DETAILED TABLE OF CONTENTS

Transcription

1 DETAILED TABLE OF CONTENTS Contributors... v v Foreword... vii vii Preface... ix ix Summary Table of Contents... xvii xi Chapter 1 Brief History of the Uniformed Services Employment and Reemployment Rights Act I. Overview II. Pre-USERRA Legislation A. Selective Training and Service Act B. Selective Service Act of C. Universal Military Training Service Act D. Military Selective Service Act E. Veterans Reemployment Rights Act F. Vietnam Era Veterans Readjustment Assistance Act [New Topic]... 2 III. The Uniformed Services Employment and Reemployment Rights Act A Enactment xiii

2 xiv USERRA 2016 Cum. Supp. B. USERRA s Structure and Administration C Amendments D Regulations E Amendments F Amendments [New Topic]... 3 G Amendments [New Topic]... 4 H Proposed Legislation [New Topic]... 4 Chapter 2 USERRA Coverage Issues I. Overview II. Covered Employers A. Introduction B. Basic Coverage Standard C. Religious Institutions and Indian Tribes D. Application of USERRA to Foreign Employers E. Public Employers Federal Government States Political Subdivisions of States F. Successors in Interest G. Joint Employment Hiring Halls H. Supervisors and Others as Employers [New Topic] III. Covered Employees A. Introduction B. Temporary Employees C. Independent Contractors D. Former Employees E. Family Members of Employees IV. Covered Forms of Service in the Uniformed Services A. Introduction B. Covered Uniformed Services Under USERRA

3 Detailed Table of Contents xv Chapter 3 C. Applicants for Service in the Uniformed Services D. Service in the National Disaster Medical System Leave Entitlements Under USERRA I. Overview II. Five-Year Service Period III. Use of Vacation or Paid Time Off Chapter 4 Scheduling Leaves and Providing Leave Notice I. Notice A. USERRA s General Notice Requirement B. Excusing the Requirement of Advance Notice Because of Military Necessity C. Excusing the Requirement of Advance Notice Because It Is Unreasonable or Impossible II. Scheduling Leaves A. Employee Is Not Required to Accommodate Employer s Scheduling Needs When Taking Military Leave B. Employer May Not Preface the Taking of Military Leave Upon Obtaining the Employer s Permission Chapter 5 Pay and Benefits During Leave I. Introduction II. Characterizing an Employee s Status While on Military Leave

4 xvi USERRA 2016 Cum. Supp. III. Non-Seniority Rights and Benefits While on Military Leave A. How to Determine Non-Seniority Benefits B. Pay While on Leave C. Employees May Forfeit Right to Non-Seniority Benefits IV. Employees Health Benefits Protected During Military Leave A. Impact of Military Leave on Health Benefits 38 U.S.C A USERRA Health Plan USERRA versus COBRA Coverage B. Employers Subject to Health Plan Provisions of USERRA In Connection With Employment Requirement C. Dependents Entitled to Coverage D. Length of Time for Continuing Coverage E. Procedures for Implementing the Right to Continue Coverage Under USERRA Retroactive Reinstatement Reinstatement for Non- Electing Employees F. Cost of Continuation of Coverage G. Reinstatement Right Insurance Company Liability Upon Reinstatement and Not Sooner Returning Employees Do Not Have Right to Delay Reinstatement H. Multiemployer Health Plans Liability for Employer Contributions

5 Detailed Table of Contents xvii 2. Multiemployer Bank Plans V. Pension Plan Benefits A. Covered Plans B. Treatment of Returning Employees C. Funding the Pension Plan Employer s Obligations Timing of Employer Contributions Employee Obligations and Requirements Contribution Amounts D. Multiemployer Plans Notice to Plan Administrator Employee Entitlements Under Multiemployer Plan E. How to Calculate Pensions VI. Conclusion Chapter 6 Reinstatement Rights and Obligations I. Rights of a Returning Employee A. Prompt Reinstatement B. Seniority Rights Under USERRA General Principles Applicable System of Seniority; Definition of Seniority ; Escalator Principle Vacation Accrual Is It Seniority-Based? Pension Plans a. Breaks in Service b. Make-up Payments/ Contributions Status Dismissal Only for Cause Under Certain Circumstances Training/Retraining

6 xviii USERRA 2016 Cum. Supp. 8. Being Qualified for the Reinstatement Position [New Topic] II. The Employee s Obligation to Provide Documentation Prior to Reinstatement III. An Employee s Criteria and Obligations When Seeking Reinstatement A. The Employee Must Be an Employee Resignation As a Termination of Rights [New Topic] B. Additional Criteria for USERRA Coverage An Employee Must Have Left Employment to Perform Service in the Uniformed Services a. Laid-Off or Furloughed Employees Prior Notice of Absence a. General Rule b. Prior Notice c. Exceptions to Prior Notice Requirement d. Sample Letter to Employer: Notice of Active-Duty Absence An Employee May Take a Cumulative Total of Five Years of Service While Employed by a Particular Employer The Employee s Discharge or Release From Service Must Not Be Disqualifying The Employee Must Make Timely Application for Reemployment

7 Detailed Table of Contents xix a. General Rule b. Sample Letter to Employer: Employee s Request for Reinstatement IV. An Employer s Reinstatement Obligations A. In General Decisions [New Topic] Decisions [New Topic] a. Employees Returning to Eliminated Positions [New Topic] b. Reinstatement Where Employer Sold Business [New Topic] c. Reinstatement After Employer s Partial Closure [New Topic] d. Other 2012 Reinstatement Cases [New Topic] Decisions [New Topic] Decisions [New Topic] a. Employee Notice Issues [New Topic] Decisions [New Topic] a. Waiver of Rights Under 38 U.S.C. 4316(b)(2) [New Topic] b. Position of Reinstatement [New Topic] c. Benefits of Employment [New Topic] B. To What Position Must the Employer Restore the Employee? C. Accommodation for Disabilities D. Reinstatement to a Discretionary Position [New Topic] V. An Employer s Affirmative Defenses to Reinstatement

8 xx USERRA 2016 Cum. Supp. A. Employer s Changed Circumstances Make It Impossible or Unreasonable to Rehire B. Undue Hardship for Disability, Training, More Than One Employee Returning to a Position C. Employment for a Brief, Non-Recurrent Period Without Reasonable Expectation That Employment Would Continue for a Significant Period VI. Conclusion Chapter 7 Pay and Non-Healthcare Benefit Issues Upon Reinstatement of Employment I. Introduction II. The Definition of a Seniority Right or Benefit A. What Is a Reasonable Certainty? III. Determining Seniority-Based Benefits in Employment IV. Non Seniority-Based Benefits V. Pay Upon Reinstatement to Employment VI. Case Law Interpreting Reinstatement Issues VII. Protection Against Termination of Employment Upon Reinstatement A. Employee Pension Plans Chapter 8 USERRA and Health Care Benefits I. Introduction II. Impact of Military Leave on Health Benefits (38 U.S.C. Section 4317) A. A USERRA Health Plan

9 Detailed Table of Contents xxi B. USERRA Coverage Compared to COBRA III. Employers Subject to the Health Plan Provisions of USERRA IV. In Connection With Employment Requirement V. Dependents Entitled to Coverage VI. Length of Time for Continuing Coverage VII. Procedures for Implementing the Right to Continue Coverage Under USERRA A. Retroactive Reinstatement B. Reinstatement for Non-Electing Employees VIII. Cost of Continuation Coverage IX. Reinstatement Right A. Insurance Company Liability B. Upon Reinstatement and Not Sooner C. Returning Employees Do Not Have a Right to Delay Reinstatement X. Multi-Employer Health Plans A. Liability for Employer Contributions B. Multi-Employer Bank Plans Chapter 9 Interrelationship with Other Laws and Employer Practices I. Overview II. Interrelationship With Other Laws A. General Principles B. Federal Laws Family and Medical Leave Act a. General Principles b. Covered Employers and Eligible Employees c. Qualifying Events i. Caregiver Leave

10 xxii USERRA 2016 Cum. Supp. ii. Qualifying Exigency Leave d. Duration and Timing of Leave e. Health Benefits and Nature of Leave f. Reemployment and Restoration Americans with Disabilities Act a. General Principles b. Covered Employers and Eligible Employees c. Duty to Accommodate Qualified Disabled Employees and Veterans d. Leaves of Absence and Light Duty e. Restoration f. Medical Inquiries and Records COBRA Fair Labor Standards Act Employee Retirement Income Security Act Section 1983 [New Topic] The Railway Labor Act [New Topic] The Vietnam Veterans Readjustment Rights Act [New Topic] C. State Laws III. Interrelationship With Employer Practices A. Policies Providing Greater or Lesser Benefits Than Required by USERRA B. Employer Policy Considerations al Paid Leave Substitution of Paid Leave

11 Detailed Table of Contents xxiii 3. Medical Benefits Expanded Eligibility Accrual of Vacation and Other Forms of Paid Leave IV. Conclusion Chapter 10 Discrimination, Retaliation, and Harassment I. Discrimination A. Discrimination Based on Status Protected Categories a Cases [New Topic] b Cases [New Topic] i. Interesting Issues Considered by Courts Under Section 4311 in 2012 [New Topic] c Cases [New Topic] d Cases [New Topic] i. Interesting Issues Considered by Courts Under Section 4311 in 2014 [New Topic] e Cases [New Topic] Scope of Uniformed Services B. Discrimination Based on Membership in a Uniformed Service General Rules Performance of Service Voluntary Versus Involuntary Service Discriminatory Conduct a. Discriminatory Refusal to Hire b. Discriminatory Refusal to Reemploy c. Discriminatory Denial of Retention in Employment

12 xxiv USERRA 2016 Cum. Supp. d. Discriminatory Denial of Promotion e. Discriminatory Denial of Any Benefit of Employment f. Termination for Cause [New Topic] C. The Cat s Paw Theory of Liability [New Topic] Staub v. Proctor Hospital [New Topic] Cases Applying Staub [New Topic] a Cases [New Topic] b Cases [New Topic] c Cases [New Topic] d Cases [New Topic] D. Constuctive Discharge Standards [New Topic] II. Retaliation A. Retaliation in General B. Retaliatory Adverse Actions III. Burden of Proof in Discrimination and Retaliation Claims IV. Motivating Factor Requirement V. Affirmative Defense: Same Action Absent Protected Status or Activity A Cases [New Topic] VI. Harassment A. Harassment Claims Initially Not Recognized Under USERRA [New Topic] B. Congressional Action Following Carder [New Topic] C Cases Involving Harassment Claims [New Topic] D Cases Involving Harassment Claims [New Topic]

13 Detailed Table of Contents xxv E Cases Involving Harassment Claims [New Topic] F Cases Involving Harassment Claims [New Topic] VII. Disparate Impact Claims VIII. Conclusion Chapter 11 Enforcement, Remedies, and Other Issues Under USERRA I. Introduction II. Enforcement Procedures A. Enforcement and Remedies Against the Federal Employer B. Enforcement and Remedies Against the Private Employer C. Enforcement and Remedies Against the State Employer D. Mediation and Alternative Dispute Resolution III. Burden of Proof IV. Statute of Limitations V. Declaratory Judgments VI. Arbitration Agreements VII. Jurisdictional Issues [New Topic] VIII. Release Issues [New Topic] IX. Waiver of Costs [New Topic] X. Federal Question Removal [New Topic] XI. Sovereign Immunity [New Topic] Appendix A. The Uniformed Services Employment and Reemployment Rights Act (as Amended): 38 U.S.C A-1 Appendix A-1 Veterans Benefits Act of

14 xxvi USERRA 2016 Cum. Supp. Appendix A-2 VOW to Hire Heroes Act of Appendix A-3 National Defense Authorization Act of Appendix B. Department of Labor USERRA Regulations: 20 C.F.R. Part 1002 ( )... B-1 Appendix C. EEOC Employers Guide Appendix D. EEOC Veterans Guide Appendix E. Summary of State Laws Concerning Military Leave/ Re-Employment Rights... E Appendix F. USERRA Data Retention Requirements... F-1 Table of Cases... TC Index... I-1