- USERRA Advisor
In general, a person reemployed under USERRA is entitled to the rate of pay he or she would have attained, with reasonable certainty, if continuously employed during the period of service. The term "PAY" is not limited to the wage received. It includes all elements of compensation such as drawing accounts, bonuses and shift premiums. It includes hourly rate, piece rate, salaries and commissions.
A returning service member is entitled to all general pay raises that he or she would have received with reasonable certainty but for the absence for service in the uniformed services. It does not matter if the raises result from a collective bargaining agreement or employer policy. Where the rate of pay is an attribute of position, the returning service member is entitled to the current rate of the entitled position, including all the changes that occurred in his or her absence.
Where the pay system purports to condition the increases on factors such as increased skill, qualifications, or merit, the actual practices followed under the system rather than the labels associated with the raises must be examined. For example, if "merit" increases have been consistently awarded to all employees, then the raises may be considered to be seniority based, and the returning service member may be entitled to the raise as well. See 20 CFR Part 1002.193.
It is not unusual to have a pay raise based both on merit AND seniority. For example, all employees may get a raise each year; however the AMOUNT of the raise may depend on each employee's evaluation. In the case of a returning service member, whose absence may have spanned several years, the employer must give, at a minimum, the seniority-based part of the raise. To determine the merit-based part of the raise, the employer may consider the person's work history, his or her history of merit raises and similar factors.
Call your local VETS office for more information on this subject. If you think your situation warrants a complaint, please review the instructions on how to file a complaint form. You will find a link to the form on the instructions page. The Veterans' Employment and Training Service will investigate complaints and attempt to resolve them. Persons whose complaints against non-Federal employers are not resolved by VETS may request that their complaints be submitted to the Attorney General for possible representation in Federal court. Unresolved complaints against Federal employers will, upon request, be referred to the Office of Special Counsel for possible representation before the Merit Systems Protection Board.
NOTE: In Federal cases involving nonselection or layoffs, a person may wish to file complaints under both the USERRA and Veterans' Preference (VP) statutes. If you think that this situation applies to you, you must submit a separate complaint form for each statute allegedly violated (i.e., one for USERRA and one for VP). When this situation occurs, VETS will open two separate cases for investigation.
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