Employment Protections Elusive for Returning Troops
Despite laws protecting the civilian jobs of National Guard members and reservists, more than 15,000 troops since 2001 have had to fight for their employment rights through official complaints that require tedious and sometimes expensive disputes, a News21 investigation shows.
In the meantime, these service members remain unemployed or search for other work without any guarantee they will get back their jobs, back pay or pensions.
Lt. Col. Chuck Schlom trained for more than 20 years before deploying for the first time in his military career to a combat zone. A former active-duty Army officer serving as an aviation specialist in the Army Reserve, Schlom said he was primed – at last – to go to war.
“I was watching these kids fighting a war that I had been trained to do all my life,” he said.
Two months after Schlom, a Chicago-based sales manager for SPX Cooling Technologies, notified the company he had been called to go to Afghanistan, a human resources manager summoned him to a breakfast meeting in the Hilton at Chicago O’Hare International Airport and fired him.
A 1994 law called the Uniformed Services Employment and Reemployment Rights Act, or USERRA, is intended to protect the jobs of National Guard members and reservists. The law says those soldiers can’t be fired or lose benefits or seniority because they are called to military-related duties, including drill weekends or deployments like Schlom’s.
“Here I am ready to deploy to a combat zone, and my company cans me,” Schlom said.
“My wife and I believed in saving our money for a rainy day,” he added. “And suddenly it started raining.”
Air Force Reserve Tech. Sgt. Jerry DeLay flew supplies into and out of Iraq and Afghanistan during his deployment from 2003 to 2005. DeLay, 46, returned to his job as a technician for ACE Heating in the Seattle suburb of Federal Way, Wash., to find his hours had been cut and given to another employee, he said.
DeLay decided to confront his boss, telling him, “I do not have the job I left.”
DeLay’s boss dismissed the service technician’s appeal for more hours and later fired him. DeLay filed a complaint with the government, though he’s among the minority who do.
A 2011 Department of Defense survey showed that 76 percent of National Guard and Reserve members don’t seek help for their USERRA problems. About half of those who responded said they didn’t know whom to contact about their problems, didn’t think their problems were “worth the fight,” or that seeking help would resolve their problems, according to survey data.
The federal government provides veterans a means to resolve USERRA complaints, first through the Department of Defense’s Employer Support of the Guard and Reserve, whose volunteers call employers, explain the law and try to resolve the matter.
About 80 percent of cases are resolved within a month and usually involve employers who unknowingly broke the law and willingly correct the problem. A recent RAND Corporation study of employers found about one quarter of employers admit to having incomplete knowledge of their USERRA responsibilities under the law.
If DOD workers can’t resolve the problem, service members can take their case to the Department of Labor – Veterans’ Employment and Training Service, known as DOL-VETS.
“If the evidence compiled in a USERRA investigation supports the allegations made,” a DOL-VETS spokesman said, “the agency will attempt to obtain satisfactory resolution through negotiation or mediation.”
The agency tries to settle disputes or sends unresolved cases to the Department of Justice for legal action. But the Department of Labor said the average investigation takes between 56 and 60 calendar days, and by statute, it must be completed within 90 days.
Fewer than 10 percent of the cases are referred for possible court action, Labor data shows, though service members can independently request that their case be sent to the Justice Department or can hire a private lawyer.
Schlom went first to the DOL-VETS investigators, but found the system frustrating and ineffective. After five months, a DOL-VETS investigator told Schlom his case lacked merit.
“The law as it’s written is a very powerful law,” Schlom said. “The problem is who you get to investigate it – that’s really where we have a breakdown.”
In the last seven years, Labor closed almost 30 percent of cases with a no-merit finding, which means, according to the department, the veteran is “not entitled to relief for reasons other than failure to meet eligibility requirements.”
USERRA lawyers and service members’ advocates say the agency finds too many cases without merit that are resolved by private lawyers weeks, months or years later.
“The biggest problem was that a lot of investigators didn’t do enough cases to stay proficient in it,” said Bob Kuenzli, a former USERRA investigator for DOL-VETS. Kuenzli handled about 160 cases per year, but said he was one of few employees working on just USERRA complaints.
“You do more cases, you have more information, you handle cases quicker because you know what the answer is in most cases,” Kuenzli said of his experience then.
Last year, the Labor Department had 125 investigators working in the USERRA program, including seven senior investigators who worked solely on USERRA, according to a department spokesman. USERRA investigators handled more than 1,400 new cases in 2012, according to preliminary data.
Six weeks after DeLay filed his claim, he also received a letter from DOL-VETS telling him his complaint had no merit.
Like Schlom, DeLay hired a private lawyer who subsequently uncovered fabricated and faulty documents the employer had supplied to the agency, including a Feb. 29 letter alleging misconduct. There was no Feb. 29 that year.
That the DOL-VETS investigation missed those details and overlooked other matters in the case made DeLay feel “like they just wanted to wash their hands of me.”
Marine Col. George Aucoin, an attorney specializing in USERRA law, uses his leave time from active duty to work on USERRA cases.
“They don’t have any real dog in the fight,” Aucoin said of DOL-VETS. “There’s no profit motive. From this attorney’s perspective, they’re not effective at all.”
Sam Wright, often called the “Godfather of USERRA,” helped write the law. On Monday and Thursday nights, the retired Navy reservist can be found in his Washington office at the Reserve Officers Association’s Service Members Law Center after hours, answering questions by phone from service members around the country.
He said USERRA investigators tend to take the “path of least resistance,” too often accepting what the employers say and closing a case as being without merit even if the service member was wronged.
Chick Ciccolella, who oversaw DOL-VETS as assistant secretary of Labor from 2005 to 2009, said investigators often gave employers too much time to respond to an inquiry, adding, “An employer sometimes is pretty tough to deal with, and where they are, there’s a time to get tough.”
“If we weren’t doing that, then shame on us,” Ciccolella said.
DeLay ultimately won a $542,000 judgment in 2007, after spending more than 14 months in the courts. His employer filed for bankruptcy and he hasn’t seen much of the money. On the day he lost his job, he started his own heating business.
Linda Hayes, a spokeswoman for Hayes Heating, formerly ACE Heating, which was cited in the USERRA lawsuit, said the company did not break the law and maintains she and her husband support the military and USERRA.
But DeLay said that, “If I didn’t open my own business the first day, and start hitting the pavements I would have lost my house and everything… waiting on the courts.".
Schlom eventually settled with his employer, more than two years after his firing. He now works as a defense contractor – for half the salary he earned at SPX Cooling.
SPX Cooling did not respond to repeated requests for comment.
While still in the Reserve, Schlom said he was the de facto USERRA expert in his unit.
“It was happening to a lot of service guys,” he said. “And I think I kind of owed it to some of the guys that it was happening to that, you know, you should fight something that you see, that you believe is wrong.”
Riley Johnson was a Peter Kiewit Foundation Fellow, and Rachel Leingang was an Ethics and Excellence in Journalism Foundation Fellow for News21 this summer.