On April 18, 2012, Senator Patty Murray (D-WA) introduced a bill entitled the Servicemembers Rights Enforcement Improvement Act (SREIA), which would strengthen the employment rights of veterans and members of the military. The bill is intended to improve the enforcement of the Uniformed Services Employment and Reemployment Rights Act (USERRA), which prohibits employers from penalizing or denying jobs to service members based on their military status.

If signed into law, SREIA would enable the Justice Department to investigate and bring lawsuits against employers with a history or pattern of USERRA violations.  The proposed legislation would also allow the Office of Special Counsel to subpoena relevant testimony and documents from federal employees and agencies.  In addition, the legislation would protect service members from being improperly overcharged or foreclosed upon by banks.

“[This legislation]… will help force the hand of those who have failed to follow the law when it comes to providing our nation’s heroes with the basic safeguards they deserve,” said Sen. Murray, who is the Chairman of the Senate Veterans’ Affairs Committee.

The Employment Law Group® law firm has an extensive veterans rights’ practice and has published a guide for protecting employees covered by USERRA entitled “Litigating Claims Under the Uniformed Services Employment and Reemployment Rights Act.”

On April 5, 2012, the U.S. Department of Justice (DOJ) filed a lawsuit in U.S. District Court for the District of Arizona alleging Home Depot violated the Uniformed Services Employment and Reemployment Rights Act (USERRA) by firing an employee because of his military service obligations. Brian Bailey, a California Army National Guardsman and department supervisor at Home Depot, worked at Home Depot for three years before Home Depot fired him on May 25, 2010.

The lawsuit claims that store managers in Flagstaff, Arizona wanted to remove Bailey from his supervisory position  “because of the leave from work he required due to his military obligations.” DOJ lawyers ask that the court require Home Depot to reinstate Bailey and award him compensation for lost wages and benefits. In addition, DOJ lawyers ask that the court enjoin Home Depot from violating USERRA in the future.

Home Depot says they fired Bailey for performance reasons unrelated to his military service. They also claim that they provided Bailey with time off for military training when he requested it. In eight years, says the company, it has hired more than 60,000 veterans, and it has launched an effort with the Defense and Labor departments to hire veterans.

The Employment Law Group® law firm has an extensive veterans rights’ practice and has published a guide for protecting employees covered by USERRA entitled “Litigating Claims Under the Uniformed Services Employment and Reemployment Rights Act.”

On March 24, 2012, John Berry, the director of the U.S. Office of Personnel Management (OPM), requested that senior federal executives ensure that National Guard and military reservist troops returning to their civilian jobs are not penalized for serving in the military. Berry made his request in a memo to the President’s Management Council and the Chief Human Capital Officers
Council.  He wrote the memo in response to a Washington Post article from last month, which reported that the federal government is the biggest violator of the Uniformed Services Employment and Reemployment Rights Act (USERRA).

“We must continue to pay close attention to our returning reserve and guard population and ensure we manage their reintegration and maintain their professional trajectory,” said Berry.

Berry also said that he is encouraged by recent Bureau of Labor Statistics (BLS) figures, which show a drop in veteran unemployment. The BLS reported in March that unemployment among Iraq and Afghanistan veterans
dropped from 12.1 percent in 2011 to 7.6 percent in February 2012.

“We still have work to do, but the trajectory shows the impact we have when we focus our efforts and work together,” Berry told a leadership conference in New York.

The Employment Law Group® law firm has an extensive veterans rights’ practice and has published a guide for protecting employees covered by USERRA entitled “Litigating Claims Under the Uniformed Services Employment and Reemployment Rights Act.”

On March 21, 2012, Oregon Attorney General John Kroger announced that the City of Salem, Oregon and the Salem Fire Department agreed to settle a suit that alleged violations of the Uniformed Services Employment and Reemployment Rights Act (USERRA).  According to the complaint, the Salem Fire Department discriminated against firefighters who also serve in the National Guard.  The Department allegedly refused to cooperate in scheduling National Guard members, issued unwarranted negative performance reviews to the Guard members, and terminated members during probationary service.
The Civil Rights Unit of the Oregon Department of Justice received many complaints from current and former Salem firefighters who said the fire department discriminatedand retaliated against them for participating in National
Guard trainings and deployments. The Civil Rights Unit investigated and found  the allegations to be accurate.
Under the terms of the settlement, Salem must report any complaints of discrimination or retaliation against members of the military to U.S. District Court Judge Michael Hogan and the Department of Justice for the next three years.  Salem could face monetary damages or further penalties if it fails to meet the terms of the settlement.

“Members of the armed services should be treated with the utmost respect for their service to this country,“ Associate Attorney General Keith Dubanevich said in a prepared statement. “I’m pleased that this agreement will result in significant reforms that will protect veterans.”

The Employment Law Group® law firm has an extensive veterans rights’ practice and has published a guide for protecting employees covered by USERRA entitled “Litigating Claims Under the Uniformed Services Employment and Reemployment Rights Act.”

On March 13, 2012, the Department of Justice (DOJ) sued United Airlines Inc. for violating the Uniformed Services and Reemployment Rights Act (USERRA) when it allegedly denied a pilot employment benefits while he served in the military. The DOJ filed its complaint in U.S. District Court in Denver, claiming United Airlines undercompensated the pension of TenEyck LaTourrette, a first officer for United Airlines and a major in the Colorado Air National Guard.  

The DOJ alleges that United paid LaTourrette’s pension based on a minimum monthly schedule, rather than using LaTourrette’s actual schedule during the year before he began military service. USERRA requires employers to use employees’ actual schedules from the 12  months prior to their military service as the basis for determining pension plan contributions. The suit claims that because most pilots work more than a minimum schedule, United underpaid the pensions of LaTourette and other military reservists until November 2010, when United changed its pension payment policy to meet the requirements of USERRA.

“No members of our armed forces should ever be penalized for answering the call of duty,” said Thomas Perez, Assistant Attorney General for the Civil Rights Division of the U.S. Department of Justice. “The filing of this lawsuit reflects the Civil Rights Division’s continuing commitment to fully protect our uniformed service members’ employment rights under USERRA.”

The Employment Law Group® law firm has an extensive veterans rights’ practice and has published a guide for protecting employees covered by USERRA entitled “Litigating Claims Under the Uniformed Services Employment and Reemployment Rights Act”.

On February 28, 2012, the U.S. Equal Employment Opportunity Commission released two publications regarding the rights of disabled veterans under the Americans with Disabilities Act (ADA): (1) a guide for employers, and (2) a guide for veterans. With one million veterans expected to return to the U.S. from overseas deployments in the coming year, the EEOC wanted to ensure that both employers and veterans are aware of veterans’ rights in the workplace. Amendments to the ADA in 2008 expanded what constitutes a disability to protect veterans with many service-connected disabilities.  

The employer-focused publication, Veterans and the ADA: A Guide for Employers, outlines the differences between the ADA and the Uniformed Services Employment and Reemployment Rights Act (USERRA) in the treatment of veterans with service-connected disabilities. It also provides employers with a guide to preventing disability-based discrimination in the workplace and how they can provide reasonable accommodations.

The version for veterans, Understanding Your Employment Rights Under the ADA: A Guide for Veterans, describes accommodations necessary for disabled veterans to succeed in the workplace. It also answers questions that veterans with service-related disabilities have asked about the job security to which they are entitled when they return from a deployment.

“We want veterans with disabilities to know that the EEOC has resources to assist them as they transition to or move within the civilian workforce,” EEOC Chair Jacqueline A. Berrien said. “The release of these publications demonstrates our commitment to ensuring that veterans with disabilities receive the full protection of the laws we enforce, and that employers understand how to comply with those laws.”

The Washington Post recently published a report addressing the widespread problem of the federal government penalizing, and denying jobs to, reserve and active-duty military members. Under the Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994, it is unlawful for both private and federal sector employers to discriminate against service members based on their military service. In fiscal year 2011, over 18 percent of 1,548 complaints of USERRA violations involved federal agencies.

Although President Obama’s administration has made it a priority to decrease veterans’ unemployment rates, advocates for veterans claim that the process of challenging alleged USERRA violations by the federal government is extremely difficult for service members.  No single government agency has oversight over resolving USERRA claims. Additionally, veterans advocates claim that the federal government has little incentive to fix this problem because the government faces no penalties for USERRA violations other than being ordered to pay back wages.  By contrast, private sector employees who violate USERRA could also be liable for double an employee’s lost wages.

“The whole complaint process is totally broken,” stated a member of the Army Reserve who was allegedly terminated from his position at the Social Security Administration because he missed work for officer training. “I’m a federal employee, and a reservist, and I felt completely unprotected and abandoned by the federal government.”

The Employment Law Group® law firm has an extensive veterans rights’ practice and has published a guide for protecting employees covered by USERRA entitled “Litigating Claims Under the Uniformed Services Employment and Reemployment Rights Act”.

On February 13, 2012, the U.S. Department of Justice (DOJ) announced that it reached a settlement agreement with the City of Highland Park, Michigan resolving a lawsuit alleging that the City willfully violated the Uniformed Services Employment and Reemployment Rights Act (USERRA) by refusing to re-employ U.S. Army reservist Paul Baetz after hereturned from military service in Afghanistan in 2009.

Prior to his deployment, Mr. Baetz had worked as a firefighter for Highland Park and, according to the DOJ, while Beetz was on duty overseas, Highland Park promoted three less qualified firefighters to full-time positions and then refused to reinstate Baetz to his former position as a full-time firefighter upon his return. USERRA requires employers to re-employ qualified service members to the positions that they would have held had they not been deployed, or to provide the returning veterans with another position with similar pay, seniority, and status.

The U.S. District Court for the Eastern District of Michigan approved a consent decree which will require Highland Park to pay Baetz nearly $25,000 in compensation for lost wages, missed pension contributions, and other damages. While Baetz received a promotion after the DOJ began investigating his claims, the decree also requires that Highland Park retroactively adjust Baetz’s date of promotion back to 2009 when he should have received the promotion.

Barbara McQuade, the U.S. Attorney for the Eastern District of Michigan, noted that “we owe it to our service members to protect their civilian career opportunities while they are sacrificing so much to serve our country.”

The Employment Law Group® law firm has an extensive veterans rights’ practice and has published a guide for protecting employees covered by USERRA entitled “Litigating Claims Under the Uniformed Services Employment and Reemployment Rights Act”.

The City of Brockton, Massachusetts recently agreed to pay $32,356.84 to a United States Army  reservist to settle a lawsuit filed by the U.S. Department of Justice (DOJ). Brockton allegedly violated the Uniformed Services Employment and Reemployment Rights Act (USERRA) when it failed to promote Army reservist Brian Benvie’s to police sergeant because he was away on military duty. USERRA generally requires that employers rehire returning military service personnel into positions similar to what the service members would have held if their military service had not interrupted their employment.

The DOJ claimed that Brockton failed to retroactively promote Benvie to sergeant, the rank he would have held had he not been called for reserve duty. Additionally, the DOJ alleged that Brockton denied Benvie the opportunity to take the October 2008 lieutenants’ promotional exam when he returned from service.

The settlement requires that Brockton provide Benvie with backpay and promote him to police lieutenant.

“The men and women who bravely serve our nation in the armed forces should not have to sacrifice their civilian career opportunities to do so.  Employers have a legal obligation to ensure returning service members are placed back into the appropriate position and status, when they return from military duty, as required by law,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division.

A bipartisan group of seven senators have introduced legislation to expand the Uniformed Services Employment and Reemployment Rights Act (USERRA) to include protection for Transportation Security Administration (TSA) officers who are called to active duty.

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USERRA mandates that members of the uniformed services who hold civilian jobs are entitled to return to their civilian jobs upon completion of military service.

Transportation security officers (TSOs) employed by the TSA are currently excluded from USERRA protection. After the terrorist attacks of September 11, 2001, Congress included TSOs in a special category of federal employees considered critical to national security and exempted them from USERRA protection.

According to Senator Joseph Lieberman (D-CT), one of the bill’s sponsors, many transportation security officers “find themselves in a clearly unjust and inadvertent position.” Sen. Lieberman further noted that the proposed legislation would “simply require TSA to comply with USERRA, providing transportation security officers the protection of reemployment, to which every other type of worker – in both the private and public sectors – is eligible.” Sen. Lieberman is the chairman of the Senate Committee on Homeland Security and Governmental Affairs.

TSA has claimed that it voluntarily complies with USERRA, but without a legal mandate, National Guard members, reservists, and veterans who work as TSOs cannot be certain that they will be able to return to their jobs after a military deployment. According to the Veterans of Foreign Wars (VFW), at least two TSOs have attempted to appeal TSA actions under USERRA but were unsuccessful when both the Merit Systems Protection Board (MSPB) and the Office of Special Counsel ruled that they were not currently entitled to USERRA protections.