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elaws - employment laws assistance for workers and small businesses

- USERRA Advisor

Unless it is impossible or unreasonable (see Employer Obligations), an employer is generally required to allow a returning service member to make up a test for promotion that was missed while he or she was absent. Although no specific guidelines have been established due to the wide variety of possible situations, an employer should give an employee a reasonable amount of time to adjust to the employment position and then give a makeup test or examination. No fixed amount of time for permitting adjustment to reemployment will be deemed reasonable in all cases. However, in determining a reasonable amount of time to permit an employee to adjust to reemployment before scheduling a makeup test or examination, an employer may take into account a variety of factors, including but not limited to the length of time the returning employee was absent from work, the level of difficulty of the test itself, the typical time necessary to prepare or study for the test, the duties and responsibilities of the reemployment position, and the promotional position, and the nature of the responsibilities of the service member while serving in the uniformed services.

If the reemployed employee is successful on the makeup exam, and there is a reasonable certainty that, given the results of that exam, the reemployed employee would have been promoted during the time he or she was in military service, then the reemployed employee's promotion must be made effective as of the date it would have occurred had the employment not been interrupted by military service. Similarly, if the reemployed employee is successful on the makeup exam, and there is a reasonable certainty that, given the results of that exam, the reemployed employee would have been placed in a particular position on an eligibility list during the time he or she was in military service, then the reemployed employee's placement on the list must be made effective as of the date it would have occurred had the employment not been interrupted by military service. See 20 CFR Part 1002.193.

For assistance on individual instances, contact your local VETS office. 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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VETS | USERRA Advisor