Service members and veterans get expanded anti-discrimination coverage

The Uniformed Services Employment and Reemployment Rights Act, known as USERRA, protects service members and veterans from discrimination because of their service. Now the Merit Systems Protection Board has clarified some of the rights under USERRA, as the Federal Drive with Tom Temin heard from Tully Rinckey Managing Partner, Dan Meyer.

Interview transcript:

Tom Temin What has happened with the MSPB and [the Uniformed Services Employment and Reemployment Rights Act]? This is I thought was kind of settled law, but apparently there’s some some new twists here.

Dan Meyer Yes, Tom, the board is moving into longstanding agenda items from the past decade, more or less, things they haven’t addressed, whether they needed some treatment. The surprise on this decision regarding veterans is that the board just decided that it would not take reprisal allegations, retaliation allegations on equal employment opportunity cases. But now they’ve turned around and said they will do that for veterans, which is a substantial broadening of protection for our veterans who work for the federal government. Surprisingly, people don’t realize that it’s the federal government who discriminates against veterans. This is why we have to have these protections. And the board has said that if you are attacked by federal supervisors and managers because you’ve exercised a right of filing a complaint, the board will entertain that. The very interesting part of this is they used a provision of the law, the “sufficiently pervasive to alter the conditions of employment” clause, which many of us have tried to use for a variety of causes over the last 20 years. They actually resorted to that to give veterans standing to sue in front of the board for that. So it’s a big win for vets.

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Tom Temin Well, let me just ask you about the connection between USERRA violations and EEO types of complaints. Those tend to be discrimination based on gender or age or racial affiliation. How does that relate over to USERRA and map to veteran status or military service member status?

Dan Meyer So for both USERRA and EEO, you have to remember that those laws address both private and public employment. For the board, we’re talking only about rights of public employment. And so at the beginning of any case, it’s very important for counsel to work with client to decide what is going to which tribunal. There are certain things that if it goes forward, for instance, as a mixed case, you’re going to lose out a hearing on the board side. At the same time, you may be going forward with the EEO process. The same with USERRA. There are provisions to go into district court with USERRA. The nice thing about being able to go to the board, frankly, is it’s cheaper for veterans. So Title V is set up, the board’s jurisdiction is set up actually, so veterans could if they wanted to even represent themselves. That’s very hard to do in federal district court. I think it’s also unwise to do before the board, but I’m a lawyer, so I would make that statement. So part of this is getting them access to the board, which, remember, the Merit Systems Protection Board stepped in and was created actually because of a backlog of cases in the federal courts in the 1970s. So even though we think it’s all clogged up and it doesn’t do its job properly now after 40 years, when it was set up and set up because all the cases were clogged up and not moving forward. So there is an advantage to be able to go forward with the board. But it’s important at the very beginning of the case to decide what is going to which tribunal and have a strategy so that you don’t end up getting far down the pike with one tribunal and then find out that they don’t have jurisdiction or you don’t have standing. And this is expanded standing for veterans in front of the board.

Tom Temin We’re speaking with attorney Dan Meyer. He’s national security partner of the law firm Tully Rinckey. And so what we’re seeing then is a reversal of policy by the MSPB to take USERRA-based EEO complaints that they were not taking in earlier years? Just to summarize.

Dan Meyer Yeah, if you had brought this type of retaliation or reprisal complaint previously, it probably would have been dismissed. You would have had to take it over into Federal District Court through USERRA provisions. And frankly, judges in Article III courts are not big on reprisal cases. They don’t like to think about that as protecting their own sources as judges — it’s just a cultural issue that we’ve never socialized judges to think about protecting the sources — in the process in the same way that the board is culturally sensitive to protecting sources because of its relationship with the Office of Special Counsel and other federal whistleblower programs.

Tom Temin All right. Well, let me ask you this then. In your experience, what types of violations of USERRA do we commonly see anymore?

Dan Meyer Well, this is really complicated; almost a third of the federal workforce are veterans. And I think that engenders a lot of animosity towards vets. I think non-vets see them as being kind of pigs at the trough and honing in on protected jobs and cushy jobs in the federal government. What the non-veteran in the federal workforce forgets is that the veteran’s there, because the veteran has paid upfront. You’re not born a veteran and that’s not like other minorities, where you’re born into a particular state is that society is not treated you well for. A veteran steps forward to do a public mission that has to be done while others do not. We have an all volunteer force so you do not have to serve, non-veteran, because a veteran stepped in and did your job for you. That’s the veteran’s perspective. They don’t articulate it because they’re pretty humble people. From the non-veterans’ perspective, they just see it as competition in the workplace and they see somebody getting something that they don’t get and they get angry about it. And if that person progresses up to a supervisor or a manager, it can become a very nasty anti-veteran culture within a federal agency. So there’s all sorts of things people can try to bypass the veteran’s preference rules. People can make assumptions about veterans that are wrong. I’ll just give you one. It is from the private employment field. But I went to an interview in a company that no longer exists called MCI. And in the middle of the interview, I had just come back from Desert Storm. I was asked by a rather junior member of the panel whether I would go postal.

Speaker 3 Yikes.

Dan Meyer I was shocked by the question because I didn’t even make the connection that I was a veteran and somebody might think that I would cook off in the workplace and hurt somebody and use a pejorative term — “going postal” — which is very pejorative towards postal workers. But that’s the kind of — and I didn’t file a complaint because I went on to another job that I enjoyed more — but that’s the kind of animus that can exist out there. And it just always shocks the conscience that that would exist inside the federal government, which is in charge of the mission that veterans accomplish. I think there’s a very complicated cultural issue. Veterans are not the same type of minority as other minorities in the federal government. It’s not a visual minority. It’s not one that’s apparent. You don’t know that somebody is a veteran when you see them walking down the hall. And because of that, I think it takes a special training and special sensitivity.

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Tom Temin Sure. All right. Let me ask you this. As the time progresses and more and more people coming into the government might not have been veterans because right now we’re not producing them at the rate that we did earlier. Do you think that there are people that just have a cultural or a social bias against the military or military activities could become more prevalent at the managerial levels and cause problems for people that did serve?

Dan Meyer Tom, it’s already happened. After World War Two, I think 75% of Congress was veterans. In the workplace, there were non-veterans who did not get jobs after World War Two because they were reserved for vets who went over to fight the Axis powers. So starting with a high point of maybe the mid 1950s, by the time you get to the all volunteer force of the late 1970s, when the people now think if you register for the draft, you somehow serve. No, no, you just registered for the draft. We haven’t invoked the draft for good reason since 1973 or so. So it’s 1%, I think was the number that fought in Southwest Asia of the country. And so 1% pays for the national security and the 99% profits. And I think the problem has been not so much the managers having served so they can’t understand the needs of the veterans in the workplace, because we have managers who are not African-American but can understand the EEO requirements quite well. The big challenge has been in the messaging, and this needs to come from [the Office of Personnel Management and Office of Management and Budget] and the White House and from Congress and making the connections, not just thanking people for their service. I really hate that phrase. It’s really repellant to me. But but thinking about what the person actually did. When you get in your car and you drive somewhere this weekend, people going on vacations all over the country, do people make the connection between global energy needs and what that veteran did for 20 years? It’s never nice to say that some of our national security is about securing energy sources for ourselves and our allies. But that’s a lot what our guys were doing. So that’s the problem, is that we don’t make the connection in our daily life between the benefits the government gives us and who provides that benefit and the fact that we’re not the one providing the benefit. Everybody likes to get something for free, and that includes the benefits of national security.

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