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

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

04/19/23 www.esgr.mil 1

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


State-level (Field Committee) USERRA inquiries report (phone calls, email, or during outreach activities, etc)

1. DISAGREEMENTBetween 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

2a. Online Complaint Form 1002b. Directly to FC Ombudsman

3A. QUESTION ANSWEREDInformation only inquiry

3B. Ombudsman AssignedNormally based on Employer location

FC Primary/Secondary POCFC Selects the Ombudsman

(share the work)

4. OMBUDSMAN ACTIONPossible Outcomes:

- Resolution by Ombudsman- Not resolved: provide

options to file w/DOL(VETS) – private attorney

Document resolution & Close

OR

Ombudsman Process Overview

National Case ManagersRegionally aligned

Track casesAssist Ombudsmen

Work Termination Cases

FY09 Customer Service Center Activity Chart


3,132ICE Customer Surveys

Sent8%

1,947VoicemailRetrieved

5%

11,937Emails

Sent and Recvd32%

2,429 Outgoing Calls

7%

17,660Incoming Calls

48%

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

Contacts by typeFY10 to date


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



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


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



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

as of April 1st, 2010 www.esgr.mil 12

Director, Ombudsman ServicesMr. Curtis Bell

Deputy Director, Ombudsman ServicesLTC Ronald Schwickerath

Case Management Customer Service Center

National Case Manager, WestCPT Debra Randall

National Case Manager, NortheastMr. Ronney Lloyd

National Case Manager, CentralMr. Joel Samaroo

CSC AgentVacant

CSC AgentMr. David Freeman

CSC AgentMs. Tara Stewart

CSC AgentMr. Marcelino Sanchez

GS Employees

Military personnel

Part Time support

OmbudsmanSubcommittee

National Case Manager, SoutheastMs. Alicia Queen

500+ Volunteer Ombudsmen

(actively participate)

IMA Reservist (USAFR). Maj Eric Davis

NE

MN

IA

WI

IL IN

MI

KS MO

TX

OK

ND

SD

OHME

NH

VT

NY

PA

MA

CT

DC

NJ

WV

RI

MD

DE

NM

WA

OR

CA

ID

MT

NVUT

AZ

AK

HI

WY

CO

GUVI

KYNC

TNSC

GA

FL

ALMS

AR

LA

PR

VA

NORTH EASTMr. Ronney Lloyd

[email protected](x 513)

WESTCPT Debra Randall


CENTRALMr. Joel Samaroo


Note: States in Red font handle their own Termination/Lay-off cases. States in black font = NCM’s working such cases.

As of: 12Aprr2010

SOUTHEASTMrs. Alicia Queen


Europe

ESGR National Case Managers

• 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

• 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

Customer Svc Center Agent

National Case Mgr


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


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%

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)


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)


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


04/19/23 www.esgr.mil 2004/19/23 www.esgr.mil 20

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

www.esgr.mil04/19/23 www.esgr.mil 21

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

Myth or Fact?

• I am eligible for re-employment after one-year of military service. The re-employment 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)



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

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)



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

www.esgr.mil

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


Myth or Fact

• DOL VETS has the authority to order an employer’s full compliance with USERRA

MYTH (20 CFR § 1002.290)


www.esgr.mil

Assistance and EnforcementFormal Options

• US Dept of Labor VETS

• Dept of Justice or US Special Counsel

• Private counsel


We All Serve

Documents

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