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
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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
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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
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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)
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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
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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
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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)
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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
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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)
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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
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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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