Employer discrimination towards Guard and Reserve members is not a new phenomenon. But I believe it is a growing one. I asked Major Melissa Phillips with the ESGR if the increase in requests in 2008 for information was any indicator at all that more employers are becoming more inclined to discriminate and she said they’ve had no “hard concrete evidence” of that. “Our hope is that in the near future we’ll be able to do a survey of employees for how they are feeling.”
That will be an interesting survey to see, because in 2007, an informal WorkForce Management survey found that if given the choice to hire a new employee, knowing ahead of time of their Guard or Reserve status, 51% of those employers polled said they would not. Now, of course, it’s illegal to actually say that, but it is very hard to prove an employer’s reason for hiring someone and not hiring someone else. And with the Department of Defense capping deployments at 12 months maximum but taking away the policy that caps the total maximum length of time a Guard or Reserve member can be deployed, it has opened the door for citizen soldiers to be gone for back to back deployments, something, understandably, doesn’t sit too well with employers.
Matthew Tully is a major in the New York National Guard and founding partner of a law firm in New York that specializes in employer discrimination cases for military and government employees. He got his law degree after experiencing military discrimination himself from an employer and now has developed an extremely successful practice helping other Guard and Reserve members fight discrimination.
Remember in my previous post when Major Phillips made the statement that “if the service member isn’t happy, they can go to the Department of Labor” since the ESGR can only serve as a mediator, not as an enforcer?
Tully has an interesting breakdown of stats on that -
In 2007, he says that the Department of Justice filed only six USERRA complaints and the Department of Labor filed only 387. Tully’s law firm on the other hand filed 774. Since 2003, Tully’s firm has handled almost 3000 USERRA cases. “According to our research, that is more than every law firm and federal government agency since 1994 combined,” Tully told me.
“If you call us up and you have a solid case of USERRA discrimination, we can file a law suit the very next day and we can issue subpoenas the day after,” he said. “We issue more subpoenas on a morning than the Department of Labor issues the entire year. We don’t charge a veteran a penny if its meritorious (if it has merit and they think it’s a solid case that can be won).” Tully said they’ve won almost every single case and the reason they don’t charge the veteran is if they win, the employer is the one who must pay their fees.
USERRA must change
Tully believes that there must be major changes made to USERRA and has testified in the House and Senate pushing for these changes.
“In 1994, when USERRA was passed after the Gulf War, there was a call up but not the type we’ve seen since 2001…. USERRA isn’t applicable now – I’ve deployed 3 times since 9/11, if I was the employee of a business and deployed 3 times, that would have a dramatic impact on the business. USERRA doesn’t take that into account.”
Tully told me that in 2001, 2002 and 2003, almost all cases that went to court were because of a lack of knowledge on the employer’s part.
“It was the first major call up where McDonald’s and Burger King, those types of employers, all got hit. You’ve got a 24-year-old manager at McD’s and an 18-year-old private who says I’m going to be deployed; manager says “you’re fired” and those kids came back and won.
Now employers know there are protections in place for Guard and Reserve members but 2005 “was a watershed year” according to Tully.
“That’s when we started seeing the trickling of intentional violations,” he said. What’s behind it is the fact that the fines employers must pay if found guilty of breaking a USERRA law cost very little compared with the temporary loss of an employee and the retraining required when that employee comes back. So the employer makes a business decision. Pay a small penalty and save his company from further loss.
In 2008, according to Tully, nearly every one of the 450 cases his firm filed that year was an intentional violation of USERRA. “Somebody said ‘hey, Johnny, enough’s enough, pick your job, it’s either the military or working for us.’ We’re seeing a much tougher approach for employers. The war has dragged on and public opinion polls have changed.”
“Not a lot of teeth” in USERRA
The problem with USERRA, Tully believes, is “there’s not a lot of teeth in it.” Employers found guilty of breaking the law must pay three times the damages. If a service member comes home from a deployment, he’s making $50,000 a year at his job and six months later the company decides they’re tired of his weekend drills and trainings and fire him, he has a duty to go find another job. If his new job pays only $45,000, the only damage is $5,000 and three times that amount is $15,000. It’s easier to pay the person off.(I didn’t get to ask Tully what happens if that service member can’t find a job…)
Airlines are trending toward this policy, Tully said as well as nuclear power plants. “Pilots leave their airline to go to Iraq for a 90-day rotation. During that time period, the airline has to train a spare pilot which costs money. When the airman comes back, he has to spend two to three weeks of paid training. So the airlines seem to be more and more inclined to make business decisions and say ‘you’re fired.’ Nuclear power plants are the same way – if an operator leaves for more than 31 days, they have to go through six months or so of training when they come back before they can get back to their jobs.”
Come back tomorrow when we’ll talk about the violations to watch out for and what’s being done in Congress to strengthen USERRA.
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I am a military reservist and I am on continuous duty either on official military orders or regular weekends (on official duty). I have been fighting for 2 years to be restored to my position as a civil service worker. In I have receive email threats from management as well as documentation signed by higher authorities validating that management had problems with my reserve committment. After going to court, judicial officials refuse to review this as a USERRA violation when the letter clearly states that “if I continue to take short notice TDY’s to work my reserve job, they will downgrade my civilian appraisal.
Is this possible?