LAW REVIEW 1143
New Evidence of Discrimination against
Recently Separated Veterans
By Captain Samuel F. Wright, JAGC, USN
In a front-page article, USA Today reported: “Unemployment payments to servicemembers
fresh out of the military have doubled since 2008, a sign that veterans are
returning from war to an increasingly tough job market. The military paid $882 million in
unemployment benefits last year, up from $451 million in fiscal 2008. The 2011 figures are trending even
higher. Veterans are having a
particularly tough time finding jobs.
The estimated jobless rate among male veterans 18-24 was more than 30%
in May, compared with 18% among male civilians of the same age group, according
to the Bureau of Labor Statistics.” “Out
of uniform means out of work for many new vets”, USA Today, June 17, 2011, page 1A.
The data cited by USA Today are very interesting, but
there is one inescapable inference that the reporter failed to draw, or at
least to express. The fact that 18-24
year old veterans suffer an unemployment rate that is 40% greater than that of
non-veterans in the same age group, who are competing for jobs in the same
tough economy, clearly indicates that employers are not aware of or have
consciously chosen to flout their obligations under the Uniformed Services
Employment and Reemployment Rights Act (USERRA).
A veteran under the age of 25
is necessarily a Reserve Component
member. The length of an enlistment in
any branch of the armed forces is eight years. An individual must be at least 17 years old
to enlist with parental permission, or 18 without parental permission. Thus, a new veteran would have to be at least
25 (and probably several years older) to have completed the entire enlistment
term and be “completely out.
For example, let us take the
hypothetical but very realistic Joe Smith.
He graduated from high school in May 2007 and immediately enlisted in the
Army, with parental permission. He was
almost 18 when he reported to boot camp in September 2007. His enlistment contract called for him to
remain on active duty for four years, and he expects to leave active duty in
September 2011. He has no plans to
affiliate with the Army National Guard or Army Reserve. Nonetheless, he will be a member of the
Individual Ready Reserve (IRR) until he completes the eight-year enlistment in
Prior to the terrorist
attacks of September 11, 2001, the possibility of being called up from the IRR
was largely theoretical, but since 2001 several thousand Army and Marine Corps
IRR members have been involuntarily called to the colors. Employers are very much aware of these call-ups. An employer will be most reluctant to hire
Joe Smith so long as there is a possibility that he may be called back to duty.
Refusing to hire somebody
like Joe Smith is a clear violation of section 4311(a) of USERRA, which
provides: “A person who is a member of,
applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service
in a uniformed service shall not be denied initial
employment, reemployment, retention in employment, promotion, or any
benefit of employment by an employer on the basis of that membership,
application for membership, performance of service, application for service, or
obligation.” 38 U.S.C. 4311(a) (emphasis supplied).
Ever since Congress abolished
the draft in 1973, military recruiters have been telling potential recruits and
their parents that joining the military is a good career move, even if the
recruit will not stay on active duty for a 20-year career. Tell the young man or woman that during a
four-year active duty period he or she will learn valuable job skills and work
habits and will be very attractive to employers when released from active
duty. Until now, the data have generally
supported this recruiter sales pitch, but not now.
The USA Today article quotes Senator Patty Murray
as saying of recently separated veterans:
“They’re young. They’re
brave. They’re enthusiastic. The world’s their oyster. They come home and it’s a shock to them that
six months later they don’t have a job.”
With today’s tough economy,
all the services are meeting their goals for recruiting and retention, but the
tough economy will improve at some point.
I am concerned about military recruiting when the economy improves. Those who turn 18 in 2015 and beyond will
hear from their older brothers and sisters, and their parents, that enlisting
in the military makes it much harder, not easier, to land a civilian job. This cannot be good news for the continued
success of the all volunteer military.
We need a renewed effort to
remind employers of USERRA and to make the point to them that there are real
adverse consequences (back pay, liquidated damages, loss of the opportunity to
bid for federal contracts, etc.) for employers that knowingly flout USERRA.
The reference to unemployment payments is to the Unemployment Compensation for
Ex-Servicemembers (UCX) Program, administered by the state employment
commissions and the U.S. Department of Labor (DOL). Unemployment compensation is always charged
to the “base employer”—the entity that employed the claimant immediately before
he or she lost a job and became unemployed.
For persons unemployed after leaving active duty in the armed forces,
the base employer is the service from which the person was recently released. DOL reimburses the states for these UCX
payments and then bills the Department of Defense (DOD) or the Department of
Homeland Security (DHS), for the Coast Guard.
In the early 1980s, the length of an enlistment was increased from six to eight
Senator Murray chairs the Senate Veterans’ Affairs Committee.
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