ARLINGTON, Va. — An increasing number of guardsmen and reservists are returning home from war to find they no longer have their jobs, or have been snubbed for promotions and raises in spite of a 1994 law that protects them, Labor Department officials said.
An increase in complaints prompted the department to submit proposed regulations that both clarify and better enforce the law, the Uniformed Services Employment and Reemployment Rights Act of 1994.
It also launched an education campaign for employees and employers on protections afforded under the USERRA, which prohibits the firing of a member of the reserve component, passing them up for promotions, or not paying benefits just because he or she is called to active duty.
Usually, violations are rectified easily, said a spokesman for the Labor Department.
“The biggest problem was a lack of understanding, and once they were told of the laws, employers almost always did the right thing,” a Labor Department official said.
However, 6 percent to 8 percent of the average 1,000 complaints filed over the past few years were resolved only after the aggrieved took the matter to the judicial system, the spokesman said.
That’s a percentage too high for Sen. Tom Daschle, D-S.D.
“We’ve been hearing about the Guard and Reserve coming home from serving their country, from having been in Iraq and harm’s way, and not having a job, and this has concerned the senator,” said press secretary Sarah Feinberg. “While a lot of employers are doing a lot … one servicemember who loses his or her job is one too many.”
The Labor Department published a draft of regulations in the Federal Register on Sept. 20. It will be open for public comment for 60 days; after which officials will consider the comments before implementing the final regulation.
Some of the proposed regulations further define discrimination and spell out burden of proof and protections afforded employees.
“These regulations will spell out the rights of our returning servicemen and women and the responsibilities of employers to honor their service,” Labor Secretary Elaine Chao said in a statement. “This administration will back up these first-time-ever USERRA regulations with aggressive outreach and enforcement.”
Compared to pre-global war on terror figures, the massive activation boosted the number of complaints filed to the Labor Department by 35 percent in fiscal 2002, and another 10 percent in fiscal 2003, with 1,195 and 1,315 complaints, respectively.
As of Thursday, a total of 427,305 guardsmen and reservists have been mobilized for war on terror since Sept. 11, 2001. Of that total, 164,095 are mobilized today.
The regulation can be viewed and comments submitted by going to: www.regulations.gov and entering VETS-U-04 in the keyword section.
How to deal with employment problems
Here is a “game plan” for Reserve or National Guard members who are having mobilization-related problems with their regular employer. Lt. Cmdr. Mark Shelley, ombudsman for the National Committee for Employer Support of the Guard and Reserve in Arlington, Va., wrote this guide.
1. Go to your company’s human resources or personnel department. These people are more familiar with the law than first-line supervisors. Once the human resources manager knows you are having a problem, he or she can often resolve it with one or two phone calls.
*If you work for an organization that does not have a human resources point of contact; or if that individual can’t or won’t help you; or if you are already in the field, go to:
2. Your unit’s commanding officer. Any CO of the Guard or Reserve has the responsibility to help his or her people with employer conflicts, questions or disputes.
*If your CO can’t help you, or if you are the commanding officer who needs guidance to help one of your unit’s members, go to:
3. Your local representative of the National Committee for Employer Support of the Guard and Reserve. To find that person, go to www.esgr.org, which lists contacts by state. If you do not have access to the Internet, call ESGR’s national headquarters (800) 336-4590. An ESGR representative will tell you whom to contact in your home state.
*If ESGR’s state and national network of professional advisers, mediators and “Mission One” volunteers can’t get results, they will then recommend your case to:
4. The Department of Labor’s Veterans’ Employment Training Service, Division of Enforcement. The Labor Department, backed by the Justice Department, is authorized to take legal action against employers violating the laws that protect activated Guard and Reserve members. If your employer is breaking the law, they will bring the full weight of the U.S. government to bear on your case.
*If you are not happy with the results of the Labor Department’s intervention, the final resort is to:
5. Hire a private attorney at your own expense. Not often, but sometimes, employers are able to make a legally defensible case to the Labor Department that justifies their failure to reinstate Guard or Reserve employees after a call-up. If the decision does not go in your favor, your last recourse is a civil lawsuit.
— Lisa Burgess
