OAR 459-011-0100: Credit for Military Service under USERRA

(1) Purpose. The purpose of this rule is to implement ORS 238.156(1). (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 an individual employed by a participating public employer in a qualifying position, as defined in ORS 238.005 and who is not excluded from the definition of employee as set forth in ORS 238.005. (b) “Employee contributions” means contributions made to the Fund. (c) “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. (d) “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 employee is absent from a position of employment for the purpose of an examination to determine the fitness of the employee to perform any of the above types of duty; or (G) A period for which an employee is absent from employment for the purpose of performing funeral honors duty as authorized by 10 U.S.C. § 12503 or 32 U.S.C. § 115. (e) “Salary” means the rate of pay the 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. (f) “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 individuals designated by the President in time of war or national emergency. (4) Retirement credit under USERRA. (a) Eligibility. An employee shall be eligible for the benefits of this section if: (A) The employee leaves PERS-covered employment 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 § 4312; (C) The employee initiates reemployment on or after December 12, 1994, with the same PERS-covered employer within the time limits specified in USERRA § 4312; and (D) All other eligibility requirements for benefits under USERRA are met. (b) Credit for military service. An employee who meets the eligibility requirements of subsection (a) of this section shall be credited with the amount of retirement credit the employee would have accrued if he or she had remained in employment with the employer during the period of military service, only to the extent that the employee contributions have been made. (c) Termination. An employee’s eligibility for the benefits of this rule terminates upon the occurrence of one of the disqualifying events listed in USERRA § 4304. (5) Employee contributions. (a) Employee contributions shall be made upon reemployment for eligible military service in accordance with the following: (A) Contributions to be made by the employer. If the employee was entitled to employer-paid pre-tax (EPPT) contributions as described in OAR 459-009-0200 as of the date the employee left employment to perform military service, the employer must pay, in a lump sum payment, 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. (B) Contributions to be made by the employee. If the employee was entitled to only member-paid pre-tax (MPPT) or member-paid after-tax (MPAT) contributions as described in OAR 459-009-0200 as of the date the employee left employment to perform military service, the employee may contribute part or all of the 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. Contributions made under this paragraph must 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 (5)(a)(B) on behalf of the employee under the payment provisions set forth in subparagraph (5)(a)(B)(ii) or (iii). (c) Contributions made under this section must be made 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) Any contributions made under this section shall be added to the employee’s regular or variable account(s). (e) 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. (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 employee 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 received by the employee for the period of military service must be considered employee contributions under subsection (4)(b) of this rule if the employer reports to PERS that the employee is eligible for benefits pursuant to subsection (4)(a) of this rule. (C) 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. (6) Employer contributions. Any employer contributions associated with credit for military service under this rule must be made as directed by PERS in accordance with ORS 238.225. (7) The effective date of this rule is January 1, 2009.