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Federal agency shields employers that violate the rights of veterans

As waves of National Guard reservists answered the call to serve in Iraq and Afghanistan over the past decade, they were protected by a 1994 law that required their employers to hold their jobs until they returned.

But records show that hundreds of employers have been found to have violated the rights of veterans by firing them because of their military responsibilities, failing to hire them back after their service ended, or denying them promotions. Some of those employers are government agencies.

Nowhere are complaints more prevalent than Texas, where in 2015 employers were accused 94 times of violating the Uniformed Services Employment and Reemployment Rights Act — known as USERRA.

More troubling, dozens of employers in Texas are multiple offenders: One Dallas-area company has received 23 complaints of USERRA violations since 2006. A Houston company has had 14 cases.

Yet the Department of Labor, which investigates potential USERRA violations on behalf of service members, refuses to disclose the identities of even the most frequent offenders, shielding the companies from public scrutiny despite repeated complaints and findings of fault. The department also shielded the identities of taxpayer-supported state, local and federal agencies that ran afoul of the law.

In response to numerous records requests from the American-Statesman, Labor Department officials say they must withhold the names of employers to protect the privacy of veterans and service members who file complaints about them.

After the Statesman inquired about that practice, U.S. Rep. Lloyd Doggett, D-Austin, vowed an investigation, demanding that the information be disclosed in a way that “respects the privacy of veterans.”

“The public has a right to know when our laws are being disregarded, and our veterans have a need to know when their rights are being ignored by an indifferent employer,” Doggett said in a statement. “Public access to this information would increase accountability, deter future illegal behavior, and assure vets that we have their back.”

Here is what we know: More than 230 claims of USERRA violations were granted or settled after federal investigations over the last decade in Texas. Nearly 100 employers in the state have had at least two USERRA-related complaints and 16 Texas employers have had two or more claims granted or settled after Labor Department investigations.

As a consequence of the department’s stance, even apparently large corporations and government agencies employing thousands escape public notice. Service members working for such employers, or considering working for them, remain unaware of what may be a poor track record when it comes to treating their employees who are called to active duty or weekend drills.

Government agencies break law, too

Among the employers the Labor Department refuses to identify are a private company headquartered at Dallas-Fort Worth International Airport that has seen nearly two dozen complaints from airline pilots, ticket agents and freight movers. An Amarillo firm has received 11 complaints from employees, all security guards. A private company in Round Rock has been investigated nine times after complaints from computer engineers and lawyers.

But private companies aren’t the only employers to regularly run afoul of USERRA protections, which call for service members to be reinstated to the same seniority, status and salary when the return from active duty.

In Texas, nearly 40 percent of employers with multiple complaints are local, state or federal agencies, a rate of public sector malfeasance that is higher than the overall Texas average of about one-third. Of the Texas public agencies, 19 were state or local governmental organizations, while 17 were federal.

Among them are a federal agency employing mail carriers that has seen 17 complaints across the state over the last decade; an educational agency in San Antonio with eight cases; and a state agency employing correctional officers that has been investigated seven times.

About a dozen Texas state agencies received multiple complaints from reservists, National Guard members and active duty service members working as everything from office workers and education administrators to an astronomer and research nurse.

In one of several Freedom of Information Act requests, the Statesman asked specifically for information on complaints made against the largest state agencies in Texas, which typically employ thousands. The Labor Department refused to provide the names of the agencies, citing an inability to determine the local “presence” of the agency and thus protect the privacy of claimants.

“Ensuring that military service members and veterans can exercise their USERRA rights is a priority at the Department, and in protecting their interests we must also protect their privacy,” department spokesman Stephen Barr said. “The Department’s information and data about USERRA cases is, of necessity, organized by claimant, not by employer, and is protected under the federal Privacy Act.”

Some question investigation results

The Labor Department regularly finds no merit in the complaints of Texas service members. Over the last decade, more than 40 percent of investigations in Texas have resulted in a finding of no merit, a rate that outpaces the national average, according to the department’s 2015 annual report.

In 2015, the federal government received more than 18,000 inquiries about possible USERRA violations. About 1,800 were referred to mediation under a Department of Defense program.

The Department of Labor investigated 1,123 cases last year, granting or settling 20 percent and finding no merit in 36 percent. Of the 60 cases referred to the Department of Justice, seven became lawsuits. It’s unclear how many cases were handled by private attorneys.

The Reserve Officers Association, a Washington D.C.-based advocacy group, has pushed for more vigorous Department of Labor investigations and pointed to cases in which a judge granted a claim after Department of Labor investigators found no merit.

“I think that all too often, they just take the employer’s word for it,” said Samuel Wright, a former attorney with the Reserve Officers Association and one of the USERRA bill’s original authors.

Investigators have many demands on their time, Wright said, and often find themselves going up against company lawyers. “The easy way to close the case is to agree with the employer.”

The Labor Department has agreed to meet with the association to discuss strengthening investigations, according to a letter from Michael Michaud, the assistant secretary for Veterans’ Employment and Training, and has asked Congress for more enforcement power.

In its 2015 report to Congress, the department called for the attorney general to be given authority to challenge chronic offenders whose “employment policies or practices … establish a pattern or practice of violating USERRA.”

First line of defense: volunteer mediators

While the federal government shields the identities of employers who violate the law, it very publicly celebrates employers who pledge to follow its tenets.

The first line of defense for many service members with USERRA issues is the Defense Department’s Employer Support of the Guard and Reserve group, which mediates complaints with employers and seeks to convince employers to voluntarily adopt service member-friendly policies.

Much activity centers around very public displays of support for employers who pledge to follow the precepts of USERRA. Last year it handed out 427 Patriot Awards and obtained 301 Statements of Support from employers, often accompanying them with news releases.

Last year, the program said its volunteers ombudsmen handled more than 1,500 USERRA issues, finding a positive resolution in nearly half. In Texas, the agency handled 106 cases and had a resolution rate of one-third, lower than the national average.

According to the support group, its volunteers act as “neutral third parties” as they conduct informal mediation and seek to improve relationships with civilian employers.

A 2013 RAND Corp. study found that many employers remain ignorant of their responsibilities under USERRA. According to results of a survey, 25 percent of employers of reservists and guard members said they don’t know enough about the law to comply with it.

RAND concluded the results show that the law “is not a high priority issue for most employers except when they are dealing with duty-related absences.”

“More often than not, USERRA-related issues come down to a lack of awareness or a misunderstanding of the rights and responsibilities outlined in the federal regulation,” said Maj. Chris Mitchell, spokesman for the Defense Department’s Family and Employer Programs and Policy program. “At other times, communication failures between employees and their employers seem to be at the root of employment-related issues.”

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