Most types of service will be counted in the computation of the five-year period. (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. Exceptions – Eight categories of service are exempt from the five-year limitation. (B) ensure that the person is offered such position. § 4312(e)(1). After the enactment of USERRA in 1994, it was held that the four-year default statute of limitations under section 1658(a) of title 28 of the United States Code applied to USERRA claims. (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. USERRA does not have a statute of limitations, and it expressly precludes the application of any State statute of limitations. Except as provided in subparagraph (B), such period of recovery may not exceed two years. (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. USERRA is a federal statute that protects servicemembers’ and veterans’ civilian employment rights. (6) The entitlement of a person to a right or benefit under an employee pension benefit plan is provided for under section 4318. Statute of limitations: The time of military service is excluded from the limitations … § 4324. (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. (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--. (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--. (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. This, coupled with the extremely generous protections for employees, has caused a dramatic increase in the USERRA lawsuits since the statute was enacted. 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. 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. 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. … (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--. Citizens across the country owe a great debt of gratitude to the brave men and women willing to serve in the military. Section 1981 of the Civil Rights Act of 1866. (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. (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). Employee pension benefit plans. Justia US Law US Codes and Statutes US Code 2011 US Code Title 38 - Veterans’ Benefits Part III - READJUSTMENT AND RELATED BENEFITS (§§ 3001 - 4335) Chapter 43 - EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE UNIFORMED SERVICES (§§ 4301 - 4335) § 4314. This is perhaps USERRA's most important provision. (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. Electronic Code of Federal Regulations (e-CFR), CHAPTER IX - OFFICE OF THE ASSISTANT SECRETARY FOR VETERANS' EMPLOYMENT AND TRAINING SERVICE, DEPARTMENT OF LABOR, PART 1002 - REGULATIONS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994, Subpart F - Compliance Assistance, Enforcement and Remedies, Enforcement of Rights and Benefits Against a State or Private Employer. § 4302. The Department recently organized a listening session with the Reserve Officers Association and the Department of Labor in order to gather information on current trends in USERRA litigation and determine methods in which the statute may be improved. No Statute Of Limitations: USERRA has no statute of limitations. 4318. (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. The Secretary shall refer the complaint to the Office of Special Counsel established by section 1211 of title 5. (j) DEFINITION- In this section, the term 'private employer' includes a political subdivision of a State.'. (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. (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. (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. The October 10, 2008 USERRA successor statute, which eliminated the statute of limitations on USERRA claims, applied retroactively to … (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. § 1002.311. (v) a person, institution, organization, or other entity that has denied initial employment in violation of section 4311. Statute of Limitations Under USERRA. Let’s say the employer is unfamiliar with USERRA’s requirements and denies the employee’s request to … The plaintiff's USERRA claims were barred by the four-year federal "catch-all" statute of limitations in Section 1658 (a), Title 28 of the US Code. USERRA differs from other employment laws (e.g., Title VII, ADEA) in multiple respects. (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. (12) The term 'seniority' means longevity in employment together with any benefits of employment which accrue with, or are determined by, longevity in employment. (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). § 4323. (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. That fact did not preclude the Sixth Circuit from reasoning that, by agreement, employer and employee could create a six-month statute of limitations. (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. Now, USERRA is a rather unique statute in many respects – one of which is that it lacks a statute of limitations. See 38 U.S.C. Recommended Captive Resources Presentation – June 13, 2012 11 Section 1981. (4) has received a notification of a decision from the Special Counsel under subsection (a)(2)(B). (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, (4) performed by a member of a uniformed service who is--. §1658(a)’s four-year statute of limitations applied. (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. (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) the failure of such agency to reemploy the person under such section was otherwise wrongful. Among other things, under certain conditions, USERRA requires employers to put individuals back to work in their civilian jobs after military service. (3) A determination pursuant to this subsection shall not be subject to judicial review. 14 Convalescence from injuries suffered or aggravated during military. (2) In any proceeding involving an issue of whether--. Enforcement of rights with respect to certain Federal agencies, (a) This section applies to any person who alleges that--, (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. 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. For example, USERRA has no statute of limitations of any kind for claims that accrued after October 10, 2008 (and claims that accrued after October 10, 2004 may be timely as … (b) Content of notice.--The Secretary shall provide to employers the text of the notice to be provided under this section. An employee could, for example, return from military service and seek reemployment. (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. The plaintiff was terminated before USERRA was amended in 2008 by the Veterans Benefits Improvement Act to preclude any statute of limitations defense. (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. According to the plain terms of the law, there is no statute of limitations whatsoever for USERRA claims brought against employers. 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. However, in some cases that arose prior to the Congressional enactment, which made clear that no statute of limitations applied, might still be considered barred by a four-year statute of limitations. (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. Share this: Click to share on Facebook (Opens in new window) Click to share on LinkedIn (Opens in new window) (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). (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. Are There Limitations to USERRA Protection? (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. Currently, there is no statute of limitations for a USERRA claim, meaning that a case that arises today can be filed at any time. (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. (h) FEES, COURT COSTS- (1) No fees or court costs may be charged or taxed against any person claiming rights under this chapter. 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. At least one court, however, has held that the four-year general Federal statute of limitations, 28 U.S.C. (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--. 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. (C) has been refused representation by the Attorney General with respect to the complaint under such paragraph . (3) The term 'employee' means any person employed by an employer. (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. (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. (2) The following entities may prescribe regulations to carry out the activities of such entities under this chapter: (C) The agencies referred to in section 2303(a)(2)(C)(ii) of title 5. The prohibition in this subsection shall apply with respect to a person regardless of whether that person has performed service in the uniformed services. (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. Baldwin’s mention of USERRA’s provision, "No State statute of limitations shall apply to any proceedings under this chapter," does not convince us otherwise. (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. USERRA is a federal statute that protects servicemembers’ and veterans’ civilian employment rights. (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. The ADA does have statute of limitations to deal with, though it is not stated in the statute itself. § 4326. Among other things, under certain conditions, USERRA requires employers to put individuals back to work in their civilian jobs after military service. (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. (4) A dropping of such person from the rolls pursuant to section 1161(b) of title 10. (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. USERRA does not have an express statute of limitations, but employees who delay unreasonably will lose their rights — and at least some courts have applied a four-year statute of limitations. Liquidated Damages For Intentional Violations. § 4327(b); 20 C.F.R. (C) the person's entitlement to the benefits under this chapter has not been terminated pursuant to section 4304. (3) to prohibit discrimination against persons because of their service in the uniformed services. (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. (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. (3) the person submits an application to the Director for an offer of employment under this subsection. (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, (I) to the last employer employing the person before the period served by the person in the uniformed services, or. 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