459-080-0100 Credit for Military Service under USERRA (1) Purpose. The purpose of this rule is to implement ORS 238A.415. (2) Limitation of scope of rule. Contributions, benefits and service credit provided under this rule may not exceed contributions, benefits and service credit required under federal law for periods of military service. (3) Definitions. For purposes of this rule: (a) “Employee” means: (A) An eligible employee, as defined in ORS 238A.005; (B) An active member of PERS, as defined in ORS 238.005, on or after January 1, 2004; or (C) An employee who is entitled to credit toward the probationary period required by ORS 238.015. (b) “Employer” means the legal entity that employed an individual at the time that individual left for military service. For purposes of this rule, the state of Oregon is a single legal entity. Each separate school district is a separate legal entity. (c) “Military service” means the performance of duty on a voluntary or involuntary basis in a uniformed service under competent authority and includes: (A) Active duty; (B) Active duty for training; (C) Initial active duty for training; (D) Inactive duty training; (E) Full-time National Guard duty; (F) A period for which an individual is absent from a position of employment for the purpose of an examination to determine the fitness of the person to perform any of the above types of duty; or (G) A period for which an individual is absent from employment for the purpose of performing funeral honors duty as authorized by 10 U.S.C. §12503 or 32 U.S.C. § 115. (d) “Salary” means the rate of pay the eligible employee would have earned if he or she had remained employed during the period of military service, including any increases that would have been awarded the employee based on longevity of employment or seniority of position. If such rate of pay is not reasonably certain, the rate shall be based on the employee’s average rate of pay from the employer. The average rate of pay shall be calculated for a period not to exceed the 12-month period immediately preceding the period of military service. (e) “Uniformed services” means the following: (A) Armed Forces; (B) Army National Guard; (C) Air National Guard; (D) Commissioned corps of the Public Health Service; and (E) Any other category of persons designated by the President in time of war or national emergency. (4) Eligibility for retirement benefits under USERRA. An eligible employee shall be entitled to the benefits of this rule if: (a) The employee leaves employment with a participating public employer to perform military service; (b) The cumulative length of the employee’s absence from employment with the employer for military service does not exceed the limits set forth in USERRA § 4312; (c) The employee initiates reemployment with the same participating public employer within the time limits specified in USERRA § 4312; (d) All employee contributions have been made; and (e) All other eligibility requirements for benefits under USERRA are met. (5) Service credit for military service under USERRA. An employee who meets the eligibility requirements of section (4) of this rule shall receive the amount of credit toward the period of employment required under ORS 238A.300 and the vesting requirements described under ORS 238A.320, the employee would have accrued if he or she had remained in employment with the employer during the period of military service. (6) Termination. An employee’s eligibility for the benefits of this rule terminates upon the occurrence of one of the disqualifying events listed in USERRA § 4304. (7) Employee contributions. (a) Employee contributions must be made upon reemployment for eligible military service in accordance with the following: (A) Employee contributions to be made by the employer. If the employee’s employer had agreed to pay employee contributions under ORS 238A.335(2)(b) as of the date the employee left employment to perform military service, the employer must pay, in a lump sum payment, the amount of contributions that would have been made if the employee had remained in the employment of the employer during the period of military service, based on salary as defined in section (3) of this rule. (B) Employee contributions to be made by the employee. If the employee’s employer had not agreed to pay employee contributions, or had agreed to pay employee contributions under ORS 238A.335(2)(a) as of the date the employee left employment to perform military service, the employee may pay all or part of the contributions that would have been made if the employee had remained in the employment of the employer during the period of military service, based on salary as defined in section (3) of this rule. Contributions made under this paragraph may be remitted to PERS by: (i) Payroll deduction; or (ii) Monthly payment of no less than one month of contributions; or (iii) Lump-sum payment. (b) Any individual, agency or organization may pay the employee contributions specified in paragraph (7)(a)(B) on behalf of the employee under the payment provisions set forth in subparagraph (5)(a)(B)(ii) or (iii). (c) Employee contributions may only be paid during the period beginning with reemployment and whose duration is three times the period of the employee’s military service, such period not to exceed five years. (d) Employee contributions shall be credited to the employee account established in ORS 238A.350(2). (e) Employee contributions may not include nor be credited with earnings or losses that would have been credited during the period of military service. (f) Contributions made under this section may not exceed the amount of employee contributions that would have been made if the employee had remained in the employment of the employer during the period of military service, based on salary as defined in section (3) of this rule. (A) The maximum amount of contributions that may be submitted under this section must be reduced by the amount of employee contributions attributable to differential wage payments received by the employee for the period of military service. (B) Employee contributions attributable to differential wage payments paid to the employee during the period of military service must be credited with earnings and losses that would have been credited during the period of military service. (8) Employer contributions. (a) If the employee’s employer had agreed to make employer contributions under ORS 238A.340 as of the date the employee left employment to perform military service, the employer must pay, in a lump sum payment, the amount of contributions that would have been made if the employee had remained in the employment of the employer during the period of military service, based on salary as defined in section (3) of this rule. (b) Any contributions made under this section shall be added to the employee’s employer account established in ORS 238A.350(3). (c) Contributions made under this section may not include nor be credited with earnings or losses that would have been credited during the period of military service. (d) Contributions made under this section may not exceed the amount of employer contributions that would have been made if the employee had remained in the employment of the employer during the period of military service, based on salary as defined in section (3) of this rule. (e)The amount of contributions that must be submitted under this section must be reduced by the amount of employer contributions attributable to differential wage payments received by the employee for the period of military service. (f) Employer contributions attributable to differential wage payments paid to the employee during the period of military service must be credited with earnings or losses that would have been credited during the period of military service. (9) Military service that includes January 1, 2004. If an employee as defined in section (3)(a)(B) or (C) of this rule performs military service over a period including January 1, 2004: (a) Retirement credit and contributions for military service before January 1, 2004, shall be determined in accordance with OAR 459-011-0100. (b) Retirement credit and contributions for military service on or after January 1, 2004, shall be determined in accordance with this rule and OAR 459-011-0100. (10) The effective date of this rule is January 1, 2009. [Publications: Publications referenced are available from the agency.] Statutory/Other Authority: ORS 238A.450 & 238A.415 Statutes/Other Implemented: ORS 238A.415 History: PERS 1-2009, f. & cert. ef. 2-12-09 PERS 16-2006, f. & cert. ef. 11-24-06 PERS 3-2004, f. & cert. ef. 1-22-04