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What You Thought You Knew About Military Employment and Reemployment

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T.L. Holden Area 17 Chair, Texas ESGR – PowerPoint PPT presentation

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Title: What You Thought You Knew About Military Employment and Reemployment


1
T.L. Holden Area 17 Chair, Texas ESGR
2
What You Thought You Knew About Military
Employment and Reemployment
  • USERRA, flma AND TEXAS LAW nine YEARS LATER
    (After 9/11)

3
ESGR History Purpose
  • 1972 USERRA ESGR
  • 1990s Strategic to Operational Forces
  • 2001 Sustain Employer Support thru Education,
    Mediation Recognition
  • 2011 Support Veterans Employment

4
Employer Support of the Guard and Reserve
  • Department of Defense organization
  • Education through Employer Military Outreach
  • Conflict resolution - Ombudsman Services
  • Strategic Partnerships Government Business
  • Employment Assistance

5
The Operational Reserve
6
Where Texas Stands
  • 51,868 Selected Reserve in Texas (6.2 of US
    Total)
  • 8398 currently activated (6.5 of total)
  • Conclusion Texas has a large number of Guard and
    Reserve members that have been or will be
    activated.
  • Result Significant Impact on Texas Employers

7
ESGR Programs Services
  • Employer Outreach
  • Military Outreach
  • Ombudsman Services
  • Employment Referrals

8
ESGR Why Hire a Service Member?
  • Maturity Disciplined
  • Character Clean Background
  • Team Player/Leader
  • Educated Tech Savvy
  • Healthy Drug Free
  • Adds Diversity to the Workforce
  • Accommodating Physically Impaired Vets

9
ESGR Employers Concerns
  • Understanding Military terminology job skills
  • Non-discrimination in the hiring process
  • Cost of absenteeism for military duty
  • Reintegration whats required?
  • What job qualifies as a reemployment position?
  • Spouses leave for service members active duty
  • Wounded Warrior Whos Responsible?
  • USERRA , FMLA and Texas Laws

10
Success Stories Best Practices
  • Public Private Sector Best Practices
  • Transition Assistance Resources
  • Recruiting Fairs Target Military
  • Service Members add to the Bottom Line
  • Integrate Veterans in Growth Plans
  • Veterans add stability to workforce

11
Issues for Employers
  • Hiring Discrimination Can I ask the question?
  • How much is too much training and how do I find
    out?
  • What really counts as adequate notification of
    duty?
  • Its costing me too much to train temporary
    employees while my employee is gone and there are
    training costs when the employee returns.
  • What job qualifies as a reemployment position?
  • Do I have to permit spouses or others leave as a
    result of the service members active duty?
  • If an employee is injured and undergoing
    rehabilitation, what are my responsibilities?
  • What about Governor call-ups?

12
A Military Leave Reference Guide
  • Quick USERRA References
  • The Non-Technical Guide to USERRA
  • http//www.dol.gov/vets/programs/userra/Right_Act4
    _2005.pdf
  • DOL Rules to Accompany USERRA
  • http//www.dol.gov/vets/regs/fedreg/final/20050239
    61.pdf
  • ROA Website
  • www.roa.org/site/PageServer?pagenamelaw_review_in
    dex
  • ESGR Website
  • http//www.esgr.org/userrathelaw.asp?p101
  • Texas Law
  • http//tlo2.tlc.state.tx.us/statutes/gv.toc.htm
    (Section 431)
  • FMLA Updates
  • http//www.dol.gov/whd/fmla/2010ndaa.htm

13
Federal and Texas Law
  • Texas Law Mirrors USERRA
  • Texas Military Forces include the Army National
    Guard, Air National Guard and Texas State Guard.
  • Other Reserve Component Members (i.e. Army
    Reserve, Air Force Reserve, Coast Guard Reserve,
    Marine Corp Reserve, and Navy Reserve) are
    protected under Texas Law as well as USERRA.
  • Members of other state militias called by proper
    authority that work in Texas are also covered by
    provisions of Texas Law .
  • Employee can seek redress by Dept of Labor under
    USERRA and by private attorney under Texas
    Statute.

14
State Activations
  • Theres Title 10 and Title 32 duty
  • Title 10 is federal active duty all branches
  • Title 32 is federal active duty for training
    commanded by State Governors only the Army and
    Air National Guard
  • And then there is State Duty
  • Duty under a Governors call (See Section 431 of
    Texas Government Code).
  • In Texas same job protections apply to State Call
    as to Federal activation under Titles 10 or 32.
  • Members of Texas State Guard also are protected
    under state law.
  • Even members of another states militia are
    protected in Texas.

15
Discrimination
  • More employers are asking about Guard and Reserve
    membership during hiring interviews.
  • Not a prohibited practice
  • However, if the reservist isnt hired, and seeks
    assistance, from DOL the investigator will likely
    review company recent hiring practices to
    determine if there is a hiring bias against G R
    members.
  • Supervisor training is recommended regarding
    comments to candidates during interviews,
  • Promotions practices
  • Military membership cannot prevent promotion

16
Case Reviews
  • Discrimination
  • Hiring - McLain v. City of Somerville.
  • Harrasment - Wallace v. City of San Diego, 479
    F.3d 616 (9th Cir. 2007).
  • Reemployment Position -Patton v. Target Corp

17
How Much is Too Much?
  • Ground component training levels have increased,
    deployment policies have been revised, but the
    unit readiness levels are adjusted to determine
    where the unit is in the five year cycle.
  • More MUTA (Fri-Sat-Sun) drills
  • Longer summer training or training at other
    times of year.
  • Some components have shorter but more frequent
    deployments (ANG and AFR).
  • If a pattern of too much training is of
    concern, contact the unit commander to discuss.
    ESGR can facilitate that process.

18
What Constitutes Adequate Notification?
  • Adequate employer notification isnt defined.
    However, most training is planned well in
    advance.
  • Notification can be written OR verbal. Orders
    are not published for Inactive Duty Training
    (weekend training and other like training), but
    schedules/letters can ususally be provided.
  • Patience is a virtue. The employee may not be
    able to produce the proper documentation
    immediately. Again, if a problem, ESGR can
    assist.
  • Orders are published for active duty, but are
    sometimes late to need. If a pattern of abuse is
    noted, ESGR can help by working with the unit.
  • Lastly, if the late notification creates a
    hardship, the unit may be able to reschedule.
    Note Formal skill training classes sometimes
    create a problem.

19
The Reemployment Position
  • What is a position of like pay, status, and
    seniority?
  • Pay should reflect any seniority based increases
  • Seniority clock didnt stop while the employee
    was gone.
  • Status is the tricky one. Status can apply to
    the employees shift, the location of the
    position, the number of subordinates, the level
    of complexity of the job, and the promotion
    potential of the position.
  • What if all like positions are now gone
    (contracted out, shipped offshore, or just
    eliminated) ?
  • What if the person currently working in the job
    is doing a great job, perhaps better than the SM?

20
The Wounded Warrior
  • The US Government is responsible for treating
    injuries that occur in the line of duty.
  • Getting the information you need is sometimes
    difficult for the employee and employer
  • Service members may continue rehabilitation with
    VA after being released from duty
  • Should employee not be able to perform previous
    duties, employer is required to attempt to place
    in other position.
  • Return to work times extended when employee
    injured

21
FMLA and USERRA
  • In 2008 and 2009 Congress amended FMLA to address
    issues of service members and their families
    relating to activations and deployments that take
    the service member away from home.
  • 2008 amendments primarily addressed National
    Guard and Reserve members and families
  • 2009 amendments broadened the eligibility to
    include active duty members, their families and
    injured veterans
  • A significant difference between USERRA and FMLA
    is which employers are affected by each law and
    qualification criteria for employee eligibility.
  • Neither law requires leave to be paid leave.

22
Who is eligible
  • Employers must have 50 or more employees within
    75 miles of the employers location USERRA has
    no such limitation
  • Employees must qualify
  • 1250 hours in the twelve month period prior to
    the requested leave.
  • Must have worked with that employer for 12 months
  • Two types of leave
  • Exigency
  • Caregiver

23
Exigency Leave
  • Any qualified employee with a son, daughter,
    spouse or parent called to covered active duty
    in support of contingency operations may request
    exigency leave.
  • Short Notice Deployments
  • Military Events and Related Activities
  • Childcare and School Activities
  • Financial and Legal Arrangements
  • Counseling
  • Other which employer agrees

24
Care Giver Leave
  • 26 workweeks of leave to care for a covered
    servicemember with a serious injury or illness
    during a "single 12-month period.
  • Who is eligible?
  • Eligible employee who are the spouse, son,
    daughter, or parent, or next of kin of a covered
    service member.
  • Note Covered service members are defined as a
    current member of the Armed Forces, including a
    member of the National Guard or Reserves, or a
    member of the Armed Forces, the National Guard or
    Reserves who is on the temporary disability
    retired list, who has a serious injury or illness
    incurred in the line of duty on active duty for
    which he or she is undergoing medical treatment,
    recuperation, or therapy or otherwise in
    outpatient status or otherwise on the temporary
    disability retired list.

25
Some Key Points on FMLA
  • Recently expanded to include eligible kin of
    active duty members.
  • Veterans having incurred injury or illness within
    five years during contingency operations.
  • Very specific forms and posters available on line
    from DOL.
  • The DOL Website has not yet been fully updated on
    the 2009 changes
  • Rules are being worked but not yet published.

26
Need More FMLA Info?
  • Since the FMLA information is relatively new DOL
    has yet to publish rules regarding the most
    recent change to the Act.
  • Should you have questions in the interim,
    recommend you contact the Dept of Labor Wage and
    Hour Division. The websites below are
    extensively detailed and can be of assistance
  • http//www.dol.gov/whd/fmla/
  • http//www.dol.gov/whd/fmla/2010ndaa.htm

27
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28
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29
Awards Program
30
ESGR Your Questions?
  • Texas ESGR Offices - www.txesgr.net
  • Austin 512-782-5829
  • Fort Worth 817-386-7326
  • Houston 281-929-2601
  • National ESGR www.esgr.mil
  • ESGR Call Center 800-336-4590

31
WE ALL SERVE
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