Steve Duarte says the government system set up to make sure employers rehire National Guard and Reserve members returning from military duty is flawed.
“There are pieces of the system that are broken and need to be addressed,” Duarte, 53, said last week.
A retired Marine Corps reservist who was denied his old job when he returned from Iraq, Duarte suggests trying to work it out with the company and, if that doesn’t work, seeking the advice of a lawyer.
With more than 478,000 troops demobilized since the nation went to war in 2001, first in Afghanistan and then in Iraq, a federal system that was set up in peacetime has struggled to enforce the Uniformed Services Employment and Reemployment Rights Act – a law known as USERRA that was put in place to protect returning troops. Among other things, the act requires employers to reinstate returning soldiers to positions equivalent to those they left.
A 2005 Government Accountability Office survey found that up to 8 percent of 119,761 Reserve members weren’t quickly rehired by their old employer. As many as 14 percent lost seniority, seniority-related pay or benefits, and up to 9 percent didn’t receive immediate reinstatement of employer-provided health insurance.
A GAO analysis of 52 complaints that had been closed, then reopened two or more times, found the service members waited to have their complaints fully addressed an average of 619 days.
USERRA complaints are handled by various government agencies: the Employer Support of the Guard and Reserve, or ESGR, which is a Defense Department agency; the Labor Department; the Justice Department; and the Office of Special Counsel, which protects the rights of federal employees.
Mediation and education
ESGR, which has branches staffed largely by volunteers in each state, is the first stop for some of those who feel their employers have stiffed them.
“A lot of the time it is just saying to this employer, ‘Look, there is this federal statute out here,”‘ said John Lowrie, ESGR’s Colorado chairman.
Colorado’s ESGR mediated 77 cases and resolved 76 of them in 2005, said ESGR spokesman Rob Palmer. He doesn’t know what happened to the unresolved case.
“We can’t resolve every problem that comes to us,” Palmer said. “We are not given any authority by Congress to resolve these issues. What we do is try to work informally with the employers to resolve the issue. The people who are doing harm to reservists and guardsmen are employers who fail to respond to USERRA,” said Palmer.
Mediation isn’t the only duty carried out by ESGR’s volunteers, 20 of whom are in Colorado. It is up to them to educate employers about the law. Lowrie said he could use 30 more volunteers.
In spite of the volunteer shortage, he said, the office here has been successful in doing its job. Over the past three years, he said, ombudsmen have settled most cases in two to three days.
But the GAO report found that most returning soldiers don’t bother to use the system to address their complaints.
“I know too many people who have had problems with it,” said Jimmy Vigil, a Marine reservist. Vigil contacted George Aucoin, a lawyer and Marine reservist who handles USERRA cases, rather than work through the system, after Denver Public Schools refused to reinstate him to his position as dean of students at East High School.
Vigil, who was fired by DPS after taking a leave of absence to serve in Nigeria, expects to be released from duty by March. He has not sued.
“He has a job waiting for him,” DPS spokeswoman Alejandra Garza said Friday. She said Vigil’s case was a misunderstanding and that the school board was auditing its human resources department “because of this to make sure these issues are dealt with more effectively.”
Both Vigil and Duarte were featured in 5280 magazine this month in a story about veterans returning home to find difficulties reclaiming their jobs. Vigil said he is taking a wait-and-see approach.
Strain on small businesses
The back-to-back deployments to Afghanistan and Iraq are putting a strain on small businesses, but most try to follow the law, said Mike Diegel, a National Federation of Independent Business spokesman.
“Most of our small-business owners are aware of the patriotic duty these people are volunteering to undertake and want to ensure that they have jobs to come home to,” he said. “But that means other people have to fill in for them, and that puts more stress on everyone to get the work done.”
Duarte, who sued his employer, Agilent Technologies, when he was fired shortly after returning from active duty to work in 2003, won a $500,000 judgment last year.
He said he filed suit only after getting the runaround from the ESGR and Labor Department. At ESGR he was told to take his complaint to Labor, and when he called Labor, he was told he needed proof that his employer had fired him because of his service activities.
After following the same path a second time, he called Aucoin. The next time Duarte called ESGR, he was told the agency couldn’t help him because he had a private attorney.
Lowrie said Duarte contacted his agency only once and by that time had initiated legal action.
“We can’t press on with a case once they have retained private counsel,” Lowrie said.
The GAO survey found that ESGR didn’t have data good enough to determine its own effectiveness. The study found that the various government agencies charged with helping veterans also relied on incompatible computer systems.
Since then, both the Labor Department and ESGR have upgraded their computer systems, but ESGR won’t have a full-scale fix until the end of 2007.
Before the terrorist attacks of Sept. 11, 2001, the Department of Labor handled about 900 complaints a year. In fiscal year 2005, the number was 1,353. But from Oct. 1, 2005, the beginning of the fiscal year, until mid-August 2006, as many complaints were filed as in all of fiscal year 2005.
When the ESGR is unsuccessful in resolving a case, the service member can go to the Labor Department. Labor refers the case to the Justice Department if the company appears to be intentionally violating the law or if a federal agency refuses to accept its recommendations to the Office of the Special Counsel.
Aucoin said that for most service members with a claim against their employer, the government process doesn’t work quickly or efficiently enough.
“The system is under stress,” he said.
The job assigned to ESGR is too great for a volunteer organization to handle, said Aucoin.
“We are educating thousands of American employers with volunteers? It doesn’t seem to make a whole lot of sense,” he said.
Staff writer Tom McGhee can be reached at 303-954-1671 or tmcghee@denverpost.com.
