Employment Law and Government & Economic Development and Government and Military and Workplace Issues

Laws aim to protect veterans returning from deployment

December 29, 2008
These days, when an Indiana National Guard member or military reservist is called to active duty, that "weekend warrior" may be gone for a good deal longer than a weekend. As of Nov. 19, about 4,400 of the Indiana National Guard's 15,000 service members were deployed worldwide.

"I would think that's probably the highest [percentage of the force deployed] since World War II," said Staff Sgt. Jeff Lowry, spokesman for the Indiana National Guard.

Those men and women have plenty on their minds. But somewhere on that list—usually right after worries about their families and their own survival—is a nagging concern about what will happen to their civilian jobs.

Their fear isn't unfounded, despite federal and state laws designed to protect positions left vacant when employees are serving their country. For some companies, especially small ones, losing an employee for any reason can be a hardship.

And even when the returning vets are back at work, employers face challenges. Helping military members adjust to their old routines can be a bigger issue than dealing with their absence, said Tom Wood, vice president at local IT consultancy Fusion Alliance. After all, putting together a PowerPoint presentation probably isn't at the top of their to-do list.

"They've been gone from their family and their job for 18 months, and both are going to pull at them," Wood said. "We're very attuned to balancing work and family. But while we are more forgiving toward that, others might not be so forgiving."

Indeed, some employers can be downright uncooperative, despite the federal Uniformed Services Employment and Re-employment Rights Act of 1994. A few summarily fire employees who go away for Guard training, refuse to rehire returning vets or, most commonly, don't provide all the seniority the worker is entitled to upon his or her return.

Ignorance of the federal law is the most common culprit. That's where the ESGR comes in. Short for Employer Support of the Guard and Reserve, the Department of Defense agency was established in 1972 to act as a liaison between returning vets and their employers, easing their transition back to civilian work.

"It makes sure that when a service member goes overseas or is put on duty, that when they come back their job is still waiting for them," said Elizabeth Ransom, program support specialist for the ESGR in Indiana. "An employer cannot fire them while they're gone or discriminate against them in any way."

Know the law

Local labor and employment attorney Jeffrey B. Halbert has spent a great deal of time educating his corporate clients about the legislation, but the current economic environment can throw a wrench in the works.

For instance, if the company goes bankrupt in the vet's absence, there's obviously no remedy. And likewise, if the soldier's job was eliminated due to business conditions, it doesn't have to be un-eliminated when he or she comes back. Halbert saw just such a situation when a vet returned to a small southern Indiana auto dealership after two years.

"He couldn't come back to his finance job because there was no job for him to come back to," said Halbert, a partner at Stewart & Irwin. "So what they ended up doing was creating a sales position for him. It was a little bit different in terms of the pay structure, but it did allow him to come back."

Violations of the law often can be cleared up with a call from the ESGR, which relies on a cadre of volunteer attorneys scattered throughout Indiana to press its claims. Particularly stubborn problems are referred to the Department of Labor, then to the Department of Justice. Not that it usually goes that far. In about 95 percent of cases, all that's required is to acquaint employers with the intricacies of USERRA.

"We're free, and we have ombudsmen all over the state who will try and help you," Ransom said. "And employers can also call us if they're having trouble with a service member. It goes both ways."

Many companies already give the vets on their payroll every consideration, because not doing so invites bad publicity of the most toxic form. Indianapolis-based Delta Faucet Co. got a taste of that in the summer of 2007, when someone at its Greensburg plant burped out a routine termination notice to an employee who didn't return from a year-long leave of absence.

Unfortunately for the company, that employee turned out to be Sgt. 1st Class David Veerkamp, who couldn't get back to work on time because he was otherwise engaged in Iraq. Before you could say "PR disaster," the story ricocheted across the continent, gaining mention in venues ranging from the Boston Globe to the Fox News Network.

Veerkamp, who is back in Greensburg but still on active duty, wasn't too concerned. Delta Faucet, he said, has always been good to vets. He chalks up his "dismissal" to a clerical error.

"My wife called me about it," he said. "But I didn't worry about it. I knew they couldn't do that, and that I'd get my job back."

Such administrative gaffes aside, Halbert believes most employers have a good grasp of the laws pertaining to returning vets. The only portion of state and federal legislation that he thinks could be potentially onerous is recent amendments to the federal Family and Medical Leave Act, which provides generous, mandatory leaves for family members assisting returning vets.

"Right on its face I could see it having a pretty large impact," Halbert said. The relative of a returning vet "would have the ability to take ... up to 26 weeks of leave. So if you've got a plant manager or someone in a very important position, if they take 26 weeks of leave, that's going to create a pretty large burden on the company."

The leave is unpaid, but family members can cover any or all of the time with paid sick or vacation days they've already accrued.

Prepare for absence

Despite the legislation intended to help ease their minds, military members still worry about what they're coming back to at work.

"It was a topic of conversation often," said Maj. Timothy Stoner, a 20-year Indiana National Guard veteran whose unit recently returned from a deployment to Iraq. "They weren't gone for a week, two weeks or 30 days. It was 400 days. I think that put a lot of questions and doubts in at least 50 percent of my soldiers. It was definitely a concern."

As commanding officer of the 2nd Battalion, 238th General Support Aviation, he oversaw helicopter medical evacuation operations in some of the war zone's hottest hot spots. The Shelbyville-headquartered Guard unit flew 1,261 missions and spent some 3,200 flight hours in combat situations.

In civilian life, Stoner is regional director of infrastructure services for Fusion Alliance. He said his own employer bent over backward to make sure his position would be there for him when he returned. Others in his unit were less confident about their job prospects, but he hasn't heard any complaints from his men—at least concerning their jobs.

"But I have a lot of soldiers who are in public service," he said. "Firemen, police officers, things like that. And those organizations tend to really get it. Maybe that's why there's no friction. No news has been good news."

He thinks the best way to have a smooth deployment—both for the company and for the soldier—is to communicate early and often. Before departing, he talked extensively with his firm's management, carefully explained what he'd be doing, and even assisted in contingency plans for his departure. He also provided his human resources department with information about the federal law, so they wouldn't have to dig it up themselves.

"Don't just make your employer aware of your absence," he said. "You really have to be an advocate for yourself. And the best way to do that is to help others understand the problem."
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