LOS ANGELES – The jobs of the nation’s citizen-soldiers are supposed to be safe while they are serving their country: Federal law does not allow employers to penalize service members because of their military duties.
Yet every year, thousands of National Guard and Reserve troops coming home from Afghanistan and elsewhere find they have been replaced, demoted, or denied benefits or seniority.
Government agencies are among the most frequent offenders, accounting for about a third of the more than 15,000 complaints filed with federal authorities since the end of September 2001, records show. Others named in the cases include some of the biggest names in American business, such as Wal-Mart and United Parcel Service.
With good jobs still scarce in many states, the illegal actions have contributed to historically high joblessness among returning National Guard and Reserve members – as high as 50 percent in some California units – and created a potential obstacle to serving.
“The whole point of the National Guard and reserves, how they save the country money, is they get paid only when they are serving,” said Sam Wright, director of the Service Members Law Center at the Reserve Officers Association. “It’s a great deal for the country, but if we don’t protect their civilian jobs ... they aren’t going to volunteer and serve.”
Veterans’ advocates say that the heavy use of the nation’s citizen-soldiers to fight the wars in Iraq and Afghanistan placed a burden on employers in a tough economy. Even as 11 years of war wind down, Guard and Reserve members are being called up for peacekeeping and other duties around the world.
The Uniformed Services Employment and Reemployment Rights Act, a 1994 law that strengthened job protections for returning troops first introduced during World War II, requires that service members are re-employed in the type of position they would have attained if they had not been called to active duty.
Just how many service members are being denied jobs illegally is impossible to know. The nonpartisan Government Accountability Office estimated in 2005 that fewer than a third of service members with complaints seek help from the government. Many don’t file lawsuits, either.
Even so, the Labor Department and Office of Special Counsel, which investigate complaints for possible prosecution, have seen cases surge from 848 in fiscal 2001 to 1,577 in the 12 months ending in September 2011. Last year, the agencies handled 1,436 new cases, according to preliminary figures.
A Defense Department program that tries to mediate disputes handled 2,884 cases in fiscal 2011 alone, including 299 that went to the Labor Department when they could not be resolved informally.
Although the law says the federal government should be a “model employer,” federal agencies accounted for nearly 20 percent of the formal complaints in fiscal 2012, about twice the share recorded in 2007. The departments of Defense and Veterans Affairs lead the way with 105 and 47 complaints respectively.
President Obama instructed federal agencies last July to intensify efforts to ensure compliance. But officials say it has been a challenge to ensure that supervisors working at offices across the country are familiar with the requirements.
Obtaining redress can take months, if not years. For service members, the experience can be a maddening double-blow.
Lt. Col. Pierre Saint-Fleur, a former Fresno County, Calif., mental health worker who deployed three times to Iraq as a military chaplain, said he was forced into early retirement because of his service in the California National Guard. He protested to the Labor Department’s Veterans’ Employment and Training Service but said he was told the case had no merit.
“I felt betrayed,” Saint-Fleur said. “This same government that called me to go into harm’s way, into a war zone, failed me when I got back and lost my job.”
Saint-Fleur said he had no problem getting rehired after he demobilized in 2008. But he said he quickly saw that he was no longer welcome at the Department of Children and Family Services, where he had worked as a counselor for 18 years.
Instead of getting his old office back, he was given a desk in what he described as a trailer, with no privacy for counseling patients — a situation he feared could cost him his license. He said his work was criticized, his authority was reduced to the level of a student intern, and a fraud investigation was opened alleging that he had been overbilling patients – claims he said were baseless.
“I had no choice but to leave,” he said.
Only after hiring a private attorney did he win a $100,000 settlement, court and county records show. The county did not admit fault in the 2010 settlement. Fresno County officials did not return calls seeking comment.
A Labor official, who was not authorized to speak on the record, said most disputes are resolved without recourse to the courts. He acknowledged past problems, but said the department has revamped its training for investigators. It now takes an average of 60 days to complete an investigation, he said.
But attorneys for aggrieved service members say some employers have grown sophisticated about trying to get around the law. Rather than wait to see whether deploying troops will want their old jobs back, some hand out pink slips as soon as they are notified that their employees are expecting orders. Others refuse to hire people who serve in the Guard and Reserve, a form of discrimination that is illegal but hard to prove.
Some veterans’ advocates would like to see the law strengthened to include punitive damages and mandatory attorney’s fees. For willful violations, courts can require employers to pay twice the amount of compensation a service member lost, but critics say the awards are often small.