it has been cost effective for the employee to select Tri-Care than continue family coverage through the City. For more information on Tri-Care, see: www.triwest.com and wwnu.tricare.osd.mil As always, if you have any questions, please let me lrnow. My phone number is 266-6515. Attachment: Frequently Asked Questions on USERRA An Affirmative Action Equal Opportunity ADA Employer , UNIFORMED SERVICES EMPLOYMENT �ND REEMPLOYMENT RIGHTS ACT Quesiions and Answers for Employees The Uniformed Services Employment and Reemployment Rights Act ([JSERRA) is codified in title 38, United States Code, sections 4301-4333 (38 U.S.C. 4301-4333). The information provided herein should not be considered legal authority. Rather, it is provided as general information about USERRA and is taken from the EmpIoyer Support of the Guard and Reserve (ESGR) website, October 2003 (www.eser.com). A person who leaves a civilian job for voluntary or involnntary "service in the uniformed services" is entitled to reemployment in the civilian job (with accrued seniority) if he or she meets the following eligibility criteria: • Must have left the job for the purpose of performing service in the uniforxned services. 38 U.S.C. 4312(a). • Must have given prior oral or written notice to the civilian employer, 38 U.S.C. 4312(a)(1) Prior notice is not required if it is precluded by military necessity or otherwise nnpossible or unreasonable. 38 U.S.C. 4312(b). • Cumulative period or periods of service in the uniformed services, relating to that particulaz civilian employer, must not have exceeded the five-year limit. All involuntary service and some voluntary service are exempted from the five-year limit. 38 U.S.C. 4312(c). • Must have been released from the period of service, without having been "dropped from the rolls" ar having received a punitive or other-than-honorable discharge. 38 U.S.C. 4304. • Must have reported back to work in a timely manner, or have submitted a timely application for reemployment. 38 U.S.C. 4312(e)(1). FREQUENTLY ASKED QUESTIONS What are the uniformed services? USERRA defines the uniformed services as the Army, Navy, Marine Corps, Air Force, Coast Guard, and the commissioned corps of the Public Health Service. The Army National Guard and Air National Guazd qualify when performing active duty for training, inactive duty training, or full-time National Guard duty. Finally, during a period of war or national emergency the President can designate any other category of persons to be a"uniformed service" for purposes of USERRA. 38 U.S.C. 4303(16}. 2. What is "service in the uniformed services?" "The term `service in the uniformed services' means the performance of duty on a voluntary or involuntary basis in a uniformed service under competent authority and includes active duty, active duty for training, inactive duty iraining, full-time National Guard duty, a period for which a person is absent from a posirion of employment for the purpose of an examination to deternune the fihiess of the person for any such duty, and a period for which a person is absent from a posi6on of employment for the purpose of performing funeral honors duty as authorized by section 12503 of ritle 10 or section 115 of title 32." 38 U.S.C. 4303(13). 3. Does USERRA apply to voluntary service? Yes. Please see lana age above. 4. How much notice am I required to give to my employer, prior to a period of service? ESGR recommends that reservists and National Guard members give as much advance notice as possible, but USERRA does not specify any minimum period of norice. Cucumstances arise, especially in a mobilizarion scenario, when the individual has very little advance notice from military authorities. USERRA's legislative history indicates that Congress intended that the lateness of the notice to the civilian employer should not defeat the right to reempioyment, especially when the individual had littie or no notice from the military. Am I required to provide my employer a copy of my military orders when I give notice of an upcoming period of service? No. USERRA imposes no such requirement. ESGR recommends that National Guard and Reserve personnel provide to their employers such documentation as is readily available. Yotu civilian employer is pernritted and encouraged to call your commanding officer with questions about your service. 6. I take a lot of time off for military training and service. Now, I have been asked to perform service at a time that is particulazly inconvenient for my employer, Is my employer permitted to veto my request for military leave? No. 38 U.S.C. 4312(h). You are only required to give your employer notice, not to obtain your employer's permission. However, as a matter of courtesy, ESGR recommends that you phrase your notice as a request for permission. The employer has no right to veto the timing, frequency, duration, etc. of your military training and service. However, the employer is permitted to contact your commanding officer. It is Department of Defense (DOD) policy that the commanding officer should work with your employer to resolve conflicts of this kind. The commanding officer will accede to your employer's reasonable request to reschedule military training, unless doing so would detract from unit readiness and mission accomplishxnent. If the timing of this training period presents a real problem for your employer, the commanding officer will hy to adjust the schedule, but please understand that such rescheduling must be kept to a minimum. National Guard and Reserve units train together, and they must go to war together. The training periods are scheduled so that the unit can be trained together. If you perform training at a different time, you may miss important training that the zest of the unit received. As a result, you may not learn how to perform some crirical task, resulting in additional casualties and endangering the accomplishment of the mission. 2 Under the "Total Force Policy,° our nation is more dependent than ever before upon the Narional Guard and Reserve for essential military readiness. The National Guard and Reserve make up almost half of the total pool of available military personnel. Is my employer permitted to make me find a replacement for the time that I will be away from work performing service? No. You are responsible for giving the employer advance notice, if possible, but not for rearranging your schedule or finding a replacement. 8. Is my employer permitted to make me use vacation for my military training or service? No. If you want to use vacation, he or she has the right to do so, but it is unlawful for your employer to make you use vacation. 38 U.S.C. 4316(d). 9. Is my employer required to pay me for the period that I am away from work performing military training or service? USERRA does not require an employer to pay an individual far time not worked due to service. Another Federal law (5 U.S.C. 6323) gives Federal civilian employees the right to 120 hours per fiscal year of paid military leave. About 40 states have similar laws for state and local government employees. If you aze exempt from the Fair Labor Standards Act (FLSA) overtime rules (because you are a manager, for example), the employer is not permitted to make a deduction for a part of a day missed because of temporary military leave. See 29 Code of Federal Regulations 541.118(4). This is an FLSA requirement, not a USERRA requirement. 10. Is my employer required to provide me other benefits of employxnent while I am away from work performing service? If and to the extent that your employer provides benefits to employees who have been furloughed (laid of� or to employees on some kind of non-military leave (jury leave, educational leave, etc.), your employer must provide similar benefits to employees who are away from work performing service in the uniformed services. 38 U.S.C. 4316(b). An employee who is away from work performing service in the uniformed services is entitled to elect continued health plan coverage through the civilian job. If the period of service is less than 31 days, the employer is permitted to charge the employee only the employee share (if any) of the cost of the coverage. If the period of service is 31 days or more, the employer is permitted (but not required) to charge the employee up to 102% of the entire premium, including the part that the employer normally pays in the case of active employees. 38 U.S.C. 4317(a). 11. After a period of military training or service, how quickly am I required to return to wark? That depends upon the duration of the period of service from which you are retunung. If the period of service is less than 31 days, you are required to report for work `hot later than the bea nn;ng of the first regulazly scheduled work period on the first full calendar day following the completion of the period of service and the expiration of eight hours after a period allowing for the safe transportation of the person from the place of that service to the person's residence." 38 U.S.C. 4312(e)(1)(A)(i). If reporting at that time is impossible or unreasonabie through no fault of yours (e.g., automobile accident on return irip), y�u aze required to report for work as soon as possible thereafter. 38 U.S.C. 4312(e)(1)(A)(ii). If the peribd of service was 31-180 days, you are required to submit an application for reemployment withiu 14 days after the end of the period of service. 38 U.S.C. 4312(e)(1)(C). If the period oF service was 181 days or more, you must submit the application for reemployment within 90 days. 38 U.S.C. 4312(e)(1)(D). These deadlines can be extended by up to two years if you are hospitalized for or convalescing from a service-connected injury or illness. 38 U.S.C. 4312(e)(2)(A). 12. Does that mean that I must wait 90 days to get my job back? No. The 90 days belong to you, not the employer. If you aze anicious to get back on the payroll as quickly as possible, you should submit your application for reemployment right away. If you need time to readjust to civilian life, you should wait to submit your application. Once you apply, you are in effect saying that you aze ready, willing, and able to retum to wark. Do not submit the application until that is the case. 13. If I am one day late in reporting for work or submitting my applicarion for reemployment, do I lose the right to the job? Not necessarily. "A person who fails to report or apply for employment or reemployment within the appropriate period specified in this subsection shall not automatically forfeit such person's entitlement to the rights and benefits provided in subsecrion (a) but shall be subject to the conduct rules, established policy, and general practices of the employer pertaining to explanations and discipline with respect to absence from scheduled work." 38 U.S.C. 4312(e)(3). If you were one day late in reporting back to wark, and if your employer's usual sanction for one day of unexcused absence is a two-week suspension without pay, you would be entitled to the job but would be subject to the two-week suspension. 14. What does it mean to "submit an application for reemployment?" No particular form is required. The message is: "I used to work here. I left for service. Now, I am back from service, and I want my job back." Your employer must not treat you as if you were applying for a new job. ESGR recommends that you make an explicit written notice for reemployment. However, the applicarion for reemployment can also be made orally, or even by unplication. 15. How quickly am I entitled to return to work? 0 4 - i If the period of service was less than 31 days, and you show up for work at 8 am. on the next workday, you must be put back on the payroll immediately. If the period of service was 31 days or more, your employer is required to act promptly upon your application for reemployment. This should be a matter of days, not weeks or months. The right to reemployment is not contingent upon the existence of a vacancy. Sometunes it is nec�ssary for the employer to displace another employee in order to reemploy the retumiug veteran. Congress recognized that this law imposes burdens on employers, and that sometimes those burdens can be severe. Con�ess decided that imposing such burdens on employers is jusrified by the narional defense needs of our nation. 16. I was the manager of a depariment, and I haue been reinstated as the assistant manager of the same department. The assistant manager's salary was increased to equal that of the manager, but I am not satisfied. Have my rights been violated? Yes. Even if the salary is the same, being the assistant manager is not of equal status to being the manager. See Ryan v. Rush-Presbyterian-St. Luke's Medical Center, 15 F3d 697 (7th Cir. 1994). 17. Other than status and prompt reinstatement, what are my other entitlements as a returning veteran? You are entitled to immediate reinstatement of your health plan coverage, through the job, including coverage far family members. There must be no waiting period and no exclusion of "pre-existing conditions" (except conditions that the U.S. Department of Veterans Affairs has determined to be service-connected). 38 U.S.C. 4317(b). You must be treated, for seniority purposes, as if you had been continuously employed. You are also entitled to receive missed employer contributions to your pension plan, as if you had been continuously employed. 18. At our company, employees (as well as the employer) contribute to the pension plan. Am I required to contribute that which I would have contributed if I had been continuously employed? Is there a deadline far making up missed contributions? Yes to both questions. If you want to be treated as continuously employed during your period of service, you must make up the contributions you would have made if you had been continuously employed. After reemplQyxnent, you must make up the missed conhibutions within the period that amounts to three times your period of service, but not more than five years. 38 U.S.C. 4318(b)(2). 19. Does LJSERRA protect me from discrimination by an employer or prospective employer? Yes. "A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employxnent by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation." 38 U.S.C. 4311(a). If, at any time you have a concern about your rights or responsibilities, please contact Human Resources. If these attempts don't succeed, please read the following carefully: Important Note. Through the National Committee for Employer Support of the Guazd and Reserve (ESGR), the Deparhnent of Defense (DoD) works hazd to obtain and sustain employer and community support for National Guazd and Reserve members who periodically are absent from theu civilian jobs to perform military duty. If you have a question about employment rights, the experts- DoD, the U.S. Department of Labor Veterans' Employment and Training Service (VETS), and ESGR-suggest you start by contacting ESGR. This is not only your best option for speedy resolution; it protects all your levels of appeal if they are needed. You can contact ESGR Ombudsmen Services through your local ESGR Committee or the National ESGR Headquarters or toll-free number, (800) 336-4590-ask for Ombudsmen Services. ESGR Ombudsmen are qualified to help, sympathetic to the needs ofboth the employers and employees, and committed to remaining impartial in their counsel. The Ombudsmen Services Program was established in 1974 to provide information, counseling, and informal mediation of issues relating to compliance with the Unifoxmed Services Employment and Reemployment Rights Act (LJSERRA). The Ombudsmen Services Program provides information, informal mediarion, and refenal service to resolve employer conflicts. ESGR is not an enforcement agency and does not offer legal counsel or advice. More than 95 percent of all such requests for assistance are resolved in this informal process, without requiring referral to the Department of Labor for formal investigation. G7