SPECIAL REPORT: Returning War On Terror Military Veterans Find Promised Jobs Are Gone And, Despite Laws, No Legal Help For Getting Rehired

  @Charressc.harress@ibtimes.com on July 12 2013 10:04 PM

Cory Schuyler spent 12 years fighting for his country, including service as a member of the U.S. Army Special Forces, and now wonders why his country won’t fight for him.

Schuyler’s troubles as a veteran don’t involve post-traumatic stress disorder, or PTSD, nor did his service cost him a limb. Instead, Schuyler, 36, said his willingness to serve his country cost him his job -- a job that the U.S. government promised to keep open for him when he joined the National Guard upon his return from overseas and which he contends government officials now won’t help him get back.

Among the federal agencies that might have helped Schuyler, “I reached out to the Department of Labor repeated times,” he said. “I left message after message. No one got back to me.”

After more than a decade of war in Iraq and Afghanistan, Schuyler’s story echoes those of thousands of returning veterans. Since the terrorist attacks of Sept. 11, 2001, Defense Department figures show that more than 660,000 National Guard members and reservists have been deployed to fight in the country’s war on terror. Many enlisted out of a sense of duty. Others had already been members of the National Guard or the Army Reserve. In both cases, they were willing to risk their lives and set aside their livelihoods.

When they came home, they expected to pick up life where they had left off. A law called the Uniformed Services Employment and Reemployment Act, or USERRA, was supposed to help ensure that happened.  

The law is intended to protect members of the Reserve and National Guard from employment discrimination -- primarily, to ensure they keep the jobs they held before they were deployed. Employers are supposed to make concessions to ensure this happens, and in many cases the burden is heavy. At any moment, a member of the Reserve or Guard can be deployed for as long as two years.

But while the burden is heavy, willfully violating USERRA can lead to double damages being awarded. In some cases, smaller companies file for bankruptcy to avoid the payouts, once again leaving the Reserve or Guard personnel with few or no avenues for compensation for their troubles, and in some cases leaving them with bills to pay.

Some businesses, such as Wal-Mart Stores Inc. (NYSE:WMT) and JPMorgan Chase & Co. (NYSE:JPM), pride themselves on their commitment to members of the armed forces. But for smaller companies, holding jobs open -- sometimes indefinitely -- often causes significant hardships.

Statistics show that 70 percent of the members of the National Guard and Reserve are employed by small businesses, and because the country was not at war before the 9/11 terrorist attacks, the impact of USERRA appeared inconsequential. Usually, it meant businesses might lose a reservist for a weekend of training a few times a year.

Check out this interactive map of all the USERRA cases filed in the decade ending in 2011. A larger bubble indicates a higher number cases filed. Click on any state to see how many cases were filed there:

Big Issues For Little Firms

With the advent of the overseas wars, however, the issues became pronounced. A 2010 survey by the Society for Human Resource Management found that almost one-half of the employers surveyed were hesitant to hire military personnel due to concerns about PTSD and other mental-health issues, and more than one-half reported mobilization of their employees left them with a large burden as they tried to cover for the open positions.

In 2008, the Small Business Institute Journal reported that most small firms were not trying to avoid the employment law that protects a veteran’s job, yet were struggling to comply: logistically, financially and professionally. Few fully understood the law or had the human-resources departments to assist them, the journal said.

Whatever the reason, many returning veterans were left to fight a different sort of battle -- sometimes against friends and colleagues with whom they had worked for years. According to Schuyler and others like him who were interviewed by the International Business Times, the government hasn’t kept its part of the bargain.

Schuyler calls his struggle to get the government to help him keep his civilian job “one of the most difficult stages of my family’s life.” He has filed suit to get back his job and with it, the life he once led, running up large legal bills in the process. But the problem has yet to be solved.

There is no accurate tally of the number of veterans with such employment issues, nor even how many discrimination suits are filed: Cases are categorized simply as “other” under the type of litigation in court files. But each year the Labor Department takes between 1,300 and 1,600 cases in which a veteran alleges a business is violating the employment law. The agency investigates the allegations through its Veterans’ Employment Training Service, or VETS. According to VETS figures, the average investigation takes about 56 days. But the issue is not resolved even if investigators find in favor of the veteran: At that point, the case goes to another arm of the U.S. government -- the Justice Department -- for further investigation.

Schuyler and other veterans said the bureaucracy has proved incredibly difficult to navigate. In 2011, VETS investigators opened 1,557 cases, but just 42 were determined to have merit. Those cases were then referred to the Justice Department for further review, and, of them, Justice officials offered to represent the veterans in only 13 cases. Ten others were settled without court action. Because Schuyler’s calls to the Labor Department were seldom picked up and never returned, he isn’t certain whether he is among the 1,557 veterans who VETS counted among its cases. Had it listened, the account below is the story Schuyler would have told.

Schuyler enlisted in the U.S Army in March 1996. He left in September 2008 as a sergeant in the Special Forces. Almost immediately, he went to work for privately held NEK Advanced Securities Group Inc., which contracts with the military to provide training. There, he primarily instructed U.S. Marines stationed at Camp Pendleton, Calif.

Before he started at NEK, Schuyler said he told company representatives he would be joining the California National Guard. Such commitments aren’t unusual for many veterans, who see the National Guard as a way to ease themselves back into civilian life.

Four months into his new job, Schuyler was called to serve. He returned to NEK eight months later, on Oct. 1, 2009.

Initially, the time away from NEK hadn’t seemed an issue, Schuyler said. Then, in February 2010, he received an email that began a dispute that continues to consume him. Like thousands of other National Guard members each year, he was being forced to choose between his service in the Guard and his civilian job.

On Feb. 19, 2010, some 19 months after Schuyler had started working for NEK, he received an email from Vincent Leyva, his supervisor at NEK, a copy of which Schuyler provided to the IBTimes. “You have to figure out what is more important, whether it be keeping your job with NEK or the NG [the National Guard],” Leyva wrote.

Leyva did not respond to repeated attempts by IBTimes to reach him via phone and email, but documents that are part of Schuyler’s legal proceedings against NEK offer some insight into Leyva’s thinking. In them, Leyva mentions that Schuyler was leaving his job early on Fridays to handle National Guard obligations during the weekend.

“The first thing that came into my head was my family,” Schuyler said. “How am I supposed to support them if I lose this job, pay my mortgage? How will I find another job?”

The email had arrived on a Friday. The following Monday morning, court documents show, Schuyler went to see Leyva about the email and handed him a copy of the employment law meant to protect Schuyler’s job.

“He blew up and told me he would decide when I could and could not go to drill,” Schuyler recalled. “He then told me to fuck off. It was totally unprofessional.”

According to a deposition, Leyva admitted to having had a heated argument on that day, but said he could not remember the exact words that were exchanged.

Schuyler then called NEK’s human-resources office to voice his concerns: He said he was assured that his obligations to the National Guard would not be brought up again.

Six weeks later, top NEK officials visited Camp Pendleton, where Schuyler was helping train a Marine battalion for the company. After a team-bonding dinner, the group went for drinks at a bar in the nearby town of Carlsbad. Schuyler was the designated driver that night and did not drink. That evening, he and others claimed, they overheard Levya and Tony Porterfield, the company’s CEO, discussing Schuyler’s National Guard duties. Schuyler said that at one point he heard Porterfield shout: “It’s my company, and if his National Guard is taking up time, then I’ll fire him. I want him fired.”

Another employee at NEK, Michael Tyrell, testified that he also heard similar words being spoken, as did others in the party who heard Schuyler’s Guard duty being brought up. During the deposition, Schuyler’s attorney asked Tyrell what he had heard that evening. Tyrell, who has since left NEK, recounted hearing: “Fire his ass. I own the company.”

In the face of what he considered discrimination, Schuyler looked to mediate his employment problems on his own. On April 16, 2010, he emailed Leyva about the comments he had overheard at the bar. Leyva didn’t speak to him for two weeks, Schuyler said. Then, according to Schuyler, he simply said, “Sorry.”

“Despite the apology, I could tell there was animosity between us,” Schuyler said, “so I just tried to keep my head down and get on with work.”

It wouldn’t matter.

The next five weeks passed without incident. Then, Schuyler said, around the end of May 2010, he was scheduled to attend a work-related conference in North Carolina when Leyva suggested he apply for a job with another group that was loosely connected with NEK. Schuyler did so, only to be informed by job interviewers that his Guard duties might be an “issue.” On June 28, 2010, Schuyler returned from the weekend to NEK, only to learn that he had been suspended with pay until further notice.

According to Leyva’s deposition, Schuyler was suspended after a complaint from one of the civilian staff at the Pendleton Marine base where NEK had a training contract. Before the suspension, Schuyler had requested the first two days of July off to be with his wife, who would be undergoing a hysterectomy in Washington state. His request was denied.

Instead, on July 2, Schuyler was fired. According to a document he was given, the firing came “at the request of the customer.”

That customer turned out to be Mark Packard, a civilian instructor at Camp Pendleton. His position was to deal with the NEK contract and to ensure that each instructor was doing the job correctly. His complaints to Leyva led to Schuyler’s employment suspension, court documents show.

According to an email including in court filings, Packard complained that Schuyler’s “skill sets are clearly outdated” and “his mindset was lacking.” Packard also complained that Schuyler had been moonlighting with other companies, which as Packard wrote in the email “grossly affects his ability to perform as an effective instructor.” Moreover, Packard alleged, Schuyler was sharing sensitive training information with other companies, which Packard said was “completely unacceptable.”

In his deposition, Packard said the complaints had come from Marines on the base who didn’t like Schuyler’s teaching methods. Packard said other complaints had come from Leyva. Then Packard put all the complaints in an email to Leyva, Schuyler alleged. Schuyler said he believes NEK used this approach so it could subvert the employment law: Even if Leyva’s concerns were primarily based on Schuyler’s Guard duties, basing his firing on an email from a customer would enable NEK to dismiss him on the grounds that he simply wasn’t good at his job. Leyva sent Packard’s email to his bosses and the human-resources department at NEK. Schuyler was subsequently fired.

Whose Job Is It, Anyway?

According to Labor Department statistics released in March, about 900,000 veterans -- Schuyler among them -- are currently unemployed. Diane Zumatto, national legislative director for AMVETS, a nonprofit advocacy group for veterans, said a number of issues have contributed to this figure. “In some cases, employers fear hiring veterans out of concern they might be recalled to active duty or because of worries that fighting in Afghanistan and Iraq may have caused post-traumatic stress disorder or traumatic brain injuries,” she said. Employers may also offer severance pay in exchange for a waiver of legal rights: Although the money may be a nominal sum, it can be significant to a young soldier who has lost his or her job, Zumatto said.

Schuyler believed his firing was facilitated by a kind of subterfuge -- backdating reports to portray him as a poor employee. So, for more than a week, he said, he called the Labor Department VETS helpline. He left message after message and requests to call him back. The Labor Department refused to make public its phone records, citing privacy laws. The lack of response left Schuyler deflated and angry. “I don’t think they care about us,” he said. “I mean, it should be, ‘I fight for my country and they look after me.’ They didn’t even pick up the phone.”

A retired Labor Department investigator, Bob Kuenzli, told the IBTimes that he handled cases similar to Schuyler’s and that the department is simply not equipped to deal with an ever-increasing caseload. “Not long after 9/11, we started seeing an explosion of cases that kind of leveled,” he said, “but now everyone is coming back we will see another big increase, and they don’t have the staff to deal with that.”

Worse, Kuenzli contended, government investigators are “completely underprepared to conduct investigations.” VETS employees undertake a two-week training course, which Kuenzli said is superficial at best. The trainees who will go on to become investigators after they complete the course spend one week learning investigative techniques and one week learning the law before being sent out to work. Although the Labor Department said it encourages face-to face investigations, Kuenzli said most cases are investigated over the phone or via email.

“Many of these investigators have other work to do, too, so the pressure is on,” he said. “There is not enough staff and not enough money to do the job correctly. The budget is used very badly in D.C. We need more people in the field and less bureaucrats in the head office.”

Creative Recordkeeping

Among the other returning reservists who lost their jobs is Staff Sgt. Gerald Delay, who worked as a heating engineer in Seattle and loadmaster in the Air Force Reserve before being called to active duty in February 2003. When he returned to his job with Ace Heating in February 2005, after two years overseas, he found that his hours had been cut. When he questioned the reduction, he was fired, he said.

The Labor Department, which took on Delay’s case, concluded that he had been fired for poor performance. Delay then hired a private attorney, who said “a few things stuck out after a first glance at the reports” that led to Delay’s firing. Lawyer James Beck said: “Firstly, there was no signature in the employer’s box saying it had been received. And one of the reports was dated February 29, 2005, a non-leap year.”

In court, Delay’s boss admitted to producing the reports after action was brought against him, but maintained that they were a true reflection of Delay’s character. A jury disagreed and found that the company had discriminated against Delay based on his military service.

“I wasn’t impressed with their investigations,” Beck said of the Labor Department. “I do know that they made legislative changes a few years later, but what benefit is there to pursuing a claim through the [government]? Very little.”

Delay gave up, but Schuyler continued to try. With no response from the Labor Department, he tried to contact the Employer Support of the Guard and Reserve, a Defense Department office that provides mediation between employer and employee. According to Schuyler, an official there told him that if he wasn’t expressly fired for his military commitments, little could be done. Jobless and with bills to pay and a family to support, Schuyler wasn’t sure what to do. An attorney, even one working on a contingency basis, can cost $40,000 or more, according to Beck, who has dealt with such cases for six years.

Schuyler was certain he had a case, but he was turned down by a number of lawyers who wanted to be paid upfront. At the suggestion of a former military colleague, he contacted Kris Elliot, whose office was 2,500 miles away in Florida. Elliot agreed to take on Schuyler’s case on a contingency basis, with Schuyler paying his own travel costs and court fees.

That left Schuyler and his family in a difficult position. To avoid falling behind on their mortgage payments and having their California home repossessed, he and his wife decided to rent it out. She and their two daughters moved to Washington state to stay with her parents, and he moved into a motor home that sits on his brother’s driveway.

[[nid:1344319]]

Neither knew how long the legal battle might last. Indeed, challenging such terminations can sometimes last longer than the wars that the veterans were sent off to fight. In 2000, for instance, the U.S. Postal Service fired Purple Heart recipient Sgt. Maj. Richard Erickson, saying he had taken too much military leave. The single father took the postal service to court, and the case took 13 years to conclude. Erickson was awarded $2 million in compensation and given back the job he had last worked 13 years before, but told NBC News in December 2012 that his case was exceptional in that most such veterans “just fired just run out of money, say forget it, and go to a Publix [grocery store for a job] and just move on. I’ve seen it so many times.”

Another comparatively high-profile case involved Nicole Mitchell, who was fired by the Weather Channel after more than six years -- because, she claims, of conflicts with her Guard service. Mitchell, 39, joined the National Guard at 17 and later transferred to the Air National Reserve, where she was part of the Hurricane Hunters group, which helps predict the path and severity of hurricanes. Although her role did not involve combat, “I absolutely know what we do contributes to saving lives,” Mitchell said. On March 30, 2009, the vice president of NBC News (which owns the Weather Channel), Elena Nachmanoff, called Mitchell while she was on duty with the reserves, Mitchell said, demanding that she return to work on Sunday to meet with a “hair consultant.” Her boss would accept “no excuses” for not coming in, Mitchell said.

[[nid:1344325]]

Mitchell, who had booked her military leave long in advance, had little choice but to ignore the appointment with the hair consultant. If she had gone, she could have been disciplined for not following a military order. Following a similar episode three months later, Mitchell was moved from the Weather Channel’s flagship show to a much less prestigious late-night show, which required weekend work that further clashed with her military duties.

According to court documents, the Weather Channel claimed her firing was unrelated to her military obligations, but her employee reviews were good. Her case is now being handled through binding arbitration. Neither the Weather Channel nor NBC would comment on the ongoing legal proceedings.

Most reservists who come into conflict with their employers are not so high-profile, however, and most are not in positions to stick it out, regardless of whether their claims are well founded. For Schuyler, each morning is a reminder of how the life he envisioned has instead become a morass of legalese. He left the Army so he could spend more time with his family, but his decision to remain in the Guard -- and his former employer’s decision to fire him -- have cost him dearly, with no end in sight. Now, five years after leaving the Army, he has re-enlisted. “If I had a choice between being a civilian or back in the Army, I would rather be a civilian and see my daughters grow up,” he explained. Re-enlisting, he said, was the only way he can support his wife and children, even if it means he seldom sees them.

Schuyler said he thought U.S. law would make it possible to hold a job and serve his country. Yet months, and perhaps years, may pass before he finds out whether that will actually be the case.

Join the Discussion