Reemployment by certain Federal agencies. 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) the statute of limitations for filing a claim under the agreement at six months. (ii) if such last employer is no longer functional, to the plan. (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) 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). (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. (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. (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. 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. 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. (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. § 4326. (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. (B) it is impossible or unreasonable for the agency to reemploy the person. (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. 38 U.S.C. (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. Section 1981 specifically targets race discrimination. 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. Another reason for my worries is the statute of limitations or, more specifically, the lack of one. Until the 2008 amendment, 28 U.S.C. (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. No State statute of limitations shall apply to any proceeding under USERRA. (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. 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. Coverage of Individuals Under Section 1981. 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. Exceptions – Eight categories of service are exempt from the five-year limitation. An official website of the United States government. Official websites use .gov The whole idea of the statute of limitations is to prevent stale claims. (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. USERRA: Uniformed Services Employment and Reemployment Rights Act by Jeffrey A. Daxe ... expert witness fees, and other litigation expenses. (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. (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 number of complaints filed by the Attorney General pursuant to section 4323 during such fiscal year. (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--. For purposes of determining the amount of such liability and any obligation of the plan, earnings and forfeitures shall not be included. An employee may pursue an administrative remedy by filing with the Department of … (d) The Secretary shall investigate each complaint submitted pursuant to subsection (a). (i) INAPPLICABILITY OF STATE STATUTE OF LIMITATIONS- No State statute of limitations shall apply to any proceeding under this chapter. The inspector general shall investigate and resolve the allegation pursuant to procedures prescribed by the head of the agency. Lastly, USERRA does not permit costs to be charged to USERRA claimants, so you won’t be required to pay any filing fees to file your case. (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. (3) the person submits an application to the Director for an offer of employment under this subsection. (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. 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. (5) The entitlement of a person to coverage under a health plan is provided for under section 4317. (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)(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. with the fact that USERRA does not provide for a statute of limitations,17 creates an open and unpredictable forum for USERRA claims. Among other things, under certain conditions, USERRA requires employers to put individuals back to work in their civilian jobs after military service. (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. SUBCHAPTER II--EMPLOYMENT AND REEMPLOYMENT RIGHTS AND LIMITATIONS; PROHIBITIONS, § 4311. (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. (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. (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. (f) This subchapter does not apply to any action relating to benefits to be provided under the Thrift Savings Plan under title 5. No Statute of Limitations ... have enacted state statutes extending . (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 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. 2004). USERRA is a federal statute that protects servicemembers’ and veterans’ civilian employment rights. (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. Is not stated in the United States rogers v. City of Chattanooga, 2002 WL 32060140 ( E.D Content... 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