Another Potential Threat to Reservists: Unemployment

[thedrifter]

09-19-2003

From the Editor:

Another Potential Threat to Reservists: Unemployment

By Ed Offley



Hundreds of thousands of reservists and National Guardsmen have been hit by a triple whammy since 9/11. This is a warning for all of you out there that a fourth blow could be on the way.



First, the reserve personnel endured call-ups to active duty to guard airports and other strategic facilities. Second, just a few months after they returned to their civilian jobs, the Pentagon within a few short months recalled tens of thousands of reservists to fight in Afghanistan and, later, Iraq. Finally, reservists and Guardsmen watched as their active-duty counterparts went home after six months while they endured mandatory tour extensions that have prolonged their separation from families and jobs.



Unfortunately, that fourth blow is not hard to identify.



Having been jerked around willy-nilly by the Pentagon and their own service branches for the past two years, many reservists and Guardsmen may be about to take it on the chin from a different source ? their civilian employers.



The 1994 ?Uniformed Services Employment and Reemployment Rights Act? *(USERRA) requires employers to save the job position held by a Guardsman or reservist called to active duty. But labor experts warn that over the last year there has been a startling increase in incidents where civilian firms have ?reorganized? their operations to the result that returning part-time soldiers have come home to the unemployment line. In a number of cases, employers have directly issued layoff orders for returning reservists despite USERRA. An equally distressing number of incidents have reportedly occurred where employers have pressured reservists and Guardsmen seeking protected time off ? also guaranteed under USERRA ? not to participate in their mandatory military training.



Charles Ciccolella, a Labor Department deputy assistant secretary for veterans employment and training, told the Newshouse News Service this week that his department is currently investigating 1,300 cases where reservists or Guardsmen have left active duty only to find themselves out of a job ? something that USERRA explicitly prohibits. Ciccolella said that the number itself is probably a fraction of the total, with ?several times that many more? incidents being privately mediated by a volunteer citizen?s group, The National Committee for Employer Support for the Guard and Reserve (ESGR).



Worse, some experts say, this is probably only the tip of the iceberg. Since the vast majority of the 300,000 reservists and Guardsmen mobilized in the aftermath of 9/11 remain on active duty, the vast majority of incidents will probably not occur for a year or more, said Bridget J. Wilson, a San Diego attorney who works in both military law and employment issues. ?We don?t know yet because they are not home yet,? she said.



?We have never used the reserves like we are doing now,? Wilson told DefenseWatch. ?The [National] Guard is no longer the state militia it once was.?



Wilson said that USERRA is a ?great? law that for the most part has worked to protect part-time military personnel from arbitrary and unfair actions by their civilian employers.



According to the law, a person who leaves a civilian job for voluntary or involuntary ?service in the uniformed services? is entitled to reemployment in the civilian job (with accrued seniority) if he or she meets the following eligibility criteria:



* He or she must have left the job for the purpose of performing service in the uniformed services.



* He or she must have given prior oral or written notice to the civilian employer. Prior notice is not required if it is precluded by military necessity or otherwise impossible or unreasonable.



* Cumulative period or periods of service in the uniformed services, relating to that particular civilian employer, must not have exceeded the five-year limit. All involuntary service and some voluntary service are exempted from the five-year limit.



* He or she must have been released from the period of service, without having been ?dropped from the rolls? or having received a punitive or other-than-honorable discharge.



* He or she must have reported back to work in a timely manner, or have submitted a timely application for reemployment.



So what?s the catch?



?It?s Catch-22,? Wilson said. Companies that can assert ?legitimate business reasons? for terminating employees can evade sanctions in USERRA. ?Large employers are smart enough to paper it over,? she said. For example, a company can conduct a major reorganization in which subordinate divisions are restructured or eliminated altogether with concurrent layoffs, including troublesome employees who have left their cubicles or workstations to serve their country in uniform.



Wilson and other experts say they fully sympathize with the strains put on companies and local governments by the mass mobilizations since 9/11 ? but USERRA is adamant in guaranteeing that employers not penalize reservists for obeying mobilization orders. Many local police and fire departments have been particularly hurt since their members have a high participation rate in the reserves and National Guard. Smaller firms, which are hit relatively harder than major corporations, will be tempted to solve the problem by getting rid of the part-time warriors on their payrolls.



Wilson and other advocates for the mobilized reservists and Guardsmen encourage them to become aware of their legal rights well before their eventual homecoming becomes an employment nightmare.



One good place to start is the 30-year-old National Committee for Employer Support for the Guard and Reserve, which has a website that contains essential information for both employers and employees. It includes a full text of the USERRA legislation, rosters of Frequently Asked Questions about the law, and contact information in case a serviceman or woman needs assistance from the group?s volunteer coordinators to resolve an employment situation through mediation.



In many cases, Wilson said, employers ? particularly small ones ? are simply unaware of the provisions of USERRA. ?When I?m counseling employers, I wave the act in their faces and tell them to behave. They need to hold those jobs for [activated reservists].?



Why has this disturbing trend suddenly appeared?



?I?m surprised on one level the situation isn?t worse than it is,? said Wilson. ?Patriotism runs thin when the parade stops ? or never starts in the first place. You are going to have less and less patience and tolerance [for mobilized employees] from their employers.?



In response to the upsurge in cases, the Labor Department is now drafting new regulations to enforce the provisions of USERRA. Meanwhile, Guardsmen and reservists ?checking their six? for Iraqi guerillas or remnant Taliban fighters must add another potential threat to their reconnaissance folders ? the boss back home.



Ed Offley is Editor of DefenseWatch. He can be reached at dweditor@yahoo.com

http://www.sftt.org/cgi-bin/csNews/c...3.711458176685

Sempers,

Roger