Federal officials acknowledge the violations and say that the chief challenge has been educating supervisors in the field. The VA began in-depth training in November for managers to ensure compliance with “both the spirit and the letter of USERRA,” said Mary Santiago, director of the VA’s Veteran Employment Services Office.
The Defense Department, along with the VA and six other agencies, formed a working group late last year to examine how to improve federal compliance.
For service members, high rank has not necessarily proved to be a protection. Silva, a 1978 West Point graduate, served with the Army Reserve on deployments in Qatar and Afghanistan while pursuing a civilian career in finance, and commanded the 411th Engineer Brigade, an Army Reserve unit, during a one-year deployment to Iraq.
Shortly before the brigade returned to the United States in August 2007, Silva sent a form letter to each employer for his 4,000 soldiers, including his own boss, reminding them of their obligations under USERRA law.
Silva expected to return to his job as a contract employee at a Customs and Border Patrol facility in Lorton. But a Customs contracting officer told the contractor, SPS Consulting, that the government wanted to keep Silva’s replacement in the job, and warned the contractor in an e-mail that Customs “would cancel the contract” if Silva was reinstated.
After being laid off, Silva filed USERRA complaints against Customs and SPS. The Justice Department declined to take action against the contractor, but the U.S. Office of Special Counsel, which reviews alleged government wrongdoing, won a decision holding Customs responsible.
Burden is on the vet
Silva, who reached a confidential settlement with Customs, remains angry that the Justice Department did not pursue the case. “They refused to give any kind of explanation,” he said. “The whole burden is put on the serving soldier to defend your case.”
The former brigadier general’s experience is not unusual. Some employees penalized for their military service describe being forced to wend their way through a frustrating bureaucracy before they get recourse. Sometimes, veterans and advocates say, they never get it.
In fiscal 2010, the Labor Department recommended that Justice officials pursue 43 alleged violations of USERRA. The Justice Department agreed to represent only three, but helped settle nine other cases. The department declined to represent 18 service members, despite Labor’s conclusion that their cases had merit. Another dozen cases were still being considered by Justice at the end of the fiscal year.