The Office of Special Counsel deals with hundreds of USERRA-based cases each year, many of them involving law enforcement agencies. In 2008, for example, an Immigration and Customs Enforcement agent alleged she was denied the chance to apply for a position that became available once she was activated. As a result of the complaint, ICE agreed to give the agent priority consideration for the slot.
In another case involving the Department of Homeland Security, one claimant alleged his employer "mischarged his leave and imposed a debt on him as a result of his service in the Air Force reserve." Eventually, the claimant's lost leave was restored.
In fact, one of the most frequent violations investigated by the USERRA unit of the OSC involves agency misconceptions about leave, pay and other benefits. This sometimes leads to suits like the one filed against the town of Billerica, Colorado, by one of its officers in September 2008. The officer, Timothy Connors, alleged in court documents that his efforts to obtain unpaid military leave in order to attend reserve training resulted in departmental retaliation.
In 2007, two San Francisco police officers filed suit against their department claiming workplace discrimination, and asked for relief under USERRA. The two — one of whom served in the Army reserve and the other a member of the Army National Guard — say they repeatedly failed to win promotions as a result of their continued absences while serving in Iraq.
The law provides that departments maintain options for and refrain from discriminating against law enforcement officers called to active duty, but for most departments it's becoming more and more difficult to maintain enough bodies to keep the streets safe. And what happens when departments lose budgeted positions?
Based on the current economic downturn, it appears a lot of agencies will soon be in a position to answer that question.Going out of business
The economic crisis has spawned both massive civilian layoffs and declining retail sales, which in turn have led to reduced revenues for many governments. That has translated into reductions in forces at levels heretofore unseen since the Great Depression. These economic situations can't help but impact law enforcement agencies.
David Schultz, a Hamline University professor in the School of Business and Department of Criminal Justice, says when laws like USERRA were passed, no one anticipated "deployments and obligations that amounted to years away from those jobs. For larger departments a lot of the brunt can be absorbed by the constant turnover. But smaller departments don't necessarily have that much turnover, and keeping jobs available can be fiscally difficult."
Schultz sees more challenges ahead, as well as possible confrontations between money-strapped departments and government mandates. As towns, cities and counties find it harder to get by with pending budget cuts, Schultz believes things will only grow more critical.
"As the war in Iraq winds down, more soldiers will return expecting jobs and ... as the economy tightens, layoffs and budget tightening may mean that the jobs do not exist when the soldiers return. Or if they do exist, they may force other workers out of a job, creating resentment," he says.A misstep can be expensive
Mathew Tully understands better than most what a misstep under USERRA can cost both the individual and agency. The attorney began his career as a federal corrections officer in 1995 and was activated as a reservist for three years. His tours included a year in Korea.
Tully returned to his duties at a corrections center in New York City, where he worked until 2000. After filing a number of discrimination complaints based on his military service, Tully eventually settled for an undisclosed sum and retired in 2008.