On Veterans Day 2005, the White House issued Fact Sheet: Honoring America’s Veterans. One of the items that was bulleted in that official communiqué, under Helping America’s Newest Veterans Transition To Civilian Life read:
DOL And The Department Of Justice (DOJ) And The Office Of Special Counsel Actively Protect The Employment Rights Of Veterans. DOL helps veterans and employers understand their rights and responsibilities under the Uniformed Services Employment & Reemployment Rights Act (USERRA). This law requires employers of active duty service members, reservists, and deployed National Guard members to reinstate them to their jobs with full pay and benefits. If returning soldiers face problems in securing reinstatement and legal action is necessary, DOJ personally represents returning soldiers under USERRA when they seek to resume the job they left to serve their country. The Office of Special Counsel represents soldiers’ Federal sector USERRA claims.
USERRA is supposed to protect Reservists and Guardsmen from job losses, demotions, denial of promotion, loss of benefits and loss of seniority sustained due to military service and deployment.
Supposed to.
It doesn’t exactly work that way in this administration. But they always have to push just a little bit further, you know? They have not merely failed to enforce USERRA – this administration and the Rove Department of Justice has made the statute virtually unenforceable.
Military personnel who return from deployment to discover their civilian employment gone, then find out that they are charged with proving that their jobs were taken away as a result of their call-up to active duty. Essentially, a complainant must prove that there is no possible reason other than their deployment for their termination. The bar is set so high that employers ignore the law and most of the victims of that disregard don’t bother filing complaints, figuring following procedure to be a mugs game. The GAO estimates that fewer than 30% of wrongfully terminated Reservists and Guardsmen file USERRA complaints.
Those who do file complaints with the Veterans Employment and Training Service Department (VETS) find that resolving their complaints, by the military's own admission, can take "months, if not years." A declassified Defense Department memo compiled for military lawyers stated: "Many VETS field investigators simply accept whatever the employer tells them in a response and close their files" rather than continue an investigation, meaning the reservists never receive assistance. A 2005 GAO report found that the average time service members have to wait for USERRA complaints to be resolved is 619 days -- nearly two years.
Complaints that cannot be closed are referred to the Justice Department for prosecution, but few cases make it that far. In 2005, of the 5,302 complaints filed by reservists, 111 cases were referred to the Justice Department. Only 16 resulted in benefits going to reservists.
Maybe “mugs game” was too generous an assessment.
Veterans are fighting mendacity on two fronts. The DoJ fails to prosecute the employers who violate the law and screw the service men and women, while the Deparment of Defense does backflips to keep the reemployment problems of returning vets under wraps. The GAO charges that “the Pentagon's annual Status of Forces Surveys provide the only accurate account of the number of reservists experiencing reemployment difficulties. These surveys ask reservists about their service, job loss and whether they are receiving the legal protections -- occupational and otherwise -- guaranteed to them under federal law…Status of Forces Surveys used to be available to the public. But the 2005 and 2006 surveys of returning reservists and guardsmen were designated "for official use only," putting them off-limits to civilians, journalists or anyone else outside government curious about enforcement of USERRA.
This action by the Defense Department has rendered oversight of this issue virtually impossible.
The men and women who serve us deserve a hell of a lot better than we have given them. They sacrifice, and so do their families. Most Reservists and Guardsmen are working class people, and service often represents its own financial setbacks. Coupling that economic impact with a job lost illegally is, one would imagine, enough to send many into bankruptcy – and if they are still in the Reserves or the Guard – bankruptcy is considered a “character issue” and will endanger career and clearance. Most can’t afford the legal representation to pursue legal remedies, and I have not seen a single silk-stocking Republican law firm running ads that they will represent veterans pro bono in USERRA claims.
Contact your elected representatives and demand that USERRA be enforced, and the statistics made public. Our service men and women deserve to have the bargain they made with us upheld, and we deserve to know that our government isn’t screwing over the men and women who suit up not to serve the pentagon, but to serve the American people and the Constitution that binds us together as one.
