Guard, reserve jobs targeted
BY FRANCINE KNOWLES Business Reporter fknowles@suntimes.com May 29, 2011 7:04PM
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Updated: September 10, 2011 12:36AM
Federal law is supposed to protect the jobs of military reservists and National Guard soldiers when they’re deployed. But multiple deployments and a weak economy have prompted some employers to try to thwart the law, veterans advocates say.
Meanwhile some reservists and National Guard members have returned home to find their jobs have vanished during the recession as past employers have shuttered their businesses, laid off workers and cut shifts.
“A lot of employers are getting sick of it and are trying to resist” the law, said Capt. Samuel Wright, director of the Service Members Law Center of the Reserve Officers Association. “Most employers are doing the right thing. But I think there’s a substantial minority that either they don’t know [the law] or claim they don’t know but really do and are trying to figure out a way to get out from under it.”
Some employers seek to skirt the law by classifying workers as independent contractors, to whom the Uniformed Services Employment and Reemployment Rights Act does not apply, Wright said.
The 1994 act, the roots of which date back to 1940, is commonly known as USERRA. It prohibits discrimination in employment of military members and requires employers to re-employ returning reservists and National Guard members to their previous jobs prior to deployment. It also requires employers to provide any raises or benefits the soldiers would have earned if they hadn’t been deployed.
“But if your job would have been gone anyway,” due to the economy, “you might be out on the street,” Wright said. In those situations, there is no legal recourse.
The Employer Support of the Guard and Reserve, a Department of Defense agency which handles USERRA complaints, reports the number of inquiries regarding the law jumped from 13,090 nationally in fiscal 2008 to 34,612 in fiscal 2010. In fiscal 2010, 3,202 of those turned into cases, up from about 2,664 in fiscal 2008.
The Labor Department, which administers USERRA, reported the number of new USERRA cases it reviewed rose from 1,252 nationally in fiscal 2005 to 1,431 in fiscal 2009, the latest data available.
But getting an exact number of potential violations is difficult, Wright said. Some soldiers and veterans aren’t aware of the legal protections and some opt to seek private legal help, so they aren’t reflected in the data.
He cited the case of Army Reservist Vincent Staub. He had been employed by Proctor Hospital in Peoria as an angiography technician. Staub was fired in 2004 after 15 years at the hospital and after being called to active duty to serve in Iraq. Staub claimed, and a jury agreed, that supervisory staff were out to get him and hostile to him because of the time he had to take off from work for Reserve duty. That duty also included drills one weekend a month and full-time training for two-to-three weeks a year. A jury awarded Staub $57,640 in damages.
A federal appeals court in Chicago threw out the verdict and upheld the firing citing the fact that a senior executive decision maker, not the biased supervisor, made the ultimate decision to fire Staub. But the Supreme Court voted 8-0 this year to throw out the appeals court ruling and ordered the lower court to reconsider the case.
“I think we need stronger enforcement,” Wright said. “I think we need to do a better job of telling employers what their obligations are and telling veterans and Guard and Reserve members what their rights are.”
