Understanding USERRA: Cops in our armed forces still face discrimination at home
This Memorial Day, let's remember our LE heroes killed in wars overseas, and resolve to help cops returning from battle who must fight to right a variety of departmental wrongs
Editor’s Note: This Memorial Day, we pay our respects to all the Soldiers, Sailors, Airmen, and Marines who have made the ultimate sacrifice in defense of our country... Even as we honor our fallen warriors, I want do something for the men and women who have fought valiantly for our nation, lived to return home to their families and their law enforcement jobs, and encountered mistreatment and discrimination. I’m not talking about the ugliness we saw following Vietnam. I’m talking about right now. I first became aware of the pervasiveness of this problem a couple of months ago, and chose today to call attention to it, because I’ll be damned if I wait until Veteran’s Day.
During a chance encounter at an airport bar a few months ago, I met a cop who informed me of something that shocked and saddened me. He told me about continuing and ongoing discrimination by a number of police administrations against law enforcers who are also Reservists and Guardsmen called up to serve our nation in Operation Iraqi Freedom, Operation Enduring Freedom, and countless other missions in The Long War* overseas.
Such unfairness can be as subtle as receiving the least-desirable shift or assignment with no recourse but to just “grin and bear it.” These injustices can be as flagrant as false accusations of misconduct and the initiation of specious IA investigations. It includes everything from denial of step-increases in compensation or advancement in rank to the creation of bizarre administrative barriers to receive accrued vacation time. This discrimination is not just illogical — who in their right mind would willingly injure someone who has gone downrange to protect our country from evil? — it is also illegal.
Briefly, let’s get back to my “airport friend” for a moment, because he’s central to this story. I won’t name him, quote him, or identify his PD (I did happen to get a look his agency ID, and can assure you he’s a legitimate LEO). I will say only that he works the streets in a city somewhere west of the Mississippi, and that while I had sincerely hoped his experience would be unique, his story is anything but a one-of-a-kind thing.
Sickening Story in Short Strokes
When al Qaeda terrorists struck America on 9/11, my airport friend was simultaneously a sworn police officer and military reservist. Prior to that terrible day, he had been planning on leaving the reserves, and putting the totality of his energy toward his police career. Instead, he was called up and headed for deployment overseas. He was not alone — several reservists from his PD served at one time or another in Operation Iraqi Freedom or Operation Enduring Freedom... or both!
My airport friend would deploy four more times before all was said and done, and each time it became harder. Not the deployment, he told me, nor even the stress of being away from family and the creature comforts of everyday life. What became harder and harder was the treatment he got from the department’s administration upon his return home.
Intellectually, he understood (and understands) the cause for the administrative animosity. Because of the call-ups to active duty the PD was, in effect, running a business shorthanded. That’s just more difficult to do than running a business at full staff, and resentment became pervasive. Tensions began to mount on all sides.
My airport friend and all the servicemen at his PD returned home to find administrative hurdles had been erected to make it more difficult to get differential pay and leave accruals. Upon returning from deployment, eligibility for promotion was denied.
According to him, this department was (maybe still is) punishing servicemen for their service. Sadly, it seems this department is not an anomaly.
Several Publicly-Known Cases
In South San Francisco — “The Industrial City” not ten miles from my office and home to the airport at which I met my airport friend — two officers filed a federal lawsuit against the Police Department, saying they suffered workplace discrimination because of serving extended military deployments overseas.
Howard Zimmerman, a Major in the California Army National Guard, and William Carter, a Lieutenant Colonel in the Army Reserve, were denied promotions and removed from their assignments after returning to South San Francisco PD from tours in Iraq. Zimmerman, a police corporal, contended in the 2007 lawsuit that a less-qualified officer was promoted to sergeant over him. Carter, a police sergeant, contended that two people he used to supervise were promoted to lieutenant over him.
Neither Zimmerman nor Carter is my airport friend. Nor is Johnnie Paxton or Brandon Contreras, who prevailed in their lawsuits over the City of Montebello (Calif.) Police Department. Paxton and Contreras each sued Montebello over annual leave, seniority, and pay-steps which were denied to them as a direct consequence of their service in our armed forces.
The more research I did for this column, the more I came to understand that these lawsuits are not just happening in California. This is a nationwide problem, with well-publicized cases in Tennessee, Georgia, and Texas. These suits were made possible by the legal protection afforded to our nation’s servicemen and women by the Uniform Services Employment and Reemployment Rights Act of 1994 (United States Code, Chapter 43, Part III, Title 38).
“The what?!” you say? Read on, brothers and sisters...
The Uniform Services Employment and Reemployment Rights Act (USERRA) “prohibits an employer from denying any benefit of employment on the basis of an individual’s membership, application for membership, performance of service, application for service, or obligation for service in the uniformed services. USERRA also protects the right of veterans, reservists, National Guard members, and certain other members of the uniformed services to reclaim their civilian employment after being absent due to military service or training.”
Late last week I spoke with Carolina Veronica Cutler, an attorney at the law firm of Lackie, Dammeier & McGill, who represented Paxton and Contreras in their cases against the City of Montebello.
“It’s a widespread problem,” Cutler told me. “Many police departments are facing this issue, and many police departments don’t know how to handle it. I think that’s where the problem starts. They just don’t understand what their obligations are under [USERRA].”
This, despite the fact that back in March 2010, the International Association of Chiefs of Police (IACP) issued a press release indicating intentions to “fully recognize, honor and enforce the Uniformed Services Employment and Reemployment Rights Act.”
“The IACP is proud to stand behind this important program and to support our men and women who protect our communities at home and protect our country abroad. I encourage every police chief to join with me in signing a Statement of Support to publicly honor their Citizen Warriors who serve their communities and our nation in the National Guard and Reserve,” said Chief Michael J. Carroll, President of IACP at the time.
That's a noble statement, but when I spoke with Cutler last week, she explained, “I think the main problem is that people aren’t reading [USERRA] and they’re not realizing that their policies are outdated, or that they don’t even have a military leave policy at all. Some don’t even know what USERRA is.”
I guess some folks never got the IACP memo.
So, if certain administrators don’t understand USERRA, let’s at least begin the process of demystifying this important piece of labor legislation. First and foremost, as laws go, it is written in understandable, plain-English — there is very little legal-eagle-speak. Sure, there’s some wonky language, but it’s nothing even close to as confusing as say, this convoluted mess.
Further, it’s refreshingly short. Some laws are thousands of pages long. When I copied the full text of USERRA and pasted it into a Microsoft Word document, it came to just 30 pages — that’s nothing for a piece of Federal Legislation. Not to put too fine a point on it, but when you can fit all the basics onto a single wall poster, you’re dealing with something pretty straightforward.
Finally, and most importantly for agencies and administrators, there are abundant resources available to steer you clear of trouble. For example, this Department of Labor resource notes that:
“USERRA provides that returning service members are to be reemployed in the job that they would have attained had they not been absent for military service, (the ‘escalator’ principle), with the same seniority, status and pay, as well as other rights and benefits determined by seniority. ...USERRA also provides that while an individual is performing military service, he or she is deemed to be on a furlough or leave of absence and is entitled to the non-seniority rights accorded other similarly-situated individuals on non-military leaves of absence.”
Simple, right? By adhering to some pretty uncomplicated rules of the road, you’ll not only do right by your people, but you may prevent your city or municipality from a pretty significant legal challenge. Win-win, right?
Unfortunately, a shockingly-high number of law enforcement agencies across the United States have failed to adhere to USERRA, done wrong by their people, and had their violations challenged in the courts.
“Our firm is widely known in California for representing police officers, so we have a lot of cases in California, but I’ve been getting calls from all over from people who read about our cases and they realize, ‘Hey, that’s happening to me too’,” Cutler said.
Cutler — whose firm’s motto is “Former Cops Defending Current Ones” — is getting calls from across the country at a rate of about one potential new case every week.
Just to give you a sense of scale, my airport friend recently told me about an organization to which he is connected that actively tracks such data. That group estimates that there are roughly 8,000 new USERRA cases filed annually. Now, that’s across all vocations — from teachers, to lawyers, to plumbers, to doctors — but when you consider the number of law enforcement officers who are also reservists, you can begin to draw some conclusions about the proportion of cases involving LEOs.
That this is even an issue in the law enforcement community is a little confounding to me — after all, policing is a somewhat paramilitary endeavor, with paramilitary organizational structure and paramilitary-oriented personnel. Sure, I’ve heard the administrative arguments: budget crisis, staffing issues, blah, blah, blah...
Times are tough, I get that. But a lot of what’s being done to harm these cops seems to be purely punitive — there’s absolutely no dollar amount attached to it.
Punishment for punishment’s sake, pure and simple.
Looking Ahead, Working for Justice
Across the country, officers have been indirectly forced to choose between military service and their police careers. For every well-known case which has already been decided in court, there are surely countless others which are known only to an individual cop, their family, and of course, their administrator perpetrating some manner of discrimination. Perhaps one of those people is you.
If any of the above spurs you to say, “Hey, that’s happening to me too,” please be advised that there’s an organization out there willing to fight for you. Check out the Employer Support of the Guard and Reserve and their vast library of USERRA resources.
Additionally, anyone — and I mean ANYONE — can get further information on USERRA by calling the U.S. Department of Labor, Veterans Employment and Training Service (VETS) at 1-866-4-USA-DOL or visiting the VETS website. For example, if you’re a Union President, check out these resources, and then seek out the service members in your PD and get to know them — find out if they’re dealing with these issues. In your position, you may have more of an ability to do something to effect change in departmental policy or city administrative awareness of these matters.
I run into all sorts of people at airports, from SI supermodels to NFL Hall-of-Famers, but one of the most important such encounters was with my “airport friend.” Had he not sat in the barstool next to me at that airport bar, the pervasiveness of this problem would never have been on my radar.
Thank you sir, not only for your service, but also for being the impetus for my column today. I was under the mistaken impression that these instances of discrimination were rare — thanks to you, I now know the truth.
Finally, I will pray today for all the brave Soldiers, Sailors, Airmen, and Marines who have given their lives under the battle flag of the United States of America. Even as I do so, I want to thank all the returning veterans, as well as every currently serving member of our Armed Forces, for your service. I realize that Memorial Day and Veteran’s Day are totally different things, but I am not going wait until 11/11 of this year to say “thank you” to you wonderful warriors as well.
There is no such thing as a “Happy Memorial Day” in my opinion, so allow me close by merely saying, again, THANK YOU.
* The Long War is commonly known as the Global War on Terror, but I refuse to call it that, on the grounds that: A.) it's grammatically incorrect (we are not fighting terror, or terrorism, but actual terrorists!), and B.) it fails to address the totality of the effort, which includes both overt and covert action against nation-states, non-state actors, lone wolves, and other threats which don't fall into commonly-used definitions.
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