Both federal and California state laws provide that veterans returning from military service–and that includes all reserve deployments–are guaranteed a return to their jobs. Yet, it appears that thousands of Guard and Reserve troops are returning home without the promised right to return to their old jobs. A couple of employer “dirty tricks” early on in the deployment process are apparently contributing to this shameful fraud on our veterans. We have learned that one such trick is to immediately issue a pink slip to a member of the military who provides advance notice of intent to deploy. Another employer method to get around this leave law is to simply deny employment in the first place to those who advise their employers (say, in their employment applications) that they are compelled to report in for reserve duty for the next few years.
Roughly one third of all complaints reported to the federal government involve–can you believe this-federal agencies who are in violation of their own rules! One reason is high supervisory turnover and the fact that military leave laws are not invoked on as a regular a basis as family medical leave (FMLA or as we call it in California, California Family Rights Act leave). What’s surprising is that only about 30% of those who have been denied return rights actually complain. In addition to private law firms such as our’s, who represent veterans from all branches of the service, complaints are made with the Labor Department and Office of Special Counsel, and the Department of Defense. President Obama, last July, instructed all federal agencies to “intensify” their efforts to assure compliance. An example from our one of offices’ areas, Fresno, is illustrative. Lt Col. Pierre Saint-Fleur worked for the Fresno County Mental Health Department and claimed he was forced into early retirement on return. He felt that he was no longer welcome at his office and in fact he was moved from a privacy office where he counseled clients to a desk in a trailer. His fear of loss of privacy and possible impact on his good standing as a counselor were factors in his decision to retire. Even more significantly, he work was reduced to that of an intern. Adding the final insult to injury, he was accused of fraudulent billing, something he denied. Given all of that, he had no choice but to leave. A private attorney got him $100,000.
We represent veterans against both public and private employers throughout California. In a private employer settlement, Home Depot recently paid $45,000 to settle the claims of Brian Bailey, an Iraq vet and former member of the California National Guard. The company also agreed to update its policies. At any one time, Home Depot has had about 1,500 members on leave from the company serving in the military.
Ironically, many companies who discriminate against veterans needing leave are also recruiting for these same employers at veteran’s job fairs. Is that to look compliant and patriotic? To use these recruiting events for public promotion? Would a veteran have a good claim for fraud if they were not told at time of hire that these promotions were not in good faith? If so, it really makes sense to consider asking our lawmakers to allow punitive damages and attorney fees in successful lawsuits, so the veterans don’t have to pay this out of their settlements. Ramsey Sulayman, who is a legislative associate for the Iraq and Afghanistan Veterans of America, has been quoted as saying employers are “rolling the dice” and succeeding in breaking the law. Let’s stop that now!
The Uniformed Services Employment and Re-employment Rights Act was first passed in 1994 and remains on the books and provides that returning service members get the same job on return as if they had never left. That means, for example, promotion opportunities that they would have had while gone should be given to them. Further, any merit or other pay increases should be reflected on their first return to duty.
This blog should be considered educational, not legal advise. We practice employment law in all major California cities and would welcome the chance to speak with you about your case. Steve Danz