Pink Slips Greet Returning Soldiers

Posted Dec. 24, 2003

By Timothy W. Maier

Many U.S. reservists have gone from the front lines to the unemployment line.

When U.S. Army Maj. Joe Cherry left his federal job at the National Labor Relations Board in Chicago because he was called up to fight the war in Iraq he received an unexpected going-away present. The major wouldn't have to worry whether his government job would be there when he returned - the federal government made that decision for him, firing him on the spot.

Cherry is not alone. In the last five years 5,690 veterans have lost their jobs in both the private and public sectors while activated to serve a tour of duty, according to a U.S. Department of Labor report presented to Congress this year. Those numbers are expected to increase because, of the 300,000 deployed reservists, as many as 25,000 veterans are expected to return home in 2005 to reintegrate themselves back into civilian life after a tour of duty in the global war against terrorism. Of those 300,000, about 20,000 work for the federal government.

While Cherry received his pink slip prior to being deployed, veterans' advocacy groups charge that many others have yet to learn that the government which sent them to war may have little use for them afterward. Concerned that employers may fire veterans from both the private and public sectors who are called to active service, Labor Secretary Elaine Chao recently issued a public-service announcement reminding employers that they have both a moral and legal obligation to those returning from active duty. "They did their job - now let's do ours," Chao said.

The good news is that Cherry got his job back when he returned home, but he had to live with uncertainty about his employment all the time he was risking his life in Iraq. In the end he bypassed the bureaucracy in the Labor Department, where veterans may file complaints and follow developments in individual cases. More than 1,000 other veterans annually skip that process as well and take matters into their own hands, according to veterans' advocates. Cherry represented himself before the Merits System Protection Board (MSPB). Administrative Judge Julia Packard held in October that the firing of Cherry violated the Uniformed Services Employment and Re-employment Rights Act of 1994 (USERRA), which established that veterans returning from active duty have re-employment rights and must be protected against discrimination by their employers on the basis of their recently completed military service or current military obligations.

Meanwhile, the National Labor Relations Board considered filing an appeal, claiming that Cherry had been placed on a performance-improvement plan and that his military tour "truncated" the period given him to improve his performance. Then the situation changed. "I received notification that the National Labor Relations Board had dropped its appeal of the MSPB's ruling to reinstate me to my former position, with full restoration of all back pay, entitlements, etc.," Cherry tells Insight in an e-mail during a break from military training. "The agency informed me that I was to report to work on Dec. 8, 2003! So, when I returned from training and read the letter I was truly happy, and today I have returned to work. I believe that it was in large part due to the efforts of Capt. Sam Wright [ombudsman for the Reserve Officers Association] and members of the National Committee for Employer Support of the Guard and Reserve. They have been good to me, and their support has been remarkable."

Wright, who helped draft USERRA, says that had Cherry pursued the bureaucracy channel, filing complaints with the Labor Department and relying on the Office of Special Counsel (OSC) to investigate the charge, there would not have been a happy ending. Wright notes that the cases handled this way by the federal government rarely produce a positive outcome for the veteran.

Those claiming USERRA violations file complaints with the Veterans' Employment and Training Service (VETS) in the Labor Department or seek their own remedies by taking their case to court. Meanwhile, VETS investigates and attempts to obtain compliance. If the employer is a federal executive agency, and if VETS is unable to get it to comply, the veteran can request that the Labor Department refer the case to the OSC. Under the law the special counsel may appear on behalf of (and act as attorney for) the complaining veteran and initiate an action on the matter before the MSPB.

"In the almost nine years since USERRA was enacted the OSC has brought not one single USERRA case to the MSPB," Wright charges. He explains that the OSC position has been, "Congress did not consult us before giving us this additional responsibility, and Congress did not give us any additional resources to do the job, so we just say no."

In a letter to Scott J. Bloch, who will take charge of the OSC as soon as the Senate confirms him, Wright suggested that Bloch's top priority should be to correct this problem. "You should vigorously enforce USERRA, even if it means that you have to cut back on something else," he wrote. "The brave young men and women who have left their civilian jobs to serve our country under conditions of physical danger and financial deprivation certainly deserve no less."

During hearings before the Senate Governmental Affairs Committee, Bloch indeed addressed the issue, saying, "They did their job. Let's give them their job back." But senior attorneys at the OSC let it be known that they were angered and shocked by Bloch's comments and suggest their new boss has been "misinformed" and that there is a "miscommunication problem." Other senior officials at the OSC were quick to claim that very few of these cases are referred to the office and those that they do receive often are without merit.

But Insight's analysis of these cases handled by the OSC during the last five years indicates a record that is far from stellar. During fiscal 1998 to fiscal 2002, the OSC handled 55 such cases. Of those, only one was referred to the MSPB. In two other cases, the OSC obtained some corrective action in favor of the veteran, but 46 other cases were declined outright while six still are pending. Some of the cases, the OSC claims, concern unfounded discrimination complaints. Little wonder that veterans see the OSC as a losing proposition.

The Labor Department VETS agency also fails to receive a ringing endorsement among veterans, who question whether they are getting a fair shake there as well. According to the latest statistics provided to Congress, VETS handled 4,690 complaints from fiscal 2001 to fiscal 2004. While it closed 90 percent of the cases, veterans received positive outcomes or came to a mutual agreement in only 26 percent of the cases between 2001 and 2003, according to records obtained by Insight.

While the Labor Department certainly has a better batting record than the OSC, private industry appears to believe it has failed effectively to market veterans' skills for the civilian workforce. In fact, there is growing concern that many of the veterans returning from their tour of duty may find themselves unemployed and, in some cases, even homeless. Shelters across the nation already have reported at least 17 homeless veterans from the war in Iraq.

"The greatest generation has become the forgotten generation," says Wes Poriotis, chairman of Wesley, Brown & Bartle, a major New York City-based executive search firm that specializes in helping vets transfer their skills to the civilian workforce. Poriotis is frustrated that the Labor Department has no plan of action to match a veteran's skills with appropriate jobs. He characterizes the government's plan as the "tin-cup approach," where employers are bombarded with pleas to hire a vet out of pity - and not because "if you don't bring these excellent workers on board, the local competition will eat your lunch."

Poriotis believes vets are being underemployed. "Look, I got a problem when a veteran of a nuclear submarine is reduced to doing menial labor," he says. "The military spends $600 million in advertising on the recruitment of volunteers into the services. Ironically, little or no advertising dollars are spent to create an engine to propel military-service members into appropriate jobs in the private sector."

Similarly, the VETS program spends $300 million a year to fund veterans' employment representatives within the state unemployment offices, he notes. "There are 3,000 Labor Department employees who are, strangely enough, not even tasked to meet and develop relationships with the local employers in their regions," he says. Therefore, hundreds of millions of dollars are spent but thousands of bureaucrats "have no performance criteria" upon which they are judged, he points out.

Indeed, UBS Paine Webber Chief Executive Officer Joe Grano, a Green Beret major who was wounded while rescuing soldiers in Vietnam, tells Insight that it's not an "issue of giving vets a job but giving them an opportunity to compete." He would like to see employers request that their human-resources departments review at least 10 percent of applicants who meet the criteria. "Everyone wants returning officers," Grano says. "It's the others - straight infantrymen - who have difficulty getting jobs." But don't underestimate their ability, he says. "People who have worked in combat tend to be a bit cooler when dealing with a crisis situation," he observes.

Grano should know. He has 35 employees who were called up for active duty - and his firm was one of the few that decided to continue paying them their salaries during their tours of duty. "It is the right thing to do for the employee, the firm and the country," Grano says.