People's Law Guide
Though returning service personnel should be welcomed home with open arms, warmth, and appreciation, a surprisingly high number are shunned by employers obligated by federal law to re-hire them. About 23% of reservists report being unable to return to their prior jobs because employers wouldn’t promptly re-hire them or their job situation changed during their military leave, according to the U.S. Department of Labor. Thirteen percent of those returning from military duty said although re-hired, they were provided with duties or pay-rates below those they were entitled to receive, but feared their employers would retaliate against them if they sought redress, DoL reports.
Though DoL has the authority to take legal action against employers who fail to adhere to obligations mandated by the Uniformed Services Employment and Reemployment Rights Act, (USERRA), it acts infrequently. Sam Wright, an attorney who helped write this law while previously employed by the DoL, revealed in an interview with the news media that “most of the government investigators are too willing to accept the employer’s explanation for a worker’s dismissal.” He concludes, “as a result, reservists lose out.” An American Bar Association report released in 2004 concluded that the government was “not seen as an aggressive advocate for the returning veteran.”
Retired Marine Lt. Col. Steve Duarte told U.S. Senate investigators that DoL and the Pentagon all but ignored his complaints that Agilent Technologies, Inc. refused to reinstate him to the position he held prior to his second mobilization. Although he received favorable job performance evaluations with the firm in the past, he began receiving negative performance evaluations when reassigned not to his regular position, but to a “special project” after returning from his last tour of duty. Just four months after being rehired, Agilent fired him. Duarte retained a private attorney who filed a lawsuit on his behalf, resulting in a court judgment exceeding $430,000.
Duarte is not the only veteran who felt abandoned by the government when experiencing bias by employers who would rather not see them reenter the same workplaces they had built their careers at. Forty four percent of reservists are dissatisfied with how the DoL handled complaints of job discrimination arising out of military status, according to a 2005-2006 Pentagon survey. In 2004, 27% expressed such dissatisfaction. As even more troops return home when the war winds down, speculation is that both the actual numbers and the statistical rate of discrimination will hike even higher.
Uniformed Services Employment & Reemployment Rights Act:
1. be a past or present member of the uniformed service; or,
If Injured While in Military Service:
Although most veterans will have found new work after experiencing discrimination, the new jobs may pay less then the position which they were entitled to be rehired to. As a result, judges are empowered to award reimbursement for on-going reductions in wages and benefits which could last months or years past the conclusion of a trial. Further, courts may also require employers to pay the attorneys fees for the service members who prevail in their cases
Other Laws Benefitting Service Members:
Employees of the State of Florida: Entitlement to 30 days of pay upon deployment, receive
Spouses of Service Members: Florida provides unemployment compensation benefits for spouses who leave jobs to accompany service members who relocate.
Family & Medical Leave Act: If you require the assistance of an immediate family member to assist in your recuperation from a service-related injury or illness, immediate family members may qualify to take as long as 12 weeks leave from their jobs to assist you. Spouses, parents and working-age sons and daughters who have worked for their current employers for at least 12 months duration, have worked at least 1,250 hours for their employer in the prior year, and have at least 49 other co-workers within a 75 mile radius of their jobsite, can have their jobs held open while they provide assistance to injured or ill loved ones. The leave can be used in multi-day or multi-week stretches or on a sporadic or intermittent basis, such as for two or three hours when needed, though the U.S. Department of Labor is currently contemplating restricting sporadic or intermittent leave policies. Employers are currently lobbying the DoL that providing FMLA leave on an intermittent or sporadic basis, despite the leave being unpaid, is disruptive to their operations and too expensive to maintain bookkeeping on, though it does maintain such bookkeeping anyway to keep track of hourly pay obligations.