Heralding USERRA — the unknown law that protects jobs at home while military members serve

military-man-station-6081107By Sarah Schlehr

I am proud to say that my younger brother is a Veteran of the Marine Reserves.  He served two tours of active duty—both in Iraq.  Being a Marine is part of his identity and something he will wear as a badge of honor through his life.

My brother signed up for the Marine Reserves shortly after 9/11.  While I personally did not support our invasion of Iraq, I always supported our troops and personally witnessed the commitment and passion of my then 19 year old brother in wanting to protect our country’s freedoms.

At the time of his first call to duty, my brother was just 22.  He worked a full-time job at a grocery store in the Midwest.  Although I make my living representing employees in legal disputes with employers, his was my first experience with the ways employers, whether knowingly or through ignorance, violate the Uniformed Services Employment and Reemployment Rights Act (USERRA).

Though his job paid just over the minimum wage, my brother was on management track and entitled to health benefits.  That is, he was until he notified his employer that he had been called to active duty for service in Iraq.

Shortly before my brother left for Iraq, his manager called him into his office and had him sign a paper stating that he was being reduced to part-time hours, but that he would be eligible to return to full-time status if and when he returned.  Unhappy with this demand, but also preoccupied with his impending departure to active military service and unfamiliar with his rights under USERRA, my brother signed the paper and left.

After sharing his frustration with others more knowledgeable about the law, he went back to the store, and asked to see the paper that he had signed.  He then tore it in half.  His stunned manager asked him if he was walking out of the job.  My brother responded “No, I’ll be back in about a year,” and left for Iraq.

It is shameful that so many military service members are uninformed about their rights under USERRA, the federal law designed to protect their civilian jobs, and to ensure their re-employment after deployment.  Ignorance of the law appears to be rampant. And despite efforts by both the Department of Labor and the Department of Defense to educate employers on their obligations under USERRA, complaints by service members are on the rise.

USERRA requires employers to provide service members time off to serve in the military and to restore them to their jobs promptly when they return from duty.   Importantly, it also requires the employer to continue medical coverage for service members and their dependents through any employer-based health plan for up to 24 months and prohibits discrimination and retaliation against service members.  In my brother’s case, the employer’s attempt to move him to a part-time position could have impacted his entitlement to coverage during his tour of duty.

It is impossible to determine the actual number of USERRA violations because there is no central collection point for reporting claims. And some service members, like my brother, may never formally complain.  However, we do know that complaints filed with the Employer Support of the Guard and Reserve (ESGR), an agency within the Department of Defense, and through the Veterans in Employment and Training Service (VETS), an office within the Department of Labor rose between 2010 and 2011, the most recent years for which numbers are currently available.

The Defense Department’s ESGR attempts to informally resolve service members’ complaints through the use of volunteer ombudsman.  During FY 2011, the most recent year for which numbers are available, the ESGR mediated 2,884 USERRA cases.  Over 1500 of them involved problems with job reinstatement and reemployment. Although instructive, these numbers don’t tell the whole story since there is no requirement that employees complain to the ESGR nor are they required to participate in mediation.  At the same time, the Department of Labor VETS program reviewed 1,548 new unique USERRA complaint cases, up 8% from the previous year.

These numbers do not tell the whole story.   Many service members are unaware of their rights under USERRA.  Even those who know about USERRA may be reluctant to pursue legal recourse.  Those who do pursue their rights may utilize legal avenues outside of the ESGR and VETS.

Fortunately, my brother came home from Iraq safely and was able to return to his job.  When he returned, he went back to the same store and manager and experienced no serious repercussions or retaliation.  He still isn’t sure if his former employer was intentionally violating the law or just ignorant of its protections.

But not everyone is so lucky.  Much more needs to be done to educate both employers and service members of their employment rights, to track violations, to punish violators, and to provide redress.  Surely, that’s the least we can do to repay the sacrifices made by  the men and women protecting our country.

Sarah Schlehr

About Sarah Schlehr

Sarah B. Schlehr is the founder of The Schlehr Law Firm, P.C. Her firm focuses on representing employees who are discriminated against because of pregnancy or for taking a leave of absence. Her firm also represents veterans who have been discriminated against for taking military leave. She is a graduate of Harvard Law School, Brigham Young University, Gerry Spence’s Trial Lawyers College, and the Strauss Institutes’ Program on Mediating the Litigated Case.

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