Battles and setbacks follow return to civilian posts, despite federal law.
February 27, 2012 (Star Tribune) – Michael Schutz came back to Truman, Minn., after being deployed to Kuwait with the Navy and expected to strap on his gun belt, refasten his badge and slide back into the police cruiser for the city, where he had worked full time as a cop before he left to serve his country.
Instead he was offered part-time hours and had to work two other jobs to make ends meet.
“I find it unfortunate that soldiers and sailors have to go overseas and do involuntary missions and have to deal with going away from family, then have to deal with this kind of problem when they come back,” Schutz said.
It’s a common belief that veterans returning from deployments can come home confident they’ll be given their old civilian jobs back, protected by federal law and, often, a sense of patriotism from employers grateful for their service.
But after 10 years of war, members of the Guard and Reserve are returning home to find their old jobs have been given to someone else, or they are coming back to fewer hours and benefits. Sometimes employers have been weary of accommodating the emotional and physical baggage that multiple deployments may exact.
The issue will take on added importance as the American military draws down its forces, spilling out as many as 50,000 service members into the civilian world. Half of the current U.S. military strength is now made up of forces from the Guard and Reserve. Close to home, 2,400 Minnesota National Guard troops are expected to return this spring from a deployment to Kuwait. In a survey before they left, 20 percent of them expected to come back and have to look for work.
But the federal law used for protecting those coming back to jobs is often a time-consuming venture that produces disappointing results. Cases are handled at the local level by an all-volunteer crew who do double duty handing out awards to businesses that treat their returning employees well. In Minnesota, if a service member files a complaint with the U.S. Department of Labor, the claim will be dismissed as having “no merit” more often than it will be settled or granted. Even finding out who the offending employers are is kept secret by federal privacy statutes.
“The law reads better than it works,” said Marshall Tanick, a Minnesota employment law attorney. “I wouldn’t say it’s toothless, but it needs a good case and some good support to have some bite.”
Pointing out the law
The Uniformed Services Employment and Reemployment Rights Act, or USERRA, is the key law protecting members of the National Guard and Reserves when they return to their civilian jobs. It makes it illegal for an employer to discriminate against a worker because he or she has served in the armed forces. With a few exceptions, it requires employers to restore seniority, benefits and pay to soldiers when they come back to work.
“It can take several years once a service member reports a violation until they may have their job back,” said John Baker, an attorney who specializes in laws affecting veterans. “At that point they may have moved on, but usually not to a better job; and their family and their own mental health have suffered in the meantime.”
To be sure, many employers go beyond the call of duty. U.S. Bank and 3M, for instance, have been recognized recently for outstanding contributions to their workers in the military. 3M makes up the difference between a worker’s salary and the soldier’s pay and provides the same level of benefits for deployed employees and their families. It even sends a worker’s military unit care packages and letters of support.
When there are problems, many companies just need the law pointed out to them, said Paul Monteen, local chairman of the Employer Support of the Guard and Reserve (ESGR), a Defense Department program that acts as an arbitrator — the first step in the process — if a soldier feels there has been a violation. Monteen said he sees the program working best when used informally.
“It’s more friendly to the service member than it is to the employer,” Monteen said. “The employers seem to step up and go above and beyond USERRA for their employees without our prompting or asking.”
But success is difficult to quantify. Until recently, the Minnesota ESGR did not keep data on the number of cases and how they were handled. In fiscal year 2011, though, the only year it has kept data, the group handled 70 cases, with the average case open for 9.5 days. It resolved 29 of them and sent 13 to the Department of Labor for further investigation.
For police officer Robert Simon, the process has failed him twice.
Simon was deployed twice with the Minnesota National Guard and had problems with his employer, the Bloomington Police Department, both times. Before a deployment to Afghanistan in 2003, he was asked during an interview for a higher-paying job about how long he would be gone, which he saw as a violation of the law. An investigator interviewed people in the department, then told Simon, who had been an officer with the department since 1994, that there was nothing that could be done.
During a second deployment to Iraq in 2009, three men in his platoon were killed and he returned with what he acknowledged were some unresolved mental health issues. He said the department failed to recognize his problems and deal with them correctly. But he later withdrew a complaint after what he saw as the investigation stalling. He subsequently retired from the department.
“USERRA will not fight anything that is not a clear-cut win,” Simon said.
Officials for the city of Bloomington, though, say they have been diligent about following the law and accommodating not only Simon but also another employee in the military, the city’s only epidemiologist. The city even gave Simon a welcome-home celebration after his first deployment.
The city attorney’s office attends annual employment law conferences that cover things such as USERRA, and its human resources department provides materials to departments.
“There was no basis, in my opinion, for him to claim we violated USERRA laws,” Bloomington City Attorney Sandra Johnson said.
When the ESGR office can’t resolve a complaint, the U.S. Department of Labor can investigate the claim. But a computer analysis of 10 years of Minnesota cases shows, at best, a mixed bag of results. The results are made more cloudy because the department refuses to release names of employers, making it impossible to determine if some are repeat offenders.
Of the 344 Minnesota claims handled by the department since 2000, according to a Star Tribune analysis, 107 cases, or 31 percent, were found to have no merit, the highest number of any category of claim. The department granted or settled 81 claims while 79 were withdrawn.
Governments accounted for 20 percent of the claims, with private businesses making up the rest. Claims peaked in 2008 at 50, corresponding with the return of a large contingent of Minnesota National Guard troops from a deployment to Iraq.
A spokesman for the Department of Labor’s Chicago regional office said a finding of no merit may mean only that there isn’t enough evidence to show that military service was the reason for the discrimination and that the case might be pursued for violation of other laws, such as age, race, gender, religion or disability.
The U.S. Justice Department also can sue companies that violate USERRA. In September, Thomas Perez, an assistant attorney general in the Civil Rights Division, told the U.S. Senate Judiciary Committee that the Department of Justice was aggressively enforcing USERRA, filing suit in 33 cases since the beginning of the Obama administration, compared with 32 cases filed in the previous four years under the Bush administration.
Last year, the U.S. attorney in Minnesota took on the Schutz case, filing suit against the city of Truman. Schutz said other service members tried to tell him not pursue a USERRA claim because “it will be nothing but problems.” He ignored them, figuring it “may be problems for you but it’s also problems for them as well.”
After Schutz, who was hired full time in 2005, began pursuing his case, the city accused him of misconduct, claiming he falsified one hour and 15 minutes on his time card, a discrepancy that amounted to about $25 in pay. They demanded he surrender his badge, his radio and his keys.
In court papers filed in the case, the city said Schutz’s position was reduced because of impending state aid cuts while he was deployed and that, because of the cuts, he was retained at his regular pay rate but with fewer hours.
“We are confident that claim will be dismissed,” said Jon Iverson, an attorney representing the city.
Marty Breaker taught business classes at Bemidji State University but was called to active duty in Iraq with the U.S. Army, where he was a colonel who guarded Saddam Hussein during one of his trials.
When he came home after nearly three years of active duty, Breaker found his old teaching job had been eliminated and the new post he was offered was in a different city and for less pay.
When Breaker tried to sue, he discovered that the state of Minnesota had immunity under the 11th Amendment of the U.S. Constitution, which protects a state (in his case the Minnesota State Colleges and Universities system) from being sued under some laws, including USERRA. Based on Breaker’s efforts, the Minnesota House unanimously passed a measure earlier this month that would allow a service member to sue the state for violating USERRA. A similar bill passed several key Senate committees and probably is headed to a floor vote soon.
“That shows the tenacity and fabric of a person when they don’t give up,” said Rep. David Dill, DFL-Crane Lake, the chief author of the bill in the House. “He didn’t sit around and cry in his beer and cry foul. He did something about it.”
Breaker, who now teaches at the University of Minnesota, Crookston, has completed law school and hopes to practice USERRA law once he passes the bar. During his three-year ordeal, he had to remortgage his house and borrow on a life insurance policy.
“I didn’t expect a ticker-tape parade when I got back,” Breaker said. “But I expected to be treated with some degree of fairness.”