VETS Manual Series, Volume IX

Uniformed Services Employment & Reemployment Rights Act Investigations
Operations Manual

**Table of Contents**

[**Chapter 1 - Introduction**](#chapter_1)[]{#TOC1X .anchor} 2

[Enactment of USERRA](#PurposeofUSERRA) 2

[Purpose of USERRA](#PurposeofUSERRA) 2

Objective of USERRA 2

[Recommended Resource](#RecommendedResource) 2

[Eligibility Criteria](#Eligibity_criteria_TOC) 2

[Advance Notice 3](#AdvanceNoticeChp1)

[Exemptions to Advance Notice](#exempttoadvancnotchp1) 3

[Cumulative Service](#Cumulative_Service_TOC) 4

[Exemptions to 5 year cumulative service 4](#ExemptofiveyrcumTOC)

[Application for Reemployment](#Application_for_Reemp_TOC) 6

[Documentation](#Documentation_TOC) 8

[Employer Defenses to Reemployment](#Employer_Stat_Def) 9

[Protected Servicemembers\' Entitlements](#Protect_SM_Entitle_TOC) 10

[Protection from Discrimination and
Retaliation](#Protect_fr_discrim_TOC) 12

[Servicemembers\' Obligations](#SM_obligation_TOC) 13

[Reemployment Positions](#Reemp_position_TOC) 15

[Key Definitions](#key_definitions_TOC) 17

[Issue Codes For Use in IMS](#Crosswalk) 22

[20 CFR Part 1002](#part1002) 23

38 USC 4301-4334 46

5 CFR Section 353............. 64

[**Chapter 2 - Complaint Processing**](#Chapter_2)[]{#TOC2X .anchor} 76

General Process 76

Initial Contact with Complainant 76

Initial Contact With Employer 76

Investigation 77

Negotiation and Resolution 77

U.S. Attorney General/Office of Special Counsel 77

[Processing Standards](#ProcessingStandards) 77

[**Chapter 3 - General Guidelines and
Definitions**](#Chapter_3)[]{#TOC3X .anchor} 83

Secretary of Labor's Responsibility Under USERRA 83

Legal Authority 83

VETS Responsibility 83

Definition Of A USERRA Case 83

Parties To A Case 84

Claimant 84

Employer 84

Need For Informal Resolutions 84

Claimant\'s Waiver of Entitlement 84

Negotiations With Employers 85

Record Keeping For Cases 85

File Maintenance 86

File Format 87

Investigations 87

Use Of Letters 87

Certified Mail, Return Receipt Requested 88

Freedom Of Information And Privacy Act Requests 88

Federal Privacy Act Releases 88

Unemployment Compensation Claim Release Form 88

Private Physician/Hospital Release Form 88

Acceptance of Electronic Tapes from Claimant or Employers 88

Taping by Investigators 89

Funding for Claimant\'s Travel 89

Communications Concerning Cases 89

Fax Documents 90

Email........................ 90

DOL Guidance (Protection of Personal Identifiable Information) 90

[**Chapter 4 - Complaint Intake and Case Opening**](#Chapter_4)[]{#TOC4X
.anchor} 98

Requests For Assistance 98

Telephone Requests or Personal Visits 98

Mail Requests 94

When to Open A Case 94

How To Open A Case On *UIMS* 100

Claimant codes 100

Employer codes 100

Issues codes 100

Documentation Of Contacts 101

Establishing Eligibility 101

Date Left To Join Service 101

Other Dates 101

Length Of Service 101

Military Service Information 101

Reemployment Information 101

Detailed Explanation 101

Signature 101

Incomplete VETS Form 1010 102

Request for Pertinent Military Records 102

Form DD-214 102

Helping The Claimant Obtain A Form DD-214 103

Form DD-215 103

Multiple Claimants 103

Jurisdiction For Case Opening Purposes 103

Transfer of Case Files 104

Re-opened Cases 104

Federal Executive Agency Employees 104

Concurrent Claim Under a Collective Bargaining Agreement Or State Law
105

When Claimant\'s Rights Under State Reemployment Laws Are Greater 105

Claimant Represented By Private Counsel 106

Dual Representation With Respect To Rights Under USERRA 106

Dual Representation 106

Claims Against Church Employers 106

Claims Against Native American Tribes 107

[**Chapter 5 - Initial Contact With Employer**](#Chapter_5)[]{#TOC5X
.anchor} 126

Initial Contact with Employer 126

Goals Of Initial Contact 126

Opening Letter 126

Tone 126

Contents 127

Distribution 127

[Federal Executive Branch Chief Human Capital Officers Contact
Information]{.mark} 129

Employer\'s Response 130

Positive 130

Noncommittal Or Negative 130

Missing Information or Information Not Fully Clarified 130

No Response 130

Advisory Opinion Letter 130

Contact with Claimant 130

[**Chapter 6 - Investigation**](#chapter_6)[]{#TOC6X .anchor} 140

Objective Of Investigation 140

Investigative Ethics 140

Need For Impartial Investigation 140

Investigative Steps 141

Obtaining Records and Information 142

Interviews...................... 142

Objectives of interviews 142

Documenting Interviews........... 142

Use of Telephone and Email 143

Updating Investigative Plan 143

On-Site Investigations 144

Contacts with Employer\'s Attorney 144

Auxiliary Investigations 144

Interviews 144

Objectives Of Interviewing 144

Documenting Interviews 144

Examination Of Records 145

Authority to Obtain Records 145

Subpoena Power 145

Statutory Provision 145

Delegation of Authority to Issue Subpoenas 145

Enforcement 146

Types of Subpoenas 146

Subpoena Request (VETS Form) 146

Case Name and File Number 146

Subpoena Subject 146

Delivery Data 146

Proposed Date of Service 146

Identification of Records 147

Justification for Issuance 147

Subpoena Approval 147

Subpoena Log 147

Right to Financial Privacy Act-Covered Records 147

Completion of Subpoena 147

Signing of Subpoenas 147

Service of Subpoenas 148

Who may serve 148

Individual............................................... 148

Corporation............ 148

Federal Agency........... 149

Subpoena Enforcement 149

Evidence 149

Relevant evidence 150

Best Evidence 150

Computation of Monetary Damages 150

Claimant Responsibilities 150

Mitigation Wages are Periodic Rather than Absolute 151

Effect of Escalator on Back Pay 151

Elements of Back Pay..... 152

Interest........ 152

Determination Letter to Employer 153

No Merit Determination 153

[**Chapter 7 - Case Resolution Conferences**](#Chapter_7)[]{#TOC7X
.anchor} 170

Definition of Case Resolution Conferences 170

Confirmation Letter 170

Advice to the Claimant Before the Conference 170

General Conference Hints 171

Opening The Conference 171

Control Of The Conference 171

Conference Notes 171

Conference Resulting In Resolution 171

Refusal By Employer To Grant or Settle Claim 172

Request for Additional Time 172

> Conference Closing 172

Conference Report 172

Actions Following Advisory Opinion 173

[**Chapter 8 - Litigation Referrals**](#Chapter_8)[]{#TOC8X .anchor} 179

Purpose. 179

Representation by U.S. Attorney General 179

Representation by Office of Special Counsel 179

Advising the Claimant of Right of Referral 179

Written Request for Referral

Referral Advisory Letter to Employer ................ 180

15 Day Action on Referral ............................ 180

File preparation for AG or OSC Referral

Memorandum of Referral (MOR) 181

Expedited Referrals 182

Format of the MOR.................... 182

Development of Each Section of the MOR 183

Information on the parties to the dispute 183

Statement of the Dispute 185

Settlement Attempts and Offers 185

Investigate Findings 185

Evaluation 186

Relief Requested 186

Recommendation 187

List of Exhibits 187

Regional Offices\' Approval to Use \"Short Form\" 187

Case Transferred to Regional Office 187

Responsibilities of the Regional Office (RO) Under this Chapter 187

Insufficient Investigation 188

Regional Office\'s Transmittal to SOL 189

Regional Office\'s Letter to Employer 189

Distribution of the MOR......... 189

Regional Office Responsibilities 189

Securing of Documents.............. 190

Keeping VETS/NO Informed of Unusual or Precedent-Setting Cases 190

Contact with Attorney General/Office of Special Counsel File 190

Attendance at Trial 190

Declination by U.S. Attorney 190

Responsibilities Of VETS/NO 190

Press Releases 191

[**Chapter 9 - Case Closing**](#Chapter_9)[]{#Chapter9TOC .anchor} 213

Purpose. 213

Administrative Closure (AD) 213

Lack of Interest 213

Continued Unauthorized Contact by Third Party with Employer 213

Claim Granted(CG) 213

Release Form 213

VETS Receipt Of Check 213

Send Claimant Check by Certified Mail 214

Send Employer Closing Letter 214

Claim Settled (CS) 214

Claim Withdrawn (CW) 214

Not Eligible (NE) 215

No Merit (NM) 215

Cases Referred 215

IMS Closing Codes 215

Administrative 215

Claim Granted 215

Claim Settled 215

Claim Withdrawn 215

Not eligible 215

No Merit 215

Not Recommend Representation 215

Recommend Representation 215

Maintenance of Closed Case Files 215

Closing Date 215

[**Chapter 10 - Protest Procedures**](#Chapter_10)[]{#TOC10X .anchor}
240

Purpose 240

When to Implement Protest Procedures 240

Procedures to be followed when a Protest is Filed 240

Time Frames for Review 240

[**Chapter 11 - Technical Assistance**](#Chaptet_11)[]{#TOC11X .anchor}
246

Purpose of Technical Assistance 246

Technical Assistance to Individuals or Employers 246

Answer Inquires 247

National Committee for Employer Support of the Guard and Reserve 247

Technical Assistance to Groups and Organizations 248

Sample statute-regulation based written technical assistance 250

[Recommended USERRA and Employment Resources (web-based)](#USERRAlinks)
251

[**Chapter 12 - Technical Assistance and Staff
Roles**](#Chapter_12)[]{#TOC12X .anchor} 262

Staff Roles 262

Management Services Assistants 262

Veterans\' Program Assistants 262

Veterans\' Program Specialists 262

Directors and Assistant Directors 262

Regional Office Staff 262

Senior Investigators 262

National Office Staff 263

Regional Protocol 263

[**Chapter 13 - Quality Assurance Review**](#Chapter_13)[]{#TOC13X
.anchor} 268

Quality Assurance Review Impact Elements 268

[Quality Assurance Review Form](#QARForm) 275

[**Chapter 14 - USERRA (Computer Applications)**](#Chapter_14)[]{#TOC14X
.anchor} 286

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List of Illustrations

[[]{#CFR20ILL .anchor}Exhibit **1:** 20 CFR Part 1002 USERRA; Final
Rules](#part1002) 23

[Exhibit **2:** Federal Privacy Act Release Form](#FedPrivActReleasForm)
92

[[[]{#FedPrivActReleasFormIll .anchor}]{#MedInfReleasFormIll
.anchor}Exhibit **3:** Medical Information Release Form](#MedInfRelForm)
93

[[]{#VETS1063Ill .anchor}Exhibit **4:** Sample VETS Form 1063
(front)](#VETS1063) 108

[[]{#SampleForm1010Ill .anchor}Exhibit **5:** Sample Form 1010 - USERRA
Eligibility Data](#sampleform1010) 109

[[]{#SampleCoverletter1010Ill .anchor}Exhibit **6:** Sample Cover Letter
for VETS Form 1010](#SampleCoverletter1010) 112

[[]{#Exhibit7Exceptionsto5yrIll .anchor}Exhibit **7:** Exceptions to
5-Year Service Limit](#Exhibit7Exceptionsto5yr) 113

Exhibit **XX:** Sample Form DD214 - Record of Service (Omitted) X

[[]{#SF180Ill .anchor}Exhibit **9:** Sample Standard Form 180
(front/back](#SF180)) 118

Exhibit **XX:** Sample Form DD-215 (omitted) X

[Exhibit **11:** Sample Opening Letter to complainant acknowledging
receipt of complaint](#Exhibit12Smplltrtoclmtacknrcptofclaim) 120

[[]{#Exhibit11SmpleEmplyrOpngLtrReinIll .anchor}Exhibit **12:** Sample
Opening Letter (Reinstatement)](#Exhibit11SmpleEmplyrOpngLtrRein) 131

[[]{#Exhibit13SmpleEmplyrOpngLtrDisIll .anchor}Exhibit **13:** Sample
Employer Opening Letter
(Discrimination)](#exhibit13smpleemplyropngltrdis) 133

[[]{#Exhibit14SampleOpngnclsngltrIll .anchor}Exhibit **14:** Sample
Opening and Closing Letter](#Exhibit14SampleOpngnclsngltr) 135

[[]{#Exhibit15SampleblnkCIPIll .anchor}Exhibit **15:** Sample Blank Case
Investigative Plan (front)](#Exhibit15SampleblnkCIP) 154

[[]{#Exhibit16SamplecmltblnkCIPill .anchor}Exhibit **16:** Sample
Completed Case Investigative Plan (front)](#Exhibit16SamplecmltblnkCIP)
157

[[]{#Exhibit17SmplLtrSchdOnstevstIll .anchor}Exhibit **17:** Sample
Letter Scheduling On-Site Visit](#Exhibit17SmplLtrSchdOnstevst) 160

[[]{#Exhibit18BnkWitstmtIll .anchor}Exhibit **18:** Sample Blank Witness
Statement](#Exhibit18BnkWitstmt) 161

[Exhibit **19:** Sample Subpoena Request](#Exhibit19SmplSubpReqIll) 162

[Exhibit **20:** Sample Subpoena Duces Tecum](#Exhibit20smplSubDucTec)
163

[Exhibit **21:** Sample Subpoena Ad
Testificandum](#Exhibit21smplSubAdTesti) 164

[Exhibit **22:** Sample Opening Statement for Case Resolution
Conferences](#Exhibit22OpnstmtfrcseresoConf) 165

[Exhibit **23:** Sample Agreement Outline](#Exhibit23SmplAgrOutl) 157

[[]{#Exhibit .anchor}Exhibit **24:** Sample Attorney-General/Office of
Special Counsel Referral Request Form](#exhibit24smplagoscrefreqfrm) 173

[[]{#Exhibit25ReferralAdvLtrtoEmplr .anchor}**Exhibit 25: Referral
Advisory letter to Employer**](#exhibit25smplrefadvltrtoemplyr)
.................................................193

[[]{#Exhibit26SmpllongformMORlitrecIll .anchor}Exhibit **26:** Sample
"Long Form" Memorandum of Referral (Litigation
Recommended)](#Exhibit26SmpllongformMORlitrec) 194

[Exhibit **27:** Sample "Short Form" Memorandum of Referral (Litigation
Not Recommended)](#Exhibit27SmplShortFrmMORLitNR)

[]{#exhibit27smplshortfrmmorlitnrill .anchor} 204

[[]{#Exhibit28SamplRATrnsLtrDOJIll .anchor}Exhibit **28:** Sample RA
Transmittal Letter (Litigation
Recommended)](#Exhibit28SamplRATrnsLtrDOJ) 206

[[]{#Exhibit29SmpRARefNottoEmplIll .anchor}Exhibit **29:** Sample RA
Referral Notice to Employer](#exhibit29smplrarefnottoempl) 207

[[]{#Exhibit30SmplClsngltrtoClmtlkfInterill .anchor}Exhibit **30:**
Sample Closing Letter to Non-Federal Claimant (Lack of
Interest)](#Exhibit30SmplClsngltrtoClmtlkfInter) 216

[[]{#Exhibit31SmplClsngltrtoClmtcont3prtyIll .anchor}Exhibit **30(A):**
Sample Closing Letter to Federal Claimant (Lack of
Interest)](#exhibit31smpclsgltrtoclmtcont3prty) 217

[Exhibit **31:** Sample Closing Letter to Non-Federal Claimant (Third
Party Representation)](#Exhibit31SmpClsgLtrtoClmtNonFedCont3prty) 218

[[[]{#Exhibit32SmplClsingltrtoclmtclmwtdrwnIll
.anchor}]{#Exhibit33SmplClsngltERClmWitdrnIll .anchor}Exhibit **31(A):**
Sample Closing Letter to Federal Claimant (Third Party
Representation)](#Exhibit31ASmplclsngltrtoFedClmt3prtyrep) 219

[[]{#Exhibit34SmplClsngltFedCmpltNoViolatill .anchor}Exhibit **32:**
Sample Closing Letter to Non-Federal Complaint (Claim
Withdrawn)](#Exhibit32SmplClsngltrtoNonFedClmCwthdrwn) 220

[Exhibit **32 (A):** Sample Closing Letter to Federal Complaint (Claim
Withdrawn)](#Exhibit32AsmplclsngltrtoFedClmClamwithdr) 221

[Exhibit **33:** Sample Closing Letter to Employer (Claim
Withdrawn)](#Exhibit33SmplClsngltrtoEmplrClmWtn) 222

[Exhibit **34:** Sample Closing Letter for a Federal Claimant (No
Merit)](#exhibit34smplclsngltfedcmpltnomerit) 223

[Exhibit **35:** Sample Closing Letter for a Non-Federal Claimant (No
Merit)](#exhibit35smplclsingltrnondfedcompnomrt) 225

[[]{#Exhibit36SmplClsngltFedcmpltNotEligill .anchor}Exhibit **36:**
Sample Closing Letter to Federal Claimant (Not
Eligible)](#exhibit36smplclsngltfedcmpltnotelig) 227

[[]{#Exhibit37SmplClsngltrtoNonFedClmtNEIll .anchor}Exhibit **37:**
Sample Closing Letter to Non-Federal Claimant (Not
Eligible](#Exhibit37SmplClsngltrtoNonFedClmtNE)) 228

[Exhibit **38:** INTENTIONALLY LEFT BLANK
(BLANK)](#Exhibit38SmplClsngltrtoClmtFailtoResp) 229

[[]{#Exhibit39SmplClsngltrtoEmplNoRespfrClmiL .anchor}Exhibit **39:**
Sample Closing Letter to Employer (No response from
Claimant)](#Exhibit39SmplClsngltrtoEmplNoRespfrClmt) 230

[[]{#Exhibit40SmplClsngltrtoEmplrClmGrantIll .anchor}Exhibit **40:**
Sample Closing Letter to Employer (Claim
Granted)](#Exhibit40SmplClsngltrtoEmplrClmGrant) 231

[[]{#Exhibit41SmplSttlmntAgrmntnRlsefrmIll .anchor}Exhibit **41:**
Sample Settlement Agreement and Release
Form](#Exhibit41SmplSttlmntAgrmntnRlsefrm) 232

[[]{#Exhibit42SmplclsngltrtoclmntclmsttldIll .anchor}Exhibit **42:**
Sample Closing Letter to Claimant (Claim
Settled)](#Exhibit42Smplclsngltrtoclmntclmsttld) 234

[[]{#Exhibit43SmplclsngltrtoEmplClmSttledIll .anchor}Exhibit **43:**
Sample Closing Letter to Employer (Claim
Settled)](#Exhibit43SmplclsngltrtoEmplClmSttled) 235

[[]{#Exhibit44SmplEmailTAIll .anchor}Exhibit **44:** Sample Email
Technical Assistance](#Exhibit44SmplEmailTA) 246

[[]{#Exhibit45USERRAtoolsIll .anchor}Exhibit **45:** USERRA Tools
(Links)](#Exhibit45USERRAtools) 251

[[[]{#Exhibit46QARIll .anchor}]{#Exhibit46USERRAPostNonFedIll
.anchor}Exhibit **46:** USERRA Poster
(Non-Fed)](#Exhibit46USERRAPostNonFed) 252

[[]{#Exhibit47USERRAPosterFedIll .anchor}Exhibit **47:** USERRA Poster
(Fed )](#Exhibit47USERRAPosterFed) 253

[[]{#Exhibit48TSPFACTsheetIll .anchor}Exhibit **48:** Thrift Savings
FACT Sheet (Link)](#Exhibit48TSPFACTsheetl) 254

[[]{#Exhibit49TALogODRIVEIll .anchor}Exhibit **49:** O: Drive Technical
Assistance Log-in instructions (Operator to Est. local
Link)](#exhibit44odrivelogin) 255

[Exhibit **50:** USERRA Quality Assurance Review Form](#QARForm) 275

**PREFACE**

The purpose of this Manual is to introduce the users to important
fundamentals of the Uniformed Services Employment and Reemployment
Rights Act of 1994 (USERRA), and operations procedures necessary for
effective handling of claims under the Act. The manual has been written
for those individuals actually engaged in USERRA investigations as well
as those that provide important technical and administrative support.
The USERRA Operations Manual is for internal VETS use only and is not to
be distributed to the public or to other agencies for any reason.

# 1  {#section .unnumbered}

[**Chapter 1**](#TOC1X)

[[]{#chapter_1 .anchor}**Introduction**](#TOC1X)

*NOTE: Exhibits in this manual showing examples of form letters or
memorandums are for general guidance ,and should be modified, as
appropriate , based on the facts of the case; however, [the notice of
referral rights must be included in closing letters, as specified in
Exhibits34, 35, 36, 37]{.mark}.* *Any names and locations used in
examples are fictitious and are used only for purposes of illustration.*

**.1 Enactment of the Uniformed Services Employment and Reemployment
Rights Act of 1994 (USERRA).** *This statute replaces the previous
Veterans' Reemployment Rights (VRR) statute provisions of chapter 43,
title 38, United States Code.*

**.2** []{#PurposeofUSERRA .anchor}**Purpose of USERRA.** \"To encourage
noncareer service in the uniformed services by eliminating or minimizing
the disadvantages to civilian careers and employment which can result
from such service; to minimize the disruption to the lives of persons
performing service in the uniformed services as well as to their
employers, their fellow employees, and their communities, by providing
for the prompt reemployment of such persons upon their completion of
such service under honorable conditions, and to prohibit discrimination
against persons because of their service in the uniformed service.\"
Title 38, United States Code.

**.3 Objectives of USERRA.** USERRA ensures that eligible persons,
including all members of the uniformed services, do not lose their jobs
or employment benefits because of their military service. USERRA states
that the Secretary of Labor, through VETS, will provide assistance to
any person with respect to employment and reemployment rights to which
such person is entitled under this chapter.

[]{#RecommendedResource .anchor}**Recommend resource:** The Department
of Labor final USERRA regulations can expedite an

issue specific request.  The regulations offer what is probably the best
tutorial on USERRA that

currently exists, are written in \"Plain Language\" and are set forth
in an easy to read question &

answer format.

![](media/image13.wmf){width="0.9013888888888889in" height="1.15625in"}
![](media/image14.png){width="1.0027777777777778in"
height="1.2868055555555555in"}
![](media/image15.wmf){width="0.8909722222222223in"
height="1.1402777777777777in"}

**USERRA Poster USERRA Poster**

**Non-Federal [20 CFR Part 1002](#part1002) Federal**

**.4** [[[]{#Eligibity_criteria_TOC .anchor}]{#Eligibitycritera
.anchor}**Eligibility Criteria**](#eligibilty): 38 U.S. C. **§ 4304**,
**§ 4312**; **20 CFR (Sec. 1002.32)**

\(a\) In general, if the employee has been absent from a position of
civilian employment by reason of service in the uniformed services, he
or she will be eligible for protections under USERRA by meeting the
following criteria:

\(1\) The employer had advance notice of the employee\'s service;\
(2) The employee has five years or less of cumulative service in the
uniformed services in his or her employment relationship with a
particular employer;\
(3) The employee timely returns to work or applies for reemployment;
and,\
(4) The employee has not been separated from service with a
disqualifying discharge or under other than honorable conditions.
[**\[QAR\]**](#QARForm)

\(b\) These general eligibility requirements have important
qualifications and exceptions, which are described in detail in Sec.
1002.73 through 1002.138. If the employee meets these eligibility
criteria, then he or she is eligible for reemployment unless the
employer establishes one of the defenses described in Sec. 1002.139. The
employment position to which the employee is entitled is described in
sections 1002.191 through 1002.199.

(1) [[]{#AdvanceNoticeChp1 .anchor}**Advance Notice: 20 CFR (Sec.
    1002.85)**](#notice)**: 38 U.S. C**. **§ 4312,**

> \(a\) The employee, or an appropriate officer of the uniformed service
> in which his or her service is to be performed, must notify the
> employer that the employee intends to leave the employment position to
> perform service in the uniformed services, with certain exceptions
> described below. In cases in which an employee is employed by more
> than one employer, the employee, or an appropriate office of the
> uniformed service in which his or her service is to be performed, must
> notify each employer that the employee intends to leave the employment
> position to perform service in the uniformed services, with certain
> exceptions described below.\
> (b) The Department of Defense USERRA regulations at 32 CFR 104.3
> provide that an \`\`appropriate officer\'\' can give notice on the
> employee\'s behalf. An \"appropriate officer\'\' is a commissioned,
> warrant, or non-commissioned officer authorized to give such notice by
> the military service concerned.\
> (c) The employee\'s notice to the employer may be either verbal or
> written. The notice may be informal and does not need to follow any
> particular format.\
> (d) Although USERRA does not specify how far in advance notice must be
> given to the employer, an employee should provide notice as far in
> advance as is reasonable under the circumstances. In regulations
> promulgated by the Department of Defense under USERRA, 32 CFR
> 104.6(a)(2)(i)(B), the Defense\
> Department \"strongly recommends that advance notice to civilian
> employers be provided at least 30 days prior to departure for
> uniformed service when it is feasible to do so.\'\'\
> \
> [[]{#exempttoadvancnotchp1 .anchor}**Exemptions to Advance Notice: 20
> CFR (Sec. 1002.86)**](#advancenoticeexempt)**: 38 U.S. C**. **§
> 4312**\
> \
> The employee is required to give advance notice of pending service
> unless giving such notice is prevented by military necessity, or is
> otherwise impossible or unreasonable under all the circumstances.
>
> \(a\) Only a designated authority can make a determination of
> \"military necessity,\'\' and such a determination is not subject to
> judicial review. Guidelines for defining \`\`military necessity\'\'
> appear in regulations issued by the Department of Defense at 32 CFR
> 104.3. In general, these regulations cover situations where a mission,
> operation, exercise or requirement is classified, or could be
> compromised or otherwise adversely affected by public knowledge. In
> certain cases, the  Secretary of Homeland Security, in consultation
> with the Secretary of Defense, can make a determination that giving of
> notice by intermittent disaster-response appointees of the National
> Disaster Medical System is precluded by \"military necessity.\'\' See
> 42 U.S.C. 300hh-11(e)(3)(B).
>
> \(b\) It may be impossible or unreasonable to give advance notice
> under certain circumstances. Such circumstances may include the
> unavailability of the employee\'s employer or the employer\'s
> representative, or a requirement that the employee report for
> uniformed service in an extremely short period of time.

(2) []{#Cumulative_Service_TOC .anchor}[**Cumulative service: 20 CFR
    (Sec 1002.99)**]{.underline} **38 U.S. C.** **§ 4312**

> In general, the employee may perform service in the uniformed services
> for a cumulative period of up to five (5) years and retain
> reemployment rights with the employer.
>
> [[]{#ExemptofiveyrcumTOC .anchor}**Exemptions to 5 year cumulative
> service:**](#exempt) **38 U.S. C.** **§ 4312**
>
> **Sec. 1002.100** The five-year period includes only the time the
> employee spends
>
> actually performing service in the uniformed services. A period of
> absence from
>
> employment before or after performing service in the uniformed
> services does not
>
> count against the five-year limit. For example, after the employee
> completes a
>
> period of service in the uniformed services, he or she is provided a
> certain amount
>
> of time, depending upon the length of service, to report back to work
> or submit an
>
> application for reemployment. The period between completing the
> uniformed
>
> service and reporting back to work or seeking reemployment does not
> count
>
> against the five-year limit.
>
> **Sec. 1002.101** An employee is entitled to a leave of absence for
> uniformed
>
> service for up to five years with each employer for whom he or she
> works. When
>
> the employee takes a position with a new employer, the five-year
> period begins
>
> again regardless of how much service he or she performed while working
> in any
>
> previous employment relationship. If an employee is employed by more
> than one
>
> employer, a separate five-year period runs as to each employer
> independently,
>
> even if those employers share or co-determine the employee\'s terms
> and
>
> conditions of employment.
>
> **Sec. 1002.102** USERRA provides reemployment rights to which an
> employee
>
> may become entitled beginning on or after December 12, 1994, but any
> uniformed
>
> service performed before December 12, 1994, that was counted against
> the service
>
> limitations of the previous law (the Veterans Reemployment Rights
> Act), also
>
> counts against USERRA\'s five-year limit.\
> \
>
> **Sec. 1002.103** USERRA creates the following exceptions to the
> five-year limit
>
> on service in the uniformed services:
>
> \(1\) Service that is required beyond five years to complete an
> initial period of
>
> obligated service. Some military specialties require an individual to
> serve more
>
> than five years because of the amount of time or expense involved in
> training. If
>
> the employee works in one of those specialties, he or she has
> reemployment rights
>
> when the initial period of obligated service is completed;
>
> \(2\) If the employee was unable to obtain orders releasing him or her
> from service
>
> in the uniformed services before the expiration of the five-year
> period, and the
>
> inability was not the employee\'s fault;
>
> (3)(i) Service performed to fulfill periodic National Guard and
> Reserve training
>
> requirements as prescribed by 10 U.S.C. 10147 and 32 U.S.C. 502(a) and
> 503;
>
> and, (ii) Service performed to fulfill additional training
> requirements determined
>
> and certified by a proper military authority as necessary for the
> employee\'s
>
> professional development, or to complete skill training or retraining;
>
> \(4\) Service performed in a uniformed service if he or she was
> ordered to or
>
> retained on active duty under:\
> (i) 10 U.S.C. 688 (involuntary active duty by a military retiree);\
> (ii) 10 U.S.C. 12301(a) (involuntary active duty in wartime);\
> (iii) 10 U.S.C. 12301(g) (retention on active duty while in captive
> status);\
> (iv) 10 U.S.C. 12302 (involuntary active duty during a national
> emergency for up to 24 months);\
> (v) 10 U.S.C. 12304 (involuntary active duty for an operational
> mission for up to 270 days);\
> (vi) 10 U.S.C. 12305 (involuntary retention on active duty of a
> critical person during time of crisis or other specific conditions);\
> (vii) 14 U.S.C. 331 (involuntary active duty by retired Coast Guard
> officer);\
> (viii) 14 U.S.C. 332 (voluntary active duty by retired Coast Guard
> officer);\
> (ix) 14 U.S.C. 359 (involuntary active duty by retired Coast Guard
> enlisted member);\
> (x) 14 U.S.C. 360 (voluntary active duty by retired Coast Guard
> enlisted member);\
> (xi) 14 U.S.C. 367 (involuntary retention of Coast Guard enlisted
> member on active duty); and\
> (xii) 14 U.S.C. 712 (involuntary active duty by Coast Guard Reserve
> member for natural or man-made disasters).
>
> \(5\) Service performed in a uniformed service if the employee was
> ordered to or
>
> retained on active duty (other than for training) under any provision
> of law
>
> because of a war or national emergency declared by the President or
> the Congress,
>
> as determined by the Secretary concerned;
>
> \(6\) Service performed in a uniformed service if the employee was
> ordered to
>
> active duty (other than for training) in support of an operational
> mission for which
>
> personnel have been ordered to active duty under 10 U.S.C. 12304, as
> determined
>
> by a proper military authority;
>
> \(7\) Service performed in a uniformed service if the employee was
> ordered to
>
> active duty in support of a critical mission or requirement of the
> uniformed
>
> services as determined by the Secretary concerned; and,
>
> \(8\) Service performed as a member of the National Guard if the
> employee was
>
> called to respond to an invasion, danger of invasion, rebellion,
> danger of rebellion,
>
> insurrection, or the inability of the President with regular forces to
> execute the
>
> laws of the United States.
>
> \(9\) Service performed to mitigate economic harm where the
> employee\'s employer
>
> is in violation of its employment or reemployment obligations to him
> or her.
>
> \(3\) [[]{#Application_for_Reemp_TOC .anchor}**Application for
> reemployment: 20 CFR (Sec. 1002.115)**](#application) **38 U.S. C.** §
> **4312**
>
> Upon completing service in the uniformed services, the employee must
> notify the pre-service employer of his or her intent to return to the
> employment position by either reporting to work or submitting a timely
> application for reemployment. Whether the employee is required to
> report to work or submit a timely application for reemployment depends
> upon the length of service, as follows:
>
> \(a\) Period of service less than 31 days or for a period of any
> length for the purpose of a fitness examination. If the period of
> service in the uniformed services was less than 31 days, or the
> employee was absent from a position of employment for a period of any
> length for the purpose of an examination to determine his or her
> fitness to perform service, the employee must report back to the
> employer not later than the beginning of the first full
> regularly-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 safe transportation from
> the place of that service to the employee\'s residence. For example,
> if the employee completes a period of service and travel home,
> arriving at ten o\'clock in the evening, he or she cannot be required
> to report to the employer until the beginning of the next full
> regularly-scheduled work period that begins at least eight hours after
> arriving home, i.e., no earlier than six o\'clock the next morning. If
> it is impossible or unreasonable for the employee to report within
> such time period through no fault of his or her own, he or she must
> report to the employer as soon as possible after the expiration of the
> eight-hour period.
>
> \(b\) Period of service more than 30 days but less than 181 days. If
> the employee\'s period of service in the uniformed services was for
> more than 30 days but less than 181 days, he or she must submit an
> application for reemployment (written or verbal) with the employer not
> later than 14 days after completing service. If it is impossible or
> unreasonable for the employee to apply within 14 days through no fault
> of his or her own, he or she must submit the application not later
> than the next full calendar day after it becomes possible to do so.
>
> \(c\) Period of service more than 180 days. If the employee\'s period
> of service in the uniformed services was for more than 180 days, he or
> she must submit an application for reemployment (written or verbal)
> not later than 90 days after completing service.
>
> **Sec. 1002.116** If the employee is hospitalized for, or convalescing
> from, an illness or injury incurred in, or aggravated during, the
> performance of service, he or she must report to or submit an
> application for reemployment to the employer at the end of the period
> necessary for recovering from the illness or injury. This period may
> not exceed two years from the date of the completion of service,
> except that it must be extended by the minimum time necessary to
> accommodate circumstances beyond the employee\'s control that make
> reporting within the period impossible or unreasonable. This period
> for recuperation and recovery extends the time period for reporting to
> or submitting an application for reemployment to the employer, and is
> not applicable following reemployment.

\(4\) Character of Service**: 20 CFR** []{#Sec_1002.135 .anchor}**Sec.
1002.135: 38 U.S. C.** **§ 4304**

**\[**Reemployment rights are terminated if the employee is:

> \(a\) Separated from uniformed service with a dishonorable or bad
> conduct discharge;
>
> \(b\) Separated from uniformed service under other than honorable
> conditions, as characterized by regulations of the uniformed service;
>
> \(c\) A commissioned officer dismissed as permitted under 10 U.S.C.
> 1161(a) by sentence of a general court-martial; in commutation of a
> sentence of a general court-martial; or, in time of war, by order of
> the President; or,
>
> \(d\) A commissioned officer dropped from the rolls under 10 U.S.C.
> 1161(b) due to absence without authority for at least three months;
> separation by reason of a sentence to confinement adjudged by a
> court-martial; or, a sentence to confinement in a Federal or State
> penitentiary or correctional institution.\
> \
> **Sec. 1002.136** The branch of service in which the employee performs
> the tour of duty determines the characterization of service.\
> \
> **Sec. 1002.137** A military review board has the authority to
> prospectively or retroactively upgrade a disqualifying discharge or
> release. A retroactive upgrade would restore reemployment rights
> providing the employee otherwise meets the Act\'s eligibility
> criteria.\
> \
> **Sec. 1002.138** A retroactive upgrade allows the employee to obtain
> reinstatement with the former employer, provided the employee
> otherwise meets the Act\'s eligibility criteria. Back pay and other
> benefits such as pension plan credits attributable to the time period
> between discharge and the retroactive upgrade are not required to be
> restored by the employer in this situation.

(5) [[[]{#DocumentationQAR .anchor}]{#Documentation_TOC
    .anchor}**Documentation:**](#documentation) **20 CFR (Sec 1002.121);
    38 U.S. C.** § **4312**

> If the employee submits an application for reemployment after a period
> of service of more than 30 days, he or she must, upon the request of
> the employer, provide documentation to establish that:\
> (a) The reemployment application is timely;\
> (b) The employee has not exceeded the five-year limit on the duration
> of service (subject to the exceptions listed at Sec.\
> 1002.103); and,\
> (c) The employee\'s separation or dismissal from service was not
> disqualifying.\
> \
> **Sec. 1002.122** The employer is not permitted to delay or deny
> reemployment by demanding documentation that does not exist or is not
> readily available. The employee is not liable for administrative
> delays in the issuance of military documentation. If the employee is
> reemployed after an absence from employment for more than 90 days, the
> employer may require that he or she submit the documentation
> establishing entitlement to reemployment before treating the employee
> as not having had a break in service for pension purposes. If the
> documentation is received after reemployment and it shows that the
> employee is not entitled to reemployment, the employer may terminate
> employment and any rights or benefits that the employee may have been
> granted.\
> \
> **Sec. 1002.123** (a) Documents that satisfy the requirements of
> USERRA include the following:\
> (1) DD (Department of Defense) 214 Certificate of Release or Discharge
> from Active Duty;\
> (2) Copy of duty orders prepared by the facility where the orders were
> fulfilled carrying an endorsement indicating completion of the
> described service;\
> (3) Letter from the commanding officer of a Personnel Support Activity
> or someone of comparable authority;\
> (4) Certificate of completion from military training school;\
> (5) Discharge certificate showing character of service; and,\
> (6) Copy of extracts from payroll documents showing periods of
> service;\
> (7) Letter from National Disaster Medical System (NDMS) Team Leader or
> Administrative Officer verifying dates and times of NDMS training or
> Federal activation.
>
> Note: The types of documents that are necessary to establish
> eligibility for reemployment will vary from case to case. Not all of
> these documents are available or necessary in every instance to
> establish reemployment eligibility, however, a military ID card is not
> a qualifying document.
>
> The employer may contact either the public affairs officer at the
> Department of Defense or Employer Support of the Guard and Reserve to
> verify that the service was actually performed. [QAR](#QARForm)

**.5** [[]{#Employer_Stat_Def .anchor}**Employer Statutory
Defenses**](#employerdef)**:** 38 U.S. C. **§ 4312\
\
**

> **Sec. 1002.139 (a)** Even if the employee is otherwise eligible for
> reemployment benefits, the employer is not required to reemploy him or
> her if the employer establishes that its circumstances have so changed
> as to make reemployment impossible or unreasonable. For example, an
> employer may be excused from reemploying the employee where there has
> been an intervening reduction in force that would have included that
> employee. The employer may not, however, refuse to reemploy the
> employee on the basis that another employee was hired to fill the
> reemployment position during the employee\'s absence, even if
> reemployment might require the termination of that replacement
> employee;
>
> \(b\) Even if the employee is otherwise eligible for reemployment
> benefits, the employer is not required to reemploy him or her if it
> establishes that assisting the employee in becoming qualified for
> reemployment would impose an undue hardship, as defined in Sec.
> 1002.5(n) and discussed in Sec. 1002.198, on the employer; or,
>
> \(c\) Even if the employee is otherwise eligible for reemployment
> benefits, the employer is not required to reemploy him or her if it
> establishes that the employment position vacated by the employee in
> order to perform service in the uniformed services was for a brief,
> nonrecurrent period and there was no reasonable expectation that the
> employment would continue indefinitely or for a significant period.
>
> \(d\) The employer defenses included in this section are affirmative
> ones, and the employer carries the burden to prove by a preponderance
> of the evidence that any one or more of these defenses is applicable.

**.6** [[]{#Protect_SM_Entitle_TOC .anchor}**Protected Servicemembers\'
Entitlements.:**](#escalator) **38 U.S. C.** § **4312, § 4313**

**Sec. 1002.191** As a general rule, the employee is entitled to
reemployment in the job position that he or she would have attained with
reasonable certainty if not for the absence due to uniformed service.
This position is known as the escalator position. 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. The
escalator principle requires that the employee 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. Depending upon the specific
circumstances, the employer may have the option, or be required, to
reemploy the employee in a position other than the escalator position.

**Sec. 1002.192** In all cases, the starting point for determining the
proper reemployment position is the escalator position, which is the job
position that the employee would have attained if his or her continuous
employment had not been interrupted due to uniformed service. Once this
position is determined, the employer may have to consider several
factors before determining the appropriate reemployment position in any
particular case. Such factors may include the employee\'s length of
service, qualifications, and disability, if any. The reemployment
position may be either the escalator position; the pre-service position;
a position comparable to the escalator or pre-service position; or, the
nearest approximation to one of these positions.\
\
**Sec. 1002.193 (a)** The reemployment position includes the seniority,
status, and rate of pay that an employee would ordinarily have attained
in that position given his or her job history, including prospects for
future earnings and advancement. The employer must determine the
seniority rights, status, and rate of pay as though the employee had
been continuously employed during the period of service. The seniority
rights, status, and pay of an employment position include those
established (or changed) by a collective bargaining agreement, employer
policy, or employment practice. The sources of seniority rights, status,
and pay include agreements, policies, and practices in effect at the
beginning of the employee\'s service, and any changes that may have
occurred during the period of service. In particular, the employee\'s
status in the reemployment position could include opportunities for
advancement, general working conditions, job location, shift assignment,
rank, responsibility, and geographical location.

\(b\) If an opportunity for promotion, or eligibility for promotion,
that the employee missed during service is based on a skills test or
examination, then the employer should give him or her a reasonable
amount of time to adjust to the employment position and then give a
skills test or examination. No fixed amount of time for permitting
adjustment to reemployment will be deemed reasonable in all cases.
However, in determining a reasonable amount of time to permit an
employee to adjust to reemployment before scheduling a makeup test or
examination, an employer may take into account a variety of factors,
including but not limited to the length of time the returning employee
was absent from work, the level of difficulty of the test itself, the
typical time necessary to prepare or study for the test, the duties and
responsibilities of the reemployment position and the promotional
position, and the nature and responsibilities of the service member
while serving in the uniformed service. If the employee is successful on
the makeup exam and, based on the results of that exam, there is a
reasonable certainty that he or she would have been promoted, or made
eligible for promotion, during the time that the employee served in the
uniformed service, then the promotion or eligibility for promotion must
be made effective as of the date it would have occurred had employment
not been interrupted by uniformed service.\
\
**Sec. 1002.194** The Act does not prohibit lawful adverse job
consequences that result from the employee\'s restoration on the
seniority ladder. 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. For example, if an employee\'s
seniority or job classification would have resulted in the employee
being laid off during the period of service, and the layoff continued
after the date of reemployment, reemployment would reinstate the
employee to layoff status. Similarly, the status of the reemployment
position requires the employer to assess what would have happened to
such factors as the employee\'s opportunities for advancement, working
conditions, job location, shift assignment, rank, responsibility, and
geographical location, if he or she had remained continuously employed.
The reemployment position may involve transfer to another shift or
location, more or less strenuous working conditions, or changed
opportunities for advancement, depending upon the application of the
escalator principle.\
\
**Sec. 1002.195** Once the employee\'s escalator position is determined,
other factors may allow, or require, the employer to reemploy the
employee in a position other than the escalator position. These factors,
which are explained in Sec. Sec. 1002.196 through 1002.199, are:

> \(a\) The length of the employee\'s most recent period of uniformed
> service;\
> (b) The employee\'s qualifications; and,\
> (c) Whether the employee has a disability incurred or aggravated
> during uniformed service.
>
> They are also entitled to continu­ation of health benefits for up to
> twenty-four months at the servicemembers\' option and expense, while
> serving in the military service.
>
> **Sec. 1002.149** During a period of service in the uniformed
> services, the employee is deemed to be on furlough or leave of absence
> from the civilian employer. In this status, the employee is entitled
> to the non-seniority rights and benefits generally provided by the
> employer to other employees with similar seniority, status, and pay
> that are on furlough or leave of absence. Entitlement to these
> non-seniority rights and benefits is not dependent on how the employer
> characterizes the employee\'s status during a period of service. For
> example, if the employer characterizes the employee as
> \`\`terminated\'\' during the period of uniformed service, this
> characterization cannot be used to avoid\
> USERRA\'s requirement that the employee be deemed on furlough or leave
> of absence, and therefore entitled to the non-seniority rights and
> benefits generally provided to employees on furlough or leave of
> absence.
>
> Members of the National Guard and military Reserve units are entitled
> to time off from their jobs to attend training. This time cannot be
> involuntarily charged as vacation time. However, if the individual
> asks to use vacation time, the employer must allow it. If the Guard or
> Reserve member requests time off to attend military training, the
> employer must grant it. In addition, USERRA protects Guard and Reserve
> members against being discharged, discriminated against in hiring, or
> denied certain employment benefits because of their military
> activities.

**.7** [[]{#Protect_fr_discrim_TOC .anchor}**Protection from
Discrimination and Retaliation:.**](#Discrimination) **38 U.S. C.** §
**4311**

> **Sec. 1002.18** An employer must not deny initial employment,
> reemployment, retention in employment, promotion, or any benefit of
> employment to an individual on the basis of his or her membership,
> application for membership, performance of service, application for
> service, or obligation for service in the uniformed services.\
> \
> **Sec. 1002.19** An employer must not retaliate against an individual
> by taking any []{#adverseaction .anchor}adverse employment action
> against him or her because the individual has taken an action to
> enforce a protection afforded any person under USERRA; testified or
> otherwise made a statement in or in connection with a proceeding under
> USERRA; assisted or participated in a USERRA investigation: or,
> exercised a right provided for by USERRA.\
> \
> **Sec. 1002.20** Employers are prohibited from taking actions against
> an individual for any of the activities protected by the Act, whether
> or not he or she has performed service in the uniformed services.
> [**\[QAR\]**](#QARForm)\
> \
> **Sec. 1002.21** The prohibitions against discrimination and
> retaliation apply to all covered employers (including hiring halls and
> potential employers, see sections 1002.36 and .38) and employment
> positions, including those that are for a brief, nonrecurrent period,
> and for which there is no reasonable expectation that the employment
> position will continue indefinitely or for a significant period.
> However, USERRA\'s reemployment rights and benefits do not apply to
> such brief, nonrecurrent positions of employment.

**.8** [[]{#SM_obligation_TOC .anchor}**Protected Servicemembers\'
Obligations (Application for Reemployment):.**](#application) **38 U.S.
C.** **§ 4312**

> **Sec. 1002.115** Upon completing service in the uniformed services,
> the employee must notify the pre-service employer of his or her intent
> to return to the employment position by either reporting to work or
> submitting a timely application for reemployment. Whether the employee
> is required to report to work or submit a timely application for
> reemployment depends upon the length of service, as follows:
>
> \(a\) Period of service less than 31 days or for a period of any
> length for the purpose of a fitness examination. If the period of
> service in the uniformed services was less than 31 days, or the
> employee was absent from a position of employment for a period of any
> length for the purpose of an examination to determine his or her
> fitness to perform service, the employee must report back to the
> employer not later than the beginning of the first full
> regularly-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 safe transportation from
> the place of that service to the employee\'s residence. For example,
> if the employee completes a period of service and travel home,
> arriving at ten o\'clock in the evening, he or she cannot be required
> to report to the employer until the beginning of the next full
> regularly-scheduled work period that begins at least eight hours after
> arriving home, i.e., no earlier than six o\'clock the next morning. If
> it is impossible or unreasonable for the employee to report within
> such time period through no fault of his or her own, he or she must
> report to the employer as soon as possible after the expiration of the
> eight-hour period.
>
> \(b\) Period of service more than 30 days but less than 181 days. If
> the employee\'s period of service in the uniformed services was for
> more than 30 days but less than 181 days, he or she must submit an
> application for reemployment (written or verbal) with the employer not
> later than 14 days after completing service. If it is impossible or
> unreasonable for the employee to apply within 14 days through no fault
> of his or her own, he or she must submit the application not later
> than the next full calendar day after it becomes possible to do so.
>
> \(c\) Period of service more than 180 days. If the employee\'s period
> of service in the uniformed services was for more than 180 days, he or
> she must submit an application for reemployment (written or verbal)
> not later than 90 days after completing service.
>
> **Sec. 1002.116** If the employee is hospitalized for, or convalescing
> from, an illness or injury incurred in, or aggravated during, the
> performance of service, he or she must report to or submit an
> application for reemployment to the employer at the end of the period
> necessary for recovering from the illness or injury. This period may
> not exceed two years from the date of the completion of service,
> except that it must be extended by the minimum time necessary to
> accommodate circumstances beyond the employee\'s control that make
> reporting within the period impossible or unreasonable. This period
> for recuperation and recovery extends the time period for reporting to
> or submitting an application for reemployment to the employer, and is
> not applicable following reemployment.\
> \
> **Sec. 1002.117 (a)** If the employee fails to timely report for or
> apply for reemployment, he or she does not automatically forfeit
> entitlement to USERRA\'s reemployment and other rights and benefits.
> Rather, the employee becomes subject to the conduct rules, established
> policy, and general practices of the employer pertaining to an absence
> from scheduled work.
>
> \(b\) If reporting or submitting an employment application to the
> employer is impossible or unreasonable through no fault of the
> employee, he or she may report to the employer as soon as possible (in
> the case of a period of service less than 31 days) or submit an
> application for reemployment to the employer by the next full calendar
> day after it becomes possible to do so (in the case of a period of
> service from 31 to 180 days), and the employee will be considered to
> have timely reported or applied for reemployment.\
> \
> **Sec. 1002.118** An application for reemployment need not follow any
> particular format. The employee may apply orally or in writing. The
> application should indicate that the employee is a former employee
> returning from service in the uniformed services and that he or she
> seeks reemployment with the pre-service employer. The employee is
> permitted but not required to identify a particular reemployment
> position in which he or she is interested.\
> \
> **Sec. 1002.119** The application must be submitted to the pre-service
> employer or to an agent or representative of the employer who has
> apparent responsibility for receiving employment applications.
> Depending upon the circumstances, such a person could be a personnel
> or human resources officer, or a first-line supervisor. If there has
> been a change in ownership of the employer, the application should be
> submitted to the employer\'s successor-in-interest.\
> \
> **Sec. 1002.120** The employee has reemployment rights with the
> pre-service employer provided that he or she makes a timely
> reemployment application to that employer. The employee may seek or
> obtain employment with an employer other than the pre-service employer
> during the period of time within which a reemployment application must
> be made, without giving up reemployment rights with the pre-service
> employer. However, such alternative employment during the application
> period should not be of a type that would constitute cause for the
> employer to discipline or terminate the employee following
> reemployment. For instance, if the employer forbids employees from
> working concurrently for a direct competitor during employment,
> violation of such a policy may constitute cause for discipline or even
> termination.\
> \
> **Sec. 1002.121** If the period of service exceeded 30 days and if
> requested by the employer to do so. If the employee submits an
> application for reemployment after a period of service of more than 30
> days, he or she must, upon the request of the employer, provide
> documentation to establish that:
>
> \(a\) The reemployment application is timely;\
> (b) The employee has not exceeded the five-year limit on the duration
> of service (subject to the exceptions listed at Sec.\
> 1002.103); and,\
> (c) The employee\'s separation or dismissal from service was not
> disqualifying.
>
> USERRA also provides for an extension of the above time limits up to a
> total of two years from completion of military service, if an
> individual is hospitalized or convalescing from an injury or illness
> caused by or aggravated during military service. The two-year period
> would be further extended by the minimum time required to accommodate
> the circumstances beyond the individual\'s control which makes
> reporting within the time limits impossible or unreasonable.
>
> **Sec. 1002.122** The employer is not permitted to delay or deny
> reemployment by demanding documentation that does not exist or is not
> readily available. The employee is not liable for administrative
> delays in the issuance of military documentation. If the employee is
> reemployed after an absence from employment for more than 90 days, the
> employer may require that he or she submit the documentation
> establishing entitlement to reemployment before treating the employee
> as not having had a break in service for pension purposes. If the
> documentation is received after reemployment and it shows that the
> employee is not entitled to reemployment, the employer may terminate
> employment and any rights or benefits that the employee may have been
> granted.

**.9** [[]{#Reemp_position_TOC .anchor}**Reemployment
Positions**](#escalator)**. : 38 U.S. C. § 4313**

> **Sec. 1002.196** Following a period of service in the uniformed
> services of less than 91
>
> days, the employee must be reemployed according to the following
> priority:
>
> (a)The employee must be reemployed in the escalator position. He or
> she must be qualified to perform the duties of this position. The
> employer must make reasonable efforts to help the employee become
> qualified to perform the duties of this position.\
> (b) If the employee is not qualified to perform the duties of the
> escalator position after reasonable efforts by the employer, the
> employee must be reemployed in the position in which he or she was
> employed on the date that the period of service began. The employee
> must be qualified to perform the duties of this position. The employer
> must make reasonable efforts to help the employee become qualified to
> perform the duties of this position.\
> (c) If the employee is not qualified to perform the duties of the
> escalator position or the pre-service position, after reasonable
> efforts by the employer, he or she must be reemployed in any other
> position that is the nearest approximation first to the escalator
> position and then to the pre-service position. The employee must be
> qualified to perform the duties of this position. The employer must
> make reasonable efforts to help the employee become qualified to
> perform the duties of this position.

**Sec. 1002.197** Following a period of service of more than 90 days,
the employee must

be reemployed according to the following priority:

> The employee must be reemployed in the escalator position or a
> position of like seniority, status, and pay. He or she must be
> qualified to perform the duties of this position. The employer must
> make reasonable efforts to help the employee become qualified to
> perform the duties of this position.\
> (b) If the employee is not qualified to perform the duties of the
> escalator\
> position or a like position after reasonable efforts by the employer,
> the employee must be reemployed in the position in which he or she was
> employed on the date that the period of service began or in a position
> of like seniority, status, and pay. The employee must be qualified to
> perform the duties of this position. The employer must make reasonable
> efforts to help the employee become qualified to perform the duties of
> this position.\
> (c) If the employee is not qualified to perform the duties of the
> escalator position, the pre-service position, or a like position,
> after reasonable efforts by the employer, he or she must be reemployed
> in any other position that is the nearest approximation first to the
> escalator position and then to the pre-service position. The employee
> must be qualified to perform the duties of this position. The employer
> must make reasonable efforts to help the employee become qualified to
> perform the duties of this position.

**Sec. 1002.198** The employee must be qualified for the reemployment
position. The

> employer must make reasonable efforts to help the employee become
> qualified to perform the duties of this position. The employer is not
> required to reemploy the employee on his or her return from service if
> he or she cannot, after reasonable efforts by the employer, qualify
> for the appropriate reemployment position.
>
> (a)(1) \`\`Qualified\'\' means that the employee has the ability to
> perform the essential tasks of the position. The employee\'s inability
> to perform one or more non-essential tasks of a position does not make
> him or her unqualified.\
> (2) Whether a task is essential depends on several factors, and these
> factors include but are not limited to:\
> (i) The employer\'s judgment as to which functions are essential;\
> (ii) Written job descriptions developed before the hiring process
> begins;\
> (iii) The amount of time on the job spent performing the function;\
> (iv) The consequences of not requiring the individual to perform the
> function;\
> (v) The terms of a collective bargaining agreement;\
> (vi) The work experience of past incumbents in the job; and/or\
> (vii) The current work experience of incumbents in similar jobs.\
> (b) Only after the employer makes reasonable efforts, as defined in
> Sec. 1002.5(i), may it determine that the employee is not qualified
> for the reemployment position. These reasonable efforts must be made
> at no cost to the employee.

**Sec. 1002.199** If two or more employees are entitled to reemployment
in the same position and more than one employee has reported or applied
for employment in that position, the employee who first left the
position for uniformed service has the first priority on reemployment in
that position. The remaining employee (or employees) is entitled to be
reemployed in a position similar to that in which the employee would
have been reemployed according to the rules that normally determine a
reemployment position, as set out in Sec. Sec. 1002.196 and 1002.197.

**.10** []{#key_definitions_TOC .anchor}**Key Definitions.** 38 U.S. C.
**§ 4303**

> \(1\) **Claimant** - The person who submits the claim.
>
> \(2\) **Conferences:**
>
> \(a\) **Case Resolution Conference** - Meetings arranged and conducted
> by the investigator, usually attended by the parties and possibly
> their representa­tives. (If a collective bargaining agreement is
> involved, a union represen­tative may also attend.) The purpose is to
> make an attempt at a mutually agreeable resolution.
>
> \(b\) **Case Closing Conference** - A final resolution conference held
> after the investigation has been completed and merit has been
> determined, and a merit determination letter has been sent.
>
> \(3\) **Investigation -** The process of determining answers to the
> questions who, what, when, where, how and why. It is the systematic
> examination of records, obtaining statements, and collection of
> evidence, to determine the merits of a claim.
>
> \(4\) **Negotiation** **-** Communication between parties to a
> dispute. Negotiation is the basic building block of all forms of
> resolution. The parties seek to reach agree­ment on a dispute by
> listening to each other\'s arguments. Negotiation is useful in
> narrowing the scope of a dispute, clarifying the parties\' positions
> and/or reaching agreement.
>
> \(5\) **Prima Facie Claim** - A claim in which there is sufficient
> evidence on its face to find for the claimant, if the elements of the
> claim are not rebutted by sufficient competent evidence.
>
> (6 ) **USERRA Case** - The investigation or other activity resulting
> from a request for assistance from a person in asserting rights
> provided under USERRA.
>
> \(7\) **USERRA Information Management System (UIMS)** - The
> computerized data base used to enter case information and track case
> progress, including quality assurance reviews.

(8) **VETS Investigator** - Any VETS staff member authorized to
    investigate

> USERRA complaints and provide technical assistance on USERRA.

**The following definitions are from the Department of Labor's USERRA
regulations at 20 CFR Sec. 1002.5:**

**\
(a) Attorney General** means the Attorney General of the United States
or any person designated by the Attorney General to carry out a
responsibility of the Attorney General under USERRA.

\(b\) **Benefit, benefit of employment, or rights and benefits** means
any advantage, profit, privilege, gain, status, account, or interest
(other than wages or salary for work performed) that accrues to the
employee because of an employment contract, employment agreement, or
employer policy, plan, or practice. The term includes rights and
benefits under a pension plan, health plan, or employee stock ownership
plan, insurance coverage and awards, bonuses, severance pay,
supplemental unemployment benefits, vacations, and the opportunity to
select work hours or the location of employment.

\(c\) **Employee** means any person employed by an employer. The term
also includes any person who is a citizen, national or permanent
resident alien of the United States who is employed in a workplace in a
foreign country by an employer that is an entity incorporated or
organized in the United States, or that is controlled by an entity
organized in the United States. \`\`Employee\'\' includes the former
employees of an employer.

(d)(1) **Employer**, except as provided in paragraphs (d)(2) and (3) of
this section, means any person, institution, organization, or other
entity that pays salary or wages for work performed, or\
that has control over employment opportunities, including\--\
(i) A person, institution, organization, or other entity to whom the
employer has delegated the performance of employment-related
responsibilities, except in the case that such entity has been delegated
functions that are purely ministerial in nature, such as maintenance of
personnel files or the preparation of forms for\
submission to a government agency;\
(ii) The Federal Government;\
(iii) A State;\
(iv) Any successor in interest to a person, institution, organization,
or other entity referred to in this definition; and,\
(v) A person, institution, organization, or other entity that has denied
initial employment in violation of 38 U.S.C. 4311, USERRA\'s
anti-discrimination and anti-retaliation provisions.\
(2) In the case of a National Guard technician employed under 32 U.S.C.
709, the term \`\`employer\'\' means the adjutant general of the State
in which the technician is employed.\
(3) An employee pension benefit plan as described in section 3(2) of the
Employee Retirement Income Security Act of 1974 (ERISA)(29 U.S.C.
1002(2)) is considered an employer for an individual that it does not
actually employ only with respect to the obligation to provide pension
benefits.

\(e\) **Health plan** means an insurance policy, insurance contract,
medical or hospital service agreement, membership or subscription
contract, or other arrangement under which health services for
individuals are provided or the expenses of such services are paid.

\(f\) **National Disaster Medical System** (NDMS) is an agency within
the Federal Emergency Management Agency, Department of Homeland
Security, established by the Public Health Security and Bioterrorism
Preparedness and Response Act of 2002, Public Law 107-188. The NDMS
provides medical-related assistance to respond to the needs of victims
of public health emergencies. Participants in the NDMS are volunteers
who serve as intermittent Federal employees when activated. For purposes
of USERRA coverage only, these persons are treated as members of the
uniformed services when they are activated to provide assistance in
response to a public health emergency or to be present for a short
period of time when there is a risk of a public health emergency, or
when they are participating in authorized training. See 42 U.S.C.
300hh-11(e).

**NOTE**:  Section 301 of the Pandemic and All-Hazards Preparedness Act,
Public Law 109-417, transferred the NDMS from the Federal Emergency
Management Agency, Department of Homeland Security to the Department of
Health and Human Services, effective January 1, 2007.  USERRA coverage
for NDMS participants was not affected by the legislation.

(g**) Notice, when the employee is required to give advance notice of
service**, means any written or verbal notification of an obligation or
intention to perform service in the uniformed services provided to an
employer by the employee who will perform such service, or by the
uniformed service in which the service is to be performed.

\(h\) **Qualified, with respect to an employment position**, means
having the ability to perform the essential tasks of the position.

\(i\) **Reasonable efforts, in the case of actions required of an
employer**, means actions, including training provided by an employer
that do not place an undue hardship on the employer.

\(j\) **Secretary** means the Secretary of Labor or any person
designated by the Secretary of Labor to carry out an activity under
USERRA and these regulations, unless a different office is expressly
indicated in the regulation.

\(k\) **Seniority** means longevity in employment together with any
benefits of employment that accrue with, or are determined by, longevity
in employment.

\(l\) **Service in the uniformed services** means the performance of
duty on a voluntary or involuntary basis in a uniformed service under
competent authority. Service in the uniformed services includes active
duty, active and inactive duty for training, National Guard duty under
Federal statute, and a period for which a person is absent from a
position of employment for an examination to determine the fitness of
the person to perform such duty. The term also includes a period for
which a person is absent from employment to perform funeral honors duty
as authorized by law (10 U.S.C. 12503 or 32 U.S.C. 115). The Public
Health Security and Bioterrorism Preparedness and Response Act of 2002,
Pub. L. 107-188, provides that service as an intermittent
disaster-response appointee upon activation of the National Disaster
Medical System (NDMS) or as a participant in an authorized training
program is deemed \"service in the uniformed services.\'\' 42 U.S.C.
300hh-11(e)(3).

\(m\) **State** means each of the several States of the United States,
the District of Columbia, the Commonwealth of Puerto Rico, Guam, the
Virgin Islands, and other territories of the United States (including
the agencies and political subdivisions thereof); however, for purposes
of enforcement of rights under 38 U.S.C. 4323, a political subdivision
of a State is a private employer.

\(n\) **Undue hardship, in the case of actions taken by an employer**,
means an action requiring significant difficulty or expense, when
considered in light of\--\
(1) The nature and cost of the action needed under USERRA and these
regulations;\
(2) The overall financial resources of the facility or facilities
involved in the provision of the action; the number of persons employed
at such facility; the effect on expenses and resources, or the impact
otherwise of such action upon the operation of the facility;\
(3) The overall financial resources of the employer; the overall size of
the business of an employer with respect to the number of its employees;
the number, type, and location of its facilities; and,\
(4) The type of operation or operations of the employer, including the
composition, structure, and functions of the work force of such
employer; the geographic separateness, administrative, or fiscal
relationship of the facility or facilities in question to the employer.

\(o\) **Uniformed services** means the Armed Forces; the Army National
Guard and the Air National Guard when engaged in active duty for
training, inactive duty training, or full-time National Guard duty; the
commissioned corps of the Public Health Service; and any other category
of persons designated by the President in time of war or national
emergency. For purposes of USERRA coverage only, service as an
intermittent disaster response appointee of the NDMS when federally
activated or attending authorized training in support of their Federal
mission is deemed \`\`service in the uniformed services,\'\' although
such appointee is not a member of the \`\`uniformed services\'\' as
defined by USERRA.

**.11** []{#Issuecodes .anchor}**Issue Codes for Use in UIMS
[QAR](#QARForm)**

  ---------------------------- ----------------------------------------------------- ---------------------------- -------------------------------------------
  []{#Crosswalk .anchor}**UIMS **5 CFR (Sec 353)**                                   **20 CFR (Sec 1002)**        **38 USC (Sec 43XX)**
  \"Issue Codes\" \*\***                                                                                          

                                                                                                                  

                                                                                                                  

  ID - Military Obligations\   [107](#OPM107)                                        [212-213](#Discrimination)   [4311](#D4311)
  Discrimination                                                                                                  

                               [202](#OPM202)                                        [18-23](#Discrimination)     [4311](#D4311)

                                                                                                                  

                                                                                                                  

                               [202](#OPM202)                                        [18-23](#Discrimination)     [4311](#D4311)/[4312](#reinstatement4312)

  II - Initial Hiring          [202](#OPM202)                                        [18-23](#Discrimination)     [4311](#D4311)
  Discrimination                                                                                                  

                                                                                                                  

                                                                                                                  

  IH - Health Benefits                                                               [163-171](#health)           [4317](#health4317)

  IP - Pension                 [107](#OPM107)                                        [259-267](#pension)          [4318](#pension4318)

  IS - Seniority               [207](#position-to-which-restored.)                   [210-213](#seniority)        [4316](#obligations4316)

  IB - Other Non-Seniority                                                                                        
  Benefits                                                                                                        

  IZ - Status                                                                                                     

  IL - Layoff                                                                                                     

  IV - Vacation                [208](#OPM208)                                        [153](#vacation)             [4304](#seperation4304),
                                                                                                                  [4312](#reinstatement4312)

  IR - Reinstatement           [204/5](#OPM204)                                      [85-88](#notice)             [4312](#reinstatement4312)

                               [106](#personnel-actions-during-employees-absence.)   [149-153](#SubparD)          [4312](#reinstatement4312),
                                                                                                                  [4316](#obligations4316)

                               [203](#OPM203)                                        [32](#eligibilty)            [4312](#reinstatement4312)

                               [207](#OPMReg207)                                     [191-199](#escalator)        [4312](#reinstatement4312)

                               [110](#opm-placement-assistance.)                     [139](#employerdef)          [4312](#reinstatement4312)

                               [207](#position-to-which-restored.)                   [191-199](#escalator)        [4313](#escalator4313)

  IT - Promotion                                                                                                  

  IA - Reasonable                                                                                                 
  Accommodations/Retraining                                                                                       
  for Disabled                                                                                                    

  IW - Reasonable                                                                                                 
  Accommodations/Retraining                                                                                       
  for                                                                                                             
  Non-Qualified/Non-Disabled                                                                                      

  IM - Pay Rate                                                                                                   

  IF - Special Protected       [209](#OPM209)                                        [247-248](#protect)          [4316](#obligations4316)
  Period Discharge                                                                                                

                                                                                                                  

                                                                                                                  

  ID2 - Discrimination as\      [202](#OPM202)                                       [19-23](#Discrimination)     [4316](#obligations4316), [4311](#D4311)
  Retaliation for any Action                                                                                      

                                                                                     [19-23](#Discrimination)     [4316](#obligations4316)/[4311](#D4311)
  ---------------------------- ----------------------------------------------------- ---------------------------- -------------------------------------------

[**Exhibit 1: 20 CFR Part 1002**](#CFR20ILL)

> USERRA Regulations applicable to States, Local Governments, and
> Private Employers
>
> ![](media/image16.wmf){width="4.713888888888889in"
> height="6.033333333333333in"}

[[]{#part1002 .anchor}**PART 1002---REGULATIONS UNDER**](#CFR20ILL)

[**THE UNIFORMED SERVICES**](#CFR20ILL)

[**EMPLOYMENT AND REEMPLOYMENT**](#CFR20ILL)

[**RIGHTS ACT OF 1994**](#CFR20ILL)

**Subpart A---Introduction to the Regulations**

**Under the Uniformed Services Employment**

**and Reemployment Rights Act of 1994**

**General Provisions**

Sec.

1002.1 What is the purpose of this part?

1002.2 Is USERRA a new law?

1002.3 When did USERRA become

effective?

1002.4 What is the role of the Secretary of

Labor under USERRA?

1002.5 What definitions apply to USERRA?

1002.6 What types of service in the

uniformed services are covered by

USERRA?

1002.7 How does USERRA relate to other

laws, public and private contracts, and

employer practices?

[**Subpart B---Anti-Discrimination and Anti-**](#Discrimination)

[**Retaliation**](#Discrimination)

[**Protection From Employer Discrimination**](#Discrimination)

[**and Retaliation**](#Discrimination)

1002.18 What status or activity is protected

from employer discrimination by

USERRA?

1002.19 What activity is protected from

employer retaliation by USERRA?

1002.20 Does USERRA protect an

individual who does not actually

perform service in the uniformed

services?

1002.21 Do the Act's prohibitions against

discrimination and retaliation apply to

all employment positions?

1002.22 Who has the burden of proving

discrimination or retaliation in violation

of USERRA?

1002.23 What must the individual show to

carry the burden of proving that the

employer discriminated or retaliated

against him or her?

[**Subpart C---Eligibility for Reemployment**](#eligibilty)

[**General Eligibility Requirements for**](#eligibilty)

[**Reemployment**](#eligibilty)

1002.32 What criteria must the employee

meet to be eligible under USERRA for

reemployment after service in the

uniformed services?

1002.33 Does the employee have to prove

that the employer discriminated against

him or her in order to be eligible for

reemployment?

[**Coverage of Employers and Positions**](#Employers)

1002.34 Which employers are covered by

USERRA?

1002.35 Is a successor in interest an

employer covered by USERRA?

1002.36 Can an employer be liable as a

successor in interest if it was unaware

that an employee may claim

reemployment rights when the employer

acquired the business?

1002.37 Can one employee be employed in

one job by more than one employer?

1002.38 Can a hiring hall be an employer?

1002.39 Are States (and their political

subdivisions), the District of Columbia,

the Commonwealth of Puerto Rico, and

United States territories, considered

employers?

1002.40 Does USERRA protect against

discrimination in initial hiring

decisions?

1002.41 Does an employee have rights

under USERRA even though he or she

holds a temporary, part-time,

probationary, or seasonal employment

position?

1002.42 What rights does an employee have

under USERRA if he or she is on layoff,

on strike, or on a leave of absence?

1002.43 Does an individual have rights

under USERRA even if he or she is an

executive, managerial, or professional

employee?

1002.44 Does USERRA cover an

independent contractor?

[**Coverage of Service in the Uniformed**](#coverage)

[**Services**](#coverage)

1002.54 Are all military fitness

examinations considered ''service in the

uniformed services?''

1002.55 Is all funeral honors duty

considered ''service in the uniformed

services?''

1002.56 What types of service in the

National Disaster Medical System are

considered ''service in the uniformed

services?''

1002.57 Is all service as a member of the

National Guard considered ''service in

the uniformed services?''

1002.58 Is service in the commissioned

corps of the Public Health Service

considered ''service in the uniformed

services?''

1002.59 Are there any circumstances in

which special categories of persons are

considered to perform ''service in the

uniformed services?''

1002.60 Does USERRA cover an individual

attending a military service academy?

1002.61 Does USERRA cover a member of

the Reserve Officers Training Corps?

1002.62 Does USERRA cover a member of

the Commissioned Corps of the National

Oceanic and Atmospheric

Administration, the Civil Air Patrol, or

the Coast Guard Auxiliary?

[**Absence From a Position of Employment**](#Absence)

[**Necessitated by Reason of Service in the**](#Absence)

[**Uniformed Services**](#Absence)

1002.73 Does service in the uniformed

services have to be an employee's sole

reason for leaving an employment

position in order to have USERRA

reemployment rights?

1002.74 Must the employee begin service in

the uniformed services immediately after

leaving his or her employment position

in order to have USERRA reemployment

rights?

[**Requirement of Notice**](#notice)

1002.85 Must the employee give advance

notice to the employer of his or her

service in the uniformed services?

[1002.86 When is the employee excused](#advancenoticeexempt)

[from giving advance notice of service in](#advancenoticeexempt)

[the uniformed services?](#advancenoticeexempt)

1002.87 Is the employee required to get

permission from his or her employer

before leaving to perform service in the

uniformed services?

1002.88 Is the employee required to tell his

or her civilian employer that he or she

intends to seek reemployment after

completing uniformed service before the

employee leaves to perform service in

the uniformed services?

[**Period of Service**](#period)

1002.99 Is there a limit on the total amount

of service in the uniformed services that

an employee may perform and still retain

reemployment rights with the employer?

1002.100 Does the five-year service limit

include all absences from an

employment position that are related to

service in the uniformed services?

1002.101 Does the five-year service limit

include periods of service that the

employee performed when he or she

worked for a previous employer?

1002.102 Does the five-year service limit

include periods of service that the

employee performed before USERRA

was enacted?

1002.103 Are there any types of service in

the uniformed services that an employee

can perform that do not count against

USERRA's five-year service limit?

1002.104 Is the employee required to

accommodate his or her employer's

needs as to the timing, frequency or

duration of service?

[**Application for Reemployment**](#application)

1002.115 Is the employee required to report

to or submit a timely application for

reemployment to his or her pre-service

employer upon completing the period of

service in the uniformed services?

1002.116 Is the time period for reporting

back to an employer extended if the

employee is hospitalized for, or

convalescing from, an illness or injury

incurred in, or aggravated during, the

performance of service?

1002.117 Are there any consequences if the

employee fails to report for or submit a

timely application for reemployment?

1002.118 Is an application for

reemployment required to be in any

particular form?

1002.119 To whom must the employee

submit the application for

reemployment?

1002.120 If the employee seeks or obtains

employment with an employer other

than the pre-service employer before the

[**PART 1002**](#part1002)

end of the period within which a

reemployment application must be filed,

will that jeopardize reemployment rights

with the pre-service employer?

[1002.121 Is the employee required to](#documentation)

[submit documentation to the employer](#documentation)

[in connection with the application for](#documentation)

[reemployment?](#documentation)

1002.122 Is the employer required to

reemploy the employee if documentation

establishing the employee's eligibility

does not exist or is not readily available?

1002.123 What documents satisfy the

requirement that the employee establish

eligibility for reemployment after a

period of service of more than thirty

days?

[**Character of Service**](#character)

1002.134 What type of discharge or

separation from service is required for an

employee to be entitled to reemployment

under USERRA?

1002.135 What types of discharge or

separation from uniformed service will

make the employee ineligible for

reemployment under USERRA?

1002.136 Who determines the

characterization of service?

1002.137 If the employee receives a

disqualifying discharge or release from

uniformed service and it is later

upgraded, will reemployment rights be

restored?

1002.138 If the employee receives a

retroactive upgrade in the

characterization of service, will that

entitle him or her to claim back wages

and benefits lost as of the date of

separation from service?

[**Employer Statutory Defenses**](#employerdef)

1002.139 Are there any circumstances in

which the pre-service employer is

excused from its obligation to reemploy

the employee following a period of

uniformed service? What statutory

defenses are available to the employer in

an action or proceeding for

reemployment benefits?

[**Subpart D---Rights, Benefits, and**](#SubparD)

[**Obligations of Persons Absent from**](#SubparD)

[**Employment Due to Service in the**](#SubparD)

[**Uniformed Services**](#SubparD)

**Furlough and Leave of Absence**

1002.149 What is the employee's status

with his or her civilian employer while

performing service in the uniformed

services?

1002.150 Which non-seniority rights and

benefits is the employee entitled to

during a period of service?

1002.151 If the employer provides full or

partial pay to the employee while he or

she is on military leave, is the employer

required to also provide the nonseniority

rights and benefits ordinarily

granted to similarly situated employees

on furlough or leave of absence?

1002.152 If employment is interrupted by a

period of service in the uniformed

services, are there any circumstances

under which the employee is not entitled

to the non-seniority rights and benefits

ordinarily granted to similarly situated

employees on furlough or leave of

absence?

1002.153 If employment is interrupted by a

period of service in the uniformed

services, is the employee permitted upon

request to use accrued vacation, annual

or similar leave with pay during the

service? Can the employer require the

employee to use accrued leave during a

period of service?

[**Health Plan Coverage**](#health)

1002.163 What types of health plans are

covered by USERRA?

1002.164 What health plan coverage must

the employer provide for the employee

under USERRA?

1002.165 How does the employee elect

continuing health plan coverage?

1002.166 How much must the employee

pay in order to continue health plan

coverage?

1002.167 What actions may a plan

administrator take if the employee does

not elect or pay for continuing coverage

in a timely manner?

1002.168 If the employee's coverage was

terminated at the beginning of or during

service, does his or her coverage have to

be reinstated upon reemployment?

1002.169 Can the employee elect to delay

reinstatement of health plan coverage

until a date after the date he or she is

reemployed?

1002.170 In a multiemployer health plan,

how is liability allocated for employer

contributions and benefits arising under

USERRA's health plan provisions?

1002.171 How does the continuation of

health plan coverage apply to a

multiemployer plan that provides health

plan coverage through a health benefits

account system?

[**Subpart E---Reemployment Rights and**](#SubpartE)

[**Benefits**](#SubpartE)

**Prompt Reemployment**

1002.180 When is an employee entitled to

be reemployed by his or her civilian

employer?

1002.181 How is ''prompt reemployment''

defined?

[**Reemployment Position**](#escalator)

1002.191 What position is the employee

entitled to upon reemployment?

1002.192 How is the specific reemployment

position determined?

1002.193 Does the reemployment position

include elements such as seniority,

status, and rate of pay?

1002.194 Can the application of the

escalator principle result in adverse

consequences when the employee is

reemployed?

1002.195 What other factors can determine

the reemployment position?

1002.196 What is the employee's

reemployment position if the period of

service was less than 91 days?

1002.197 What is the reemployment

position if the employee's period of

service in the uniformed services was

more than 90 days?

1002.198 What efforts must the employer

make to help the employee become

qualified for the reemployment position?

1002.199 What priority must the employer

follow if two or more returning

employees are entitled to reemployment

in the same position?

[**Seniority Rights and Benefits**](#seniority)

1002.210 What seniority rights does an

employee have when reemployed

following a period of uniformed service?

1002.211 Does USERRA require the

employer to use a seniority system?

1002.212 How does a person know whether

a particular right or benefit is a seniority based

right or benefit?

1002.213 How can the employee

demonstrate a reasonable certainty that

he or she would have received the

seniority right or benefit if he or she had

remained continuously employed during

the period of service?

[**Disabled Employees**](#disabled)

1002.225 Is the employee entitled to any

specific reemployment benefits if he or

she has a disability that was incurred in,

or aggravated during, the period of

service?

1002.226 If the employee has a disability

that was incurred in, or aggravated

during, the period of service, what efforts

must the employer make to help him or

her become qualified for the

reemployment position?

[**Rate of Pay**](#quickmark)

[1002.236 How is the employee's rate of pay](#quickmark)

[determined when he or she returns from](#quickmark)

[a period of service?](#quickmark)

[**Protection Against Discharge**](#protect)

1002.247 Does USERRA provide the

employee with protection against

discharge?

1002.248 What constitutes cause for

discharge under USERRA?

[**Pension Plan Benefits**](#pension)

1002.259 How does USERRA protect an

employee's pension benefits?

1002.260 What pension benefit plans are

covered under USERRA?

1002.261 Who is responsible for funding

any plan obligation to provide the

employee with pension benefits?

1002.262 When is the employer required to

make the plan contribution that is

attributable to the employee's period of

uniformed service?

1002.263 Does the employee pay interest

[**PART 1002**](#part1002); [**(ISSUE CODE)**](#Issuecodes)

when he or she makes up missed

contributions or elective deferrals?

1002.264 Is the employee allowed to repay

a previous distribution from a pension

benefits plan upon being reemployed?

1002.265 If the employee is reemployed

with his or her pre-service employer, is

the employee's pension benefit the same

as if he or she had remained

continuously employed?

1002.266 What are the obligations of a

multiemployer pension benefit plan

under USERRA?

1002.267 How is compensation during the

period of service calculated in order to

determine the employee's pension

benefits, if benefits are based on

compensation?

[**Subpart F---Compliance Assistance,**](#SubparF)

[**Enforcement and Remedies**](#SubparF)

[**Compliance Assistance**](#SubparF)

1002.277 What assistance does the

Department of Labor provide to

employees and employers concerning

employment, reemployment, or other

rights and benefits under USERRA?

**Investigation and Referral**

1002.288 How does an individual file a

USERRA complaint?

1002.289 How will VETS investigate a

USERRA complaint?

1002.290 Does VETS have the authority to

order compliance with USERRA?

1002.291 What actions may an individual

take if the complaint is not resolved by

VETS?

1002.292 What can the Attorney General do

about the complaint?

[**Enforcement of Rights and Benefits Against**](#Enforcement)

[**a State or Private Employer**](#Enforcement)

1002.303 Is an individual required to file

his or her complaint with VETS?

1002.304 If an individual files a complaint

with VETS and VETS' efforts do not

resolve the complaint, can the individual

pursue the claim on his or her own?

1002.305 What court has jurisdiction in an

action against a State or private

employer?

1002.306 Is a National Guard civilian

technician considered a State or Federal

employee for purposes of USERRA?

1002.307 What is the proper venue in an

action against a State or private

employer?

1002.308 Who has legal standing to bring

an action under USERRA?

1002.309 Who is a necessary party in an

action under USERRA?

1002.310 How are fees and court costs

charged or taxed in an action under

USERRA?

1002.311 Is there a statute of limitations in

an action under USERRA?

1002.312 What remedies may be awarded

for a violation of USERRA?

1002.313 Are there special damages

provisions that apply to actions initiated

in the name of the United States?

1002.314 May a court use its equity powers

in an action or proceeding under the

Act?

**Authority:** Veterans Benefits Improvement

Act of 2004 (VBIA) Pub. L. 108--454 (Dec. 10,

2004).

**Subpart A---Introduction to the**

**Regulations under the Uniformed**

**Services Employment and**

**Reemployment Rights Act of 1994**

**General Provisions**

**§ 1002.1 What is the purpose of this part?**

This part implements the Uniformed

Services Employment and

Reemployment Rights Act of 1994

(''USERRA'' or ''the Act''). 38 U.S.C.

4301--4334. USERRA is a law that

establishes certain rights and benefits

for employees, and duties for

employers. USERRA affects

employment, reemployment, and

retention in employment, when

employees serve or have served in the

uniformed services. There are five

subparts to these regulations. Subpart A

gives an introduction to the USERRA

regulations. Subpart B describes

USERRA's anti-discrimination and antiretaliation provisions. Subpart C

explains the steps that must be taken by

a uniformed service member who wants

to return to his or her previous civilian

employment. Subpart D describes the

rights, benefits, and obligations of

persons absent from employment due to

service in the uniformed services,

including rights and obligations related

to health plan coverage. Subpart E

describes the rights, benefits, and

obligations of the returning veteran or

service member. Subpart F explains the

role of the Department of Labor in

enforcing and giving assistance under

USERRA. These regulations implement

USERRA as it applies to States, local

governments, and private employers.

Separate regulations published by the

Federal Office of Personnel Management

implement USERRA for Federal

executive agency employers and

employees.

**§ 1002.2 Is USERRA a new law?**

USERRA is the latest in a series of

laws protecting veterans' employment

and reemployment rights going back to

the Selective Training and Service Act

of 1940. USERRA's immediate

predecessor was commonly referred to

as the Veterans' Reemployment Rights

Act (VRRA), which was enacted as

section 404 of the Vietnam Era Veterans'

Readjustment Assistance Act of 1974. In

enacting USERRA, Congress

emphasized USERRA's continuity with

the VRRA and its intention to clarify

and strengthen that law. Congress also

emphasized that Federal laws protecting

veterans' employment and

reemployment rights for the past fifty

years had been successful and that the

large body of case law that had

developed under those statutes

remained in full force and effect, to the

extent it is consistent with USERRA.

USERRA authorized the Department of

Labor to publish regulations

implementing the Act for State, local

government, and private employers.

USERRA also authorized the Office of

Personnel Management to issue

regulations implementing the Act for

Federal executive agencies (other than

some Federal intelligence agencies).

USERRA established a separate program

for employees of some Federal

intelligence agencies.

**§ 1002.3 When did USERRA become**

**effective?**

USERRA became law on October 13,

1994\. USERRA's reemployment

provisions apply to members of the

uniformed services seeking civilian

reemployment on or after December 12,

1994\. USERRA's anti-discrimination

and anti-retaliation provisions became

effective on October 13, 1994.

**§ 1002.4 What is the role of the Secretary**

**of Labor under USERRA?**

\(a\) USERRA charges the Secretary of

Labor (through the Veterans'

Employment and Training Service) with

providing assistance to any person with

respect to the employment and

reemployment rights and benefits to

which such person is entitled under the

Act. More information about the

Secretary's role in providing this

assistance is contained in Subpart F.

\(b\) USERRA also authorizes the

Secretary of Labor to issue regulations

implementing the Act with respect to

States, local governments, and private

employers. These regulations are issued

under this authority.

\(c\) The Secretary of Labor delegated

authority to the Assistant Secretary for

Veterans' Employment and Training for

administering the veterans'

reemployment rights program by

Secretary's Order 1--83 (February 3,

1983\) and for carrying out the functions

and authority vested in the Secretary

pursuant to USERRA by memorandum

[**PART 1002**](#part1002); [**(ISSUE CODE)**](#Issuecodes)

of April 22, 2002 (67 FR 31827).

**§ 1002.5 What definitions apply to**

**USERRA?**

\(a\) *Attorney General* means the

Attorney General of the United States or

any person designated by the Attorney

General to carry out a responsibility of

the Attorney General under USERRA.

\(b\) *Benefit, benefit of employment, or*

*rights and benefits* means any

advantage, profit, privilege, gain, status,

account, or interest (other than wages or

salary for work performed) that accrues

to the employee because of an

employment contract, employment

agreement, or employer policy, plan, or

practice. The term includes rights and

benefits under a pension plan, health

plan, or employee stock ownership

plan, insurance coverage and awards,

bonuses, severance pay, supplemental

unemployment benefits, vacations, and

the opportunity to select work hours or

the location of employment.

\(c\) *Employee* means any person

employed by an employer. The term

also includes any person who is a

citizen, national or permanent resident

alien of the United States who is

employed in a workplace in a foreign

country by an employer that is an entity

incorporated or organized in the United

States, or that is controlled by an entity

organized in the United States.

''Employee'' includes the former

employees of an employer.

(d)(1) *Employer*, except as provided in

paragraphs (d)(2) and (3) of this section,

means any person, institution,

organization, or other entity that pays

salary or wages for work performed, or that has control over employment

opportunities, including---

\(i\) A person, institution, organization,

or other entity to whom the employer

has delegated the performance of

employment-related responsibilities,

except in the case that such entity has

been delegated functions that are purely

ministerial in nature, such as

maintenance of personnel files or the

preparation of forms for submission to

a government agency;

\(ii\) The Federal Government;

\(iii\) A State;

\(iv\) Any successor in interest to a

person, institution, organization, or

other entity referred to in this

definition; and,

\(v\) A person, institution, organization,

or other entity that has denied initial

employment in violation of 38 U.S.C.

4311, USERRA's anti-discrimination

and anti-retaliation provisions.

\(2\) In the case of a National Guard

technician employed under 32 U.S.C.

709, the term ''employer'' means the

adjutant general of the State in which

the technician is employed.

\(3\) An employee pension benefit plan

as described in section 3(2) of the

Employee Retirement Income Security

Act of 1974 (ERISA)(29 U.S.C. 1002(2))

is considered an employer for an

individual that it does not actually

employ only with respect to the

obligation to provide pension benefits.

\(e\) *Health plan* means an insurance

policy, insurance contract, medical or

hospital service agreement, membership

or subscription contract, or other

arrangement under which health

services for individuals are provided or

the expenses of such services are paid.

\(f\) *National Disaster Medical System*

*(NDMS) is an agency within the Federal*

*Emergency Management Agency,*

*Department of Homeland Security,*

*established by the* Public Health

Security and Bioterrorism Preparedness

and Response Act of 2002, Public Law

107--188. *The NDMS* provides medical related assistance to respond to
the

needs of victims of public health

emergencies. Participants in the NDMS

are volunteers who serve as intermittent

Federal employees when activated. For

purposes of USERRA coverage only,

these persons are treated as members of

the uniformed services when they are

activated to provide assistance in

response to a public health emergency

or to be present for a short period of

time when there is a risk of a public

health emergency, or when they are

participating in authorized training. See

42 U.S.C. 300hh--11(e).

\(g\) *Notice*, when the employee is

required to give advance notice of

service, means any written or verbal

notification of an obligation or intention

to perform service in the uniformed

services provided to an employer by the

employee who will perform such

service, or by the uniformed service in

which the service is to be performed.

\(h\) *Qualified*, with respect to an

employment position, means having the

ability to perform the essential tasks of

the position.

\(i\) *Reasonable efforts*, in the case of

actions required of an employer, means

actions, including training provided by

an employer that do not place an undue

hardship on the employer.

\(j\) *Secretary* means the Secretary of

Labor or any person designated by the

Secretary of Labor to carry out an

activity under USERRA and these

regulations, unless a different office is

expressly indicated in the regulation.

\(k\) *Seniority* means longevity in

employment together with any benefits

of employment that accrue with, or are

determined by, longevity in

employment.

\(l\) *Service in the uniformed services*

means the performance of duty on a

voluntary or involuntary basis in a

uniformed service under competent

authority. Service in the uniformed

services includes active duty, active and

inactive duty for training, National

Guard duty under Federal statute, and a

period for which a person is absent from

a position of employment for an

examination to determine the fitness of

the person to perform such duty. The

term also includes a period for which a

person is absent from employment to

perform funeral honors duty as

authorized by law (10 U.S.C. 12503 or

32 U.S.C. 115). The Public Health

Security and Bioterrorism Preparedness

and Response Act of 2002, Pub. L. 107--

188, provides that service as an

intermittent disaster-response appointee

upon activation of the National Disaster

Medical System (NDMS) or as a

participant in an authorized training

program is deemed ''service in the

uniformed services.'' 42 U.S.C. 300hh--

11(e)(3).

\(m\) *State* means each of the several

States of the United States, the District

of Columbia, the Commonwealth of

Puerto Rico, Guam, the Virgin Islands,

and other territories of the United States

(including the agencies and political

subdivisions thereof); however, for

purposes of enforcement of rights under

38 U.S.C. 4323, a political subdivision

of a State is a private employer.

\(n\) *Undue hardship*, in the case of

actions taken by an employer, means an

action requiring significant difficulty or

expense, when considered in light of---

\(1\) The nature and cost of the action

needed under USERRA and these

regulations;

\(2\) The overall financial resources of

the facility or facilities involved in the

provision of the action; the number of

persons employed at such facility; the

effect on expenses and resources, or the

impact otherwise of such action upon

the operation of the facility;

\(3\) The overall financial resources of

[**PART 1002**](#part1002); [**(ISSUE CODE)**](#Issuecodes)

the employer; the overall size of the

business of an employer with respect to

the number of its employees; the

number, type, and location of its

facilities; and,

\(4\) The type of operation or

operations of the employer, including

the composition, structure, and

functions of the work force of such

employer; the geographic separateness,

administrative, or fiscal relationship of

the facility or facilities in question to

the employer.

\(o\) *Uniformed services* means the

Armed Forces; the Army National Guard

and the Air National Guard when

engaged in active duty for training,

inactive duty training, or full-time

National Guard duty; the commissioned

corps of the Public Health Service; and

any other category of persons designated

by the President in time of war or

national emergency. For purposes of

USERRA coverage only, service as an

intermittent disaster response appointee

of the NDMS when federally activated

or attending authorized training in

support of their Federal mission is

deemed ''service in the uniformed

services,'' although such appointee is

not a member of the ''uniformed

services'' as defined by USERRA.

**§ 1002.6 What types of service in the**

**uniformed services are covered by**

**USERRA?**

USERRA's definition of ''service in

the uniformed services'' covers all

categories of military training and

service, including duty performed on a

voluntary or involuntary basis, in time

of peace or war. Although most often

understood as applying to National

Guard and reserve military personnel,

USERRA also applies to persons serving

in the active components of the Armed

Forces. Certain types of service

specified in 42 U.S.C. 300hh-11 by

members of the National Disaster

Medical System are covered by

USERRA.

**§ 1002.7 How does USERRA relate to other**

**laws, public and private contracts, and**

**employer practices?**

\(a\) USERRA establishes a floor, not a

ceiling, for the employment and

reemployment rights and benefits of

those it protects. In other words, an

employer may provide greater rights and

benefits than USERRA requires, but no

employer can refuse to provide any right

or benefit guaranteed by USERRA.

\(b\) USERRA supersedes any State law

(including any local law or ordinance),

contract, agreement, policy, plan,

practice, or other matter that reduces,

limits, or eliminates in any manner any

right or benefit provided by USERRA,

including the establishment of

additional prerequisites to the exercise

of any USERRA right or the receipt of

any USERRA benefit. For example, an

employment contract that determines

seniority based only on actual days of

work in the place of employment would

be superseded by USERRA, which

requires that seniority credit be given

for periods of absence from work due to

service in the uniformed services.

\(c\) USERRA does not supersede,

nullify or diminish any Federal or State

law (including any local law or

ordinance), contract, agreement, policy,

plan, practice, or other matter that

establishes an employment right or

benefit that is more beneficial than, or

is in addition to, a right or benefit

provided under the Act. For example,

although USERRA does not require an

employer to pay an employee for time

away from work performing service, an

employer policy, plan, or practice that

provides such a benefit is permissible

under USERRA.

\(d\) If an employer provides a benefit

that exceeds USERRA's requirements in

one area, it cannot reduce or limit other

rights or benefits provided by USERRA.

For example, even though USERRA

does not require it, an employer may

provide a fixed number of days of paid

military leave per year to employees

who are members of the National Guard

or Reserve. The fact that it provides

such a benefit, however, does not permit

an employer to refuse to provide an

unpaid leave of absence to an employee

to perform service in the uniformed

services in excess of the number of days

of paid military leave.

[]{#Discrimination .anchor}**Subpart B---Anti-Discrimination and**

**Anti-Retaliation**

**Protection From Employer**

**Discrimination and Retaliation**

**§ 1002.18 What status or activity is**

**protected from employer discrimination by**

**USERRA?**

An employer must not deny initial

employment, reemployment, retention

in employment, promotion, or any

benefit of employment to an individual

on the basis of his or her membership,

application for membership,

performance of service, application for

service, or obligation for service in the

uniformed services.

**§ 1002.19 What activity is protected from**

**employer retaliation by USERRA?**

An employer must not retaliate

against an individual by taking any

adverse employment action against him

or her because the individual has taken

an action to enforce a protection

afforded any person under USERRA;

testified or otherwise made a statement

in or in connection with a proceeding

under USERRA; assisted or participated

in a USERRA investigation: or,

exercised a right provided for by

USERRA.

**§ 1002.20 Does USERRA protect an**

**individual who does not actually perform**

**service in the uniformed services?**

Yes. Employers are prohibited from

taking actions against an individual for

any of the activities protected by the

Act, whether or not he or she has

performed service in the uniformed

services.

**§ 1002.21 Do the Act's prohibitions against**

**discrimination and retaliation apply to all**

**employment positions?**

The prohibitions against

discrimination and retaliation apply to

all covered employers (including hiring

halls and potential employers, see

sections 1002.36 and .38) and

employment positions, including those

that are for a brief, nonrecurrent period,

and for which there is no reasonable

expectation that the employment

position will continue indefinitely or for

a significant period. However,

USERRA's reemployment rights and

benefits do not apply to such brief,

nonrecurrent positions of employment.

**§ 1002.22 Who has the burden of proving**

**discrimination or retaliation in violation of**

**USERRA?**

The individual has the burden of

proving that a status or activity

protected by USERRA was one of the

reasons that the employer took action

against him or her, in order to establish

that the action was discrimination or

retaliation in violation of USERRA. If

the individual succeeds in proving that

the status or activity protected by

USERRA was one of the reasons the

employer took action against him or her,

the employer has the burden to prove

the affirmative defense that it would

have taken the action anyway.

**§ 1002.23 What must the individual show**

**to carry the burden of proving that the**

[**PART 1002**](#part1002); [**(ISSUE CODE)**](#Issuecodes)

**employer discriminated or retaliated against**

**him or her?**

\(a\) In order to prove that the employer

discriminated or retaliated against the

individual, he or she must first show

that the employer's action was

motivated by one or more of the

following:

\(1\) Membership or application for

membership in a uniformed service;

\(2\) Performance of service,

application for service, or obligation for

service in a uniformed service;

\(3\) Action taken to enforce a

protection afforded any person under

USERRA;

\(4\) Testimony or statement made in or

in connection with a USERRA

proceeding;

\(5\) Assistance or participation in a

USERRA investigation; or,

\(6\) Exercise of a right provided for by

USERRA.

\(b\) If the individual proves that the

employer's action was based on one of

the prohibited motives listed in

paragraph (a) of this section, the

employer has the burden to prove the

affirmative defense that the action

would have been taken anyway absent

the USERRA-protected status or activity.

**Subpart C---Eligibility For**

**Reemployment**

**General Eligibility Requirements for**

**Reemployment**

**§ 1002.32 What criteria must the employee**

**meet to be eligible under USERRA for**

**reemployment after service in the**

**uniformed services?**

[]{#eligibilty .anchor}(a) In general, if the employee has

been absent from a position of civilian

employment by reason of service in the

uniformed services, he or she will be

eligible for reemployment under

USERRA by meeting the following

criteria:

\(1\) The employer had advance notice

of the employee's service;

\(2\) The employee has five years or

less of cumulative service in the

uniformed services in his or her

employment relationship with a

particular employer;

\(3\) The employee timely returns to

work or applies for reemployment; and,

\(4\) The employee has not been

separated from service with a

disqualifying discharge or under other

than honorable conditions.

\(b\) These general eligibility

requirements have important

qualifications and exceptions, which are

described in detail in §§ 1002.73

through 1002.138. If the employee meets

these eligibility criteria, then he or she

is eligible for reemployment unless the

employer establishes one of the defenses

described in § 1002.139. The

employment position to which the

employee is entitled is described in

§§ 1002.191 through 1002.199.

**§ 1002.33 Does the employee have to**

**prove that the employer discriminated**

**against him or her in order to be eligible for**

**reemployment?**

No. The employee is not required to

prove that the employer discriminated

against him or her because of the

employee's uniformed service in order

to be eligible for reemployment.

[]{#Employers .anchor}**Coverage of Employers and Positions**

**§ 1002.34 Which employers are covered by**

**USERRA?**

\(a\) USERRA applies to all public and

private employers in the United States,

regardless of size. For example, an

employer with only one employee is

covered for purposes of the Act.

\(b\) USERRA applies to foreign

employers doing business in the United

States. A foreign employer that has a

physical location or branch in the

United States (including U.S. territories

and possessions) must comply with

USERRA for any of its employees who

are employed in the United States.

\(c\) An American company operating

either directly or through an entity

under its control in a foreign country

must also comply with USERRA for all

its foreign operations, unless

compliance would violate the law of the

foreign country in which the workplace

is located.

**§ 1002.35 Is a successor in interest an**

**employer covered by USERRA?**

USERRA's definition of ''employer''

includes a successor in interest. In

general, an employer is a successor in

interest where there is a substantial

continuity in operations, facilities, and

workforce from the former employer.

The determination whether an employer

is a successor in interest must be made

on a case-by-case basis using a multifactor

test that considers the following:

\(a\) Whether there has been a

substantial continuity of business

operations from the former to the

current employer;

\(b\) Whether the current employer uses

the same or similar facilities,

machinery, equipment, and methods of

production;

\(c\) Whether there has been a

substantial continuity of employees;

\(d\) Whether there is a similarity of

jobs and working conditions;

\(e\) Whether there is a similarity of

supervisors or managers; and,

\(f\) Whether there is a similarity of

products or services.

**§ 1002.36 Can an employer be liable as a**

**successor in interest if it was unaware that**

**an employee may claim reemployment**

**rights when the employer acquired the**

**business?**

Yes. In order to be a successor in

interest, it is not necessary for an

employer to have notice of a potential

reemployment claim at the time of

merger, acquisition, or other form of

succession.

**§ 1002.37 Can one employee be employed**

**in one job by more than one employer?**

Yes. Under USERRA, an employer

includes not only the person or entity

that pays an employee's salary or wages,

but also includes a person or entity that

has control over his or her employment

opportunities, including a person or

entity to whom an employer has

delegated the performance of

employment-related responsibilities.

For example, if the employee is a

security guard hired by a security

company and he or she is assigned to a

work site, the employee may report both

to the security company and to the site

owner. In such an instance, both

employers share responsibility for

compliance with USERRA. If the

security company declines to assign the

employee to a job because of a

uniformed service obligation (for

example, National Guard duties), then

the security company could be in

violation of the reemployment

requirements and the antidiscrimination

provisions of USERRA.

Similarly, if the employer at the work

site causes the employee's removal from

the job position because of his or her

uniformed service obligations, then the

work site employer could be in violation

of the reemployment requirements and

the anti-discrimination provisions of

USERRA.

**§ 1002.38 Can a hiring hall be an**

**employer?**

Yes. In certain occupations (for

example, longshoreman, stagehand,

construction worker), the employee may

frequently work for many different

[**PART 1002**](#part1002); [**(ISSUE CODE)**](#Issuecodes)

employers. A hiring hall operated by a

union or an employer association

typically assigns the employee to the

jobs. In these industries, it may not be

unusual for the employee to work his or

her entire career in a series of short-term

job assignments. The definition of

''employer'' includes a person,

institution, organization, or other entity

to which the employer has delegated the

performance of employment-related

responsibilities. A hiring hall therefore

is considered the employee's employer

if the hiring and job assignment

functions have been delegated by an

employer to the hiring hall. As the

employer, a hiring hall has

reemployment responsibilities to its

employees. USERRA's antidiscrimination

and anti-retaliation

provisions also apply to the hiring hall.

**§ 1002.39 Are States (and their political**

**subdivisions), the District of Columbia, the**

**Commonwealth of Puerto Rico, and United**

**States territories, considered employers?**

Yes. States and their political

subdivisions, such as counties, parishes,

cities, towns, villages, and school

districts, are considered employers

under USERRA. The District of

Columbia, the Commonwealth of Puerto

Rico, Guam, the Virgin Islands, and

territories of the United States, are also

considered employers under the Act.

**§ 1002.40 Does USERRA protect against**

**discrimination in initial hiring decisions?**

Yes. The Act's definition of employer

includes a person, institution,

organization, or other entity that has

denied initial employment to an

individual in violation of USERRA's

anti-discrimination provisions. An

employer need not actually employ an

individual to be his or her ''employer''

under the Act, if it has denied initial

employment on the basis of the

individual's membership, application

for membership, performance of service,

application for service, or obligation for

service in the uniformed services.

Similarly, the employer would be liable

if it denied initial employment on the

basis of the individual's action taken to

enforce a protection afforded to any

person under USERRA, his or her

testimony or statement in connection

with any USERRA proceeding,

assistance or other participation in a

USERRA investigation, or the exercise

of any other right provided by the Act.

For example, if the individual has been

denied initial employment because of

his or her obligations as a member of the

National Guard or Reserves, the

company or entity denying employment

is an employer for purposes of USERRA.

Similarly, if an entity withdraws an

offer of employment because the

individual is called upon to fulfill an

obligation in the uniformed services, the

entity withdrawing the employment

offer is an employer for purposes of

USERRA.

**§ 1002.41 Does an employee have rights**

**under USERRA even though he or she**

**holds a temporary, part-time, probationary,**

**or seasonal employment position?**

USERRA rights are not diminished

because an employee holds a temporary,

part-time, probationary, or seasonal

employment position. However, an

employer is not required to reemploy an

employee if the employment he or she

left to serve in the uniformed services

was for a brief, nonrecurrent period and

there is no reasonable expectation that

the employment would have continued

indefinitely or for a significant period.

The employer bears the burden of

proving this affirmative defense.

**§ 1002.42 What rights does an employee**

**have under USERRA if he or she is on**

**layoff, on strike, or on a leave of absence?**

\(a\) If an employee is laid off with

recall rights, on strike, or on a leave of

absence, he or she is an employee for

purposes of USERRA. If the employee is

on layoff and begins service in the

uniformed services, or is laid off while

performing service, he or she may be

entitled to reemployment on return if

the employer would have recalled the

employee to employment during the

period of service. Similar principles

apply if the employee is on strike or on

a leave of absence from work when he

or she begins a period of service in the

uniformed services.

\(b\) If the employee is sent a recall

notice during a period of service in the

uniformed services and cannot resume

the position of employment because of

the service, he or she still remains an

employee for purposes of the Act.

Therefore, if the employee is otherwise

eligible, he or she is entitled to

reemployment following the conclusion

of the period of service even if he or she

did not respond to the recall notice.

\(c\) If the employee is laid off before

or during service in the uniformed

services, and the employer would not

have recalled him or her during that

period of service, the employee is not

entitled to reemployment following the

period of service simply because he or

she is a covered employee.

Reemployment rights under USERRA

cannot put the employee in a better

position than if he or she had remained

in the civilian employment position.

**§ 1002.43 Does an individual have rights**

**under USERRA even if he or she is an**

**executive, managerial, or professional**

**employee?**

Yes. USERRA applies to all

employees. There is no exclusion for

executive, managerial, or professional

employees.

**§ 1002.44 Does USERRA cover an**

**independent contractor?**

\(a\) No. USERRA does not provide

protections for an independent

contractor.

\(b\) In deciding whether an individual

is an independent contractor, the

following factors need to be considered:

\(1\) The extent of the employer's right

to control the manner in which the

individual's work is to be performed;

\(2\) The opportunity for profit or loss

that depends upon the individual's

managerial skill;

\(3\) Any investment in equipment or

materials required for the individual's

tasks, or his or her employment of

helpers;

\(4\) Whether the service the individual

performs requires a special skill;

\(5\) The degree of permanence of the

individual's working relationship; and,

\(6\) Whether the service the individual

performs is an integral part of the

employer's business.

\(c\) No single one of these factors is

controlling, but all are relevant to

determining whether an individual is an

employee or an independent contractor.

**Coverage of Service in the Uniformed**

**Services**

**§ 1002.54 Are all military fitness**

**examinations considered ''service in the**

**uniformed services?''**

[]{#coverage .anchor}Yes. USERRA's definition of ''service

in the uniformed services'' includes a

period for which an employee is absent

from a position of employment for the

purpose of an examination to determine

his or her fitness to perform duty in the

uniformed services. Military fitness

examinations can address more than

physical or medical fitness, and include

evaluations for mental, educational, and

other types of fitness. Any examination

to determine an employee's fitness for

[**PART 1002**](#part1002); [**(ISSUE CODE)**](#Issuecodes)

service is covered, whether it is an

initial or recurring examination. For

example, a periodic medical

examination required of a Reserve

component member to determine fitness

for continued service is covered.

**§ 1002.55 Is all funeral honors duty**

**considered ''service in the uniformed**

**services?''**

\(a\) USERRA's definition of ''service in

the uniformed services'' includes a

period for which an employee is absent

from employment for the purpose of

performing authorized funeral honors

duty under 10 U.S.C. 12503 (members of

Reserve ordered to perform funeral

honors duty) or 32 U.S.C. 115 (Member

of Air or Army National Guard ordered

to perform funeral honors duty).

\(b\) Funeral honors duty performed by

persons who are not members of the

uniformed services, such as members of

veterans' service organizations, is not

''service in the uniformed services.''

**§ 1002.56 What types of service in the**

**National Disaster Medical System are**

**considered ''service in the uniformed**

**services?''**

Under a provision of the Public

Health Security and Bioterrorism

Preparedness and Response Act of 2002,

42 U.S.C. 300hh 11(e)(3), ''service in the

uniformed services'' includes service

performed as an intermittent disaster response

appointee upon activation of

the National Disaster Medical System or

participation in an authorized training

program, even if the individual is not a

member of the uniformed services.

**§ 1002.57 Is all service as a member of the**

**National Guard considered ''service in the**

**uniformed services?''**

The National Guard has a dual status.

It is a Reserve component of the Army,

or, in the case of the Air National Guard,

of the Air Force. Simultaneously, it is a

State military force subject to call-up by

the State Governor for duty not subject

to Federal control, such as emergency

duty in cases of floods or riots. National

Guard members may perform service

under either Federal or State authority,

but only Federal National Guard service

is covered by USERRA.

\(a\) National Guard service under

Federal authority is protected by

USERRA. Service under Federal

authority includes active duty

performed under Title 10 of the United

States Code. Service under Federal

authority also includes duty under Title

32 of the United States Code, such as

active duty for training, inactive duty

training, or full-time National Guard

duty.

\(b\) National Guard service under

authority of State law is not protected

by USERRA. However, many States

have laws protecting the civilian job

rights of National Guard members who

serve under State orders. Enforcement of

those State laws is not covered by

USERRA or these regulations.

**§ 1002.58 Is service in the commissioned**

**corps of the Public Health Service**

**considered ''service in the uniformed**

**services?''**

Yes. Service in the commissioned

corps of the Public Health Service (PHS)

is ''service in the uniformed services''

under USERRA.

**§ 1002.59 Are there any circumstances in**

**which special categories of persons are**

**considered to perform ''service in the**

**uniformed services?''**

Yes. In time of war or national

emergency the President has authority

to designate any category of persons as

a ''uniformed service'' for purposes of

USERRA. If the President exercises this

authority, service as a member of that

category of persons would be ''service in

the uniformed services'' under

USERRA.

VerDate Aug\<

**§ 1002.60 Does USERRA cover an**

**individual attending a military service**

**academy?**

Yes. Attending a military service

academy is considered uniformed

service for purposes of USERRA. There

are four service academies: The United

States Military Academy (West Point,

New York), the United States Naval

Academy (Annapolis, Maryland), the

United States Air Force Academy

(Colorado Springs, Colorado), and the

United States Coast Guard Academy

(New London, Connecticut).

**§ 1002.61 Does USERRA cover a member**

**of the Reserve Officers Training Corps?**

Yes, under certain conditions.

\(a\) Membership in the Reserve

Officers Training Corps (ROTC) or the

Junior ROTC is not ''service in the

uniformed services.'' However, some

Reserve and National Guard enlisted

members use a college ROTC program as

a means of qualifying for commissioned

officer status. National Guard and

Reserve members in an ROTC program

may at times, while participating in that

program, be receiving active duty and

inactive duty training service credit

with their unit. In these cases,

participating in ROTC training sessions

is considered ''service in the uniformed

services,'' and qualifies a person for

protection under USERRA's

reemployment and anti-discrimination

provisions.

\(b\) Typically, an individual in a

College ROTC program enters into an

agreement with a particular military

service that obligates such individual to

either complete the ROTC program and

accept a commission or, in case he or

she does not successfully complete the

ROTC program, to serve as an enlisted

member. Although an individual does

not qualify for reemployment

protection, except as specified in (a)

above, he or she is protected under

USERRA's anti-discrimination

provisions because, as a result of the

agreement, he or she has applied to

become a member of the uniformed

services and has incurred an obligation

to perform future service.

**§ 1002.62 Does USERRA cover a member**

**of the Commissioned Corps of the National**

**Oceanic and Atmospheric Administration,**

**the Civil Air Patrol, or the Coast Guard**

**Auxiliary?**

No. Although the Commissioned

Corps of the National Oceanic and

Atmospheric Administration (NOAA) is

a ''uniformed service'' for some

purposes, it is not included in

USERRA's definition of this term.

Service in the Civil Air Patrol and the

Coast Guard Auxiliary similarly is not

considered ''service in the uniformed

services'' for purposes of USERRA.

Consequently, service performed in the

Commissioned Corps of the National

Oceanic and Atmospheric

Administration (NOAA), the Civil Air

Patrol, and the Coast Guard Auxiliary is

not protected by USERRA.

[]{#Absence .anchor}**Absence From a Position of**

**Employment Necessitated by Reason of**

**Service in the Uniformed Services**

**§ 1002.73 Does service in the uniformed**

**services have to be an employee's sole**

**reason for leaving an employment position**

**in order to have USERRA reemployment**

**rights?**

No. If absence from a position of

employment is necessitated by service

in the uniformed services, and the

employee otherwise meets the Act's

eligibility requirements, he or she has

reemployment rights under USERRA,

[**PART 1002**](#part1002); [**(ISSUE CODE)**](#Issuecodes)

even if the employee uses the absence

for other purposes as well. An employee

is not required to leave the employment

position for the sole purpose of

performing service in the uniformed

services. For example, if the employee

is required to report to an out of State

location for military training and he or

she spends off-duty time during that

assignment moonlighting as a security

guard or visiting relatives who live in

that State, the employee will not lose

reemployment rights simply because he

or she used some of the time away from

the job to do something other than

attend the military training. Also, if an

employee receives advance notification

of a mobilization order, and leaves his

or her employment position in order to

prepare for duty, but the mobilization is

cancelled, the employee will not lose

any reemployment rights.

**§ 1002.74 Must the employee begin service**

**in the uniformed services immediately after**

**leaving his or her employment position in**

**order to have USERRA reemployment**

**rights?**

No. At a minimum, an employee must

have enough time after leaving the

employment position to travel safely to

the uniformed service site and arrive fit

to perform the service. Depending on

the specific circumstances, including

the duration of service, the amount of

notice received, and the location of the

service, additional time to rest, or to

arrange affairs and report to duty, may

be necessitated by reason of service in

the uniformed services. The following

examples help to explain the issue of

the period of time between leaving

civilian employment and beginning of

service in the uniformed services:

\(a\) If the employee performs a full

overnight shift for the civilian employer

and travels directly from the work site

to perform a full day of uniformed

service, the employee would not be

considered fit to perform the uniformed

service. An absence from that work shift

is necessitated so that the employee can

report for uniformed service fit for duty.

\(b\) If the employee is ordered to

perform an extended period of service

in the uniformed services, he or she may

require a reasonable period of time off

from the civilian job to put his or her

personal affairs in order, before

beginning the service. Taking such time

off is also necessitated by the uniformed

service.

\(c\) If the employee leaves a position

of employment in order to enlist or

otherwise perform service in the

uniformed services and, through no

fault of his or her own, the beginning

date of the service is delayed, this delay

does not terminate any reemployment

rights.

**Requirement of Notice**

**§ 1002.85 Must the employee give advance**

**notice to the employer of his or her service**

**in the uniformed services?**

[]{#notice .anchor}(a) Yes. The employee, or an

appropriate officer of the uniformed

service in which his or her service is to

be performed, must notify the employer

that the employee intends to leave the

employment position to perform service

in the uniformed services, with certain

exceptions described below. In cases in

which an employee is employed by

more than one employer, the employee,

or an appropriate office of the

uniformed service in which his or her

service is to be performed, must notify

each employer that the employee

intends to leave the employment

position to perform service in the

uniformed services, with certain

exceptions described below.

\(b\) The Department of Defense

USERRA regulations at 32 CFR 104.3

provide that an ''appropriate officer''

can give notice on the employee's

behalf. An ''appropriate officer'' is a

commissioned, warrant, or noncommissioned

officer authorized to give

such notice by the military service

concerned.

\(c\) The employee's notice to the

employer may be either verbal or

written. The notice may be informal and

does not need to follow any particular

format.

\(d\) Although USERRA does not

specify how far in advance notice must

be given to the employer, an employee

should provide notice as far in advance

as is reasonable under the

circumstances. In regulations

promulgated by the Department of

Defense under USERRA, 32 CFR

104.6(a)(2)(i)(B), the Defense

Department ''strongly recommends that

advance notice to civilian employers be

provided at least 30 days prior to

departure for uniformed service when it

is feasible to do so.''

**§ 1002.86 When is the employee excused**

**from giving advance notice of service in the**

**uniformed services?**

[]{#advancenoticeexempt .anchor}The employee is required to give

advance notice of pending service

unless giving such notice is prevented

by military necessity, or is otherwise

impossible or unreasonable under all

the circumstances.

\(a\) Only a designated authority can

make a determination of ''military

necessity,'' and such a determination is

not subject to judicial review.

Guidelines for defining ''military

necessity'' appear in regulations issued

by the Department of Defense at 32 CFR

104.3. In general, these regulations

cover situations where a mission,

operation, exercise or requirement is

classified, or could be compromised or

otherwise adversely affected by public

knowledge. In certain cases, the

Secretary of Homeland Security, in

consultation with the Secretary of

Defense, can make a determination that

giving of notice by intermittent disaster response

appointees of the National

Disaster Medical System is precluded by

''military necessity.'' See 42 U.S.C.

300hh--11(e)(3)(B).

\(b\) It may be impossible or

unreasonable to give advance notice

under certain circumstances. Such

circumstances may include the

unavailability of the employee's

employer or the employer's

representative, or a requirement that the

employee report for uniformed service

in an extremely short period of time.

**§ 1002.87 Is the employee required to get**

**permission from his or her employer before**

**leaving to perform service in the uniformed**

**services?**

No. The employee is not required to

ask for or get his or her employer's

permission to leave to perform service

in the uniformed services. The

employee is only required to give the

employer notice of pending service.

**§ 1002.88 Is the employee required to tell**

**his or her civilian employer that he or she**

**intends to seek reemployment after**

**completing uniformed service before the**

**employee leaves to perform service in the**

**uniformed services?**

No. When the employee leaves the

employment position to begin a period

of service, he or she is not required to

tell the civilian employer that he or she

intends to seek reemployment after

completing uniformed service. Even if

the employee tells the employer before

entering or completing uniformed

service that he or she does not intend to

seek reemployment after completing the

uniformed service, the employee does

not forfeit the right to reemployment

[**PART 1002**](#part1002); [**(ISSUE CODE)**](#Issuecodes)

after completing service. The employee

is not required to decide in advance of

leaving the civilian employment

position whether he or she will seek

reemployment after completing

uniformed service.

**Period of Service**

**§ 1002.99 Is there a limit on the total**

**amount of service in the uniformed services**

**that an employee may perform and still**

**retain reemployment rights with the**

**employer?**

[]{#period .anchor}Yes. In general, the employee may

perform service in the uniformed

services for a cumulative period of up

to five (5) years and retain

reemployment rights with the employer.

The exceptions to this rule are described

below.

**§ 1002.100 Does the five-year service limit**

**include all absences from an employment**

**position that are related to service in the**

**uniformed services?**

No. The five-year period includes

only the time the employee spends

actually performing service in the

uniformed services. A period of absence

from employment before or after

performing service in the uniformed

services does not count against the five year

limit. For example, after the

employee completes a period of service

in the uniformed services, he or she is

provided a certain amount of time,

depending upon the length of service, to

report back to work or submit an

application for reemployment. The

period between completing the

uniformed service and reporting back to

work or seeking reemployment does not

count against the five-year limit.

**§ 1002.101 Does the five-year service limit**

**include periods of service that the**

**employee performed when he or she**

**worked for a previous employer?**

No. An employee is entitled to a leave

of absence for uniformed service for up

to five years with each employer for

whom he or she works. When the

employee takes a position with a new

employer, the five-year period begins

again regardless of how much service he

or she performed while working in any

previous employment relationship. If an

employee is employed by more than one

employer, a separate five-year period

runs as to each employer

independently, even if those employers

share or co-determine the employee's

terms and conditions of employment.

**§ 1002.102 Does the five-year service limit**

**include periods of service that the**

**employee performed before USERRA was**

**enacted?**

It depends. USERRA provides

reemployment rights to which an

employee may become entitled

beginning on or after December 12,

1994, but any uniformed service

performed before December 12, 1994,

that was counted against the service

limitations of the previous law (the

Veterans Reemployment Rights Act),

also counts against USERRA's five-year

limit.

**§ 1002.103 Are there any types of service**

**in the uniformed services that an employee**

[]{#exempt .anchor}**can perform that do not count against**

**USERRA's five-year service limit?**

\(a\) USERRA creates the following

exceptions to the five-year limit on

service in the uniformed services:

\(1\) Service that is required beyond

five years to complete an initial period

of obligated service. Some military

specialties require an individual to

serve more than five years because of

the amount of time or expense involved

in training. If the employee works in

one of those specialties, he or she has

reemployment rights when the initial

period of obligated service is completed;

\(2\) If the employee was unable to

obtain orders releasing him or her from

service in the uniformed services before

the expiration of the five-year period,

and the inability was not the employee's

fault;

(3)(i) Service performed to fulfill

periodic National Guard and Reserve

training requirements as prescribed by

10 U.S.C. 10147 and 32 U.S.C. 502(a)

and 503; and,

\(ii\) Service performed to fulfill

additional training requirements

determined and certified by a proper

military authority as necessary for the

employee's professional development,

or to complete skill training or

retraining;

\(4\) Service performed in a uniformed

service if he or she was ordered to or

retained on active duty under:

\(i\) 10 U.S.C. 688 (involuntary active

duty by a military retiree);

\(ii\) 10 U.S.C. 12301(a) (involuntary

active duty in wartime);

\(iii\) 10 U.S.C. 12301(g) (retention on

active duty while in captive status);

\(iv\) 10 U.S.C. 12302 (involuntary

active duty during a national emergency

for up to 24 months);

\(v\) 10 U.S.C. 12304 (involuntary

active duty for an operational mission

for up to 270 days);

\(vi\) 10 U.S.C. 12305 (involuntary

retention on active duty of a critical

person during time of crisis or other

specific conditions);

\(vii\) 14 U.S.C. 331 (involuntary active

duty by retired Coast Guard officer);

\(viii\) 14 U.S.C. 332 (voluntary active

duty by retired Coast Guard officer);

\(ix\) 14 U.S.C. 359 (involuntary active

duty by retired Coast Guard enlisted

member);

\(x\) 14 U.S.C. 360 (voluntary active

duty by retired Coast Guard enlisted

member);

\(xi\) 14 U.S.C. 367 (involuntary

retention of Coast Guard enlisted

member on active duty); and

\(xii\) 14 U.S.C. 712 (involuntary active

duty by Coast Guard Reserve member

for natural or man-made disasters).

\(5\) Service performed in a uniformed

service if the employee was ordered to

or retained on active duty (other than

for training) under any provision of law

because of a war or national emergency

declared by the President or the

Congress, as determined by the

Secretary concerned;

\(6\) Service performed in a uniformed

service if the employee was ordered to

active duty (other than for training) in

support of an operational mission for

which personnel have been ordered to

active duty under 10 U.S.C. 12304, as

determined by a proper military

authority;

\(7\) Service performed in a uniformed

service if the employee was ordered to

active duty in support of a critical

mission or requirement of the

uniformed services as determined by the

Secretary concerned; and,

\(8\) Service performed as a member of

the National Guard if the employee was

called to respond to an invasion, danger

of invasion, rebellion, danger of

rebellion, insurrection, or the inability

of the President with regular forces to

execute the laws of the United States.

\(b\) Service performed to mitigate

economic harm where the employee's

employer is in violation of its

employment or reemployment

obligations to him or her.

**§ 1002.104 Is the employee required to**

**accommodate his or her employer's needs**

**as to the timing, frequency or duration of**

**service?**

No. The employee is not required to

accommodate his or her employer's

interests or concerns regarding the

[**PART 1002**](#part1002); [**(ISSUE CODE)**](#Issuecodes)

timing, frequency, or duration of

uniformed service. The employer cannot

refuse to reemploy the employee

because it believes that the timing,

frequency or duration of the service is

unreasonable. However, the employer is

permitted to bring its concerns over the

timing, frequency, or duration of the

employee's service to the attention of

the appropriate military authority.

Regulations issued by the Department of

Defense at 32 CFR 104.4 direct military

authorities to provide assistance to an

employer in addressing these types of

employment issues. The military

authorities are required to consider

requests from employers of National

Guard and Reserve members to adjust

scheduled absences from civilian

employment to perform service.

**Application for Reemployment**

**§ 1002.115 Is the employee required to**

**report to or submit a timely application for**

**reemployment to his or her pre-service**

**employer upon completing the period of**

**service in the uniformed services?**

[]{#application .anchor}Yes. Upon completing service in the

uniformed services, the employee must

notify the pre-service employer of his or

her intent to return to the employment

position by either reporting to work or

submitting a timely application for

reemployment. Whether the employee is

required to report to work or submit a

timely application for reemployment

depends upon the length of service, as

follows:

\(a\) *Period of service less than 31 days*

*or for a period of any length for the*

*purpose of a fitness examination.* If the

period of service in the uniformed

services was less than 31 days, or the

employee was absent from a position of

employment for a period of any length

for the purpose of an examination to

determine his or her fitness to perform

service, the employee must report back

to the employer not later than the

beginning of the first full regularly 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 safe transportation from the

place of that service to the employee's

residence. For example, if the employee

completes a period of service and travel

home, arriving at ten o'clock in the

evening, he or she cannot be required to

report to the employer until the

beginning of the next full regularly scheduled

work period that begins at

least eight hours after arriving home,

i.e., no earlier than six o'clock the next

morning. If it is impossible or

unreasonable for the employee to report

within such time period through no

fault of his or her own, he or she must

report to the employer as soon as

possible after the expiration of the eight hour

period.

\(b\) *Period of service more than 30*

*days but less than 181 days.* If the

employee's period of service in the

uniformed services was for more than

30 days but less than 181 days, he or she

must submit an application for

reemployment (written or verbal) with

the employer not later than 14 days after

completing service. If it is impossible or

unreasonable for the employee to apply

within 14 days through no fault of his

or her own, he or she must submit the

application not later than the next full

calendar day after it becomes possible to

do so.

\(c\) *Period of service more than 180*

*days.* If the employee's period of service

in the uniformed services was for more

than 180 days, he or she must submit an

application for reemployment (written

or verbal) not later than 90 days after

completing service.

**§ 1002.116 Is the time period for reporting**

**back to an employer extended if the**

**employee is hospitalized for, or**

**convalescing from, an illness or injury**

**incurred in, or aggravated during, the**

**performance of service?**

Yes. If the employee is hospitalized

for, or convalescing from, an illness or

injury incurred in, or aggravated during,

the performance of service, he or she

must report to or submit an application

for reemployment to the employer at the

end of the period necessary for

recovering from the illness or injury.

This period may not exceed two years

from the date of the completion of

service, except that it must be extended

by the minimum time necessary to

accommodate circumstances beyond the

employee's control that make reporting

within the period impossible or

unreasonable. This period for

recuperation and recovery extends the

time period for reporting to or

submitting an application for

reemployment to the employer, and is

not applicable following reemployment.

**§ 1002.117 Are there any consequences if**

**the employee fails to report for or submit**

**a timely application for reemployment?**

\(a\) If the employee fails to timely

report for or apply for reemployment, he

or she does not automatically forfeit

entitlement to USERRA's reemployment

and other rights and benefits. Rather,

the employee becomes subject to the

conduct rules, established policy, and

general practices of the employer

pertaining to an absence from scheduled

work.

\(b\) If reporting or submitting an

employment application to the

employer is impossible or unreasonable

through no fault of the employee, he or

she may report to the employer as soon

as possible (in the case of a period of

service less than 31 days) or submit an

application for reemployment to the

employer by the next full calendar day

after it becomes possible to do so (in the

case of a period of service from 31 to

180 days), and the employee will be

considered to have timely reported or

applied for reemployment.

VerDate Aug\<

**§ 1002.118 Is an application for**

**reemployment required to be in any**

**particular form?**

An application for reemployment

need not follow any particular format.

The employee may apply orally or in

writing. The application should indicate

that the employee is a former employee

returning from service in the uniformed

services and that he or she seeks

reemployment with the pre-service

employer. The employee is permitted

but not required to identify a particular

reemployment position in which he or

she is interested.

**§ 1002.119 To whom must the employee**

**submit the application for reemployment?**

The application must be submitted to

the pre-service employer or to an agent

or representative of the employer who

has apparent responsibility for receiving

employment applications. Depending

upon the circumstances, such a person

could be a personnel or human

resources officer, or a first-line

supervisor. If there has been a change in

ownership of the employer, the

application should be submitted to the

employer's successor-in-interest.

**§ 1002.120 If the employee seeks or**

**obtains employment with an employer other**

**than the pre-service employer before the**

**end of the period within which a**

**reemployment application must be filed, will**

**that jeopardize reemployment rights with**

**the pre-service employer?**

No. The employee has reemployment

rights with the pre-service employer

[**PART 1002**](#part1002); [**(ISSUE CODE)**](#Issuecodes)

provided that he or she makes a timely

reemployment application to that

employer. The employee may seek or

obtain employment with an employer

other than the pre-service employer

during the period of time within which

a reemployment application must be

made, without giving up reemployment

rights with the pre-service employer.

However, such alternative employment

during the application period should

not be of a type that would constitute

cause for the employer to discipline or

terminate the employee following

reemployment. For instance, if the

employer forbids employees from

working concurrently for a direct

competitor during employment,

violation of such a policy may

constitute cause for discipline or even

termination.

**§ 1002.121 Is the employee required to**

**submit documentation to the employer in**

**connection with the application for**

**reemployment?**

[]{#documentation .anchor}Yes, if the period of service exceeded

30 days and if requested by the

employer to do so. If the employee

submits an application for

reemployment after a period of service

of more than 30 days, he or she must,

upon the request of the employer,

provide documentation to establish that:

\(a\) The reemployment application is

timely;

\(b\) The employee has not exceeded

the five-year limit on the duration of

service (subject to the exceptions listed

at § 1002.103); and,

\(c\) The employee's separation or

dismissal from service was not

disqualifying.

**§ 1002.122 Is the employer required to**

**reemploy the employee if documentation**

**establishing the employee's eligibility does**

**not exist or is not readily available?**

Yes. The employer is not permitted to

delay or deny reemployment by

demanding documentation that does not

exist or is not readily available. The

employee is not liable for administrative

delays in the issuance of military

documentation. If the employee is

reemployed after an absence from

employment for more than 90 days, the

employer may require that he or she

submit the documentation establishing

entitlement to reemployment before

treating the employee as not having had

a break in service for pension purposes.

If the documentation is received after

reemployment and it shows that the

employee is not entitled to

reemployment, the employer may

terminate employment and any rights or

benefits that the employee may have

been granted.

**§ 1002.123 What documents satisfy the**

**requirement that the employee establish**

**eligibility for reemployment after a period of**

**service of more than thirty days?**

\(a\) Documents that satisfy the

requirements of USERRA include the

following:

\(1\) DD (Department of Defense) 214

Certificate of Release or Discharge from

Active Duty;

\(2\) Copy of duty orders prepared by

the facility where the orders were

fulfilled carrying an endorsement

indicating completion of the described

service;

\(3\) Letter from the commanding

officer of a Personnel Support Activity

or someone of comparable authority;

\(4\) Certificate of completion from

military training school;

\(5\) Discharge certificate showing

character of service; and,

\(6\) Copy of extracts from payroll

documents showing periods of service;

\(7\) Letter from National Disaster

Medical System (NDMS) Team Leader

or Administrative Officer verifying dates

and times of NDMS training or Federal

activation.

\(b\) The types of documents that are

necessary to establish eligibility for

reemployment will vary from case to

case. Not all of these documents are

available or necessary in every instance

to establish reemployment eligibility.

**Character of Service**

**§ 1002.134 What type of discharge or**

**separation from service is required for an**

**employee to be entitled to reemployment**

**under USERRA?**

[]{#character .anchor}USERRA does not require any

particular form of discharge or

separation from service. However, even

if the employee is otherwise eligible for

reemployment, he or she will be

disqualified if the characterization of

service falls within one of four

categories. USERRA requires that the

employee not have received one of these

types of discharge.

**§ 1002.135 What types of discharge or**

**separation from uniformed service will**

**make the employee ineligible for**

**reemployment under USERRA?**

Reemployment rights are terminated

if the employee is:

\(a\) Separated from uniformed service

with a dishonorable or bad conduct

discharge;

\(b\) Separated from uniformed service

under other than honorable conditions,

as characterized by regulations of the

uniformed service;

\(c\) A commissioned officer dismissed

as permitted under 10 U.S.C. 1161(a) by

sentence of a general court-martial; in

commutation of a sentence of a general

court-martial; or, in time of war, by

order of the President; or,

\(d\) A commissioned officer dropped

from the rolls under 10 U.S.C. 1161(b)

due to absence without authority for at

least three months; separation by reason

of a sentence to confinement adjudged

by a court-martial; or, a sentence to

confinement in a Federal or State

penitentiary or correctional institution.

**§ 1002.136 Who determines the**

**characterization of service?**

The branch of service in which the

employee performs the tour of duty

determines the characterization of

service.

**§ 1002.137 If the employee receives a**

**disqualifying discharge or release from**

**uniformed service and it is later upgraded,**

**will reemployment rights be restored?**

Yes. A military review board has the

authority to prospectively or

retroactively upgrade a disqualifying

discharge or release. A retroactive

upgrade would restore reemployment

rights providing the employee otherwise

meets the Act's eligibility criteria.

VerDate Aug\<

**§ 1002.138 If the employee receives a**

**retroactive upgrade in the characterization**

**of service, will that entitle him or her to**

**claim back wages and benefits lost as of**

**the date of separation from service?**

No. A retroactive upgrade allows the

employee to obtain reinstatement with

the former employer, provided the

employee otherwise meets the Act's

eligibility criteria. Back pay and other

benefits such as pension plan credits

attributable to the time period between

discharge and the retroactive upgrade

are not required to be restored by the

employer in this situation.

**Employer Statutory Defenses**

[]{#employerdef .anchor}**§ 1002.139 Are there any circumstances in**

**which the pre-service employer is excused**

**from its obligation to reemploy the**

**employee following a period of uniformed**

**service? What statutory defenses are**

**available to the employer in an action or**

**proceeding for reemployment benefits?**

\(a\) Even if the employee is otherwise

[**PART 1002**](#part1002); [**(ISSUE CODE)**](#Issuecodes)

eligible for reemployment benefits, the

employer is not required to reemploy

him or her if the employer establishes

that its circumstances have so changed

as to make reemployment impossible or

unreasonable. For example, an employer

may be excused from reemploying the

employee where there has been an

intervening reduction in force that

would have included that employee.

The employer may not, however, refuse

to reemploy the employee on the basis

that another employee was hired to fill

the reemployment position during the

employee's absence, even if

reemployment might require the

termination of that replacement

employee;

\(b\) Even if the employee is otherwise

eligible for reemployment benefits, the

employer is not required to reemploy

him or her if it establishes that assisting

the employee in becoming qualified for

reemployment would impose an undue

hardship, as defined in § 1002.5(n) and

discussed in § 1002.198, on the

employer; or,

\(c\) Even if the employee is otherwise

eligible for reemployment benefits, the

employer is not required to reemploy

him or her if it establishes that the

employment position vacated by the

employee in order to perform service in

the uniformed services was for a brief,

nonrecurrent period and there was no

reasonable expectation that the

employment would continue

indefinitely or for a significant period.

\(d\) The employer defenses included

in this section are affirmative ones, and

the employer carries the burden to

prove by a preponderance of the

evidence that any one or more of these

defenses is applicable.

[]{#SubparD .anchor}**Subpart D---Rights, Benefits, and**

**Obligations of Persons Absent from**

**Employment Due to Service in the**

**Uniformed Services**

**Furlough and Leave of Absence**

**§ 1002.149 What is the employee's status**

**with his or her civilian employer while**

**performing service in the uniformed**

**services?**

During a period of service in the

uniformed services, the employee is

deemed to be on furlough or leave of

absence from the civilian employer. In

this status, the employee is entitled to

the non-seniority rights and benefits

generally provided by the employer to

other employees with similar seniority,

status, and pay that are on furlough or

leave of absence. Entitlement to these

non-seniority rights and benefits is not

dependent on how the employer

characterizes the employee's status

during a period of service. For example,

if the employer characterizes the

employee as ''terminated'' during the

period of uniformed service, this

characterization cannot be used to avoid

USERRA's requirement that the

employee be deemed on furlough or

leave of absence, and therefore entitled

to the non-seniority rights and benefits

generally provided to employees on

furlough or leave of absence.

**§ 1002.150 Which non-seniority rights and**

**benefits is the employee entitled to during**

**a period of service?**

\(a\) The non-seniority rights and

benefits to which an employee is

entitled during a period of service are

those that the employer provides to

similarly situated employees by an

employment contract, agreement,

policy, practice, or plan in effect at the

employee's workplace. These rights and

benefits include those in effect at the

beginning of the employee's

employment and those established after

employment began. They also include

those rights and benefits that become

effective during the employee's period

of service and that are provided to

similarly situated employees on

furlough or leave of absence.

\(b\) If the non-seniority benefits to

which employees on furlough or leave

of absence are entitled vary according to

the type of leave, the employee must be

given the most favorable treatment

accorded to any comparable form of

leave when he or she performs service

in the uniformed services. In order to

determine whether any two types of

leave are comparable, the duration of

the leave may be the most significant

factor to compare. For instance, a twoday

funeral leave will not be

''comparable'' to an extended leave for

service in the uniformed service. In

addition to comparing the duration of

the absences, other factors such as the

purpose of the leave and the ability of

the employee to choose when to take the

leave should also be considered.

\(c\) As a general matter, accrual of

vacation leave is considered to be a nonseniority

benefit that must be provided

by an employer to an employee on a

military leave of absence only if the

employer provides that benefit to

similarly situated employees on

comparable leaves of absence.

**§ 1002.151 If the employer provides full or**

**partial pay to the employee while he or she**

**is on military leave, is the employer**

**required to also provide the non-seniority**

**rights and benefits ordinarily granted to**

**similarly situated employees on furlough or**

**leave of absence?**

Yes. If the employer provides

additional benefits such as full or partial

pay when the employee performs

service, the employer is not excused

from providing other rights and benefits

to which the employee is entitled under

the Act.

**§ 1002.152 If employment is interrupted by**

**a period of service in the uniformed**

**services, are there any circumstances**

**under which the employee is not entitled to**

**the non-seniority rights and benefits**

**ordinarily granted to similarly situated**

**employees on furlough or leave of**

**absence?**

If employment is interrupted by a

period of service in the uniformed

services and the employee knowingly

provides written notice of intent not to

return to the position of employment

after service in the uniformed services,

he or she is not entitled to those nonseniority

rights and benefits. The

employee's written notice does not

waive entitlement to any other rights to

which he or she is entitled under the

Act, including the right to

reemployment after service.

**§ 1002.153 If employment is interrupted by**

**a period of service in the uniformed**

**services, is the employee permitted upon**

**request to use accrued vacation, annual or**

**similar leave with pay during the service?**

**Can the employer require the employee to**

**use accrued leave during a period of**

**service?**

[]{#vacation .anchor}(a) If employment is interrupted by a

period of service, the employee must be

permitted upon request to use any

accrued vacation, annual, or similar

leave with pay during the period of

service, in order to continue his or her

civilian pay. However, the employee is

not entitled to use sick leave that

accrued with the civilian employer

during a period of service in the

uniformed services, unless the employer

allows employees to use sick leave for

any reason, or allows other similarly

situated employees on comparable

furlough or leave of absence to use

accrued paid sick leave. Sick leave is

[**PART 1002**](#part1002); [**(ISSUE CODE)**](#Issuecodes)

usually not comparable to annual or

vacation leave; it is generally intended

to provide income when the employee

or a family member is ill and the

employee is unable to work.

\(b\) The employer may not require the

employee to use accrued vacation,

annual, or similar leave during a period

of service in the uniformed services.

**Health Plan Coverage**

**§ 1002.163 What types of health plans are**

**covered by USERRA?**

[]{#health .anchor}(a) USERRA defines a health plan to

include an insurance policy or contract,

medical or hospital service agreement,

membership or subscription contract, or

arrangement under which the

employee's health services are provided

or the expenses of those services are

paid.

\(b\) USERRA covers group health

plans as defined in the Employee

Retirement Income Security Act of 1974

(ERISA) at 29 U.S.C. 1191b(a). USERRA

applies to group health plans that are

subject to ERISA, and plans that are not

subject to ERISA, such as those

sponsored by State or local governments

or religious organizations for their

employees.

\(c\) USERRA covers multiemployer

plans maintained pursuant to one or

more collective bargaining agreements

between employers and employee

organizations. USERRA applies to

multiemployer plans as they are defined

in ERISA at 29 U.S.C. 1002(37).

USERRA contains provisions that apply

specifically to multiemployer plans in

certain situations.

**§ 1002.164 What health plan coverage**

**must the employer provide for the**

**employee under USERRA?**

If the employee has coverage under a

health plan in connection with his or

her employment, the plan must permit

the employee to elect to continue the

coverage for a certain period of time as

described below:

\(a\) When the employee is performing

service in the uniformed services, he or

she is entitled to continuing coverage

for himself or herself (and dependents if

the plan offers dependent coverage)

under a health plan provided in

connection with the employment. The

plan must allow the employee to elect

to continue coverage for a period of time

that is the lesser of:

\(1\) The 24-month period beginning on

the date on which the employee's

absence for the purpose of performing

service begins; or,

\(2\) The period beginning on the date

on which the employee's absence for the

purpose of performing service begins,

and ending on the date on which he or

she fails to return from service or apply

for a position of employment as

provided under sections 1002.115--123

of these regulations.

\(b\) USERRA does not require the

employer to establish a health plan if

there is no health plan coverage in

connection with the employment, or,

where there is a plan, to provide any

particular type of coverage.

\(c\) USERRA does not require the

employer to permit the employee to

initiate new health plan coverage at the

beginning of a period of service if he or

she did not previously have such

coverage.

**§ 1002.165 How does the employee elect**

**continuing health plan coverage?**

USERRA does not specify

requirements for electing continuing

coverage. Health plan administrators

may develop reasonable requirements

addressing how continuing coverage

may be elected, consistent with the

terms of the plan and the Act's

exceptions to the requirement that the

employee give advance notice of service

in the uniformed services. For example,

the employee cannot be precluded from

electing continuing health plan coverage

under circumstances where it is

impossible or unreasonable for him or

her to make a timely election of

coverage.

**§ 1002.166 How much must the employee**

**pay in order to continue health plan**

**coverage?**

\(a\) If the employee performs service in

the uniformed service for fewer than 31

days, he or she cannot be required to

pay more than the regular employee

share, if any, for health plan coverage.

\(b\) If the employee performs service

in the uniformed service for 31 or more

days, he or she may be required to pay

no more than 102% of the full premium

under the plan, which represents the

employer's share plus the employee's

share, plus 2% for administrative costs.

\(c\) USERRA does not specify

requirements for methods of paying for

continuing coverage. Health plan

administrators may develop reasonable

procedures for payment, consistent with

the terms of the plan.

**§ 1002.167 What actions may a plan**

**administrator take if the employee does not**

**elect or pay for continuing coverage in a**

**timely manner?**

The actions a plan administrator may

take regarding the provision or

cancellation of an employee's

continuing coverage depend on whether

the employee is excused from the

requirement to give advance notice,

whether the plan has established

reasonable rules for election of

continuation coverage, and whether the

plan has established reasonable rules for

the payment for continuation coverage.

\(a\) *No notice of service and no*

*election of continuation coverage:* If an

employer provides employment-based

health coverage to an employee who

leaves employment for uniformed

service without giving advance notice of

service, the plan administrator may

cancel the employee's health plan

coverage upon the employee's departure

from employment for uniformed service.

However, in cases in which an

employee's failure to give advance

notice of service was excused under the

statute because it was impossible,

unreasonable, or precluded by military

necessity, the plan administrator must

reinstate the employee's health coverage

retroactively upon his or her election to

continue coverage and payment of all

unpaid amounts due, and the employee

must incur no administrative

reinstatement costs. In order to qualify

for an exception to the requirement of

timely election of continuing health

care, an employee must first be excused

from giving notice of service under the

statute.

\(b\) *Notice of service but no election of*

*continuing coverage:* Plan

administrators may develop reasonable

requirements addressing how

continuing coverage may be elected.

Where health plans are also covered

under the Consolidated Omnibus

Budget Reconciliation Act of 1985, 26

U.S.C. 4980B (COBRA), it may be

reasonable for a health plan

administrator to adopt COBRAcompliant

rules regarding election of

continuing coverage, as long as those

rules do not conflict with any provision

of USERRA or this rule. If an employer

provides employment-based health

coverage to an employee who leaves

employment for uniformed service for a

period of service in excess of 30 days

after having given advance notice of

[**PART 1002**](#part1002); [**(ISSUE CODE)**](#Issuecodes)

service but without making an election

regarding continuing coverage, the plan

administrator may cancel the

employee's health plan coverage upon

the employee's departure from

employment for uniformed service, but

must reinstate coverage without the

imposition of administrative

reinstatement costs under the following

conditions:

\(1\) Plan administrators who have

developed reasonable rules regarding

the period within which an employee

may elect continuing coverage must

permit retroactive reinstatement of

uninterrupted coverage to the date of

departure if the employee elects

continuing coverage and pays all unpaid

amounts due within the periods

established by the plan;

\(2\) In cases in which plan

administrators have not developed rules

regarding the period within which an

employee may elect continuing

coverage, the plan must permit

retroactive reinstatement of

uninterrupted coverage to the date of

departure upon the employee's election

and payment of all unpaid amounts at

any time during the period established

in section 1002.164(a).

\(c\) *Election of continuation coverage*

*without timely payment:* Health plan

administrators may adopt reasonable

rules allowing cancellation of coverage

if timely payment is not made. Where

health plans are covered under COBRA,

it may be reasonable for a health plan

administrator to adopt COBRAcompliant

rules regarding payment for

continuing coverage, as long as those

rules do not conflict with any provision

of USERRA or this rule.

**§ 1002.168 If the employee's coverage was**

**terminated at the beginning of or during**

**service, does his or her coverage have to**

**be reinstated upon reemployment?**

\(a\) If health plan coverage for the

employee or a dependent was

terminated by reason of service in the

uniformed services, that coverage must

be reinstated upon reemployment. An

exclusion or waiting period may not be

imposed in connection with the

reinstatement of coverage upon

reemployment, if an exclusion or

waiting period would not have been

imposed had coverage not been

terminated by reason of such service.

\(b\) USERRA permits a health plan to

impose an exclusion or waiting period

as to illnesses or injuries determined by

the Secretary of Veterans Affairs to have

been incurred in, or aggravated during,

performance of service in the uniformed

services. The determination that the

employee's illness or injury was

incurred in, or aggravated during, the

performance of service may only be

made by the Secretary of Veterans

Affairs or his or her representative.

Other coverage, for injuries or illnesses

that are not service-related (or for the

employee's dependents, if he or she has

dependent coverage), must be reinstated

subject to paragraph (a) of this section.

**§ 1002.169 Can the employee elect to**

**delay reinstatement of health plan coverage**

**until a date after the date he or she is**

**reemployed?**

USERRA requires the employer to

reinstate health plan coverage upon

request at reemployment. USERRA

permits but does not require the

employer to allow the employee to

delay reinstatement of health plan

coverage until a date that is later than

the date of reemployment.

**§ 1002.170 In a multiemployer health plan,**

**how is liability allocated for employer**

**contributions and benefits arising under**

**USERRA's health plan provisions?**

Liability under a multiemployer plan

for employer contributions and benefits

in connection with USERRA's health

plan provisions must be allocated either

as the plan sponsor provides, or, if the

sponsor does not provide, to the

employee's last employer before his or

her service. If the last employer is no

longer functional, liability for

continuing coverage is allocated to the

health plan.

**§ 1002.171 How does the continuation of**

**health plan benefits apply to a**

**multiemployer plan that provides health**

**plan coverage through a health benefits**

**account system?**

\(a\) Some employees receive health

plan benefits provided pursuant to a

multiemployer plan that utilizes a

health benefits account system in which

an employee accumulates prospective

health benefit eligibility, also commonly

referred to as ''dollar bank,'' ''credit

bank,'' and ''hour bank'' plans. In such

cases, where an employee with a

positive health benefits account balance

elects to continue the coverage, the

employee may further elect either

option below:

\(1\) The employee may expend his or

her health account balance during an

absence from employment due to

service in the uniformed services in lieu

of paying for the continuation of

coverage as set out in § 1002.166. If an

employee's health account balance

becomes depleted during the applicable

period provided for in § 1002.164(a), the

employee must be permitted, at his or

her option, to continue coverage

pursuant to § 1002.166. Upon

reemployment, the plan must provide

for immediate reinstatement of the

employee as required by § 1002.168, but

may require the employee to pay the

cost of the coverage until the employee

earns the credits necessary to sustain

continued coverage in the plan.

\(2\) The employee may pay for

continuation coverage as set out in

§ 1002.166, in order to maintain intact

his or her account balance as of the

beginning date of the absence from

employment due to service in the

uniformed services. This option permits

the employee to resume usage of the

account balance upon reemployment.

\(b\) Employers or plan administrators

providing such plans should counsel

employees of their options set out in

this subsection.

**Subpart E---Reemployment Rights and**

**Benefits**

[]{#SubpartE .anchor}**Prompt Reemployment**

**§ 1002.180 When is an employee entitled**

**to be reemployed by his or her civilian**

**employer?**

The employer must promptly

reemploy the employee when he or she

returns from a period of service if the

employee meets the Act's eligibility

criteria as described in Subpart C of

these regulations.

**§ 1002.181 How is ''prompt**

**reemployment'' defined?**

''Prompt reemployment'' means as

soon as practicable under the

circumstances of each case. Absent

unusual circumstances, reemployment

must occur within two weeks of the

employee's application for

reemployment. For example, prompt

reinstatement after a weekend National

Guard duty generally means the next

regularly scheduled working day. On

the other hand, prompt reinstatement

following several years of active duty

may require more time, because the

employer may have to reassign or give

notice to another employee who

occupied the returning employee's

position.

[**PART 1002**](#part1002); [**(ISSUE CODE)**](#Issuecodes)

**Reemployment Position**

**§ 1002.191 What position is the employee**

**entitled to upon reemployment?**

[]{#escalator .anchor}As a general rule, the employee is

entitled to reemployment in the job

position that he or she would have

attained with reasonable certainty if not

for the absence due to uniformed

service. This position is known as the

escalator position. 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.

The escalator principle requires that the

employee 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. Depending upon the specific

circumstances, the employer may have

the option, or be required, to reemploy

the employee in a position other than

the escalator position.

**§ 1002.192 How is the specific**

**reemployment position determined?**

In all cases, the starting point for

determining the proper reemployment

position is the escalator position, which

is the job position that the employee

would have attained if his or her

continuous employment had not been

interrupted due to uniformed service.

Once this position is determined, the

employer may have to consider several

factors before determining the

appropriate reemployment position in

any particular case. Such factors may

include the employee's length of

service, qualifications, and disability, if

any. The reemployment position may be

either the escalator position; the preservice

position; a position comparable

to the escalator or pre-service position;

or, the nearest approximation to one of

these positions.

**§ 1002.193 Does the reemployment**

**position include elements such as seniority,**

**status, and rate of pay?**

\(a\) Yes. The reemployment position

includes the seniority, status, and rate of

pay that an employee would ordinarily

have attained in that position given his

or her job history, including prospects

for future earnings and advancement.

The employer must determine the

seniority rights, status, and rate of pay

as though the employee had been

continuously employed during the

period of service. The seniority rights,

status, and pay of an employment

position include those established (or

changed) by a collective bargaining

agreement, employer policy, or

employment practice. The sources of

seniority rights, status, and pay include

agreements, policies, and practices in

effect at the beginning of the employee's

service, and any changes that may have

occurred during the period of service. In

particular, the employee's status in the

reemployment position could include

opportunities for advancement, general

working conditions, job location, shift

assignment, rank, responsibility, and

geographical location.

\(b\) If an opportunity for promotion, or

eligibility for promotion, that the

employee missed during service is

based on a skills test or examination,

then the employer should give him or

her a reasonable amount of time to

adjust to the employment position and

then give a skills test or examination.

No fixed amount of time for permitting

adjustment to reemployment will be

deemed reasonable in all cases.

However, in determining a reasonable

amount of time to permit an employee

to adjust to reemployment before

scheduling a makeup test or

examination, an employer may take into

account a variety of factors, including

but not limited to the length of time the

returning employee was absent from

work, the level of difficulty of the test

itself, the typical time necessary to

prepare or study for the test, the duties

and responsibilities of the

reemployment position and the

promotional position, and the nature

and responsibilities of the service

member while serving in the uniformed

service. If the employee is successful on

the makeup exam and, based on the

results of that exam, there is a

reasonable certainty that he or she

would have been promoted, or made

eligible for promotion, during the time

that the employee served in the

uniformed service, then the promotion

or eligibility for promotion must be

made effective as of the date it would

have occurred had employment not

been interrupted by uniformed service

**§ 1002.194 Can the application of the**

**escalator principle result in adverse**

**consequences when the employee is**

**reemployed?**

Yes. The Act does not prohibit lawful

adverse job consequences that result

from the employee's restoration on the

seniority ladder. 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.

For example, if an employee's seniority

or job classification would have resulted

in the employee being laid off during

the period of service, and the layoff

continued after the date of

reemployment, reemployment would

reinstate the employee to layoff status.

Similarly, the status of the

reemployment position requires the

employer to assess what would have

happened to such factors as the

employee's opportunities for

advancement, working conditions, job

location, shift assignment, rank,

responsibility, and geographical

location, if he or she had remained

continuously employed. The

reemployment position may involve

transfer to another shift or location,

more or less strenuous working

conditions, or changed opportunities for

advancement, depending upon the

application of the escalator principle.

**§ 1002.195 What other factors can**

**determine the reemployment position?**

Once the employee's escalator

position is determined, other factors

may allow, or require, the employer to

reemploy the employee in a position

other than the escalator position. These

factors, which are explained in

§§ 1002.196 through 1002.199, are:

\(a\) The length of the employee's most

recent period of uniformed service;

\(b\) The employee's qualifications;

and,

\(c\) Whether the employee has a

disability incurred or aggravated during

uniformed service.

**§ 1002.196 What is the employee's**

**reemployment position if the period of**

**service was less than 91 days?**

Following a period of service in the

uniformed services of less than 91 days,

the employee must be reemployed

according to the following priority:

\(a\) The employee must be reemployed

in the escalator position. He or she must

be qualified to perform the duties of this

position. The employer must make

reasonable efforts to help the employee

become qualified to perform the duties

of this position.

\(b\) If the employee is not qualified to

perform the duties of the escalator

[**PART 1002**](#part1002); [**(ISSUE CODE)**](#Issuecodes)

position after reasonable efforts by the

employer, the employee must be

reemployed in the position in which he

or she was employed on the date that

the period of service began. The

employee must be qualified to perform

the duties of this position. The

employer must make reasonable efforts

to help the employee become qualified

to perform the duties of this position.

\(c\) If the employee is not qualified to

perform the duties of the escalator

position or the pre-service position,

after reasonable efforts by the employer,

he or she must be reemployed in any

other position that is the nearest

approximation first to the escalator

position and then to the pre-service

position. The employee must be

qualified to perform the duties of this

position. The employer must make

reasonable efforts to help the employee

become qualified to perform the duties

of this position.

**§ 1002.197 What is the reemployment**

**position if the employee's period of service**

**in the uniformed services was more than 90**

**days?**

Following a period of service of more

than 90 days, the employee must be

reemployed according to the following

priority:

\(a\) The employee must be reemployed

in the escalator position or a position of

like seniority, status, and pay. He or she

must be qualified to perform the duties

of this position. The employer must

make reasonable efforts to help the

employee become qualified to perform

the duties of this position.

\(b\) If the employee is not qualified to

perform the duties of the escalator

position or a like position after

reasonable efforts by the employer, the

employee must be reemployed in the

position in which he or she was

employed on the date that the period of

service began or in a position of like

seniority, status, and pay. The employee

must be qualified to perform the duties

of this position. The employer must

make reasonable efforts to help the

employee become qualified to perform

the duties of this position.

\(c\) If the employee is not qualified to

perform the duties of the escalator

position, the pre-service position, or a

like position, after reasonable efforts by

the employer, he or she must be

reemployed in any other position that is

the nearest approximation first to the

escalator position and then to the preservice

position. The employee must be

qualified to perform the duties of this

position. The employer must make

reasonable efforts to help the employee

become qualified to perform the duties

of this position.

**§ 1002.198 What efforts must the employer**

**make to help the employee become**

**qualified for the reemployment position?**

The employee must be qualified for

the reemployment position. The

employer must make reasonable efforts

to help the employee become qualified

to perform the duties of this position.

The employer is not required to

reemploy the employee on his or her

return from service if he or she cannot,

after reasonable efforts by the employer,

qualify for the appropriate

reemployment position.

(a)(1) ''Qualified'' means that the

employee has the ability to perform the

essential tasks of the position. The

employee's inability to perform one or

more non-essential tasks of a position

does not make him or her unqualified.

\(2\) Whether a task is essential

depends on several factors, and these

factors include but are not limited to:

\(i\) The employer's judgment as to

which functions are essential;

\(ii\) Written job descriptions

developed before the hiring process

begins;

\(iii\) The amount of time on the job

spent performing the function;

\(iv\) The consequences of not requiring

the individual to perform the function;

\(v\) The terms of a collective

bargaining agreement;

\(vi\) The work experience of past

incumbents in the job; and/or

\(vii\) The current work experience of

incumbents in similar jobs.

\(b\) Only after the employer makes

reasonable efforts, as defined in

§ 1002.5(i), may it determine that the

employee is not qualified for the

reemployment position. These

reasonable efforts must be made at no

cost to the employee.

**§ 1002.199 What priority must the**

**employer follow if two or more returning**

**employees are entitled to reemployment in**

**the same position?**

If two or more employees are entitled

to reemployment in the same position

and more than one employee has

reported or applied for employment in

that position, the employee who first

left the position for uniformed service

has the first priority on reemployment

in that position. The remaining

employee (or employees) is entitled to

be reemployed in a position similar to

that in which the employee would have

been reemployed according to the rules

that normally determine a

reemployment position, as set out in

§§ 1002.196 and 1002.197.

**Seniority Rights and Benefits**

**§ 1002.210 What seniority rights does an**

**employee have when reemployed following**

**a period of uniformed service?**

[]{#seniority .anchor}The employee is entitled to the

seniority and seniority-based rights and

benefits that he or she had on the date

the uniformed service began, plus any

seniority and seniority-based rights and

benefits that the employee would have

attained if he or she had remained

continuously employed. In determining

entitlement to seniority and seniority based

rights and benefits, the period of

absence from employment due to or

necessitated by uniformed service is not

considered a break in employment. The

rights and benefits protected by

USERRA upon reemployment include

those provided by the employer and

those required by statute. For example,

under USERRA, a reemployed service

member would be eligible for leave

under the Family and Medical Leave

Act of 1993, 29 U.S.C. 2601--2654

(FMLA), if the number of months and

the number of hours of work for which

the service member was employed by

the civilian employer, together with the

number of months and the number of

hours of work for which the service

member would have been employed by

the civilian employer during the period

of uniformed service, meet FMLA's

eligibility requirements. In the event

that a service member is denied FMLA

leave for failing to satisfy the FMLA's

hours of work requirement due to

absence from employment necessitated

by uniformed service, the service

member may have a cause of action

under USERRA but not under the

FMLA.

**§ 1002.211 Does USERRA require the**

**employer to use a seniority system?**

No. USERRA does not require the

employer to adopt a formal seniority

system. USERRA defines seniority as

longevity in employment together with

any employment benefits that accrue

with, or are determined by, longevity in

employment. In the absence of a formal

seniority system, such as one

[**PART 1002**](#part1002); [**(ISSUE CODE)**](#Issuecodes)

established through collective

bargaining, USERRA looks to the

custom and practice in the place of

employment to determine the

employee's entitlement to any

employment benefits that accrue with,

or are determined by, longevity in

employment.

**§ 1002.212 How does a person know**

**whether a particular right or benefit is a**

**seniority-based right or benefit?**

A seniority-based right or benefit is

one that accrues with, or is determined

by, longevity in employment. Generally,

whether a right or benefit is senioritybased

depends on three factors:

\(a\) Whether the right or benefit is a

reward for length of service rather than

a form of short-term compensation for

work performed;

\(b\) Whether it is reasonably certain

that the employee would have received

the right or benefit if he or she had

remained continuously employed

during the period of service; and,

\(c\) Whether it is the employer's actual

custom or practice to provide or

withhold the right or benefit as a reward

for length of service. Provisions of an

employment contract or policies in the

employee handbook are not controlling

if the employer's actual custom or

practice is different from what is written

in the contract or handbook.

**§ 1002.213 How can the employee**

**demonstrate a reasonable certainty that he**

**or she would have received the seniority**

**right or benefit if he or she had remained**

**continuously employed during the period of**

**service?**

A reasonable certainty is a high

probability that the employee would

have received the seniority or senioritybased

right or benefit if he or she had

been continuously employed. The

employee does not have to establish that

he or she would have received the

benefit as an absolute certainty. The

employee can demonstrate a reasonable

certainty that he or she would have

received the seniority right or benefit by

showing that other employees with

seniority similar to that which the

employee would have had if he or she

had remained continuously employed

received the right or benefit. The

employer cannot withhold the right or

benefit based on an assumption that a

series of unlikely events could have

prevented the employee from gaining

the right or benefit.

**Disabled Employees**

**§ 1002.225 Is the employee entitled to any**

**specific reemployment benefits if he or she**

**has a disability that was incurred in, or**

**aggravated during, the period of service?**

[]{#disabled .anchor}Yes. A disabled service member is

entitled, to the same extent as any other

individual, to the escalator position he

or she would have attained but for

uniformed service. If the employee has

a disability incurred in, or aggravated

during, the period of service in the

uniformed services, the employer must

make reasonable efforts to accommodate

that disability and to help the employee

become qualified to perform the duties

of his or her reemployment position. If

the employee is not qualified for

reemployment in the escalator position

because of a disability after reasonable

efforts by the employer to accommodate

the disability and to help the employee

to become qualified, the employee must

be reemployed in a position according

to the following priority. The employer

must make reasonable efforts to

accommodate the employee's disability

and to help him or her to become

qualified to perform the duties of one of

these positions:

\(a\) A position that is equivalent in

seniority, status, and pay to the

escalator position; or,

\(b\) A position that is the nearest

approximation to the equivalent

position, consistent with the

circumstances of the employee's case, in

terms of seniority, status, and pay. A

position that is the nearest

approximation to the equivalent

position may be a higher or lower

position, depending on the

circumstances.

**§ 1002.226 If the employee has a disability**

**that was incurred in, or aggravated during,**

**the period of service, what efforts must the**

**employer make to help him or her become**

**qualified for the reemployment position?**

\(a\) USERRA requires that the

employee be qualified for the

reemployment position regardless of

any disability. The employer must make

reasonable efforts to help the employee

to become qualified to perform the

duties of this position. The employer is

not required to reemploy the employee

on his or her return from service if he

or she cannot, after reasonable efforts by

the employer, qualify for the

appropriate reemployment position.

\(b\) ''Qualified'' has the same meaning

here as in § 1002.198.

**Rate of Pay**

**§ 1002.236 How is the employee's rate of**

**pay determined when he or she returns**

**from a period of service?**

[]{#quickmark .anchor}The employee's rate of pay is

determined by applying the same

escalator principles that are used to

determine the reemployment position,

as follows:

\(a\) If the employee is reemployed in

the escalator position, the employer

must compensate him or her at the rate

of pay associated with the escalator

position. The rate of pay must be

determined by taking into account any

pay increases, differentials, step

increases, merit increases, or periodic

increases that the employee would have

attained with reasonable certainty had

he or she remained continuously

employed during the period of service.

In addition, when considering whether

merit or performance increases would

have been attained with reasonable

certainty, an employer may examine the

returning employee's own work history,

his or her history of merit increases, and

the work and pay history of employees

in the same or similar position. For

example, if the employee missed a merit

pay increase while performing service,

but qualified for previous merit pay

increases, then the rate of pay should

include the merit pay increase that was

missed. If the merit pay increase that the

employee missed during service is

based on a skills test or examination,

then the employer should give the

employee a reasonable amount of time

to adjust to the reemployment position

and then give him or her the skills test

or examination. No fixed amount of

time for permitting adjustment to

reemployment will be deemed

reasonable in all cases. However, in

determining a reasonable amount of

time to permit an employee to adjust to

reemployment before scheduling a

makeup test or examination, an

employer may take into account a

variety of factors, including but not

limited to the length of time the

returning employee was absent from

work, the level of difficulty of the test

itself, the typical time necessary to

prepare or study for the test, the duties

and responsibilities of the

reemployment position and the

promotional position, and the nature

and responsibilities of the service

member while serving in the uniformed

service. The escalator principle also

[**PART 1002**](#part1002); [**(ISSUE CODE)**](#Issuecodes)

applies in the event a pay reduction

occurred in the reemployment position

during the period of service. Any pay

adjustment must be made effective as of

the date it would have occurred had the

employee's employment not been

interrupted by uniformed service.

\(b\) If the employee is reemployed in

the pre-service position or another

position, the employer must compensate

him or her at the rate of pay associated

with the position in which he or she is

reemployed. As with the escalator

position, the rate of pay must be

determined by taking into account any

pay increases, differentials, step

increases, merit increases, or periodic

increases that the employee would have

attained with reasonable certainty had

he or she remained continuously

employed during the period of service.

**Protection Against Discharge**

**§ 1002.247 Does USERRA provide the**

**employee with protection against**

**discharge?**

[]{#protect .anchor}Yes. If the employee's most recent

period of service in the uniformed

services was more than 30 days, he or

she must not be discharged except for

cause---

\(a\) For 180 days after the employee's

date of reemployment if his or her most

recent period of uniformed service was

more than 30 days but less than 181

days; or,

\(b\) For one year after the date of

reemployment if the employee's most

recent period of uniformed service was

more than 180 days.

**§ 1002.248 What constitutes cause for**

**discharge under USERRA?**

The employee may be discharged for

cause based either on conduct or, in

some circumstances, because of the

application of other legitimate

nondiscriminatory reasons.

\(a\) In a discharge action based on

conduct, the employer bears the burden

of proving that it is reasonable to

discharge the employee for the conduct

in question, and that he or she had

notice, which was express or can be

fairly implied, that the conduct would

constitute cause for discharge.

\(b\) If, based on the application of

other legitimate nondiscriminatory

reasons, the employee's job position is

eliminated, or the employee is placed

on layoff status, either of these

situations would constitute cause for

purposes of USERRA. The employer

bears the burden of proving that the

employee's job would have been

eliminated or that he or she would have

been laid off.

**Pension Plan Benefits**

**§ 1002.259 How does USERRA protect an**

**employee's pension benefits?**

[]{#pension .anchor}On reemployment, the employee is

treated as not having a break in service

with the employer or employers

maintaining a pension plan, for

purposes of participation, vesting and

accrual of benefits, by reason of the

period of absence from employment due

to or necessitated by service in the

uniformed services.

\(a\) Depending on the length of the

employee's period of service, he or she

is entitled to take from one to ninety

days following service before reporting

back to work or applying for

reemployment (See § 1002.115). This

period of time must be treated as

continuous service with the employer

for purposes of determining

participation, vesting and accrual of

pension benefits under the plan.

\(b\) If the employee is hospitalized for,

or convalescing from, an illness or

injury incurred in, or aggravated during,

service, he or she is entitled to report to

or submit an application for

reemployment at the end of the time

period necessary for him or her to

recover from the illness or injury. This

period, which may not exceed two years

from the date the employee completed

service, except in circumstances beyond

his or her control, must be treated as

continuous service with the employer

for purposes of determining the

participation, vesting and accrual of

pension benefits under the plan.

**§ 1002.260 What pension benefit plans are**

**covered under USERRA?**

\(a\) The Employee Retirement Income

Security Act of 1974 (ERISA) defines an

employee pension benefit plan as a plan

that provides retirement income to

employees, or defers employee income

to a period extending to or beyond the

termination of employment. Any such

plan maintained by the employer or

employers is covered under USERRA.

USERRA also covers certain pension

plans not covered by ERISA, such as

those sponsored by a State, government

entity, or church for its employees.

\(b\) USERRA does not cover pension

benefits under the Federal Thrift

Savings Plan; those benefits are covered

under 5 U.S.C. 8432b.

**§ 1002.261 Who is responsible for funding**

**any plan obligation to provide the employee**

**with pension benefits?**

With the exception of multiemployer

plans, which have separate rules

discussed below, the employer is liable

to the pension benefit plan to fund any

obligation of the plan to provide

benefits that are attributable to the

employee's period of service. In the case

of a defined contribution plan, once the

employee is reemployed, the employer

must allocate the amount of its make-up

contribution for the employee, if any;

his or her make-up employee

contributions, if any; and his or her

elective deferrals, if any; in the same

manner and to the same extent that it

allocates the amounts for other

employees during the period of service.

In the case of a defined benefit plan, the

employee's accrued benefit will be

increased for the period of service once

he or she is reemployed and, if

applicable, has repaid any amounts

previously paid to him or her from the

plan and made any employee

contributions that may be required to be

made under the plan.

**§ 1002.262 When is the employer required**

**to make the plan contribution that is**

**attributable to the employee's period of**

**uniformed service?**

\(a\) The employer is not required to

make its contribution until the

employee is reemployed. For employer

contributions to a plan in which the

employee is not required or permitted to

contribute, the employer must make the

contribution attributable to the

employee's period of service no later

than ninety days after the date of

reemployment, or when plan

contributions are normally due for the

year in which the service in the

uniformed services was performed,

whichever is later. If it is impossible or

unreasonable for the employer to make

the contribution within this time period,

the employer must make the

contribution as soon as practicable.

\(b\) If the employee is enrolled in a

contributory plan he or she is allowed

(but not required) to make up his or her

missed contributions or elective

deferrals. These makeup contributions

or elective deferrals must be made

during a time period starting with the

date of reemployment and continuing

for up to three times the length of the

[**PART 1002**](#part1002); [**(ISSUE CODE)**](#Issuecodes)

employee's immediate past period of

uniformed service, with the repayment

period not to exceed five years. Makeup

contributions or elective deferrals may

only be made during this period and

while the employee is employed with

the post-service employer.

\(c\) If the employee's plan is

contributory and he or she does not

make up his or her contributions or

elective deferrals, he or she will not

receive the employer match or the

accrued benefit attributable to his or her

contribution because the employer is

required to make contributions that are

contingent on or attributable to the

employee's contributions or elective

deferrals only to the extent that the

employee makes up his or her payments

to the plan. Any employer contributions

that are contingent on or attributable to

the employee's make-up contributions

or elective deferrals must be made

according to the plan's requirements for

employer matching contributions.

\(d\) The employee is not required to

make up the full amount of employee

contributions or elective deferrals that

he or she missed making during the

period of service. If the employee does

not make up all of the missed

contributions or elective deferrals, his or

her pension may be less than if he or

she had done so.

\(e\) Any vested accrued benefit in the

pension plan that the employee was

entitled to prior to the period of

uniformed service remains intact

whether or not he or she chooses to be

reemployed under the Act after leaving

the uniformed service.

\(f\) An adjustment will be made to the

amount of employee contributions or

elective deferrals the employee will be

able to make to the pension plan for any

employee contributions or elective

deferrals he or she actually made to the

plan during the period of service.

**§ 1002.263 Does the employee pay interest**

**when he or she makes up missed**

**contributions or elective deferrals?**

No. The employee is not required or

permitted to make up a missed

contribution in an amount that exceeds

the amount he or she would have been

permitted or required to contribute had

he or she remained continuously

employed during the period of service.

**§ 1002.264 Is the employee allowed to**

**repay a previous distribution from a**

**pension benefits plan upon being**

**reemployed?**

Yes, provided the plan is a defined

benefit plan. If the employee received a

distribution of all or part of the accrued

benefit from a defined benefit plan in

connection with his or her service in the

uniformed services before he or she

became reemployed, he or she must be

allowed to repay the withdrawn

amounts when he or she is reemployed.

The amount the employee must repay

includes any interest that would have

accrued had the monies not been

withdrawn. The employee must be

allowed to repay these amounts during

a time period starting with the date of

reemployment and continuing for up to

three times the length of the employee's

immediate past period of uniformed

service, with the repayment period not

to exceed five years (or such longer time

as may be agreed to between the

employer and the employee), provided

the employee is employed with the

post-service employer during this

period.

**§ 1002.265 If the employee is reemployed**

**with his or her pre-service employer, is the**

**employee's pension benefit the same as if**

**he or she had remained continuously**

**employed?**

The amount of the employee's

pension benefit depends on the type of

pension plan.

\(a\) In a non-contributory defined

benefit plan, where the amount of the

pension benefit is determined according

to a specific formula, the employee's

benefit will be the same as though he or

she had remained continuously

employed during the period of service.

\(b\) In a contributory defined benefit

plan, the employee will need to make

up contributions in order to have the

same benefit as if he or she had

remained continuously employed

during the period of service.

\(c\) In a defined contribution plan, the

benefit may not be the same as if the

employee had remained continuously

employed, even though the employee

and the employer make up any

contributions or elective deferrals

attributable to the period of service,

because the employee is not entitled to

forfeitures and earnings or required to

experience losses that accrued during

the period or periods of service.

**§ 1002.266 What are the obligations of a**

**multiemployer pension benefit plan under**

**USERRA?**

A multiemployer pension benefit plan

is one to which more than one employer

is required to contribute, and which is

maintained pursuant to one or more

collective bargaining agreements

between one or more employee

organizations and more than one

employer. The Act uses ERISA's

definition of a multiemployer plan. In

addition to the provisions of USERRA

that apply to all pension benefit plans,

there are provisions that apply

specifically to multiemployer plans, as

follows:

\(a\) The last employer that employed

the employee before the period of

service is responsible for making the

employer contribution to the

multiemployer plan, if the plan sponsor

does not provide otherwise. If the last

employer is no longer functional, the

plan must nevertheless provide

coverage to the employee.

\(b\) An employer that contributes to a

multiemployer plan and that reemploys

the employee pursuant to USERRA must

provide written notice of reemployment

to the plan administrator within 30 days

after the date of reemployment. The

returning service member should notify

the reemploying employer that he or she

has been reemployed pursuant to

USERRA. The 30-day period within

which the reemploying employer must

provide written notice to the

multiemployer plan pursuant to this

subsection does not begin until the

employer has knowledge that the

employee was reemployed pursuant to

USERRA.

\(c\) The employee is entitled to the

same employer contribution whether he

or she is reemployed by the pre-service

employer or by a different employer

contributing to the same multiemployer

plan, provided that the pre-service

employer and the post-service employer

share a common means or practice of

hiring the employee, such as common

participation in a union hiring hall.

**§ 1002.267 How is compensation during**

**the period of service calculated in order to**

**determine the employee's pension benefits,**

**if benefits are based on compensation?**

In many pension benefit plans, the

employee's compensation determines

the amount of his or her contribution or

the retirement benefit to which he or

she is entitled.

\(a\) Where the employee's rate of

compensation must be calculated to

determine pension entitlement, the

calculation must be made using the rate

of pay that the employee would have

[**PART 1002**](#part1002); [**(ISSUE CODE)**](#Issuecodes)

received but for the period of uniformed

service.

(b)(1) Where the rate of pay the

employee would have received is not

reasonably certain, such as where

compensation is based on commissions

earned, the average rate of

compensation during the 12-month

period prior to the period of uniformed

service must be used.

\(2\) Where the rate of pay the

employee would have received is not

reasonably certain and he or she was

employed for less than 12 months prior

to the period of uniformed service, the

average rate of compensation must be

derived from this shorter period of

employment that preceded service.

[]{#SubparF .anchor}**Subpart F---Compliance Assistance,**

**Enforcement and Remedies**

**Compliance Assistance**

**§ 1002.277 What assistance does the**

**Department of Labor provide to employees**

**and employers concerning employment,**

**reemployment, or other rights and benefits**

**under USERRA?**

The Secretary, through the Veterans'

Employment and Training Service

(VETS), provides assistance to any

person or entity with respect to

employment and reemployment rights

and benefits under USERRA. This

assistance includes a wide range of

compliance assistance outreach

activities, such as responding to

inquiries; conducting USERRA briefings

and Webcasts; issuing news releases;

and, maintaining the elaws USERRA

Advisor (located at *http://www.dol.gov/*

*elaws/userra.htm*), the e-VETS Resource

Advisor and other web-based materials

(located at *http://www.dol.gov/vets*),

which are designed to increase

awareness of the Act among affected

persons, the media, and the general

public. In providing such assistance,

VETS may request the assistance of

other Federal and State agencies, and

utilize the assistance of volunteers.

**Investigation and Referral**

**§ 1002.288 How does an individual file a**

**USERRA complaint?**

[]{#vets1010 .anchor}If an individual is claiming

entitlement to employment rights or

benefits or reemployment rights or

benefits and alleges that an employer

has failed or refused, or is about to fail

or refuse, to comply with the Act, the

individual may file a complaint with

VETS or initiate a private legal action in

a court of law (*see* § 1002.303). A

complaint may be filed with VETS

either in writing, using VETS Form

1010, or electronically, using VETS

Form e1010 (instructions and the forms

can be accessed at *http://www.dol.gov/*

*elaws/vets/userra/1010.asp*). A

complaint must include the name and

address of the employer, a summary of

the basis for the complaint, and a

request for relief.

**§ 1002.289 How will VETS investigate a**

**USERRA complaint?**

\(a\) In carrying out any investigation,

VETS has, at all reasonable times,

reasonable access to and the right to

interview persons with information

relevant to the investigation. VETS also

has reasonable access to, for purposes of

examination, the right to copy and

receive any documents of any person or

employer that VETS considers relevant

to the investigation.

\(b\) VETS may require by subpoena the

attendance and testimony of witnesses

and the production of documents

relating to any matter under

investigation. In case of disobedience of

or resistance to the subpoena, the

Attorney General may, at VETS' request,

apply to any district court of the United

States in whose jurisdiction such

disobedience or resistance occurs for an

order enforcing the subpoena. The

district courts of the United States have

jurisdiction to order compliance with

the subpoena, and to punish failure to

obey a subpoena as a contempt of court.

This paragraph does not authorize VETS

to seek issuance of a subpoena to the

legislative or judicial branches of the

United States.

VerDate Aug\<

**§ 1002.290 Does VETS have the authority**

**to order compliance with USERRA?**

No. If VETS determines as a result of

an investigation that the complaint is

meritorious, VETS attempts to resolve

the complaint by making reasonable

efforts to ensure that any persons or

entities named in the complaint comply

with the Act.

If VETS' efforts do not resolve the

complaint, VETS notifies the person

who submitted the complaint of:

\(a\) The results of the investigation;

and,

\(b\) The person's right to proceed

under the enforcement of rights

provisions in 38 U.S.C. 4323 (against a

State or private employer), or 38 U.S.C.

4324 (against a Federal executive agency

or the Office of Personnel Management

(OPM)).

**§ 1002.291 What actions may an individual**

**take if the complaint is not resolved by**

**VETS?**

If an individual receives a notification

from VETS of an unsuccessful effort to

resolve his or her complaint relating to

a State or private employer, the

individual may request that VETS refer

the complaint to the Attorney General.

**§ 1002.292 What can the Attorney General**

**do about the complaint?**

\(a\) If the Attorney General is

reasonably satisfied that an individual's

complaint is meritorious, meaning that

he or she is entitled to the rights or

benefits sought, the Attorney General

may appear on his or her behalf and act

as the individual's attorney, and initiate

a legal action to obtain appropriate

relief.

\(b\) If the Attorney General determines

that the individual's complaint does not

have merit, the Attorney General may

decline to represent him or her.

[]{#Enforcement .anchor}**Enforcement of Rights and Benefits**

**Against a State or Private Employer**

**§ 1002.303 Is an individual required to file**

**his or her complaint with VETS?**

No. The individual may initiate a

private action for relief against a State

or private employer if he or she decides

not to apply to VETS for assistance.

**§ 1002.304 If an individual files a complaint**

**with VETS and VETS' efforts do not resolve**

**the complaint, can the individual pursue the**

**claim on his or her own?**

Yes. If VETS notifies an individual

that it is unable to resolve the

complaint, the individual may pursue

the claim on his or her own. The

individual may choose to be represented

by private counsel whether or not the

Attorney General decides to represent

him or her as to the complaint.

**§ 1002.305 What court has jurisdiction in**

**an action against a State or private**

**employer?**

\(a\) If an action is brought against a

State or private employer by the

Attorney General, the district courts of

the United States have jurisdiction over

the action. If the action is brought

against a State by the Attorney General,

it must be brought in the name of the

United States as the plaintiff in the

action.

[**PART 1002**](#part1002); [**(ISSUE CODE)**](#Issuecodes)

\(b\) If an action is brought against a

State by a person, the action may be

brought in a State court of competent

jurisdiction according to the laws of the

State.

\(c\) If an action is brought against a

private employer or a political

subdivision of a State by a person, the

district courts of the United States have

jurisdiction over the action.

\(d\) An action brought against a State

Adjutant General, as an employer of a

civilian National Guard technician, is

considered an action against a State for

purposes of determining which court

has jurisdiction.

**§ 1002.306 Is a National Guard civilian**

**technician considered a State or Federal**

**employee for purposes of USERRA?**

A National Guard civilian technician

is considered a State employee for

USERRA purposes, although he or she

is considered a Federal employee for

most other purposes.

**§ 1002.307 What is the proper venue in an**

**action against a State or private employer?**

\(a\) If an action is brought by the

Attorney General against a State, the

action may proceed in the United States

district court for any district in which

the State exercises any authority or

carries out any function.

\(b\) If an action is brought against a

private employer, or a political

subdivision of a State, the action may

proceed in the United States district

court for any district in which the

employer maintains a place of business.

**§ 1002.308 Who has legal standing to**

**bring an action under USERRA?**

An action may be brought only by the

United States or by the person, or

representative of a person, claiming

rights or benefits under the Act. An

employer, prospective employer or

other similar entity may not bring an

action under the Act.

**§ 1002.309 Who is a necessary party in an**

**action under USERRA?**

In an action under USERRA only an

employer or a potential employer, as the

case may be, is a necessary party

respondent. In some circumstances,

such as where terms in a collective

bargaining agreement need to be

interpreted, the court may allow an

interested party to intervene in the

action.

**§ 1002.310 How are fees and court costs**

**charged or taxed in an action under**

**USERRA?**

No fees or court costs may be charged

or taxed against an individual if he or

she is claiming rights under the Act. If

the individual obtains private counsel

for any action or proceeding to enforce

a provision of the Act, and prevails, the

court may award reasonable attorney

fees, expert witness fees, and other

litigation expenses.

**§ 1002.311 Is there a statute of limitations**

**in an action under USERRA?**

USERRA does not have a statute of

limitations, and it expressly precludes

the application of any State statute of

limitations. At least one court, however,

has held that the four-year general

Federal statute of limitations, 28 U.S.C.

1658, applies to actions under USERRA.

*Rogers* v. *City of San Antonio,* 2003 WL

1566502 (W.D. Texas), *reversed on other*

*grounds,* 392 F.3d 758 (5th Cir. 2004).

But see *Akhdary* v. *City of Chattanooga,*

2002 WL 32060140 (E.D. Tenn.). In

addition, if an individual unreasonably

delays asserting his or her rights, and

that unreasonable delay causes

prejudice to the employer, the courts

have recognized the availability of the

equitable doctrine of *laches* to bar a

claim under USERRA. Accordingly,

individuals asserting rights under

USERRA should determine whether the

issue of the applicability of the Federal

statute of limitations has been resolved

and, in any event, act promptly to

preserve their rights under USERRA.

**§ 1002.312 What remedies may be**

[]{#remedies .anchor}**awarded for a violation of USERRA?**

In any action or proceeding the court

may award relief as follows:

\(a\) The court may require the

employer to comply with the provisions

of the Act;

\(b\) The court may require the

employer to compensate the individual

for any loss of wages or benefits suffered

by reason of the employer's failure to

comply with the Act;

\(c\) The court may require the

employer to pay the individual an

amount equal to the amount of lost

wages and benefits as liquidated

damages, if the court determines that

the employer's failure to comply with

the Act was willful. A violation shall be

considered to be willful if the employer

either knew or showed reckless

disregard for whether its conduct was

prohibited by the Act.

\(d\) Any wages, benefits, or liquidated

damages awarded under paragraphs (b)

and (c) of this section are in addition to,

and must not diminish, any of the other

rights and benefits provided by

USERRA (such as, for example, the right

to be employed or reemployed by the

employer).

**§ 1002.313 Are there special damages**

**provisions that apply to actions initiated in**

**the name of the United States?**

Yes. In an action brought in the name

of the United States, for which the relief

includes compensation for lost wages,

benefits, or liquidated damages, the

compensation must be held in a special

deposit account and must be paid, on

order of the Attorney General, directly

to the person. If the compensation is not

paid to the individual because of the

Federal Government's inability to do so

within a period of three years, the

compensation must be converted into

the Treasury of the United States as

miscellaneous receipts.

**§ 1002.314 May a court use its equity**

**powers in an action or proceeding under**

**the Act?**

Yes. A court may use its full equity

powers, including the issuance of

temporary or permanent injunctions,

temporary restraining orders, and

contempt orders, to vindicate the rights

or benefits guaranteed under the Act.

Signed at Washington, DC, this 8th day of

December, 2005.

**Charles S. Ciccolella,**

*Assistant Secretary for Veterans' Employment*

*and Training.*

\[FR Doc. 05--23961 Filed 12--16--05; 8:45 am\]

[**PART 1002**](#part1002); **[(ISSUE CODE)](#Issuecodes)
[\[QAR\]](#QARForm)**

### 38 USC {#usc .unnumbered}

### 4301-4334 {#section-1 .unnumbered}

###  Uniformed Service Employment Reemployment Rights Act of 1994  {#uniformed-service-employment-reemployment-rights-act-of-1994 .unnumbered}

### (USERRA) {#userra .unnumbered}

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### UNIFORMED SERVICES EMPLOYMENT  {#uniformed-services-employment .unnumbered}

### AND  {#and .unnumbered}

### REEMPLOYMENT RIGHTS ACT OF 1994 {#reemployment-rights-act-of-1994 .unnumbered}

USERRA is a federal statute that protects servicemembers' and veterans'
civilian employment rights. Among other things, under certain
conditions, USERRA requires employers to put individuals back to work in
their civilian jobs after military service. USERRA also protects
servicemembers from discrimination in the workplace based on their
military service or affiliation.

**SUBCHAPTER I\--GENERAL**

**§ 4301. Purposes; sense of Congress**

\(a\) The purposes of this chapter are\--

\(1\) to encourage noncareer service in the uniformed services by
eliminating or minimizing the disadvantages to civilian careers and
employment which can result from such service;

\(2\) to minimize the disruption to the lives of persons performing
service in the uniformed services as well as to their employers, their
fellow employees, and their communities, by providing for the prompt
reemployment of such persons upon their completion of such service; and

\(3\) to prohibit discrimination against persons because of their
service in the uniformed services.

\(b\) It is the sense of Congress that the Federal Government should be
a model employer in carrying out the provisions of this chapter.

**§ 4302. Relation to other law and plans or agreements**

\(a\) Nothing in this chapter shall supersede, nullify or diminish any
Federal or State law (including any local law or ordinance), contract,
agreement, policy, plan, practice, or other matter that establishes a
right or benefit that is more beneficial to, or is in addition to, a
right or benefit provided for such person in this chapter.

\(b\) This chapter supersedes any State law (including any local law or
ordinance), contract, agreement, policy, plan, practice, or other matter
that reduces, limits, or eliminates in any manner any right or benefit
provided by this chapter, including the establishment of additional
prerequisites to the exercise of any such right or the receipt of any
such benefit.

**§ 4303. Definitions**

For the purposes of this chapter\--

\(1\) The term \'Attorney General\' means the Attorney General of the
United States or any person designated by the Attorney General to carry
out a responsibility of the Attorney General under this chapter.

\(2\) The term \'benefit\', \'benefit of employment\', or \'rights and
benefits\' means any advantage, profit, privilege, gain, status,
account, or interest (other than wages or salary for work performed)
that accrues by reason of an employment contract or agreement or an
employer policy, plan, or practice and includes rights and benefits
under a pension plan, a health plan, an employee stock ownership plan,
insurance coverage and awards, bonuses, severance pay, supplemental
unemployment benefits, vacations, and the opportunity to select work
hours or location of employment.

\(3\) The term \'employee\' means any person employed by an employer.
Such term includes any person who is a citizen, national or permanent
resident alien of the United States employed in a workplace in a foreign
country by an employer that is an entity incorporated or otherwise
organized in the United States or that is controlled by an entity
organized in the United States, within the meaning of Section 4319(c) of
this title.

(4)(A) Except as provided in subparagraphs (B) and (C), the term
\'employer\' means any person, institution, organization, or other
entity that pays salary or wages for work performed or that has control
over employment opportunities, including\--

\(I\) a person, institution, organization, or other entity to whom the
employer has delegated the performance of employment-related
responsibilities;

\(ii\) the Federal Government;

\(iii\) a State;

\(iv\) any successor in interest to a person, institution, organization,
or other entity referred to in this subparagraph; and

\(v\) a person, institution, organization, or other entity that has
denied initial employment in violation of section 4311.

\(B\) In the case of a National Guard technician employed under section
709 of title 32, the term \'employer\' means the adjutant general of the
State in which the technician is employed.

[**(ISSUE CODE)**](#Issuecodes)

\(C\) Except as an actual employer of employees, an employee pension
benefit plan described in section 3(2) of the Employee Retirement Income
Security Act of 1974 (29 U.S.C.

1002(2)) shall be deemed to be an employer only with respect to the
obligation to provide benefits described in section 4318.

\(5\) The term \'Federal executive agency\' includes the United States
Postal Service, the Postal Rate Commission, any nonappropriated fund
instrumentality of the United States, any Executive agency (as that term
is defined in section 105 of title 5) other than an agency referred to
in section 2302(a)(2)(C)(ii) of title 5, and any military department (as
that term is defined in section 102 of title 5) with respect to the
civilian employees of that department.

\(6\) The term \'Federal Government\' includes any Federal executive
agency, the legislative branch of the United States, and the judicial
branch of the United States.

\(7\) The term \'health plan\' means an insurance policy or contract,
medical or hospital service agreement, membership or subscription
contract, or other arrangement under which health services for
individuals are provided or the expenses of such services are paid.

\(8\) The term \'notice\' means (with respect to subchapter II) any
written or verbal notification of an obligation or intention to perform
service in the uniformed services provided to an employer by the
employee who will perform such service or by the uniformed service in
which such service is to be performed.

\(9\) The term \'qualified\', with respect to an employment position,
means having the ability to perform the essential tasks of the position.

\(10\) The term \'reasonable efforts\', in the case of actions required
of an employer under this chapter, means actions, including training
provided by an employer, that do not place an undue hardship on the
employer.

\(11\) Notwithstanding section 101, the term \'Secretary\' means the
Secretary of Labor or any person designated by such Secretary to carry
out an activity under this chapter.

\(12\) The term \'seniority\' means longevity in employment together
with any benefits of employment which accrue with, or are determined by,
longevity in employment.

\(13\) 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, initial active duty for training, inactive duty training,
full-time National Guard, a period for which a person is absent from a
position of employment for the purpose of an examination to determine
the fitness of the employment for the purpose of performing funeral
honors duty as authorized by section 12503 of title 10 or section 115 of
title 32.

\(14\) The term \'State\' means each of the several States of the United
States, the District of Columbia, the Commonwealth of Puerto Rico, Guam,
the Virgin Islands, and other territories of the United States
(including the agencies and political subdivisions thereof).

\(15\) The term \'undue hardship\', in the case of actions taken by an
employer, means actions requiring significant difficulty or expense,
when considered in light of\--

\(A\) the nature and cost of the action needed under this chapter;

\(B\) the overall financial resources of the facility or facilities
involved in the provision of the action; the number of persons employed
at such facility; the effect on expenses and resources, or the impact
otherwise of such action upon the operation of the facility;

\(C\) the overall financial resources of the employer; the overall size
of the business of an employer with respect to the number of its
employees; the number, type, and location of its facilities; and

\(D\) the type of operation or operations of the employer, including the
composition, structure, and functions of the work force of such
employer; the geographic separateness, administrative, or fiscal
relationship of the facility or facilities in question to the employer.

\(16\) The term \'uniformed services\' means the Armed Forces, the Army
National Guard and the Air National Guard when engaged in active duty
for training, inactive duty training, or full-time National Guard duty,
the commissioned corps of the Public Health Service, and any other
category of persons designated by the President in time of war or
national emergency.

**§ 4304. Character of service**

[]{#seperation4304 .anchor}A person\'s entitlement to the benefits of
this chapter by reason of the service of such person in one of the
uniformed services terminates upon the occurrence of any of the
following events:

\(1\) A separation of such person from such uniformed service with a
dishonorable or bad conduct discharge.

\(2\) A separation of such person from such uniformed service under
other than honorable conditions, as characterized pursuant to
regulations prescribed by the Secretary concerned.

[**(ISSUE CODE)**](#Issuecodes)

\(3\) A dismissal of such person permitted under section 1161(a) of
title 10.

\(4\) A dropping of such person from the rolls pursuant to section
1161(b) of title 10.

 

**SUBCHAPTER II\--EMPLOYMENT AND REEMPLOYMENT RIGHTS AND LIMITATIONS;
PROHIBITIONS**

[]{#D4311 .anchor}**§ 4311. Discrimination against persons who serve in
the uniformed services and acts of reprisal prohibited**

\(a\) 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
employment by an employer on the basis of that membership, application
for membership, performance of service, application for service, or
obligation.

\(b\) An employer may not discriminate in employment against or take any
adverse employment action against any person because such person (1) has
taken an action to enforce a protection afforded any person under this
chapter, (2) has testified or otherwise made a statement in or in
connection with any proceeding under this chapter, (3) has assisted or
otherwise participated in an investigation under this chapter, or (4)
has exercised a right provided for in this chapter. The prohibition in
this subsection shall apply with respect to a person regardless of
whether that person has performed service in the uniformed services.

\(c\) An employer shall be considered to have engaged in actions
prohibited-

\(1\) under subsection (a), if the person\'s membership, application for
membership, service, application for service, or obligation for service
in the uniformed services is a motivating factor in the employer\'s
action, unless the employer can prove that the action would have been
taken in the absence of such membership, application for membership,
service, application for service, or obligation for service; or

\(2\) under subsection (b), if the person\'s (A) action to enforce a
protection afforded any person under this chapter, (B) testimony or
making of a statement in or in connection with any proceeding under this
chapter, (C) assistance or other participation in an investigation under
this chapter, or (D) exercise of a right provided for in this chapter,
is a motivating factor in the employer\'s action, unless the employer
can prove that the action would have been taken in the absence of such
person\'s enforcement action, testimony, statement, assistance,
participation, or exercise of a right.

\(d\) The prohibitions in subsections (a) and (b) shall apply to any
position of employment, including a position that is described in
section 4312(d)(1)(C) of this title.

**§ 4312. Reemployment rights of persons who serve in the uniformed
services**

[]{#reinstatement4312 .anchor}(a) Subject to subsections (b), (c), and
(d) and to section 4304, any person whose absence from a position of
employment is necessitated by reason of service in the uniformed
services shall be entitled to the reemployment rights and benefits and
other employment benefits of this chapter if\--

\(1\) the person (or an appropriate officer of the uniformed service in
which such service is performed) has given advance written or verbal
notice of such service to such person\'s employer;

\(2\) the cumulative length of the absence and of all previous absences
from a position of employment with that employer by reason of service in
the uniformed services does not exceed five years; and

\(3\) except as provided in subsection (f), the person reports to, or
submits an application for reemployment to, such employer in accordance
with the provisions of subsection (e).

\(b\) No notice is required under subsection (a)(1) if the giving of
such notice is precluded by military necessity or, under all of the
relevant circumstances, the giving of such notice is otherwise
impossible or unreasonable. A determination of military necessity for
the purposes of this subsection shall be made pursuant to regulations
prescribed by the Secretary of Defense and shall not be subject to
judicial review.

\(c\) Subsection (a) shall apply to a person who is absent from a
position of employment by reason of service in the uniformed services if
such person\'s cumulative period of service in the uniformed services,
with respect to the employer relationship for which a person seeks
reemployment, does not exceed five years, except that any such period of
service shall not include any service\--

\(1\) that is required, beyond five years, to complete an initial period
of obligated service;

\(2\) during which such person was unable to obtain orders releasing
such person from a period of service in the uniformed services before
the expiration of such five-year period and such inability was through
no fault of such person;

\(3\) performed as required pursuant to section 10147 of title 10, under
section 502(a) or 503 of title 32, or to fulfill additional training
requirements determined and certified in writing by the Secretary
concerned, to be necessary for professional development, or for
completion of skill training or retraining; or

[**(ISSUE CODE)**](#Issuecodes)

\(4\) performed by a member of a uniformed service who is\--

\(A\) ordered to or retained on active duty under section 688, 12301(a),
12301(g), 12302, 12304, or 12305 of title 10 or under section 331, 332,
359, 360, 367, or 712 of title 14;

\(B\) ordered to or retained on active duty (other than for training)
under any provision of law because of a war or national emergency
declared by the President or the Congress. as determined by the
Secretary concerned;

\(C\) ordered to active duty (other than for training) in support, as
determined by the Secretary concerned, of an operational mission for
which personnel have been ordered to active duty under section 12304 of
title 10;

\(D\) ordered to active duty in support, as determined by the Secretary
concerned, of a critical mission or requirement of the uniformed
services; or

\(E\) called into Federal service as a member of the National Guard
under chapter 15 of title 10 or under section 12406 of title 10.

(d)(1) An employer is not required to reemploy a person under this
chapter if\--

\(A\) the employer\'s circumstances have so changed as to make such
reemployment impossible or unreasonable;

\(B\) in the case of a person entitled to reemployment under subsection
(a)(3), (a)(4), or (b)(2)(B) of section 4313, such employment would
impose an undue hardship on the employer;

or

\(C\) the employment from which the person leaves to serve in the
uniformed services is for a brief, nonrecurrent period and there is no
reasonable expectation that such employment will continue indefinitely
or for a significant period.

\(2\) In any proceeding involving an issue of whether\--

\(A\) any reemployment referred to in paragraph (1) is impossible or
unreasonable because of a change in an employer\'s circumstances,

\(B\) any accommodation, training, or effort referred to in subsection
(a)(3), (a)(4), or (b)(2)(B) of section 4313 would impose an undue
hardship on the employer, or

\(C\) the employment referred to in paragraph (1)(C) is for a brief,
nonrecurrent period and there is no reasonable expectation that such
employment will continue indefinitely or for a significant period, the
employer shall have the burden of proving the impossibility or
unreasonableness, undue hardship, or the brief or nonrecurrent nature of
the employment without a reasonable expectation of continuing
indefinitely or for a significant period.

(e)(1) Subject to paragraph (2), a person referred to in subsection (a)
shall, upon the completion of a period of service in the uniformed
services, notify the employer referred to in such subsection of the
person\'s intent to return to a position of employment with such
employer as follows:

\(A\) In the case of a person whose period of service in the uniformed
services was less than 31 days, by reporting to the employer\--

\(I\) not later than the beginning of the first full regularly 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; or

\(ii\) as soon as possible after the expiration of the eight-hour period
referred to in clause (I), if reporting within the period referred to in
such clause is impossible or unreasonable through no fault of the
person.

\(B\) In the case of a person who is absent from a position of
employment for a period of any length for the purposes of an examination
to determine the person\'s fitness to perform service in the uniformed
services, by reporting in the manner and time referred to in
subparagraph (A).

\(C\) In the case of a person whose period of service in the uniformed
services was for more than 30 days but less than 181 days, by submitting
an application for reemployment with the employer not later than 14 days
after the completion of the period of service or if submitting such
application within such period is impossible or unreasonable through no
fault of the person, the next first full calendar day when submission of
such application becomes possible.

\(D\) In the case of a person whose period of service in the uniformed
services was for more than 180 days, by submitting an application for
reemployment with the employer not later than 90 days after the
completion of the period of service.

(2)(A) A person who is hospitalized for, or convalescing from, an
illness or injury incurred in, or aggravated during, the performance of
service in the uniformed services shall, at the end of the period that
is necessary for the person to recover from such illness or injury,
report to the person\'s employer (in the case of a person described in
subparagraph (A) or (B) of paragraph (1)) or submit an application for
reemployment with such employer (in the case of a person described in
subparagraph (C) or (D) of such paragraph). Except as provided in
subparagraph (B), such period of recovery may not exceed two years.

[**(ISSUE CODE)**](#Issuecodes)

\(B\) Such two-year period shall be extended by the minimum time
required to accommodate the circumstances beyond such person\'s control
which make reporting within the period specified in subparagraph (A)
impossible or unreasonable.

\(3\) 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 referred to in subsection (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.

(f)(1) A person who submits an application for reemployment in
accordance with subparagraph (C) or (D) of subsection (e)(1) or
subsection (e)(2) shall provide to the person\'s employer (upon the
request of such employer) documentation to establish that\--

\(A\) the person\'s application is timely;

\(B\) the person has not exceeded the service limitations set forth in
subsection (a)(2) (except as permitted under subsection (c)); and

\(C\) the person\'s entitlement to the benefits under this chapter has
not been terminated pursuant to section 4304.

\(2\) Documentation of any matter referred to in paragraph (1) that
satisfies regulations prescribed by the Secretary shall satisfy the
documentation requirements in such paragraph.

(3)(A) Except as provided in subparagraph (B), the failure of a person
to provide documentation that satisfies regulations prescribed pursuant
to paragraph (2) shall not be a basis for denying reemployment in
accordance with the provisions of this chapter if the failure occurs
because such documentation does not exist or is not readily available at
the time of the request of the employer. If, after such reemployment,
documentation becomes available that establishes that such person does
not meet one or more of the requirements referred to in subparagraphs
(A), (B), and (C) of paragraph (1), the employer of such person may
terminate the employment of the person and the provision of any rights
or benefits afforded the person under this chapter.

\(B\) An employer who reemploys a person absent from a position of
employment for more than 90 days may require that the person provide the
employer with the documentation referred to in subparagraph (A) before
beginning to treat the person as not having incurred a break in service
for pension purposes under section 4318(a)(2)(A).

\(4\) An employer may not delay or attempt to defeat a reemployment
obligation by demanding documentation that does not then exist or is not
then readily available.

\(g\) The right of a person to reemployment under this section shall not
entitle such person to retention, preference, or displacement rights
over any person with a superior claim under the provisions of title 5,
United States Code, relating to veterans and other preference eligibles.

\(h\) In any determination of a person\'s entitlement to protection
under this chapter, the timing, frequency, and duration of the person\'s
training or service, or the nature of such training or service
(including voluntary service) in the uniformed services, shall not be a
basis for denying protection of this chapter if the service does not
exceed the limitations set forth in subsection (c) and the notice
requirements established in subsection (a)(1) and the notification
requirements established in subsection (e) are met.

**§ 4313. Reemployment positions**

[]{#escalator4313 .anchor}(a) Subject to subsection (b) (in the case of
any employee) and sections 4314 and 4315 (in the case of an employee of
the Federal Government), a person entitled to reemployment under section
4312, upon completion of a period of service in the uniformed services,
shall be promptly reemployed in a position of employment in accordance
with the following order of priority:

\(1\) Except as provided in paragraphs (3) and (4), in the case of a
person whose period of service in the uniformed services was for less
than 91 days\--

\(A\) in the position of employment in which the person would have been
employed if the continuous employment of such person with the employer
had not been interrupted by such service, the duties of which the person
is qualified to perform; or

\(B\) in the position of employment 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.

\(2\) Except as provided in paragraphs (3) and (4), in the case of a
person whose period of service in the uniformed services was for more
than 90 days\--

\(A\) in the position of employment in which the person would have been
employed if the continuous employment of such person with the employer
had not been interrupted by such service, or a position of like
seniority, status and pay, the duties of which the person is qualified
to perform; or

\(B\) in the position of employment in which the person was employed on
the date of the commencement of the service in the uniformed services,
or a position of like seniority, status and pay, the duties of which the
person is qualified to perform, only if the person is not qualified to
perform the duties of a position referred to in subparagraph (A) after
reasonable efforts by the employer to qualify the person.

[**(ISSUE CODE)**](#Issuecodes)

\(3\) In the case of a person who has a disability incurred in, or
aggravated during, such service, and who (after reasonable efforts by
the employer to accommodate the disability) is not qualified due to such
disability to be employed in the position of employment in which the
person would have been employed if the continuous employment of such
person with the employer had not been interrupted by such service\--

\(A\) in any other position which is equivalent in seniority, status,
and pay, the duties of which the person is qualified to perform or would
become qualified to perform with reasonable efforts by the employer; or

\(B\) if not employed under subparagraph (A), in a position which is the
nearest approximation to a position referred to in subparagraph (A) in
terms of seniority, status, and pay consistent with circumstances of
such person\'s case.

\(4\) In the case of a person who (A) is not qualified to be employed in
(I) the position of employment in which the person would have been
employed if the continuous employment of such person with the employer
had not been interrupted by such service, or (ii) in the position of
employment in which such person was employed on the date of the
commencement of the service in the uniform services for any reason
(other than disability incurred in, or aggravated during, service in the
uniformed services), and (B) cannot become qualified with reasonable
efforts by the employer, in any other position which is the nearest
approximation to a position referred to first in clause (A)(I) and then
in clause (A)(ii) which such person is qualified to perform, with full
seniority.

(b)(1) If two or more persons are entitled to reemployment under section
4312 in the same position of employment and more than one of them has
reported for such reemployment, the person who left the position first
shall have the prior right to reemployment in that position.

\(2\) Any person entitled to reemployment under section 4312 who is not
reemployed in a position of employment by reason of paragraph (1) shall
be entitled to be reemployed as follows:

\(A\) Except as provided in subparagraph (B), in any other position of
employment referred to in subsection (a)(1) or (a)(2), as the case may
be (in the order of priority set out in the applicable subsection), that
provides a similar status and pay to a position of employment referred
to in paragraph (1) of this subsection, consistent with the
circumstances of such person\'s case, with full seniority.

\(B\) In the case of a person who has a disability incurred in, or
aggravated during, a period of service in the uniformed services that
requires reasonable efforts by the employer for the person to be able to
perform the duties of the position of employment, in any other position
referred to in subsection (a)(3) (in the order of priority set out in
that subsection) that provides a similar status and pay to a position
referred to in paragraph (1) of this subsection, consistent with
circumstances of such person\'s case, with full seniority.

**§ 4314. Reemployment by the Federal Government**

\(a\) Except as provided in subsections (b), (c), and (d), if a person
is entitled to reemployment by the Federal Government under section
4312, such person shall be reemployed in a position of employment as
described in section 4313.

(b)(1) If the Director of the Office of Personnel Management makes a
determination described in paragraph (2) with respect to a person who
was employed by a Federal executive agency at the time the person
entered the service from which the person seeks reemployment under this
section, the Director shall\--

\(A\) identify a position of like seniority, status, and pay at another
Federal executive agency that satisfies the requirements of section 4313
and for which the person is qualified; and

\(B\) ensure that the person is offered such position.

\(2\) The Director shall carry out the duties referred to in
subparagraphs (A) and (B) of paragraph (1) if the Director determines
that\--

\(A\) the Federal executive agency that employed the person referred to
in such paragraph no longer exists and the functions of such agency have
not been transferred to another Federal executive agency; or

\(B\) it is impossible or unreasonable for the agency to reemploy the
person. (c) If the employer of a person described in subsection (a) was,
at the time such person entered the service from which such person seeks
reemployment under this section, a part of the judicial branch or the
legislative branch of the Federal Government, and such employer
determines that it is impossible or unreasonable for such employer to
reemploy such person, such person shall, upon application to the
Director of the Office of Personnel Management, be ensured an offer of
employment in an alternative position in a Federal executive agency on
the basis described in subsection (b).

\(d\) If the adjutant general of a State determines that it is
impossible or unreasonable to reemploy a person who was a National Guard
technician employed under section 709 of title 32, such person shall,
upon application to the Director of the Office of Personnel Management,
be ensured an offer of employment in an alternative position in a
Federal executive agency on the basis described in subsection (b).

**§ 4315. Reemployment by certain Federal agencies**

[**(ISSUE CODE)**](#Issuecodes)

\(a\) The head of each agency referred to in section 2302(a)(2)(C)(ii)
of title 5 shall prescribe procedures for ensuring that the rights under
this chapter apply to the employees of such agency.

\(b\) In prescribing procedures under subsection (a), the head of an
agency referred to in that subsection shall ensure, to the maximum
extent practicable, that the procedures of the agency for reemploying
persons who serve in the uniformed services provide for the reemployment
of such persons in the agency in a manner similar to the manner of
reemployment described in section 4313.

(c)(1) The procedures prescribed under subsection (a) shall designate an
official at the agency who shall determine whether or not the
reemployment of a person referred to in subsection (b) by the agency is
impossible or unreasonable.

\(2\) Upon making a determination that the reemployment by the agency of
a person referred to in subsection (b) is impossible or unreasonable,
the official referred to in paragraph (1) shall notify the person and
the Director of the Office of Personnel Management of such
determination.

\(3\) A determination pursuant to this subsection shall not be subject
to judicial review.

\(4\) The head of each agency referred to in subsection (a) shall submit
to the Select Committee on Intelligence and the Committee on Veterans\'
Affairs of the Senate and the Permanent Select Committee on Intelligence
and the Committee on Veterans\' Affairs of the House of Representatives
on an annual basis a report on the number of persons whose reemployment
with the agency was determined under this subsection to be impossible or
unreasonable during the year preceding the report, including the reason
for each such determination.

(d)(1) Except as provided in this section, nothing in this section,
section 4313, or section 4325 shall be construed to exempt any agency
referred to in subsection (a) from compliance with any other substantive
provision of this chapter.

\(2\) This section may not be construed\--

\(A\) as prohibiting an employee of an agency referred to in subsection
(a) from seeking information from the Secretary regarding assistance in
seeking reemployment from the agency under this chapter, alternative
employment in the Federal Government under this chapter, or information
relating to the rights and obligations of employee and Federal agencies
under this chapter; or

\(B\) as prohibiting such an agency from voluntarily cooperating with or
seeking assistance in or of clarification from the Secretary or the
Director of the Office of Personnel Management of any matter arising
under this chapter.

\(e\) The Director of the Office of Personnel Management shall ensure
the offer of employment to a person in a position in a Federal executive
agency on the basis described in subsection (b) if\--

\(1\) the person was an employee of an agency referred to in section
2302(a)(2)(C)(ii) of title 5 at the time the person entered the service
from which the person seeks reemployment under this section;

\(2\) the appropriate officer of the agency determines under subsection
(c) that reemployment of the person by the agency is impossible or
unreasonable; and

\(3\) the person submits an application to the Director for an offer of
employment under this subsection.

**§ 4316. Rights, benefits, and obligations of persons absent from
employment for service in a uniformed service**

[]{#obligations4316 .anchor}(a) A person who is reemployed under this
chapter is entitled to the seniority and other rights and benefits
determined by seniority that the person had on the date of the
commencement of service in the uniformed services plus the additional
seniority and rights and benefits that such person would have attained
if the person had remained continuously employed.

(b)(1) Subject to paragraphs (2) through (6), a person who is absent
from a position of employment by reason of service in the uniformed
services shall be\--

\(A\) deemed to be on furlough or leave of absence while performing such
service; and

\(B\) entitled to such other rights and benefits not determined by
seniority as are generally provided by the employer of the person to
employees having similar seniority, status, and pay who are on furlough
or leave of absence under a contract, agreement, policy, practice, or
plan in effect at the commencement of such service or established while
such person performs such service.

(2)(A) Subject to subparagraph (B), a person who\--

\(I\) is absent from a position of employment by reason of service in
the uniformed services, and

\(ii\) knowingly provides written notice of intent not to return to a
position of employment after service in the uniformed service, is not
entitled to rights and benefits under paragraph (1)(B).

[**(ISSUE CODE)**](#Issuecodes)

\(B\) For the purposes of subparagraph (A), the employer shall have the
burden of proving that a person knowingly provided clear written notice
of intent not to return to a position of employment after service in the
uniformed service and, in doing so, was aware of the specific rights and
benefits to be lost under subparagraph (A).

\(3\) A person deemed to be on furlough or leave of absence under this
subsection while serving in the uniformed services shall not be entitled
under this subsection to any benefits to which the person would not
otherwise be entitled if the person had remained continuously employed.

\(4\) Such person may be required to pay the employee cost, if any, of
any funded benefit continued pursuant to paragraph (1) to the extent
other employees on furlough or leave of absence are so required.

\(5\) The entitlement of a person to coverage under a health plan is
provided for under section 4317.

\(6\) The entitlement of a person to a right or benefit under an
employee pension benefit plan is provided for under section 4318.

\(c\) A person who is reemployed by an employer under this chapter shall
not be discharged from such employment, except for cause\--

\(1\) within one year after the date of such reemployment, if the
person\'s period of service before the reemployment was more than 180
days; or

\(2\) within 180 days after the date of such reemployment, if the
person\'s period of service before the reemployment was more than 30
days but less than 181 days.

\(d\) Any person whose employment with an employer is interrupted by a
period of service in the uniformed services shall be permitted, upon
request of that person, to use during such period of service any
vacation, annual, or similar leave with pay accrued by the person before
the commencement of such service. No employer may require any such
person to use vacation, annual, or similar leave during such period of
service.

(e)(1) An employer shall grant an employee who is a member of a reserve
component an authorized leave of absence from a position of employment
to allow that employee to perform funeral honors duty as authorized by
section 12503 of title 10 or section 115 of title 32.

(e)(2) For the purposes of section 4312(e)(1) of this title, an employee
who takes an authorized leave of absence under paragraph (1) is deemed
to have notified the employer of the employee\'s intent to return to
such position of employment.

**§ 4317. Health plans**

[]{#health4317 .anchor}(a)(1) In any case in which a person (or the
person\'s dependents) has coverage under a health plan in connection
with the person\'s position of employment, including a group health plan
(as defined in section 607(1) of the Employee Retirement Income Security
Act of 1974), and such person is absent from such position of employment
by reason of service in the uniformed services, or such person becomes
eligible for medical and dental care under chapter 55 of title 10 by
reason of subsection (d) of section 1074 of that title, the plan shall
provide that the person may elect to continue such coverage as provided
in this subsection. The maximum period of coverage of a person and the
person\'s dependents under such an election shall be the lesser of\--

\(A\) the 24-month period beginning on the date on which the person\'s
absence begins; or

\(B\) the day after the date on which the person fails to apply for or
return to a position of employment, as determined under section 4312(e).

\(2\) A person who elects to continue health-plan coverage under this
paragraph may be required to pay not more than 102 percent of the full
premium under the plan (determined in the same manner as the applicable
premium under section 4980B(f)(4) of the Internal Revenue Code of 1986)
associated with such coverage for the employer\'s other employees,
except that in the case of a person who performs service in the
uniformed services for less than 31 days, such person may not be
required to pay more than the employee share, if any, for such coverage.

\(3\) In the case of a health plan that is a multiemployer plan, as
defined in section 3(37) of the Employee Retirement Income Security Act
of 1974, any liability under the plan for employer contributions and
benefits arising under this paragraph shall be allocated\--

\(A\) by the plan in such manner as the plan sponsor shall provide; or

\(B\) if the sponsor does not provide\--

\(I\) to the last employer employing the person before the period served
by the person in the uniformed services, or

\(ii\) if such last employer is no longer functional, to the plan.

[**(ISSUE CODE)**](#Issuecodes)

(b)(1) Except as provided in paragraph (2), in the case of a person
whose coverage under a health plan was terminated by reason of service
in the uniformed services, or by reason of the person's having become
eligible for medical and dental care under chapter 55 of title 10 by
reason of subsection (d) of section 1074 of that title, an exclusion or
waiting period may not be imposed in connection with the reinstatement
of such coverage upon reemployment under this chapter if an exclusion or
waiting period would not have been imposed under a health plan had
coverage of such person by such plan not been terminated as a result of
such service or eligibility. This paragraph applies to the person who is
reemployed and to any individual who is covered by such plan by reason
of the reinstatement of the coverage of such person.

\(2\) Paragraph (1) shall not apply to the coverage of any illness or
injury determined by the Secretary of Veterans Affairs to have been
incurred in, or aggravated during, performance of service in the
uniformed services.

\(3\) In the case of a person whose coverage under a health plan is
terminated by reason of the person having become eligible for medical
and dental care under chapter 55 of title 10 by reason of subsection (d)
of section 1074 of that title but who subsequently does not commence a
period of active duty under the order to active duty that established
such eligibility because the order is canceled before such active duty
commences, the provisions of paragraph (1) relating to any exclusion or
waiting period in connection with the reinstatement of coverage under a
health plan shall apply to such person's continued employment, upon the
termination of such eligibility for medical and dental care under
chapter 55 of title 10 that is incident to the cancellation of such
order, in the same manner as if the person had become reemployed upon
such termination of eligibility.

**Sec. 4318. Employee pension benefit plans**

[]{#pension4318 .anchor}(a)(1)(A) Except as provided in subparagraph
(B), in the case of a right provided pursuant to an employee pension
benefit plan (including those described in sections 3(2) and 3(33) of
the Employee Retirement Income Security Act of 1974) or a right provided
under any Federal or State law governing pension benefits for
governmental employees, the right to pension benefits of a person
reemployed under this chapter shall be determined under this section.

\(B\) In the case of benefits under the Thrift Savings Plan, the rights
of a person reemployed under this chapter shall be those rights provided
in section 8432b of title 5. The first sentence of this subparagraph
shall not be construed to affect any other right or benefit under this
chapter.

(2)(A) A person reemployed under this chapter shall be treated as not
having incurred a break in service with the employer or employers
maintaining the plan by reason of such person\'s period or periods of
service in the uniformed services.

\(B\) Each period served by a person in the uniformed services shall,
upon reemployment under this chapter, be deemed to constitute service
with the employer or employers maintaining the plan for the purpose of
determining the nonforfeitability of the person\'s accrued benefits and
for the purpose of determining the accrual of benefits under the plan.

(b)(1) An employer reemploying a person under this chapter shall, with
respect to a period of service described in subsection (a)(2)(B), be
liable to an employee pension benefit plan for funding any obligation of
the plan to provide the benefits described in subsection (a)(2) and
shall allocate the amount of any employer contribution for the person in
the same manner and to the same extent the allocation occurs for other
employees during the period of service. For purposes of determining the
amount of such liability and any obligation of the plan, earnings and
forfeitures shall not be included. For purposes of determining the
amount of such liability and for purposes of section 515 of the Employee
Retirement Income Security Act of 1974 or any similar Federal or State
law governing pension benefits for governmental employees, service in
the uniformed services that is deemed under subsection (a) to be service
with the employer shall be deemed to be service with the employer under
the terms of the plan or any applicable collective bargaining agreement.
In the case of a multiemployer plan, as defined in section 3(37) of the
Employee Retirement Income Security Act of 1974, any liability of the
plan described in this paragraph shall be allocated\--

\(A\) by the plan in such manner as the sponsor maintaining the plan
shall provide; or

\(B\) if the sponsor does not provide\--

\(I\) to the last employer employing the person before the period served
by the person in the uniformed services, or

\(ii\) if such last employer is no longer functional, to the plan.

\(2\) A person reemployed under this chapter shall be entitled to
accrued benefits pursuant to subsection (a) that are contingent on the
making of, or derived from, employee contributions or elective deferrals
(as defined in section 402(g)(3) of the Internal Revenue Code of 1986)
only to the extent the person makes payment to the plan with respect to
such contributions or deferrals. No such payment may exceed the amount
the person would have been permitted or required to contribute had the
person remained continuously employed by the employer throughout the
period of service described in subsection (a)(2)(B). Any payment to the
plan described in this paragraph shall be made during the period
beginning with the date of reemployment and whose duration is three
times the period of the person\'s services in the uniformed services,
such payment period not to exceed five years.

\(3\) For purposes of computing an employer\'s liability under paragraph
(1) or the employee\'s contributions under paragraph (2), the
employee\'s compensation during the period of service described in
subsection (a)(2)(B) shall be computed---

[**(ISSUE CODE)**](#Issuecodes)

\(A\) at the rate the employee would have received but for the period of
service described in subsection (a)(2)(B), or

\(B\) in the case that the determination of such rate is not reasonably
certain, on the basis of the employee\'s average rate of compensation
during the 12-month period immediately preceding such period (or, if
shorter, the period of employment immediately preceding such period).

\(c\) Any employer who reemploys a person under this chapter and who is
an employer contributing to a multiemployer plan, as defined in section
3(37) of the Employee Retirement Income Security Act of 1974, under
which benefits are or may be payable to such person by reason of the
obligations set forth in this chapter, shall, within 30 days after the
date of such reemployment, provide information, in writing, of such
reemployment to the administrator of such plan.

**Sec. 4319. Employment and reemployment rights in foreign countries.**

\(a\) LIABILITY OF CONTROLLING UNITED STATES EMPLOYER OF FOREIGN ENTITY-
If an employer controls an entity that is incorporated or otherwise
organized in a foreign country, any denial of employment, reemployment,
or benefit by such entity shall be presumed to be by such employer.

\(b\) INAPPLICABILITY TO FOREIGN EMPLOYER- This subchapter does not
apply to foreign operations of an employer that is a foreign person not
controlled by or United States employer.

\(c\) DETERMINATION OF CONTROLLING EMPLOYER- For the purpose of this
section, the determination of whether an employer controls an entity
shall be based upon the interrelations of operations, common management,
centralized control of labor relations, and common ownership or
financial control of the employer and the entity.

\(d\) EXEMPTION- Notwithstanding any other provision of this subchapter,
an employer, or an entity controlled by an employer, shall be exempt
from compliance with any of section 4311 through 4318 of this title with
respect to an employee in a workplace in a foreign country, if comliance
with that section would cause such employer, or such entity controlled
by an employer, to violate the law of the foreign country in which the
workplace islocated.\'.

**SUBCHAPTER III\--PROCEDURES FOR ASSISTANCE, ENFORCEMENT, AND
INVESTIGATION**

**§ 4321. Assistance in obtaining reemployment or other employment
rights or benefits**

The Secretary (through the Veterans\' Employment and Training Service)
shall provide assistance to any person with respect to the employment
and reemployment rights and benefits to which such person is entitled
under this chapter. In providing such assistance, the Secretary may
request the assistance of existing Federal and State agencies engaged in
similar or related activities and utilize the assistance of volunteers.

**§ 4322. Enforcement of employment or reemployment rights**

\(a\) A person who claims that\--

\(1\) such person is entitled under this chapter to employment or
reemployment rights or benefits with respect to employment by an
employer; and

(2)(A) such employer has failed or refused, or is about to fail or
refuse, to comply with the provisions of this chapter; or

\(B\) in the case that the employer is a Federal executive agency, such
employer or the Office of Personnel Management has failed or refused, or
is about to fail or refuse, to comply with the provisions of this
chapter, may file a complaint with the Secretary in accordance with
subsection (b), and the Secretary shall investigate such complaint.

\(b\) Such complaint shall be in writing, be in such form as the
Secretary may prescribe, include the name and address of the employer
against whom the complaint is filed, and contain a summary of the
allegations that form the basis for the complaint.

\(c\) The Secretary shall, upon request, provide technical assistance to
a potential claimant with respect to a complaint under this subsection,
and when appropriate, to such claimant\'s employer.

\(d\) The Secretary shall investigate each complaint submitted pursuant
to subsection (a). If the Secretary determines as a result of the
investigation that the action alleged in such complaint occurred, the
Secretary shall attempt to resolve the complaint by making reasonable
efforts to ensure that the person or entity named in the complaint
complies with the provisions of this chapter.

\(e\) If the efforts of the Secretary with respect to any complaint
filed under subsection (a) do not resolve the complaint, the Secretary
shall notify the person who submitted the complaint of\--

\(1\) the results of the Secretary\'s investigation; and

[**(ISSUE CODE)**](#Issuecodes)

\(2\) the complainant\'s entitlement to proceed under the enforcement of
rights provisions provided under section 4323 (in the case of a person
submitting a complaint against a State or private employer) or section
4324 (in the case of a person submitting a complaint against a Federal
executive agency or the Office of Personnel Management).

\(f\) This subchapter does not apply to any action relating to benefits
to be provided under the Thrift Savings Plan under title 5.

**§ 4323. Enforcement of rights with respect to a State or private
employer**

\(a\) ACTION FOR RELIEF-(1) A person who receives from the Secretary a
notification pursuant to section 4322(e) of this title of an
unsuccessful effort to resolve a complaint relating to a State (as an
employer) or a private employer may request that the Secretary refer the
complaint to the Attorney General. If the Attorney General is
responsibly satisfied that the person on whose behalf the complaint is
referred is entitled to the rights or benefits sought, the Attorney
General may appear on behalf of, and act as attorney for, the person on
whose behalf the complaint is submitted and commence an action for
relief under this chapter for such person. In the case of such an action
against a State (as an employer), the action shall be brought in the
name of the United States as the plaintiff in the action.

\(2\) A person may commence an action for relief with respect to a
complaint against a State (as an employer) or a private employer if the
person\--

\(A\) has chosen not to apply to the Secretary for assistance under
section 4322(a) of this title;

\(B\) has chosen not to request that the Secretary refer the complaint
to the Attorney General under paragraph (1); or

\(C\) has been refused representation by the Attorney General with
respect to the complaint under such paragraph .

\(b\) JURISDICTION-(1) In the case of an action against a State (as an
employer) or a private employer commenced by the United States, the
district courts of the United States shall have jurisdiction over the
action.

\(2\) In the case of action against a State (as an employer) by a
person, the action may be brought in a State court of competent
jurisdiction in accordance with the laws of the State.

\(3\) In the case of an action against a private employer by a person,
the district courts of the United States shall have jurisdiction of the
action.

\(c\) VENUE-(1) In the case of an action by the United States against a
State (as an employer), the action may proceed in the United States
district court for any district in which the State exercises any
authority or carries out any function.

\(2\) In the case of an action against a private employer, the action
may proceed in the United States district court for any district in
which the private employer of the person maintains a place of business.

\(d\) REMEDIES-(1) In any action under this section, the court may award
relief as follows:

\(A\) The court may require the employer to comply with the provisions
of this chapter.

\(B\) The court may require the employer to compensate the person for
any loss of wages or benefits suffered by reason of such employer\'s
failure to comply with the provisions of this chapter.

\(C\) The court may require the employer to pay the person an amount
equal to the amount referred to in subparagraph (B) as liquidated
damages, if the court determines that the employer\'s failure to comply
with the provisions of this chapter was willful.

(2)(A) Any compensation awarded under subparagraph (B) or (C) of
paragraph (1) shall be in addition to, and shall not diminish, any of
the other rights and benefits provided for under this chapter.

\(B\) In the case of an action commenced in the name of the United
States for which the relief includes compensation awarded under
subparagraph (B) or (C) of paragraph (1), such compensation shall be
held in a special deposit account and shall be paid, on order of the
Attorney General, directly to the person. If the compensation is not
paid to the person because of inability to do so within a period of 3
years, the compensation shall be converted into the Treasury of the
United States as miscellaneous receipts.

\(3\) A State shall be subject to the same remedies, including
prejudgment interest, as may be imposed upon any private employer under
this section.

\(e\) EQUITY POWERS- The court may use its full equity powers, including
temporary or permanent injunctions, temporary restraining orders, and
contempt orders, to vindicate fully the rights of benefits of persons
under this chapter.

\(f\) STANDING- An action under this chapter may be initiated only by a
person claiming rights or benefits under this chapter under subsection
(a) or by the United States under subsection (a)(1).

[**(ISSUE CODE)**](#Issuecodes)

\(g\) RESPONDENT- In any action under this chapter, only an employer or
a potential employer, as the case may be, shall be a necessary party
respondent.

\(h\) FEES, COURT COSTS- (1) No fees or court costs may be charged or
taxed against any person claiming rights under this chapter.

\(2\) In any action or proceeding to enforce a provision of this chapter
by a person under subsection (a)(2) who obtained private counsel for
such action or proceeding, the court may award any such person who
prevails in such action or proceeding reasonable attorney fees, expert
witness fees, and other litigation expenses.

\(i\) INAPPLICABILITY OF STATE STATUTE OF LIMITATIONS- No State statute
of limitations shall apply to any proceeding under this chapter.

\(j\) DEFINITION- In this section, the term \'private employer\'
includes a political subdivision of a State.\'.

**§ 4324. Enforcement of rights with respect to Federal executive
agencies**

(a)(1) A person who receives from the Secretary a notification pursuant
to section 4322(e) may request that the Secretary refer the complaint
for litigation before the Merit Systems Protection Board. The Secretary
shall refer the complaint to the Office of Special Counsel established
by section 1211 of title 5.

(2)(A) If the Special Counsel is reasonably satisfied that the person on
whose behalf a complaint is referred under paragraph (1) is entitled to
the rights or benefits sought, the Special Counsel (upon the request of
the person submitting the complaint) may appear on behalf of, and act as
attorney for, the person and initiate an action regarding such complaint
before the Merit Systems Protection Board.

\(B\) If the Special Counsel declines to initiate an action and
represent a person before the Merit Systems Protection Board under
subparagraph (A), the Special Counsel shall notify such person of that
decision.

\(b\) A person may submit a complaint against a Federal executive agency
or the Office of Personnel Management under this subchapter directly to
the Merit Systems Protection Board if that person\--

\(1\) has chosen not to apply to the Secretary for assistance under
section 4322(a);

\(2\) has received a notification from the Secretary under section
4322(e);

\(3\) has chosen not to be represented before the Board by the Special
Counsel pursuant to subsection (a)(2)(A); or

\(4\) has received a notification of a decision from the Special Counsel
under subsection (a)(2)(B).

(c)(1) The Merit Systems Protection Board shall adjudicate any complaint
brought before the Board pursuant to subsection (a)(2)(A) or (b),
without, regard as to whether the complaint accured before, on, or after
October 13, 1994. A person who seeks a hearing or adjudication by
submitting such a complaint under this paragraph may be represented at
such hearing or adjudication in accordance with the rules of the Board.

\(2\) If the Board determines that a Federal executive agency or the
Office of Personnel Management has not complied with the provisions of
this chapter relating to the employment or reemployment of a person by
the agency, the Board shall enter an order requiring the agency or
Office to comply with such provisions and to compensate such person for
any loss of wages or benefits suffered by such person by reason of such
lack of compliance.

\(3\) Any compensation received by a person pursuant to an order under
paragraph (2) shall be in addition to any other right or benefit
provided for by this chapter and shall not diminish any such right or
benefit.

\(4\) If the Board determines as a result of a hearing or adjudication
condaccrueducted pursuant to a complaint submitted by a person directly
to the Board pursuant to subsection (b) that such person is entitled to
an order referred to in paragraph (2), the Board may, in its discretion,
award such person reasonable attorney fees, expert witness fees, and
other litigation expenses.

(d)(1) A person adversely affected or aggrieved by a final order or
decision of the Merit Systems Protection Board under subsection (c) may
petition the United States Court of Appeals for the Federal Circuit to
review the final order or decision. Such petition and review shall be in
accordance with the procedures set forth in section 7703 of title 5.

\(2\) Such person may be represented in the Federal Circuit proceeding
by the Special Counsel unless the person was not represented by the
Special Counsel before the Merit Systems Protection Board regarding such
order or decision.

**§ 4325. Enforcement of rights with respect to certain Federal
agencies**

\(a\) This section applies to any person who alleges that---

[**(ISSUE CODE)**](#Issuecodes)

\(1\) the reemployment of such person by an agency referred to in
subsection (a) of section 4315 was not in accordance with procedures for
the reemployment of such person under subsection (b) of such section; or

\(2\) the failure of such agency to reemploy the person under such
section was otherwise wrongful.

\(b\) Any person referred to in subsection (a) may submit a claim
relating to an allegation referred to in that subsection to the
inspector general of the agency which is the subject of the allegation.
The inspector general shall investigate and resolve the allegation
pursuant to procedures prescribed by the head of the agency.

\(c\) In prescribing procedures for the investigation and resolution of
allegations under subsection (b), the head of an agency shall ensure, to
the maximum extent practicable, that the procedures are similar to the
procedures for investigating and resolving complaints utilized by the
Secretary under section 4322(d).

\(d\) This section may not be construed\--

\(1\) as prohibiting an employee of an agency referred to in subsection
(a) from seeking information from the Secretary regarding assistance in
seeking reemployment from the agency under this chapter, or information
relating to the rights and obligations of employees and Federal agencies
under this chapter; or

\(2\) as prohibiting such an agency from voluntarily cooperating with or
seeking assistance in or of clarification from the Secretary or the
Director of the Office of Personnel Management of any matter arising
under this chapter.

**§ 4326. Conduct of investigation; subpoenas**

\(a\) In carrying out any investigation under this chapter, the
Secretary\'s duly authorized representatives shall, at all reasonable
times, have reasonable access to and the right to interview persons with
information relevant to the investigation and shall have reasonable
access to, for purposes of examination, and the right to copy and
receive, any documents of any person or employer that the Secretary
considers relevant to the investigation.

\(b\) In carrying out any investigation under this chapter, the
Secretary may require by subpoena the attendance and testimony of
witnesses and the production of documents relating to any matter under
investigation. In case of disobedience of the subpoena or contumacy and
on request of the Secretary, the Attorney General may apply to any
district court of the United States in whose jurisdiction such
disobedience or contumacy occurs for an order enforcing the subpoena.

\(c\) Upon application, the district courts of the United States shall
have jurisdiction to issue writs commanding any person or employer to
comply with the subpoena of the Secretary or to comply with any order of
the Secretary made pursuant to a lawful investigation under this chapter
and the district courts shall have jurisdiction to punish failure to
obey a subpoena or other lawful order of the Secretary as a contempt of
court.

\(d\) Subsections (b) and (c) shall not apply to the legislative branch
or the judicial branch of the United States.

**SUBCHAPTER IV\--MISCELLANEOUS PROVISIONS**

**§ 4331. Regulations**

\(a\) The Secretary (in consultation with the Secretary of Defense) may
prescribe regulations implementing the provisions of this chapter with
regard to the application of this chapter to States, local governments,
and private employers.

(b)(1) The Director of the Office of Personnel Management (in
consultation with the Secretary and the Secretary of Defense) may
prescribe regulations implementing the provisions of this chapter with
regard to the application of this chapter to Federal executive agencies
(other than the agencies referred to in paragraph (2)) as employers.
Such regulations shall be consistent with the regulations pertaining to
the States as employers and private employers, except that employees of
the Federal Government may be given greater or additional rights.

\(2\) The following entities may prescribe regulations to carry out the
activities of such entities under this chapter:

\(A\) The Merit Systems Protection Board.

\(B\) The Office of Special Counsel.

\(C\) The agencies referred to in section 2303(a)(2)(C)(ii) of title 5.

**§ 4332. Reports**

The Secretary shall, after consultation with the Attorney General and
the Special Counsel referred to in section 4324(a)(1) and no later than
February 1, 2005, and annually thereafter, transmit to the Congress, a
report containing the following matters for the fiscal year ending
before such February 1:

\(1\) The number of cases reviewed by the Department of Labor under this
chapter during the fiscal year for which the report is made.

[**(ISSUE CODE)**](#Issuecodes)

\(2\) The number of cases referred to the Attorney General or the
Special Counsel pursuant to section 4323 or 4324, respectively, during
such fiscal year.

\(3\) The number of complaints filed by the Attorney General pursuant to
section 4323 during such fiscal year.

\(4\) The nature and status of each case reported on pursuant to
paragraph (1), (2), or (3).

\(5\) An indication of whether there are any apparent patterns of
violation of the provisions of this chapter, together with an
explanation thereof.

\(6\) Recommendations for administrative or legislative action that the
Secretary, the Attorney General, or the Special Counsel considers
necessary for the effective implementation of this chapter, including
any action that could be taken to encourage mediation, before claims are
filed under this chapter, between employers and persons seeking
employment or reemployment.

**§ 4333. Outreach**

The Secretary, the Secretary of Defense, and the Secretary of Veterans
Affairs shall take such actions as such Secretaries determine are
appropriate to inform persons entitled to rights and benefits under this
chapter and employers of the rights, benefits, and obligations of such
persons and such employers under this chapter.

**§ 4334. Notice of rights and duties**

\(a\) Requirement to provide notice.\--Each employer shall provide to
persons entitled to rights and benefits under this chapter a notice of
the rights, benefits, and obligations of such persons and such employers
under this chapter. The requirement for the provision of notice under
this section may be met by the posting of the notice where employers
customarily place notices for employees.

\(b\) Content of notice.\--The Secretary shall provide to employers the
text of the notice to be provided under this section.

**5 CFR**

**(Section 353)**

**USERRA Regulations Applicable to Federal Executive Branch Employers**

[**(ISSUE CODE)**](#Issuecodes)

**Authority:**   38 U.S.C. 4301 et. seq., and 5 U.S.C. 8151.

**Source:**   60 FR 45652, Sept. 1, 1995, unless otherwise noted.

##### Subpart A---General Provisions {#subpart-ageneral-provisions .unnumbered}

##### § 353.101   Scope. {#scope. .unnumbered}

The rights and obligations of employees and agencies in connection with
leaves of absence or restoration to duty following uniformed service
under 38 U.S.C. 4301 et. seq., and restoration under 5 U.S.C. 8151 for
employees who sustain compensable injuries, are subject to the
provisions of this part. Subpart A covers those provisions that are
common to both of the above groups of employees. Subpart B deals with
provisions that apply just to uniformed service and subpart C covers
provisions that pertain just to injured employees.

##### § 353.102   Definitions. {#definitions. .unnumbered}

In this part:

*Agency* means.

\(1\) With respect to restoration following a compensable injury, any
department, independent establishment, agency, or corporation in the
executive branch, including the U.S. Postal Service and the Postal Rate
Commission, and any agency in the legislative or judicial branch; and

\(2\) With respect to uniformed service, an executive agency as defined
in 5 U.S.C. 105 (other than an intelligence agency referred to in 5
U.S.C. 2302(a)(2)(C)(ii), including the U.S. Postal Service and Postal
Rate Commission, a nonappropriated fund instrumentality of the United
States, or a military department as defined in 5 U.S.C. 102. In the case
of a National Guard technician employed under 32 U.S.C. 709, the
employing agency is the adjutant general of the State in which the
technician is employed.

*Fully recovered* means compensation payments have been terminated on
the basis that the employee is able to perform all the duties of the
position he or she left or an equivalent one.

*Injury* means a compensable injury sustained under the provisions of 5
U.S.C. chapter 81, subchapter 1, and includes, in addition to accidental
injury, a disease proximately caused by the employment.

*Leave of absence* means military leave, annual leave, without pay
(LWOP), furlough, continuation of pay, or any combination of these.

*Military leave* means paid leave provided to Reservists and members of
the National Guard under 5 U.S.C. 6323.

*Notice* means any written or verbal notification of an obligation or
intention to perform service in the uniformed services provided to an
agency by the employee performing the service or by the uniformed
service in which the service is to be performed.

*Partially recovered* means an injured employee, though not ready to
resume the full range of his or her regular duties, has recovered
sufficiently to return to part-time or light duty or to another position
with less demanding physical requirements. Ordinarily, it is expected
that a partially recovered employee will fully recover eventually.

*Physically disqualified* means that:

(1)(i) For medical reasons the employee is unable to perform the duties
of the position formerly held or an equivalent one, or

\(ii\) There is a medical reason to restrict the individual from some or
all essential duties because of possible incapacitation (for example, a
seizure) or because of risk of health impairment (such as further
exposure to a toxic substance for an individual who has already shown
the effects of such exposure).

\(2\) The condition is considered permanent with little likelihood for
improvement or recovery.

*Reasonable efforts* in the case of actions required by an agency for a
person returning from uniformed service means actions, including
training, that do not place an undue hardship on the agency.

*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, initial
active duty for training, inactive duty training, full-time National
Guard duty, and a period for which a person is absent from employment
for the purpose of examination to determine fitness to perform such
duty.

*Status* means the particular attributes of a specific position. This
includes the rank or responsibility of the position, its duties, working
conditions, pay, tenure, and seniority.

*Undue hardship* means actions taken by an agency requiring significant
difficulty or expense, when considered in light of---

\(1\) The nature and cost of actions needed under this part;

\(2\) The overall financial resources of the facility involved in taking
the action; the number of persons employed at the facility; the effect
on expenses and resources, or the impact otherwise of the action on the
operation of the facility; and

\(3\) The overall size of the agency with respect to the number of
employees, the number, type, and location of its facilities and type of
operations, including composition, structure, and functions of the work
force.

*Uniformed services* means the Armed Forces, the Army National Guard and
the Air National Guard when engaged in active duty for training,
inactive duty training, or full-time National Guard duty, the
Commissioned Corps of the Public Health Service, and any other category
of persons designated by the President in time of war or emergency.

[**(ISSUE CODE)**](#Issuecodes)

##### § 353.103   Persons covered. {#persons-covered. .unnumbered}

\(a\) The provisions of this part pertaining to the uniformed services
cover each agency employee who enters into such service regardless of
whether the employee is located in the United States or overseas.
However, an employee serving under a time-limited appointment completes
any unexpired portion of his or her appointment upon return from
uniformed service.

\(b\) The provisions of this part concerning employee injury cover a
civil officer or employee in any branch of the Government of the United
States, including an officer or employee of an instrumentally wholly
owned by the United States, who was separated or furloughed from an
appointment without time limitation, or from a temporary appointment
pending establishment of a register (TAPER) as a result of a compensable
injury; but do not include---

\(1\) A commissioned officer of the Regular Corps of the Public Health
Service;

\(2\) A commissioned officer of the Reserve Corps of the Public Health
Service on active duty; or

\(3\) A commissioned officer of the National Oceanic and Atmospheric
Administration.

\[60 FR 45652, Sept. 1, 1995, as amended at 64 FR 31487, June 11, 1999\]

##### § 353.104   Notification of rights and obligations. {#notification-of-rights-and-obligations. .unnumbered}

When an agency separates, grants a leave of absence, restores or fails
to restore an employee because of uniformed service or compensable
injury, it shall notify the employee of his or her rights, obligations,
and benefits relating to Government employment, including any appeal and
grievance rights. However, regardless of notification, an employee is
still required to exercise due diligence in ascertaining his or her
rights, and to seek reemployment within the time limits provided by
chapter 43 of title 38, United States Code, for restoration after
uniformed service, or as soon as he or she is able after a compensable
injury.

##### § 353.105   Maintenance of records. {#maintenance-of-records. .unnumbered}

Each agency shall identify the position vacated by an employee who is
injured or leaves to enter uniformed service. It shall also maintain the
necessary records to ensure that all such employees are preserved the
rights and benefits granted by law and this part.

##### § 353.106   Personnel actions during employee\'s absence. {#personnel-actions-during-employees-absence. .unnumbered}

\(a\) An employee absent because of service in the uniformed services is
to be carried on leave without pay unless the employee elects to use
other leave or freely and knowingly provides written notice of intent
not to return to a position of employment with the agency, in which case
the employee can be separated. (Note:A separation under this provision
affects only the employee\'s seniority while gone; it does not affect
his or her restoration rights.)

\(b\) An employee absent because of compensable injury may be carried on
leave without pay or separated unless the employee elects to use sick or
annual leave.

\(c\) Agency promotion plans must provide a mechanism by which employees
who are absent because of compensable injury or uniformed service can be
considered for promotion. In addition, agencies have an obligation to
consider employees absent on military duty for any incident or advantage
of employment that they may have been entitled to had they not been
absent. This is determined by:

\(1\) Considering whether the "incident or advantage" is one generally
granted to all employees in that workplace and whether it was denied
solely because of absence for military service;

\(2\) Considering whether the person absent on military duty was treated
the same as if the person had remained at work; and

\(3\) Considering whether it was reasonably certain that the benefit
would have accrued to the employee but for the absence for military
service.

\[60 FR 45652, Sept. 1, 1995, as amended at 64 FR 31487, June 11, 1999\]

##### § 353.107   Service credit upon reemployment. {#service-credit-upon-reemployment. .unnumbered}

[]{#OPM107 .anchor}Upon reemployment, an employee absent because of
uniformed service or compensable injury is generally entitled to be
treated as though he or she had never left. This means that a person who
is reemployed following uniformed service or full recovery from
compensable injury receives credit for the entire period of the absence
for purposes of rights and benefits based upon seniority and length of
service, including within-grade increases, career tenure, completion of
probation, leave rate accrual, and severance pay.

##### § 353.108   Effect of performance and conduct on restoration rights. {#effect-of-performance-and-conduct-on-restoration-rights. .unnumbered}

The laws covered by this part do not permit an agency to circumvent the
protections afforded by other laws to employees who face the involuntary
loss of their positions. Thus, an employee may not be denied restoration
rights because of poor performance or conduct that occurred prior to the
employee\'s departure for compensable injury or uniformed service.
However, separation for cause that is substantially unrelated to the
injury or to the performance of uniformed service negates restoration
rights. Additionally, if during the period of injury or uniformed
service the employee\'s conduct is such that it would disqualify him or
her for employment under OPM or agency regulations, restoration rights
may be denied.

##### § 353.109   Transfer of function to another agency. {#transfer-of-function-to-another-agency. .unnumbered}

If the function of an employee absent because of uniformed service or
compensable injury is transferred to another agency, and if the employee
would have been transferred with the function under part 351 of this
chapter had he or she not been absent, the employee is entitled to be
placed in a position in the gaining agency that is equivalent to the one
he or she left. It shall also assume the obligation to restore the
employee in accordance with law and this part.

##### § 353.110   OPM placement assistance. {#opm-placement-assistance. .unnumbered}

\(a\) *Employee returning from uniformed service.* (1) OPM will offer
placement in the executive branch to the following categories of
employees upon notification by the agency and application by the
employee: (Such notification should be sent to the Associate Director
for Employment, OPM, 1900 E Street, NW., Washington, DC 20415.)

[**(ISSUE CODE)**](#Issuecodes)

\(i\) Executive branch employees (other than an employee of an
intelligence agency) when *OPM determines* that:

\(A\) their agencies no longer exist and the functions have not been
transferred, or;

\(B\) it is otherwise impossible or unreasonable for their former
agencies to place them;

\(ii\) Legislative and judicial branch employees when *their employers*
determine that it is impossible or unreasonable to reemploy them;

\(iii\) National Guard technicians when the Adjutant General of a State
determines that it is impossible or unreasonable to reemploy a
technician otherwise eligible for restoration under 38 U.S.C. 4304 and
4312 (pertaining to character and length of service), and the technician
is a noncareer military member who was separated invountarily from the
Guard for reasons beyond his or her control; and

\(iv\) Employees of the intelligence agencies (defined in 5 U.S.C.
2302(a)(2)(C)(ii)) when *their agencies* determine that it is impossible
or unreasonable to reemploy them.

\(2\) OPM will determine if a vacant position equivalent (in terms of
pay, grade, and status) to the one the individual left exists, for which
the individual is qualified, in the commuting area in which he or she
was employed immediately before entering the uniformed services. If such
a vacancy exists, OPM will order the agency to place the individual. If
no such position is available, the individual may elect to be placed in
a lesser position in the commuting area, or OPM will attempt to place
the individual in an equivalent position in another geographic location
determined by OPM. If the individual declines an offer of equivalent
employment, he or she has no further restoration rights.

\(b\) Employee returning from compensable injury. OPM will provide
placement assistance to an employee with restoration rights in the
executive, legislative, or judicial branches who cannot be placed in his
or her former agency and who either has competitive status or is
eligible to acquire it under 5 U.S.C. 3304(C). If the employee\'s agency
is abolished and its functions are not transferred, or it is not
possible for the employee to be restored in his or her former agency,
the employee is eligible for placement assistance under the Interagency
Career Transition Assistance Plan (ICTAP) under part 330, subpart G, of
this chapter. This paragraph does not apply to an employee serving under
a temporary appointment pending establishment of a register (TAPER).

\[60 FR 45652, Sept. 1, 1995, as amended at 64 FR 31487, June 11, 1999;
66 FR 29897, June 4, 2001\]

##### Subpart B---Uniformed Service {#subpart-buniformed-service .unnumbered}

##### § 353.201   Introduction. {#introduction. .unnumbered}

The Uniformed Services Employment and Reemployment Rights Act of 1994
revised and strengthened the existing Veterans\' Reemployment Rights
law, made the Department of Labor responsible for investigating employee
complaints, required OPM to place certain returning employees in other
agencies, established a separate restoration rights program for
employees of the intelligence agencies, and altered the appeals rights
process. The new law applies to persons exercising restoration rights on
or after December 12, 1994.

##### § 353.202   Discrimination and acts of reprisal prohibited. {#discrimination-and-acts-of-reprisal-prohibited. .unnumbered}

[]{#OPM202 .anchor}A person who seeks or holds a position in the
Executive branch may not be denied hiring, retention in employment, or
any other incident or advantage of employment because of any
application, membership, or service in the uniformed services.
Furthermore, an agency may not take any reprisal against an employee for
taking any action to enforce a protection, assist or participate in an
investigation, or exercise any right provided for under chapter 43 of
title 38, United States Code.

##### § 353.203   Length of service. {#length-of-service. .unnumbered}

[]{#OPM203 .anchor} (a) *Counting service after the effective date of
USERRA (12/12/94).* 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. 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;

\(2\) 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. 10147, under 32 U.S.C.
502(a) or 503, or to fulfill additional training requirements determined
and certified in writing by the Secretary of the military department
concerned to be necessary for professional development or for completion
of skill training or retraining;

\(4\) Performed by a member of a uniformed service who is:

\(i\) Ordered to or retained on active duty under sections 12301(a),
12301(g), 12302, 12304, 12305, or 688 of title 10, United States Code,
or under 14 U.S.C. 331, 332, 359, 360, 367, or 712;

\(ii\) Ordered to or retained on active duty (other than for training)
under any provision of law during a war or during a national emergency
declared by the President or the Congress, as determined by the
Secretary concerned.

\(iii\) 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. 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

\(v\) Called into Federal service as a member of the National Guard
under chapter 15 or under section 12406 of title 10, United States Code.

\(b\) *Counting service prior to the effective date of USERRA.* 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). For
example, the service of a National Guard technician who entered on an
Active Guard Reserve (AGR) tour under section 502(f) of title 32, United
States Code, was not counted toward the 4-year time limit under the
previous statute because it was specifically considered active duty for
training. 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. Thus, if a technician was
on a 32 U.S.C. 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.

\(c\) *Nature of Reserve service and resolving conflicts.* 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. 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. Some accommodation may be necessary by both parties. 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. But some members are required to participate in longer or more
frequent training tours. USERRA makes it clear that the timing,
frequency, duration, and nature of the duty performed is not an issue so
long as the employee gave proper notice, and did not exceed the time
limits specified. However, to the extent that the employee has influence
upon the timing, frequency, or duration of such training or duty, he or
she is expected to use that influence to minimize the burden upon the
agency. 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. When a conflict arises between the Reserve
duty and the legitimate needs of the employer, the agency may contact
appropriate military authorities to express concern. 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. If the military authorities determine that the military
duty cannot be rescheduled or cancelled, the agency is required to
permit the employee to perform his or her military duty.

\(d\) *Mobilization authority.* By law, members of the Selected Reserve
(a component of the Ready Reserve), can be called up under a
presidential order for purposes other than training for as long as 270
days. 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. 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.

\[60 FR 45652, Sept. 1, 1995, as amended at 64 FR 31487, June 11, 1999\]

##### § 353.204   Notice to employer. {#notice-to-employer. .unnumbered}

[]{#OPM204 .anchor}To be entitled to restoration rights under this part,
an employee (or an appropriate officer of the uniformed service in which
service is to be performed) must give the employer advance written or
verbal notice of the service except that no notice is required if it is
precluded by military necessity or, under all relevant circumstances,
the giving of notice is otherwise impossible or unreasonable.

##### § 353.205   Return to duty and application for reemployment. {#return-to-duty-and-application-for-reemployment. .unnumbered}

Periods allowed for return to duty are based on the length of time the
person was performing service in the uniformed services, as follows:

\(a\) An employee whose uniformed service was for *less than 31 days,*
or who was absent for the purpose of an examination to determine fitness
for the uniformed services, is required to report back to work not later
than the beginning of the first regularly scheduled work day on the
first full calendar day following completion of the period of service
and the expiration of 8 hours after a period allowing for the safe
transportation of the employee from the place of service to the
employee\'s residence, or as soon as possible after the expiration of
the 8-hour period if reporting within the above period is impossible or
unreasonable through no fault of the employee.

\(b\) If the service was for *more than 30 but less than 181 days,* the
employee must submit an application for reemployment with the agency not
later than 14 days after completing the period of service. (If
submitting the application is impossible or unreasonable through no
fault of the individual, it must be submitted the next full calendar day
when it becomes possible to do so.)

\(c\) If the period of service was for *more than 180 days,* the
employee must submit an application for reemployment not later than 90
days after completing the period of service.

\(d\) An employee who is hospitalized or convalescing from an injury or
illness incurred in, or aggravated during uniformed service is required
to report for duty at the end of the period that is necessary for the
person to recover, based on the length of service as discussed in
paragraphs (a), (b), and (c) of this section, except that the period of
recovery may not exceed 2 years (extended by the minimum time required
to accommodate circumstances beyond the employee\'s control which make
reporting within the period specified impossible or unreasonable).

\(e\) A person who does not report within the time limits specified does
not automatically forfeit restoration rights, but, rather, is subject to
whatever policy and disciplinary action the agency would normally apply
for a similar absence without authorization.

##### § 353.206   Documentation upon return. {#documentation-upon-return. .unnumbered}

Upon request, a returning employee who was absent for more than 30 days,
or was hospitalized or convalescing from an injury or illness incurred
in or aggravated during the performance of service in the uniformed
services, must provide the agency with documentation that establishes
the timeliness of the application for reemployment, and length and
character of service. If documentation is unavailable, the agency must
restore the employee until documentation becomes available.

##### § 353.207   Position to which restored. {#position-to-which-restored. .unnumbered}

[]{#OPMReg207 .anchor} (a) *Timing.* An employee returning from the
uniformed services following an absence of more than 30 days is entitled
to be restored as soon as possible after making application, but in no
event later than 30 days after receipt of the application by the agency.

\(b\) *Nondisabled.* If the employee\'s uniformed service was for less
than 91 days, he or she must be employed in the position for which
qualified that he or she would have attained if continuously employed.
If not qualified for this position after reasonable efforts by the
agency to qualify the employee, he or she is entitled to be placed in
the position he or she left. For service of 91 days or more, the agency
has the option of placing the employee in a position of like seniority,
status, and pay. (Note:Upon reemployment, a term employee completes the
unexpired portion of his or her original appointment.) If unqualified
(for any reason other than disability incurred in or aggravated during
service in the uniformed services) after reasonable efforts by the
agency to qualify the employee for such position or the position the
employee left, he or she must be restored to any other position of
lesser status and pay for which qualified, with full seniority.

\(c\) *Disabled.* An employee with a disability incurred in or
aggravated during uniformed service and who, after reasonable efforts by
the agency to accommodate the disability, is entitled to be placed in
another position for which qualified that will provide the employee with
the same seniority, status, and pay, or the nearest approximation
consistent with the circumstances in each case. The agency is not
required to reemploy a disabled employee if, after making due efforts to
accommodate the disability, such reemployment would impose an undue
hardship on the agency.

\(d\) *Two or more persons entitled to restoration in the same
position.* If two or more persons are entitled to restoration in the
same position, the one who left the position first has the prior right
to restoration in that position. The other employee(s) is entitled to be
placed in a position as described in paragraphs (b) and (c) of this
section.

[**(ISSUE CODE)**](#Issuecodes)

\(e\) *Relationship to an entitlement based on veterans\' preference.*
An employee\'s right to restoration under this part does not entitle the
person to retention, preference, or displacement rights over any person
with a superior claim based on veterans\' preference.

##### § 353.208   Use of paid leave during uniformed service. {#use-of-paid-leave-during-uniformed-service. .unnumbered}

[]{#OPM208 .anchor}

An employee performing service with the uniformed services must be
permitted, upon request, to use any accrued annual leave under 5 U.S.C.
6304, military leave under 5 U.S.C. 6323, or earned compensatory time
off for travel under 5 U.S.C. 5550b during such service.

\[72 FR 12035, Mar. 15, 2007\]

##### § 353.209   Retention protections. {#retention-protections. .unnumbered}

[]{#OPM209 .anchor} (a) *During uniformed service.* An employee may not
be demoted or separated (other than military separation) while
performing duty with the uniformed services except for cause. (Reduction
in force is not considered "for cause" under this subpart.) He or she is
not a "competing employee" under §351.404 of this chapter. If the
employee\'s position is abolished during such absence, the agency must
reassign the employee to another position of like status, and pay.

\(b\) *Upon reemployment.* Except in the case of an employee under
time-limited appointment who finishes out the unexpired portion of his
or her appointment upon reemployment, an employee reemployed under this
subpart may not be discharged, except for cause---

\(1\) If the period of uniformed service was more than 180 days, within
1 year; and

\(2\) If the period of uniformed service was more than 30 days, but less
than 181 days, within 6 months.

##### § 353.210   Department of Labor assistance to applicants and employees. {#department-of-labor-assistance-to-applicants-and-employees. .unnumbered}

USERRA requires the Department of Labor\'s Veterans\' Employment and
Training Service \[VETS\] to provide employment and reemployment
assistance to any Federal employee or applicant who requests it. VETS
staff will attempt to resolve employment disputes brought to
investigate. If dispute resolution proves unsuccessful, VETS will, at
the request of the employee, refer the matter to the Office of the
Special Counsel for representation before the Merit Systems Protection
Board (MSPB).

\[64 FR 31487, June 11, 1999\]

##### § 353.211   Appeal rights. {#appeal-rights. .unnumbered}

An individual who believes an agency has not complied with the
provisions of law and this part relating to the employment or
reemployment of the person by the agency may---

\(a\) File a complaint with the Department of Labor, as noted in
§353.210, or

\(b\) Appeal directly to MSPB if the individual chooses not to file a
complaint with the Department of Labor, or is informed by either Labor
or the Office of the Special Counsel that they will not pursue to the
case. However, National Guard technicians do not have the right to
appeal to MSPB a denial of reemployment rights by the Adjutant General.
Technicians may file complaints with the appropriate district court in
accordance with 38 U.S.C. 4323 (USERRA).

\[60 FR 45652, Sept. 1, 1995, as amended at 64 FR 31487, June 11, 1999\]

##### Subpart C---Compensable Injury {#subpart-ccompensable-injury .unnumbered}

##### § 353.301   Restoration rights. {#restoration-rights. .unnumbered}

\(a\) *Fully recovered within 1 year.* An employee who fully recovers
from a compensable injury within 1 year from the date eligibility for
compensation began (or from the time compensable disability recurs if
the recurrence begins after the employee resumes regular full-time
employment with the United States), is entitled to be restored
immediately and unconditionally to his or her former position or an
equivalent one. Although these restoration rights are agencywide, the
employee\'s basic entitlement is to the former position or equivalent in
the local commuting area the employee left. If a suitable vacancy does
not exist, the employee is entitled to displace an employee occupying a
continuing position under temporary appointment or tenure group III. If
there is no such position in the local commuting area, the agency must
offer the employee a position (as described above) in another location.
This paragraph also applies when an injured employee accepts a
lower-grade position in lieu of separation and subsequently fully
recovers. A fully recovered employee is expected to return to work
immediately upon the cessation of compensation.

\(b\) *Fully recovered after 1 year.* An employee who separated because
of a compensable injury and whose full recovery takes longer than 1 year
from the date eligibility for compensation began (or from the time
compensable disability recurs if the recurrence begins after the injured
employee resumes regular full-time employment with the United States),
is entitled to priority consideration, agencywide, for restoration to
the position he or she left or an equivalent one provided he or she
applies for reappointment within 30 days of the cessation of
compensation. Priority consideration is accorded by entering the
individual on the agency\'s reemployment priority list for the
competitive service or reemployment list for the excepted service. If
the individual cannot be placed in the former commuting area, he or she
is entitled to priority consideration for an equivalent position
elsewhere in the agency. (See parts 302 and 330 of this chapter for more
information on how this may be accomplished for the excepted and
competitive services, respectively.) This subpart also applies when an
injured employee accepts a lower-graded position in lieu of separation
and subsequently fully recovers.

\(c\) *Physically disqualified.* An individual who is physically
disqualified for the former position or equivalent because of a
compensable injury, is entitled to be placed in another position for
which qualified that will provide the employee with the same status, and
pay, or the nearest approximation thereof, consistent with the
circumstances in each case. This right is agencywide and applies for a
period of 1 year from the date eligibility for compensation begins.
After 1 year, the individual is entitled to the rights accorded
individuals who fully or partially recover, as applicable.

\(d\) *Partially recovered.* Agencies must make every effort to restore
in the local commuting area, according to the circumstances in each
case, an individual who has partially recovered from a compensable
injury and who is able to return to limited duty. At a minimum, this
would mean treating these employees substantially the same as other
handicapped individuals under the Rehabilitation Act of 1973, as
amended. (See 29 U.S.C. 791(b) and 794.) If the individual fully
recovers, he or she is entitled to be considered for the position held
at the time of injury, or an equivalent one. A partially recovered
employee is expected to seek reemployment as soon as he or she is able.

[**(ISSUE CODE)**](#Issuecodes)

##### § 353.302   Retention protections. {#retention-protections.-1 .unnumbered}

An injured employee enjoys no special protection in a reduction in
force. Separation by reduction in force or for cause while on
compensation means the individual has no restoration rights.

##### § 353.303   Restoration rights of TAPER employees. {#restoration-rights-of-taper-employees. .unnumbered}

An employee serving in the competitive service under a temporary
appointment pending establishment of a register (TAPER) under §316.201
of this chapter (other than an employee serving in a position classified
above GS--15), is entitled to be restored to the position he or she left
or an equivalent one in the same commuting area.

##### § 353.304   Appeals to the Merit Systems Protection Board. {#appeals-to-the-merit-systems-protection-board. .unnumbered}

\(a\) Except as provided in paragraphs (b) and (c) of this section, an
injured employee or former employee of an agency in the executive branch
(including the U.S. Postal Service and the Postal Rate Commission) may
appeal to the MSPB an agency\'s failure to restore, improper
restoration, or failure to return an employee following a leave of
absence. All appeals must be submitted in accordance with MSPB\'s
regulations.

\(b\) An individual who fully recovers from a compensable injury more
than 1 year after compensation begins may appeal to MSPB as provided for
in parts 302 and 330 of this chapter for excepted and competitive
service employees, respectively.

\(c\) An individual who is partially recovered from a compensable injury
may appeal to MSPB for a determination of whether the agency is acting
arbitrarily and capriciously in denying restoration. Upon reemployment,
a partially recovered employee may also appeal the agency\'s failure to
credit time spent on compensation for purposes of rights and benefits
based upon length of service.

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2

[[]{#Chapter_2 .anchor}**Chapter 2**](#TOC2X)

[**Complaint Processing**](#TOC2X)

**.1** []{#GeneralProcess .anchor}**General Process.** The steps of
complaint processing usually follow a progressive sequence. However,
this is not always the case. For example, negotiation and/or resolution,
shown below as the fourth stage, may begin with the initial contact with
the employer and may occur at any stage of the process.

> \(1\) **Complaint Intake.** This initial investigative stage includes
> steps to:
>
> \(a\) Identify the alleged violation and the remedies available.
>
> \(b\) Identify the applicable section(s) of the statute and
> regulations.
>
> \(c\) Determine whether the claimant is eligible for USERRA
> assistance.
>
> \(d\) Open a case file, or obtain additional information from the
> claimant if necessary.
>
> Note: If the claimant is unequivocally not eligible for USERRA
> assistance, or if s/he has failed to assert an allegation of a USERRA
> violation, open and close the case file and notify the claimant of the
> result.

\(2\) []{#initialcontactwcomplainant .anchor}**Initial Contact with
Complainant.** After receiving a written signed or

> electronic VETS Form 1010, the VETS investigator must contact the
> complainant to go over the complaint and make any needed corrections
> to the complaint form. The investigator should also discuss the
> provisions of USERRA that apply, remedies available, and give a brief
> overview of the investigative process.
>
> \(3\) **Initial Contact with Employer.** The objectives of this
> initial contact are to inform the employer of the claim; to explain
> USERRA and VETS' role in the resolution process; to obtain the
> employer\'s explanation; and to seek a resolution of the claim if
> possible. *If possible, this initial employer contact should be made
> by telephone or by pre-arranged on-site visit. Any substantive
> discussions in this initial employer contact should be documented on
> the VETS Form 1063.*
>
> []{#mustdevelopcip .anchor}Should the employer dispute the claim,
> further investiga­tion is required and the investigator
> [must]{.underline} develop a written investigative plan.
> [**\[QAR\]**](#QARForm)
>
> \(4\) **Investigation.** This is the process performed by the
> Investigator to obtain evidence determining whether a case has merit.
> This evidence is obtained through interviews, documentation obtained
> from both parties; witness statements; etc., that would be admissible
> in court. The investigation concludes when a finding is made by the
> investigator and all parties are informed of that finding.
>
> \(5\) **Negotiation and Resolution.** The purpose of this stage is to
> seek settlement. If possible, a resolution conference is held with the
> claimant and employer. This is a meeting with the employer and
> claimant to discuss investigative findings to date, and to seek
> resolution of the case. (See Chapter 7)
>
> \(6\) **U.S. Attorney General/Office of Special Counsel Referral.**
> Claimants can have unresolved cases referred to the U. S. Attorney
> General at the Department of Justice/Office of Special Counsel, which
> may accept them for litigation if reasonably satisfied that the claim
> has merit.

**.2** []{#ProcessingStandards .anchor}**Processing Standards.
[\[QAR\]](#QARForm)**

> \(1\) Make first contact with complainant within 3 working days after
> receipt of the signed written or electronic complaint form.
>
> \(2\) Make first contact with the employer within 7 business days
> after opening a case. If the claimant is unemployed or about to become
> unemployed, contact the employer within 3 business days.
>
> \(3\) Within 3 working days of receipt of a response from the
> employer, contact the claimant to let him or her know of the
> employer\'s position.
>
> \(4\) If appropriate, respond to all incoming documents in the case
> within 5 working days of date of receipt.
>
> \(5\) Attempt to complete the investigation within 90 calendar days
> after opening the case.
>
> \(6\) The DVET or the Regional Office must review progress on the case
> if the Investigation is still ongoing 45 working days after opening.
> If the investigation is still in progress 60 calendar days after
> opening, the written investigative plan must be reviewed and possibly
> revised. In addition, the regional Senior Investigator will review the
> case after 90 calendar days, or earlier on request of the investigator
> or RAVET.
>
> \(7\) []{#fifteenwrkingdaysMOR .anchor}[If, after completion of the
> investigation, a claimant requests referral to the U.S. Attorney
> General/Office of Special Counsel, the referral should be completed
> within **[15 working days]{.underline}** after receiving the written
> referral request. If the claimant requests referral prior to
> completion of the investigation, s/he will be advised that such action
> cannot be undertaken until the close of all investigative activity,
> but that s/he may withdraw the claim and proceed via private
> counsel.]{.mark}

[]{.mark}

> [(8) Continued attempts can be made to resolve the case throughout the
> referral process, however, they should not delay the referral.]{.mark}
> [\[QAR\]](#QARForm)

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3

[[]{#Chapter_3 .anchor}**Chapter 3**](#TOC3X)

[**General Guidelines and Definitions**](#TOC3X)

**.1 Secretary of Labor's Responsibility under USERRA.** The Secretary
of Labor, through the Veterans\' Employment and Training Service shall
provide assistance to eligible persons (including inductees, enlistees,
rejectees, reservists, and members of the National Guard) in exercising
their statutory rights.

**.2 Legal Authority.** The legal authority for the Secretary of Labor
and VETS' responsibili­ties and activities is found in USERRA, chapter
43, title 38, United States Code, and related prede­cessor statutes.

**.3 VETS Responsibility.** Under the law, VETS is responsible for:

> \(1\) Ensuring reemployment in the proper position with proper
> seniority, status, pay, and all other seniority benefits for "any
> eligible person" who leaves a position, for the purpose of performing
> active military duty, active duty for training, inactive duty for
> training, or reporting for examination to determine fitness for
> military service.
>
> \(2\) Ensuring the security of rights that protect individuals from
> discriminatory practices motivated by their service, or from reprisals
> based on an individual's action to enforce a right, or cooperating
> with VETS during an investigation.
>
> \(3\) Assisting employers, unions and other interested parties in
> resolving matters involving employment and reemployment rights issues
> while minimizing necessity for litigation.
>
> \(4\) Promoting voluntary compliance by fully acquainting all
> interested individuals and organizations through outreach and public
> information efforts with the provisions of USERRA.

**.4 Definition of a USERRA Case.** A USERRA case arises from a request
for assistance from an inductee or enlistee, a Reserve or National Guard
member, an examinee or rejectee, a former servicemember, or non-service
employee/witness who has assisted in enforcing an entitlement. The
request for assistance usually results from a dispute with an employer,
or the employer\'s agent, over the claimant\'s alleged employment or
reemployment rights under USERRA. All cases must be opened, processed,
and closed in accordance with the instructions contained in this Manual
or subsequent memoranda from the Assistant Secretary for Veterans\'
Employment and Training (ASVET).

**.5** **Parties To A Case.**

> \(1\) **Claimant.** A claimant is the person who submits the claim.
>
> \(2\) **Employer.** Any person, institution, organization, or other
> entity that pays salary or wages for work performed, provides
> benefits, or that has control over employ­ment opportunities,
> including;
>
> \(a\) A private employer;
>
> \(b\) A person, institution, organization, or other entity to whom the
> employer has delegated the performance of employment-related
> responsibilities, such as a pension plan or a hiring hall;
>
> \(c\) The Federal Government;
>
> \(d\) A State or local subdivision thereof;
>
> \(e\) Any successor in interest to a person, institution,
> organization, or other entity; and
>
> \(f\) The Adjutant General of the State in which a National Guard
> technician is employed.

**.6 Need For Informal Resolutions.** If the investigator\'s initial
review of the complaint indicates that it may be meritorious, the
investigator should contact the employer and attempt to resolve the
complaint. If discussions with the employer are unsuccessful, and it is
necessary to continue the investigation, it is important to remember
that VETS has no legal authority to direct an employer to take action.
Such authority rests with the Merit Systems Protection Board (for
Federal executive agencies) or the court having jurisdiction over a
given case. If it appears that a claimant is entitled to benefits under
USERRA, and if the employer refuses to accord the claimant those
benefits, the only alternative is to refer the case for legal
representation if the claimant so chooses. Therefore, VETS efforts
should be directed toward resolving cases satisfactorily and amicably.

**.7** **Claimant\'s Waiver of Entitlement**. The claimant may agree to
accept less than full entitlement in resolution of his or her claim. For
example, the claimant may waive back pay in order to receive
reinstatement or may agree to waive reinstatement in exchange for a
monetary settlement.

> **[Note:]{.underline}** It is important to remember that it is the
> claimant who must make such decisions, and only after being fully
> apprised of the consequences of such a waiver. If a claimant decides
> to waive any entitlement, the VETS Investigator should execute a
> waiver form.

**.8 Negotiations with Employers.** As stated in Chapter 2, the primary
function of the Investigator is to obtain evidence in order to determine
if a violation did or did not occur, and to concurrently seek settlement
between the parties should the opportunity arise. In negotiating with
the employer on a possible settlement, the investigator should make
every effort to obtain a remedy that reflects full compliance under the
USERRA statute. Concessions to full compliance may be made only with the
waiver executed by the claimant.

> Before entering into negotiations, discuss candidly with the claimant
> the strengths and weaknesses of the case and determine if there are
> issues upon which the claimant is willing to make concessions. The
> investigator is expected to negotiate with the employer or employer\'s
> counsel and must relay settlement offers from the employer to the
> claimant. However, the investigator should explain to the employer
> that the decision about settle­ment remains with the claimant. If a
> settlement offer is rejected by the claimant, that offer and its
> rejection must be documented and should detail the reasons for the
> rejection. The same is true for settlement offers from the claimant
> that are rejected by the employer.

**.9 Record Keeping for Cases. [\[QAR\]](#QARForm)**

> \(1\) **File Maintenance.** VETS investigators must keep careful
> written records of all contacts and attempted contacts with all
> parties, during all stages of complaint handling. Required
> questionnaires and other official forms must be completely filled out.
> All letters and other documents gathered during an investigation must
> be filed and safeguarded. The claimant\'s original documents, such as
> the #4 copy of the Form DD-214 and certificates, should be copied and
> filed in the case file and the originals returned to claimant. This is
> to establish a complete, accurate and up-to-date file on the matter,
> which might later be used in Federal Court. The following legal
> considerations apply regarding file preparation and maintenance:
>
> \(a\) []{#datestamp .anchor}Date stamp all incoming correspondence as
> well as all other documents related to the case. The date stamp should
> preferably appear on the lower right hand corner or; if necessary,
> elsewhere on the front side of the document, ensuring that no writing
> is covered. If stamping on the front is not possible, stamp on the
> reverse. If neither is possible date stamp where the least amount of
> writing will be covered.
>
> In addition, outgoing documents and documentation of contacts and
> attempted contacts with the employer, claimant, or other interested
> parties should always be dated.
>
> \(b\) Do not write on or highlight incoming documents. (If you need to
> high­light for working purposes, make a copy and use as a work sheet,
> e.g. employer position letterF) Analysis of lengthy or technical
> documents should be recorded on a VETS Form 1063 and placed in the
> file on top of the analyzed document.
>
> \(c\) In writing VETS Form 1063\'s, do not editorialize. Stick to the
> facts. If not typed, writing must be legible since these documents may
> be relied upon for court proceedings. Separate Form 1063\'s should be
> used to document each contact and attempted contact.
>
> \(d\) Do not white-out anything on the VETS Form 1063. Cross out and
> initial instead.
>
> \(e\) Do not discard any documents or information forwarded by outside
> parties including the claimant and employer, from the case file.
>
> \(f\) Obtain signed, first-person statements from all witnesses, where
> possible.
>
> \(g\) If the employer refuses to put its position in writing following
> a telephone discussion, send a confirming letter to the employer
> detailing the discus­sion, and provide the employer with an opportunity
> to respond.
>
> \(2\) []{#Fileformat .anchor}**File Format.** Case file documents
> should be filed on the right side of the case file, in chronological
> order, with the newest on top. All documents should be tabbed.
> However, the VETS Form 1010, with all attachments received, should be
> the first document filed on the right side, even if it was not the
> first document received in the case. If military docu­mentation is not
> received until a later date, it should also be filed with the VETS
> Form 1010. [\[QAR\]](#QARForm)
>
> The following documents should be kept on the left side of the folder:
>
> \(a\) Investigative plan;
>
> \(b\) Quality Assurance review forms;
>
> \(c\) Memos to the file, investigative notes or other informal
> materials not meant to be released as part of the official case file;
>
> \(d\) Any VETS internal memos which are related to investigative
> matters but are not to be released as part of the official case file
> including Memoran­dum of Referral; and
>
> \(e\) All communication between VETS and the Office of the Solicitor.

**.10 Investigations.** Because USERRA cases might eventually go to
Federal Court, VETS investigators [must]{.underline} become familiar
with rules of evidence and techniques of investigation described in
Chapter 6 of this Manual.

**.11 Use of Letters.** Generally, letters should be used in the
following situations:

> \(1\) An opening letter to the employer is sent upon opening a case,
> if the basic elements of the case are present. At a minimum this
> letter should contain the items listed in Chapter 5.
>
> \(2\) A follow-up letter when the expected response to a
> VETS-initiated letter has not been received.
>
> \(3\) A letter to an employer stating what VETS understands the
> employer\'s position to be when the employer has failed or refused to
> give his/her position in writing but has stated a position orally.
>
> \(4\) Advisory opinion letters and transmittal of settlement
> proposals, counter-propos­als and withdrawal requests as needed.

(5) A []{#closingletterreview .anchor}closing letter [must]{.underline}
    be sent to the claimant. A closing letter must also be sent to the
    employer unless the employer was never notified about the case.
    [\[QAR\]](#QARForm)

> [Note: An open case review must be conducted with the supervisor prior
> to sending the closing letter to the claimant.]{.mark}
>
> \(6\) Letters of notification to the employer must be sent when the
> claimant requests referral to the U. S. Attorney/Office of Special
> Counsel.

**.12 Certified Mail, Return Receipt Requested.** The following
correspondence will be sent \"Certified Mail, Return Receipt
Requested\":

> \(1\) All second letters attempting to contact claimants;
>
> \(2\) All letters containing settlement checks;
>
> \(3\) All letters to employers confirming oral representations;
>
> \(4\) All "Final Notice" Letters to the employer or counsel of record;

(5) Any letter which the investigator believes warrants special
    treatment;

(6) Closing letters notifying claimant that the complaint cannot be
    resolved.

**.13 Freedom of Information and Privacy Act Requests**. Whenever a
written request is received under either the Freedom of Information Act,
or the Privacy Act, refer it to the Regional Office for consultation
with the Regional Solicitor\'s Office. The Regional Administrator is the
only person authorized to be a Disclosure Officer in responding to these
requests. When you receive a request from a claimant whose case is
currently under investigation you must [NOT]{.underline} disclose
[ANY]{.underline} documents to him/her under either the Privacy Act or
the FOIA.

> If the case has been closed, generally most information in a USERRA
> file can be released under the Freedom of Information Act. However,
> under the Privacy Act, most informa­tion in an USERRA file must be
> released to claimants or their authorized representatives upon receipt
> of a written request. Information which cannot be released includes
> medical statements, any confidential statement (witness statements,
> etc.), internal correspondence and opinions, and information which may
> jeopardize the integrity of the case or the safety of any individual
> connected with the case.
>
> Solicitor of Labor memoranda will not be released outside of DOL.
> These documents are usually exempt from disclosure based on
> attorney-client privilege and exemptions 4 and 5 of the FOIA. Any FOIA
> requests relating to such documents in either an open or closed file
> should be referred to the Regional Solicitor's office, through the
> Regional Adminis­trator.

**.14 Federal Privacy Act Releases.** When requesting medical, military,
employment or other records needed for complaint processing that are
maintained by a Federal Agency, investigators should have the claimant
sign a Federal Privacy Act release form. (Exhibit 2)

**.15 Unemployment Compensation Claim Release Form.** These forms should
be obtained from the appropriate State office where necessary.

**.16 Private Physician/Hospital Release Form.** A release form (Exhibit
3) should be used to obtain records from physicians/hospitals if the
claimant agrees and signs this release form.

**.17 Acceptance of Electronic Tapes from Claimant or Employers.** The
use of audio or video tapes as evidence differs based on Federal, State
and local laws. Should a VETS investigator be approached by either party
to an investigation with audio or video tapes, the Regional Solicitor's
Office, through the Regional Administrator, should be contacted for
further advice. Contact the National Office for transcription services
acquisitions.

**.18 Taping by Investigators.** Investigators should not tape or video
record conferences, and shall discourage any of the participants from
recording the conference, even if the other participants are aware of
the recording and do not object. Recording tends to restrict a free flow
of information and to paralyze certain parties. If a party to a
conference insists on recording a conference, the VETS investigator
should arrange to receive a copy of the unedited recording as well as
any transcripts made thereof.

**.19 Funding for Claimant\'s Travel.** VETS will not pay travel or
other expenses for the claimant.

**.20 Communications Concerning Cases.**

> \(1\) VETS investigators will not discuss investigations with
> individuals or organiza­tions which are not a party to the case. This
> restriction does not apply to the Office of the Solicitor, Office of
> Special Counsel, Department of Justice and VETS staff as required.
>
> \(2\) When discussing an investigation with the parties to the case,
> the investigator must avoid making statements which could cause the
> parties to identify witnesses who are otherwise protected from
> disclosure.
>
> \(3\) Responses to inquiries from Members of Congress should provide,
> in general terms, the status of the investigation. Specific details of
> an ongoing investigation should not be provided. While responses to
> Congressional inquiries may be prepared by the investigator, all
> responses must be signed by the Regional Administrator. The National
> Office shall be notified immediately of all congres­sional inquires and
> shall receive copies of all responses promptly.
>
> \(4\) Any expression as to the merits of the case must be restricted
> to a case conference, and only after an actual merit determination has
> been made. Until a final determination is made, any such expression at
> other conferences, such as for settlement without a detailed
> investigation, should be qualified with the terms "initial" or
> "prelimi­nary." At the earlier stages of an investigation, neither
> party should be given the impression that the door is closed to
> further discussions or evidence.

(5) If contacted by the media, do not discuss any case, even those filed
    in court.

> Explain that it is VETS' policy not to disclose any information about
> the existence of any case. If necessary, refer the media to the
> Regional Office. Keep in mind that VETS does not have any authority to
> prevent either the claimant or the employer from media contact.
>
> \(6\) Investigators will not release documents provided by either
> party in the investigation to the other party. The investigator may,
> however, paraphrase information from documents obtained relating to
> the other party's concerns, allegations, and positions specifically
> involving disputed case issues.

**.21 Fax Documents.** Any document or communica­tions (e.g. letters)
sent by fax by investigators, should be followed up with an original.
For example, if the investigator sends a letter to an employer by fax,
the original letter should be annotated: (1) copy via fax; and (2)
original via mail. The original letter should then be sent to the
employer. The investigator should ensure the fax receipt is attached to
the copy of the letter in the case file. If the employer sends a letter
or document(s) via fax, the investigator should ensure that the employer
also provides copies of the original documents. Both the fax and the
original should be retained in the case file.

**.22** **Email.** When E-mails are incorporated into the investigation
process they are to be

> treated as the equivalent of letters sent on official letterhead, and
> must therefore be written in a professional and courteous tone. All
> official E-mail correspondence will include a confidentiality note
> which states (in general):

**"This electronic transmission contains information that is
confidential or legally privileged. The information is intended only for
the use of the individual(s) or entity named above. If you are not the
intended recipient, you are hereby notified that any disclosure,
copying, distribution or the taking of any action in reliance on the
contents of such information is strictly prohibited. If you have
received this transmission in error, please notify us immediately by
telephone, or return e-mail."**

**.23** **DOL Guidance on the Protection of Personal Identifiable
Information**

Personal Identifiable Information (PII) is defined as:

> Any representation of information that permits the identity of an
> individual to whom the information applies to be reasonably inferred
> by either direct or indirect means. Further, PII is defined as
> information: (i) that directly identifies an individual (e.g., name,
> address, social security number or other identifying number or code,
> telephone number, email address, etc.) or (ii) by which an agency
> intends to identify specific individuals in conjunction with other
> data elements, i.e., indirect identification. (These data elements may
> include a combination of gender, race, birth date, geographic
> indicator, and other descriptors). Additionally, information
> permitting the physical or online contacting of a specific individual
> is the same as personally identifiable information. This information
> can be maintained in either paper, electronic or other media.
>
> Department of Labor (DOL) federal employees and contractors are
> reminded that safeguarding sensitive information is a critical
> responsibility that must be taken seriously at all times. DOL internal
> policy specifies the following security policies for the protection of
> PII and other sensitive data:
>
> It is the responsibility of the individual user to protect data to
> which they have access. Users must adhere to the rules of behavior
> defined in applicable Systems Security Plans, DOL and agency guidance.
>
> DOL federal employees and contractors having access to personal
> information shall respect the confidentiality of such information, and
> refrain from any conduct that would indicate a careless or negligent
> attitude toward such information. DOL employees and contractors also
> shall avoid office gossip and should not permit any unauthorized
> viewing of records contained in a DOL system of records. Only
> individuals who have a \"need to know\" in their official capacity
> shall have access to such systems of records.
>
> The loss of PII can result in substantial harm to individuals,
> including identity theft or other fraudulent use of the information.
> Because DOL employees and contractors may have access to personal
> identifiable information concerning individuals and other sensitive
> data, we have a special responsibility to protect that information
> from loss and misuse.

With these responsibilities federal employees and contractors should
ensure to:

Safeguard DOL information at all times.

> Obtain DOL management\'s written approval prior to taking any DOL
> sensitive information away from the office. The DOL manager\'s
> approval must identify the business necessity for removing such
> information from the DOL facility.
>
> When approval is granted to take sensitive information away from the
> office, the employee must adhere to the security policies described
> above.

If any employee or contractor experiences or becomes aware of a theft or
loss of PII, they are required to immediately inform their DOL contract
manager or the VETS Information Security Officer (ISO). The name of the
current VETS (ISO) can be found at
<http://www.labornet.dol.gov/html/itc/ITSecurityOfficers.htm>. In the
event their DOL contract manager is not available, they are to
immediately report the theft or loss to the DOL Computer Security
Incident Response Capability (CSIRC) team at <dolcsirc@dol.gov>.

[[]{#FedPrivActReleasForm .anchor}**Exhibit 2: Federal Privacy Act
Release Form**](#FedPrivActReleasFormIll)

![](media/image1.wmf)

[[]{#MedInfRelForm .anchor}**Exhibit 3: Medical Information Release
Form**](#MedInfReleasFormIll)

+-----------------------------------------------------------------------+
| **MEDICAL INFORMATION RELEASE FORM**                                  |
|                                                                       |
| **To Whom It May Concern:**                                           |
|                                                                       |
| **I, \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_, authorize any    |
| physician, hospital, clinic, or other**                               |
|                                                                       |
| (Name -- First, MI, Last)                                             |
|                                                                       |
| **health-related person or facility, to release any medical or other  |
| health-related**                                                      |
|                                                                       |
| **information (including mental health) to the United States          |
| Department of Labor,**                                                |
|                                                                       |
| **Veterans' Employment and Training Service, which are deemed         |
| necessary for the**                                                   |
|                                                                       |
| **Purpose of pursuing my claim under the Uniformed Services           |
| Employment and**                                                      |
|                                                                       |
| **Reemployment Rights Act (USERRA) of 1994, and 38 U.S.C. §4301 et    |
| seq. This**                                                           |
|                                                                       |
| **Release applies only to that claim, the designation of which        |
| appears below.**                                                      |
|                                                                       |
| **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**      |
|                                                                       |
| **Signature of Claimant**                                             |
|                                                                       |
| **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**      |
|                                                                       |
| **Social Security Number**                                            |
|                                                                       |
| **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**      |
|                                                                       |
| **Address**                                                           |
|                                                                       |
| **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**      |
|                                                                       |
| **Date**                                                              |
|                                                                       |
| **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**      |
|                                                                       |
| **USERRA Case Number**                                                |
+-----------------------------------------------------------------------+

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4

[]{#Chapter_4 .anchor} [**Chapter 4**](#TOC4X)

[**Complaint Intake and Case Opening**](#TOC4X)

**.1 Requests for Assistance.**

If an individual is claiming entitlement to employment rights or
benefits or reemployment rights or benefits and alleges that an employer
has failed or refused, or is about to fail or refuse, to comply with the
Act, the individual may file a complaint with VETS or initiate a private
legal action in a court of law (*see* § 1002.303). A complaint may be
filed with VETS either in writing, using VETS Form 1010, or
electronically, using VETS Form e1010 instructions and the forms can be
accessed at <http://www.dol.gov/elaws/vets/userra/1010.asp>. A complaint
must include the name and address of the employer, a summary of the
basis for the complaint, and a request for relief. **Sec. 1002.288**

> \(1\) **Telephone Requests or Personal Visits.** If the request for
> assistance comes by telephone, fax or by personal visit:
>
> \(a\) Interview the claimant thoroughly and discuss the complaint in
> depth. Use of the VETS Form 1010 (Exhibit 5) as a screening tool is
> encouraged.
>
> \(b\) Determine if the claimant is eligible for protection under
> USERRA.
>
> \(c\) Determine if the claimant has raised a possible violation and
> may be entitled to some benefit under the law. If so, determine the
> location of the complaint. If in another region or state, see
> instructions in .9 of this Chapter.
>
> \(d\) When contact is by telephone, FAX, or E-mail, VETS investigators
> are encouraged to assist the claimant in completion of the VETS Form
> 1010. Mail or FAX the VETS Form 1010 and ask the claimant to complete
> needed items on the form, to sign and date it, and to return it
> immediately. Claimants can return a signed form by FAX, but must also
> submit the original signed form. As an alternative, claimants should
> be advised of the capability to file their complaint via
> electronically using VETS form e1010 through at
> <http://www.dol.gov/elaws/vets/userra/1010.asp>.
>
> \(e\) Request a copy of documents verifying eligibility. These must
> include documents showing discharge from military service (See 20 CFR
> 1002.123), orders to report for training or examination, or other
> pertinent records. Note that a military ID card is not a qualifying
> document.
>
> \(f\) The VETS Form 1063 (Exhibit 4) does not need to be filled out
> initially if all the necessary information is on a VETS Form 1010. Use
> a VETS Form 1063 for all subsequent contacts. If the initial contact
> is by phone, use the VETS Form 1063 to record the claimant's
> statements and desired reme­dies.
>
> \(2\) **Mail Requests.** If the request for assistance comes by mail
> in a form other than a VETS Form 1010, mail the VETS 1010 form and
> explain that the enclosed VETS Form 1010 is to be completed, dated,
> signed, and returned immediately along with other documents
> establishing eligibility or detailing the complaint and the remedies
> sought. (Exhibit 6) Also advise them of the capability to file their
> complaint electronically using VETS for an E1010 at
> <http://www.dol.gov/elaws/vets/userra/1010.asp>

**.2** []{#Whentoopenacase .anchor}**When to open a case.**

> (1)       A case should be opened immediately upon receipt of an
> electronic 1010, or a signed VETS Form 1010 from a person who alleges
> some violation of protected employment rights by a specific employer. 
> If immediate opening is impossible or unreasonable, the case must be
> opened within three (3) business days if the claimant is unemployed,
> or about to become unemployed, and seven (7)  business days if the
> claimant is employed.
>
> \(2\) A case **[cannot be opened]{.underline}** if the claimant does
> not submit a signed 1010 Form. Filing an online 1010 (E-1010) is
> considered "signed"; [See 20 CFR 1002.288](#vets1010). A written
> letter/fax/or email (not on a 1010) requesting an investigation is
> insufficient as defined by the regulations and does not authorize the
> Investigator to contact the employer.  The information provided on the
> 1010 (notification of punishment for unlawful statements, notification
> of USERRA claimant's rights, and privacy act statement) validates the
> claimant's awareness of his rights. The Investigation process,
> however, may proceed if the documentation that establishes eligibility
> is not readily available through no fault of the claimant. Efforts to
> obtain documentation must be continuous, and must be received and
> included in the case file before closing.
>
> [Note: VETS' obligation to investigate a complaint filed via a signed
> or electronic 1010 should be viewed in the same way as an employer's
> obligation to immediately reinstatement without regard to the absence
> of documentation that may not exist or be readily available through no
> fault of the claimant. See 38 U.S.C. 4312(f)(3)(A), 20 C.F.R.
> 1002.122.]{.mark} [\[QAR\]](#QARForm)
>
> The initial lack of documentation of eligibility must not delay the
> investigator from contacting the employer or opening an investigation
> where one is warranted. A signed 1010 requires the claimant to certify
> (under penalty of perjury for submitting false information) that he or
> she is eligible for protection by USERRA.
>
> When eligibility documentation does not exist or is not readily
> available, the investigator should attempt to obtain some sort of
> preliminary verification of eligibility by contacting the claimant\'s
> military unit, or obtaining some indicia of the character and dates of
> service through ESGR or the Department of Veterans Affairs (VA.) ESGR
> is in a unique position to obtain records or validate the military
> status when the claimant is a member of the National Guard or Reserve.
> The VA keeps electronic copies of the DD-214 for those veterans who
> have received educational or medical assistance. Another possible
> resource for verifying military status is the State's Department of
> Veterans Affairs.
>
> If an investigation is underway, the investigator obtains
> documentation that shows the claimant is ineligible, the investigation
> is to be closed.
>
> \(3\) If the information provided unequivocally establishes no
> eligibility or no viola­tion, then the case should be opened and
> immediately closed, and the claimant notified in writing of the
> result. Similarly, under these circumstances, [written notification of
> the right to referral of their case to the U.S. Attorney General or
> the Office of Special Counsel, or to seek private counsel, as
> appropriate, is required. See sample closing letters at Exhibits
> 34,35,36,and 37.]{.mark}

**.3** **How to Open a Case on** ***UIMS* PENDING**

**.4 Documentation of Contacts.** All VETS contacts and attempted
contacts with the claimant, the employer, the military unit, and all
other persons must be completely documented and included in the case
file. Make notes of telephone contacts and attempts of contact on VETS
Form 1063. (Exhibit 4)

> \(1\) []{#Case_open_ltr_to_claimant .anchor}**Notification Letter to
> Claimant.** A notification letter will be sent to the claimant within
> seven (7) working days of case opening. Its purpose is to inform the
> claimant of case opening, to notify claimant of his/her
> responsibilities with respect to document submission, to solicit a
> copy of any arbitration agreement(s), to provide initial notification
> to the claimant of the right to referral, and to inform the claimant
> of procedural requirements if witnesses are provided who may have
> documentary and/or testimonial evidence to support the complaint. [A
> sample letter is provided as Exhibit 11.](#Exhibit4d4)
>
> [**\[QAR\]**](#QARForm)

**.5 Establishing Eligibility.** VETS Form 1010 (Exhibit 5), the
Eligibility Data Form, is the initial source document for a case. During
the initial interview with the claimant, go over this form carefully,
watching for problems in such areas as:

> \(1\) **Date Left to Join Service**. Compare the date the claimant
> left employment for military with the date he/she actually joined the
> military service. Any period in excess of two weeks between leaving
> employment and entry into service (includ­ing the delayed entry
> program) should be carefully discussed and explained on the VETS Form
> 1010 or a VETS Form 1063.
>
> \(2\) **Other Dates.** All other dates such as notice date, discharge
> or release date, terminal leave dates and application for
> reinstatement or reporting for work should be compared to the Form
> DD-214 (Exhibit 8) or military orders.
>
> \(3\) **Length Of Service.** Under USERRA, the cumulative period of
> uniformed service with any single employer cannot exceed 5 years. If
> the time served is over 5 years, [refer to Exhibit 7 for
> exceptions](#Exemptions1).
>
> \(4\) **Military Service Information.** If the claimant applied for
> reemployment before December 12, 1994, the information concerning the
> type of military service performed (e.g., active duty, active duty for
> training) remains especially relevant, as does the issue of service of
> more than four, but less than five years, if the time between four and
> five years is at the request of and for the convenience of the
> government. \[Vietnam Era Veterans' Readjustment Assistance Act of
> 1974, commonly referred to as the Veterans\' Reemployment Rights Act
> (VRRA)\].
>
> \(5\) **Reemployment Information.** In this section, obtain the name
> and title of the person contacted by the claimant for reinstatement or
> reemployment and the date and method of contact. If the claimant
> called long distance, the telephone bill may tend to support the
> claimant\'s position. If the claimant cannot remember the person\'s
> name, ask for a full description of the person. If the claimant was
> denied reinstatement, ask what reasons were given. If any witnesses
> were present, note their names.
>
> \(6\) **Detailed Explanation and Remedies Sought.** The claimant
> should provide detailed statements on the back of the VETS Form 1010
> about the circumstances of the complaint and the remedies he/she is
> seeking. The claimant's telephone statements should be fully recorded
> on the VETS Form 1063.
>
> \(7\) **Signature.** Always ensure that the original VETS Form 1010
> contains an original signature of the claimant and a date. A VETS Form
> 1010 received through the [VETS
> E1010](https://vets1010.dol.gov/Login.aspx?ReturnUrl=%2Fdefault.aspx)
> System is considered to have an original signature when the complaint
> is accepted by the System.
>
> \(8\) **Incomplete VETS Form 1010**. If an incoming VETS Form 1010 is
> incomplete, call, write, email or FAX the claimant to obtain the
> missing information.

**.6 Request for Pertinent Military Records.**

> \(1\) **Form DD-214.** At time of separation from active duty or
> initial active duty for training, the Department of Defense issues a
> separation form, titled Form DD-214.
>
> Obtain Member Copy 4, Certificate of Release or Discharge, DD-214 if
> available. This form certifies the dates of military service as well
> as the character of service. If the original document is sent to VETS,
> make a copy for the file and return the original to the claimant.
> Since the completion of service under conditions other than those
> listed as disqualifying is an eligibility requirement for active duty
> and initial active duty for training, these claimants must be able to
> prove such service when asked to do so. [See 20 CFR 1002.135 for types
> of discharge that are considered disqualifying for reemployment
> eligibility under USERRA.](#Sec_1002.135)
>
> Claimants returning from service of 31 or more days are required by
> law to provide copies of pertinent military documents to their
> employers, upon request of the employer. (See 20 CFR 1002.121-122).
> The claimant must provide VETS with proof of legally acceptable
> service even if this does not become an issue in the processing of a
> complaint. Without this documentation, VETS cannot be assured that the
> claimant has USERRA entitlements. Furthermore, a recommendation for
> action by the Attorney General or OSC cannot be made unless the
> referral contains a Form DD-214 or proof of service under qualifying
> conditions.
>
> If the DD-214 reflects that the claimant does not meet the character
> of service eligibility criteria, advise the claimant in writing via
> closing letter that he/she has no statutory USERRA entitlements. The
> claimant will not be entitled to USERRA protection unless the
> discharge is retroactively upgraded by the relevant military
> authorities.
>
> NOTE: Even though an individual does not meet the character of service
> crite­rion, he or she should be informed that to protect the right to
> any entitlements, in the event the discharge is subsequently
> retroactively upgraded, application must be made to the pre-service
> employer within the time limit specified by law, both after the
> initial discharge, [and]{.underline} after the upgrade.
>
> The VETS Investigator should inform the claimant that a veteran
> service organization may be available to provide assistance for an
> upgrade if ap­propri­ate. However, the Investigator is not to become
> actively involved in the claimant\'s efforts to upgrade the discharge.
>
> \(2\) **Helping the Claimant Obtain a Form DD-214.** If not otherwise
> provided, the VETS Investigator will assist the claimant in obtaining
> copies of the Form DD-214 by referring the claimant to a veterans'
> service organization, Military Personnel Records Center or the
> Department of Veterans\' Affairs Regional Office for assistance in
> obtaining a Form DD-214. The form used to request military records is
> a "Standard Form 180". [(See Exhibit 9, Standard Form 180
> \[link\].)](#SF180)
>
> \(3\) **Form DD-215.** This form shows corrections to the Form DD-214.
> Sometimes, the Form DD-214 contains administrative or clerical errors
> which may be relevant to the claimant\'s reemployment rights. If the
> claimant needs assistance in obtaining a Form DD-215 refer him/her to
> the nearest County Veterans\' Service Officer.
>
> Since eligibility must be established prior to processing a case, a
> Form DD-215 establishing eligibility must be obtained prior to a case
> being processed if the original DD Form 214 showed ineligibility.

**.7 Multiple Claimants.** When a number of claimants are involved in
complaints against the same employer, a case will be opened and
processed for each complainant who specifically requests assistance. No
class actions will be entertained during investigative-resolution case
processing. Similar cases involving complaints against the same employer
will be considered companion cases. Companion cases may be assimilated
for purposes of referral memoranda, if the VETS Regional Administrator
believes assimilation would expedite case processing without decreasing
the quality of referral.

**.8 Jurisdiction for Case Opening Purposes.** The case will be opened
by the VETS office serving the complainant\'s work site, not the VETS
office nearest the claimant\'s home nor the first office the claimant
contacts. If it appears that a case should be opened by another VETS
office, immediately inform the complainant, contact that office, and
then forward the VETS Form 1010 and VETS Form 1063 and any other
materials provided to that office.

In cases where the employer is located in more than one state, the
deciding factor on where the case should be opened and investigated is
based on where the employer's management decision was made that prompted
the filing of a USERRA complaint by the claimant. This may or may not be
the location of the claimant's worksite, personnel and payroll files, or
corporate headquarters. Upon receiving a Form 1010, if the VETS office
believes the case should be transferred to another state VETS office
based on the above, the DVET should first coordinate this with the
gaining state's DVET before transferring the Form 1010 or, if already
opened, the case file. Conflicts on where to open a case between DVETs
should be brought to the attention of the Regional Administrator (s) for
resolution.

**.9 Transfer of Case Files**

> When it is necessary to transfer USERRA case files, the DVETs or the
> Senior Investigator responsible for the case will maintain a duplicate
> copy of each case file mailed. When the paper file(s) is shipped to
> the region or reassigned to another state, an e-mail will be sent to
> the office that is to receive the case file identifying the case file
> number, claimant's name, method of shipment, and date shipped. When
> received, the shipper will be notified by e-mail that the file has
> been received. Upon receipt of this e-mail receipt confirmation,
> shipper may destroy the duplicate file.

The shipper and office receiving the case file have joint responsibility
to monitor the shipping and receipt of the file and will begin tracking
inquires if the files are not received at region within 10 working days.
*Upon receiving a Form 1010, if the receiving VETS office believes the
case should be transferred to another state VETS office based on the
above, the DVET should coordinate the transfer of the Form 1010, or the
case if already opened, through the region's Senior Investigator.* Files
hand carried to region are exempt from the above procedures. Until the
appropriate VETS office acknowledges receipt of the case file, the file
will remain open with the shipper.

[Note: Anytime a case file or duplicate case is to be shipped, the
intended recipient should be e-mailed the name of the file and the
tracking number# for the shipment.]{.mark} [Confirmation of receipt will
always be obtained.]{.mark}

**.10 Re-opened Cases.** A closed case may be re-opened if "new and
material" evidence (information) is presented on the original issues or
if it appears that the case was erroneously closed. New evidence is that
which has not been previously considered or associated with the
complaints file. Material evidence is that which bears either directly
or indirectly on the allegations made in the case, and which either
standing alone or in conjunction with evidence already of record could
serve to prove or disprove the allegations asserted in the case. If
those elements are not present, there is no basis to reopen a previously
closed case. For example, if a case was closed by a settlement
agreement, the case may be re-opened if the claimant asserts, or it
otherwise appears, that the employer has not implemented the terms of
the settlement. A re-opened case will (automatically) be given the
original case number with the letter "R" added.

> If documents in one case file, open or closed, are also relevant to
> another open file, the VETS Investigator will make a copy of relevant
> documents and place them in the new file, along with a note giving the
> source.

.**11 Federal Executive Agency Employees (Including Postal** **Service
Employees)**. USERRA requires that VETS provide assistance to Federal
and Postal Service employ­ees, and sets forth the enforcement mechanism
for their complaints. *For reemployment by certain Federal agencies, the
head of the agency, not VETS, shall prescribe procedures for ensuring
that the rights under USERRA are afforded to employees of that agency.
See 5 U.S.C. §2302(a)(2)(C)(ii) for a listing of the agencies
concerned.*

> Complaints from employees of intelligence community agencies must be
> handled by the Inspector General of the respective agency; however, in
> referring intelligence community employees back to the relevant
> Inspector General offices, technical assistance can be provided.

**.12 Concurrent Complaint under a Collective Bargaining Agreement or
State Law.** An inductee or enlistee, Reservist or National Guard
member, examinee, rejectee or NDMS member may have greater rights under
a collective bargaining agreement (CBA) or under State law than under
USERRA. However, neither the CBA nor State law may diminish any of the
claimant\'s rights under USERRA nor impose any additional eligibility
conditions beyond those required by USERRA.

> A claimant is [not]{.underline} required to exhaust administrative or
> arbitration remedies outlined in any State law or collective
> bargaining agreement before requesting assistance under USERRA.
>
> Occasionally, a complaint may be made where a person has initiated a
> proceeding under State law or a CBA before contacting VETS for
> assistance. A case will not be opened until the outcome of the State
> Court action is determined. Once a State Court action is decided and
> the claimant desires to proceed under USERRA, the Regional Office
> should be contacted for guidance.
>
> When a complaint is made where a person has initiated a proceeding
> under a collective bargaining agreement, a case shall be opened and
> shall be processed in the normal manner notwithstanding the pendency
> of the grievance/arbitration proceeding.
>
> If an employer declines to cooperate with an investigation based on
> the asserted application of an arbitration agreement, the Regional
> Office should be immediately contacted for assistance in the
> preparation of a subpoena.

**.13 When Claimant\'s Rights under State Reemployment Laws are
Greater.** If it comes to the VETS investigator\'s attention that the
claimant has greater rights under a State law, the following guidelines
should be observed:

> \(a\) If the claimant is eligible for rights under the State law, but
> [is not eligible]{.underline} for rights under USERRA and since VETS
> does not have the authority to enforce State law, the case should be
> closed. However, the claimant should be referred to the appropriate
> agency or officer of the State who has enforcement authority under the
> State law.
>
> \(b\) If the claimant is eligible under both the Federal and the State
> laws, and it appears that the claimant has greater rights, in whole or
> in part, under the State law, because of the possible complexity of
> such situations, seek guidance from your Regional Office on how to
> proceed with the case.

**.14 Claimant Represented by Private Counsel.** Under USERRA, the
plaintiff (claimant) is the individual inductee or enlistee, Reservist
or National Guard member, examinee, or rejectee or NDMS
member\--[not]{.underline} the Secretary of Labor or the United States.
Although the United States Attorney represents the plaintiff in the
typical court case, the claimant is free to file suit through private
counsel retained at his or her own expense. The claimant is not required
to exhaust any remedies through the Department of Labor before seeking
representation and filing suit through private counsel.

> If the VETS Investigator is contacted by a private counsel who
> requests technical assistance with respect to USERRA, the VETS
> Investigator should refer the private counsel to the appropriate
> Senior Investigator.

**.15 Dual Representation with Respect to Rights under USERRA.**
Although a claimant is entitled to be represented either by VETS
[or]{.underline} by a third party under USERRA, he or she may not be
simultaneously represented by both parties in developing or litigating
the case with the following exception: a claimant may be represented by
an attorney in dealing strictly with VETS as long as that representation
does not interfere with the investigation or the litigation.

> If the claimant insists on being represented by a third party in a
> USERRA complaint, other than strictly with VETS, he or she is to be
> informed that VETS will no longer handle the case and the case will be
> closed. Prohibited third party representation could include private
> counsel, military lawyers/judge advocates, ESGR, or any organization
> performing a function of representation.

**.16 Dual Representation with Respect to Rights under USERRA and
Another Law.** Occasionally, a case may arise wherein the claimant has
arguable rights under USERRA and different rights under another Federal
or State law. For example, a discharged employee may assert that he or
she was fired because of race and also because of a military obligation
in the Reserves. The employee may have private counsel representa­tion
with respect to the racial discrimination complaint, and that attorney
may have chosen, for whatever reason, not to represent the claimant
under USERRA.

> In such a situation, the VETS investigator should contact the private
> attorney to work out an agreement that the USERRA complaint be the
> sole responsibility of VETS. The agreement or a statement of the
> understanding should be reduced to writing and a copy included in the
> file.

**.17 USERRA Complaints Against Church Employers.** If you receive a
USERRA complaint against a church employer, process the case as if no
church element were involved. However, if the employer raises the issue
of separation of church and State, seek guid­ance, through channels, from
the VETS National Office.

**.18** **USERRA Complaints Against Native American Tribes.** If you
receive a USERRA complaint against a Native American Tribe, process the
case as if no Native American Tribe element were involved. However, once
the employer raises the issue of sovereign immunity, seek guidance,
through channels, from the VETS National Office.

[[]{#VETS1063 .anchor}**Exhibit 4: Sample VETS Form
1063**](#VETS1063Ill)

**REPORT OF CONTACT/ATTEMPTED CONTACT**

**UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT**

**U.S. Department of Labor, Veterans\' Employment & Training Service**

**ÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍ**

**CASE NAME:**

**FILE NUMBER:**

**REPORT OF:**

**DATE CONDUCTED:**

**PHONE NUMBER(S): Home:**

**Work:**

**Cell:**

**Fax:**

**E-MAIL Address:**

**NAME(S):**

**ADDRESS(ES):**

ÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍ

**ÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍÍ**

**PREPARER\'S SIGNATURE DATE:**

**PAGE 1 OF 1 PAGES** **EXHIBIT NO:**

![](media/image1.wmf)

[Exhibit 5: Sample Form 1010 - USERRA Eligibility
Data](#SampleForm1010Ill)

[]{#sampleform1010 .anchor}![](media/image1.wmf)

![](media/image1.wmf)

[[]{#SampleCoverletter1010 .anchor}**Exhibit 6: Sample Cover Letter for
VETS Form 1010**](#SampleCoverletter1010Ill)

[[[]{#Exemptions1 .anchor}]{#Exhibit7Exceptionsto5yr .anchor}**Exhibit
7: Exceptions to 5-Year Service Limit**](#Exhibit7Exceptionsto5yrIll)

![](media/image1.wmf)

**[Exhibit 7: (cont.)]{.underline}**

**Specific Active Duty Provisions -- 4312(c)(4)(A)**

10 U.S.C.§12301(a)\...\..... involuntary active duty in wartime.

10 U.S.C.§12301(g)\...\..... retention on active duty while in captive
status.

10 U.S.C.§ 12302\...\...\...\...\... involuntary active duty for
national emergency up to 24 months.

10 U.S.C.§12304\...\...\...\.... involuntary active duty for operational
mission up to 270 days.

10 U.S.C.§12305\...\...\...\.... involuntary retention of critical
persons on active duty during a period of crisis or other specific
condition.

10 U.S.C.§688\...\...\...\...\...\...\..... involuntary active duty by
retirees.

14 U.S.C.§331\...\...\...\...\...\...\..... COAST GUARD involuntary
active duty by retired officer.

14 U.S.C.§332\...\...\...\...\...\...\.... COAST GUARD voluntary active
duty by retired officer.

14 U.S.C.§359\...\...\...\...\...\...\... COAST GUARD involuntary active
duty by retired enlisted member.

14 U.S.C.§360\...\...\...\...\...\...\... COAST GUARD voluntary active
duty by retired enlisted member.

14 U.S.C.§367\...\...\...\...\...\...\... COAST GUARD involuntary
retention of enlisted member.

14 U.S.C.§712\...\...\...\...\...\...\... COAST GUARD involuntary active
duty of Reserve members to augment regular Coast Guard in time of
natural/man-made disaster.

**War or Declared National Emergency \-- 4312(c)(4)(B)**

Provides that active duty (other than for training) because of a war or
national emergency is exempt from the five-year limit [whether voluntary
or involuntary]{.underline}.

> **[Exhibit 7: (cont.)]{.underline}**

**Critical Operational Mission -- 4312(c)(4)(C)**

Provides that active duty (other than for training) in support of an
operational mission for which Reservists have been activated under 10
U.S.C.§ 12304 is exempt from the five-year limit, [whether voluntary or
involuntary]{.underline}. Note: In such a situation,
[involuntary]{.underline} call-ups would be under §12304.
[Volunteers]{.underline} may be ordered to active duty under a different
authority.

**Critical Missions or Requirements \-- 4312(c)(4)(D)**

Provides that active duty in support of certain critical missions and
requirements is exempt from the 5-year limit, [whether voluntary or
involuntary]{.underline}. This would apply in situations such as Grenada
or Panama in the 1980s, when provisions for involuntary activation of
Reserves were not exercised.

**Specific National Guard Provisions \-- 4312(c)(4)(E)**

10 U.S.C. chapter 15\...\...\...\...\...\...\...\..... NATIONAL GUARD
call into Federal service to suppress insurrection, domestic violence,
etc.

10 U.S.C.§12406\...\...\...\...\...\...\...\...\...\.....NATIONAL GUARD
call into Federal service in case of invasion, rebellion, or inability
to execute Federal law with active forces

**20 C.F.R. "Exemptions to 5 year cumulative service":**

**Sec. 1002.100;** The five-year period includes only the time the
employee spends actually performing service in the uniformed services. A
period of absence from employment before or after performing service in
the uniformed services does not count against the five-year limit. For
example, after the employee completes a period of service in the
uniformed services, he or she is provided a certain amount of time,
depending upon the length of service, to report back to work or submit
an application for reemployment. The period between completing the
uniformed service and reporting back to work or seeking reemployment
does not count against the five-year limit.

**Sec. 1002.101;** An employee is entitled to a leave of absence for
uniformed

service for up to five years with each employer for whom he or she
works. When

the employee takes a position with a new employer, the five-year period
begins again regardless of how much service he or she performed while
working in any

previous employment relationship. If an employee is employed by more
than one

employer, a separate five-year period runs as to each employer
independently, even if those employers share or co-determine the
employee\'s terms and conditions of employment.

> **[Exhibit 7: (cont.)]{.underline}**

**Sec. 1002.102;** USERRA provides reemployment rights to which an
employee

may become entitled beginning on or after December 12, 1994, but any
uniformed

service performed before December 12, 1994, that was counted against the
service

limitations of the previous law (the Veterans Reemployment Rights Act),
also

counts against USERRA\'s five-year limit.

**Sec. 1002.103;** USERRA creates the following exceptions to the
five-year limit

on service in the uniformed services:

\(1\) Service that is required beyond five years to complete an initial
period of

obligated service. Some military specialties require an individual to
serve more

than five years because of the amount of time or expense involved in
training. If

the employee works in one of those specialties, he or she has
reemployment rights

when the initial period of obligated service is completed;

\(2\) If the employee was unable to obtain orders releasing him or her
from service

in the uniformed services before the expiration of the five-year period,
and the

inability was not the employee\'s fault;

(3)(i) Service performed to fulfill periodic National Guard and Reserve
training

requirements as prescribed by 10 U.S.C. 10147 and 32 U.S.C. 502(a) and
503;

and, (ii) Service performed to fulfill additional training requirements
determined and certified by a proper military authority as necessary for
the employee\'s

professional development, or to complete skill training or retraining;

\(4\) Service performed in a uniformed service if he or she was ordered
to or

retained on active duty under:

> \(i\) 10 U.S.C. 688 (involuntary active duty by a military retiree);\
> (ii) 10 U.S.C. 12301(a) (involuntary active duty in wartime);\
> (iii) 10 U.S.C. 12301(g) (retention on active duty while in captive
> status);\
> (iv) 10 U.S.C. 12302 (involuntary active duty during a national
> emergency for up to 24 months);\
> (v) 10 U.S.C. 12304 (involuntary active duty for an operational
> mission for up to 270 days);\
> (vi) 10 U.S.C. 12305 (involuntary retention on active duty of a
> critical person during time of crisis or other specific conditions);\
> (vii) 14 U.S.C. 331 (involuntary active duty by retired Coast Guard
> officer);\
> (viii) 14 U.S.C. 332 (voluntary active duty by retired Coast Guard
> officer);\
> (ix) 14 U.S.C. 359 (involuntary active duty by retired Coast Guard
> enlisted member);\
> (x) 14 U.S.C. 360 (voluntary active duty by retired Coast Guard
> enlisted member);\
> (xi) 14 U.S.C. 367 (involuntary retention of Coast Guard enlisted
> member on active duty); and\
> (xii) 14 U.S.C. 712 (involuntary active duty by Coast Guard Reserve
> member for natural or man-made disasters).

\(5\) Service performed in a uniformed service if the employee was
ordered to or

retained on active duty (other than for training) under any provision of
law

because of a war or national emergency declared by the President or the
Congress,

as determined by the Secretary concerned;

\(6\) Service performed in a uniformed service if the employee was
ordered to

active duty (other than for training) in support of an operational
mission for which

personnel have been ordered to active duty under 10 U.S.C. 12304, as
determined

by a proper military authority;

\(7\) Service performed in a uniformed service if the employee was
ordered to

active duty in support of a critical mission or requirement of the
uniformed

services as determined by the Secretary concerned; and,

\(8\) Service performed as a member of the National Guard if the
employee was

called to respond to an invasion, danger of invasion, rebellion, danger
of rebellion,

insurrection, or the inability of the President with regular forces to
execute the

laws of the United States.

\(9\) Service performed to mitigate economic harm where the employee\'s
employer

is in violation of its employment or reemployment obligations to him or
her.

The National Committee for Employer Support of the Guard and Reserve
will keep the VETS national office informed of developments in this area
as they occur (e.g., the manner in which the necessity of additional
Reserve training is to be documented).

[[]{#SF180 .anchor}**Exhibit 9: Standard Form 180
(Hyperlinked)**](#SF180Ill)

![](media/image2.wmf){width="6.120833333333334in"
height="7.871527777777778in"}

**[Exhibit 9: Standard Form 180 (Hyperlinked)]{.underline}**

![](media/image3.wmf){width="6.258333333333334in"
height="7.871527777777778in"}

[[[]{#Exhibit4d4 .anchor}]{#Exhibit12Smplltrtoclmtacknrcptofclaim
.anchor}**Exhibit (11): Sample Letter to Complainant Acknowledging
Receipt of Complaint**](#Exhibit11SmpleEmplyrOpngLtrReinIll)

**U.S. Department of Labor**

**Veterans' Employment and Training Service**

**Street Address**

**City, State, Zip Code**

Date

Claimant Name

Street Address

City, State, Zip Code

RE: Claimant Name

Case Number

Dear Claimant's Name:

We have received your Uniformed Services Employment and Reemployment
Rights Act (USERRA) complaint against your employer, EEEEEEEE, and
opened a case on October 1, 20XX.

Please submit all documentation relevant to your complaint to me at the
letterhead address as soon as possible. **Do not send originals, send
unaltered complete copies only.** (NOTE TO INVESTIGATOR: If eligibility
documentation was not provided with the original submission or if there
are specific documents necessary for the investigation, include a
request for the documentation here).

If you signed an arbitration agreement (or if an arbitration agreement
is part of a relevant collective bargaining agreement at your worksite),
you should submit a complete copy of the agreement to me as soon as
possible. If you have witnesses you wish to offer, please provide the
contact information listed in item 1. above as soon as possible. You may
submit the information via telephone to me at ???-???-????, by facsimile
at ???-???-????, or by email to <LastName.FirstName@dol.gov>. Voice mail
is provided if we are unavailable. Please leave a detailed message and
someone will contact you as soon as possible.

The following is important if you have witness that can provide
documentary and/or testimonial evidence to support your complaint:

1.  The following information must be provided for each witness:

    a.  Full name, address (including zip code), and telephone number
        (including area code;

    b.  If the witness is a co-worker, provide his/her job title;

    c.  Summarize the information you believe the witness is able to
        provide; and

    d.  Provide the date, time, and place that is most convenient to
        meet with or contact the witness. The place should be away from
        the work site, if possible.

2.  If asked to, you must assist in locating your witnesses;

3.  Do not "coach" witnesses by telling them what to say;

4.  Witness interviews may be face-to-face, by telephone, or by mail;

5.  You will not be allowed to participate when a witness is being
    interviewed;

6.  A witness may refuse to cooperate without providing justification;

7.  Witness anonymity is provided to the extent possible by the
    Veterans' Employment and Training Service. However, if your
    complaint is referred to the U.S. Attorney General/Office of Special
    Counsel (select relevant agency) for possible litigation, witness
    identities may be revealed to interested parties; and

8.  Protection against retaliation to those who assist with the
    investigation is provided by the reemployment rights statute.

VETS will investigate your complaint and if it determines that the
alleged action occurred, it will attempt to resolve the complaint by
making reasonable efforts to ensure that the employer complies with
USERRA. If VETS is not able to resolve your complaint, VETS will notify
you in writing of the results of its investigation and advise you of the
right to seek referral of your complaint to the U.S. Attorney
General/Office of Special Counsel (select relevant agency) for
consideration of litigation.

Sincerely,

Investigator's Name

Investigator's Title

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> 5
>
> [[]{#Chapter_5 .anchor}**Chapter 5**](#TOC5X)

[**Initial Contact With Employer**](#TOC5X)

> **.1 Initial Contact with Employer.** The initial contact with the
> claimant\'s employer should be made not later than three working days
> after the case is opened if the claimant is currently unemployed or
> threatened with unemployment because of a discharge due to military
> obligations; or was not reinstated after returning from military
> training or service and is currently unemployed. In all other cases,
> the initial contact must be made [within 7 business days]{.underline}
> after the case is opened[. **Under no circumstances should an
> Investigator contact the employer prior to the**]{.mark} [**case being
> opened.**](#Whentoopenacase)
>
> The initial contact should normally be made [by
> telephone]{.underline}, because this is generally the most expeditious
> method of obtaining informa­tion about the situation. Also, the
> employer may be unfamiliar with USERRA and may be willing to comply
> with the law once the VETS Investigator explains the employer\'s legal
> obligations.
>
> When it is known that the claimant was previously working with an
> Ombudsman from the Employer Support of the Guard and Reserve (ESGR),
> the VETS investigator should, before contacting the employer, first
> confer with the ESGR Ombudsman to determine the background of the
> complaint and to obtain available documents. ESGR policies may limit
> the degree of participation in sharing of case information.

**.2** **Goals of Initial Contact**. The objectives of the initial
contact are to let the employer know about the complaint; to verify the
correct person or persons to respond for the employer, to explain, if
needed, the requirements of USERRA and VETS role in the resolution
process; to set forth the remedies the claimant is seeking; to obtain
the employer\'s explanation of the situation; to seek a resolution of
the complaint through voluntary compliance or settlement if appropriate.

**.3** **Opening Letter**. An opening letter must always be sent to the
employer, even when the initial contact is made by telephone, unless
after case opening the case is immediately closed due to non-eligibility
of the claimant. If the case is resolved during the initial telephone
contact, send the employer a letter confirming what the employer and the
claimant have agreed to do. In such a situation, the opening letter may
also serve as the closing letter.

> \(1\) **Tone**. Opening letters are to be phrased in specific
> information seeking terms and are not to contain words or statements
> calculated to trigger adverse, angry, or hostile reactions. The letter
> should identify the statute under which the complaint arises, but
> court case citations [will not]{.underline} be included in an opening
> letter unless by previous request of the employer\'s attorney. The
> letter should not contain lan­guage which would cause the employer to
> infer that the VETS investigator has already arrived at a conclusion
> as to the merits of the complaint.
>
> \(2\) **Contents.** Whether it is the initial contact with the
> employer or a confirmation of an opening telephone discussion, the
> opening letter should be tailored to the situation. It will contain,
> at a minimum:
>
> \(a\) The legal citation to USERRA;
>
> \(b\) The name of the claimant and whether he or she is an inductee or
> enlistee returning from active duty, Reservist, National Guard member,
> examinee, or rejectee, covered NDMS member, is a former servicemember,
> or is a person who assisted in a USERRA complaint;
>
> \(c\) The fact that the individual is seeking assistance under USERRA
> \-- the specifics of the complaint and remedies sought;
>
> \(d\) The claimant\'s apparent eligibility for rights based on the
> information contained in the claimant\'s Eligibility Data Form;
>
> \(e\) Specific sections of USERRA that are applicable and the fact
> that back wages may be accruing, if applicable;
>
> \(f\) A request for a copy of the appropriate collective bargaining
> agreement, arbitration agreement, employee handbook and/or employer
> policies relevant to the issues; and
>
> \(g\) A request that the employer provide a position statement
> including rele­vant documentation by a specific date and that the
> response be sent to the attention of the VETS investigator to whom the
> case is assigned;
>
> Exhibit 12 shows a sample opening letter in a case where the claimant
> seeks reemployment based on seniority, Exhibit 13 shows a sample case
> where the claimant seeks reemployment based on military service
> discrimination, and Exhibit 14 shows a sample opening letter that is
> also a closing letter.
>
> \(3\) **Distribution.** The original is sent to the employer. Copies
> are distributed as follows:
>
> \(a\) Copy is sent to the claimant. Claimant is provided copies of all
> correspon­dence initiated and sent by VETS on his or her behalf.
>
> \(b\) Copy is placed in the investigative case file.

c.  Copies are sent to other parties, as deemed appropriate by the VETS
    investigator (e.g., a referring agency or union).

> [(d) Federal Chief Human Capital Officers will receive courtesy copies
> of all opening letters against their respective Agency.]{.mark}

[]{.mark}

**[EXECUTIVE BRANCH CHIEF HUMAN CAPITAL OFFICERS]{.underline}**

**Office of Personnel Management**

Chief Human Capital Officer

1900 E Street, N.W., Suite 5H09

Washington, DC 20415

Phone: 202-606-1000/Fax: 202-606-4489

**Department of Agriculture**

Chief Human Capital Officer

1400 Independence Avenue, S.W., Room 209A

Washington, DC 20250

Phone: 202-720-3291/Fax: 202-720-2191

**Department of Commerce**

Chief Human Capital Officer

14^th^ Street and Constitution Avenue, N.W.

Washington, DC 20230 Phone: 202-482-4951/Fax: 202-482-3592

**Department of Defense**

Chief Human Capital Officer

The Pentagon, Room 3E764

Washington, DC 20301

Phone: 703-695-5254/Fax: 703-693-0171

**Office of Management and Budget**

Chief Human Capital Officer

1600 Pennsylvania Avenue, N.W., EEOB, Room 260

Washington, DC  20502

Phone:  202-456-7070/Fax:  202-456-5938

**Department of Energy**

Chief Human Capital Officer

1000 Independence Avenue, SW

Room 4E-084, Forrestal Bldg.

Washington, DC 20585

202.586.5610

**Department of Health and Human Services**

Chief Human Capital Officer

200 Independence Avenue, S.W., Room 300E

Washington, DC 20201

Phone: 202-690-6191/Fax: 202-690-6758

**Department of Housing and Urban Development**

Chief Human Capital Officer

451 7^th^ Street, S.W.

Washington, DC 20410

Phone: 202-708-0940/Fax: 202-619-8129

**Department of Education**

Chief Human Capital Officer

400 Maryland Avenue, S.W.

Washington, DC 20202

Phone: 202-260-7337/ Fax: 202-260-3761

**Department of Homeland Security**

Chief Human Capital Officer

1201 New York Avenue, N.W.

Washington, DC 20528

Phone: 202-357-8151/Fax: 202-357-8295

**Department of the Interior**

Chief Human Capital Officer

1849 C Street, N.W.

Washington, DC 20240

Phone: 202-208-6291/Fax: 202-513-0734

**Department of Justice**

Chief Human Capital Officer

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Phone: 202-514-5501/Fax: 202-305-4746

**Department of Labor**

Chief Human Capital Officer

200 Constitution Avenue, N.W.

Washington, DC 20210

Phone: 202-693-4040/Fax: 202-693-4055

**Department of State**

Chief Human Capital Officer

HST Room 6218

2201 C Street, N.W.

Washington, DC  20520

Phone: 202-647-9898/Fax: 202-647-5080

**Department of Transportation**

Chief Human Capital Officer

1200 New Jersey Avenue, SE

8^th^ Floor, West Building

Washington, DC 20590

Phone: 202-366-2332/Fax: 202-366-2191

**Department of the Treasury**

Chief Human Capital Officer

1500 Pennsylvania Avenue, N.W.

Room 1136MT

Washington, DC 20220

Phone: 202-622-6052/Fax: 202-622-0300

**Department of Veterans Affairs**

Chief Human Capital Officer

810 Vermont Avenue, N.W.

Washington, DC 20420

Phone: 202-273-4901/Fax: 202-273-4914

**Environmental Protection Agency**

Chief Human Capital Officer

1200 Pennsylvania Avenue, N.W.

Washington, DC 20460

Phone: 202-564-4600/Fax: 202-564-0233

**National Aeronautics and Space Administration**

Chief Human Capital Officer

300 E Street, S.W.

Washington, DC 20546

Phone: 202-358-0520/Fax: 202-358-3039

**Nuclear Regulatory Commission**

Chief Human Capital Officer

Mail Stop: GW 5A06

Washington, DC 20555

Phone: 301-492-2076/Fax: 301-492-2241

**Office of Personnel Management**

Chief Human Capital Officer

1900 E Street, N.W.

Washington, DC 20415

Phone: 202-606-3207/Fax: 202-606-4520

**Social Security Administration**

Chief Human Capital Officer

6401 Security Boulevard

Baltimore, MD 21235

Phone: 410-965-1900/Fax: 410-965-8996

**General Services Administration**

Chief Human Capital Officer

1800 F Street, N.W.

Washington, DC 20405

Phone: 202-501-0398/Fax: 202-219-0982

**Intelligence Community Chief Human Capital Officer**

Chief Human Capital Officer

Office of the Director of National Intelligence

Washington, DC 20511

Phone: 202-201-1822/Fax: 202-201-1379

Phone: 703-482-1290/Fax: 703-482-0684

**National Science Foundation**

Chief Human Capital Officer

4201 Wilson Blvd.

Arlington, VA 22230

Phone: 703-292-8100/Fax:

**Federal Trade Commission**

Chief Human Capital Officer

600 Pennsylvania Avenue

Washington, DC 20580

Phone: 202-326-2748

**.4 Employer\'s Response.** The employer\'s response to the initial
contact is vitally important because it suggests the direction the case
may take and, to some extent, the amount of time and effort that will be
involved. The employer\'s initial response should not be automatically
interpreted as a firm position, but as an immediate reaction which may
change as the case develops and the employer better understands USERRA.
**The VETS investigator should [not]{.underline} send the employer\'s
response directly to the claimant.** The VETS investigator
[must]{.underline} summarize information contained in the employer\'s
response before conveying it to the claimant. Summaries must also be
used when there is a need to inform the claimant of subsequent important
employer responses.

> \(1\) **Positive.** If the employer\'s response recognizes the
> validity of the claimant\'s allegations, or at least does not contest
> them, resolution may be imminent. If resolution is attained, verify
> that the claimant has received his/her entitlements under the law, and
> close the case. (See Chapter 9, Case Closing.)
>
> \(2\) **Noncommittal or Negative.** If the employer\'s response is
> noncommittal or
>
> negative, continue investigation and seek resolution.
>
> (See Chapter 6, Investigation; **Sec. 1002.139 Employer Defenses; Sec.
> 1002.22-23 Discrimination/Retaliation proof** )
>
> \(3\) **Missing Information or Information Not Fully Clarified.** If
> the employer\'s initial response fails to contain all necessary
> information, or if the information is unclear, seek clarification from
> the employer, either by telephone or in writing.
>
> \(4\) **No Response.** If the employer does not respond to telephone
> messages or does not respond to an opening letter within 10 working
> days after the response date cited in the letter, send a Certified
> Mail-Return Receipt letter with a new response date and notification
> that ["this is an attempt to avoid the need for a subpoena"]{.mark}
> and continue contacting the employer on a regular basis by telephone.
> If the employer does not respond within 10 working days after the new
> response date, consult with the next higher office (Regional Office or
> DVET Office) to determine possible future actions.

**.5** []{#AdvisoryopinltrQAR .anchor}**Advisory Opinion Letter.** As
soon as possible, but no later than 10 working days after the employer
brings up an issue of law anytime during case processing\--such as
during initial contact, by phone, in a letter, during a conference,
etc., consult with the Regional Office for guidance. Answer the
employer\'s questions in writing.

**.6 [Contact with Claimant. ]{.mark}**[Within three working days after
receiving the employer\'s response, the VETS investigator should contact
the claimant to describe the employer\'s point of view. The claimant
must be informed of and given the opportunity to rebut any relevant
allegation that may affect the outcome of his/her case. This contact
should be recorded using the VETS form 1063]{.mark}.

[[]{#Exhibit11SmpleEmplyrOpngLtrRein .anchor}**Exhibit 12: Sample
Employer Opening Letter --
Reinstatement**](#Exhibit11SmpleEmplyrOpngLtrReinIll)

**U.S. Department of Labor**

**Veterans' Employment and Training Service**

**Street Address**

**City, State, Zip Code**

Date

EEEEEEE\
Street

Suite

City, State Zip

> Re: XXXXXXX\
> Case No.

Dear EEEEEEE:

Thank you for taking the time to speak with me on (date), regarding the
above-referenced matter. As I explained in our telephone conversation,
this agency is responsible for seeking compliance with the Uniformed
Services Employment and Reemployment Rights Act of 1994 (USERRA),
codified at Title 38 U.S. Code Sections 4301 -- 4334 and 20 C.F.R. Part
1002. (XXXXXXX) has requested assistance in determining and exercising
his reemployment rights under USERRA into an appropriate position at
(the Employer).

In general, to qualify for reemployment protections under USERRA, a
service member must leave a non-temporary employment position to perform
military service, provide notice to the employer of the military
service, serve for fewer than five years, have a qualifying discharge
from the military, and make a timely request for reemployment. *See* 38
U.S.C. § 4312(a) and 20 CFR 1002.32. (XXXXXXX) began employment with
Employer on (date). He was a (Position) when he left on (date) to
perform service in the uniformed services and provided notice of his/her
military service. He served honorably in the (unit/branch) from (date)
to (date). Based on the information provided to date, (XXXXXX) is
eligible for employment protection under USERRA.

\(XXXXXXX\) states he was employed with Employer from October 1991 to
present. (XXXXXXX) contends that, while he was deployed for service in
the uniformed services, a contract was passed which resulted in several
positions being opened. Many senior employees retired, and many jobs
became open, including the job of Position. According to (XXXX), the
Position however was awarded to someone other than (XXXXXXX), however.
(XXXXXXX) sought the Position because, while it may not be a more senior
position than his current position, the status inherent to the position
is viewed as being greater than the status of his current position.

\(XXXXXXX\) maintains that it is the practice of the Employer to award
such jobs based on seniority. (XXXXXXX) contends that he was the senior
most person who would have bid for that job and, as such, he should have
been placed in that job upon his return from service in the uniformed
services. (XXXXXXX) stated that the Employer told him that because he
was not physically there to bid on the job, it had no obligation to
offer him the job.

If it is your practice to award jobs based on seniority, and if
(XXXXXXX) bid on the job in the sign shop (or it is reasonably certain
that he would have bid on this job) and he was the most senior bidding
on that job, then USERRA requires that he be placed in the sign shop
position, effective upon his date of reemployment. Should the evidence
support the claimant's allegations he/she may be eligible for lost or
disadvantaged wages and benefits from the date of the denial of
reemployment, until a proper offer of reemployment is made.

Please provide us with your position statement and any documentation
that will support your position that you did not violate (XXXXXXX's)
rights under USERRA when you failed to promote him into the (position)
in the sign shop when he returned from military duty.

Your response is requested by (date 10 business days from submission of
letter).

Please contact me at (phone number) if you have questions regarding this
complaint.

Sincerely,

Investigator

cc: XXX

[**Exhibit 13: Sample Employer Opening Letter --
Discrimination**](#Exhibit13SmpleEmplyrOpngLtrDisIll)

[]{#exhibit13smpleemplyropngltrdis .anchor}**U.S. Department of Labor**

**Veterans' Employment and Training Service**

**Street Address**

**City, State, Zip Code**

Date

(EEEEEEE)\
Street

Suite

City, State Zip

> Re: (XXXXXXX)\
> Case No.

Dear (EEEEEEE):

Thank you for taking the time to speak with me on (date) regarding the
above referenced matter. As I explained in our telephone conversation,
this agency is responsible for seeking compliance with the Uniformed
Services Employment and Reemployment Rights Act of 1994 (USERRA),
codified at Title 38 U.S. Code Sections 4301 -- 4334 and 20 C.F.R. Part
1002. (XXXXXXX) has requested our assistance in determining and
exercising his employment rights under USERRA and restoring him to his
former position at the ((Employer)).

A person alleging discrimination under USERRA must establish that he or
she is protected as result of past, present or future affiliation with
the uniformed services, that an adverse employment action by the
(Employer) or prospective (Employer) occurred, and that there was a
causal relationship between the claimant's protected status and the
adverse employment action. The claimant does not need to show that his
or her status was the sole factor in the employment action; the person
need only show that his or her status was a motivating factor in the
employment action. 20 C.F.R. § 1002.23.

\(XXXXXXX\) states he was employed by (Employer) from September 14,
1998, until December 20, 2006, when he was terminated. (XXXXXXX)
contends that his service in the U.S. Air Force Reserve was a motivating
factor in his termination. Specifically, (XXXXXXX) complaints that, on
several occasions, he was threatened with termination because of his
military requirements. (XXXXXXX) states that one such threat occurred in
January 2005, after he informed his supervisor, (Supervisor's name), of
upcoming military duty. (XXXXXXX) complaints that the authenticity of
his orders was challenged by Supervisor, who subsequently contacted
(XXXXXXX's) military commander to confirm his service requirements.
Additionally, upon his return from that duty in late February 2006,
(XXXXXXX) contends that he was harassed and threatened for using
military leave. Also, (XXXXXXX) further contends that in August 2005,
after giving notice of upcoming military service, Supervisor remarked to
the effect that were it not for (XXXXXXX)'s military service, he would
not be working. XXXXXXX understood this to be a disparaging remark that
was meant to convey disdain for his military service. XXXXXXX reported
for duty on September 5 and returned on October 2, at which time he
informed his supervisor of additional military service. Thereafter,
(Employer) proceeded with a pre-disciplinary meeting. (XXXXXXX) was
terminated in December 20, 2006.

\(XXXXXXX\) complaints that he was terminated because (state the
specific reasons provided by the Claimant). During our conversation, you
indicated that you had information which supports the termination and
that his military service was in no way a motivating factor in this
decision. Please provide us with your position statement and
documentation that will support your position regarding(XXXXXXX)'s
termination.

This request includes all documents, including email, handwritten notes,
memoranda, or any other means of recording information from anyone
exercising any authority of(XXXXXXX), that relate in any way
to(XXXXXXX)'s performance, disciplinary actions, or his military
service. We need to know specifically the circumstance of(XXXXXXX)'s
termination and what was considered in the termination action.

Should the evidence support the(XXXXXXX)'s allegations,(XXXXXXX) may be
eligible for lost wages and benefits derived from the employment action.

Your response is requested by (date 10 business days from submission of
letter).

Please contact me at (phone number) if you have questions regarding this
complaint.

Sincerely,

Investigator

cc: (XXXXXXX)

[[]{#Exhibit14SampleOpngnclsngltr .anchor}**Exhibit 14: Sample Opening
and Closing Letter**](#Exhibit14SampleOpngnclsngltrIll)

**U.S. Department of Labor**

**Veterans' Employment and Training Service**

**Street Address**

**City, State, Zip Code**

Date

\(XXXXXXX\)

Street Address

City, State, Zip Code

Re: (XXXXXXX)

Case Number

Dear (XXXXXXX) :

Thank you for taking such prompt action to provide a proper reemployment
position to reservist (XXXXXXX) . (XXXXXXX) has verified that he started
work on Monday, August 1^st^. His position is "20 Cold Form Press Brake
Operator" on the 2^nd^ shift. His starting rate is \$12.53 per hour. His
seniority date is May 15, 20XX.

In view of this action, we are closing (XXXXXXX)'s case file.

Sincerely,

Investigator's Name

Investigator's Title

cc: (XXXXXXXX)

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6

[**Chapter 6**](#TOC6X)

[[]{#chapter_6 .anchor}**Investigation**](#TOC6X)

**.1 Objective of Investigation.** The basic/mandated reason for
investigating a complaint under USERRA is to determine the facts
necessary to evaluate the merits of the complaint, to proceed with these
facts to resolve the issues, and to conclude the case in a satisfactory
manner. The investigation should also provide sufficient accurate
information to permit an effective presentation at a civil trial if
litigation is necessary. This requires a careful assembling and
evaluation of provable facts and accurate and complete reports of
contacts, including interviews. [See Chapter 2, paragraph
1.](#GeneralProcess)

**.2 Investigative Ethics:** An intangible, but exceptionally important
part of being a VETS Investigator, is maintaining an objective and
completely impartial attitude toward case handling. Any appearance of
favoritism or emotional involvement with a case may not only cause
embarrassment to the Agency, but will destroy employer and claimant
con­fidence, hindering the Investigator\'s ability to gather necessary
facts from all relevant sources. This would reduce VETS' effectiveness
in negotiations and other dealings with the public. Some basic
guidelines for investigator conduct:

> \(1\) Maintain absolute integrity and honesty with all parties in a
> case. Answer questions completely, while keeping the identity of
> information sources confiden­tial. If asked by anyone for the name of
> the person who provided certain informa­tion, politely refuse,
> explaining that VETS does not release information during an
> invest­igation to avoid placing any person in jeopardy.
>
> \(2\) Conduct the investigation fairly and without bias. Avoid snap
> judgments, and do not give "updates" to either party concerning the
> current evaluation of the complaint. Doing so can be damaging if the
> final determination is at odds with the "update." Wait until
> [all]{.underline} the evidence is gathered before announcing any
> conclusion, and even then, leave the door open for new evidence.
>
> \(3\) Do not accept anything from either employers or claimants. For
> example, if investigating a restaurant, refuse coffee and go elsewhere
> for lunch. The key here is to avoid any appearance of accepting favors
> or appearance of conflict of interest.
>
> \(4\) Investigations may become highly charged with emotions. The VETS
> investigator must keep his or her head though others may be losing
> theirs. Avoid becoming part of the problem.
>
> \(5\) If a relative works for, or is otherwise closely associated with
> either party, attempt to have another person handle the case to avoid
> any possible complaint of conflict of interests. If this is not
> possible, inform the Regional Office and discuss the matter up front
> with both sides to defuse any potential the problem before it starts.
>
> \(6\) Do not casually discuss or otherwise mention details of any open
> or closed case to anyone except those charged with USERRA
> responsibilities. Maintain confidenti­ality for both the employer and
> the claimant.
>
> \(7\) []{#consult .anchor}If an investigator has any questions or
> doubts concerning a situation in which he or she is involved, or is
> about to be involved, that person should consult with his or her
> supervisor before continuing. [\[QAR\]](#QARForm)

**.3 Need for Impartial Investigation.** USERRA does not empower VETS to
make findings or rulings that are binding on the employer or the
claimant. Rather, the role of the VETS investigator is to assist the
claimant by objective fact finding. In order to resolve cases, the VETS
investigator must make a thorough and objective investigation.

**.4 Investigative Steps.** To conduct a quality investigation, the VETS
investigator must follow a systematic procedure. Preparation and laying
of a good foundation are the key to any investigation.

> \(1\) Identify the Issues: Upon receipt, the complaint must be
> thoroughly analyzed, and the VETS investigator must have a full
> understanding of the relevant issues, and the remedies sought. *The
> identification of the correct issue(s) is critical as it is only this
> alleged issue(s) that should be identified in the opening letter to
> the employer.*
>
> **Note:** Investigators must determine whether the claimant has signed
> an arbitration agreement. Case law in certain federal circuits has
> held that a USERRA claimant may be bound by the terms of an
> arbitration agreement to resolve a USERRA dispute through arbitration.
> If an arbitration agreement exists, obtain a copy and discuss the
> issue with the Regional Office immediately.
>
> \(2\) Determine the Applicable Sections of the Statute and
> Regulations: Once the issues and []{#Investigativesteps
> .anchor}remedies are identified, it is necessary to determine those
> sections of the Act, regulations and case law that may apply to such
> issues. If the investigator is unsure as to the applicable sections,
> contact the next higher office (DVET or Region) for guidance.
>
> \(3\) Prepare Investigative Plan: The need for a formal investigation
> will usually be determined by the first or second employer contact.
> Before starting a formal investigation, develop a written
> investigative plan. The investigative plan should identify the issues
> in the case, taking case law and VETS' policies into account. It
> should also identify any evidence needed to make a factual
> determination; the means by which that evidence is to be obtained
> (e.g. interview, records review); and all steps necessary to arrive at
> a determination on the merits of the complaint.

**.5 Obtaining Records and Information.** Information can be obtained
not only from the employer, claimant, and witnesses, but also from
Federal and State agencies, unions, military organizations, and others.
Information and supporting documentation should be requested from all
sources as early as possible during the investigation. If no information
is provided promptly and voluntarily, contact the Regional Solicitor to
discuss use of a subpoena to obtain the information. See .14 below.

**.6** []{#Interviews .anchor}**Interviews.** In-person interviews are
the most effective means of gathering information from a claimant,
employer, or witness. During the investigation, conduct in-person
interviews of all available persons who may have knowledge of relevant
facts, if practicable. Witnesses should be interviewed separately. A
signed statement (Witness Statement, Exhibit 18) should be sought from
each person who supplied relevant information at the end of the
interview. Individuals should understand that signing the statement is
voluntary. The claimant should not have access to the records of other
employees and should not be present when a witness is being interviewed.
[\[QAR\]](#QARForm)

> \(1\) **Objectives Of Interviewing.** The objective of an interview is
> to develop credible information relevant to the investigation. It is
> also used to verify information taken from records, and that obtained
> from other people. Ad­ditionally, it may be used to develop leads to
> new case information. Particular objectives will vary with the facts
> or circumstances of each case.
>
> Be prepared for interviews. Thoroughly analyze all available
> background informa­tion, evidence, and any other material. Determine
> what needs to be resolved through each interview. Develop a list of
> questions for each person to be inter­viewed. When a response to a
> particular question dictates such, follow-up questions should be
> utilized to clarify the previous response, or to obtain additional
> relevant information that would lead to new case information.
>
> \(2\) **Documenting Interviews.** The contents of each interview will
> be documented on a Witness Statement (Exhibit 18). Signed statements
> should be requested from witnesses who provide relevant evidence.
> After writing the statement, have the witness read it, and note any
> objections to the wording. Correct the statement by drawing a single
> line through the part to be changed, and have the witness print the
> change (if needed) above it. Have the witness initial each change.
> When finished, complete the attestation at the bottom of the form. The
> witness will be asked to initial at the end of the last line of the
> last paragraph on each page and sign on the last page after the
> declaration statement. After the witness signs and dates the form, the
> VETS investigator signs just below the witness' signature, as a
> witness to the signing. If a witness refuses to sign the form, the
> investigator should write "Refused to sign" where the witness would
> have signed, write the date, and then sign it. A separate VETS Form
> 1063 should be prepared detailing why the witness refused to sign the
> statement.
>
> **Note:** In carrying out an investigation, section 4326 of USERRA
> provides that VETS shall, at all reasonable times, have access to and
> the right to interview persons with information relevant to the
> investigation. If such persons refuse to make themselves available for
> an interview, USERRA authorizes VETS to seek their testimony by
> subpoena. See section .14 below.

**.7 Use of Telephone and E-mail.** Telephone and E-mail provide
immediate access to basic information, to clarify points, to verify
information, to obtain witnesses\' names and addresses, to relay offers
and counter-offers of settlement, to explain administrative processing
of cases, and to schedule appointments. **However, telephone and E-mail
contacts should not be used as the exclusive or even the primary method
of investigation.**

> All significant information obtained over the telephone and E-mail or
> otherwise obtained verbally (such as the position of the employer)
> should be confirmed in writing, which may include E-mail
> correspondence/confirmation when warranted. If there is reason to
> believe that the addressee might deny receipt of VETS correspondence,
> attempt to misconstrue information provided by the VETS investigator,
> or change his/her position later, the correspondence will be sent by
> Certified Mail (return receipt). The importance of what the employer
> tells the VETS investigator cannot be over-emphasized because
> statements made against self interest by supervisors or managers can
> be binding in court, if properly noted and confirmed in writing.

**.8 Updating** []{#UpdatingInvestigativeplan .anchor}**Investigative
Plan.** After 60 calendar days, the investigative plan will be revised
to include a timetable for completion of investigation. Following the
initial revision, the plan will be updated every 30 calendar days after
that as long as the case remains open. In revising the investigative
plan, follow these guidelines: [\[QAR\]](#QARForm)

> \(1\) Identify the remaining unresolved issues.
>
> \(2\) Define possible remedies for each remaining issue to resolve the
> complaint.
>
> \(3\) [Consult with the Senior Investigator prior to determining what
> further investigation needs to be done to either resolve or refer the
> complaint.]{.mark}
>
> **Note:** If possible, investigations should be completed no later
> than 90 calendar days after a case is opened. [After 90 days, serious
> consideration should be given to whether the additional information
> sought can realistically be obtained within a reasonable period of
> time. This consideration should be carefully balanced with the primary
> goal of a quality investigation.]{.mark}

**.9** []{#OnSiteInvestigations .anchor}**On-Site
Investigations[.]{.mark}** [An on-site investigation should be conducted
when the investigator doubts the veracity of information provided by the
employer or otherwise believes an on-site investigation would be
beneficial.]{.mark} An on-site investigation will be necessary when
relevant documents and records that cannot otherwise be obtained or
where witnesses need to be personally interviewed. The importance of an
on-site investigation to resolve disparate application of benefits of
employment (compara­tive issues) cannot be over-emphasized. On-site
visits should be scheduled in advance, and the employer should be sent a
letter confirming the visit. (Exhibit 17 shows a sample letter
scheduling an on-site visit). [**\[QAR\]**](#QARForm)

**.10 Contacts with Employer\'s Attorney.** When the employer indicates
that the matter has been placed in the hands of counsel or when the
employer\'s reply comes from an attorney, all future VETS contacts with
the employer concerning the case will be made exclusively through the
attorney unless permission is obtained from the attorney to speak
directly to the employer. [Regional SIs should be notified when an
employer is represented by counsel]{.mark}. Contacts and/or
correspondence regarding new cases, unrelated to the case under
investigation, will be initially addressed to the employer.

**.11 Auxiliary Investigations.** As the case progresses, it may become
necessary to interview witnesses or examine records in a distant city.
If there is a VETS investigator in or near that city, that VETS
investigator should be asked to assist, so that travel costs can be
minimized. The VETS investigator requesting assistance should send a
memorandum detailing the required information needed as well as a copy
of the file, or pertinent parts thereof. Auxiliary investigations
crossing different regions will be requested through the appropriate
Regional Administrators.

**.12 Examination Of Records.** All basic records necessary to
substantiate material facts will be examined and exact copies or a
transcription of those records should be obtained. Depending on the
issues in the case, the review and analysis of pertinent records may
include, but is not limited to, the following records:

> \- Claimant\'s personnel file
>
> \- Company personnel manual, handbook and written policies
>
> \- Personnel files of other employees
>
> \- Seniority lists
>
> \- Collective Bargaining Agreement (CBA)
>
> \- Organization charts
>
> \- Job posting sheets
>
> \- Job bids
>
> \- Job selection notices
>
> \- Employment applications
>
> \- Weekly work schedules
>
> \- Written warnings or reprimands
>
> \- Written interview notes
>
> \- Grievances
>
> \- Arbitration agreements
>
> \- Dates of advancement of other employees in the claimant\'s peer
> group
>
> \- Payroll policies and payroll records

\- Initial Unemployment Insurance complaint filed by claimant and
employer\'s response

> \- Unemployment Insurance hearing decisions
>
> \- Pension plans and brochures.
>
> Do not mark or write on the original records in any way. All such
> records will be placed in the investigative file and a [VETS Form
> 1063](#VETS1063) will be prepared summarizing the results of the
> on-site visit to include a summary of the source of each document
> obtained.

**.13 Authority to Obtain Records.** The VETS investigator can usually
obtain whatever records are needed simply by requesting them. However,
USERRA provides that the Secretary\'s duly authorized representatives
(VETS investigators) shall, at all reasonable times, have reasonable
access to, for purposes of examination, the right to copy and receive
any documents of any person or employer that the Secretary considers
relevant to the investigation. If necessary, VETS investigators may
require production of those documents through a subpoena. See .14 below.

**.**[]{#Subpoena .anchor}**14 Subpoena Power. [\[QAR\]](#QARForm)**

> \(1\) **Statutory Provision.** USERRA provides that, in carrying out
> any investigation, the Secretary may require by subpoena the
> attendance and testimony of witnesses and the production of documents
> relating to any matter under investigation.
>
> **Note:** Although a subpoena should only be requested after other
> means of obtaining the information have been unsuccessful, a subpoena
> can be an effective means of obtaining necessary information. [The
> investigator must consult with the Senior Investigator when requested
> information is not provided in a timely manner.]{.mark}
>
> \(2\) **Delegation of Authority to Issue Subpoenas.** On June 13,
> 2002, the ASVET delegated his authority to Regional Administrators to
> sign and issue subpoenas pursuant to Section 4326(b) of USERRA, to
> compel the production of documents and the testimony of witnesses for
> the purpose of any investigation provided for in the Act.
>
> \(2\) **Enforcement.** Section 4326(c) of USERRA authorizes Federal
> court action to enforce subpoenas if they are not complied with.

\(3\) **Types of Subpoenas.**

> \(a\) **Subpoena Duces Tecum.** A *subpoena duces tecum* is a command
> to a person or organization to appear at a specific time and place,
> and to produce the designated records. (see Exhibit 20)
>
> \(b\) **Subpoena Ad Testificandum.** A *subpoena ad testificandum* is
> an order directing a named individual or corporation to appear at a
> particular time and designated place to give oral testimony. (see
> Exhibit 21)
>
> \(4\) **Subpoena Request (VETS Form).** Regional Administrators have
> authority to issue *duces tecum* and *ad testificandum* subpoenas upon
> receipt of a properly completed Subpoena Request (see Exhibit 19).
> Each subpoena issued must be justified by a separate request.
> Instructions for properly completing a Subpoena request follow:
>
> \(a\) **Case Name and File Number.** Enter the case name and the file
> number designated by the office with primary investigative
> jurisdiction.
>
> \(b\) **Subpoena Subject.** Enter the full name and address of the
> individual or organization on whom the subpoena is to be served. If
> necessary, contact the appropriate state office, e.g., the Secretary
> of State, to determine if the subject organization is incorporated.
> The principal corporate officer or appropriate agent to receive
> service of subpoenas may also be identified by calling the appropriate
> state office, usually the Secretary of State
>
> Mark the appropriate boxes in the upper right part of the form to
> indicate the nature of the subject, the subject's relationship to the
> VETS investigation, and whether compliance with the subpoena is
> anticipated.
>
> **(c) Delivery Data.** Indicate in the box to whom and where the
> completed subpoena is to be served.
>
> \(d\) **Proposed Date of Service.** Enter the proposed date of service
> to ensure prompt processing of the request.
>
> \(e\) **Identification of Records.** Provide a specific, detailed
> description of the records or documents sought. A reasonable request
> which is sufficiently specific will diminish the likelihood of a
> successful challenge to the subpoena on the grounds that the record
> request is indefinite, over broad, unduly burdensome, or not relevant.
>
> \(f\) **Justification for Issuance.** Specify whether a formal VETS
> request for records has been made and denied, or whether denial is
> anticipated.
>
> Include a statement describing the purpose of the investigation along
> with a brief explanation as to how the subpoenaed records are
> necessary to further the investigation. In addition, cite the USERRA
> sections pertinent to the investigation.
>
> \(5\) **Subpoena Approval.** Upon receipt of a Subpoena Request, the
> Regional Administrator must review the Request to determine whether
> alternative means are available to obtain the required information
> without issuing a subpoena and to ensure that all necessary
> information is contained in the Request. After Regional
> Administrator's approval, the Subpoena Request should be forwarded to
> the Regional Solicitor and a copy retained at the Regional Office.
> Following Regional Solicitor review and approval, the Subpoena Request
> should be returned to the Regional Administrator for preparation of
> the subpoena and transmittal to the VETS investigator.
>
> \(6\) **Subpoena Log.** Regional Administrators are accountable for
> every subpoena issued and will maintain a Subpoena Log indicating the
> sequential number of the subpoena, the type of subpoena, the case
> number, the issue date, and any appropriate remarks. A completed
> Subpoena Request must be on file for each subpoena issued. Prepared
> but unused subpoenas should be destroyed and marked "unused and
> destroyed" in the Subpoena Log.
>
> \(7\) **Right to Financial Privacy Act-Covered Records.** If a
> subpoena is deemed necessary to secure records from a financial
> institution, consult with the Regional Administrator.
>
> \(8\) **Completion of Subpoena.** All items on the subpoena must be
> properly completed. The VETS investigator before whom production is
> requested should be named followed by the words "an officer." The
> subpoenaed party should be given a reasonable time, usually ten to
> fourteen working days, to assemble the records for production or to
> appear to give oral testimony. In certain situations, more or less
> time should be allowed based on the particular case facts.
>
> \(9\) **Signing of Subpoenas.** Only Regional Administrators and
> certain designated officials in the National Office are authorized to
> sign VETS *duces tecum* and *ad testificandum* subpoenas. Persons
> serving as "acting" Regional Administrators must receive authorization
> to sign a given subpoena from the Assistant Secretary for Veterans'
> Employment Training. Both the original subpoena and the duplicate copy
> must contain original signatures.
>
> \(10\) **Service of Subpoenas.**
>
> \(a\) **Who May Serve.** Any authorized employee of VETS can serve
> subpoenas.
>
> \(b\) **Party Served.**
>
> 1\) **Individual.** If the presence of a particular witness is
> essential, the subpoenas must be served on that person \[Rule 45(b)(1)
> of the Federal Rules of Civil Procedure\]. However, where service on
> such a witness is impossible or impractical, some courts have ruled
> that it is permissible to make service by leaving the subpoena with a
> person of suitable age and discretion at the last and usual place of
> abode, coupled with mailing a copy of the subpoena via Certified
> Mail-Return Receipt. If this form of service appears necessary, the
> investigator must first consult with the Regional Solicitor's Office
> to assure that such service meets the local jurisdiction's subpoena
> service requirements. The courts have generally held that individuals
> age 16 and over are of a suitable age to receive service. Identifying
> information about the person being served should be obtained and
> recorded.
>
> 2\) **Corporation.** Service on a corporation is made by serving a
> corporate officer, a managing or general agent, or, if not available,
> the person in charge of the corporate offices. A subpoena may also be
> served on any agent authorized by law to receive service (i.e.,
> Secretary of State). Such service should be at the corporation's usual
> place of business or wherever the corporation is doing business. If
> seeking testimony or documents from a corporation, the subpoena should
> be addressed to the corporation since it is the corporation from which
> testimony and records are "demanded," rather than any individual
> corporate officer. Identifying information about the person being
> served should be obtained and recorded.
>
> When service is made on a corporation for production of documents,
> individual served should be the person who has the authority to
> release the document as opposed to the person who possesses the
> document.

3)  **Federal Agency.** If applicable, service on a Federal Agency
    should be made by serving the agency officer designated to accept
    service. For information on who may be authorized to receive
    service, contact the agency's General Counsel. Otherwise, when a
    subpoena is used to request the presence of a particular person in
    an agency as a witness (*i.e., Subpoena Ad Testificandum*), service
    should be made by serving the person named in the subpoena. When
    service is made on an agency for production of documents (*i.e.,
    Subpoena Duces Tecum*), the individual served should be the person
    who has control of the records sought (e.g., authority to release
    the document). The subpoena should be addressed to the agency since
    it is the agency from which the records are "demanded," rather than
    an individual agency official. Generally, control of agency records
    will lie with division heads, area directors, and the like. In all
    cases, service should be at the agency's usual place of operation or
    wherever the agency is currently operating. Identifying information
    about the person being served, such as name and title, should be
    obtained and recorded.

**(11) Subpoena Enforcement.**

a.  **Failure to Respond.** In the case of disobedience or resistance to
    a subpoena, the Regional Administrators will work with the Regional
    Solicitor in seeking enforcement of the subpoena as follows:

> The Regional Administrator will confer with the Regional Solicitor in
> preparing an affidavit regarding the specifics involving a refusal to
> produce requested records or to give oral testimony. Regional
> Administrators will provide the Regional Solicitor with all necessary
> assistance during subpoena enforcement proceedings.
>
> \(b\) **Enforcement Action.** In the event a subpoena is not honored,
> the Regional Administrator working with the Regional Solicitor, will
> request the U.S. Attorney General to secure an order from the United
> States District Court having jurisdiction in the matter, upon petition
> for such by the Secretary of Labor, requiring appearance, answers, or
> production of records. A continued refusal to obey after the issuance
> of a court order may be punished as contempt of court.

**.15 Evidence.**

\(1\) **Relevant evidence**. Because we must investigate and document
cases as though they might go to Federal Court, the files must contain
relevant evidence. Such evi­dence includes any statement, document, or
object tending to prove or disprove a fact in question. In addition, the
person providing the evidence must be qualified, and the evidence must
be adequate. For example, a person who has never observed the
claimant\'s work may be considered incompetent to testify on the quality
of the claimant\'s performance.

> \(2\) **Best evidence** is the original document itself. In general,
> the law requires produc­tion of the original document if possible. A
> duplicate is admissible if the originals were lost or destroyed, not
> obtainable, in the possession of the opposing party or not closely
> related to a controlling issue. An issue can be made regarding the
> admissibility of duplicates if there is a genuine question raised as
> to the authentic­ity of the original or in circumstances where it would
> be unfair to admit the duplicate instead of the original.
> Consequently, wherever possible, VETS investigators should review
> original documents, rather than copies.

.17 **Computation of Monetary Damages**

> (1.)  If a returning veteran is unlawfully denied reemployment, he or
> she is entitled to back pay from the date of the application for
> reemployment until \--
>
> s/he is properly reinstated, or s/he rejects a proper reinstatement
> offer that is fully in accord with his or her rights.
>
> (2).  If the claimant is unlawfully denied initial hiring, or
> unlawfully fired, the back pay is computed from the date of that
> unlawful action until\--s/he is properly placed or reinstated in
> employment, or s/he rejects an employer offer that is fully in accord
> with his or her rights.

**Claimant Responsibilities**

The claimant is required to mitigate damages.  This means that the
service member or returning veteran is required to seek and, if
feasible, to accept suitable alternative employment when the pre-service
employer unlawfully fires, refuses to hire, or refuses to reinstate the
claimant.  Although s/he has a responsibility to mitigate damages, the
claimant is not required to accept or retain a position that is inferior
in terms of seniority, status, or rate of pay to the position to which
the claimant is entitled with the employer.  If the claimant does accept
such a position, this does not amount to a waiver of the right to the
better position.

Failure to mitigate damages is an affirmative defense for which the
employer has the burden of proof.  For example, if the employer claims
that the back pay award should be reduced to reflect earnings which the
claimant should have earned but did not, the employer must demonstrate
that other suitable employment was in fact available to the claimant,
and that the claimant knew that the position existed.  The service
member or veteran is not required to apply for or accept a position that
is not comparable to or in the same line of work as the position
unlawfully denied.

 

In determining what part of the back pay award has been mitigated, only
the claimant's earnings from employment or profit-making activity should
be considered.  Payments that the claimant received from a collateral
source, including unemployment compensation received from the State,
should not be considered in computing the back pay award.

**Mitigation Wages are Periodic Rather than Absolute**

Mitigation of damages is normally computed on a pay-period-by-pay-period
basis.  If during a particular pay period the claimant earns more from
the alternate employer than he or she would have earned from the
defendant employer, the claimant is not entitled to back pay for that
pay period.  However, the excess from that pay period is not carried
forward to later pay periods or carried back to earlier ones.

If the claimant takes an alternate position to mitigate damages, the
claimant may choose to work overtime in the alternate position.  In the
pay-period-by-pay-period comparison, only comparable hours should be
considered.  The benefit of the claimant's extra effort (working
overtime) should inure to the benefit of the claimant, not the employer
that has been determined to have violated the law.

In some cases, the claimant may mitigate the back pay award by arranging
to perform more service in the uniformed service.  Care should be taken
to determine whether the claimant would have received that pay in
addition to or instead of the pay that he or she would have received
from the defendant employer.  For example, pay that the claimant
receives for performing inactive duty training on weekends should not be
deducted from the back pay award if the claimant would not ordinarily
have worked for the civilian employer on weekends.

If the claimant performs additional uniformed service to mitigate part
or all of the back pay award, that period of uniformed service should
not be included in computing the claimant's five-year cumulative limit
with that particular employer.  In such a situation, the employer's
violation has necessitated the additional uniformed service, and the
employer has benefited from that additional service because the amount
the claimant earned for performing such service will reduce the back pay
award that the employer will be required to pay.  Accordingly, the
employer is not permitted to assert that the additional service has
caused the claimant to exceed the five-year limit, under the equitable
doctrine of estoppel (a legal rule that prevents somebody from stating a
position inconsistent with one previously stated, especially when the
earlier representation has been relied upon by others).  That doctrine
provides that a party is not permitted to benefit from its own
wrongdoing. 

# Effect of Escalator on Back Pay

It is important to compute the back pay award on a pay-period-by-pay
period basis because the amount that the claimant would have earned from
the defendant employer is not necessarily a static number, especially if
back pay must be computed for an extended period of time.  If the
claimant had been properly reinstated following uniformed service, or if
he or she had not been unlawfully fired or denied initial hiring, he or
she would have received cost of living increases or pay raises based on
seniority.  Such increases, if reasonably certain, should be considered
in computing the back pay award.

# Elements of Back Pay 

In computing the back pay award, it may be necessary to consider more
than basic pay.  If it is reasonably certain that the claimant would
have received special pay or overtime pay, those forms of pay should be
included in the back pay award.  The claimant's own work history and the
pay received by other employees of the defendant employer should be
reviewed in determining the pay that the claimant probably would have
received but for the employer violation.

The back pay award should also include the economic value of all
benefits (including vacation days and health insurance benefits) that
the claimant would have received but for the employer violation.  The
claimant may purchase an individual health insurance policy to cover the
possible need for medical care during the interim period.  In that case,
the back pay award should include the difference between what the
claimant paid for the individual policy and what he or she would have
been required to pay (if anything) as an active employee.

In some cases, the claimant may be unable to obtain an individual health
insurance policy.  In that case, the back pay award should include any
out-of-pocket medical expenses that the claimant incurred that would
have been covered by the employer's health insurance plan if the
employer had complied with the law.

# Interest

Pre-judgment interest should be sought and normally should be awarded as
part of the relief, especially if there has been a substantial delay. 
For two reasons, a back pay award without interest does not make the
complainant whole for losses created by the employer's violation. 
First, inflation will have lessened the value of the money the claimant
receives.  Second, the claimant has lost the opportunity to invest and
earn interest on that money.  The second consideration is known as the
"time value of money."

As a rule of thumb, the interest rate on 13-week Treasury bills could be
used in computing interest on back pay.  That rate is readily available
in newspapers and financial publications, and it is often used as the
base rate for savings accounts, variable rate mortgages, etc.

> **.17 Determination Letter to Employer.** *If a determination of merit
> is found by the investigator, notify the employer in writing even if
> the initial notification has already been made by phone. This letter
> will set forth an evaluation of the merit of the claim based upon the
> established facts. The evaluation will be phrased in terms such as
> "based upon the facts, as determined in our investigation, and the
> application of the statute to the facts, it is our opinion that the
> claim is meritorious and that the claimant is entitled to..." It is
> not necessary to go into a lengthy discussion of the facts in this
> letter. Include in the letter what action or actions are necessary to
> comply with the law or resolve the claim and inform the employer that
> if the resolution is not acceptable to the claimant, he or she may
> exercise their referral rights or right to seek private counsel.*
>
> *If a determination of no violation is found by the investigator, but
> the claimant has requested referral, see Chapter 8 for guidance. For
> no merit determination letter to the claimant, see Chapter 9 (Case
> Closing). For other types of closing letters to the employer, see
> Exhibits 34 (Claim Withdrawn) and 38 (No response from claimant). For
> closing letters where the complainant has received a favorable
> outcome, see Exhibit 39 (Claim Granted) and Exhibit 42 (Claim
> Settled).*

**.17** **No Merit Determination.** When it is determined that a claim
has no merit, the claimant must be notified in writing of the
determination. The letter will set forth an evaluation of the claim
based upon the facts determined, and will be sent by Certified Mail
(return receipt). The evaluation will be phrased in terms such as
\"based upon the facts as determined during the investigation and the
application of the statute to the facts, it is our conclusion that the
claim is not meritorious.\" It is not necessary to go into a lengthy
discussion of the facts in this letter. The letter must also inform the
claimant of his/her options (Refer to Chapters 8 & 9).

[[]{#Exhibit15SampleblnkCIP .anchor}**Exhibit 15: Sample Blank Case
Investigative Plan**](#Exhibit15SampleblnkCIPIll)

**CASE INVESTIGATIVE PLAN**

**UNIFORMED SERVICES EMPLOYMENT & REEMPLOYMENT RIGHTS ACT**

**U. S. Department of Labor, Veterans' Employment and Training Service**

Check One: Initial CIP\_\_\_\_\_Follow-Up CIP\_\_\_\_\_

**SECTION I: General Information**

1\. File Number
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ 2. Claimant
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

3\. Type of Military Service
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ 4.
Length of Service \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

5\. Claimant's Allegation
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

6\. Remedies Due (if meritorious)
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

7\. Applicable Statutory Section(s) and regulation (s)
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**SECTION II: Employer Information**

8\. Employer
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

9\. Nature of Prior Contact with Employer (if applicable)
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

10\. Contact for Employer \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
11. Employer's Counsel
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

12\. Employer's Position
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

13\. Basis for Employer's Position
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**SECTION III: Disputed Legal Issue(s) and Action Plan(s)**

14a. Issue
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

14b. Action Plan (Include date)
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

15a. Issue
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

15b. Action Plan (Include date)
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

16a. Issue
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

16b. Action Plan (Include date)
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**SECTION IV: Disputed Fact(s) and Action Plan(s) \[Include all
evidence, *e.g.*, witnesses, documents, etc.\]**

17a. Issue
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

17b. Action Plan (Include date)
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

17c. Purpose
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

18a. Issue
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

18b. Action Plan (Include date)
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

18c. Purpose
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

19a. Issue
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

19b. Action Plan (Include date)
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

19c. Purpose
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**SECTION V: General Comments**
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

PREPARER'S SIGNATURE DATE

[[]{#Exhibit16SamplecmltblnkCIP .anchor}**Exhibit 16: Sample Completed
Case Investigative Plan**](#Exhibit16SamplecmltblnkCIPill)

**CASE INVESTIGATIVE PLAN**

**UNIFORMED SERVICES EMPLOYMENT & REEMPLOYMENT RIGHTS ACT**

**U. S. Department of Labor, Veterans' Employment and Training Service**

[**\[QAR\]**](#QARForm)

Check One: Initial CIP\_[X]{.underline}\_\_\_Follow-Up CIP\_\_\_\_\_

**SECTION I: General Information**

1\. File Number \_\_[AL-20XX-00012-10-G]{.underline}\_\_\_\_\_\_\_\_\_
2. Claimant
\_\_([XXXXXXXX)]{.underline}\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

3\. Type of Military Service \_\_\_[Army National
Guard]{.underline}\_\_\_\_\_\_\_\_\_\_\_\_\_ 4. Length of Service
\_\_\_[4 Years]{.underline}\_\_\_\_\_\_\_\_\_\_

5\. Claimant's Allegation \_\_[Not hired because of Guard
obligations]{.underline}\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

6\. Remedies Due (if meritorious) \_[employment and back pay with full
compensation and benefits from date of \_\_\_]{.underline}

\_[employment
denial]{.underline}\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

7\. Applicable Statutory Section(s) and regulation (s) \_[38 U.S.C. 4311
(a) and 20 CFR
1002.18]{.underline}\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**SECTION II: Employer Information**

8\. Employer
\_\_\_(XXXXXXX)\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

9\. Nature of Prior Contact with Employer (if applicable)
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

10\. Contact for Employer \_(XXXXXXX) \_\_\_\_\_\_\_\_\_\_\_\_ 11.
Employer's Counsel
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

12\. Employer's Position \_\_(XXXXXXX) [was not denied employment based
on Guard obligations]{.underline}\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

13\. Basis for Employer's Position \_[Persons hired were more qualified
that (XXXXXXXX). Company does not hire]{.underline}

[anyone who can't work
weekends.]{.underline}\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**SECTION III: Disputed Legal Issue(s) and Action Plan(s)**

14a. Issue \_[Can]{.underline} (XXXXXXX) [refuse to hire if]{.underline}
(XXXXXXX) [does not hire anyone who cannot work
weekends?\_\_\_\_\_\_]{.underline}

14b. Action Plan (Include date) \_By 5-31-20XX: Review applicable case
law, if any. Review Congressional \_\_\_\_

[Reports. Seek guidance from the DVET/SI.]{.underline}
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

15a. Issue
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

15b. Action Plan (Include date)
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

16a. Issue
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

16b. Action Plan (Include date)
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**SECTION IV: Disputed Fact(s) and Action Plan(s) \[Include all
evidence, *e.g.*, witnesses, documents, etc.\]**

17a. Issue \_[Were other applicants more qualified than]{.underline}
(XXXXXXX)
[?\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}

17b. Action Plan (Include date) \_[By 5/31/20XX review (EEEEEEEE)'s job
announcement and job description,\_]{.underline}

\_(XXXXXXX) ['s application, applications and personnel files of those
hired.\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}

17c. Purpose \_[Establish qualifications for the position;
determine]{.underline} (XXXXXXX) ['s qualifications;
compare]{.underline} \_\_\_

[\_qualifications to qualifications of those
hired.\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

18a. Issue \_Any comments from EEEEEEEE reflecting (XXXXXXX) not hired
due to obligations.\_\_\_\_\_\_\_\_\_

18b. Action Plan (Include date) \_[Interview EEEEEEEE. Interview
witnesses, if any, to conversation between]{.underline}\_

\_(XXXXXXX) [and
EEEEEEEE.\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

18c. Purpose \_[To determine if EEEEEEEE made statement
denying]{.underline} (XXXXXXX) [due to Guard
obligations.\_\_]{.underline}

\_[To corroborate]{.underline} (XXXXXXX) ['s statement that EEEEEEEE
told]{.underline} (XXXXXXX) [that he was "having
trouble]{.underline}\_\_\_

[\_hiring"]{.underline} (XXXXXXX) [because of]{.underline} (XXXXXXX) ['s
Guard
obligations.\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}

19a. [Issue Is EEEEEEEE using military obligations to make employment
decisions?\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}

19b. Action Plan (Include date) \_[Review application files of other
unsuccessful applicants. Interview other]{.underline}

\_[employees.\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

19c. Purpose \_[Determine if protected absences (military, etc.) are
used by (EEEEEEEE) in making]{.underline} employment

\_[decisions.\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**SECTION V: General Comments** \_[Need to verity remedies sought
as]{.underline} (XXXXXXX) [does not desire to work]{.underline}

\_[for
EEEEEEEE.\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ \_[May 18,
20XX]{.underline}\_\_\_\_\_\_\_\_

PREPARER'S SIGNATURE DATE

[[]{#Exhibit17SmplLtrSchdOnstevst .anchor}**Exhibit 17: Sample Letter
Scheduling On-Site Visit**](#Exhibit17SmplLtrSchdOnstevstIll)

**U.S. Department of Labor**

**Veterans' Employment and Training Service**

**Street Address**

**City, State, Zip Code**

Date

(EEEEEEEE)

Street Address

City, State, Zip Code

Re: (XXXXXXX)

Case Number

Dear EEEEEEEE:

This confirms our conversation yesterday concerning(XXXXXXX)'s claim
under the Uniformed Services Employment and Reemployment Rights Act
(USERRA) in which we agreed that I will visit your establishment at
(time and date) to conduct an on-site investigation. I request that you
make the following documents (and witnesses if appropriate) available
for review during our conference:

1)  (XXXXXXX)'s personnel file, including all performance evaluations;

2)  (EEEEEEEE)'s military leave policy;

3)  The personnel files of any assembly operators who were hired
    after (XXXXXXX) entered employment with (EEEEEEEE); and

4)  Witness(XXXXXXX), (XXXXXXX), and(XXXXXXX).

Thank you for your cooperation.

Sincerely,

Investigator's Name

Investigator's Title

cc: (XXXXXXX)

[[]{#Exhibit18BnkWitstmt .anchor}**Exhibit 18: Blank Witness
Statement**](#Exhibit18BnkWitstmtIll)

**Witness Statement**

I, , ,

(Name) (Address & Telephone #)

make the following voluntary statement to
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_,

(Investigator)

who has identified himself/herself to me as an investigator for the
Veterans' Employment and Training Service, U.S. Department of Labor, and
who has advised me that he/she is conducting an investigation pursuant
to 38 U.S.C. Section 4301 *et. seq.*, and/or predecessor Federal
veterans' reemployment rights statute(s). I understand that my statement
and identity will be kept confidential to the maximum extent possible
under existing law.

+-----------------------------------------------------------------------+
| (Body of the Statement)                                               |
|                                                                       |
| (The first paragraph should contain background information regarding  |
| the witness that will establish the witness' relationship to the      |
| claimant or case. This might include the place of the witness'        |
| employment, type of position held, possible association with the      |
| claimant, and possible union affiliation)                             |
|                                                                       |
| (The subsequent paragraphs should begin to address the issue(s) in    |
| dispute and should be organized either chronologically or topically   |
| and must be, to the extent possible, in the words of the witness.     |
| Also, the paragraphs should reflect the source of all information and |
| must be clearly identified. It should be clear from the signed        |
| statement whether or not the witness has first-hand knowledge of the  |
| information the claimant is alleging. If the information comes from a |
| source other than what the witness saw and/or heard, the source must  |
| be identified.)                                                       |
|                                                                       |
| (All additions and deletions in the body of the signed statement must |
| be made [and initialed]{.underline} by the interviewee.)              |
|                                                                       |
| (All pages must be numbered. The interviewee must place his/her       |
| initials next to the last word in the last line of the last paragraph |
| on each page.)                                                        |
|                                                                       |
| (Do not leave any space between paragraphs.)                          |
|                                                                       |
| (Attestation)                                                         |
+-----------------------------------------------------------------------+
|                                                                       |
+-----------------------------------------------------------------------+
|                                                                       |
+-----------------------------------------------------------------------+
|                                                                       |
+-----------------------------------------------------------------------+
|                                                                       |
+-----------------------------------------------------------------------+
|                                                                       |
+-----------------------------------------------------------------------+
|                                                                       |
+-----------------------------------------------------------------------+
|                                                                       |
+-----------------------------------------------------------------------+
|                                                                       |
+-----------------------------------------------------------------------+
|                                                                       |
+-----------------------------------------------------------------------+
|                                                                       |
+-----------------------------------------------------------------------+
|                                                                       |
+-----------------------------------------------------------------------+
|                                                                       |
+-----------------------------------------------------------------------+

I have read (or have had read to me) the foregoing statement of page(s).
Each page has been numbered and I have initialed each correction. I
declare (or certify, verify or state) under penalty of perjury under the
laws of the United States of America that this statement is true and
correct to the best of my knowledge.

/s/ Date:

Witnessed: Date:

Page of Exhibit

[[]{#Exhibit19SmplSubpReqIll .anchor}**Exhibit 19: Sample Subpoena
Request**](#Exhibit)

U.S. Department of Labor

Veterans' Employment and Training Services

**[\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_Subpoena
Request\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}**

**Case Name File No.**

**Subpoena Subject (Name and Address)**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**Deliver Subpoena to: (Name and Address)**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**[Proposed Date of
Service:]{.underline}\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**Identification of Records**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**Justification for Issuance**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**Action**

**Initial Date Hour**

  ------------------------- --------------- -------------- ---------------
  **Requested**                                            

  **DD Authorization (as                                   
  appropriate)**                                           

  **Approved RAVET**                                       

  **Approved RSol**                                        

  **Signed**                                               

  **Return**                                               

  **To Litigation**                                        

                                                           
  ------------------------- --------------- -------------- ---------------

#  VETS \_\_\_\_\_\_\_\_\_\_\_\_

[[]{#Exhibit20smplSubDucTec .anchor}**Exhibit 20: Sample Subpoena Duces
Tecum**](#Exhibit)

**UNITED STATES OF AMERICA**

**DEPARTMENT OF LABOR**

**VETERANS' EMPLOYMENT AND TRAINING**

**SUBPEONA DUCES TECUM**

TO
[\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}

[\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}

*At the instance of the Regional Administrator for the Veterans'
Employment and Training Service, U.S. Department of Labor, you are
hereby required to appear before*
[\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_,]{.underline}

*an Officer of the Veterans' Employment and Training Service, U.S.
Department of Labor, at*
[\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_,]{.underline}

*in the City of*
[\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}*on the*
\_\_\_\_\_\_\_ *day of* \_\_\_\_\_\_\_\_\_\_\_, \_\_\_\_\_\_\_,
*at*\_\_\_\_\_\_\_\_\_ *o'clock of that day*, in the matter [of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**]{.underline}

*And you are hereby required to bring with you and produce at said time
and place the following books, papers, and documents*:

Described in items \_ through \_ in the ATTACHMENT hereto
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**FAIL NOT AT YOUR PERIL**

> IN TESTIMONY WHEREOF, *the seal of the* U.S. DEPARTMENT OF LABOR *is
> affixed hereto, and the undersigned, the* REGIONAL ADMINISTRATOR OF
> THE VETERANS' EMPLOYMENT AND TRAINING SERVICE, *of said* U.S.
> DEPARTMENT OF LABOR,*has hereunto set his hand at* PHILADELPHIA,
> PENNSYLVANIA,*this \_\_\_\_\_\_\_\_ day of* \_\_\_\_\_\_\_\_, 2006.
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> VETS\_\_\_\_\_\_\_\_

[[]{#Exhibit21smplSubAdTesti .anchor}**Exhibit 21: Sample Subpoena Ad
Testificandum**](#Exhibit)

**United States of America**

**DEPARTMENT OF LABOR**

**VETERANS' EMPLOYMENT AND TRAINING SERVICE**

**SUBPOENA AD TESTIFICANDUM**

TO \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

*At the instance of the Regional Administrator for the Veterans'
Employment and Training Service* U.S. DEPARTMENT OF LABOR, *you are
hereby required to appear before*
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_,

*an Officer of the Veterans' Employment And Training Service, U.S.
Department of Labor, at*
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_,

*in the City of*
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_*on
the* \_\_\_\_\_\_\_\_\_\_\_ *day of* \_\_\_\_\_\_\_\_\_\_\_*,
20*\_\_\_\_ *at* \_\_\_\_\_\_\_\_\_\_\_\_ *o'clock of the
day*\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ *In the Matter of*
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_.

**FAIL NOT AT YOUR PERIL**

IN TESTIMONY WHEREOF, *the seal of the* U.S. DEPARTMENT

OF LABOR *is affixed hereto, and the undersigned,*
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ *of said* U.S. DEPARTMENT
OF

LABOR, *has hereunto set his hand at*
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

*this* \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ *day of*
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ *20*\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

VETS\_\_\_\_\_\_\_\_

[[]{#Exhibit22OpnstmtfrcseresoConf .anchor}**Exhibit 22: Sample Opening
Statement for Case Resolution Conferences**](#Exhibit)

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> 7
>
> [[]{#Chapter_7 .anchor}**Chapter 7**](#TOC7X)

**Case Resolution Conferences**

**.1 Definition of Case Resolution Conferences.** Case Resolution
Conferences are meetings conducted by the investigator and the parties
to the case, and their representatives. The purpose of the case
resolution conference is to attempt to reach a mutually agreeable
resolution of a meritorious case. USERRA promotes the resolution of
complaints without resort to litigation.

> **Proviso:** Conferences may be conducted at any stage during case
> processing when the investigator believes it may help the parties to
> reach an agreement.
>
> \(1\) A resolution conference should be attempted when an
> investigation has been completed and merit has been determined, and
> letters and telephone calls are unable to resolve the case.
>
> \(2\) If a resolution conference is requested by the employer prior to
> the completion of the investigation, such conference should be held.
> However, it should be clearly explained to both parties that the
> investigation is not yet completed, and any findings that are
> discussed would be preliminary at best.

**.2 Confirmation Letter.** After the Case Resolution Conference has
been arranged, the investigator will send a letter to both parties
confirming the date, time, and location of the conference. As
appropriate, the purpose of the conference may also be stated.

**.3 Advice to the Claimant Before the Conference.** Before opening the
conference, meet privately with the claimant to discuss the strengths
and weaknesses of the case and explore areas where compromise may be
possible. If the claimant chooses to attend, advise the claimant not to
bring up matters that are not directly related to the case, because this
conference is not a proper forum for unrelated issues.

> In addition, advise the claimant that he/she should not feel compelled
> or pressured to accept or sign any settlement offered during the
> conference. If the remedies offered are less than the full remedies
> required by law, advise the claimant that he or she has the right to
> refuse the offer. However, the claimant should be told that the
> refusal does not guarantee that further government action will better
> benefit the claimant and that it is possible that referral for
> litigation may result in a similar or lesser resolution, including
> rejection of the case by Attorney General or the Office of Special
> Counsel or an unfavor­able court ruling. The claimant should also be
> told that if he/she elects to accept such an offer, he/she may be
> waiving additional rights under the law, that will be fully explained.

**.4 General Conference Hints.** At the conference, maintain a relaxed,
friendly, business-like tone. Never lose your temper. Be especially
cautious with persons who may be trying to make you angry.

**.5 Opening The Conference.** Open the conference by identifying
yourself and listing the participants by name and relationship to the
case. Review and use the conference opening statement found in Exhibit
22, as it sets the tone for the conference and clarifies the purpose,
goals and conduct of the conference. Then explain that the conference
has been convened to review the facts and seek an equitable resolution
of the claim.

**.6 Control of the Conference.** Maintain control of the conference by
having all discussions funneled through the investigator. Do not permit
the parties to argue about extraneous matters. If the discussion gets
side-tracked, redirect it by reminding the parties of the purposes of
the conference. If a union representative has been included, ensure that
the conference does not turn into a labor relations meeting about issues
unrelated to the case at hand.

> Avoid using inflammatory words such as "unlawful," "illegal,"
> "discriminatory," and "violation" during a case resolution conference.
>
> If emotions flare, recess the conference for a cooling-off-period. If
> meaningful discussion seems impossible, adjourn the meeting, but only
> if it is clear that no benefit is being obtained by continuing and the
> situation is being damaged rather than helped.

**.7 Conference Notes.** Take comprehensive notes during the conference.
These notes will form the basis for a summary report of the conference
which becomes part of the case file.

**.8 Conference Resulting in Resolution.** When the conference results
in an agreed resolution by both parties, either in whole or in part,
take the following steps:

> \(1\) Review the details of the resolution with all present so there
> is no misunderstand­ing as to who agrees to do what and when and reduce
> this to writing with copies to both parties. (Exhibit 23)
>
> \(2\) When lost wages are part of the resolution, ensure that all
> figures used are accurate and agreed upon, including an end date for
> the calculations.
>
> \(3\) When the resolution involves payment to the claimant of any
> monies (such as payment for lost wages), and it is not possible to
> immediately obtain full payment of all the amounts agreed upon, make
> necessary arrangements to have a check for the balance, made payable
> to the claimant, forwarded to your office by an agreed date for
> transmittal to the claimant.
>
> \(4\) See associated guidelines in Chapter 9 for procedures dealing
> with monetary settlements and appropriate case closing procedures.

**.9 Refusal by Employer to Grant or Settle Claim.** If the claim cannot
be resolved, explain that the claimant has a right to request referral
to the Attorney General/Office of Special Counsel. If the investigation
is not yet complete (see paragraph .1 above), explain that it will again
proceed. In addition, inform the employer that a lost wage claim may be
accruing (in appropriate cases) and that liquidated damages may be
awarded in a court action.

**.10** **Request for Additional Time.** If the employer or the claimant
requests additional time to consider their respective positions (this
time should not exceed 10 working days) or if the employer requests
additional legal authority to support the claimant\'s position, the
Investigator should confer with the Regional Office (RO). If
appropriate, the RO will confer with the Regional Solicitor's Office.
After receipt of a response from the RO, the Investigator will send the
employer a letter addressing the legal issues.

**.11 Conference Closing.** Once all the parties have had an opportunity
to fully discuss their respective positions, and if the claim is not
resolved, the investigator should inform the parties that the conference
is at an end.

**.12 Conference Report.** As soon as possible after returning to the
office, prepare a summary of the conference based on the notes. The
report should be on a [VETS Form 1063](#VETS1063) and should include the
case number, name of parties, addresses of parties, date, time and place
of conference, and a list of participants by name, title, address, and
telephone number. The report should contain the items below, as
appropriate:

> \(1\) All contested issues and sub-issues identified;
>
> \(2\) Positions of the parties and their supporting reasons for each
> contested issue;
>
> \(3\) Offers of settlement, proposals, and counter-proposals as to
> each issue;
>
> \(4\) Issues that remain outstanding;
>
> \(5\) If issues were resolved, a detailed outline of the agreement.
> (Exhibit 23)
>
> \(6\) All documents obtained should be listed on a [VETS Form
> 1063](#VETS1063), to include the source of each document.

The conference report and all other related documents secured during the
conference will become exhibits in the case file. No shortcuts should be
taken in developing the report.

**.13 Actions Following Advisory Opinion.** If more than 10 working days
pass after the action taken in paragraph #10, and no compliance or
indication of possible compliance or settlement is obtained, contact the
proper party, and explain that the other party has not responded or
agreed to settle. In addition, explain what options are available. These
options are:

> \(1\) If appropriate, complete the investigation (see paragraph .1
> above). Additional resolution conferences can be attempted in the
> future.
>
> \(2\) Upon completion of the investigation,
>
> \(a\) the claimant can request referral to the Attorney General or the
> Office of Special Counsel; or
>
> \(b\) the claimant can close the file, but pursue the claim via
> private counsel at his or her own expense if the claimant so chooses;
> or
>
> \(c\) the case can be closed if no further action is taken by the
> claimant.
>
> [Give the claimant an honest appraisal of the merits of the case and
> advise that VETS will refer the claim to the Attorney General/Office
> of Special Counsel, upon request. If the claimant elects referral,
> follow the procedures in Chapter 8.]{.mark}

[[]{#Exhibit23SmplAgrOutl .anchor} **Exhibit 23: Sample Agreement
Outline**](#Exhibit)

In the case of (XXXXXXX) , the EEEEEEEE, EEEEEEEE's name agrees to take
the following actions:

1.  Reinstate (XXXXXXX) to a Machine Operator position at the wage rate
    of \$5.85 per hour effective February 27, 20XX;

2.  Reinstate (XXXXXXX) 's health insurance coverage effective (specify
    date);

3.  Credit (XXXXXXX) for all time spent in the military service and for
    the period from October 21, 20XX to February 27, 20XX, for pension,
    vacation and seniority purposes; and

4.  Compensate (XXXXXXX) \$1,500.00 for wages lost from October 21, 20XX
    to February 27, 20XX.

5.  Settlement outlined above is relative [only]{.underline} to rights
    and benefits arising from (XXXXXXX) 's reemployment rights claim
    under the Uniformed Services Employment and Reemployment Rights Act
    of 1994 and its predecessor statutes.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Signature of EEEEEEEE

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Signature of XXXXXXXX

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Signature of Investigator

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Date

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Case Number

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8

[[]{#Chapter_8 .anchor}**Chapter 8**](#TOC8X)

[**Litigation Referrals**](#TOC8X)

**.1 Purpose.** This chapter describes how to prepare, develop and
transmit a referral to the U.S. Attorney General (AG) or the Office of
Special Counsel (OSC) through the VETS Regional Office and Regional
Solicitor.

**Sec. 1002.290** If VETS determines as a result of an investigation
that the complaint is meritorious, VETS attempts to resolve the
complaint by making reasonable efforts to ensure that any persons or
entities named in the complaint comply with the Act. If VETS\' efforts
do not resolve the complaint, VETS notifies the person who submitted the
complaint of:

> \(a\) The results of the investigation; and,\
> (b) The person\'s right to proceed under the enforcement of rights
> provisions in 38 U.S.C. 4323 (against a State or private employer), or
> 38 U.S.C. 4324 (against a Federal executive agency or the Office of
> Personnel Management (OPM)).

**.2 Representation by U.S. Attorney General.** A claimant with a claim
against a private or State or local government employer may receive
legal representation by the Attorney General for the district in which
the employer maintains a place of business or exercises authority, if
the Attorney General is reasonably satisfied that the claimant is
entitled to the benefits under USERRA.

**.3 Representation by Office of Special Counsel.** A claimant with a
claim against a Federal Executive Branch employer may receive legal
representation by the OSC before the Merit Systems Protection Board, if
the OSC is reasonably satisfied that the claimant is entitled to the
benefits under USERRA.

**.****4** []{#advisclaimofrigttoreferQAR .anchor}**Advising the
Claimant of Right of Referral.** At the time the case is closed, the
claimant must be advised of his or her right to have the case referred
to either the U.S. Department of Justice or to the U.S. Office of
Special Counsel, as appropriate, in the closing letter. **Claimants must
be advised of that right at the time the case is closed regardless of
whether or not the claim is found to have merit**. The investigator may
advise the claimant of the referral process at the outset of the
investigation, but the notice must still be provided in writing at the
close of the investigation. [\[QAR\]](#QARForm)

[When it appears that VETS will be unable to reach a mutually acceptable
settlement, the VETS investigator should explain privately to the
claimant the findings of the investigation, the strengths and weaknesses
of the case, and VETS' position on the merits of the case. In addition,
explain that:]{.mark}

> \(1\) The right to referral is a right to [consideration]{.underline}
> of representation only and not an automatic right to representation by
> the AG or OSC.
>
> \(2\) If the AG or OSC accepts the case for litigation, legal services
> will be furnished by the government, except that [the claimant's
> travel or other associated expenses will still be borne by the
> claimant.]{.mark}
>
> \(3\) If the AG or OSC declines to accept the case for litigation, the
> claimant may hire private counsel at his or her own expense.
>
> \(4\) At any point, claimant may refuse further pursuance of his or
> her claim via the government and retain private counsel. (Claimant
> should be advised that if private counsel is retained, the government
> will close its file.)
>
> \(5\) If referred, the VETS investigator and the Regional Solicitor
> will make a recommendation to AG or OSC based on the investigative
> findings and merits of the case. The AG or the OSC makes an
> independent determination regarding whether to file suit.
>
> \(6\) A request for referral obligates the claimant to continue to
> fully cooperate with the government provid­ing any change of address or
> telephone number.

**.5 Written Request for Referral.** Before the case is prepared for
transmittal to the AG or OSC for consideration of litigation, the
claimant must submit to VETS a written request for referral. A referral
request form appears in Exhibit 24. A copy of this request must be
placed in the case file. []{#withdrawnReqfrRef .anchor}[Once VETS
receives a written request for referral, it can be withdrawn only by the
claimant.]{.underline} Such withdrawal must be in writing.
[\[QAR\]](#QARForm)

> If a claimant requests referral prior to completion of the
> investigation of the claim, the investigator shall advise the claimant
> that no such referral can be made prior to completion of the
> investigation.

**.6** **[Referral Advisory letter to
Employer](#Exhibit25Smpl10dayltrIll)** [No later than 5 working
days]{.mark} after receiving a claimant\'s appropriate request for
referral, forward a Referral Advisory letter to the employer or the
counsel of record advising the employer that referral has been
requested. [(See Exhibit 25)](#Exhibit25ReferralAdvLtrtoEmplr)

**.7 [15 Day Action on Referral.]{.mark}** [Within 15 working days after
receipt of the request for referral, prepare the case for referral and
transmit it to the Regional Office. The "clock" does not stop running on
this preparation even in the event of receiving indications that a
resolution is possible.]{.mark}

[Note: The Regional Office review will be completed within 5 working
days, upon receipt of the referral at the Regional Office. The Regional
Office will reassign the case to the Senior Investigator or another
investigator if needed to expedite referral.]{.mark}

**.8 File Preparation for AG or OSC Referral.** Before a case is
referred, the case file must contain the following:

> \(1\) All information, documents, correspondence from and to the
> parties, including the employer\'s written position letter, the VETS
> investigator\'s "employers notification of referral" letter , and any
> other relevant material that has been received and/or developed,
> including all reports of contact, signed statements, memoranda to the
> file, and the report of the resolution conference if applicable. All
> materials must be legible. All reports of contact must be signed and
> dated by the VETS investigator. The documents must be placed in the
> file in chronological order by date received or date of contact, with
> the oldest on the bottom (except that the VETS Form 1010 and military
> discharge records shall be at the bottom of the file), and each
> exhibit should be numbered.
>
> \(2\) All referral files will contain a copy of the appropriate Form
> DD-214 or release certificate; a copy of relevant orders, if issued;
> or other confirmatory documents.

.**9 Memorandum of Referral (MOR).** All case files referred to the AG
or OSC for consideration of enforcement proceedings will be accompanied
by a report of investigation called a Memorandum of Referral. The MOR is
not merely a recital of exhibits but will provide a thorough description
of the case and must be able to stand alone. The MOR must support each
pertinent factual statement by reference to a specific numbered exhibit
in the case file. The exhibits should include either (but not both) the
original or copies of the VETS Form 1063, or a typed copy of the
original if the original is not legible (all original documents must be
retained in the original case file). The MOR should also include the
name of the individual who investigated the case and prepared the MOR if
different from the individual signing the MOR. This is useful in cases
when the Regional Solicitor or the AG/OSC needs to discuss the case.

> In cases recommending litigation, or in cases involving questions of
> fact or complex or novel issues, MORs must be prepared in "long" form.
> [(See Exhibit 26)](#Exhibit26SmpllongformMORlitrec). In very limited
> situations of a non-recommendation for litigation, and only after
> consultation with the region's Senior Investigator, the "short" form
> may be used [(See Exhibit 27).](#Exhibit27SmplShortFrmMORLitNR)
> Regardless of whether the long or short form is used, there must be a
> table of contents or index identifying all exhibits in the case file.
> The Regional Office will consult with the Regional Solicitor\'s Office
> if questions arise over format.
>
> Retain one copy of the MOR and one copy of the case file containing
> all the exhibits in your office. *Forward the original MOR and Case
> File plus the specified number of copies by your region to the
> Regional Office for review and action. If a diskette is not available,
> send an electronic file of the MOR and List of Exhibits to the
> region's Senior Investigator as an e-mail attachment.*
>
> The MOR will identify the type of military training or service
> involved, the subsection(s) of the statute and regulations applicable
> to the issues, and the eligibility criteria. If the referral is
> positive, the MOR will identify why the case has merit. The MOR will
> identify those issues admitted by the employer and those contested.
> With respect to contested issues, the evaluation section will explain
> why the VETS investigator believes that the evidence shows the case
> has merit. Where it does not recommend litigation, the MOR will
> identify why the case is without merit. All MORs must make reference
> to each exhibit supporting each specific finding.
>
> ***(1) Expedited Referrals.** Advise the National Office and your
> Regional Solicitor of Labor (RSOL) when you begin a review of the MOR
> for a non-Federal USERRA case if the case has merit and the claimant
> is unemployed, the claimant has been denied a significant benefit of
> employment, or where the employer has reemployed the claimant to a
> position that is of significantly lower seniority, status, or pay. The
> purpose of the contact is to allow the RSOL and the U.S. Attorney
> General to prepare for their review of the case and to give the case a
> priority status. When forwarding the case to the RSOL, include in the
> transmittal memo the following statement, **"This case may be
> appropriate for expedited referral under the DOL-DOJ MOU." The
> referral of non-meritorious cases with issues that do not have an
> immediate financial impact on the claimant are forwarded without these
> special considerations.***

**.10 Format of the MOR.** An example of the format can be found at
[Exhibit 26](#Exhibit26SmpllongformMORlitrec). The MOR must include at a
minimum the information in the following outline:

> \(1\) Introduction
>
> \(a\) Identification of parties, and representatives, if applicable,
> and their ad­dresses and phone numbers
>
> \(b\) Case number
>
> \(c\) Alleged violation(s) and applicable section(s) of statute
>
> \(d\) Action recommended
>
> \(e\) Date
>
> \(2\) Synopsis
>
> \(a\) Date claimant requested VETS assistance
>
> \(b\) Basis for case opening and identification of applicable statute
> (VRR or USERRA)
>
> \(c\) Identification of claimant\'s military affiliation (e.g., an
> inductee or enlistee returning from active duty, a member of the
> Reserve or National Guard)
>
> \(d\) Date claimant requested referral
>
> \(3\) The body of the Memorandum
>
> \(a\) Parties to the dispute
>
> \(b\) Statement of the dispute (Issue(s))
>
> \(c\) Claimant\'s position as to each issue
>
> \(c\) Employer\'s position as to each issue
>
> \(d\) Settlement attempts and specific offers
>
> \(e\) Investigative findings as to each issue including all witnesses
> who support one position or another
>
> \(f\) Evaluation of each issue
>
> \(g\) Relief request for each issue
>
> \(h\) Recommendation regarding each issue [**\[QAR\]**](#QARForm)

**.11 Development of Each Section of the MOR**

> \(1\) **Information on the Parties to the Dispute.** This section will
> [always]{.underline} include information on the claimant and the
> immediate employer. It should also include any other entities which
> are exercising managerial discretion or are impacting upon the
> employment relationship, such as labor organizations, pension plan
> administrators, etc.
>
> \(a\) **Claimant.** The information on the claimant will include all
> necessary details to illustrate statutory eligibility. In cases where
> persons are claiming reemployment rights after military service,
> necessary details include the following:
>
> \(i\) Date of original hire
>
> \(ii\) All positions held from date of hire to date of departure for
> military service, and dates held
>
> \(iii\) Rate of pay at the time of departure
>
> \(iv\) Date of departure from civilian employer, and date of
> notification to the employer and by what means
>
> \(v\) Date of entering military service and branch of Armed Forces
> entered
>
> \(vi\) Date separated from military service
>
> \(vii\) Character of military service
>
> \(viii\) Date of return to work or application for reemployment
>
> \(ix\) Person to whom application for reemployment or return to work
> was made
>
> \(x\) How application for reemployment was made
>
> \(xi\) Date rehired or denied restoration and by whom
>
> \(xii\) Reason given for denial
>
> **Note:** If the claimant has entered into an arbitration agreement or
> is covered by an arbitration provision in a collective bargaining
> agreement, the MOR must make reference to the agreement and the file
> should contain a copy of the agreement.
>
> Variations will be necessary for cases involving alleged
> discrimination, NDMS service, retaliation or other types of cases.
>
> \(b\) **Employer**. The information on the employer will include a
> description of the:
>
> \(i\) Employer\'s proper legal name
>
> \(ii\) Nature of business
>
> \(iii\) Size of business (by number of employees or number of
> facilities)
>
> \(iv\) Location of work site at which claimant claims rights
>
> If the claim involves nontraditional entities (e.g., a pension or
> hiring hall) perform­ing employer functions, the information on the
> employer will identify such entities and describe their roles:
>
> \(v\) Name of plan
>
> \(vi\) Method of formation of the plan; e.g., defined benefit, defined
> contribution, profit sharing, retirement, health and welfare, etc.
>
> \(vii\) Formula for the computation of benefits
>
> \(viii\) Date of implementation of the plan and general terms
>
> \(ix\) Any plan provisions which are obviously relevant to the
> disposition of the case, such as how military absence is treated
>
> The file should contain a copy of the Summary Plan Description and
> Trust Agree­ment for pension claims.
>
> If the case involves a union, the information will also identify the
> union and describe any pertinent collective bargaining agreement
> provisions, such as how military absence is treated. The file should
> contain a copy of the pertinent collec­tive bargaining agreement.
>
> \(2\) **Statement of the Dispute.** State each issue and allegation
> separately, including the appropriate sections of the statute and
> regulations involved for each allegation. This should be followed by a
> detailed statement of the positions of each of the parties as to each
> issue. If the employer has refused to furnish a statement, the VETS
> investigator should so state and then leave it to the AG or OSC to
> obtain a position statement from the employer.
>
> \(3\) **Settlement Attempts and Offers.** Outline any settlement
> attempts and specify the exact terms of all offers and the reasons for
> the rejection. This is to advise the Solicitor, AG or OSC making
> settlement attempts of prior efforts.
>
> \(4\) **Investigative Findings.** Include all specific findings as
> they pertain to each specific issue. The investigative findings
> section must specify how the facts support or don\'t support each
> eligibility criteria for reemployment rights. For example, the
> investi­gative findings in a merit case should show that:
>
> \(a\) Prior to military service claimant was an employee of the
> employer.
>
> \(b\) The claimant provided the notification (if required) and left
> for the purpose of performing military service.
>
> \(c\) The claimant met the character of service requirements.
>
> \(d\) The claimant made a timely application for reemployment.
>
> \(e\) The claimant did not exceed the service limitation(s).
>
> \(f\) Where appropriate, the claimant provided the documentation
> requested by the employer.
>
> \(g\) The claimant is qualified to perform either the escalator or
> some other position with the employer.
>
> \(h\) The employer failed or refused to grant other entitlements
> protected by USERRA.
>
> \(i\) It can be said with "reasonable certainty" that the claimant
> would have received the entitlements claimed if he/she had remained
> continuously employed instead of entering military service.
>
> \(j\) Why any affirmative defense raised by the employer as set forth
> in USERRA is not applicable.
>
> The findings to be detailed will, of course, depend on the issues in
> the case.
>
> \(5\) **Evaluation.** The investigating office will evaluate the claim
> by applying the statute and applicable regulations to the facts. The
> VETS investigator will accomplish this by evaluating the claimant\'s
> entitlement and the employer\'s obligation in light of requirements of
> the applicable sections of the statute. Given the requirements of the
> statute and the facts revealed by the investigative findings, the
> office will trace and reconstruct what the claimant\'s employment
> history would have been had he or she not been absent. The
> reconstruction will be guided by the "reasonable certainty" concept.
>
> The VETS investigator shall not make a positive recommendation unless
> the investigation supports the allegations with reasonable certainty,
> except in cases dealing with a credibility issue. If credibility
> findings (determinations made based upon feelings, opinions, nuances
> and/or slight evidence which are worthy or may inspire belief) are
> necessary, they shall be influenced by the following:
>
> \(a\) Concept of liberal interpretation for the benefit of the
> claimant;
>
> \(b\) Reasonable certainty; and
>
> \(c\) Common sense.
>
> \(6\) **Relief Requested.** The MOR will state exactly what remedy the
> claimant is entitled to receive. This may include:
>
> \(a\) All possible affirmative actions pertaining to the claim such as
> reinstate­ment, seniority adjustment, promotion, pay increases,
> vacation adjustment, pension adjustment, etc.
>
> \(b\) The total amount of lost wages or other monetary relief
> requested such as medical claims, vacation pay, etc. and the basis for
> the calculations. [See Chapter 6](#chapter_6). If the case involves a
> pension benefit, determine the effect the additional years of credit
> would have on the pension benefit, date of vesting, the retroactive
> loss to date if applicable, and an explanation of how the loss was
> com­puted.
>
> \(c\) The period for which the lost wages are accruing.
>
> \(d\) The future date, if any, when the violation will cease, if
> applicable.
>
> \(e\) Any mitigation of losses (including unemployment compensation,
> for settlement purposes only) and all job seeking efforts by the
> claimant to find other employment. [See Chapter 6](#chapter_6).
>
> \(f\) Liquidated damages if the investigation has shown the violation
> to be willful.
>
> \(7\) **Recommendation.** The VETS investigator will make a
> recommendation for further handling of the claim. In certain
> situations where there are disputed facts, or information could not be
> corroborated, a recommendation does not need to be made. In such
> instances indicate the reason(s) for no recommendation.
>
> \(8\) **List of Exhibits.** The VETS investigator will include a list
> of exhibits identifying each one by type and date of document. Each
> exhibit will be num­bered.
>
> \(9\) **Regional Offices\' Approval to Use \"Short Form\".** When the
> claim is unequiv­ocally invalid, the VETS investigator may use the
> "short form" MOR [(Exhibit 27)](#Exhibit27SmplShortFrmMORLitNR), but
> must discuss the case with the Region's Senior Investigator prior to
> submitting the AG/OSC referral. Exhibits must still be listed and
> identified in the case file.
>
> \(10\) **Case Transferred to Regional Office.** When the MOR has been
> completed, it is transferred to the Regional Office, along with the
> case file, for appropriate action. [See .9 in this Chapter for
> content.](#Chapter_9)

**.12 Responsibilities of the Regional Office (RO)** **Under this
Chapter.**

> \(1\) The RO shall review the entire case file and the MOR to ensure
> that the investigation is accurate and sufficient, that the
> information in the exhibits fully support the statements made in the
> MOR, and that the evaluation of the claim is in accordance with the
> facts established by the investigation and proper application of the
> statute.
>
> \(2\) The RO shall be responsible for the quality and timeliness of
> referrals to the Regional Solicitor and shall serve as the chief
> liaison with the Regional Solicitor. [The RO must submit referrals to
> the Regional Solicitor within **[5 working days]{.underline}** after
> receipt from the VETS investigator or may reassign the case to the
> Senior Investigator or another investigator if needed to expedite
> closing.]{.mark} . If the original file is returned to the VETS
> investi­gator due to an incomplete or defective investigation, time
> needed for the investi­gator's corrections will not be counted against
> the RO's 5 working day time period.

.

> \(3\) The RO shall track the status and nature of the litigation
> efforts.
>
> \(4\) The RO is ultimately responsible for all USERRA activities
> including referrals, and for transmitting the applicable documents to
> the Regional Solicitor.
>
> \(5\) At the point that the referral is sent to the Solicitor\'s
> Office the RO will enter either RR \[recommended\] or NR \[not
> recommended\] into the IMS.

**.13 [Insufficient Investigation. ]{.mark}** [If the investigation is
incomplete or defective, the RO may reassign the case or return the file
to the original VETS investigator with a detailed memorandum requesting
additional investigation on specific points and revision of the MOR as
necessary or appropriate. The Supplemental Investigation and revised MOR
must be completed within 30 calendar days from the date the case is
reassigned or returned to the VETS investigator.]{.mark}

**.14 Regional Office\'s Transmittal to SOL.** When the RO is satisfied
as to the scope and quality of the investigation, the RO shall prepare
an analytical transmittal memorandum to the Regional Solicitor. (See
sample transmittal memorandum in Exhibit 28). This shall be prepared for
all MOR\'s.

> The RO transmittal memorandum will make a specific recommendation for
> or against litigation and explain the reason for the recommendation.
> The transmittal memorandum shall contain appropriate reasoning to
> support the recommendation and will include any information which may
> assist the Regional Solicitor in the future processing of the case.
>
> The transmittal memorandum shall supplement the MOR or further
> describe the applica­tion of the law to the facts. The transmittal will
> reflect:
>
> \(1\) That the case file was thoroughly reviewed; and
>
> \(2\) That the RO takes a specific position with regard to future
> processing of the case.
>
> NOTE: It is important to bring weaknesses to the attention of the
> Regional Solicitor so an adequate defense may be prepared.

**.15 Regional Office\'s Letter to Employer.** After the file has been
reviewed, approved for action and the transmittal composed, the RO will
advise the employer or counsel of record (with a copy to the claimant,
and blind copies to the initiating investigator), that the claim has
been transmitted to RSOL for referral to OSC or the U.S. Attorney
General. [Exhibit 29](#exhibit29smplrarefnottoempl) shows a sample of
this letter. The letter will serve as official notice to the employer
that the claim has been forwarded, and that all future communica­tions
should be directed to the designated Regional Solicitor.

.**16 Distribution of the MOR.** The referral documents should be\--

> \(1\) Distributed to the Regional Solicitor:
>
> \(a\) The original MOR, with the original case file containing all the
> exhibits; and
>
> \(b\) The original RO transmittal memorandum.
>
> \(2\) Retained at the Regional Office, duplicate (or originals, when
> appropriate) of:
>
> \(a\) The MOR;
>
> \(b\) A duplicate case file containing all the exhibits;
>
> \(c\) The RO\'s transmittal memorandum; and
>
> \(d\) Documents received after transmittal of MOR, including documents
> received from various referring office (SOL, AG, OSC).

**.17 Securing of Documents.** As part of the ongoing liaison with the
SOL, the RO will request copies of significant correspondence or
documents relevant to the USERRA case. These may include:

> \(1\) The SOL\'s analysis referring the case to the AG or OSC;
>
> \(2\) AG\'s transmittal to the U.S. Attorney;
>
> \(3\) Department of Justice\'s letter of declination, if appropriate;
>
> \(5\) Copy of the complaint filed, if any;
>
> \(6\) Copy of briefs; and
>
> \(7\) Copy of the court decision or settlement documents.

**.18 Keeping VETS/NO Informed of Unusual or Precedent-Setting Cases.**
The RO will keep the VETS/NO informed of actions taken on unusual or
precedent-setting cases in the litigation pipeline.

> If the RO staff becomes aware of cases being litigated by private
> counsel, he/she should keep the VETS/NO and the Regional Solicitor
> informed of those actions.
>
> VETS National Office and The National Office of the Solicitor will
> consult on such cases.

**.19 Contact with Attorney General/ Office of Special Counsel.** The
VETS investigator will advise the RO and Regional Solicitor immediately
of any contact by a U.S. Attorney or the AG or OSC on a USERRA matter,
and will write a report of contact for the case file.

**.20 Attendance at Trial.** The RO shall determine from the Regional
Solicitor when cases are set for trial and may send a representative to
observe. RO\'s are encouraged to utilize such trials for training
purposes.

> No VETS staff may testify at a trial in which DOL is not a party
> unless released by the Regional Solicitor. If a subpoena is served on
> an employee, he/she must immediately notify the RO, who shall
> immediately notify the Regional Solicitor and the National Office. The
> subpoena should be forwarded by the most expeditious means available
> to the RO.

**.21 Declination by Department of Justice or OSC.** When advised by the
DOJ or OSC of a declination to represent a claimant, if in the judgment
of the RO, representation has been inappropriately declined, the RO
shall discuss the matter with the Regional Solicitor and the National
Office. The ASVET may intervene, if warranted. Any questions received,
verbally or in writing, regarding a declination by DOJ or OSC, shall be
referred to DOJ or OSC for a response.

> If in the judgment of the RO, the AG, OSC, or U.S. Attorney has
> inappropriately declined to provide representation with respect to a
> meritorious claim, the RO shall discuss the matter with the Regional
> Solicitor and the National Office. The Assistant Secretary for
> Veterans\' Employment and Training (ASVET) may intervene, if
> warranted.

**.22 Responsibilities Of VETS National Office.** Upon receipt of the
text of court decision(s), the VETS National Office shall interpret the
decision in consultation with the National Office of the Solicitor of
Labor. If the decision is deemed appropriate for distribution, VETS\'
National Office must ensure that the decision is distributed to the
field within 60 days of receipt and ensure that it is maintained in the
numbered series of court decisions. The VETS National Office shall
determine whether release is to be made to media reporting services and
shall provide for press releases as appropriate. They shall also ensure
that policy decisions are made when court decisions require them, and
shall monitor all decisions to determine whether or not an appeal is
going to be made.

**.23 [Press Releases.]{.mark}** [VETS may, through the DOL Office of
Public Affairs (OPA), issue nationally distributed press releases on
pertinent and newsworthy court decisions and USERRA activities. The
releases shall be composed by OPA based upon information furnished by
the VETS/NO Staff. VETS/NO shall immediately distribute a copy of the
approved release to the Regional Administrators who may coordinate with
the DOL Regional OPA, and Regional Solicitor's Office.]{.mark}

[**Exhibit 24: Sample Attorney General/Office of Special
Counsel**](#Exhibit)

[**Referral Request Form**](#Exhibit)

[]{#exhibit24smplagoscrefreqfrm .anchor}REQUEST FOR REFERRAL TO THE

ATTORNEY GENERAL/OFFICE OF SPECIAL COUNSEL

Case Number:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Name of Employer:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

I, \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_SSN:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_, do hereby request the
Veterans' Employment and Training Service, U.S. Department of Labor, to
refer my Uniformed Services Employment and Reemployment Rights Act
(USERRA) claim to the Attorney General (AG) or Office of Special Counsel
(OSC) \[specify\] for consideration of representation, and I request the
AG/OSC \[specify\] intercede on my behalf by representing me in the
United States courts or before the Merit Systems Protection Board (MSPB)
to protect my USERRA Rights under the provisions of Chapter 43, Title
38, U.S.C. and/or related predecessor statute. I understand that my
request for referral and representation pledges me to cooperate with the
Solicitor of Labor, and the Attorney General/Office of Special Counsel
\[specify\], in prosecution of my claim and to give prompt notice of any
change in my mailing address and/or telephone number.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Signature of Claimant

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Address

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Telephone No.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Date

NOTE: Request for Referral should be modified to specify the agency to
which the referral is to be transmitted, (e.g., Attorney General, Office
of Special Counsel). The Office of Special Counsel is the agency
responsible for initiating any action before the Merit Systems
Protection Board.

[**Exhibit 25: Referral Advisory letter to
Employer**](#Exhibit25ReferralAdvLtrtoEmplr)

[[]{#exhibit25smplrefadvltrtoemplyr .anchor}**\[QAR\]**](#QARForm)

**U.S. Department of Labor**

**Veterans' Employment and Training Service**

**Street Address**

**City, State, Zip Code**

Date

(EEEEEEEE)

Street Address

City, State, Zip Code

Re: (EEEEEEEE)

Case Number

Dear (EEEEEEEE):

This is to advise you that (XXXXXXX)'s case against (EEEEEEEE) is being
referred to the Attorney General/Office of Special Counsel \[specify\]
for consideration of legal action. As you are aware, (XXXXXXX) seeks
reinstatement in the position of Quality Control Specialist and
consequent lost wages since the date of denial of his reemployment,
August 28, 20XX.

We regret that this matter could not be resolved to the satisfaction of
the parties.

Sincerely,

Investigator's Name

Investigator's Title

cc: (XXXXXXX)

[[]{#Exhibit26SmpllongformMORlitrec .anchor}**Exhibit 26: Sample "Long
Form" Memorandum of Referral**](#Exhibit26SmpllongformMORlitrecIll)

[**(Litigation Recommended)**](#Exhibit26SmpllongformMORlitrecIll)

**U.S. Department of Labor**

**Veterans' Employment and Training Service**

**Street Address**

**City, State, Zip Code**

DATE: Date

MEMORANDUM FOR: U.S. Attorney General/Office of Special Counsel
(specify)

THROUGH: Regional Administrator's Name, Regional Administrator

FROM: Investigator's Name, Investigator's Title

SUBJECT: Memorandum of Referral

[Claimant]{.underline} [Alleged Violation]{.underline}

\(XXXXXXX\) Failure to reemploy pursuant to Section 4313

Street Address

City, State, Zip Code

(Phone Number)

v\.

[Employer]{.underline} [Action Recommended]{.underline}

EEEEEEEE Litigation Recommended

Street Address

City, State, Zip Code

(Phone Number)

[Case Number]{.underline}

DC-20XX-XXXXX-XX-X

This report and file cover an investigation of a claim filed by
(XXXXXXXX), a member of the U.S. Army Reserves, against (EEEEEEEE). This
case was opened on (date) by the Local VETS Office, Veterans' Employment
and Training Service, acting for the Secretary of Labor and the
Veterans' Employment and Training Service per Section 4322, Chapter 43,
Title 38, U.S. Code.

Settlement efforts were not fully successful and (XXXXXXXX) requested
referral to the U.S. Department of Justice on January 19, 20XX (Exh.
36).

[Claimant]{.underline}

\(XXXXXXX\) began employment with (EEEEEEE) in City, State on May 17,
20XX (Exh. 1, p.1). He joined the U.S. Army Reserves on September 24,
20XX (Exh. 24, p.1) and received orders dated October 7, 20XX to attend
active duty training for a period of 126 days beginning November 13,
20XX (Exh. 24, p.12). On October 17, 20XX he presented his orders to the
Supervisor of Human Resources (Exh. 9, p.2). (XXXXXXX)'s last day of
work, as a full-time janitor \[last position held\], at \$5.15 \[wage
rate\] was November 24, 20XX (Exh. 1, p.4) at which time he left to
report for military training on November 13, 20XX (Exh. 1, p.2). On or
about December 1, 20XX, (XXXXXXX) was sent a letter from his employer
stating that his name was being removed from the rolls due to "a lack of
proper documentation" (Exh. 1, p.4). He completed military training
April 1, 20XX and reported back to work that same day or the next day
(Exh. 34, p.2). On April 2, 20XX, (XXXXXXXX), upon reporting for work,
was presented a December 1, 20XX termination letter by (Name),
Supervisor of Human Resources along with his payroll check (Exh. 1,
p.12,26, p.9) and was denied reemployment."

[Employer]{.underline}

(EEEEEEEE) manufactures and repairs large power transformers. It is
located at Street Address, City, State and employers approximately 195
people. The corporate office is located in City, State (Exh. 39, p.1).
\[The employees are/are not represented by the Union Name.\]

[The Dispute and Each Party's Position]{.underline}

The issue in this case is whether (XXXXXXX) made a "proper" leave
request pursuant to Section 4312 of the statute. It is undisputed that
the (XXXXXXX) possessed orders and presented those orders to his
(EEEEEEEE) well in advance of his military leave (Exh. 9, P.2).

However, (EEEEEEEE) maintains that (XXXXXXX)'s discharge was justified
because he failed to provide complete supporting documentation of his
military orders prior to going on military leave (Exh. 9, p.6).

A related issue was discrimination in violation of section 4311 since
(XXXXXXX)'s discharge was a result of disparate treatment as prohibited
pursuant to Section 4301(b)(3), the penalty imposed on (XXXXXXX)
(discharge) was not consistent with (EEEEEEEE)'s discharge policy (Exh.
24, p.9 and 25).

[Settlement Attempts]{.underline}

\(XXXXXXX\) was fully reinstated to his former position effective
December 7, 20XX. However, EEEEEEEE did not agree to award back pay
despite verbal and written attempts. (EEEEEEEE)'s POC Name stated
(EEEEEEEE)'s refusal during telephone conversations on December 15,
20XX, January 28, 20XX and February 3, 20XX. Finally, EEEEEEEE's POC
Name did not respond to a February 3, 20XX certified letter requesting
back pay for (XXXXXXX) (Exhs. 32, 38 and 41).

[Investigative Findings]{.underline}

1(XXXXXXX) began employment with (EEEEEEEE) on May 17, 20XX (Exh. 1,
p.1). (XXXXXXX) joined the U.S. Army Reserves on September 24, 20XX
(Exh. 24, p.1) and received orders dated October 7, 20XX to attend
active duty training for a period of 126 days beginning November 13,
20XX (Exh. 24, p.12). Since (XXXXXXX) had already served two years of
active duty between 20XX and 20XX, he was not required to complete
initial active duty training (Exh. 28, p.2).

2\. (XXXXXXX) verbally informed his immediate supervisor, Supervisor's
Name, on September 26, 20XX of his upcoming training. Supervisor's Name
suggested that (XXXXXXX) talk to Name, Supervisor of Human Resources
(Exh. 26, p.3).

3\. (XXXXXXX) informed Name, Supervisor of Human Resources of his
upcoming obligation on October 1, 20XX. (XXXXXXX) maintains that Name,
Supervisor of Human Resources requested that he sign a leave of absence
and (XXXXXXX) says he did so on October 1, 20XX (Exh. 26, p.3). Name,
Supervisor of Human Resources acknowledges (XXXXXXX)'s verbal request,
but maintains that she never requested (XXXXXXX) to sign a leave of
absence nor did (XXXXXXX) do so (Exh. 26, p.5).

4\. On October 17, 20XX (XXXXXXX) presented his written orders to Name,
Supervisor of Human Resources. Name, Supervisor of Human Resources
reviewed the orders and asked about the meaning of the section in the
orders which read: "Additional Instructions: see reverse" (Exh. 9,
p.2;26, p.3). (XXXXXXX) called his recruiter, Recruiter's Name, since he
could not answer Name, Supervisor of Human Resources' question about the
meaning of the "Additional Instructions" reference in the orders (Exh.
26, p.3).

5\. Recruiter's Name recalls talking to both Name, Supervisor of Human
Resources and (XXXXXXX)'s immediate supervisor, Supervisor's Name, on
one or two occasions, but does not remember specific dates. However, she
clearly remembers that both Name, Supervisor of Human Resources and
Supervisor's Name could not understand (XXXXXXX)'s military obligation
or the purpose of the orders, despite her efforts to explain such, along
with the efforts of another individual in her office, Name, and the
Staff Administrator in (XXXXXXX)'s Reserve unit, Staff Administrator's
Name (Exh. 40). Both Staff member and Name of Staff Administrator
attempted to explain to Name, Supervisor of Human Resources that the
orders possessed by (XXXXXXX) were complete and the "Additional
Instructions" reference was not relevant in (XXXXXXX)'s case, but Name,
Supervisor of Human Resources did not understand (Exh. 26, p.6, 40).
Name, Staff Administrator also provided Name, Supervisor of Human
Resources with the 800 number in the Washington, DC area if she had
further questions and Name, Supervisor of Human Resources later admitted
that she did not call that number (Exh. 26, p.6).

6\. Both parties agree that (XXXXXXX)'s last day of work was November
12, 20XX and that he informed Name, Supervisor of Human Resources that
he was leaving the next day (Exh. 9, p.2;26, p.4). (XXXXXXX) maintains
that when he asked Name, Supervisor of Human Resources if there was
anything else he could do, Name, Supervisor of Human Resources shook his
hand and said: "No, (XXXXXXX). Good luck!" (Exh. 26, p.4). Name,
Supervisor of Human Resources maintains that she replied to (XXXXXXX)'s
question with, "(XXXXXXX), I still do not have that Additional
Instructions, see reverse, incorporated by reference." (Exh. 26, p.5).

7\. Name, Supervisor of Human Resources maintains that following
(XXXXXXX)'s leaving for military training she talked to three military
representatives regarding (XXXXXXX) . She asserts that she never
received a satisfactory explanation about the "Additional Instructions"
on (XXXXXXX)'s orders (Exh. 9, p.2-5). Both Sergeant's Name and Name,
civilian Staff Administrative Specialist assigned to (XXXXXXX)'s Reserve
unit, assert that they tried to answer Name, Supervisor of Human
Resources' question but she did not understand (Exh. 26, p.6, 40). Name
Staff Administrative Specialist states that he is sure he told Name,
Supervisor of Human Resources that the "Instructions" were irrelevant
(Exh. 30). The third representative with whom Name, Supervisor of Human
Resources talked, Sergeant's Name, has since transferred and is
stationed abroad (Exh. 40, p.2).

8\. On December 1, 20XX Name, Supervisor of Human Resources sent a
certified letter to (XXXXXXX) stating: "Your last day of work was
November 12, 20XX. Final review indicates a lack of proper
documentation. Your are hereby notified that your name has been removed
from our rolls effective your last day worked, which was November 12,
20XX." (Exh. 1, p.4). Name, Supervisor of Human Resources admitted
during a November 24, 20XX closing conference that the letter served as
(XXXXXXX)'s termination notice (Exh. 26, p.9). The letter was never
served as (XXXXXXX) 's termination notice (Exh. 26, p.9). The letter was
never claimed (Exh. 1, p.5).

9\. (XXXXXXX) successfully completed his military training on April 1,
20XX (Exh. 24, p.15). He reported back to work either the same afternoon
or the following afternoon . (XXXXXXX) thinks it was April 1 and
(EEEEEEEE) says it was April 2; in any event, the reporting time is not
an issue as far as the (EEEEEEEE) is concerned. Upon reporting for work
. (XXXXXXX) was presented the December 1, 20XX termination letter by
Name, Supervisor of Human Resources along with his payroll check (Exh.
1, p.12,26, p.9).

10\. . (XXXXXXX) proceeded to apply for unemployment benefits and was
denied on the basis of Division of Employment Security's determination:
"Reason" the . (XXXXXXX) was discharged because he was absent from work
without requesting or being granted a military leave of absence. When
the . (XXXXXXX) could not be reached to substantiate the need for a
leave, he was discharged." (Exh. 9, p.15). Since . (XXXXXXX) did not
file a timely appeal, the determination stood and . (XXXXXXX) did not
receive any benefits (Exh. 26, p.8).

11\. During a November 24, 20XX closing conference Name, Supervisor of
Human Resources and Name, EEEEEEEE's POC stated that . (XXXXXXX) was
"released" rather than "discharged." (Exh. 26, p.9). They reiterated
their previous position that . (XXXXXXX) was terminated for failure to
provide sufficient documentation regarding his military leave request
(Exh. 26, p.10). They provided a copy of (EEEEEEEE)'s written
disciplinary policy (Exh. 25) but admitted that their "release" policy
was not in writing (Exh. 26, p.9). The disciplinary policy did not
include "lack of proper documentation" in the lengthy list of actions
considered as misconduct (Exh. 25).

12\. At the conclusion of the November 24, 20XX conference, Name
(EEEEEEEE)'s POC elaborated on (EEEEEEEE)'s position: He concurred that
a notice requirement is all that is needed for an employee to be granted
military leave. However, the notice requirement carries with it a
document requirement which is verified and sufficiently complete. .
(XXXXXXX) 's orders were not sufficient documentation and it was his
responsibility to obtain that documentation or have the military obtain
such. The fact that the proper documentation was not provided XXXXXXXX
is "tough s\-\-- on him." Despite the fact that it was not . (XXXXXXX)
's fault, "it is somebody's responsibility to give details of military
leave to the (EEEEEEEE)." (Exh. 26, p.10). Name, EEEEEEEE's POC said
that the (EEEEEEEE) would not agree to state their position in writing
(Exh. 38).

13\. (EEEEEEEE) agreed to fully reinstate . (XXXXXXX) effective December
7, 20XX without back pay (Exhs. 31 and 32). Name, (EEEEEEEE)'s POC said
that they were willing to reinstate him because he was a victim of
circumstances, but back pay was not justified for the reasons stated on
November 24, 20XX (Exh. 38, p.1-2).

[Evaluation]{.underline}

The substantive facts in this case are undisputed. Those facts
conclusively reveal that . (XXXXXXX) was denied his statutory
entitlement under USERRA.

The . (XXXXXXX) X was a member of a Reserve component of the Armed
Forces. He possessed orders for military leave and requested such leave.
In fact, he initially notified EEEEEEEE verbally about his upcoming
leave and then presented the Supervisor of Human Resources with a copy
of the orders after receiving them. Moreover, he attempted to comply
with (EEEEEEEE)'s request for clarification of his orders by arranging
for military representatives to talk with the Supervisor of Human
Resources. Further, he notified that same individual on his last day of
work that he was leaving for training the next day. Finally, the .
(XXXXXXX) reported back to work on a timely basis following successful
completion of his training pursuant to Section 4312, only to learn that
he had been discharged shortly after leaving for training for providing
"...incomplete supporting documentation of his Military Orders..."
Therefore, from all indications, . (XXXXXXX) did everything possible to
comply with his responsibilities under Section 4312.

(EEEEEEEE)'s position that . (XXXXXXX) 's discharge was justified is
totally without merit for several reasons: (1) Section 4312 only
requires that an employee provide advance written or verbal notice. The
(EEEEEEEE) has no choice but to grant the leave. (2) An employer is not
entitled by USERRA to any documentation prior to an employee's military
service. (EEEEEEEE)'s termination of . (XXXXXXX) for allegedly
insufficient documentation prior to service is inconsistent with section
4312 of the Act. (3) Finally, . (XXXXXXX) 's discharge appears to be
discrimination in violation of section 4311, since the discharge was
motivated by XX's military service.

[Remedies]{.underline}

. (XXXXXXX) was entitled to return to work on April 2, 20XX. However, he
was not reinstated with EEEEEEEE until December 7, 20XX. Although .
(XXXXXXX) was actively seeking employment and applied with such
companies as Company Name, Company Name and Company Name, he was not
successful in finding substantially equivalent employment. Since he did
not have interim earnings during that period, he is due back pay for a
total of 34 weeks . (XXXXXXX) was denied unemployment benefits). His pay
rate was \$6.92 per hour when he left for military training on November
12, 20XX and he was reemployed at the rate of \$8.14 per hour.
(EEEEEEEE) could not provide the date when the rate increased from
\$6.92 to \$8.14 per hour (Exh. 39, p.1-2). Therefore, . (XXXXXXX) 's
back pay is estimated at \$11,070, i.e., \$8.14 per hour @ 40 hours per
week x 34 weeks.

[Recommendation]{.underline}

Litigation is strongly recommended based on the sizeable amount of back
pay due, plus the clear cut evidence that . (XXXXXXX) 's reemployment
was improperly delayed for a lengthy period of time.

**[EXHIBITS]{.underline}**

1\. Eligibility Data Form with attachments

2\. Report of Contact, SFC Name of Military Member, September 15, 20XX

3\. Report of Contact, . (XXXXXXX) , September 15, 20XX

4\. Report of Contact, SGT Name of Military Member, September 15, 20XX

5\. Report of Contact, Name, Supervisor of Human Resources, September
15, 20XX

6\. Letter, September 22, 20XX, Investigator's Name to . (XXXXXXX)

7\. Report of Contact, Name, Supervisor of Human Resources, October 5,
20XX

8\. Letter, October 6, 20XX, Name, Supervisor of Human Resources to
Investigator's Name

9\. Letter with attachments, October 9, 20XX, Name, Supervisor of Human
Resources to Investigator's Name

10\. Report of Contact, Name, Staff Administrative Specialist, October
15, 20XX

11\. Report of Contact, Name, Supervisor of Human Resources, October 25,
20XX

12\. Letter, October 19, 20XX, Investigator's Name to Name, Supervisor
of Human Resources

13\. Report of Contact, Name, Supervisor of Human Resources, October 26,
20XX

14\. Report of Contact, Name, (EEEEEEEE)'s' Attorney, October 27, 20XX

15\. Report of Contact, Unit Staff Administrative Assistant, October 27,
20XX

16\. Letter w/attachments, October 27, 20XX, Names, Unit Staff
Administrative Specialist to Investigator's Name

17\. Report of Contact, Name, Supervisor of Human Resources, November 2,
20XX

18\. Letter, October 20, 20XX, from Name, Witness

19\. Report of Contact, Name, Supervisor of Human Resources, November
10, 20XX

20\. Report of Contact, Name, . (XXXXXXX) 's Attorney, November 12, 20XX

21\. Letter November 16, 20XX, Investigator's Name to Name, (EEEEEEEE)'s
Attorney

22\. Report of Contact, Name, (EEEEEEEE)'s Attorney, November 30, 20XX

23\. Copies of Court Cases

24\. Documents provided by . (XXXXXXX)

25\. Document provided by (EEEEEEEE)

26\. Report of Contact, November 24, 20XX, Closing conference notes

27\. Letter, November 25, 20XX, Name, Unit Staff Administrative
Specialist to Investigator's Name

28\. Report of Contact, Name, (EEEEEEEE)'s Attorney, November 30, 20XX

29\. Report of Contact, . (XXXXXXX) , December 1, 20XX

30\. Document provided by Name, Unit Staff Administrative Specialist,
December 3, 20XX

31\. Report of Contact, . (XXXXXXX) , December 4, 20XX

32\. Report of Contact, Name, (EEEEEEEE)'s Attorney, December 15, 20XX

33\. Report of Contact, . (XXXXXXX) , December 16, 20XX

34\. Report of Contact, . (XXXXXXX) , January 7, 20XX

35\. Letter, January 8, 20XX, Investigator's Name to . (XXXXXXX)

36\. Claimants Request for Referral , January 11, 20XX

37\. Notification of Referral letter to sent to (EEEEEEE), January 11,
20XX

38\. Report of Contact, Name, (EEEEEEEE)'s Attorney, January 20, 20XX

39\. Report of Contact, Name, (EEEEEEEE)'s Attorney, January 28, 20XX

40\. Report of Contact, Name, Supervisor of Human Resources, February 3,
20XX

41\. Report of Contact, Witness Name, February 3, 20XX

42\. Letter, February 3, 20XX, Investigator's Name to Name, (EEEEEEEE)'s
Attorney

[[]{#Exhibit27SmplShortFrmMORLitNR .anchor}**Exhibit 27: Sample "Short
Form" Memorandum of Referral**](#exhibit27smplshortfrmmorlitnrill)

[**(Litigation Not Recommended)**](#exhibit27smplshortfrmmorlitnrill)

**U.S. Department of Labor**

**Veterans' Employment and Training Service**

**Street Address**

**City, State, Zip Code**

DATE: Date

MEMORANDUM FOR: U.S. Attorney General/Office of Special Counsel
(specify)

THROUGH: Regional Administrator's Name, Regional Administrator

FROM: Investigator's Name, Investigator's Title

SUBJECT: Memorandum of Referral

[Claimant]{.underline} [Alleged Violation]{.underline}

. (XXXXXXX) Failure to Reemploy (Section 4312)

Street Address

City, State, Zip Code

(Phone Number)

v\.

[Employer]{.underline} [Action Recommended]{.underline}

EEEEEEEE Litigation Not Recommended

Street Address

City, State, Zip Code

(Phone Number)

[Case Number]{.underline}

DC-20XX-XXXXX-XX-X

This report and file covers an investigation of the claim of National
Guardsman . (XXXXXXX) filed against his employer, Company, City and
State, received by the Local Office of the Veterans' Employment and
Training Service, acting for the Secretary of Labor and the Veterans'
Employment and Training Service per Section 4322, Chapter 43, Title 38,
U.S. Code. The undisputed facts established that . (XXXXXXX) was
discharged from active duty with the U.S. Marine Corps on January 19,
20XX, and that he received a bad conduct discharge. This would make .
(XXXXXXX) ineligible for reemployment under section 4304 of the
Uniformed Services Employment and Reemployment Rights Act of 1994.

[[]{#Exhibit28SamplRATrnsLtrDOJ .anchor}**Exhibit 28: Sample RA
Transmittal Letter to DOJ**](#Exhibit28SamplRATrnsLtrDOJIll)

[**(Litigation Recommended)**](#Exhibit28SamplRATrnsLtrDOJIll)

**U.S. Department of Labor**

**Veterans' Employment and Training Service**

**Street Address**

**City, State, Zip Code**

DATE: Date

MEMORANDUM FOR: U.S. Attorney General/Office of Special Counsel
(specify)

THROUGH: Regional Solicitor of Labor's Name, Regional Solicitor of Labor

FROM: Regional Administrator's Name, Regional Administrator

SUBJECT: XXXXXXXX v. EEEEEEEE

DC-20XX-XXXXX-XX-X

Forwarded herewith is (Investigator's Title and Name's) Memorandum of
Referral to the Department of Justice with a duplicate copy of the case
file. We have reviewed both the report and file and concur in the
recommendation.

. (XXXXXXX) was employed by EEEEEEEE as a patrolman. Before completing
the required six months probationary period, . (XXXXXXX) was ordered to
a period of active duty with the U.S. Marine Corps Reserves. Upon
satisfactory completion of active duty, . (XXXXXXX) applied for
reinstatement and was reinstated. Rather than being placed at the exact
point he left in the probationary period, his probation was extended.
Military service was not included for seniority purposes and the pay
rate granted was that of a new hire and was not elevated properly even
after the extended period of probationary employment was successfully
completed. . (XXXXXXX) subsequently resigned and through this case is
seeking lost wages.

The employer at one point in the investigation stated that pay raises
were based on evaluations; however, their final position stated that no
merit system exists. They failed to provide any specific criteria for
the granting of raises other than that the Board of Aldermen makes the
decision. Nor did they supply the evaluation on anyone except .
(XXXXXXX) when requested. From the pay raises given other patrolmen, it
is evident that raises were based on the passage of time only. .
(XXXXXXX) , therefore, should have been granted the rate he would have
attained if not for military service at least upon completion of the
balance of his probationary period.

Based upon our investigative findings, we recommend pursuit of this
matter through litigation.

[**Exhibit 29: Sample RA Referral Notice to
Employer**](#Exhibit29SmpRARefNottoEmplIll)

[]{#exhibit29smplrarefnottoempl .anchor}**U.S. Department of Labor**

**Veterans' Employment and Training Service**

**Street Address**

**City, State, Zip Code**

Date

EEEEEEEE

Director of Human Resources

Street Address

City, State, Zip Code Re: . (XXXXXXX) DC-20XX-XXXXX-XX-X

Dear EEEEEEEE:

In accordance with Section 4323 of Title 38, U.S.C., Chapter 43,
Reservist . (XXXXXXX) 's claim for a retroactive seniority date on the
engineer seniority roster to May 1, 20XX, as well as subsequent
financial benefits resulting from that seniority date, has been
forwarded to the Regional Solicitor for referral to the U.S. Attorney
General/Office of Special Counsel (select).

Future correspondence on this matter should be addressed to:

Regional Solicitor's Name, Regional Solicitor

U.S. Department of Labor

Street Address

City, State, Zip Code

I regret that we were unable to reach a satisfactory resolution to this
matter.

Sincerely,

Regional Administrator's Name

Regional Administrator

cc: . (XXXXXXX)

Regional Solicitor's Name, Regional Solicitor

Investigator's Title and Name

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9

[[]{#Chapter_9 .anchor}**Chapter 9**](#Chapter9TOC)

[**Case Closing**](#Chapter9TOC)

**.1 Purpose.** This section describes closing procedures to be used in
different circumstances.

**.2 Administrative Closure (AD).** A case should be closed
administratively under any of the following circumstances:

> \(1\) **Lack of Interest.** Administrative closure is appropriate when
> the claimant clearly displays lack of interest, is inappropriately
> interfering and/or intentionally disrupting the investigation, or
> unable to assist in pursuing the claim. Examples are failure to reply
> to VETS' letters, failure to give VETS a change of address, failure to
> supply information which could be easily obtained, failure to attend
> scheduled meetings or conferences, and failure to make a written
> request for referral after being given the opportunity to do so.
>
> *Document the reason(s) the case has been closed on a [VETS Form
> 1063](#VETS1063). Send the claimant a letter advising that if he/she
> fails to respond the closure of the casewills become necessary because
> \[state reason(s) as described in the VETS Form 1063\]. Allow the
> claimant ten business days to respond. The letter [must]{.underline}
> be sent via Certified Mail -- Return Receipt. If at the end of this
> period the claimant fails to respond, the receipt is not returned to
> VETS, or is undeliverable, close the case administratively and send
> the claimant a closing letter,Certified Mail-Return Receipt. [Exhibit
> 30.](#Exhibit30SmplClsngltrtoClmtlkfInter)* [**\[QAR\]**](#QARForm)
>
> \(2\) **Continued Unauthorized Contact by Third Party with Employer.**
> Although a claimant is entitled to be represented either by VETS or by
> a third party under the USERRA, he or she may not be simultaneously
> represented by both parties, if the representation interferes with the
> investigation. (See Chapter 4, paragraph .16).
>
> If the claimant insists on being represented by a third party in a
> USERRA claim, he or she will be informed that VETS will no longer
> handle the case and the case will be administratively closed, by
> letter sent Certified Mail-Return Receipt. [(Exhibit
> 31)](#exhibit31smpclsgltrtoclmtcont3prty)

**.3 Claim Granted(CG).** When the employer grants all or substantially
all of the claimant\'s entitlements, close the case as a "Claim
Granted."

> \(1\) **Release Form.** A release form should be completed and signed
> by the Claimant and the employer if appropriate. [(Exhibit
> 41)](#Exhibit41SmplSttlmntAgrmntnRlsefrm)
>
> \(2\) **VETS Receipt Of Check.** When the resolution involves payment
> to the claimant of any monies (such as payment for lost wages), and it
> is not possible to immedi­ately obtain full payment of all the amounts
> agreed upon, make necessary arrange­ments to have a check for the
> balance, made payable to the claimant, forwarded to your office, for
> transmittal to the claimant. With agreement of the parties to the
> dispute (i.e. claimant and employer/attorney) the check may be
> sent/presented directly to the claimant. However, verification of such
> payment (e.g. copy of the check) should be obtained by the
> investigator.
>
> \(3\) **Send Claimant Check by Certified Mail.** Send the claimant the
> employer\'s check via Certified Mail -- Return Receipt and, after
> verifying the satisfaction of all the other elements of the agree­ment,
> notify the claimant that the case is being closed, enclosing a copy of
> the signed release. [(Exhibit
> 41)](#Exhibit41SmplSttlmntAgrmntnRlsefrm)
>
> \(4\) **Send Employer Closing Letter.** After all issues have been
> resolved, send the employer a letter advising that the check has been
> sent to the claimant by certified mail. Advise the employer that the
> case is being closed. Enclose a copy of the signed release. (Exhibit
> 42)
>
> **Note:** If there is no written acknowledgment (e.g., settlement
> agreement) that complainant is fully satisfied with the resolution of
> the case, the closing letter should set out the relief obtained by
> VETS and a statement that if the complainant is not fully satisfied
> with the resolution, he may request that VETS refer his case to DOJ or
> OSC or he may seek private counsel.

**.4 Claim Settled (CS).** When the claimant and the employer agree to
settle the claim for less than the claimant\'s full entitlements under
USERRA, close the case as a "Claim Settled."

> **Note:** [If there is no written acknowledgment (e.g., settlement
> agreement) that complainant is fully satisfied with the resolution of
> the case, the closing letter should set out the relief obtained by
> VETS and a statement that if the complainant is not fully satisfied
> with the resolution, he may request that VETS refer his case to DOJ or
> OSC or he may seek private counsel.]{.mark}

**.5 Withdrawn Claim (CW).** A case should be closed as claim withdrawn
when the claimant informs VETS in writing of his/her desire to withdraw
the claim. Send the claimant a brief letter Certified Mail-Return
Receipt confirming the request and advise that the case is being closed
[(Exhibit 32).](#Exhibit32SmplClsingltrtoclmtclmwtdrwn) Send a separate
closing letter to the employer. [( Exhibit
33)](#Exhibit33SmplClsngltrtoEmplrClmWtn) If the claimant tries to
withdraw the claim after VETS determines that the claimant is not
eligible or the claim is not meritorious, the case should be closed as a
"Not Eligible" or "No Merit," whichever is appropriate. (Exhibit 34 and
37)

**.6 Not Eligible (NE).** If a case has already been opened, and VETS
finds that the claimant does not meet the eligibility requirements in
the statute, the case should be discussed with the claimant and with
his/her concurrence, closed on the basis of no eligibility. The claimant
must be informed of this closure in writing, by [Certified Mail-Return
Receipt]{.mark} (Exhibit 36 or 37) The claimant **must also** be
advised, in writing, of the right of referral to the AG/OSC, or to seek
private counsel.

**.7 No Merit (NM).** It may be found that the claimant is not entitled
to any relief for reasons other than failure to meet eligibility
requirements. Explain the findings in writing to the claimant, by
[Certified Mail-Return Receipt]{.mark} [( Exhibit
35)](#exhibit36smplclsngltfedcmpltnotelig), and explain the right to
referral. When there is no response by claimant to the referral letter,
notify the employer that the case was closed. [(Exhibit
39).](#Exhibit39SmplClsngltrtoEmplNoRespfrClmt)

**.8 Cases Referred.** Unsettled cases are closed only when they are
referred to the Regional Solicitor\'s Office for appropriate referral
action.

**.9 Maintenance of Closed Case Files.** Each Region must have a written
plan for maintaining closed case files until they are eligible for
retirement to the Federal Records Center. The plan should specify where
the closed cases are to be kept and how they are to be filed. The plan
should also indicate who is responsible for retiring them and Regional
retirement procedures. This plan must comply with the VETS Record
Retention Plan. SEE DM 21-01; SEE DM 05-06 "Case File Retention and
Disposal Procedures".

**.10** []{#closingdate .anchor}**Closing date**. Investigators will
ensure that the closing date of USERRA cases entered in the UIMS matches
the date on the case closing letter that was sent to the claimant. A
copy of the dated closing letter will be included in the case file.

> [**\[QAR\]**](#QARForm)

Note: [The investigator must confer with his supervisor prior to sending
a closing letter]{.mark}.

[[]{#Exhibit30SmplClsngltrtoClmtlkfInter .anchor}**Exhibit 30: Sample
Closing Letter to Non-Federal Claimant -- Lack of
Interest**](#Exhibit30SmplClsngltrtoClmtlkfInterill)

**U.S. Department of Labor**

**Veterans' Employment and Training Service**

**Street Address**

**City, State, Zip Code**

Date

. (XXXXXXX)

Street Address

City, State, Zip Code

Re: . (XXXXXXX)

DC-20XX-XXXXX-XX-X

Dear . (XXXXXXX) :

This is to advise you that the Veterans' Employment and Training Service
(VETS) is treating your failure to respond to our February 1, 20XX
certified letter as a request to withdraw your application for
assistance pursuant to 38 U.S.C. § 4322(a) (your Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA) claim).
Accordingly, VETS is closing your case as of this date. Should you
decide that you would like VETS to investigate your allegations, and to
receive any right you may have to have your claim referred to the
Attorney General, you will need to file a new claim.

You have the right to seek private counsel at your own expense or to
file a lawsuit against the Named Employer (Employer or Abbreviated
Employer) in a court of competent jurisdiction. If you are considering
seeking private counsel or filing a lawsuit, you should be aware that
some courts have held that a lawsuit must be filed within a certain
period of time after the alleged USERRA violation. You should seek
counsel of your own choosing and at your own expense to determine
whether such a time limitation would apply to your case.

Sincerely,

Investigator's Name

Investigator's Title

Encl: Certified Letter dated February 1, 20XX

[**Exhibit 30(A): Sample Closing Letter to Federal Claimant -- Lack of
Interest**](#Exhibit30SmplClsngltrtoClmtlkfInterill)

**U.S. Department of Labor**

**Veterans' Employment and Training Service**

**Street Address**

**City, State, Zip Code**

Date

. (XXXXXXX)

Street Address

City, State, Zip Code

Re: . (XXXXXXX)

DC-20XX-XXXXX-XX-X

Dear . (XXXXXXX) :

This is to advise you that the Veterans' Employment and Training Service
(VETS) is treating your failure to respond to our February 1, 20XX
certified letter as a request to withdraw your application for
assistance pursuant to 38 U.S.C. § 4322(a) (your Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA) claim).
Accordingly, VETS is closing your case as of this date. Should you
decide that you would like VETS to investigate your allegations, and to
receive any right you may have to have your claim referred to the Office
of Special Counsel, you will need to file a new claim.

You have the right to seek private counsel at your own expense, or to
file an appeal against the Named Federal Agency or Administration
(Agency or Abbreviated Agency Name) (or the Office of Personnel
Management) directly to the Merit Systems Protection Board (MSPB). The
MSPB encourages appellants to file a USERRA appeal as soon as possible
after the date of the alleged violation. *See* 5 C.F.R. 1208.12.

Sincerely,

Investigator's Name

Investigator's Title

Encl: Certified Letter dated February 1, 20XX

[[[]{#Exhibit31SmpClsgLtrtoClmtNonFedCont3prty
.anchor}]{#exhibit31smpclsgltrtoclmtcont3prty .anchor}**Exhibit 31:
Sample Closing Letter to Non-Federal Claimant --Third Party
Representation**](#Exhibit31SmplClsngltrtoClmtcont3prtyIll)

**U.S. Department of Labor**

**Veterans' Employment and Training Service**

**Street Address**

**City, State, Zip Code**

Date

. (XXXXXXX)

Claimant's Street Address

City, State, Zip Code

Re: . (XXXXXXX)

DC-20XX-XXXXX-XX-X

Dear . (XXXXXXX) :

This is to advise you that the Veterans' Employment and Training Service
(VETS) is treating the continued involvement of an outside party in
resolving your Uniformed Services Employment and Reemployment Rights Act
of 1994 (USERRA) claim as a request to withdraw your application for
assistance pursuant to 38 U.S.C. § 4322(a). Accordingly, VETS is closing
your case as of this date. Should you decide that you would like VETS to
investigate your allegations, and to receive any right you may have to
have your claim referred to the Attorney General, you will need to file
a new claim.

You have the right to seek private counsel at your own expense, or to
file a lawsuit against the Named Employer (Employer or Abbreviated
Employer) in a court of competent jurisdiction. If you are considering
seeking private counsel or filing a lawsuit, you should be aware that
some courts have held that a lawsuit must be filed within a certain
period of time after the alleged USERRA violation. You should seek
counsel of your own choosing and at your own expense to determine
whether such a time limitation would apply to your case.

Sincerely,

Investigator's Name

Investigator's Title

[[]{#Exhibit31ASmplclsngltrtoFedClmt3prtyrep .anchor}**Exhibit 31 (A):
Sample Closing Letter to Federal Claimant --Third Party
Representation**](#Exhibit31SmplClsngltrtoClmtcont3prtyIll)

**U.S. Department of Labor**

**Veterans' Employment and Training Service**

**Street Address**

**City, State, Zip Code**

Date

. (XXXXXXX)

Claimant's Street Address

City, State, Zip Code

Re: . (XXXXXXX)

DC-20XX-XXXXX-XX-X

Dear . (XXXXXXX) :

This is to advise you that the Veterans' Employment and Training Service
(VETS) is treating the continued involvement of an outside party in
resolving your Uniformed Services Employment and Reemployment Rights Act
of 1994 (USERRA) claim as a request to withdraw your application for
assistance pursuant to 38 U.S.C. § 4322(a). Accordingly, VETS is closing
your case as of this date. Should you decide that you would like VETS to
investigate your allegations, and to receive any right you may have to
have your claim referred to the Office of Special Counsel, you will need
to file a new claim.

You have the right to seek private counsel at your own expense, or to
file an appeal against the Named Federal Agency or Administration
(Agency or Abbreviated Agency Name) (or the Office of Personnel
Management) directly to the Merit Systems Protection Board (MSPB). The
MSPB encourages appellants to file a USERRA appeal as soon as possible
after the date of the alleged violation. *See* 5 CFR 1208.12.

Sincerely,

Investigator's Name

Investigator's Title

[[]{#Exhibit32SmplClsngltrtoNonFedClmCwthdrwn .anchor}**Exhibit 32:
Sample Closing Letter to Non-Federal Claimant -- Claim
Withdrawn**](#Exhibit32SmplClsingltrtoclmtclmwtdrwnIll)

**U.S. Department of Labor**

**Veterans' Employment and Training Service**

**Street Address**

**City, State, Zip Code**

Date

. (XXXXXXX)

Claimant's Street Address

City, State, Zip Code

Re: . (XXXXXXX)

DC-20XX-XXXXX-XX-X

Dear (XXXXXXX) :

In accordance with your August 23, 20XX written request to withdraw your
application for assistance pursuant to 38 U.S.C. § 4322(a) (your
Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA) claim), the Veterans' Employment and Training Service (VETS) is
closing your case this date. Should you change your mind and decide that
you would like VETS to investigate your allegations, and to receive any
right you may have to have your claim referred to the Attorney General,
you will need to file a new claim.

You have the right to seek private counsel at your own expense, or to
file a lawsuit against the Named Employer (Employer or Abbreviated
Employer) in a court of competent jurisdiction. If you are considering
seeking private counsel or filing a lawsuit, you should be aware that
some courts have held that a lawsuit must be filed within a certain
period of time after the alleged USERRA violation. You should seek
counsel of your own choosing and at your own expense to determine
whether such a time limitation would apply to your case.

Sincerely,

Investigator's Name

Investigator's Title

[[]{#Exhibit32AsmplclsngltrtoFedClmClamwithdr .anchor}**Exhibit 32 (A):
Sample Closing Letter to Federal Claimant -- Claim
Withdrawn**](#Exhibit32SmplClsingltrtoclmtclmwtdrwnIll)

**U.S. Department of Labor**

**Veterans' Employment and Training Service**

**Street Address**

**City, State, Zip Code**

Date

. (XXXXXXX)

Claimant's Street Address

City, State, Zip Code

Re: . (XXXXXXX)

DC-20XX-XXXXX-XX-X

Dear (XXXXXXX) :

In accordance with your August 23, 20XX written request to withdraw your
application for assistance pursuant to 38 U.S.C. § 4322(a) (your
Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA) claim), the Veterans' Employment and Training Service (VETS) is
closing your case this date. Should you change your mind and decide that
you would like VETS to investigate your allegations, and to receive any
right you may have to have your claim referred to the Office of Special
Counsel, you will need to file a new claim.

You have the right to seek private counsel at your own expense, or to
file an appeal against the Named Federal Agency or Administration
(Agency or Abbreviated Agency Name) (or the Office of Personnel
Management) directly to the Merit Systems Protection Board (MSPB). The
MSPB encourages appellants to file a USERRA appeal as soon as possible
after the date of the alleged violation. *See* 5 CFR 1208.12.

Sincerely,

Investigator's Name

Investigator's Title

[[]{#Exhibit33SmplClsngltrtoEmplrClmWtn .anchor}**Exhibit 33: Sample
Closing Letter to Employer -- Claim
Withdrawn**](#Exhibit33SmplClsngltERClmWitdrnIll)

**U.S. Department of Labor**

**Veterans' Employment and Training Service**

**Street Address**

**City, State, Zip Code**

Date

EEEEEEEE

District Manager

Employer's Street Address

City, State, Zip Code

Re: . (XXXXXXX)

DC-20XX-XXXXX-XX-X

Dear EEEEEEEE:

This is to inform you that . (XXXXXXX) has advised us that he does not
wish to pursue his USERRA claim any further. Therefore, we are closing
our file on the above referenced case.

Sincerely,

Investigator's Name

Investigator's Title

cc: . (XXXXXXX)

[**Exhibit 34:**](#Exhibit34SmplClsngltFedCmpltNoViolatill)

[**SAMPLE CLOSING LETTER FOR A FEDERAL COMPLAINT\-\--No
Merit**](#Exhibit34SmplClsngltFedCmpltNoViolatill)

[]{#exhibit34smplclsngltfedcmpltnomerit .anchor}**Office of the
Assistant Secretary for**

**Veterans\' Employment and Training**

**1100 Main Street, Suite 850**

**Kansas City, Missouri, 64105**

**\*Send via Certified Mail-Return Receipt**

Date

. (XXXXXXX)

Claimant's Street Address

City, State Zip Code

Re: . (XXXXXXX)

Case Number

Dear . (XXXXXXX)

This agency, under the mandate of 38 U.S.C. § 4322 to render aid to
persons seeking assistance under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. §§ 4301-4334, has
investigated your claim against the Named Federal Agency or
Administration (Agency or Abbreviated Agency Name). Based on the
information obtained during the investigation, we do not find that the
evidence supports a violation of USERRA.

Your position is: \[1\] on July 1, 20XX you properly notified your
employer of your military service and requested a leave of absence from
your position as an Employment Position, to perform annual training;
\[2\] you reported for work on your next regularly scheduled work shift
following release from military duty; and \[3\] you were denied return
to work by the Abbreviated Agency Name. Your employer\'s position is:
\[1\] it was properly notified of your military service; \[2\] during
your military service, through routine computer monitoring, it was
determined that while you were working, over the past 8 months, you
spent an average of five hours each day browsing inappropriate internet
websites; \[3\] you properly reported back to work; \[4\] you were
notified on July 10, 20XX of the agency's proposal to remove you from
your position for cause and provided you all due process rights; and
\[5\] you failed to respond, either verbally or in writing to the
charges against you. Your employer terminated you for cause based on its
finding that you violated its policy of appropriate use of (Abbreviated
Agency Name) information technology on August 10, 20XX.

We reviewed those findings with you at a meeting held on December 11,
20XX, and you stated that the facts were correct. Accordingly, this
investigator, after speaking with your supervisors, and having reviewed
numerous documents and employer policies concludes that you were
terminated for nondiscriminatory reasons. The evidence fails to disclose
that your military service was a factor in your termination.

*If you disagree with the finding specified above, you have a right to
request referral of your claim to the Office of Special Counsel (OSC)
for further review.* If you elect to have your claim referred, please
notify this office of your decision not later than (provide claimant a
specific date for response). If OSC is reasonably satisfied that you are
entitled to the relief sought, the Special Counsel may appear on your
behalf and initiate an action regarding your complaint before the Merit
Systems Protection Board (MSPB).

You have the right to seek private counsel at your own expense, or to
file an appeal against the Named Federal Agency or Administration
(Agency or Abbreviated Agency Name) (or the Office of Personnel
Management) directly to the MSPB. The MSPB encourages appellants to file
a USERRA appeal as soon as possible after the date of the alleged
violation. *See* 5 CFR 1208.12.

Please contact us if you would like any additional information on this
matter.

Sincerely,

Investigator's Name

and Title

[**Exhibit 35:SAMPLE CLOSING LETTER FOR A NON-FEDERAL COMPLAINT\-\--No
Merit**](#Exhibit34SmplClsngltFedCmpltNoViolatill)

[[]{#exhibit35smplclsingltrnondfedcompnomrt .anchor}**Office of the
Assistant Secretary for**](#Exhibit34SmplClsngltFedCmpltNoViolatill)

**Veterans\' Employment and Training**

**1100 Main Street, Suite 850**

**Kansas City, Missouri, 64105**

**\*Send via Certified Mail-Return Receipt**

Date

. (XXXXXXX)

Claimant's Street Address

City, State Zip Code

Re: . (XXXXXXX)

Case Number

Dear . (XXXXXXX)

This agency, under the mandate of 38 U.S.C. § 4322 to render aid to
persons seeking assistance under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. §§ 4301-4334 and 20
C.F.R. Part 1002, has investigated your claim against the Named Employer
(Employer or Abbreviated Employer). Based on the information obtained
during the investigation, we do not find that the evidence supports a
violation of USERRA.

Your position is: \[1\] on July 1, 20XX you properly notified your
employer of your military service and requested a leave of absence from
your position as an Employment Position, to perform annual training;
\[2\] you reported for work on your next regularly scheduled work shift
following release from military duty; and \[3\] you were denied return
to work by the Employer. Your employer\'s position is: \[1\] it was
properly notified of your military service; \[2\] during your military
service, through routine computer monitoring, it was determined that
while you were working, over the past 8 months, you spent an average of
five hours each day browsing inappropriate internet websites; \[3\] you
properly reported back to work; \[4\] you were notified on July 10, 20XX
of the employer's proposal to remove you from your position for cause
and provided you all due process rights; and \[5\] you failed to
respond, either verbally or in writing to the charges against you. Your
employer terminated you for cause based on its finding that you violated
its policy of appropriate use of the Employer's information technology
resources on August 10, 20XX.

We reviewed those findings with you at a meeting held on December 11,
20XX, and you stated that the facts as set forth above were correct. As
such, this investigator, after speaking with your supervisors, and
having reviewed numerous documents and employer policies concludes that
you were terminated for nondiscriminatory reasons, and that your
military service was not a motivating factor in your termination.

If you disagree with the finding specified above, you have the right to
request a referral of your claim to the U.S. Attorney General. If you
elect to have your claim referred, please notify this office of your
decision no later than (provide claimant a specific date for response).
If the office of U.S. Attorney General is reasonably satisfied that you
are entitled to the relief sought, the Attorney General may appear on
your behalf and initiate an action regarding your complaint before a
district court of the United States.

You have the right to seek private counsel at your own expense, or to
file a lawsuit against the Named Employer (Employer or Abbreviated
Employer) in a court of competent jurisdiction.

If you are considering seeking private counsel or filing a lawsuit, you
should be aware that some courts have held that a lawsuit must be filed
within a certain period of time after the alleged USERRA violation. You
should seek counsel of your own choosing and at your own expense to
determine whether such a time limitation would apply to your case.

Please contact us if you would like any additional information on this
matter.

Sincerely,

Investigator's Name

and Title

[**Exhibit 36: Sample Closing Letter to Federal Claimant -- Not
Eligible**](#Exhibit36SmplClsngltFedcmpltNotEligill)

[]{#exhibit36smplclsngltfedcmpltnotelig .anchor}**Office of the
Assistant Secretary for**

**Veterans\' Employment and Training**

**1100 Main Street, Suite 850**

**Kansas City, Missouri, 64105**

**\*Send via Certified Mail-Return Receipt**

Date

. (XXXXXXX)

Claimant's Street Address

City, State Zip Code

Re: . (XXXXXXX)

Case Number

Dear . (XXXXXXX)

This agency, under the mandate of 38 § U.S.C. 4322 to render aid to
persons seeking assistance under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. §§ 4301-4334, has
compiled and reviewed facts related to your claim against the Named
Employer (Employer or Abbreviated Employer). Based on the information we
have compiled, we have not found you eligible for (TYPE OF RELIEF
SOUGHT) under USERRA.

In making the above determination, the investigator reviewed (include
what types of documentation was reviewed reflecting a finding of not
eligible). If you have any evidence to refute this finding, please
contact this office so that we can discuss the evidence.

If you disagree with the finding specified above, you have a right to
request referral of your claim to the Office of Special Counsel (OSC) If
you elect to have your claim referred, please notify this office of your
decision no later than (provide claimant a specific date for response).
If OSC is reasonably satisfied that you are entitled to the relief
sought, the Special Counsel may appear on your behalf and initiate an
action regarding your complaint before the Merit Systems Protection
Board (MSPB). You also have the right to seek private counsel at your
own expense, or to file a complaint against the Federal executive agency
(or the Office of Personnel Management) directly to the MSPB.

If you are considering seeking private counsel or filing a lawsuit, you
should be aware that some courts have held that a lawsuit must be filed
within a certain period of time after the alleged USERRA violation. You
should seek counsel of your own choosing and at your own expense to
determine whether such a time limitation would apply to your case.

Sincerely,

Investigator's Name and Title[]{#Exhibit37SmplClsngltrtoNonFedClmtNE
.anchor}

[**Exhibit 37: Sample Closing Letter to Non-Federal Claimant -- Not
Eligible**](#Exhibit37SmplClsngltrtoNonFedClmtNEIll)

**Office of the Assistant Secretary for**

**Veterans\' Employment and Training**

**1100 Main Street, Suite 850**

**Kansas City, Missouri, 64105**

**\*Send via Certified Mail-Return Receipt**

Date

. (XXXXXXX)

Claimant's Street Address

City, State Zip Code

Re: . (XXXXXXX)

Case Number

Dear . (XXXXXXX)

The Veterans' Employment and Training Service, under the mandate of 38
U.S.C. § 4322, to render aid to persons seeking assistance under the
Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA), 38 U.S.C. §§ 4301-4334, and 20 C.F.R. Part 1002, has compiled
and reviewed facts related to your claim against the Named Employer
(Employer or Abbreviated Employer). Based on the information we have
compiled, we have not found you to be eligible for \[type of relief
sought\] under USERRA

The investigator reviewed (include what types of documentation was
reviewed reflecting a finding of not eligible). If you have any evidence
to refute this finding, please contact this office so that we can
discuss that evidence.

If you disagree with the finding specified above, you have the right to
request a referral of your claim to the U.S. Attorney General. If you
elect to have your claim referred, please notify this office of your
decision not later than (provide claimant a specific date for response).
If the office of U.S. Attorney General is reasonably satisfied that you
are entitled to the relief sought, the Attorney General may appear on
your behalf and initiate an action regarding your complaint before a
district court of the United States. You also have the right to seek
private counsel at your own expense, or to file a lawsuit against the
employer in a court of competent jurisdiction.

If you are considering seeking private counsel or filing a lawsuit, you
should be aware that some courts have held that a lawsuit must be filed
within a certain period of time after the alleged USERRA violation. You
should seek counsel of your own choosing and at your own expense to
determine whether such a time limitation would apply to your case.

Sincerely,

Investigator's Name and Title

[]{#Exhibit38SmplClsngltrtoClmtFailtoResp .anchor}

[**Exhibit 38: INTENTIONALLY LEFT
BLANK**](#Exhibit39SmplClsngltrtoEmplNoRespfrClmiL)

**U.S. Department of Labor**

**Veterans' Employment and Training Service**

**Street Address**

**City, State, Zip Code**

Date

. (XXXXXXX)

Claimant's Street Address

City, State, Zip Code

Re: . (XXXXXXX)

Case Number

Dear. (XXXXXXX) :

TXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

Sincerely,

Investigator's Name

Investigator's Title

Encl: Letter of January 8, 20XX

[[]{#Exhibit39SmplClsngltrtoEmplNoRespfrClmt .anchor}**Exhibit 39:
Sample Closing Letter to Employer -- No Response from
Claimant**](#Exhibit39SmplClsngltrtoEmplNoRespfrClmiL)

**U.S. Department of Labor**

**Veterans' Employment and Training Service**

**Street Address**

**City, State, Zip Code**

Date

EEEEEEEE

District Manager

Employer's Street Address

City, State, Zip Code

Re: . (XXXXXXX)

Case Number

Dear EEEEEEEE:

Our investigation of the above-referenced case has been concluded, and
we are closing our file in this matter.

We wish to thank you for your assistance and cooperation.

Sincerely,

Investigator's Name

Investigator's Title

cc: . (XXXXXXX)

[[]{#Exhibit40SmplClsngltrtoEmplrClmGrant .anchor}**Exhibit 40: Sample
Closing Letter to Employer -- Claim
Granted**](#Exhibit40SmplClsngltrtoEmplrClmGrantIll)

**U.S. Department of Labor**

**Veterans' Employment and Training Service**

**Street Address**

**City, State, Zip Code**

Date

EEEEEEEE

Compensation Manager

Employer's Street Address

City, State, Zip Code

Re: . (XXXXXXX)

Case Number

Dear EEEEEEEE:

This confirms our November 19, 20XX telephone conversation regarding.
(XXXXXXX) case under the Uniformed Services Employment and Reemployment
Rights Act (USERRA), 38 U.S.C. 4301-4334.

On date EEEEEEEE stated that. (XXXXXXX) will be advanced to Step #10 of
the pay scale, presently \$6.50 per hour, retroactive to May 12, 20XX,
and that she will receive \$1,650.00 in back pay. Additionally, she will
receive military service credit for all benefits accruing from
seniority, including pension and payable to . (XXXXXXX) , forwarded to
this office. We will forward the check to . (XXXXXXX) .

Based on satisfactory resolution, this case is being closed. We greatly
appreciate your cooperation in resolving this matter.

Sincerely,

Investigator's Name

Investigator's Title

cc: . (XXXXXXX)

[[]{#Exhibit41SmplSttlmntAgrmntnRlsefrm .anchor}**Exhibit 41: Sample
Settlement Agreement and Release
Form**](#Exhibit41SmplSttlmntAgrmntnRlsefrmIll)

**UNITED STATES DEPARTMENT OF LABOR**

**VETERANS' EMPLOYMENT AND TRAINING SERVICE**

XXXXXXXX ) CASE NUMBER

)

Complainant ) DC-20XX-XXXXX-XX-X

)

v.  )

    )

    EEEEEEEE )

    )

    Respondent )

    **[SETTLEMENT AGREEMENT AND RELEASE]{.underline}**

    This SETTLEMENT AGREEMENT and RELEASE is made and entered into

    between XXXXXXXX and EEEEEEEE, who agree and stipulate as follows:

    WHEREAS, . (XXXXXXX) has filed a claim with the United States
    Department of

    Labor, Veterans' Employment and Training Service, alleging that he
    was terminated

    from his employment with EEEEEEEE on or about January 29, 20XX, in
    violation of

    Section 4311 of the Uniformed Services Employment and Reemployment
    Rights Act, 38,

    U.S.C. § 4301, et. seq; and

    WHEREAS, . (XXXXXXX) has waived his right to reemployment with

    EEEEEEEE and

    WHEREAS, . (XXXXXXX) has a claim for lost wages for the period
    January 29,

    20XX to March 27, 20XX; and

    WHEREAS both parties now wish to settle this case without the
    necessity of

    litigation;

    NOW, THEREFORE, inconsideration of the mutual covenants hereinafter

    Contained, the sufficiency of which is hereby acknowledged, the
    parties hereto agree as

    Follows:

```{=html}
<!-- -->
```
A.  EEEEEEEE agrees to pay . (XXXXXXX) \$4,500.00, less legal
    deductions,

    in full and complete satisfaction of his claim as expressed above.

B.  . (XXXXXXX) agrees to have closed VETS Case No. DC-200XX-

    XXXXX-XX-X as identified above and agrees not to institute or pursue
    any civil action

    Under any statute for lost wages, damages or otherwise against
    EEEEEEEE, its agents,

    employees or successors as a result of his termination from EEEEEEEE
    employment on

    or about January 29, 20XX.

C.  Failure to comply with the terms of this agreement authorizes the
    claimant to

    request the Veterans' Employment and Training Service re-open the
    case for further

    investigation or to seek private counsel in resolving the dispute.

    EEEEEEEE

    By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
    \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

    XXXXXXXX Signature

    Dated:
    \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
    Dated: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

    By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

    EEEEEEEE Signature

    Employer's Name

    Employer's Street Address

    City, State, Zip Code

    Phone Number

    [[]{#Exhibit42Smplclsngltrtoclmntclmsttld .anchor}**Exhibit 42:
    Sample Closing Letter to Claimant -- Claim
    Settled**](#Exhibit42SmplclsngltrtoclmntclmsttldIll)

    **U.S. Department of Labor**

    **Veterans' Employment and Training Service**

    **Street Address**

    **City, State, Zip Code**

    [CERTIFIED MAIL-RETURN RECEIPT]{.underline}

    Date

    . (XXXXXXX)

    Claimant's Street Address

    City, State, Zip Code

    Re: . (XXXXXXX)

    Case Number

    Dear. (XXXXXXX) :

    Enclosed is a check in the amount of \$10,999.07 from EEEEEEEE in
    payment for total withdrawal of your Thrift Plan.

    This payment, along with the previous back pay award of \$3,000.00
    finalizes resolution of your USERRA claim against EEEEEEEE.
    Therefore, your case is closed this date.

    A copy of your signed release is also enclosed.

    Sincerely,

    Investigator's Name

    Investigator's Title

    Enclosures

    [[]{#Exhibit43SmplclsngltrtoEmplClmSttled .anchor}**Exhibit 43:
    Sample Closing Letter to Employer -- Claim
    Settled**](#Exhibit43SmplclsngltrtoEmplClmSttledIll)

    **U.S. Department of Labor**

    **Veterans' Employment and Training Service**

    **Street Address**

    **City, State, Zip Code**

    Date

    EEEEEEEE

    General Counsel

    Employer's Street Address

    City, State, Zip Code

    Re: . (XXXXXXX)

    Case Number

    Dear EEEEEEEE:

    Enclosed is the release signed by . (XXXXXXX) in settlement of the
    claim in this case. The check you provided has been sent by
    certified mail to the . (XXXXXXX) , and the signature on the release
    indicates satisfaction.

    Thank you for your cooperation and attention. Our file on this case
    is now closed.

    Sincerely,

    Investigator's Name

    Investigator's Title

    cc: . (XXXXXXX)

    Enclosure

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10

[[]{#Chapter_10 .anchor}**Chapter 10**](#TOC10X)

[**Protest Procedures**](#TOC10X)

**.1 Purpose.** This chapter describes procedures to be followed when a
claimant expresses disagreement with the handling of his or her claim by
a VETS staff member, and the disagreement is disrupting the
investigation.

**.2 When to Implement Protest Procedures.** Action should be taken by
the VETS Investigator within 3 working days whenever a claimant
expresses disagreement regard­ing the handling of his/her claim, and this
disagreement is disrupting the investigation.

**.3 Procedures to be followed when a Protest is Filed.** If a claimant
expresses a disagree­ment, oral or written, regarding the handling of
his/her claim and he/she is not able to resolve the issues with the
Investigator, the claim will be referred to the Regional Office for
review with respect to the specific protest. If it is established that
further investigation is needed, the case file should be returned to:
(1) the original Investigator; or (2) trans­ferred to another
investigator, if deemed appropriate by the Regional Administrator, with
specific written instructions. The Regional Office should notify the
claimant by letter that his/her claim has been returned to the original
investigator or has been transferred to another investigator (identify)
for completion of the investigation and that the Investigator will be
contacting the claimant as to the completion.

> If the Regional Office review determines no basis for the claimant's
> protest, the Regional Office should notify the claimant by letter of
> such decision and advise the claimant of his/her options. (Chapter 8,
> paragraph .4).
>
> If the protest is filed with the National Office, the protest should
> be referred to the appropriate Regional Office for response. The
> exception would be if the Regional Office had investigated the claim.

**.4 Time Frames for Review.** When an open case file is to be reviewed
by the DVET, Regional Office and/or National Office staff, based on a
protest, the following criteria are applicable:

> \(1\) A copy of the case file should be forwarded to the appropriate
> DVET, Regional Office or appropriate staff member in the National
> Office. The original case file should be maintained by the
> investigator so that action, if appropriate, can continue as the clock
> is still running with respect to case processing time. Copies of any
> action taken on the case should immediately be forwarded to the
> appropri­ate review office for inclusion in their review.
>
> \(2\) The reviewing office will have 30 calendar days following
> receipt of the complete case file in which to review, analyze and
> prepare corrective action recommenda­tions, if appropriate. If the case
> file must be referred to the Solicitor\'s Office for review, that time
> will be excluded from the above 30 day requirement and will be taken
> into consideration with respect to final case processing time.

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11

[[]{#Chaptet_11 .anchor}**Chapter 11**](#TOC11X)

[**Technical Assistance**](#TOC11X)

**Purpose of Technical Assistance**. Technical assistance seeks to
broaden public awareness and understanding of USERRA in an effort to
increase compliance with the law.

VETS provides technical assistance to a potential claimant upon request,
and his or her employer if appropriate \[38 U.S.C. 4322(c)\]. Technical
assistance is not limited to filing a complaint; it also includes
responding to requests for information on specific issues that are not
yet part of a formal USERRA investigation.

The Secretary, through the Veterans' Employment and Training Service
(VETS), provides assistance to any person or entity with respect to
employment and reemployment rights and benefits under USERRA. This
assistance includes a wide range of compliance assistance outreach
activities, such as responding to inquiries; conducting USERRA briefings
and Webcasts; issuing news releases; and, maintaining the elaws USERRA
Advisor (located at *http://www.dol.gov/elaws/userra.htm*), the e-VETS
Resource Advisor and other web-based materials (located at
[*http://www.dol.gov/vets*](http://www.dol.gov/vets)), which are
designed to increase awareness of the Act among affected persons, the
media, and the general public. In providing such assistance, VETS may
request the assistance of other Federal and State agencies, and utilize
the assistance of volunteers. See 20 C.F.R. 1002.277.

> \(1\) **Technical Assistance to Individuals or Employers.** Responses
> to inquiries not related to a specific USERRA case are considered
> technical assistance. The two general categories are:
>
> \(a\) Responses to a request for information concerning the
> application of USERRA to specific problems. Since situations have the
> potential for evolving into USERRA cases, they need to be documented
> in the same way that information in a USERRA case is documented. All
> such requests should be documented on a VETS Form 1063. Other
> documentation, such as typed or handwritten memoranda to the file, or
> copies of letters of confirmation, may also be used.
>
> \(b\) General requests for information about USERRA. Requests for
> information concerning USERRA can be answered orally or by emailing or
> mailing a leaflet or other printed materials (see Exhibit XX). Answers
> should be prompt, courte­ous, and correct. View this as an opportunity
> to establish good rapport. When applicable, take the opportunity to
> provide an electronic version of the 20 C.F.R. Part 1002, USERRA
> poster, USERRA 101, and other resources for future reference.
> Additionally, it would be helpful to provide an orientation of
> information research techniques available in the Adobe search
> function. General requests for technical assistance should also be
> documented.
>
> \(2\) **Answer Inquires.** Guidelines for answering inquiries follow:
>
> \(a\) If you are in doubt about an answer to any inquiry, consult your
> immediate supervisor. **Do not answer when you are not sure of the
> correct response**.
>
> \(b\) Make it clear that a response to a mail, email, or telephone
> inquiry is not an official or legal position. If a legal opinion is
> requested, contact the Regional Office.
>
> **Note:** If responding via mail or email, the material should include
> the following disclaimer: \"This response is for information purposes
> only and does not constitute an official interpretation of the U.S.
> Department of Labor. \"
>
> \(c\) Do not issue written opinions if USERRA promotional literature
> answers the inquirer\'s questions.
>
> \(d\) It is beneficial for VETS investigators to cooperate with other
> agencies. If an inquiry does not relate to USERRA it should be
> promptly referred to the appropriate agency.
>
> \(3\) **Employer Support of the Guard and Reserve (ESGR).** Whenever
> possible, the VETS investigator should work closely with the national
> and state committees for Employer Support of the Guard and Reserve.
>
> The ESGR is an agency within the Office of the Assistant Secretary of
> Defense for Reserve Affairs, and was established to promote
> cooperation and understanding between Reserve component members and
> their civilian employers and to assist in the resolution of conflicts
> arising from an employee's military commitment. ESGR seeks to educate
> employers and the general public about the value and importance of
> Guard and Reserve participation. The Department works closely with
> ESGR in its administration of USERRA, and the ESGR provides valuable
> service to this Department in this regard.
>
> ESGR was established as a nationwide network of state and territorial
> committees headed by volunteer business and civic leaders and
> including representatives of the local Guard and Reserve forces. More
> than 3,000 volunteer business executives, senior government
> representatives, educators and military personnel now serve on these
> committees, conducting a variety of public awareness initiatives to
> demonstrate the benefits\--to the company and the entire country\--of
> employing Guard and Reserve members. They also explain Guard/Reserve
> members\' rights and obligations under USERRA and promote public
> recognition of employers who do support the Guard and Reserve.
>
> Unlike VETS, which has formal statutory authority and responsibility
> to investigate claims involving between Guard/Reserve duty and
> employment responsibilities, the national and State ESGR committees
> provide information and informal assistance through the use of local
> volunteers or a toll-free assistance line to resolve employment
> conflicts.
>
> ESGR Ombudsmen work closely with VETS to provide technical assistance
> to employers and servicemembers. An agreement has been reached with
> ESGR in which they forward problem cases involving lost wages or
> potential lost wages to VETS field staff within 7 days of initial
> contact, and all other problem cases within 14 days of initial
> contact.
>
> \(4\) **Technical Assistance to Groups and Organizations**
>
> \(a\) **Initiating Contacts.** To help increase public awareness of
> and compli­ance with USERRA, VETS investigators should initiate
> contacts with groups likely to be interested in or involved in USERRA
> matters. Such organizations include local Reserve and National Guard
> units, veterans organizations, ESGR, Judge Advocate General (JAG)
> offices, personnel associations, recruiter associations, and other
> groups.
>
> To make initial contact, find out who heads such groups, then
> telephone or send out letters of introduction and promotional
> materials. Explain USERRA, invite the groups to ask questions and
> refer possible problems to VETS, and offer to make group
> presentations.
>
> \(b\) **Purpose of Presentations.** Presentations are an efficient way
> to introduce USERRA to groups. The purpose of a presentation is to
> explain what USERRA is, what rights and obligations servicemembers and
> employers have, how to file complaints, and how complaints are
> processed.
>
> \(c\) **Techniques for Making Effective Presentations.** Following are
> tech­niques that may be used in making presentations:
>
> \(i\) Ask the sponsoring organization for a written invitation or
> confir­mation that will describe exactly where and when the
> presentation will be held. Such documentation will support travel and
> absence from the office.
>
> \(ii\) Determine the size of the audience so that you know how many
> handouts to bring.
>
> \(iii\) Schedule adequate time for a presentation and a
> question-and-answer session. Ask your contact person about any
> specific ques­tions the group may have.
>
> \(iv\) During the presentation, use questions to spark interest.
>
> \(d\) **Documenting Technical Assistance.** Individual (verbal,
> written) and group technical assistance (Presentations) should be
> docu­mented on the VETS O:Drive. [(See Exhibit
> 49)](#exhibit44odrivelogin)

[[]{#Exhibit44SmplEmailTA .anchor}**Exhibit 44: Sample E-mail statute-
based Technical Assistance**](#Exhibit44SmplEmailTAIll)
**[(Non-Fed)]{.underline}**

Mr. XXX XXX,

Thank you for your inquiry regarding exemptions from the five-year limit
on service in the unformed services.  As you may know, your employee may
have reemployment rights under the [Uniformed]{.underline} [Services
Employment and Reemployment Rights Act of 1994 (USERRA), 38 USC
4301-4334](http://www.usdoj.gov/crt/military/statute.htm); *see* 20
C.F.R. 1002.1-1002.314, provided certain eligibility criteria are met. 
As a preliminary matter, I have attached a USERRA RIGHTS POSTER that can
be printed and displayed on your company read board. I have also
included a Web-based copy of the USERRA statute and final USERRA
regulations for your reference.  The adobe search function can expedite
an issue specific request.  The general USERRA provisions relevant to
the five-year limit are discussed below. Further, the regulations offer
valuable direction on USERRA and are set forth in an easy to read
question and answer format.  *See e.g.,* 20 CFR. 1002.99 -.104 (sections
relevant to the five-year limit).

USERRA provides that to be eligible for reemployment a returning service
member establish that "the cumulative length of the absence ...does not
exceed five years" with an employer. 38 USC 4312(a)(2).  Exceptions to
this limitation on service are contained in section 4312(c).  As a
general matter, orders issued for service in support of the Global War
on Terror or otherwise performed in support of ongoing military
operations in time of war (*e.g.,* Iraqi Freedom or Noble Eagle) are
exempt from the five-year limit. 

Accordingly, if duty is performed pursuant to any authority that falls
within an exception to the five-year cumulative service limit, then the
appropriate support activity should be reflected in the initial orders
to active duty or in the service member\'s discharge certificate(s)
(DD-214, DD-215).  It is important to note that although it is the
responsibility of the returning service member to produce documentation
relevant to service time and the five-year limit, it is the
responsibility of the Department of Defense to properly indicate the
authority for the service and its character in the orders to active
duty.  *See* 32 C.F.R. Sections 104.4 -104.6.  Additionally, please note
that an employer is authorized to contact an employee's military unit
for exemption status assistance or you may desire to request assistance
from the Employer Support of the Guard and Reserve (ESGR).  ESGR employs
a network of volunteers to facilitate communication between service
members and employers for situations similar to yours.

 

Thank you for your inquiry, and I hope this information is responsive to
your concerns. 

**XXXX XXXXX**

**USERRA, **\
**Veterans\' Employment and Training Service**\
**Ph:** xxxx\
**FAX: XXXX**

<http://www.dol.gov/vets/regs/fedreg/final/2005023961.pdf>     ![](media/image4.png){width="0.5159722222222223in"
height="0.6631944444444444in"}                        
![](media/image5.png){width="0.5618055555555556in"
height="0.7173611111111111in"}                          
![](media/image6.jpeg){width="0.5381944444444444in"
height="0.5291666666666667in"}  <http://www.dol.gov/vets/programs/userra/USERRA_Private.pdf>    

USERRA REGULATIONS       USERRA RIGHTS POSTER             USERRA STATUTE

**CONFIDENTIALITY NOTE: This electronic transmission contains
information that is confidential or legally privileged. The information
is intended only for the use of the individual(s) or entity named above.
If you are not the intended recipient, you are hereby notified that any
disclosure, copying, distribution or the taking of any action in
reliance on the contents of such information is strictly prohibited. If
you have received this transmission in error, please notify us
immediately by telephone, or return e-mail.**

> [[[]{#USERRAlinks .anchor}]{#Exhibit45USERRAtools .anchor}Exhibit 45
> (USERRA Tools)](#Exhibit45USERRAtoolsIll)

![](media/image7.jpeg){width="0.6952755905511812in"
height="0.5251968503937008in"}![](media/image8.jpeg){width="1.103543307086614in"
height="0.3543307086614173in"}![](media/image9.jpeg){width="0.8334645669291338in"
height="0.6437007874015748in"}![](media/image10.jpeg){width="0.4334645669291339in"
height="0.4208661417322835in"}![](media/image11.png){width="0.9208661417322834in"
height="0.3964566929133858in"}![](media/image12.jpeg){width="0.42913385826771655in"
height="0.4334645669291339in"}![](media/image13.png){width="0.4874015748031496in"
height="0.4874015748031496in"}![](media/image14.png){width="0.594488188976378in"
height="0.75748031496063in"}![](media/image15.png){width="0.48661417322834644in"
height="0.48661417322834644in"}![](media/image15.png){width="0.48661417322834644in"
height="0.48661417322834644in"}![](media/image16.png){width="0.75748031496063in"
height="0.75748031496063in"}![](media/image17.jpeg){width="0.5952755905511811in"
height="0.5909448818897638in"}![](media/image18.png){width="0.8429133858267717in"
height="0.3779527559055118in"}![](media/image19.png){width="0.8755905511811024in"
height="0.24173228346456693in"}![](media/image20.jpeg){width="0.8598425196850393in"
height="0.7925196850393701in"}![](media/image21.png){width="0.547244094488189in"
height="0.7043307086614173in"}![](media/image22.png){width="0.547244094488189in"
height="0.7043307086614173in"}![](media/image23.wmf){width="0.6133858267716535in"
height="0.7582677165354331in"}![](media/image23.wmf){width="0.6133858267716535in"
height="0.7582677165354331in"}![](media/image24.png){width="1.4255905511811024in"
height="1.6771653543307086in"}

**These web-based resources are for Investigator use; the images and
associated links are recommended to enhance research, statute based
technical assistance and outreach.**

![](media/image25.jpeg){width="0.9395833333333333in"
height="0.5291666666666667in"}
![](media/image26.jpeg){width="0.8090277777777778in"
height="0.5395833333333333in"}

> **Career ONESTOP and USAJOBS are the recommended resources for any
> veteran claimant requiring assistance in careers searches, education,
> training, resumes, interviews, salaries, benefits, job searches,
> state-employment assistance, and other relevant veteran resources.**
>
> []{#Exhibit46USERRAPostNonFed .anchor} [Exhibit 46 (USERRA Poster,
> Non-Federal)](#Exhibit46USERRAPostNonFedIll)

![](media/image13.wmf){width="3.4993055555555554in"
height="4.490277777777778in"}

> The following language is recommended to supplement all technical
> assistance requests regarding USERRA Posters...
>
> The USERRA rights notice posters are available on our website at: 
> [www.dol.gov/vets](http://www.dol.gov/vets) for downloading and
> printing free of charge.  Please note that the notice comes in two
> forms; one for private-sector employers and the other for
> Federal-sector employers.  Please use the version that is appropriate
> to your office.
>
> []{#Exhibit47USERRAPosterFed .anchor} [Exhibit 47 (USERRA Poster,
> Federal)](#Exhibit47USERRAPosterFedIll)

![](media/image27.wmf){width="3.6243055555555554in"
height="4.635416666666667in"}

> The following language is recommended to supplement all technical
> assistance requests regarding USERRA Posters...
>
> The USERRA rights notice posters are available on our website at: 
> [www.dol.gov/vets](http://www.dol.gov/vets) for downloading and
> printing free of charge.  Please note that the notice comes in two
> forms; one for private-sector employers and the other for
> Federal-sector employers.  Please use the version that is appropriate
> to your office.
>
> []{#Exhibit48TSPFACTsheetl .anchor} [**Exhibit 48 (Thrift Savings FACT
> SHEET)**](#Exhibit48TSPFACTsheetIll)

![](media/image28.wmf){width="2.8743055555555554in"
height="3.686111111111111in"}

> The following language is recommended to supplement all Thrift Savings
> Plan requests for assistance...

 

> "...We will not be able to address the issue with your Thrift Savings
> Plan (TSP) contributions.  USERRA does not give VETS authority to
> investigate complaints concerning TSP.  Section 4322(f) of the statute
> provides: \"This subchapter does not apply to any action relating to
> benefits to be provided under the Thrift Savings Plan under title
> 5.\" 
>
> TSP-related complaints should be addressed, in writing, to the Federal
> Retirement Thrift Investment Board, Office of External Affairs, 1250 H
> Street, NW, Washington, DC  20005, (202) 942-1450 or (202) 942-1460.

Please see attached \"Thrift Savings Plan Fact Sheet\" for additional
information.

[**Exhibit 49: O: Drive Technical Assistance Log (Opening
Screen)**](#Exhibit49TALogODRIVEIll)

[]{#exhibit44odrivelogin .anchor}![](media/image29.png){width="6.0in"
height="4.614583333333333in"}

**[Exhibit 49: O:Drive Technical Assistance Log
(Instructions)]{.underline}**

![](media/image30.png){width="6.397222222222222in"
height="2.922222222222222in"}

**[Exhibit 49: O: Drive Technical Assistance Log]{.underline}**

![](media/image31.png){width="6.490972222222222in"
height="3.4277777777777776in"}

![](media/image32.png){width="6.475in" height="1.21875in"}

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12

[[]{#Chapter_12 .anchor}**Chapter 12**](#TOC12X)

[**Staff Roles**](#TOC12X)

**.1 Staff Roles.** In general, VETS staff perform the following
functions in USERRA program activities:

> \(1\) **Management Services Assistants and Veterans\' Program
> Assistants.** These individuals provide administrative support to the
> Regional Administrator and Directors for Veterans\' Employment and
> Training (DVET), respectively. They can/may be the first point of
> contact when a potential claimant calls for informa­tion. Their role is
> to provide basic information regarding rights and eligibility
> requirements, and to assist individuals in filing complaints.
>
> \(2\) **Veterans\' Program Specialists.** Veterans\' Program
> Specialists investigate USERRA complaints, provide technical
> assistance, and perform related activities such as assisting with
> other VETS programs within a State.
>
> \(3\) **Directors and Assistant Directors for Veterans\' Employment
> and Training.** Directors for Veterans\' Employment and Training
> (DVETs) have responsibility for managing the VETS program within a
> State. DVET responsibilities include oversight, reporting and
> providing technical assistance on USERRA. Where there are no Assistant
> Directors for Veterans\' Employment and Training (ADVETs) assigned,
> DVETS will also investigate USERRA complaints. ADVETS investi­gate
> complaints and provide technical assistance.
>
> \(4\) **Regional Office Staff.** Regional Administrators (RAs) have
> overall responsibil­ity for managing and monitoring the VETS program.
> Staff assigned to the Regional Offices assist the RAs in fulfilling
> this responsibility. Among their duties, Regional Office Staff must
> analyze and approve all referrals, coordinate efforts with, and
> request opinions from the Office of the Solicitor, and provide
> guidance to DVET, ADVETS, ESGR, etc. Certain Regional Office staff may
> also be assigned USERRA cases.
>
> \(5\) **Senior Investigators** (SIs). These individuals maintain
> regional office guidance and policy materials for reference by
> regional and state staff to include agency/department policies,
> Memoranda of Understandings, regulations and Federal register notices
> impacting on VETS' operation of USERRA, Federal veterans' preference
> (VP) and the Federal Contractor Programs (FCP.). SIs monitor the
> USERRA/VP Information Management System for timely case openings and
> closures in accordance with the USERRA and VP Operation Manuals,
> Quality Assurance and Closed Case Reviews, records of regional USERRA
> referrals and VP cases to assure timely, accurate and complete
> processing. Additionally, SIs monitor USERRA and VP case information
> to ensure UIMS and VPIMS data entries are in accordance with National
> and Regional directives and that cases are processed in accordance
> with VETS Operations Manual procedures.
>
> \(6\) **National Office Staff.** National Office Staff provides
> overall guidance and establishes policies and procedures for USERRA.

**.2 Regional Protocol.** Field staff members should use the expertise
within their State and Region whenever case processing questions arise.
If Regional Office staff cannot answer the field staff members'
questions, the Regional Office staff will contact the National Office
and/or Solicitor of Labor for guidance. All requests for Solicitors'
opinions will be forwarded to the Regional Office.

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13

[[]{#Chapter_13 .anchor}**Chapter 13**](#TOC13X)

[**Quality Assurance Review**](#TOC13X)

**.1 Definition.** The USERRA Quality Assurance Review (QAR) Form is an
evaluation tool designed to assess the quality of case investigations.
The QAR Form also provides VETS\' supervisory personnel with information
for use in improving individual and agency effectiveness, efficiency,
timeliness, and service as well as identifying any training, systemic
issues, or problems, and recommended corrective action(s).

**.2 Scope.** The QAR is intended to measure whether case processing and
case management activities follow the policies and procedures described
in this Manual. The review process encourages self-assessment and
improvement. The review process provides timely information necessary
for effective management of cases and identification of staff training
needs.

**.3 Impact Elements .** Elements of the QAR are individually identified
according to their impact on the investigation and its outcome. They are
as follows:

> **[Critical]{.underline}**. Critical elements are the items whose
> absence will likely obstruct the USERRA investigation to the point
> where successful resolution of the claim is unlikely or impossible
> without intervention and corrective action(s),
>
> **[Mandatory]{.underline}.** A mandatory element is one that
> identifies established procedural requirements. Failure to achieve one
> or more of these elements results in poor case management and
> documentation of the investigation and could pose difficulties in
> continued investigations, subsequent reopening or referral.

**.4** []{#reviewtypes .anchor}**Types of Reviews**. Open and Closed
cases are reviewed using the USERRA Open/Closed Case Quality Assurance
Review Form found at Exhibit 45.

A.  **Open Case Reviews**. The quality of each case is measured against
    the two (2) impact elements defined in item 3 above. An open case
    review will be conducted by the investigator's first-line USERRA
    supervisor (defined as the DVET for ADVETS and the RAVET, or his/her
    designee, for the DVETs) at the following points:

> **(**1). **Upon receipt of the employer's written position statement**
>
> (2). **Prior to notifying the claimant of the findings of the
> Investigation.**

B. When the review is completed, the review form should be placed on the
left side of the paper case file. When reaching the next **open case
review event(s)**, this same process would be repeated and will continue
until the case is closed. There is no need to complete a new Case Review
Form for each event; rather, the reviewer may update the initial form,
insuring the date the event is reviewed and included in the space
provided and the form is returned to the left side of the case file.

C. **Closed Case Reviews.** All closed cases will be reviewed by the
case investigator's first-line USERRA supervisor. Following case
closure, the reviewer will complete the QAR Form by first completing the
date closed and closing code in the heading of the form if this has not
already been done by the investigator, and by then completing blocks H
through M. The purpose of closed case review is to assess case quality
through case closure, to identify corrective action(s), to determine if
the case has been effectively handled and [properly entered into the
UIMS]{.mark}, and to identify systemic, training, resources, material or
other factors that require attention or improvement.

**.5 Review Standards. [\[QAR\]](#QARForm)**

**A.** []{#Case_reopening .anchor}**Case Re-Opening**

1\. Determine whether the parent case investigator followed established
policies, procedures and guidelines when closing the parent case (See
QAR item A.1.a.).

2\. The claimant must provide or identify new and material evidence to
justify re-opening the case. For purposes of this element, new and
material evidence is that which has not been previously considered or
associated with the claims file, and which, either standing alone or in
conjunction with other evidence already of record would tend to prove or
disprove the issue under consideration (See QAR item A.1.b.).

**B. Case Opening**

1\. If the claim is received through the UIMS (E-1010 format), the
claimant must be contacted within 3 working days of receipt of the
E-1010 for the purpose of clarifying issues and allegations and to
request documentation to prove eligibility for USERRA coverage (See QAR
item B.1.).

2\. If a *[signed]{.underline}* VETS 1010 form is received through
alternate communication (facsimile, E-mail attachment, postal service)
and the person alleges their employer is or is about to be in violation
of USERRA which has resulted in or may result in unem­ployment, the case
must be ---

> a\. Opened within 3 working days of receipt of the VETS 1010 form,
> including USERRA IMS entry (See QAR item B.2.a.);
>
> b\. The employer must be contacted within 7 working days of case
> opening (See QAR item B.2.b.); and,
>
> c\. Efforts must be made to make this initial employer contact by
> telephone or pre-arranged personal on-site visit. These efforts must
> be documented in the case file (See QAR item B.2.c.).

3\. If a claim is received in some other form than an E-1010 form
(facsimile,e-mail, postal service, phone call,) then the Investigator
must notify the claimant that a *[signed 1010]{.underline}* form is
required. A case **[cannot be opened]{.underline}** if the claimant does
not submit a signed 1010 Form. Filing an online 1010 (E-1010) is
considered "signed"; [See 20 CFR 1002.288](#vets1010). A written
letter/fax/or email (not on a 1010) requesting an Investigation is
insufficient as defined by the regulations and does not authorize the
Investigator to contact the employer.  The information provided on the
1010 (notification of punishment for unlawful statements, notification
of USERRA claimant's rights, and privacy act statement) validates the
claimant's awareness of his rights. The Investigation process, however,
can be initiated without documentation that establishes eligibility. 

After the claimant has been notified of the requirement to submit a
signed 1010 form, and the Investigator receives a signed 1010 form, the
case must be ---

> a\. Opened within 3 business days of receipt of the signed 1010 form,
> including USERRA IMS entry (See QAR item B.3.a.);
>
> b\. The employer must be contacted within 7 working days of case
> opening (See QAR item B.3.b.); and,
>
> c\. Efforts must be made to make this initial employer contact by
> telephone or pre-arranged personal on-site visit. These efforts must
> be documented in the case file (See QAR item B.3.c.).

4\. Was the required opening letter sent to the claimant within 5
working days of case opening and was it in accordance with the guidance
in Chapter 5 of the Operations Manual.

5\. Was the information and documentation received from the claimant
sufficient to begin the investigation ---

a\. Did the 1010 or written claim clearly state the issue(s)?

b\. If not, was the issue(s) determined in follow‑up contacts?

c\. Was sufficient documentation available to proceed?

d\. If not, were follow‑up contacts performed to secure essential
documentation?

**C. Alleged Violation, Remedies, USERRA Eligibility, and Citations**

> 1\. If the claimant failed to state remedies s/he was seeking, did the
> investigator obtain this information in follow-up contacts (See QAR
> item C.1.a.)?
>
> 2\. If appropriate, did the investigator determine and explain to the
> claimant the remedies available based on USERRA (See QAR item C.2.a.)?
>
> 3\. Was sufficient documentation obtained to determine eligibility for
> USERRA coverage (See QAR item 3); if so, in what form (See QAR item
> C.3.a.), and was the correct eligibility determination made by the
> investigator (See QAR item C.3.b.)?

4\. Was the correct UIMS issue code(s) selected and did the investigator
apply the correct provisions of Title 38 U.S. Code and either 20 CFR, in
the case of a State or private employer, or 5 CFR, in the case of a
Federal Executive branch employer (See QAR item C.4.)?

**D. Case Investigative Plan**

1\. Was the CIP prepared and was it a meaningful document, i.e., does it
correctly

> identify the issue and statutory and regulatory cites as well as
> factors holding up resolution and outline case investigative needs for
> additional evidence?

2\. Was the CIP updated as the investigation progressed?

3\. Were appropriate entries made in the UIMS?

**E. Documentation/File Maintenance; including UIMS data entry**

1\. Was the Form 1010, E-1010 or written complaint the first document on
the bottom right side of the folder?

2\. Telephone or in-person contacts with interested parties (including
proceedings at conferences) should be on VETS Form 1063 or the
appropriate memoran­dum and recorded in the UIMS.

3\. Documents should be in chronological order by date received, with
the newest on top, except that the VETS Form 1010 should be placed on
the bottom of the file with its attachments next on top of the Form
1010, no matter when it is received.

4\. Were all incoming documents properly date stamped?

F.  **Investigation**

> 1\. If the complaint alleges section 4311 discrimination, did the
> investigator
>
> identify the three required factors ---

a.  Did an adverse employment action take place against the claimant?

b.  Was the claimant a member of a protected class (past, present or
    future military obligation or service)?

> c\. Was there a causal connection between the adverse employment
> action and the membership in the protected class?

2.  Did the service member ---

> a\. leave a position of civilian employment by reason of service in
> the uniformed services [and]{.underline}
>
> b\. give his/her employer advance notice of the service
> [and]{.underline}
>
> c\. have five years or less of cumulative service in the uniformed
> services with respect to a position of employment with a particular
> employer [and]{.underline}
>
> d\. return to work or apply for reemployment in a timely manner after
>
> conclusion of service [and]{.underline}

e.  not separate from service with a disqualifying discharge or under
    other than honorable conditions?

3\. Did the investigator identify, investigate and document all issues
relevant to

> the investigation?

4\. Were all witnesses contacted or were attempted contacts documented
and did

> the investigator obtains and document relevant, material evidence?

5\. Was an on-site visit conducted?

a\. If not, would an on-site visit have been beneficial to the
investigation?

b\. Was all available, relevant, material evidence obtained during the
visit?

6\. Were questions and legal issues raised by the employer and, if so,
did the

> investigator provide accurate, timely responses?

7.  Was it necessary and, if so, did the investigator seek assistance
    from available resources (SIs, RSOL, Westlaw, Internet, etc.)?

8.  Would a subpoena have assisted with the investigation and, if so,
    did the investigator submit a subpoena request in accordance with
    the guidance provided in Chapter 6 of this Manual?

9.  Was a USERRA violation identified and were reasonable attempts to
    resolve the complaint executed and documented?

10\. Was the investigation properly and timely documented in the UIMS?

G.  **Pre-Case Closure**

> 1\. Is the closing letter ---
>
> a\. in the relevant format provided in accordance with [Chapter
> 9](#Chapter_9) of this manual?
>
> b\. was notification of DOJ/OSC referral rights required?
>
> c\. if so, were the DOJ/OSC referral rights provided, including the
> stipulations?
>
> [d. Was the closing letter reviewed with a supervisor prior to being
> sent to the]{.mark}
>
> [claimant?]{.mark}

**H. Case Closure**

1\. Was the case closed only after the investigation was complete and
all of the required documentation was completed and on file?

2\. Did the investigator record case closing in the UIMS accurately and
timely?

**I. Enforcement and Referral.**

1\. Upon completion of the investigation, did the investigator ---

a\. Provide the appropriate rights regarding enforcement and referral?

b\. Was the notification in the proper format?

2\. If the claimant elected referral ---

a\. Was the 10-day letter sent to the employer in a timely manner?

b\. Was the MOR prepared in accordance with directions found in [Chapter
8](#Chapter_8) of this Manual?

a.  Was the referral packet submitted to the RO within **15** **working
    days** of receipt of the signed referral request?

3\. Did the claimant, subsequent to requesting referral, withdraw the
referral request?

> a\. If so, did the investigator obtain documentation specified in
> [Chapter 8, Sec 5](#withdrawnReqfrRef). of this Manual to support the
> withdrawal request?

4\. Was timely, accurate data entered into the UIMS?

J.  **Corrective Action**

> It is the first-line supervisor's responsibility to ensure that
> problem areas are identified and addressed early in the case
> processing. Identified problems must be addressed in writing to the
> VETS investigator handling the case. A corrective action plan
> agreeable upon by the first-line supervisor and investigator must be
> implemented. The space provided is to list, in narrative form, the
> deficiencies identified during the review, the impact level of the
> deficiency, and the corrective action plan for each.

K.  **Effective case handling occurs when ---**

> 1\. VETS' established policies, procedures, and guidelines are
> followed;
>
> 2\. Issues and statutory and regulatory sections are properly
> identified;
>
> 3\. Results-oriented actions are planned and completed in a timely and
> appropriate
>
> manner;
>
> 4\. A logical, defendable position is taken regarding the viability of
> the claim;
>
> 5\. The claimant has been briefed on the outcome [of the investigation
> and his/her concerns have been adequately addressed; and]{.mark}
>
> 6\. Open case reviews have been conducted as prescribed.
>
> **L. Training, Resources and Material and/or Equipment Needs**
>
> 1\. What training is necessary and available that might improve the
> investigator's performance?
>
> 2\. What resources, material and/or equipment is needed to provide the
> investigator adequate means to conduct investigations, to maintain a
> case file, to provide direct input into the USERRA IMS, to access
> information and resources, to perform research in support of the case,
> and to perform analysis of the case?

**.6 The Quality Assurance Review Process**

The process is intended to ensure regular and periodic review and
oversight of case activity by appropriate levels of staff and
management. Personnel involved in the review process include supervisors
at the state, region, and National Office and support staff including
the USERRA Regional Lead Center and Senior Investigators. The DVET and
RAVET have the primary roles.

> The RAVET is ultimately responsible as the reviewing official. The
> RAVET can designate other reviewer(s) but must ensure reviews are
> performed within the parameters described and that constructive and
> corrective feed back is provided to Investigators.
>
> Management and support staff reviewers will utilize the USERRA
> Open/Closed Quality Assurance Review Form [(Exhibit 50)](#QARForm) to
> facilitate and record required reviews. The National Office, with the
> support of the USERRA RLC, provides the quality assurance role through
> the IMS and the Quality Assurance Review and periodically monitors the
> regional quality assurance review process to verify each region is
> exercising appropriate and timely managerial oversight. The National
> Office also provides feedback to the region commending effective
> performance and making suggestions or providing assistance when
> appropriate.

**.7 Levels of Review**

**A. State**

1\. The DVET shall perform QAR assessments by completing a QAR Form on
each case as described in items 3-5 above. In the case where the DVET is
the investigator, the QAR assessments will be conducted by the Regional
Administrator or designated representative.

**B. Region**

1\. The Regional Administrator may require more frequent or additional
state-level QARs, as appropriate, based on training needs or observed
deficiencies.

2\. A designated management reviewer will physically review no less than
100% of

> closed cases and 100% of open cases. The review will include
> examination of
>
> data from the USERRA IMS. Written findings will be prepared per region
>
> policy and feedback will be provided to each DVET and investigator for
> their
>
> respective cases.

**C. USERRA Regional Lead Center**

> The URLC will select a nationwide random sample of 10%, or twenty
> cases, whichever is more, of cases closed each quarter for review. The
> URLC will request a copy of the cases from the appropriate Re­gional
> Offices. The URLC, with the support of the SIs, will review the cases
> and related data in the USERRA IMS. The URLC will summarize the
> results of [the review in a report to the National Office. The random
> sample will exclude cases still being processed by the Solicitor, the
> Attorney General, or the Office of Special Counsel.]{.mark}

**D. National Office**

> The National Office will review the URLC Quality Assurance Review
> report and direct the URLC to prepare reports and memorandum as
> appropriate.

**E. Time Periods Allowed for Review Completion**

1\. [Open case reviews]{.underline}. The reviewer will have 7 working
days following receipt of notification by the investigator that an event
in the investigation has been attained to complete the review.

2\. [Closed Case Review]{.underline}. The reviewer official will have 30
working days following receipt of the case file to complete the review.

3\. Regions may impose additional timeframes as needed in consideration
of the final storage location of closed files. For example, if regional
policy is that all closed cases must be shipped and stored at region,
the region may impose a timeframe for receipt of closed files.

[]{#QARForm .anchor} [**Exhibit 50: USERRA Quality Assurance Review
Form**](#Exhibit46QARIll)

# USERRA Open/Closed Case Quality Assurance Review Form

Claimant Name: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Case No.:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Date Opened: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Date Closed:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

VETS Inv.: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Reviewer:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Opening Issue(s): \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Closing Code:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Reference: Chapter 13, USERRA Operations Manual

[IMPACT (IMP)]{.underline}: **Critical (C) Mandatory (M)**

Note: Comments or a just cause explanation must be entered for any
\"No\" entry. If an item is not applicable, check \"N/A\". Use
additional sheet(s) if more space is needed.

[IMPACT -- I]{.underline}: DATE REVIEWED D/R; YES -- Y; NO -- N; PENDING
-- PDG; NOT APPLICABLE -- N/A

<table>
<colgroup>
<col style="width: 28%" />
<col style="width: 0%" />
<col style="width: 2%" />
<col style="width: 7%" />
<col style="width: 0%" />
<col style="width: 4%" />
<col style="width: 1%" />
<col style="width: 1%" />
<col style="width: 3%" />
<col style="width: 1%" />
<col style="width: 3%" />
<col style="width: 1%" />
<col style="width: 40%" />
<col style="width: 2%" />
</colgroup>
<tbody>
<tr class="odd">
<td colspan="2"><strong>CRITERIA</strong></td>
<td><strong>I</strong></td>
<td colspan="2"><strong>D/R</strong></td>
<td colspan="2"><strong>Y</strong></td>
<td><strong>N</strong></td>
<td colspan="2"><strong>PDG</strong></td>
<td colspan="2"><strong>N/A</strong></td>
<td colspan="2"><strong>COMMENTS</strong></td>
</tr>
<tr class="even">
<td colspan="2"><strong>A. CASE RE-OPENING</strong></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="odd">
<td colspan="2"><ol type="1">
<li><p>Is this a re-opened case?</p></li>
</ol>
<p>a. <a href="#Chapter_9">Were appropriate policies and procedures
utilized when the parent case was closed?</a></p>
<blockquote>
<p><a href="#Case_reopening">b. Was sufficient new evidence provided to
justify re-opening the case?</a></p>
</blockquote></td>
<td><p><strong>M</strong></p>
<p><strong>M</strong></p></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="even">
<td colspan="2"><strong>B. CASE OPENING</strong></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="odd">
<td><ol type="1">
<li><p><a href="#ProcessingStandards">Following receipt of the
E-1010,was the claimant contacted within 3 business days of receipt of
the E-1010?</a></p></li>
</ol></td>
<td colspan="2"><strong>M</strong></td>
<td></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
</tr>
<tr class="even">
<td colspan="2"><p>2. <a href="#ProcessingStandards">Is the claimant
unemployed?</a></p>
<p><a href="#ProcessingStandards">(<strong>NOTE:</strong> <strong>If
“No” skip to question 3</strong>.)</a></p>
<p><a href="#ProcessingStandards">a. If “Yes” was the case</a></p>
<p><a href="#ProcessingStandards">opened within 3 working days of
receipt of the E1010?</a></p>
<p><a href="#ProcessingStandards">b. Was employer contacted within 3
working days of case opening?</a></p>
<p><a href="#ProcessingStandards">c. If “Yes” was the initial</a></p>
<p><a href="#ProcessingStandards">contact by telephone or in</a></p>
<p><a href="#ProcessingStandards">person?</a></p></td>
<td><p><strong>M</strong></p>
<p><strong>M</strong></p>
<p><strong>M</strong></p></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="odd">
<td colspan="2"><p>3. <a href="#ProcessingStandards">Is the claimant
employed?</a></p>
<p><a href="#ProcessingStandards">a. If “Yes,” was the case</a></p>
<p><a href="#ProcessingStandards">opened within 7 working</a></p>
<p><a href="#ProcessingStandards">days of receipt of the E1010?</a></p>
<p><a href="#ProcessingStandards">b. Was employer contacted within 7
business days of case opening?</a></p>
<p><a href="#ProcessingStandards">c. If “Yes,” was the initial</a></p>
<p><a href="#ProcessingStandards">contact by telephone or in</a></p>
<p><a href="#ProcessingStandards">person?</a></p></td>
<td><p><strong>M</strong></p>
<p><strong>M</strong></p>
<p><strong>M</strong></p></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="even">
<td colspan="2"><p>4. <a href="#Case_open_ltr_to_claimant">Was the
required opening letter sent to claimant within 7</a></p>
<p><a href="#Case_open_ltr_to_claimant">business days of case
opening?</a></p></td>
<td><strong>M</strong></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="odd">
<td colspan="2"><ol start="5" type="1">
<li><p><a href="#Whentoopenacase">Did the claimant provide</a></p></li>
</ol>
<p><a href="#Whentoopenacase">sufficient information and</a></p>
<p><a href="#Whentoopenacase">documentation to proceed</a></p>
<p><a href="#Whentoopenacase">with the investigation?</a></p></td>
<td><strong>M</strong></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="even">
<td colspan="2"><ol start="3" type="A">
<li><p><strong>ALLEGED VIOLATION,</strong></p></li>
</ol>
<p><strong>REMEDIES, USERRA</strong></p>
<p><strong>ELIGIBILITY, and CITES</strong></p></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="odd">
<td colspan="2"><p><a href="#Investigativesteps">1. Did the claimant
specify the remedies s/he was requesting?</a></p>
<ol type="a">
<li><p><a href="#Investigativesteps">If not, did the</a></p></li>
</ol>
<p><a href="#Investigativesteps">investigator obtain this information at
any time during the investigation?</a></p></td>
<td><strong>M</strong></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="even">
<td colspan="2"><p>2. <a href="#remedies">Did the investigator determine
the remedies available under USERRA?</a></p>
<p><a href="#initialcontactwcomplainant">a. Did the investigator notify
the claimant of the available remedies?</a></p></td>
<td><p><strong>C</strong></p>
<p><strong>C</strong></p></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="odd">
<td colspan="2"><p>3. <a href="#Documentation_TOC">Was documentation
obtained to verify eligibility for coverage under USERRA?</a></p>
<p><a href="#DocumentationQAR">a. What form of documentation (Copy 4 of
the DD-214; orders; copy of ID card; letter from unit; etc.)?</a></p>
<p>b. Was the correct eligibility determination made?</p></td>
<td><p><strong>C</strong></p>
<p><strong>M</strong></p>
<p><strong>C</strong></p></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="even">
<td colspan="2">4<a href="#Issuecodes">. Did the investigator determine
the correct issue code(s) and cite the appropriate section(s) of 38USC
and 20CFR or 5CFR, as appropriate?</a></td>
<td><strong>C</strong></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="odd">
<td colspan="2"><p><strong>D. CASE INVESTIGATIVE</strong></p>
<p><strong>PLAN</strong></p></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="even">
<td colspan="2">1. <a href="#mustdevelopcip">Was a CIP
prepared?</a></td>
<td><strong>M</strong></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="odd">
<td colspan="2"><p>2. <a href="#UpdatingInvestigativeplan">Was the CIP
updated as</a></p>
<p><a href="#UpdatingInvestigativeplan">needed?</a></p></td>
<td><strong>M</strong></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="even">
<td colspan="2"><a href="#Chapter_14">3. Was UIMS updated as
required?</a></td>
<td><strong>M</strong></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="odd">
<td colspan="2"><p>E. DOCUMENTATION/FILE</p>
<p>MAINTENANCE</p></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="even">
<td colspan="2">1. Was the Form 1010 the first document on the bottom
right side of folder?</td>
<td><strong>M</strong></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="odd">
<td colspan="2"><p>2. <a href="#Interviews">Were all telephone and
in-</a></p>
<p><a href="#Interviews">person contacts with</a></p>
<p><a href="#Interviews">individuals relevant to the</a></p>
<p><a href="#Interviews">investigation documented on VETS Form
1063?</a></p></td>
<td><strong>C</strong></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="even">
<td colspan="2">3. <a href="#Fileformat">Was the case file in reverse
chronological order?</a></td>
<td><strong>M</strong></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="odd">
<td colspan="2">4. <a href="#datestamp">Were all incoming documents
properly date stamped?</a></td>
<td><strong>M</strong></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="even">
<td colspan="2">F. INVESTIGATION</td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="odd">
<td colspan="2"><p>1. If the allegation is 4311</p>
<p>discrimination, did the</p>
<p>investigator identify all three elements of discrimination —</p>
<p>a. <a href="#adverseaction">was there an adverse employment
action?</a> and</p>
<p>b. was the claimant a member of a protected class, and</p>
<p>c. was there a causal connection between the</p>
<p>military service and the</p>
<p>adverse employment action?</p></td>
<td><strong>C</strong></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="even">
<td colspan="2"><p>2. If the claim involves reemployment, did the
claimant –</p>
<p>a<a href="#Eligibitycritera">. leave employment to perform service in
the uniformed services? and</a></p>
<p><a href="#Eligibitycritera">b. provide advance notice? and</a></p>
<p><a href="#Eligibitycritera">c. serve less than 5 years? and</a></p>
<p><a href="#Eligibitycritera">d. make timely and appropriate
application for</a></p>
<p><a href="#Eligibitycritera">reemployment? and</a></p>
<p><a href="#Eligibitycritera">e. serve honorably?</a></p></td>
<td><strong>C</strong></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="odd">
<td colspan="2">3. If the Investigation was completed, were all issues
relevant to the complaint thoroughly investigated?</td>
<td><strong>C</strong></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="even">
<td colspan="2"><p>4. Were witnesses identified by the claimant
and/or</p>
<p>investigator contacted and</p>
<p>was relevant material</p>
<p>evidence obtained?</p></td>
<td><strong>C</strong></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="odd">
<td colspan="2"><p><a href="#OnSiteInvestigations">5. Was an on-site
investigation conducted?</a></p>
<p><a href="#OnSiteInvestigations">a. If not, would one have been
beneficial?</a></p>
<p><a href="#OnSiteInvestigations">b. Was all available relevant
information and documentation obtained</a></p>
<p><a href="#OnSiteInvestigations">during the on-site
visit?</a></p></td>
<td><p><strong>C</strong></p>
<p><strong>C</strong></p></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="even">
<td colspan="2">6. <a href="#AdvisoryopinltrQAR">Did the investigator
provide accurate and timely responses to the employer’s questions and to
legal issues raised by the employer?</a></td>
<td><strong>M</strong></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="odd">
<td colspan="2"><p>7. <a href="#consult">When necessary, did the</a></p>
<p><a href="#consult">investigator seek assistance</a></p>
<p><a href="#consult">from available sources (SI,</a></p>
<p><a href="#consult">RSOL, etc.) during the course of the
investigation?</a></p></td>
<td><strong>M</strong></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="even">
<td colspan="2"><p>8. <a href="#Subpoena">When necessary, did
the</a></p>
<p><a href="#Subpoena">investigator request a</a></p>
<p><a href="#Subpoena">subpoena?</a></p></td>
<td><strong>C</strong></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="odd">
<td colspan="2">9. <a href="#Crosswalk">Did the investigator correctly
identify a USERRA violation(s) and, if so, attempt to resolve the
complaint?</a></td>
<td><strong>C</strong></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="even">
<td colspan="2">10. <a href="#Chapter_14">Was the investigation properly
and timely documented in the UIMS?</a></td>
<td><strong>M</strong></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="odd">
<td colspan="2">G. PRE-CASE CLOSURE</td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="even">
<td colspan="2"><p>1. Is the closing letter —</p>
<p>a. in the proper format? and</p>
<p>b. Were appropriate referral rights provided in writing?</p></td>
<td><p><strong>C</strong></p>
<p><strong>C</strong></p></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="odd">
<td colspan="2">H. CASE CLOSURE</td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="even">
<td colspan="2"><p><a href="#closingdate">1. Was the case closed when
appropriate?</a></p>
<ol type="a">
<li><p><a href="#closingdate">Did the case closure</a></p></li>
</ol>
<p><a href="#closingdate">date accurately reflect the actual date the
investigation was complete and the required documentation was on
file?</a></p></td>
<td><strong>C</strong></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="odd">
<td colspan="2"><ol start="2" type="1">
<li><p><a href="#reviewtypes">Were all required Red Flag Reports and
Open case Quality Assurance Reviews submitted and/or conducted in
accordance with established policies and procedures and in</a></p></li>
</ol>
<p><a href="#reviewtypes">a timely manner?</a></p></td>
<td><strong>M</strong></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="even">
<td colspan="2"><p>I. ENFORCEMENT AND</p>
<p>REFERRAL</p></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="odd">
<td colspan="2"><p>1. UPON COMPLETION</p>
<p>OF THE INVESTIGATION, did</p>
<p>the investigator —</p>
<p>a. provide the appropriate rights regarding enforcement and
referral?</p>
<p>b. <a href="#advisclaimofrigttoreferQAR">Was the notification in the
proper format?</a></p></td>
<td><p><strong>C</strong></p>
<p><strong>M</strong></p></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="even">
<td colspan="2"><p>2. If the claimant elected referral —</p>
<p><a href="#exhibit25smplrefadvltrtoemplyr">a. Was a Employer
notification of referral sent to the employer?</a></p>
<p>b. <a href="#Chapter_8">Was the MOR prepared in accordance with
directions found in Chapter 8 of this Manual?</a></p>
<blockquote>
<p>c. <a href="#fifteenwrkingdaysMOR">Was the MOR and</a></p>
</blockquote>
<p><a href="#fifteenwrkingdaysMOR">duplicate case file submitted to the
RO within 15 working days of receipt of the signed</a></p>
<p><a href="#fifteenwrkingdaysMOR">referral request?</a></p></td>
<td><p><strong>C</strong></p>
<p><strong>M</strong></p>
<p><strong>M</strong></p></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="odd">
<td colspan="2">3. <a href="#withdrawnReqfrRef">Were procedures as
outlined in Chapter 8 of the USERRA Operations Manual followed to
document a withdrawal of a USAG/OSC referral request?</a></td>
<td><strong>C</strong></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="even">
<td colspan="2">4. <a href="#Chapter_14">Was timely, accurate data entry
made in the UIMS/</a></td>
<td><strong>M</strong></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
</tbody>
</table>

  ---------------------------------- ------- ----- -- -- ---- --- -------------------------------
  5\. [Was a second level review of  **C**                        
  the case and closing letter                                     
  completed prior to notifying the                                
  claimant of the case                                            
  findings?](#closingletterreview)                                

  ---------------------------------- ------- ----- -- -- ---- --- -------------------------------

I. [CORRECTIVE ACTION:]{.underline} In narrative form, state the
deficiency identified during the review, its level of significance, and
the individual or systemic corrective action recommended to the
investigator or management. Systemic corrective actions relate to the
agencies' resources and their effect on the quality of the Investigation
ie policy statements, training, management functions, equipment,
personnel, funding, mentoring, reference materials, etc.

1\.

2\.

3\.

Was the corrective action recommended implemented? YES NO N/A
[.]{.underline}

Describe the corrective action:

J. [Effective case handling occurs when --]{.underline}

1.  VETS' established policies, procedures, and guidelines are followed;

2.  Issues and statutory and regulatory sections are properly
    identified;

3.  Results-oriented actions are planned and completed in a timely and
    appropriate

> manner;

4.  A logical, defendable position is taken regarding the viability of
    the claim;

5.  The claimant has been briefed on the outcome of the investigation ;
    and his/her concerns have been adequately addressed; and

> 6\. Open case reviews have been conducted as prescribed.

Based on these criteria, was this case handled effectively?

YES NO INCONCLUSIVE [\_]{.underline} If "No" or "Inconclusive," provide
a complete

explanation for this determination.

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> 14
>
> []{#Chapter_14 .anchor}
>
> [**Chapter 14**](#TOC14X)

[**USERRA Computer Applications**](#TOC14X)

**1. Definition.** VETS operates multiple computer applications for use
by VETS staff and the public in support of the USERRA program.

**2. Purpose.** The various USERRA computer applications enable both
VETS and the public to process and document USERRA activities and
reports efficiently and effectively.

**3. Types of Computer Applications.**

> **(1)** [**USERRA Information Management System
> (UIMS).**](https://portal.vets.dol.gov/login.aspx?ReturnUrl=%2FDefault.aspx&AspxAutoDetectCookieSupport=1)
> The UIMS provides VETS with the ability to input essential data
> related to USERRA cases and to generate reports that will assist VETS
> staff in the analysis of USERRA operations and outcomes. The UIMS
> accepts data at the investigator level and performs rollups of
> information through the State and Regional office levels to the USERRA
> Regional Lead Center (RLC) and National office levels. For detailed
> UIMS user instructions, See [UIMS QUICK REFERENCE GUIDE, October 27,
> 2006.]{.mark}

(2) **Electronic 1010 (E-1010).** VETS\' E-1010 site provides the public
    a secure means of submitting an \"official\" electronic
    VETS/USERRA/VP Form 1010 claim to VETS over the Internet. The E-1010
    system also sends email notification to VETS' managers and other
    designated staff about E-1010 claims within their jurisdiction, and
    allows them to review E-1010 data, open a USERRA or VP case in the
    appropriate Information Management System (IMS), and assign the case
    to a VETS Investigator for further action. For detailed E-1010 user
    instructions (including Director's Memorandum No. 17-05), see
    Exhibit 46.

(3) **USERRA Technical Assistance Logs (TA Logs).** The TA Logs (in
    Microsoft Excel format) are a reporting mechanism for compiling all
    "non-case related" USERRA technical assistance (TA) contacts \--
    that is, TA contacts made outside the scope of case investigations.
    For detailed TA Log user instructions (including Director's
    Memorandum No. 01-02), see Exhibit 47.

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