The Rights Stuff Forum: Minnesota's Veterans

Minnesota's Veterans: The Road Back Home

Kevin Nagel

Kevin Nagel, Minnesota Director for Veterans Employment and Training, U.S. Department of Labor

The Uniformed Services Employment and Reemployment Rights Act (USERRA) exists in part to ensure that servicemembers are not discriminated against in employment based on past, present, or future military service. The U.S. Department of Labor's VETS program investigates allegations of USERRA violations by employers, and refers cases that cannot be settled through mediation to the U.S. Department of Justice.

Comments by Kevin Nagel

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Question: Could you explain what kind of protections the USERRA law provides, and your department's role in enforcing it?

The key element to USERRA is that the service member should be treated as though they never left. The condition under the law is called the escalator principle — when the service member is returning, you don't look at where they left, you look at where they would have been had they not left. Now often times it's exactly the same place, but most times that escalator goes up at least some. As an example, if the individual was due for a promotion and would have had that promotion had they not left, that promotion must be given to them when they come back. The same with any salary increases they would have missed because of their active duty and so forth.

The escalator can go down in very few cases. Especially during these times, with all the company layoffs that have been going on, if the employee would have been laid off, then that is the reemployment position. You've just got to make sure that if it's a true layoff where there are going to be recalls, that the person is placed in the proper layoff relocation position on the list, where they would have been based on their seniority.

When we open a case, we represent what the law says. We don't represent the veteran or the employer, and we make sure we protect the employer's rights as well, to make sure they're only having to do what the law requires, nothing more.

Question: What kinds of USERRA law violations are you seeing?

In a lot of cases, an employer has got to make layoffs. Well, Johnson, he's out on military leave, so he's an easy one to pick. He was a convenient one, but not necessarily one that would have been laid off. The employer can lay him off, if it can demonstrate that this person would have been laid off even if they were still there. In a lot of the cases we're getting, an employer may not understand this.

That's one example. The majority of violations are simple misunderstandings — the employer didn't understand the law or wasn't aware of certain provisions or requirements. I would say it's about a 50-50 split, between those who file cases and those who actually have a complaint. Not all complaints are meritorious.

Question: How many cases do you get each year?

Because of that big group that came back about a year and a half or so ago, in 2008 we had about 60 cases. In 2009 we had about 50 cases. We are on a pace right now where we're probably going to be upwards of 50 cases.

Question: Are there more potential violations in some industries than in others, or with smaller vs. larger employers?

I can't say there is one necessarily more than the other, it varies across the spectrum. At a lot of your major companies, their legal departments understand what USERRA is. But when you get down to the local supervisor, if they don't have a full understanding, they can give bad information. The supervisor is a representative of that employer, and when the service member comes back, that was his boss when he left, and that's who he's requesting his job back from. That's where a case can start, even though the corporation overall is aware of the law.

Question: If you investigate and you find that the employer did not do what they should have done, what happens next?

If we find a violation, we explain to the employer what it is and what should have happened, and then try to settle the case based on what the law prescribes. We can't make the employer settle with us. If they don't agree and say no, that's their right. We then go back to the claimant and say, we found a violation, but your employer doesn't agree with us. They then have the right to what we call referral — to have their cases referred to the U.S. Department of Justice for consideration of litigation. And it's free to them, free to the individuals.

In most cases, there are no penalties under USERRA, unless the courts find that an employer knowingly violated the law. Then, whatever the employee's back wages, the court could request doubling of that amount, plus they could assign court fees, attorney fees, and that sort of thing to the employer.

Question: How often does it happen that after you have found a violation, the employer still refuses to comply with your findings?

Rarely. I just completed one. The employer made a settlement offer that the claimant didn't accept, which they felt was a very fair offer, and the claimant wanted more. The employer said no, we understand your position, but we are going to stick with our position. So it has been forwarded to the Attorney General's office. Once it gets through our legal process and goes over to Justice, we are out of it, and we rarely find out what the outcomes of those are.

Question: If an employer was reluctant to hire a returning service member because of a concern about post traumatic stress, would that fall under your jurisdiction?

Yes it would. And there are so many contracts and subcontracts today, that it could also fall under the Office of Federal Contract Compliance, because we have a crossover with that agency.

But the most common reason given now, if the employers aren't hiring somebody that they determined is a member of the Guard or Reserve, they won't hire them because they know they're going to get called up. That's illegal. But we have to be able to prove that, we have to be able to have someone say that or do something that would indicate that. We get a lot of cases that are he-said, she-said, and those are nearly impossible.

Question: How many cases like that do you get?

That's probably 20 percent of our cases. The majority of our cases are reemployment. If they're gone for more than six months, the employer doesn't have to put them back in the exact same job, but they have to be equivalent in seniority, status and pay. So we get a lot of those cases where, "they put me back in a job, but I used to be a supervisor, now I'm not," and they lost status. That's probably most of our cases.

Question: Is there anything you'd like to add?

The only thing I would add is: it is our greatest desire to resolve these issues before they become cases. So if you ever have an opportunity to talk to an employer group at all, tell them to call us. I'd rather explain it to them informally. Once we get a signed complaint, by law we have to open the case. And most of these cases could be resolved by a telephone call before that. Otherwise, once a case is open, we have a long, required process we have to go through. It's not always comfortable for the employer, and I appreciate that.

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