law society referral service

welcome toour plr's forum on userra, the rest of the story. today's forum will be webcast as we have many of our viewersparticipating by webcast at facilitiesaround the country. my name is george demarsh i'm stepping infor tom wachter, the acting deputyassociate director of partnershipand labor relations here at opm,

to provide your opening remarks. question: are youin the correct forum? did you notice that onseveral titles on your handouts, one is titled,"userra the rest of the story" and one is titled "userra iv"? well, both are correct. you're at the correct forum,so not to worry. you're in the correct forum because the "userra iv" refers

to our sequentialordering system. we have hadthree previous presentations on userraover the last several years covering different aspectsof userra. and this forumis our latest installment. now, to today's presentation, we are lucky to havethe original userra cast here presenting, and we will heara documentation requirements

under userra of the departingand returning employees for military service. we will hear aboutthe five-year rule, what counts as service,merit-based promotions and the enforcementmechanisms of userra. we're pleasedto have with us the original castof userra presenters, dr. scott wilander,

a senior human resourcesspecialist in employee services, agency and veteran's support, veteran serviceshere at opm. dr. wilander presents throughoutthe federal government on the uniformedservices employment and reemployment rights act, otherwise known as userra. we havecourtney wheeler, esquire, an attorney withthe u.s. postal service,

practicing in the areasof labor and employment law. mr. wheeleris a frequent lecturer on various laborand employment law topics including userra. he has lecturedat law schools, state bar programs,various cle seminars and training programsconducted by opm. mr. wheeler receivedhis llm degrees in labor and employee--

excuse me. in labor and internationalcomparative law from georgetown. william kenan torrans, presently servesas program manager for userra with a veterans employmentand training service vets of the department of labor. mr. torrans has spokenwidely on userra before a number of organizations to includethe american bar association,

the us chamber of commerce, the society of professionalbenefits administrators and the u.s. armyadvocate general school to name a few. mr. torrans received his jd from the university of baltimoreschool of law. i'd like to go backand mention that mr. wilanderreceived his doctorate in higher education from novasouth eastern university.

so those areour presenters today. please refer to your agenda as we will havea short break at 2:30 and we will reconvene at 2:45. we will be taking questionsfrom our audience. we have two aisle mics,please wait for a microphone before you directyour question at our panel. for our webcast audience you can submit questionsvia our website

at plr@opm.gov. and please feel free to do soduring the presentation. and we will try to answer, the panel will try to answerthose questions as time allows. so without further ado,i would like to, uh, present our first speakerdr. scott wilander here at opm. thank, you george. it's an honor and a pleasureto be here today with you. and thank you very muchfor your posts, comments,

what you have provided us backas feedback in the surveys and fielding questionsback through george and his officeon your concerns and issues and what you want to see in the wayof userra presentations. what we look to do todayis to provide you with the informationthat you are looking for to further answeror amplify those questions that you have

on what does documentation mean,for example. we've already taken a lookat the speakers' list and it is indeed an honorto be sitting here with kenan and courtneyas fellow speakers for they bring with thema wealth of information and experienceto share with you. the documentation is, uh-- it's not absolutely definedas to what documentation is when we start talkingabout benefits

and obligations and rights. and it's reallyan elastic tool if you will. we have the statute, uh, title 38,united states code, chapter 43. we have the regulationsin title five, code of federal regulationspart 353. and what we hope to buildin this connection of lookingat what the individuals who are covered by userraand what the agency is doing,

there's an understandingof what we need as an agency when the individual comes backor returns from uniform service to help him or her be entitled to all those entitlementsthat they are, along the linesof the escalator principle. one of the notificationof rights that i'm goingto address first, and then i'm gonna turnto the slides is in title five,code of federal regulations

353.104. and this is one ofthe most common questions that i have received since our lastuserra presentation, is when do i notify anindividual of his or her rights? when an agency separates, grants a leave of absence, restores or failsto restore an employee because of uniform serviceor compensable injury,

it shall notify the employeeof his or her rights, obligations and benefits relatingto government employment. so when the individual leaves, he or she is informedof what their entitlements rights benefits are. and they have an understandingon what they need to do while they're absentand when they return. prior to departure,

the individual must notifyeither verbally or written to the agency that he or she is departingfrom military service. and we advocate thatthey try and do this as soon as possibleand as early as they can, so you're awareof when they're going, you can make other obligations or other commitmentsof individuals to take a look at the workthat needs to be performed

in his or her absence. however, there's nostandard format in how this can be applied. userra doesn't havea mandate that says, "this is the particular typeof written documentation," nor can an agency say, "this is the onlywritten documentation i'm gonna havethat you're gonna use." that individualcan notify you verbally

and/or and in written format. what we want to ensureprior to their departure is that when they are absent, they know that they are entitledin meeting a certain criteria to paid military leave. and the agency, in doing so, will ensure thatthey have documentation. and that documentationsupports the type of leave that he or she is claimingfor this military leave.

additionally, when we lookat the differential pay element, this entitlement, agenciescan request documentation and they should requestthat documentation for the individual to providea leave and earning statement. if i'm lookingat paying you a differential and that differential isif i'm earning more in my civilian positionthat i am when i'm in the military. there's no differential.

i'm not gonna be paidfor the difference between the two. it's when i'm receiving less that the agencywill provide compensation with a differential pay. and there's particularcriteria and requirements that must be metin order for that individual to claim that entitlement. what we're looking at here iswhen that individual is absent

and you asked forthat paperwork in the event that you wantto pay the differential pay, he or she is requiredto provide that documentation. if they don't,then you're under no obligation to provide debt paymentuntil they're return, and then it couldbe retroactive. what you're ensuringto getting that documentation is that he or sheis entitled to the pay or that benefitthat they're requesting.

the employee departs. and during that departure,the individual lets you know that he or she is gonna be gonefor 30 days, while 30 days turnsinto six months and six months turninto a year or two years. the employee is not obligatedto provide you documentation showing that he or sheis changed from possibly state duty. they move to a title 10,

they movedto a different type of order. however, when they doreturn to the agency, and the userra protectionhas become vested, the individual is requiredto provide you documentation of all that period of absence to show youhow they were called up, when they were called up, and to identify that timethat is crediting towards a five-year limit,

which courtney will becovering here shortly. now when we lookat the documentation for paid military leaveand differential pay, in their absence,it can be requested. i bring this out in respectthat some of the agency or some of your counterpartshave come in and said, "well, the individual went away and he wasn't entitledto a differential pay because of he was makingmore as a civilian

and now he's in military, and there's a been a changein his or her rank. and now there's a difference or they've changed undera different types of orders. how can we getthat documentation?" well, it helps byinforming the individual before his or her departure that these are your rightsbenefits and obligations, and if you wantthe military leave,

and if you wantthe differential pay, you're gonna to provide usthis documentation. and if there areany questions, this is how you cancommunicate with us in your absence, and you want to payparticular attention to informingthe individual on those, again, rights, benefits,and obligations. that while you're absent,

there are variousmechanisms in place that we're going to ensure thatwe retain a position for you within the agency. that you will be entitledand we will consider you for all advantage of employmentthat you would have received had you been here. and this is whatwe're going to do and you work with the individualin that respect. when the individualreturns to the agency--

at times, that individualwon't have the documentation for any number of reasons. we bring the employeeback into the agency, we identify the positionthat he or she would have had had they not left. we put that positionor put the individual under that position and when the documentationis provided. we make it clearto the individual

that we are going to ensurethat your rights, benefits and obligationsare protected and you do receivewhat you're supposed to receive, no more no less. at the same time, the paperworkthat you're gonna provide us is a presumptionof honorable service. so that when you do come back and you don't havethat documentation, and we do get it,

and it is other thanhonorable service or under any other categoryunder the honorable conditions, then you may be terminatedfrom employment. what we want to dois take a look at what has been the agency'spolicy and practice, and we want to takea look and say, "what have we done previously to individualsin like situations?" for that, it may very wellset a precedent

on how you're going to do itin the future. as we discussedin our previous presentations when we took a lookat the benefits of employment on the rights, benefits and all the different categoriesthat fall into play. one of the areas that wasreally the most challenging and thought provoking was, "well, we knowthe policy said this, but we did this, and thishas been our practice."

that practice becomesprecedent setting for how you're gonna resolveor how you're gonna work with individuals in the future. what i'd like to do nowis move right in to the five-year periodor the five-year rule. and our distinguishedguest courtney is gonna be coming up hereto the podium to explain and go over thisin more detail. thank you very much.

good afternoon. i'm gonna be talking to you allabout the five-year rule. i'm also gonna be talking to youabout merit-based promotions. scott, kenan and ihave paid close attention to the comments,questions and requests that have come in overthe past several seminars is to the areas thatare concerning you the most. two of the questions that-- two of the issuesthat continually come

to the forefront, one the applicationof the five-year rule, how it applies,when it applies, and how you can manageunder the five-year rule, and that can be a verydifficult issue at times, at the very least,a very frustrating one. the other one is what do you doabout merit-based promotions? the whole focusof the government today is, of course, merit-basedrather than seniority

or time based-promotions, assignments and advancements. so how do you have-- how can you operate under thatwhen you have employees, who are absentfor extended periods of time or who are intermittentlyabsent frequently during the year, which makes it more difficultto assess our capabilities and skill setwith respect to assigning

and to new assignment,new jobs or promoting themto higher grades. let's first talkabout the five-year rule, it's a rule of thumbwith the five-year rule. forget aboutthe five-year rule. there is no such animalas the five-year rule. you will find itwritten in the book, it says,"there are five years." all the managersthat come to you will say,

"but in the bookit says five years? and in the userra trainingthat we see, it says five years." now the first reactionyou're supposed to have is you start laughing. the second reaction you haveas a human resource person is hold out your arm and say, "the first two inchesof my forefinger is the five-year rule.

everything from that pointto my shoulder, are the exceptionsto the five-year rule. and therefore,as you can see, the five-year rulereally doesn't exist. okay, let's go over some basicson the five-year rule, and then we're goingto start dealing with some of the practicalapplications of it. first of all,notwithstanding my levity, userra does saya person can be gone

for cumulative periodof five years. what does that mean? that means from the daythey enter employment with a particular agency, not the fed gov, generally,but a particular agency, until the time they eitherleave that agency through retirement,separation, or get a job somewhere else. they can be gonea maximum of five years

to perform military service that's covered byuserra, okay? for those folks--for people who have employees who are bothin the national guard and perform both state dutyas well as federal duty either under title 32or title 10, the state dutyunder state law does not countagainst the five years. that's covered under separatepolicies entirely,

that's gonna be governedby your leave of absence, by your lwop policiesin the agency. that is not covered by userra. in some states,now most states don't put people on extended periodsof pure state military duty. there are some exceptions. we have people listingfrom the state of new york or in that generalnew york area. you may knowthat in new york,

they have peoplewho are performing state military dutyextensively for a variety of purposes. okay. second rule withthe nonexistent five-year rule is that there aremany exceptions to the five-year rule, okay? number three,pre-imposed service periods are not countedagainst your absence.

as you may rememberin userra, if a person is goingon a military duty, they're entitled to takea leave of absence without pay, an lwop, straight lwop, not lwop us or as the postal servicecalls it lwop military. prior to their departure, if they need it to, one,get ready for military service or two, take careof family matters

before they entermilitary service because they're gonna begone for a while. those periods can berelatively short in a matter of few daysor they could range as much as several weeksto a month or perhaps more depending on the lengthof service that the person's gonna be on. and whether or not,for example, they're gonna goon a company somewhere.

okay, the pre-imposedservice period do not count againstthe five years. so what you're reallytalking about even if a person wentfor a straight five years, you're talking about someonewho could be very easily gone five years, one month, five years,four or five months if you countthe 90-day window on the backsideof the five years.

so that's your firstmajor exception to absence from work 'cause all your managerscare about is how long are theygonna be gone? now what's calledin between, how long are they gonna beout of my office. when you are lookingat the five-year rule, there are many exceptionsin the statute in 20 cfr, which breaks them outinto a more readable form.

you will see all the listedperiods of service or types of servicethat are not counted against the five-year rule. i've lumped them together, and what i consider to bea relatively usable format for the lay managers, so they can at least understandwhat they're looking at. the first isinitial obligated service. this is a very easy one.

in the military, you enlist. at least, the enlisted peopleenlist, certainly new officers, get their commissionsfor periods, for initial periodof three years and beyond. if you are required bydod regulations to enlist for a periodin excess of five years, in order to qualifyfor a certain specialty, then the period beyondthe five years does not count againstunited excess--

you're not overthe five-year limit when you take it. a good example, nuclearpropulsion in the navy aviation. certainty of aviation fields. they require a person to enlistfor a period of six years. it takes two or three yearsto train them and then they wantsome utilization time out of it, so they make it six years. so if a person joins the navy,

goes into the submarine field and goes intonuclear propulsion, they must enlistfor six years of active duty. once they do that, that extra year over five,doesn't count. and if theyget out of the end of six, they come back. that extra yearis accepted. they get returnedto civilian employment

just as if they've onlybeen gone five years. that's a solo stand alone. the next one is training. training is often misunderstood because people seemto think that everything, userra excusesall types of training. that is 90% trueand 10% incorrect, all right? training under userrais broken into two categories, okay?

the first categoryis spelled out in the statute. it's 10 usc 1147and 30 usc 502 (a). generally, that is going tocover your inactive duty drills, your annual training or active duty for training,your annual training and periods of time. those two weeks in the summerand your weekend drills, bottom line for most of that. that is always excludedfrom the five-year limit.

now people thinktwo weeks in the summer. folks, two weeks in the summeris not what it is anymore. under dod regulations, annual trainingcan be up to 30 days and with secretarial approval,it can go beyond that. for example, in '06 and '07if i remember correctly. or '07 and '08,in the air force for the air national guard. they extended annual trainingtour is as much as 90 days

during a fiscal year. so when you're lookingat annual training, don't count on just two weeks, it can be three weeks,four weeks, it can be longer than thatwith special authority. all right,the second type of training and the one which is the partthat's misunderstood, userra providesthat other required training as certifiedas necessary by the secretary,

which that meansby military regulations, is excluded fromthe five-year computation. now what does that mean? in legal mumbo jumbo,that means that if something is declared byone of the services to be an absolute requirementfor a person's skills set to go into a certain fieldor to maintain competency in the fieldthat is excluded. what is excluded?

any voluntary trainingthat the person takes that isn't requiredspecifically for their field or by their servicefor them to take. there's a lot of training,especially reservist training, which is notspecifically required that they're not required to do. ah, everybody's ears perks up. well, how do i tellthe difference? okay, the short answer isyou almost, you can't.

dod doesn't have a magic listthat you can go to that says,"if you are in the seals, this is what is required. if you're on an armorin the army, and if you take anythingoutside of this, it's not required." it doesn't--no such list exists. what's the ruleof thumb on this? if it says that the personis going to training

or to a school, the good rule of thumbis you accept it from the five-yearcomputation, okay? somebody will say,"but it may not be accepted?" it may not,but unless you can prove that it's not accepted, you're better off countingthat it's accepted from the five-year rule. all right, the third major areais extended voluntary service.

under userra,the secretaries or the president or congress can directa certain period or certain typesof military service be excluded fromthe five-year computation. those are generally down,for example, iraqi freedom, noble eagle,enduring freedom, the different missionsin bosnia, and some of the post gulf war imissions over iraq, gulf i, etcetera,were all excluded

because those fell undereither presidential or secretarial discretionas periods of time or types of servicethat are excluded. is there a list of those? there is a general listthat dod keeps, okay? the list is very long and, frankly, it contains a largenumber of small operations or missions which most peoplehave never heard off. so if there's a questionyou need, you contact dod,

what you do is you call overto the employee committee for the supportof the guard and reserve, that's the office of theassistant secretary of defense, and they can check the listor get someone, put you in touch with someoneto check the list to determine if a particularmission is excluded. now in today's timeframe,you're not gonna be worried about that too muchbecause almost everybody's under enduring freedom

or iraqi freedom, you know, not so much noble eagle anymore,that's pretty much passÉ. okay, but you still havea lot of other missions, you've got bright starwhich is in the sinai, which has been going on. you know since i wason active duty back in the '70s or it's a follow-on on itas a mission. you've got missions in bosnia that are still excluded fromthe five-year rule, etcetera.

so if you-- in troops in nationalguard and reserve units are still being sent to those. so if you havesomething like that, you need to checkbefore you decide someone's overthe five-year limit, okay? an additional exclusionthat's looking for voluntary service whichyou will not find in userra. it's not writteninto the statute,

but it was added underthe regulatory authority of the department of labor when they issuedthe userra regulations in 2005. and that's continuedmilitary service to mitigate a harmwhen an employer refuses to reemploy someonewho is entitled to reemployment after they come offmilitary service. so if john comes backto the agency and the agency sends him awayand doesn't put him back to work

and he's got a family to feed, so he goes back and he signs upfor another year of duty, that time is not gonna count. why? if he was improperlydenied reemployment, continued service, to mitigate the damages, no income fromthe refusal to reemploy will be excludedfrom the five-year rule.

does this happen?yes, it does. it doesn't generally happenin the major offices, where it happensis where you have part time or seasonal employeesin a lot of agencies who come and go. and they come backand they're denied reemployment because they don't needanybody right now. why? because they filled his jobwhile he was gone. so the person goes backon active duty

instead of, you know,while he's trying to solve a problem. and most of the military units,especially, in the guard will put people backon active duty to ensure that they, in fact,have income for their family if their employerhasn't properly reemployed them. all right. now, and then, of course, we have the issueof involuntary service.

involuntary service statutes are specificallyset out in the regulation. you've got the 32503. you've got 12302under title 10 are the major onesthat are being used, okay? those are the oneswhere people are compelled to come on to active duty. all right, they don'thave any choice. they didn't put their hand upand say, "i want to go."

anytime you have servicethat is involuntary, it is always goingto be excluded nothing in userra makesa voluntary service count toward a five-year rule. those are the basicsfor the five-year rule count. all right, hold on a second. what i want to turn to nowis how do you apply all these rulesin practical terms. and you see on the screensomething called

"career versusnon-career service." i want you to keep thatin the back of your mind as we talk throughsome of the issues of applyingthe five-year rule. because what dowe actually see? many of the agenciesi get, you know, call me with questionsconcerning the length of time someone's been gone. i've got peoplethat have been gone five, six,

seven, eight,nine, ten years. i will tell you,there are people who have been gone10 years or more, and today, don't' havefive countable years. why? because they've beenable to get one, two, and sometimes, you know,one and two year orders covered underone of the exceptions. and in many cases,the majority, and in some cases,all of those orders

are voluntary. and the agencies is going, "well, what do i do?it says it's accepted. do i have to keep them, do i--can i fill their job? how do i deal with this?" because that isa burden on an employer whether it's your private sectoror a federal sector, you know, employer. that is a major burden.

okay, let's look at the issue of career versusnon-career service. you don't find this talkedabout directly in userra. okay, and you won't find itdirectly addressed in dol's regulations or for that matter, in opm's userra regulationsin 5 cfr. however, the matterhas been addressed by the federal circuitcourt of appeals

in cases dealingwith federal agencies, then we would applyin the private sector. what the courts have saidis that userra is intended to protectnon-career military service." congress went, if you read the legislative historyof userra. congress also says,this statute is intended to protect non-career as opposedto career military service."

and that has been the purposeof all such statute since 1940, when the initial statute, the universal trainingand service act was initiatedto protect people who were called into military service. the fed circuit has saidthat when an employee converts, when their servicein the military service effectively convertsfrom non-career military service

to career, they're no longer protectedby userra, which means, what? it means, they no longerhave reemployment rights under the statute. it doesn't mean the employercan't reemploy them, but the employers no longerobligated to reemploy them. first, major casecame out around 2000, a case called woodman v. opm.

short version,national guardsman, stayed on active dutyfor 14 years, came back,he got a regular retirement. he came back appliedfor his old job back, he was a mil tech. was turned down,came to opm. opm said, "have a nice day."you're career, not vers-- you're non-careerwent to the fed circuit. the federal circuit said,

"all right, first,we have to define what's non-careerand what's career." they looked to dodfor dod regulations as to what constitutesnon-career service. we're gonna talkabout that in a minute to determine thatthis individual, that woodman, even though, he did nothave five years that were accountableunder userra, he nevertheless had convertedto a career military service

as evidence by the fact that he gota regular military retirement and said he did nothave an employment-- he did not havereemployment rights. i will tell you thata number of cases have gone to administrative judgesover at mspb over the last several months. i know two of them,where the serviceman and the agency employee,

earned a regularmilitary retirement. in one case, the individualserved exactly five years. that's all he needed. he needed five moreactive duty years to get a 20-year retirement. retired on the last dayof his 5th year and got a regularmilitary retirement, reapplied for his mil tech job, was turned down.

you know, file is suitedat mspb saying, "i'm entitled to reemployment." and the judge told him, "sorry, you are not non-career, you are a careermilitary person. you've got a regularmilitary retirement." the person thoughtabout it for a while and eventually withdrewhis case, dismissed his case. just recently, the other dayin another situation,

a person was gone for six years,a little over six years. of that time,two and a half or so, did not count againstthe five-year rule. in fact, he went over five yearson a period of time, they did not accountfor the five-year rule. when he came offthat involuntary period of active duty, he had 300and some odd days to go to get a regular20-year retirement. he volunteered to stayfor the extra 333 days,

obtained a regularmilitary retirement and then appliedfor reemployment. the judge looked at himand said, "here's woodman, you're in careermilitary service, you're not entitled. do you want to continue withthis case knowing the result?" he decided to dismisshis case with prejudice. you are going to startto see cases like this come up.

and some cases are gonna goforward, so if you're-- as a human resourceor labor relations specialist or as an attorney,you're looking at these, one of the first thingsyou want to look at for a person who's been gonefor an excessive period of time is whether or notthey're service has been convertedfrom non-career to career. what happens if you don't geta regular military retirement, can it still be converted?

there's a case law out there. in fact, that's relatedto userra dealing with time counting towardfederal pensions, which indicatesthe answer is yes. even though, you don't geta regular military retirement, if you in effect are notperforming services consistently with dod's regulationsdefining non-career service, you may be determined to bein a career-performance mode. there are a number of thingsthat the courts will look at

to determine that. one is how many timesyou volunteered to come back on active duty? if you volunteer repeatedlyyear after year, after year, and you make statements thatyou like doing military things better than you likedoing agency things, the courts are likely to find that you arein a career-status mode if you've been gonefor an extended period of time.

okay. is there absoluteblack letter law on each and every oneof these? no, we're in a developing areaof the law right now on this because this is the first timewhen people passed userra, nobody envisioned thatyou were going to have 9/11, and 10 years of reserving guardbeing called up with the frequencythat you have now. and so in the last two years, you're just now beginningto see people,

who had 10, 12, 13, 14 yearsof active duty, prior to comingin to the federal government who had the opportunity to goback on to military service and stay to geta regular military retirement, and then try to comebackto federal civilian employment. so when you're lookingat career versus non-career service, you're going to haveto very carefully analyze this, do not make a decision withouttalking to your law department.

you're an hr in lr,don't punt, okay? also, as a caveat,when a person applies, if they are in oneof these situations, don't put them back to workat their job while you sort it out. you have timeunder the regulations to sort it outbefore you put them back. once you restoresomebody to duty, they're restored.

you've done it. 'cause userra doesn't saythat you can't reemploy someone who doesn't have eligibility. it says that you may not. so if you choose to do it,you got to. then they're back to beinga regular employee. what happens if you restoresomeone to employment who does not haveuserra protections? people say, "well, you're justput back to work."

it's not that simple. every federal agencyhas friendly unions. the unions, they have collectivebargaining agreements, so collectivebargaining agreements have benefits, they set upyour office protocols, etcetera, based upon what,seniority, longevity, right? there's going to bean interpretation as to whether or nota person who's been gone, who is not entitledto reemployment

is entitled to have all thoseyears counted towards seniority if the agency did not haveto reemploy them. and they're gonna lookat other things such as what happens if a personis gone on a regular lwop from more than two years,they're gone, right? and if they come back,they would start over with new seniority. these are all issueswhich are undecided at in the labor relations arena

that are gonna be,will be dealt with if you restore someonevoluntarily who is, otherwise, not entitledto restoration under userra. i deal with this not onlyin the federal government. i deal with thissimilar situations in the private sector, which goes to an issuethat scott alluded to during his presentation. if you have a practice,the practice becomes the rule.

userra's one of thoseunique statute that says, "not only must you follow allthe rules that you have, you're stuck withthe practices that you have even if those practicesare contrary to your established regulation." so if you have--if your practice is to pick and choose as to who getsto come back, if they're overthe five years in userra, i guarantee you,that by the time it's finished

through litigation, everybody's gonna getto come back. 'cause you're notgonna be able to pick john and not take suzie. i hope there are no suziesout there. okay, so those are rulesthat you have to deal with. let's look a little bitas to what dod defines non-career services, okay? first of all, non-career serviceincludes a period of service

in the active servicein the uniform service required to complete initial uniformservice obligation, okay? that's your first enlistment. that's not your second,third or anything else. whether for three years,four years, five years, six years, whatever you did,,that's non-career service. now let me just spella myth right up front. non-career serviceand career service

do not equate to reserve serviceand regular service. you can perform regularcomponent military service and still be non-careerwithin the meaning of userra. by the same token,you can be a reservist and perform careermilitary service and get the same retirements that a person inthe regular component will get. so don't confusereserve and regular component with the ideathat they are synonymous

to non-career and career. second ruleunder the dod regs, active duty or full-timenational guard duty-- same thing, basically. that is for a specifiedpurpose and duration with no expressor implied commitment for continued active duty. they're talking abouta set of orders to active duty that has a specific purposefor a specific time.

where does this createa problem? if you look, for example, you may be familiarwith the term agr, active guard and reserve, in the navythe call them tars. in the air force, if you'rein the air force reserve, you're an agr in the air force, you will get ordersin three year increments. okay, specific period.

if you're in the armyand you're an agr, your first set of orderswill be for three years. your second set of orders,generally not always, but generally,will be stamped "indefinite" because they expectthat you will plan to stay on to hit20 active years. now does that mean immediatelyupon receiving those orders that you arein a career-status mode? certainly, one couldmake that argument,

i don't think that'snecessarily the case. okay, you'd have to see beyondwhat happens beyond that. if the person had three years,stayed two and got off or resigned at that pointand came back, i think that's gonna benon-career. they look at the factson the ground to determine whether or not the personactually converted service. but alreadyyou can see the confusion when you start tryingto determine

when that person makesthe change from non-career to a career status mode. continuewith dod's guidelines, participationin a reserve component as a member of the ready reserveperforming annual training, active duty for training, or inactive duty training. bottom line is anybodyis gonna have excluded time for training purposes.

that's all evidence.that's all non-career service. no evidence of career status. continuous or repeatedactive uniform service or full-time national guard duty that results in eligibilityfor a regular retirement from the armed forces is not considerednon-career service. put it in a different way,take out the bureaucracies. if you geta regular retirement,

that's per secareer service. okay? if you read the case law,what you will find is that you don't actually have to-- you may not have to getto a regular retirement to get career status. they're individualswho serve a total of 15 years, seven of whichwhile they were with an agency, who never gota regular retirement

for a variety of reasons. they chose to leave,and the court still said sorry. given the repeatedvoluntary set of orders that you kept gettingyear after year, after year, you put your paw up and said,"i want to serve another year." that's evidence of career intentor career status. and they deniedreemployment to them. so this is an areathat's developing in the law and you're gonna see itdevelop a lot more

over the nexttwo to three years because more and moreof the folks who have been gone for extended periodsare going to be returning. so as you can seefrom the five-year rule, it's not a simple five years. and number two,when you're dealing with people, who've been gonefor exceedingly long periods of time, often continuously,

they may not be protected. notwithstandinghow it would at first seen if in fact you readthe regulations and say, okay, this isautomatically accepted. this is why, this is oneof the most frequently requested topicsfor people to talk on because it is confusing. it is continually developing. we're gonna starton merit-based promotions

and assignments,you know, at this point. we're gonna take a breakin about another 15 minutes. and we'll finish up, you know, the rest of thisafter the break. merit-based promotionsand assignments is as confusing to managers as the five-year rule isbecause in most things, especially infederal employment, you know,public sector employment,

people look for certaintyand absolutes. what is the rule,how do you apply it? i applied it,okay, i expect result x. and even where you factorin things such as merit pay, merit promotion, etcetera, the managers often lookfor some degree of finality or expectation of process when things are being handledwell in personnel matters. when a person leave to goon military duty,

all that goes out the door, at least fornon-seniority-based position. 'cause that's whatwe're really talking about, equate merit-basedto non-seniority-based. if you have peoplewho are getting promotions based on timeor length of service, that's easy enough. you know,they're gone three years, you're in the three years,

they would have beenin the 11, 12, 13 slot. they left us in 11,they're coming back as a 13. as longas satisfactory performance during that period of time, would result in promotionto the next grade. managers wince at that,but that is the bottom line for seniority-based promotions. merit based, however,is where managers can choose, it's all competitive.

and, of course,the questions is, well, how do knowthat john or mary would have been pickedfor the job? they we're gone,they didn't compete. even if they had competed, how do we know thatthey would have gotten the job? since we don't knowif they don't get the job. well, that's nice,but that's not what the law is. under userra regardlessof whether a promotion

or an assignmentis based on seniority, length of time, or whether it's basedcompetitively on merit or other speciallyevaluated factors, a person is on dutyhas an equal opportunity to apply for the joband get the job. and if they would havegotten the job, but for their absenceon military service, they get the job.

now i'm gonna give youa caveat at the end of this, dealing with what to doin that situation. but they're gonna get the job,what does that mean? and some will saythis is an extreme example. i would tell you,it's not. i've had four phone callsin the last seven months with this very problem. employee went away. he was ina competitive-type field.

he went away. he was gonefor three and a half years. when he came back,he looked back and said, "here are two jobsthat would have opened up, had i been here,it'd opened up, i would have applied for them and i would have gottenthose jobs." well that happened in year onewhile he was gone, and at the beginningof year two.

we're not two yearsdown the road from that. someone's been in the job. in fact, one of themhad one person in. they ultimatelyput another person in. could he be entitled to oneor both of those jobs? the answer is yes. even though, it's not basedon seniority, okay? just for a second. first thingyou want to remember

when you're dealingwith seniority or non-seniority basedor merit-based position is the escalator rulealways applies. just what i pointed out, it's always universalin userra. the second thingyou want to remember is that agenciesare compelled by regulation 5 cfr 353.106 to consider employeeswho are away on military duty

for all promotionalopportunities during their periodof military service. that's a wonderful regulation. you're lookingfor subpart b, c, d, e and f that tell you exactlyhow to do that. people who wrote thatforgot to put that in. it's not there. ultimately, it is going to beleft up to each agency to figure out how they're goingto consider people

who are awayon military duty for promotional or assignmentopportunities. and in the regulation,it talks about promotion. read that as promotionalor assignment, folks, 'cause that's the wayit's gonna be applied while someone's gone. i've come upwith some considerations and some dos and don't dosthat maybe of assistance to you in trying to navigatethat minefield.

okay, we've already pointed outthat the regulations provide no guidancefor doing it. rule number one, accommodate and be flexiblein how you handle request for considerationwhile people are gone. all right, what do you do? number one, establishpredeparture procedures, where employees can eithersubmit early request for consideration for jobs thatmake them open in the future

or leave a list of jobsthey would be interested in if something happenswhile they were gone. there is one case at mspb thatnever reached final decision that deals with this issue. employee went away,went on military service, came back. he said, "i would haveapplied for job x. the agency said,"you didn't fill out the predeparture information,so we didn't consider you.

you lose." the aj said to the employee,"sorry, you lose." went to mspb,mspb looked and said, "the agency hasn't establishedthat the employee who denied knowing anythingabout these rules, actually considered, you know-- he knew enough to applybefore he left. he sent it back to the ajand to the agency and the plaintifffor further adjudication.

the case never got back to mspb, the case got settledby the parties, so we don't know what mspbultimately would have done in that fact-- pattern. but that goes back to the issueof being flexible and airing on the sideof the employee. userra and allof its predecessors statute as interpretedby the supreme court, and this is gonna flow downto the regulations

both as 20 cfr for the privateand public state sector as well as 5 cfrfor the federal government is going to fall down. and it says that theinterpretations of the statute are to be interpreted liberally in favorof the service member. so the agency is going to havesome formal procedure that one explains how to dowhat it needs to have done before somebody leaves.

and two, that is actuallydisseminated to employees before they leave. remember, scott talkedabout the issue of what do you doabout notifying people about their rightsand obligations before they leave? this is one of the things thatyou need to notify them about. they have a right to apply for and be considered for jobswhile they are gone.

okay, secondly,alternate testing locations. this is a big issue. it's a big issuein the private sector. it's a big issuein the federal sector. there are many jobsthat require the employee to have taken and pass certaintypes of examinations. and that's true whetheryou're going to go into a-- you're shootingfor an executive spot or you have to takecertain tests

or you're shootingfor a special skill slot that requires youto pass certain examinations. when a person is abroad, it's very difficultto give those examinations. in the federal government, because you have an obligation to consider peoplewhile they're gone, it follows that you alsohave an obligation to try and makethose examinations available

if possible during the time the personis on military duty. and you'll find thatmany agencies do that by usingthe military education service. in most military bases,even bases in iraq, and bases in afghanistan, they run your schools, and so forth, that soldiersin their off time can attend. they will do testing.

you know for jobs, etcetera. if you set it upand work with them, i know my agency doesthat regularly. and so many of the examinationsthat would normally be given and proctored eitherby the agency or by one of your contractorscan be done abroad. if your agency choosesnot to do that, it's quite likelythey're gonna be found not to have compliedwith the 5 cfr 106 provision.

okay, what about interviews? everybody wants to interviewsomebody in person. well, that's not possible if you're on a mountain topin afghanistan. can you do phone interviews? yes. is it have to bean in-person interview? no. you can do it by phone. you may even be ableto do it by web,

by e-mail, if you simply sendthe questions back and forth, and maybe a littleby webcam, etcetera. do agencies do that? yes, they do. so if you havemanagers that say, "well, that person's not herefor the interview and i want to interview themin person." that's probably notgonna fly under 106.

you have to be reasonableand accommodate their military service. trying to explain to a judge that i didn't wantto do an interview that could have been set up. you'll be at the telephone and i couldn't actually see himanswer the questions or her answer the questions isn't gonna pass muster,

because you've got to makea reasonable effort to consider the person fairlyfor promotion, okay? special instructionsto review committees, reviewing applicationsor to selecting officials. this is somethingthat's often overlooked. when they're consideringan applicant who is on active duty, who has not had the same amountof time or opportunity or may not havethe same ability

because of the lack of,you know, information that would have been presentin a civilian job to actually fill outall the application forms, put everything in or collectall as facts to turn in. you need to givespecial instructions to either the review committeeor the selecting authority not to ding the individual or not to downgradethe individual simply becausetheir military duty

prevented themfrom dotting every "i" or crossing every "t"in their application. now that doesn't mean that you'll have to tell themto ignore the fact, they may not have certainskill sets or abilities. those are still crucial and the person hasto have those to get the promotionor assignment. but the mere fact thathe may not have filled out

all the paper work or mayhave only been able to answer abbreviated questionsin and of itself is not gonna bea sufficient basis for saying that you did notselect the individual. some employees believethat they are entitled to an exact replicaof the selection process that occurredwhile they were gone. i just told you what to doabout people who apply or not consideredwhile they're gone.

that does not mean thatwhen john or suzie comes back, they can't look and say, "well, that job opened up,i would've applied for it. i would have gotten the job." or this processis still ongoing for the selectioni want to be considered. in many cases,they will say, "well, here's exactlyhow you considered the individualswhile i was gone.

i want to be consideredin exactly the same manner." this is the developingarea of the law. and there is nothingin the fed circuit that deals with it. how there have been casesin other circuits most recentlyone out of the seven circuits, it's called sandoval v.versus city of chicago. and what it saidin that case was that the employees in essence

is entitledto a fair consideration that coveredall the main elements to give them equalopportunity. but you may not haveto actually touch every base exactly the same wayto give the same opportunity. that's consistent witha supreme court decision out of 1959, in whichthe supreme court says, "that not everything thathappens while you're on mili--

you know, that happenin the workplace while you're on military duty, can be replicated for youwhen you return or that you're entitledto have it replicated. what they're looking for, especially when you're dealingwith assignments and promotions is, "do you havethe same opportunity or equivalent opportunityto obtain the promotion after you return?"

now, does that meanthat they have to reconvene the selection board? no. that happenedwhile you were gone. what it means isthat when you return, you as the employee, are going to have to establish that you wouldhave been selected, had you actuallybeen considered at the time. okay, you don't geta board just for yourself,

you get-- the statute saysthat you have to show that you wouldhave been selected, okay? now what happensif there were certain tests that you had to takeor benchmarks that you had to do as part of the process? you're entitledto have those test or benchmarks administered, so you can, in fact, show thatyou would have been selected. but that doesn't meanthat you get an interview,

you know, a year, or two yearsor three years later with the selecting official. what you're really doingis saying, "here are the qualifications of the selected person. here are the criteriathat was applied, had i been here,i would have been selected because my qualificationsand experience are so far superiorto the person who is selected.

there really isn't any questionthat i would have been selected. if it's 50-50,the employee doesn't get it. the employee has to showthat he or she would have been the personwho was selected okay? all right, now let's goforward from that. what happens if you're dealingwith an employee-- well, it's almost 2:30. why don't we break here,take our break? you know, at this point george.

and then i'll come backand i'll start to talk a little bit about,what do you do if you have an employee who is promotedor would have been promoted while they're gone? but is still gonna be outfor a year, two years, four, five yearsdown the road, okay? you know at the break, we're gonna talk aboutwhat to do when people are selected

while they areon military duty, okay? the first part of thisis gonna be determined on how your agency wantsto handle their promotions. let me talk aboutwhat userra requires. userra says that a person underthe escalator rule of userra that the personis entitled to the job that they would have heldhad they never left, all right? when are they entitled to that?

they're not entitledunder the userra to that job while they're gone. they're entitled to itafter they return and qualify for reemployment. what do we mean by qualify? that means, they come backand meet all the touchstones, you know, for reemployment. they obviously leftfor military service, their military servicewas honorable,

they weren't gone for morethan five non-accepted years, they had a qualifying discharge from the military service,etcetera, they comeback, they appliedin a timely fashion and they return to work. now they're qualifiedat that point in time, they're entitledto what they would have had, had they never left. prior to that point, they're notentitled to it, okay?

does that meanan agency or an employer cannot give the personthe promotion or place themin the assignment the answer to that is no. userra doesn't prohibitthe employer from doing more than what the law requires. it simply doesn'trequire the employer to do certain thingsuntil the person is returned. so, can the agency decidethan john has been, uh,

has been promoted to gs-14? yes, that's fine. can they make that promotion at the point thathe qualifies for reemployment? yes, with a caveatthat it will be retroactive to the date that he wouldhave been promoted, had he been there. but they don't actuallyhave to cut the 50 and give it to himuntil he actually is qualified

along with that comessome other issues, too, because if he's been gettingpaid military leave, etcetera, while he's gone,you won't have to go back and, you know,have some supplemental pays and so forth. some agencies chooseto do it that way. that does solvesome interesting problems because if a persondoesn't qualify for reemploymentwhen they return,

they haven't been promotedor assigned to a new job in the interim, which means they leavethe agency at a higher level. other agencieswill elect to promote or assign the personto the position they do a pretty numberof reasons. for assignments, they do it,so they can vacate, you know, the position that he's leavingis being vacated. that could be filledwith somebody new, etcetera.

for the promotions,they just think it's fair and the right thing to do,so they do it. in that particular case, the person will bepromoted and assigned while they're on active duty. when they return,they already have the position to which they're entitled, okay? now, there are some issuesthat come around to this, as they come up with this,

and there are issuesthat are just beginning to surface with employers with people being gonefor extended times. let's go backto the basic rules of userra about what job do you return to when you come backfrom military duty. if you come back and you've beengone 90 days or less, you're alwaysgoing to be entitled to your escalator position,

that's the positionyou would have had, had you never left. in many cases,that is the position that you occupiedwhen you left. not one like it,not one close to it, it is the positionthat you occupied when you left if you would nothave been promoted or reassigned in the interim or demoted becauseyou can actually go down,

be downgradedwhile you're on military duty. okay, now if you're gone91 days or more, the same rule appliesexcept that the employer has the optionof putting you in a position that is equivalentin seniority status and pay to the one thatyou were entitled to or would have became entitled towhile you were gone. what does that mean for you in applying rulesfor promotions?

it means, in simple fact, that if a personis entitled to be promoted to a particular job, let's call it job x, whether the employer actually, the agency actuallyputs john in the job or defers putting him in the jobuntil he returns retroactive to the date thathe would have been put in, if you're gone 91 days or more,

the agency also hasthe opportunity to do, what? assign youto an equivalent position which means,equivalent with respect to seniority status and pay. have i seen agenciesdo this yet? no, most agencies don't do that. they're gonna put you in the jobthat you would have had. could an agency do that? yes. because userra doesn't sayif you're going 91 days or more,

you get that exact job. you get that jobor one that's an equivalent. so you could actually applyfor job x and end up in job y. the only argument thatthe employee would have, that they don't wantto go to job y, is that job y is notof the same status. forget about pay 'cause the payis gonna be the same. forget about seniority,time is gonna be the same. the only issue is status.

is the job, is job yof the same status as job x? the question oftencomes to me, "well, i need to fillthis particular job. john was selected for it,can i fill it?" the answer to that is, is john gonefor more than 91 days? if he's gonefor 91 or more days, then, okay. if you fill it,you're gonna have to find

an equivalent jobfor john. do you have such jobs? if the hr manageror the manager tells me no, this is a one of a kind job, then the answer isyou're probably not gonna have an equivalent joband you're gonna have to take the person you put in to the jobwhile he was gone out of it and put john in it. so now you have someone elsethat got promoted into it

because john was gonefor three years and now you got to dosomething with him or her. so in that case,you're better off backfilling the jobfor the three years or two years or however long john has goneuntil john comes back. if it's a fungible job,and that's what i call a job that has manyjobs just like it, you know,roughly equivalent status, then, okay,john may not get the job

on the seventh floorof the building. he might get an equivalent jobon the sixth floor. and as look as it meets the testof seniority status and pay, john can complain,but he can't prevail. when an employee comes back and you put the personin an equivalent job, who decides whatthe equivalent job is? the employer.in this case, the agency. the agency just hasto be able to show

that it is of the sameseniority status and pay. that's it. it's not a discussion betweenthe employer and the employee as to whether or nothe would go to the job or he wants to go to the job. it's not the sameas a directive reassignment because under userra, you get to put himwhere you want him or her as the case maybe.

so, that's an issuethat often comes up with people, who have been gonea long time, especially, if they wouldhave been promoted what does this mean? this means if john comes backand he can establish that he would have gottena particular job and it's evident thatthat would have occurred. and frankly, folks,i have seen cases like that. it's not far-fetched.

i've seen caseswhere it's very clear, john would have gotten the job. you can say, fine,you would have gotten the job, but here's an equivalentwhen this is where you'll be placed as longas he's gone over 91 days. now let's talk for a momentabout what do you consider, one of the thingsthat you consider when a person comes backand they say to you, "i would have gotten this job

if only i have hadthe opportunity to work on the detailand work in the job on detail before it was filled." or "if i had been here,i would have been sent to some supplemental training and that would have betterqualified me for the job." unfortunately, manyemployees/service members believe that they're entitledto every possible opportunity that could have cometheir way,

but for the fact thatthey were on military service. that is not true,they are not. the supreme courtand the subordinate courts had made it clear that while you wereentitled to those things that you would have had, you are not necessarilyentitled to things that are speculative or possibilities thatonly would have occurred

at a specific point in time. let me give you an example. this is a case. it's abouta year and half old now. it's called lita versusthe department of the army. it came out of mspb. the employee, i believe,was in a job at gs-12 or gs-13 position, went on military duty.

while she was on military duty,the job was abolished. and it was replaced with,i think, is a 13 or 14, one grade up, add some additionalresponsibilities. while she was gone,a person, another individual, was detailed intothat particular position, which was basically her positionwith some pluses to it. after a while,when they posted the position, the employee who havebeen detailed in to it

temporarily assigned there was awarded the positionand the promotion. then lita comes back goes,"it ain't fair, it ain't fair, i was on military duty,i would have gotten the job." she was certainlywell qualified. she was very goodat the job she held, there was no problems there. there was nothingto disqualify her. employee said, "but, you know,here are these other things.

this other individualactually did this work on detail while you were gone. proved she can do it,so we picked her because she had a better, more demonstrativequalifications." lita goes,"not fair, ain't fair, i was away on military duty. you have to assumethat i would've been able to do just as well

'cause i always did wellin the past, so you have to give meimputed credit for being able to dothe same type of work." court came down and go,"no, no such thing as imputed credit in userrafor this particular purpose." you weren't there. there's nothing that saysthat you will get everything that could have happenedwhile you were gone. you know, there was no rule

that said you wouldhave gotten the job. lita comes back and says,"no, no, wait a minute. there was a practicealmost invariably. the person who was in the job,if the job got abolished, they got to work in that job,you know, in the new job." and that gave him an advantageto getting the job. court came back and said,"sorry about that." supreme court has spoken, this is not something thatyou were necessarily entitled to

as a matter of yourmilitary service, etcetera. therefore,you don't get the job. be happy with the job,whatever job that they gave you. and sent her away. that's an important case. a lot of agencies overlook it because that meansthat in certain cases, when you're filling jobs, just because johnor mary have been gone

for three or four years. and therefore, you don't havea track record to judge them, and you got a track record from people who've been therethe whole time, and you can evaluatethat performance. you don't have to give extracredit to mary and impute this. she would've done just as wellbecause she wasn't there. and you can legitimatelypick someone who's actually done the work,performed the job,

while the person'son military duty without fear that the personis going to have a valid userra claimwhen they came back. simply because they weren'table to do that work because oftheir military service. okay, when you're dealingwith those cases, go straightto your counsel's office, point them to litabecause that is the case, which agencies should useliberally, you know,

and train their managerson using liberally. so they understandhow to evaluate people and with that, i think,i'll turn it over to kenan torrans,who's gonna explain to you the deep and dark secretsof enforcements of the userra. that's right.many thanks, court. many thanks, court. we know we've gotunder the time, a little bitof time pressure here,

but good afternoon. and i'm kenan torrans, i am chief of investigationsdol vets, and we run the userra program. we interpret the law. we promulgatedregulations on it. now, a lot of the focusof userra now has come about through 4335. that's the most recent amendmentto the userra statute.

congress is lookingvery hard at userra with what's going on with it. they are lookingat a special aid to the federal sector. the media is paying particularattention to it right now. all the lessons that courtand scott have talked about, all the issues that they've--these come up every day, especially,in the escalator context. now any time since 9/11,

interest has reallyexploded in this. now, just by show of hands,those of you in the audience, how many of youhave participated or attended, watchedthe prior webinar series? show of hands. there are a coupleof few of you. a few of you, very good. i'm gonna assumeit's about roughly commensurate with the folksout there on the webinar.

well, it's a good thingthat you are listening to it. now the 4335 training,this is not it, all right? but this will give youa more in depth view of certain issuesthat have arisen. the ones that we've takenfrom questions and everything else. understand thatthe congress and media, they're lookingat this very hard. just recently,there was an article,

a big article on "cnn," and also inthe "washington times," the front page,around in early july, just on userra talkingabout different aspects of it. and you don't want your agenciesto be in a jackpot. you don't want your bossesto be standing in front of this houseor senate veteran's affairs explaining why someof egregious situation happened, that the media picked up onand that you were, uh,

and that it's notaddressed properly. but just to give youa sense of some numbers, since 9/11, we have respondedto over 700,000 requests for technical assistance and just given briefingsto people about that number. and that's rough. but in any given year, we have between 12 and 1,500cases annually in userra,

about that many. now, think of itas a funneling effect. the national committee for employers supportof guard and reserve, esgr, if we get say 1,300 in a year, they may have 5,000. all right,so it's a funneling effect. and of those, fewer thana few hundred will actually go forward to eitherthe department of justice

or special counselfor additional consideration. and fewer of those,actually make it to litigation. but just to give youa sense of a breakdown of the cases that we handled, about 20% arein the federal sector, roughly 20%. and of the aggregate, abouta third are found to have merit. in other words, the evidence isfound to support the allegations that have been raised,at of which time will go to vet

and we'll try to work withthe claimant and the employer to try to resolve the issue. about a third are foundthe evidence has not shown to support the allegations. and the remaining third, the evidence just as not, or the individualis just not eligible. either the complaintis not actually userra issue. there's not a, uh--

the claim is not eligible. the period of serviceis just not there. maybe a bad discharge,disqualifying discharge, any of those things can happen. but what we can do? um, let's see here. are we, uh-- let me see, i can't see the-- okay, let's see the escalators--

there we go.enforcement, very good. i should've--my apologies. outreach and educationis really key because i think most, uh, all employers are stilloverwhelmingly supportive of the guard and reserve,of our service members. likewise, and especially,the federal government is to be a model employer. and congress is quitedetermined to make sure

that we are a model employers. most of-- in my ownpersonal experience, and i thinkthat throughout vets, disputes that ariseunder userra come from a misunderstandingof the law. it's usually poorcommunication, all right? what i would strongly encourageis that everyone establish points of contact, things likea merit promotions,

things like that,they get addressed. i can tell you frompersonal experience. one of my favorite anecdotescame about was a federallaw enforcement agency that did not havepromotion policy in place to consider absentee employees. special agent wenton active duty to afghanistan was gone for a couple of years. while she was gone, an asaic,

assistant special agent-in-charge positioned open up. the agency competed it,filled it. when she came back,she said, "wait a minute, if i've been here,i would have competed for that." and she was right. if you looked at her record, compare her personnel jacketto the incumbent, they were, uh-- she was a rock star.she would have made it.

she would have been selectedfor that position and they didn't havea promotion policy in place. the solution was to take thatincumbent out of that position, put her into it, okay? and that does wondersfor morale. everyone loves that result,don't you know. and it's so easyto implement, too. fortunately,in that situation, the agency was actually ableto lateral the incumbent

into another asaic position and put her into whereshe would have been. but you see, education. had those hr folks been awareof what their obligations were and had they maintainedopen channels of communication? that could have been avoided. that situation neverwould have happen. so that's oneof the reason is key. a lot of times,these things just result

from a lack of awareness,lack of understanding. so hopefully,you'll be able to take some of these lessonshome with you. now, we've got memorandumof understanding with esgr, which i told you about, they are a componentof the guard and reserve. court is actuallya chief on ombudsman. what's your positionthere, court? (courtney) ombudsman director.

ombudsman director,yes, indeed. and we've got mou of esgr withthe justice department and with also special counsel. we work very closelywith all of them. we have a userra e-laws advisorthat's on our website. write this down. www.dol.gov/vets v-e-t-s. i'll say it again,www.dol.gov/vets.

and then you goon the compliance page and the menu onthe left-hand side of the page, go down to compliance,you'll see userra. click that,go to the e-laws advisor. good stuff there, all right? next thing, i'll point you to are the final regulationsthat we promulgated in january, they became effective,in january '06. now we've talkedabout this before.

those of you shouldn't beany surprise. there it is. that appliesto the non-federal sector. however, however, there are about90% of what's in here does apply, actually applyto the federal. it's relevantto the federal sector. and this is probablythe single best tutorial on userra that'sout there for anyone.

the hard copy you get-- just download the pdfthat's on the userra page. the regs are writtenin question and answer format in plain english. in fact, when we didthe final rule, the only peopleto object to that we're the trial lawyers. they didn't like the questions, the plain english partof it, i think.

but at the, uh--i am a recovering lawyer, so i can jokeabout that a little bit. but the first half of this pdfis actually preamble which explainswhy the department of labor interprets the lawthe way we do and we are taskedwith interpreting it. but bear in mind also, that there area lot of provisions in the federal partin the 5 cfr that go beyond

what the non-federal sectordoes. for example, the non-rifwhile on active duty, opm placement assistanceand so forth. they do. the feds do offerinitial protections and you do need to beaware of that. we now have electronic completeforms that are out there. individuals can file a complaintonline with our office. we have senior investigators.

there are more thansix of them now nationwide. we are getting a few more. these are individuals that havehad a lot of experience in investigations, a very proficient in the law and other nationaloffice resource. if you have questions, if you have somethingthat arises. call us, pick up the phone.

we're just an e-mailor a telephone call away. our direct dial phone number,in case you need it, 202-693-4731. i'll say it again,202-693-4731. direct e-mail, torrans, i spell t-o-r-r-a-n-s dot william,w-i-l-l-i-a-m @dol.gov. have a question, ask.

any substanceor part of the law. if we don't have-- we're at been in very closecollaboration with scott and court. if you need--if i don't have the answer or they don't have an answer, a lot of times, we'll just say, we'll havea three-way phone conference and we'll resolve that issue.

and also with our solicitorsat labor, okay? also, the userra rights poster is something that everyone,federal, private sectors, public sector, federal sectorrequired to have. it's just likea wage and hour notice, people can post it upin the break rooms, you may have seenthose in there. section 4334 of userrarequires that. not to have itas a separate violation.

and i can suggest to you that there have been cases that osc is enforcedand gotten settlements in where the agencycould not show that they providedrights and obligation, notice of rightsand obligations under the lawto their employee. and although, that individualmay have otherwise not been eligible for benefitsof userra coverage.

and that case,it was negated. and so please do. it's on our website,it's free for downloading. please take a look at it. again, www.dol.gov/vets. enforcement, yes. we have investigatorsin all states. we've got about120 of them nationwide and that number goes up and downfrom time to time.

most cases that we haveare resolved without litigation. most of them are. it's a lot of times, if we get the caseor if esgr does, we could educate the employerabout their obligations, what's right,what our investigation finds. and then, we're done. a lot of times, a simpletechnical assistance request can resolve an issue.

an individual calls me, an employee explainsthe situation, we'll have a conversationeither on the telephone or by e-mail, and then i explainwhat's going on. if he or she can takethat information back to the employer. not a problem. sometimes an e-mail is better,sometimes i'll send an email.

but that's the best wayto resolve things at the lowest levelpossible, okay? if that fails,then we can launch a full-scale investigation. we don't contactthe employer absent that. we do not contact the employerabsent assigned complaint form because of the privacy act. of course, the employercan always contact us and sometimes that happens.

an individual callswith an issue, and they ask, "well, can you tellmy boss that?" "happy toif your boss calls me." and sometimes they will. so again, if you havethese issues, call. it will all saveeverybody a lot of pain. now if we cannotresolve an issue regardless of whether or notthe claim is found to have merit or non-merit,

cases of the claimanthas the absolute right to refer, have request their casebe referred to special counsel for the federal sector. non-federal people go to doj,department of justice. but osc will take a dayat looking those things. that's the userra complaint, userra issues or userra casesor investigations are complaint driven.

now how many folks herein the audience, show of hands, have been a party toor have awareness of or familiar with the ig process if an ig does an investigation? most of you, most of you. and i suspect that's the case. this is quitethe same thing, all right? we have, uh--when we get a case,

we'll open itwithin five business days and we will handle itjust like the ig would. we interview witnesses, we will obtainall relevant documents and we will-- there will bea proper federal investigation. but the way it differsfrom a criminal or an ig investigation, if the claimant says, "i'm done,i don't want to do it anymore." then we're done,

it's over. and they can take iton their own through private counsel or they can try and resolvethe issue on their own. but if they tell usto stop, it stops. now we can getthese complaints. it could come to usfrom a variety of sources. they can evolve out of a technical assistance request.

if there's justan intractable issue that we cannot resolveourselves, we'll give it to-- we mayjust have to file a complaint. it could come to usas a referral from esgr, esgr will suggestthe individual file with us. if they can't resolvethe issue, that's fine, that happens. or they canjust come to us directly by filing a complaint form.

it could come any way. all right, and again, we don't talk to an employerabsent a signed 1010 the three business days. once we get that case, three business days,we open an investigation. and again, that is justone thing to be aware of. we have subpoena power, okay? i have actually hadone federal agency

who wasn't too savvyabout the whole process, didn't know who we were,didn't know what the law was, and they refusedto provide any information. and we came this closeto doing a subpoena on them. don't be that agency. we have never had to issuea federal subpoena to a federal agency before. now we do it quite oftenin the private sector, the non-federal sector,even to state local governments.

but you don't want to bethe first agency to get the subpoena. please, please, please. when you getan investigation request or you get noticeof an investigation, please respond to it, okay? bear in mind thatwe also have an updated list, maintained an updated list with the chief humancapital officers

for every agency. as when we get a complaintagainst that agency, it goes-- they get a copy of it. they get a copy alongwith the hr person responsible. so thus, headquarterswill be aware of it. and if we have a problemgetting a response, it all rolls downhill. and sometimesin our experience, if we have problemswith a particular agency,

a lot of times they'll ariseout of the lower level, a lower level manageror supervisor may not be aware of whattheir obligations are, we'll make sure they know. we will make sure of that. but to the investigationitself-- let's see. am i, uh-- yup, there we go.

my apologies, i can't reallysee the slides there. we are neutral.vets is neutral. we are switzerland,all right? until that investigationis complete, we are neitheradvocates for the law nor the service member. we are switzerland. and the law isto be read liberally it is the most servicemember-friendly law

on the books today,all right? but we're neutral on that. if we find merit,if we find a merit to the case, we're gonna try and resolve itin the claimants favor if and given what heor she is entitled to, not anything beyond that,however, all right. so and we'll do it througha negotiation process. but regardless of whetherwe find merit or non-merit, and we can't--let's say we find merit,

we cannot resolve itwith the agency which is fairly unusual, the claimant still has the rightto request referral to osc. and they'll look at ittout nouveau, brand new, and they will decidewhether or not to provide representation, okay? now, they haveindependent discretion. are we out there?yes, we are. independent discretion.

yeah, there we go. independent discretion,whether or not to offer representationin federal district court or before the mspb. but again, at any point, during thatinvestigative process, the claimantcan withdraw the case. just to give youa sense of what we do-- and these are fy 2008.

fy 2009 figures are still-- we're putting those togetherto give to a report to congress. but at any given year, we average between$1.9 and $2.5 million in recoveredbenefits and wages. okay, just to give youa sense of that. and so it is very active. those numbersare fairly consistent. we don't dothird-party representation.

all right, if claimantis represented actively by a third party, that means they havea private attorney. we withdraw.we give them a choice. you can either go with usor you can go with them, but you can't have both. if they drop that,then that's-- they drop-- they gowith the private counsel, and then if that's notproducing results for them,

they can come back to us. we'll take it, okay? but they can have an attorneyacting as their agent. and sometimes, right now, in this currentlegal job market, you'll see attorneysriding shotgun. and sometimeswe've seen situations where they will arrivepiggyback throughout that wholeinvestigative process.

and then at the end of it, they may say,"okay, vets, see you later. you've done a great job.we'll take it from here." and then tryto do it themselves. okay, that's happenedand that's okay. but they can do itas an agent, all right? we don't discuss open caseswith anyone. we don't discuss themwith the media. we don't discuss withveteran service organizations

or anyone. no outside parties. the claimant and hisor her representative if he or she has one. again, avoid disputes, avoid litigation. don't, um-- litigation is bad,avoid that. all right,low level resolution. it's very uncommon.

if you know that someoneis leaving for active duty, two-way communication,it goes back and forth. find out who the individual'spower of attorney is. somebody who can legally makedecisions in his or her behalf. that will doa lot of good, all right? and, of course, education. education, you can't sayenough about it. if you're aware, if we're all aware ofwhat our responsibilities are,

we can do this thing. okay, just so you know, the veterans benefitsimprovement act of, i believe, it was '08 or '09, october '08, established a 90-day time limitfor userra investigations. although, the claimantcan request extensions. all right, the d.c. metro area,federalis here in d.c. are bad about responding.

bureau cases tendto go longer, all right. again, respond. these are not-- we're not-- we don't have timefor this anymore. i mean, we cannot drag outinvestigations. most of them are donewithin 90 days. but congress said, "okay. well, they should be donein 90 days, and doj and osc have 60 days

to make a determinationwhether or not to provide representation. okay, gao,government accountability office is looking at this program. they're looking hard at it.they want to know. and from time to time, we haveto make a trip to the hill and advice themof how we're doing. maybe answersome specific questions about cases that constituentswrite them about.

all right, they arevery active about it. and sometimes,if it's a federal agency, they may find it. that agency may find itself explaining these things, too,before congress. so again, don't be the oneto get a subpoena. no statute of limitationapplies in a userra case just like with a prohibitedpersonnel practice, ppp. no statute of limitations.

that came about--that clarified that. now there is a four-year federalstatute of limitation that's out there. it may applybecause this provision, the no sol applying, it was not retroactive. so if the cause of actionarose before that, some courts are trying to have-- would seek to havethat imposed,

but generally not, okay. and then contact informationfor vets, our deputy directorrob wilson and then myself, there's our contactinformation. and again, our website. so that's our presentation. and one thingi will leave you with before i step downand we start and do questions, you know, just soyou all are aware,

at the height of world war ii, height of world war ii, roughly 12%of the u.s. population was in uniform at that time. and that's when userra-- that's when all these escalatorprovisions and everything really came into their own. but now we've been-- and that was onlya four-year conflict.

we have now been, since 9/11,that's been nine years, and in that time, roughly 2%of the u.s. population has been under armsin uniform. to the extent that you can relyon the consensus data, 2%. so if we could do thisat world war ii and make that work,we can do this now. okay, thank you very much. well, what we wouldlike to do right now

is open it up, open up the questionsto the panel if anyone in our audience in the auditoriumhas a question? we can bringthe microphone to you and you can ask your question. the panel will attemptto answer your question. anyone in the audience here? because we do havewebcast viewer questions,

i believe, and thoseare gonna be read by amanda jones. and she's gonna startwith the first question we receivedfrom the webcast audience. okay, our first question is "i have an employeewho has returned from kuwait after 400 days of active duty. the employee hasinformed her supervisor that she will returnto work in october.

the employee statedshe was informed by the military she has 90 daysto return to her position. the employee has notprovided orders officially confirming that she hasreturned from active duty. is the organization obligatedto keep the position open for 90 days withoutany documentation from the employee? who's gonna--well, i'll start with that. i'll kick it off.

the individual has-- if they're gone for more than180 days on active duty, they have 90, 9-0 days from the date of terminaldischarge from service to submit a timely applicationfor reemployment, okay? during that time, if they weregone for more than 30 days is what i think i believescott mentioned, the employercan request documentation only after they are reemployed.

if you don't have doc-- they are not requiredto provide documentation on that beforehand. we do encourage them, again,with open two-way communication, that should not bean issue, all right? if there is some questionthe employer has about, whether or not the individualis on active duty, then they can contactthe unit of assignment and find out whattheir military status is

if they're out of contact. but beyond that, yes, they dohave to keep that job open and put them backin the escalator position. and, court,would you like to follow up? yeah, i would. in addition of that,the obligation to provide documentationdoes not occur until the employeeactually returns to work. they apply to return to work,when they return to work,

they're requiredto provide documentation. one of the important factorsto remember is, if the employee cannotproduce the documentation, either because it doesn't exist,it hadn't been created yet or because it's not readilyavailable to them. the employer still hasto provide the employee with all of hisor her userra benefits except one, and that isyou don't have to make retroactive contributionsin to their retirement plans

until you get the documentation. all the other benefits,seniority-based benefits, non-seniority benefits. the employee would be entitledto upon returning to work, the employee must get those. now you get themconditionally. and if the persondoesn't have the documentation, the employer should say,"i am conditionally returning you to work, you know,with your userra benefits

except the onei just mentioned, you know, pending receiptof the official documentation that establishesyour right to reemployment. you need to put thatin writing." so it's clear that you weren'tjust simply waiving your right to demandthe documents. userra doesn't saythat the employer has to get the documents. it says the employermay request the employee

to produce documentation. so if you want to insist on it, they don't have itat the time they return, the advisable procedureis to give them written notice that you're returning themconditionally subject to provisionof those documents. because if the documentsthey subsequently produced showed that they're notentitled to reemployment, then the agency at that pointwithout further ado,

could separate the individual. it's a separationunder userra. it's nota for cause adverse action, the way you would handle it,you know, on a normal case. the law says you're not entitledto reemployment, goodbye. you have to do some paperwork, but it's differentthan, you know, for cause separation, you know, for misconduct,for example.

okay, one other thingi would highlight is something that kenan have talked about, about congress lookingat the fed gov. congress has been watchingthe fed gov for the last six yearswith respect to userra. and starting the-- in 2004, they actually askedthe department of defense to check with their esgrrepresentatives in the field and list in orderfrom best to worst

of all the federal agencies based upontheir complain experience as to who is best and worsein the fed gov. part of the reportingthat kenan talked about is a role of every quarterand then annually that goes to jail. and ultimately to congresslisting all the cases that are over 90 days. what agenciesare involved, etcetera,

and the nature of the caseas what has been done about them. okay, and each--2004, 2006, 2008, congress began strengtheningand tightening down on the compliance rules with regard to federal agencies. because every two yearsthey said, "we told you two years ago, and we hit youwith a little brick,

you didn't dowhat you're told to do now here's a bigger brick. and that eventually,ended up in the requirement that everybody be trainedin the 2008 vbia. that's where you get 4435. let me give you a little,just a summary, and statistics could saymany things, okay? currently,in total reserve force, that guard and reservecomponent,

approximately 13%of all guard and reservist are federal employees. kenan just told youthat 20%, give or take, of all the complaintsthey get at dol are from federal employees. those statisticsare not dissimilar to what's received over at dodat the userra office, which has kenan indicates, handles far more individualcomplaints that come in.

so you can appreciatewhen you look at the number of total guard and reserve, and you look at the numberof complaints that dol is getting, the congress, of course, is going to be sensitiveto complaints from the federal government. amanda, you want to readthe next question? sure. okay, the next questionis has there been any guidance

in extending the 24-month healthor life insurance coverage for employees on military lwop? i'll take that. the 24-- you know, congress,at this point has got nothingpending to extend the 24-month coverage, however. and the federal,fehb regulations, there is a provision which isapplicable to everybody. you don't have to bein the service to do that.

if you're on an lwop status, you get one year of continuedcoverage at the copay rates. however, there are some--at which time it ends, one year later,365 days, it ends. unless you use a provision that's in the regulationscalled "leave interrupt." in summary, what leave interruptsays is that if you are in a pay status foreight consecutive pay periods, that could be just one hourof pay or one day of pay,

every pay period foreight consecutive pay periods, your one year periodof continued fehb coverage of the copay rate, if you're in an lwop status, restarts. and you get another yearfrom the end of that roughly eight-week period. there are provisionsfor a leave interrupt. we do have service membersin the fed gov

who do use leave interrupt. when your agency providesinformation to employees going on military duty, especially, those goingfor two years, three years, etcetera. they should be providingnot only information on the basic fehbwith the 24 months coverage under userra, you know,and what that entails. but also with your abilityto use leave interrupt.

that same provisionfor leave interrupt or a similar provisionfor leave interrupt also exist with regardto the fegli. now, userra doesn't sayan employer has to give anybody life insurance, but in the fed gov,if you're in an lwop status for one year,during that one year, your life insurance,your basic fegli life insurance is given--

you know, the agencygets it for free, you get it for free, there's nopayment for it, okay? the fegli coverage for one yearcan be extended as long as you'rein an lwop status by using leave interrupt. that meansthat the service member, who's on his secondor third year of active duty, as long as he or she has usedleave interrupt properly, you know, during thatfirst year of lwop

is still gonna be coveredby fegli. if you're sitting inafghanistan in a foxhole and somebody's droppinglittle bad things on your head, you'll be happy thatyou're wife will be happy that you havethe extra life insurance. okay, so these are thingsthat you need to when you're lookingand writing in your policies, you need to--and the notifications you give, you need to take a lookat all these collateral issues

to make surethe advice is given. okay, we are running over, i think,maybe two more questions. go ahead. i have an employee on lwop u.s. who's a full-timenational guardsman, who reachedhis five-year limitation in a couple of weeks. we're considering charging himwith excessive absence

due to military service when he goes overthe five-year limit and doesn't choose to resign. what's your opinion? that could resultin a complaint, i would suspect. i'm not awareof an excessive leave policy. and an individualcannot be required to seek permission to leaveto go on active duty.

once the individualwill say, "i'm leaving to goon active duty. see you later, bye-bye." and as long as they makethe five criteria. eligibilityfor reemployment rights are, have to leave to goon period of covered service, provide advance noticethat they're leaving, cumulative periodof active service which court has discussedin great detail.

i think, i hopethat's been answered. then the application forreemployment has to be timely and the dischargecannot be disqualified, like bad conductother than honorable. but they cannot be required to submit documentation saying, "i will continue onto be on active duty." again, two-way communication. on this issue,the questionnaire said,

full-time nationalguard duty. i will assume for the sakeof part of this discussion, they mean agr or activeguard and reserve duty, you know, in a full-time statusunder 32 usc 5022 f. there is also full-timenational guard duty under 32 usc 503. if it's under 503, it's always acceptedfrom the five-year rule, it's in the statute.

if it's 502 (f),it is not accepted and it countsagainst the five years. if the person leavesactive duty on the last dayof the fifth year and makes timely applications,meets all the other rules, they get reemployed. if they are on active duty, and that includesterminal leave not just actuallydoing something

that includes terminalleave period, if they're on active duty,five years and one day, they no longer havereemployment rights. okay, and if they returnto the agency seeking reemploymentand they've been on active duty for five yearsand one day that counts, the agency does not haveto reemploy them. that raises the question, what happens if the person'sgot to set of orders now

during their first yearof a four-year set of orders and they've already burned up-- you know, they nowburned up five years and a day. can the agencyseparate them? there are no set proceduresfor how to do that, the agencies hasto figure out how to do it. but at that point,the employee no longer has reemployment rights. assuming that the dutythat they were on

counts againstthe five years. and if i can interjectjust one thing. but be careful when you look at that cumulativeperiod of service, the discharge certificate is what's gonna bejust positive there. because there may be periods, discreet periods within thatthat was-- that follow within an exceptionto the five-year rule, okay?

and if that happens,then you need to calculate, separate those out, and then, look at allthe exceptions together, subtract that fromthe cumulative period. what you need to look at, okay? if you have copiesof the employee's orders, the orders will tell youwhat type of duty they were performing. if you don't have copies,

and the employee hasn't beenkind enough to provide them, most people do, some don't, you can always contact dod,contact the esgr, and they can put you in touchwith the right people to determine what types of or military dutyor orders, authority, the employee was on. covering whatperiods of service from day oneto day two, etcetera.

if you have clear,concrete proof not been gone five years,that doesn't get it. if you have clear, concreteproof copies of the orders, official statement from dodas to what the service is, then you are in a good positionto move forward. i will tell you. and i deal with thisevery day, okay. i deal with thisin my own agency. i also get calls froma lot of other agencies

on how to do this. and you can, in fact, do it. mspb is starting to hearsome of these cases and they've been finding-- they've beenin preliminary hearings saying, "hey, you've beengone too long. have a nice day." you know, to the employeewho's actually gone over the five years

because they don't havereemployment rights. once you go overfive years and a day of countable time, you have no userra rights withrespect to reemployment. there are other typesof userra rights you have under 4311for discrimination, okay. but you have no rightsto plow out of reemployment. final question. one question.

okay, why can't agencyrequire documentation to confirm an employeeson actual orders to active duty, otherwise, what isto prevent fraud? well, the statute only requiresthe notice requirement that the orders, the notice maybe givenorally or in writing. now, we in dod encouragethat notice to be given in writing and we do encourage themto provide copies of orders.

but the law doesnot require it. in order to do that,there's gonna have to be a statutory amendment. and that just--that cannot be acquired. now again, just as courthas pointed out, if there is a questionas to whether or not the individualis on active duty, contact the unitof assignment. that's probably the bestand most direct way to do it.

and if you havea rare situation, where the individualdoes not provide it or don't have it,then contact esgr at esgr.mil.com.gov.org, any others? that's all of them, i think. okay. they own that. they own it all. but they will let--

they will be ableto let you know if, in fact, that individualis on orders. we've hada rare situation in the past where an individualactually refused-- kept going on dutyfor discreet periods where he could not be required to show documentationupon returning. every time a work assignmentpopped up, for example, "oh, sorry love to help you,but got to go on active duty."

and that individual said,"well, what's your unit?" "well, i can't tell you,it's a secret." "oh, one of those." and in that situation,the, uh-- it turns out,we looked at it, esgr looked at it and found outthat the unit of assignment the individuals with was with the nationalpersonnel record center in st. louis, missouri,

which is actuallynational archives. and this individualhad been out of service with gs-15 no less. and he's currentlyin leavenworth, i believe, for a numberof different things. but, uh, in any event,in any event, if you do have questionsabout whether or not the individual ison active duty or performing or you need to verifyperiod of service

and it's not forthcomingfrom the service member, contact esgror the unit of assignment. that's the best way to do it. one of the thingswhen you do your training for your 4435 training, that you need to getacross to managers and hr and lr peopleneed to understand is that the common perception that every time someoneperforms military duty,

they have orders is false. the majority of duty performedby guardsman and reservist which is your weekend drills, your rescheduledtraining, etcetera, they have no orders. if a reservist is performinginactive military duty, just like weekend drills, they don't get orders. there'll bea unit training calendar,

or a quarterly trainingbrief that, you know, the list of whatthe drills are, but that's just likea notice posted on the board. here's the training schedulefor the next four months. you know, if they producethat, that's fine, they don't haveno orders for that. in other cases,when people are activated to go on military duty, they don't alwaysget the order.

first of all, they may notget individual orders. their unit may geta unit order, that says everybodyin this unit is going on duty. and then, attached to thatis a long list of sheets that has the name of everybody who is gonna go on a vacationfor the next year. and so they don't getan individual copy of that. one may be put inthe military personnel file,

but they're not gettingan individual copy. in other cases,even if they're going to get individual copies, they may not get thembefore they leave. there's an old jokeand it's not as true today as it was 20, 30 years ago. you'll get thembefore you leave, you don't get them. you'll get themwhen you get there.

you don't get themwhen you get there. you'll get themwhile you're here. it doesn't happen. you'll get them before you leavewhile you're here. it doesn't happen... you'll get themwhen you get back. it doesn't. and maybe twoor three months later, you actually get a copyof what you did a year a go.

okay, that's not-- you know, it's not as commontoday as it's used to be, but that did happen. and that's one ofthe reasons under userra. why they say, "if you don't haveorders, oral is good enough." cause the people,a: won't always have them even if they are cut. you know, and people haveto remember that in the guard and reserve units

because they drillonce a month and they're not thereevery day. orders are only handed outwhen you get to drill. they're not mailed outto the houses. so, they may tell the bosson a monday, and they may not have to go backto the unit for a month. so they're not gonna seeany orders for a month bear in mind, too, thatvirtually all reserve units, all reserve guard unitsput out drill schedules.

they are subjectto modification, but they all put them out. and it's-- and although the individualcannot be required to produce or providethose to the employer, we do encourage them to do so. and you may want to ask, "do you have a copyof your drill schedule?" and if not, you canalso contact the unit

and ask the unit if they havea copy of the drill schedule. a good pointer. if you have an employeewho is recalcitrant, and there are some employees whoare in the guard and reserve, who are recalcitrant, they like to pushthe envelope. i don't have to give you orders,so i'm not going to. we've all seen peoplelike that. there's nothingthat prohibits the employer

from contactingthe command and saying, "look, we've been talkingto your soldier john, our employee john, and we just like to knowwhen is his scheduled duty is coming up before the day, before he has to getfor weekend drill? we know that you needuserra's requirement, but we'd like to know earlyin that if we could. we've ask him for a copy ofthe annual training schedule,

but he won't give it to us. i will tell youthat almost every commander will have a discussion with johnat the next drill, and john will wish thathe had never had this problem brought to his command. commanders are very sympatheticand want to work with employers. they will bend over backwardsto help employers understand when people have to be gone. and in certain cases,to accommodate the need

to have the employer at workversus the drill if they can reschedule that. i would suggest thatfrom the hr, lr standpoint,the idea of having managers, operational staff managerscontact the command directly is probably a dangerous mode. it's better to have-- let them have you contactthe operational command. i can tell you that i've gottena number of calls at dod

where their supervisorsin the federal government had contacted commands, and ended up in a shouting matchwith the commander. and when you're talkingto a full colonel and you're a gs-11,12, 13 or 14 and you're being disrespectful, they tend to callpeople on it, which doesn't do anybodyany good. everybody loses.

so that hr, lr call,you'll get a lot of cooperation. and if the employeeis abusing the system, they will take care of it. and with that, i'd liketo thank our presenters for your timely well-doneoverview of userra and thenumerous issues... for all who attemptto implement it. and it's a mind boggling to meand i'm sure it is to you. please, um--thank you.

thanks to our audience alsofor taking part. remaining questionsfrom our webcast audience, we will attempt to respondby e-mail if we can, and we'll certainlytry to do that. remember to fill out yourevaluations before you leave and leave it at the tableat the back of the room for our live audience. for membersof our webcast audience, you may scanand e-mail your evaluations

to plr@opm.gov, and we will get thoseand look at those seriously. and we also wantto encourage you to submit future forum topicsor any other issues you might havefor forum discussions. also you can faxyour evaluation to our fax numberat 202-606-2613. and i will repeat thatour fax number at plr is 202-606-2613.