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The Rights Stuff Forum: Minnesota's Veterans

Minnesota's Veterans: The Road Back Home

Jim Sullivan

Jim Sullivan, Minnesota Executive Director Employer Support of the Guard and Reserve (ESGR)

Employer Support of the Guard and Reserve (ESGR) is a Department of Defense agency that mediates disputes between employees and employers over alleged violations of USERRA (the Uniformed Services Employment and Reemployment Rights Act), and provides information and education on the requirements of the Act. ESGR also recognizes employers who go above and beyond what is legally required to support servicemembers and their families.

Comments by Jim Sullivan

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Question: How many cases does your agency handle each year, and how are they resolved?

We feel we are doing a really good job, because we've seen the number of cases reduced in the past three years. Last year we had 56 cases, the year before we had 64 cases, the year before that we had 82 cases. We successfully mediate about 90 percent of our cases at no cost to either the employee or the employer, whether it be a termination case, a harassment, discrimination, job placement case — whatever it might be. We resolve about 90 percent of them within seven days. And if we can't resolve it, it goes to the Department of Labor. It's apparent to me that they are really an advocate of the service member, more than the employer. We are not. We are very, very neutral.

Question: How do these cases come to you?

More times than not, it's the service member who initiates the case. But it's not always ruled in favor of the service member. Every service member is not a choir boy, unfortunately. As much good press as they are getting these days — and that's a great thing — in every facet of society there are a handful who will try to abuse the system.

Question: What kinds of cases does your agency see most often?

The highest number that we dealt with last year were termination. We don't see it too often in the major corporations. Most of those companies at their corporate level have attorneys who are quite knowledgeable about USERRA. We see it more often at the medium size or smaller size company.

Question: Are employers terminating service members because they feel they cannot hold their jobs open during extended tours of duty?

That happens. But actually we are not seeing that as much, now that these conflicts in Iraq and Afghanistan have been going for a long time. Many employers, though certainly not all of them, have been through the routine, and know and understand that their employee in the Guard or Reserve has reemployment rights.

Question: What, in a nutshell, should employers and employees know about their rights and obligation under USERRA?

Number one, the service member needs to give proper notification about a deployment to the employer. The employer should, but doesn't always, know that. But proper notification needs to be given, as soon as they find out — it could be a year out, it could be three months out, more times than not they know with pretty good notice. They have to have an honorable discharge when they get back, so if they are removed from the military for something they don't necessarily go to jail for, but let's just say some kind of theft or robbery or something that took place and they are convicted of it, and to get a dishonorable discharge, the employer may, but doesn't necessarily have to hire them back.

There is a timetable to return to work — most employers, I would say, don't know what that is. If it's under 30 days, we usually say "eight hours rest, ample family time, and back to work." If it's 31 days to 180 days, the employee actually can take an additional 14 days off beyond their leave time, if they choose to — whether that's for a vacation, or to fix the house, or whatever that might be. If they're gone more than 181 days, they can take up to 90 days off when they come back. They're not getting paid for this, but they're allowed to do that.

Question: What happens when an employer fails to live up to its responsibilities under USERRA and mediation is unsuccessful?

When one or the other won't budge because they're convinced they're right, then it goes to the Department of Labor.

Question: In addition to termination cases, what other issues come to your attention that may represent violations of USERRA?

There could be discrimination. If an employer outright says during an interview that, "I'd like to hire you, but you're in the Guard or Reserve, thanks for the interview." We do see some of that, but most of them are savvy enough not to get caught in that remark, and it's very difficult to prove. Another form comes with an existing employee that may not get a pay raise, may not get a promotion, because the employer knows they're gone one weekend a month, and they need somebody that's going to be there all the time. Then there's harassment, and that comes in a lot of different forms too. It can be just snide remarks, it can be sharing the venomous remarks with other employees because they've got to pick up the slack.

Question: Are you finding cases in which employers are reluctant to hire returning service members, because of concerns about the possibility of post-traumatic stress?

I tend to believe it does exist. We have a lot of companies that are very proud of hiring Guard and Reserve members and veterans. But there are some that are really on the fringe, and the companies are just staying afloat. They've got to have everybody there every day, and they don't want to deal with any extra burdens. We tend to believe that exists, but again, it's very difficult to prove unless someone maybe has a tape recorder in their pocket, or a witness.

We see most of these guys and gals come back in and adapt back into society quite well. There are exceptions, of course. But I can't recall anything I could tell you that we've had where there was a confrontational situation as a result of their mental state. The reality is the media sometimes distorts some issues — PTSD, the Post-Traumatic Stress Disorder; TBI, that's Traumatic Brain Injury. I've seen some ludicrous statistics about them coming back with 40 percent having Traumatic Brain Injuries and the other 30 percent having PTSD. These things do happen, there is no doubt about that, but the numbers aren't overwhelming. They have a tendency to distort things sometimes.

Question: What are the biggest challenges facing these service members who are coming back?

I think employment. The economy is certainly not a plus right now, and a lot of them come back, and their jobs have gone away completely. There is a merger, a reduction in force, a consolidation of operations, and their job goes away as a result of that. They are not guaranteed a job — a company is not obligated to make up a job. But we sometimes have to look into what the layoff process was, if it was by seniority within the company, and if it was by seniority within a department in the company. The bottom line is: regardless that they were deployed, would they have been laid off when they were here? That's the question we have to get answered.

Question: How high is the unemployment rate for returning service members?

What we hear it's about 30 percent of those coming back — that's what the National Guard statistics put out.

Question: If unemployment is about 10 percent nationally overall, but 30 percent of veterans face unemployment, why would that be?

Depending on how statistics are put together, sometimes it's not a clear 10 percent or a clear 30 percent. That 10 percent in reality may not include all who've been laid off for more than a year and don't look for work — it could be 15 percent. And that 30 percent could be an exaggerated 25 percent. But it is an issue, there is no doubt about it. The other thing is, some of these guys and gals, maybe they were flipping burgers before. Now they've come back after a year of being gone and they've been in leadership roles, and had accountability for sometimes millions of dollars worth of equipment, and guiding people under duress. I do remember this one situation out in Willmar, and a friend of mine, he called me. And he was a platoon sergeant, he had this young kid that was about 21, working at a fast-food restaurant. He went back there and he quit after about three hours. He said, I can't deal with this, so he didn't go back there. These guys and gals can do a lot more than they did before, and sometimes they call that underemployed — they're capable of more, and it's just a matter of getting that opportunity.

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