Myth or Fact?
• Only trained ESGR Ombudsman are authorized to respond to requests for information on USERRA. All questions on USERRA should be referred to the Ombudsman shop. MYTH
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State and local level ESGR members • Fulltime staff – Answer calls, emails and other inquiries about ESGR and USERRA
• Outreach and committee volunteers – Outreach generates new inquiries about ESGR and USERRA
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State-level (Field Committee) USERRA inquiries report (phone calls, email, or during outreach activities, etc)
Ombudsman Process Overview 1. DISAGREEMENT Between Employee & Employer
2. SOMEBODY CALLS/EMAILS CSC: Our “Gateway to ESGR” at 1-800-336-4590
[email protected] - Is it USERRA? - Is an Ombudsman Needed? -Open/Assign Case
4. OMBUDSMAN ACTION Possible Outcomes: - Resolution by Ombudsman - Not resolved: provide options to file w/DOL(VETS) – private attorney Document resolution & Close
2a. Online Complaint Form 100 2b. Directly to FC Ombudsman 3A. QUESTION ANSWERED Information only inquiry
OR
3B. Ombudsman Assigned Normally based on Employer location FC Primary/Secondary POC FC Selects the Ombudsman (share the work)
National Case Managers Regionally aligned Track cases Assist Ombudsmen Work Termination Cases
FY09 Customer Service Center Activity Chart
1,947 Voicemail Retrieved 5%
3,132 ICE Customer Surveys Sent 8%
17,660 Incoming Calls 48%
11,937 Emails Sent and Recvd 32% 2,429 Outgoing Calls 7%
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FY09 Customer Service Center Activity TOTAL ACTIVITY (By Month) Incoming Calls
Outgoing Calls
Emails
Voicemail
ICE Sent
Grand Total
Oct 2008
1,279
227
627
213
0
2,346
Nov 2008
1,451
188
643
152
0
2,434
Dec 2008
1,730
270
1,108
146
18
3,272
Jan 2009
1,181
266
1,033
244
311
3,035
Feb 2009
1,169
192
839
122
255
2,577
Mar 2009
1,796
250
1,378
163
331
3,918
Apr 2009
1,211
178
977
129
262
2,757
May 2009
1,289
161
870
123
261
2,704
Jun 2009
2,048
169
1,096
183
366
3,862
Jul 2009
1,715
187
1,275
202
440
3,819
Aug 2009
1,691
186
1,148
142
491
3,658
Sep 2009
1,100
155
943
128
397
2,723
Totals
17,660
2,429
11,937
1,947
3,132
37,105
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Contacts by type FY10 to date
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Myth or Fact?
• Ombudsmen serve as agents for the service member whenever there is an employment dispute between the member and their civilian employer related to military service. MYTH
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Ombudsman Services • Ombudsmen are specially trained volunteers and national staff members • Ombudsmen are neutrals who assist civilian employers and service members resolve disputes related to military duty • An Ombudsman’s goal is to help the parties reach an agreement that meets the tenets of USERRA 4/13/2015
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Ombudsman • “Tier 1” Customer Support – Mediation • Provide confidential and neutral assistance to help resolve employment disputes related to military service
• Ensure database is updated to reflect the status of current assigned cases • Will clearly identify themselves as working on behalf of DoD and not use their position in ESGR for private gain or to guide service-members and employers to use the services of others 4/13/2015
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National Case Manager (NCM) • “Tier 2” Customer Support • Support Field Committee Ombudsman Directors and Ombudsmen in assigned region. Monitor case loads and assist Ombudsmen with case resolution • Track assigned cases – Ensure follow-up within timelines (2-day; 7 day and 14 day rules) – Coordinate case assignment/reassignment
• Weekly reports / Conduct Quality Control regarding case notes • Subject Matter Experts on USERRA • Directly work hundreds of cases annually. Work termination cases for their region 4/13/2015
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Director, Ombudsman Services Mr. Curtis Bell
Ombudsman Subcommittee
GS Employees Deputy Director, Ombudsman Services LTC Ronald Schwickerath
Case Management
National Case Manager, West CPT Debra Randall
National Case Manager, Northeast Mr. Ronney Lloyd
Military personnel Part Time support
Customer Service Center
500+ Volunteer Ombudsmen (actively participate)
National Case Manager, Southeast Ms. Alicia Queen
CSC Agent Vacant
CSC Agent Mr. David Freeman
CSC Agent Ms. Tara Stewart
National Case Manager, Central Mr. Joel Samaroo
CSC Agent Mr. Marcelino Sanchez IMA Reservist (USAFR) . Maj Eric Davis
as of April 1st, 2010
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ESGR National Case Managers CENTRAL
As of: 12Aprr2010
Mr. Joel Samaroo
[email protected] (x 527)
NORTH EAST
ND
Mr. Ronney Lloyd
[email protected] (x 513)
MN WEST
WI
SD
CPT Debra Randall
[email protected] (x 522)
MI
NE
IL KS
NH
MO
NY PA
MT TX
ID
WV
WY NV
UT
CA
AZ
GU
MA RI
NJ CT DE
MD DC VA
CO
KY NC
TN
AR
NM
LA
AK
Europe
ME
IN
OK
WA OR
VT
IA
SC MS
AL
GA
SOUTHEAST
HI
Mrs. Alicia Queen
[email protected] (x 552)
FL
PR VI
Note: States in Red font handle their own Termination/Lay-off cases. States in black font = NCM’s working such cases.
Customer Svc Center Agent • Field inquiries via website, phone, email, chat, blogs / forums and other medium • Provide responses to USERRA inquiries • Open cases for Servicemembers who want an ombudsman to mediate • Assign cases to volunteers or national-level ombuds • Record in database: who, what, where, when, why, & how ref inquiries and their responses as well as preliminary intake info on cases
National Case Mgr • Work as National-level ombudsman directly mediating hundreds of termination cases on behalf of several States • Manage, mentor, teach, and track compliance of volunteer ombuds compliance in about 14 States; i.e. adhere to policy, timeliness, accuracy, etc. • Quality assurance oversight of data entry into database ref inquiries and case information • Subject matter experts on USERRA • Instructors for various courses
Director/Deputy Director • Manage the Ombudsman Services Program • Operate a training program to maintain qualified Ombudsmen • Notify FC Chairs and Ombudsman Directors when deemed appropriate about case management and Ombudsman performance • Assist in answering inquiries from Congress, the Government Accountability Office (GAO), the Department of Labor (DOL), the Office of the Secretary of Defense (OSD), the Office of Special Counsel (OSC), and other outside agencies
• Oversee database of inquires and cases – ensure quality, neutrality and confidentiality of mediation case notes
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Strategic Plan New Goal: Sustain the average time to mediate USERRA Cases not to exceed 14 business days. – – – – – –
FY09 Cases Mediated in 14 Days or less = 87.8% FY08 Cases Mediated in 14 Days or less = 63.0% FY07 Cases Mediated in 14 Days or less = 49.5% FY06 Cases Mediated in 14 Days or less = 40.7% FY05 Cases Mediated in 14 Days or less = 35.6% FY04 Cases Mediated in 14 Days or less = 40.1%
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US Dept of Labor USERRA Case Statistics •
•
•
•
2006 Data – DOL investigated 1265; referred 81 to DOJ, 11 to OSC – DOJ court cases for 4, OSC for 1 (3 other cases settled prior to filing) – OSC investigated 126; closed 91, settled 35 (under Demo Project) 2007 Data – DOL investigated 1226; referred 59 to DOJ, 4 to OSC – DOJ court cases for 6, OSC for 1 – OSC investigated 123; closed 80, settled 43 (under Demo Project) 2008 Data – DOL investigated 1389; referred 100 to DOJ, 15 to OSC – DOJ court cases for 11, OSC for 1 (2 other cases settled prior to filing) – OSC investigated 139; closed 113, settled 26 (under Demo Project) 2009 Data – DOL statistics for 2009 not published; referred 41 to OSC – DOJ court cases for 22, OSC none (4 cases settled prior to filing) 4/13/2015
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Myth or Fact?
• So long as I meet all of the eligibility criteria under USERRA, I am entitled to prompt re-employment with my pre-service employer; even if I agree to voluntarily resign before I leave for service FACT (20 CFR § 1002.88)
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Myth or Fact?
• So long as I meet all of the eligibility criteria under USERRA, my employer is always required to give me my old job back when I return. If my service was for a period of 181 days or more, the law says I cannot be terminated for any reason for a period of up to 1 year. MYTH 4/13/2015
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Affirmative Defense • Employer not required to reemploy if employer’s changed circumstances make it impossible or unreasonable • 20 CFR § 1002.139
• Employer not required to re-employ if assisting the employee in becoming qualified would impose an unreasonable / undue hardship • Very narrow affirmative defense for which employer has burden of proof 4/13/2015
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Prompt Reinstatement
• If absent for fewer than 31 days – next day following safe travel and 8 hours rest
• If absent for greater than 31 days – “Prompt” reinstatement • 20 CFR § 1002.181
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Myth or Fact?
• I am eligible for re-employment after oneyear of military service. The reemployment position with the highest priority under the law is the same job I left with all the seniority, status and pay I would have if I had been continuously employed MYTH (The Escalator Position has highest priority) 4/13/2015
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Re-employment Position
• Does the employer need to give the returning service member their very same job back? – Not always.
• Options: – Escalator position – Pre-service position, or – Position of like seniority, status and pay • 20 CFR § 1002.191 – 1002.199 4/13/2015
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Myth or Fact
• I must be qualified to perform the essential functions of the job. If I am not qualified and cannot become qualified after reasonable efforts by my employer, my employer does not have to re-employ me in that position. FACT (20 CFR § 1002.198) 4/13/2015
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Training
• Employer must make reasonable efforts to qualify returning service member – Entitled to training would have received • 38 USC 4314(a) • 20 CFR §1002.198
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Reasonable Accommodations for Disabled Veterans • Employer is obligated to make reasonable efforts to accommodate disability • If cannot qualify, employee must be reemployed in position: – Equivalent in seniority, status and pay – Nearest approx to the equivalent position – May be higher or lower than escalator position • 38 USC 4313 (a) (3) • 20 CFR § 1002.225 4/13/2015
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Myth or Fact
• DOL VETS has the authority to order an employer’s full compliance with USERRA MYTH (20 CFR § 1002.290)
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Assistance and Enforcement Formal Options • US Dept of Labor VETS • Dept of Justice or US Special Counsel • Private counsel
www.esgr.mil
We All Serve
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