5 CFR 1208.11 - Choice of procedure under USERRA; exhaustion requirement.

Code of Federal Regulations - Title 5: Administrative Personnel

Updated to: January 01, 2011

Linked as:

Text

Title 5: Administrative Personnel

CHAPTER II: MERIT SYSTEMS PROTECTION BOARD

SUBCHAPTER A: ORGANIZATION AND PROCEDURES

PART 1208: PRACTICES AND PROCEDURES FOR APPEALS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT AND THE VETERANS EMPLOYMENT OPPORTUNITIES ACT

Subpart B: USERRA Appeals

1208.11 - Choice of procedure under USERRA; exhaustion requirement.

(a) Choice of procedure. An appellant may file a USERRA appeal directly with the Board under this subpart or may file a complaint with the Secretary of Labor under 38 U.S.C. 4322.

(b) Exhaustion requirement. If an appellant files a complaint with the Secretary of Labor under 38 U.S.C. 4322, the appellant may not file a USERRA appeal with the Board until the Secretary notifies the appellant in accordance with 38 U.S.C. 4322(e) that the Secretary's efforts have not resolved the complaint. An appellant who seeks assistance from the Secretary of Labor under 38 U.S.C. 4321 but does not file a complaint with the Secretary under 38 U.S.C. 4322 is not subject to the exhaustion requirement of this paragraph.

(c) Appeals after exhaustion of Department of Labor procedure. When an appellant receives notice from the Secretary of Labor in accordance with 38 U.S.C. 4322(e) that the Secretary's efforts have not resolved the complaint, the appellant may file a USERRA appeal directly with the Board or may ask the Secretary to refer the complaint to the Special Counsel. If the Special Counsel agrees to represent the appellant, the Special Counsel may file a USERRA appeal directly with the Board. If the Special Counsel does not agree to represent the appellant, the appellant may file a USERRA appeal directly with the Board.

[65 FR 5412, Feb. 4, 2000, as amended at 65 FR 49896, Aug. 16, 2000]