Or. Admin. Code § 459-080-0100 - Credit for Military Service under USERRA
(1) Purpose. The purpose of this rule is to
implement ORS 238A.415.
(2) Limitation of scope of rule.
Contributions, benefits and service credit provided under this rule may not
exceed contributions, benefits and service credit required under federal law
for periods of military service.
(3) Definitions. For purposes of this rule:
(a) "Employee" means:
(A) An eligible employee, as defined in ORS
238A.005;
(B) An active member of PERS, as defined in
ORS 238.005, on or after January 1,
2004; or
(C) An employee who is
entitled to credit toward the probationary period required by ORS
238.015.
(b) "Employer" means the legal entity that
employed an individual at the time that individual left for military service.
For purposes of this rule, the state of Oregon is a single legal entity. Each
separate school district is a separate legal entity.
(c) "Military service" means the performance
of duty on a voluntary or involuntary basis in a uniformed service under
competent authority and includes:
(A) Active
duty;
(B) Active duty for
training;
(C) Initial active duty
for training;
(D) Inactive duty
training;
(E) Full-time National
Guard duty;
(F) A period for which
an individual is absent from a position of employment for the purpose of an
examination to determine the fitness of the person to perform any of the above
types of duty; or
(d) "Salary" means
the rate of pay the eligible employee would have earned if he or she had
remained employed during the period of military service, including any
increases that would have been awarded the employee based on longevity of
employment or seniority of position. If such rate of pay is not reasonably
certain, the rate shall be based on the employee's average rate of pay from the
employer. The average rate of pay shall be calculated for a period not to
exceed the 12-month period immediately preceding the period of military
service.
(e) "Uniformed services"
means the following:
(A) Armed
Forces;
(B) Army National
Guard;
(C) Air National
Guard;
(D) Commissioned corps of
the Public Health Service; and
(E)
Any other category of persons designated by the President in time of war or
national emergency.
(4) Eligibility for retirement benefits under
USERRA. An eligible employee shall be entitled to the benefits of this rule if:
(a) The employee leaves employment with a
participating public employer to perform military service;
(b) The cumulative length of the employee's
absence from employment with the employer for military service does not exceed
the limits set forth in USERRA Sec. 4312;
(c) The employee initiates reemployment with
the same participating public employer within the time limits specified in
USERRA Sec. 4312;
(d) All employee
contributions have been made; and
(e) All other eligibility requirements for
benefits under USERRA are met.
(5) Service credit for military service under
USERRA. An employee who meets the eligibility requirements of section (4) of
this rule shall receive the amount of credit toward the period of employment
required under ORS 238A.300 and the vesting
requirements described under ORS
238A.320, the employee would
have accrued if he or she had remained in employment with the employer during
the period of military service.
(6)
Termination. An employee's eligibility for the benefits of this rule terminates
upon the occurrence of one of the disqualifying events listed in USERRA Sec.
4304.
(7) Employee contributions.
(a) Employee contributions must be made upon
reemployment for eligible military service in accordance with the following:
(A) Employee contributions to be made by the
employer. If the employee's employer had agreed to pay employee contributions
under ORS 238A.335(2)(b)
as of the date the employee left employment to perform military service, the
employer must pay, in a lump sum payment, the amount of contributions that
would have been made if the employee had remained in the employment of the
employer during the period of military service, based on salary as defined in
section (3) of this rule.
(B)
Employee contributions to be made by the employee. If the employee's employer
had not agreed to pay employee contributions, or had agreed to pay employee
contributions under ORS
238A.335(2)(a)
as of the date the employee left employment to perform military service, the
employee may pay all or part of the contributions that would have been made if
the employee had remained in the employment of the employer during the period
of military service, based on salary as defined in section (3) of this rule.
Contributions made under this paragraph may be remitted to PERS by:
(i) Payroll deduction; or
(ii) Monthly payment of no less than one
month of contributions; or
(iii)
Lump-sum payment.
(b) Any individual, agency or organization
may pay the employee contributions specified in paragraph (7)(a)(B) on behalf
of the employee under the payment provisions set forth in subparagraph
(5)(a)(B)(ii) or (iii).
(c)
Employee contributions may only be paid during the period beginning with
reemployment and whose duration is three times the period of the employee's
military service, such period not to exceed five years.
(d) Employee contributions shall be credited
to the employee account established in ORS
238A.350(2).
(e) Employee contributions may not include
nor be credited with earnings or losses that would have been credited during
the period of military service.
(f)
Contributions made under this section may not exceed the amount of employee
contributions that would have been made if the employee had remained in the
employment of the employer during the period of military service, based on
salary as defined in section (3) of this rule.
(A) The maximum amount of contributions that
may be submitted under this section must be reduced by the amount of employee
contributions attributable to differential wage payments received by the
employee for the period of military service.
(B) Employee contributions attributable to
differential wage payments paid to the employee during the period of military
service must be credited with earnings and losses that would have been credited
during the period of military service.
(8) Employer contributions.
(a) If the employee's employer had agreed to
make employer contributions under ORS
238A.340 as of the date the
employee left employment to perform military service, the employer must pay, in
a lump sum payment, the amount of contributions that would have been made if
the employee had remained in the employment of the employer during the period
of military service, based on salary as defined in section (3) of this
rule.
(b) Any contributions made
under this section shall be added to the employee's employer account
established in ORS 238A.350(3).
(c) Contributions made under this section may
not include nor be credited with earnings or losses that would have been
credited during the period of military service.
(d) Contributions made under this section may
not exceed the amount of employer contributions that would have been made if
the employee had remained in the employment of the employer during the period
of military service, based on salary as defined in section (3) of this
rule.
(e)The amount of
contributions that must be submitted under this section must be reduced by the
amount of employer contributions attributable to differential wage payments
received by the employee for the period of military service.
(f) Employer contributions attributable to
differential wage payments paid to the employee during the period of military
service must be credited with earnings or losses that would have been credited
during the period of military service.
(9) Military service that includes January 1,
2004. If an employee as defined in section (3)(a)(B) or (C) of this rule
performs military service over a period including January 1, 2004:
(a) Retirement credit and contributions for
military service before January 1, 2004, shall be determined in accordance with
OAR 459-011-0100.
(b) Retirement
credit and contributions for military service on or after January 1, 2004,
shall be determined in accordance with this rule and OAR
459-011-0100.
(10) The
effective date of this rule is January 1, 2009.
Notes
Publications: Publications referenced are available from the agency.
Stat. Auth.: ORS 238A.450 & 238A.415
Stats. Implemented: ORS 238A.415
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