USERRA prohibits an employer from denying any benefit of employment on the basis of an individual’s membership, application for membership, performance of service, application for service, or obligation for service
We’re always deeply grateful to those who have served — and continue to serve — in the United States Armed Forces, but during Veterans Day weekend we make even greater effort to say “thank you” for everything our service members have done for this great nation.
Unfortunately for many of our National Guard and Reserve service members who are also law enforcement officers, the thanks they get — continually and ongoing — comes in the form of workplace discrimination here at home.
This remains an issue which merits our attention, and I can think of no better time to revisit the topic than on Veterans Day.
I first wrote about law enforcement agencies’ flagrant violations of the Uniform Services Employment and Reemployment Rights Act of 1994 (United States Code, Chapter 43, Part III, Title 38)back on Memorial Day this year.
For those who are unfamiliar with the legislation, USERRA “prohibits an employer from denying any benefit of employment on the basis of an individual’s membership, application for membership, performance of service, application for service, or obligation for service in the uniformed services. USERRA also protects the right of veterans, reservists, National Guard members, and certain other members of the uniformed services to reclaim their civilian employment after being absent due to military service or training.”
Avoiding Obvious Missteps
“It seems like the government — city, county, state, and even the federal government — are the main culprits,” suggested Jeff Church, a retired Lieutenant Colonel with the United States Air Force Reserve.
I think a lot of those employers are just not aware of this — they’re just not cognizant of the law.”
Church, also retired from the Reno (Nev.) Police Department, uses an obvious “no-no” to illustrate how USERRA is frequently violated.
“You would never ask a female about her birth control practices: ‘Are you going to get pregnant and be gone?’ You would never ask that. But I talk to applicants and they say, ‘I’m in the Guard and the board asked me if I had plans to deploy.’ You just can’t ask that because the implication is that if they do have plans to deploy, you’re not going to hire them.”
That’s a flagrant violation, but there are others which are far more covert — but which can land your agency in hot water just as easily.
From fending off false accusations of misconduct to being saddled with the least-desirable shift or assignment, cops who also wear our nation’s uniform frequently face illogical and illegal mistreatment.
Upon returning from deployment, some in the National Guard and Reserve have encountered administrative hurdles blocking eligibility for promotion and bureaucratic red tape making it difficult receive deserved compensation or accrued vacation time. And for these petty punishments paid out to their police officers, agencies are still landing in court. This is a nationwide problem, with well-publicized cases in Tennessee, Georgia, and Texas.
The Employer Support of the Guard and Reserve informs and educates service members and their civilian employers regarding their rights and responsibilities governed by USERRA, and serves as a neutral, free resource to both employers and service members.
Further, information on USERRA is abundantly available from the U.S. Department of Labor, Veterans Employment and Training Service VETS website.
Collaboration, Cooperation, Compromise
In addition to all the recommended policies and procedures spelled out by organizations like ESGR and VETS, a great first step is for all parties to simply treat each other with mutual respect.
You may recall from my earlier column on this topic that I’d mentioned the case of Lieutenant Colonel Howard Zimmerman, who had brought a 2007 lawsuit against South San Francisco PD contending that a less-qualified officer was promoted to sergeant over him (that suit has been settled to the satisfaction of both parties).
In recent months, Lt. Col. Zimmerman and I have exchanged a handful of emails, and today I spoke with him via phone for this column, and the notion of respectful cooperation was the first thing he spoke about.
“We have those [USERRA] protections, and they’re there for a reason,” Zimmerman said. “But the other thing is that Servicemembers have to work with their employers as best as they can.
“We want to encourage employers to hire service members because they have certain skills that contribute to the law enforcement profession, but we don’t want to scare them away because we’re always deploying and having additional requirements.”
For example, if you have additional training requirements for your military commitment, but you have some flexibility as to when that training happens, it’s a good idea to present that to your agency brass as, ‘Which of these dates works best for the PD for me to fulfill this training obligation?’
Zimmerman listed five specific things service members can do to help forge relationships with their police administration that ultimately results in agency support for their military service.
1.) Communicate early and often with your agency about your service
2.) Avoid additional assignments which may have an adverse impact on employers
3.) Provide employers options when flexibility in assignments are available
4.) Translate military experience and training into terms civilian employers are familiar with
5.) Utilize the ESGR ombudsmen if needed to resolve conflict
Carolina Veronica Cutler is a California-based attorney at the law firm of Lackie, Dammeier, & McGillwho represented Zimmerman.
Cutler was another source for my May 2012 column on this topic, and when I reconnected with her last week she said that USERRA violations are still occurring.
“This certainly is still occurring and it merits our attention because our servicemen and women deserve the same benefits that employees who are not service members receive.
“It’s really simple — those in the military are risking their lives for us and employers owe them the benefits and seniority they deserve while on mandatory military leave.”
There is Some Good News
I’m delighted to report that not everybody is getting it wrong on USERRA. In fact, some agencies out there stand as models of success in their support for our Veterans, Reservists, and National Guard LEOs.
“You’ll find that a lot of agencies do encourage the hiring of service members but typically what I’ve seen is that those are larger agencies, where they’re more able to absorb an absence if that does come up,” Lt. Col. Zimmerman said.
“When you start talking about mid-sized or smaller agencies, I still feel that they avoid hiring Veterans, or encourage them to get out of their National Guard or Reserve service as soon as possible.”
That said, however, there are some smaller and mid-sized agencies which are active in their support of our service members and I spoke with someone from one such agency for this column.
Lt. Col. Gary T. Elliott, Jr. explained, “ I’ve worked for the Solano County Sheriffs Office for nearly 24 years now and I’ve been in the California National Guard or the Army Reserve that entire time.
“I’ve had really good experience over the years. “ I’ve never had any issues, particularly after 9/11 where there was just tremendous support from throughout the county, from elected officials to department heads.”
When those 19 al Qaeda terrorists struck America just over 11 years ago, Lt. Col. Elliott had just been promoted to Sergeant at his agency. Being a relatively small agency there were only about a dozen Sergeants, so his being called up to deploy represented quite a serious hit to staffing.
Regardless, Elliott’s boss — Sheriff Gary R. Stanton was a California National Guard soldier himself — was completely supportive of that deployment and brought Elliott back on board with a good assignment immediately upon return from being overseas.
Elliott was deployed again during the early stages of Operation Iraqi Freedom, and two months after his return he was promoted to Lieutenant. Today, Elliott is Undersheriff for that fine organization (good on him and good on them, too).
Perhaps it was Stanton’s own military experience that helped to shape that agency’s positive support for Service members perhaps not. Elliott told me that that Stanton’s successor — Thomas Ferrara, who took over as Sheriff of that agency just this month — has already demonstrated his ongoing commitment to supporting Service members and veterans.
Certainly there are others like Stanton and Ferrara whose model we have to follow in creating for our American military vets and service members a great law enforcement workplace. If your agency is such an example, please let us know in the comments area below.
In closing, I want to personally thank every single member of our Armed Services — Army, Navy, Coast Guard, Air Force, and Marines — for everything you have done and continue to do for this great nation.