Witness Testimony of Hon. Artur Davis, a Representative in Congress from the State of Alabama
Chairwoman Herseth Sandlin and Ranking Member Boozman, thank you for holding today’s hearing to examine proposals to protect the jobs, housing and educational opportunities of our brave men and women of the US Guard and Reserves. I appreciate the opportunity to testify on the Reservist Access to Justice Act (RAJA), HR 3393, that I cosponsored with Reps. Altmire and Walz.
All of us recognize that our military service men and women are offering the highest personal service to their country as the war continues. Since 9/11, more than 600,000 reservists and guardsmen have been mobilized.[i] Defense Department Data shows that while members of the Guard and Reserve have made up about 28 percent of all US forces deployed to Iraq or Afghanistan, there were periods during 2005 when they made up nearly half of all US troops in combat.[ii] These deployments have taken a toll on the mental health, family lives, and economic stability of these brave men and women.
Understanding the role of reservists in the military, Congress acted in 1994 to ensure that when reservists and guardsmen answer the call of duty and return home, they also have the right to return to their civilian jobs. The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits employer discrimination against members of the military, on the basis of their military service, in hiring or in reemployment. Unfortunately, studies and reports familiar to this subcommittee show that – due to a number of factors – USERRA has not kept all of our reservists and guardsmen from falling through the cracks.
For example, a Christian Science Monitor article published this weekend bore the title, “While Reservists Serve, Their Jobs Don’t Always Wait.” The article outlines the story of Marine Reservist Steve Duarte, who held his civilian job for 19 years. Yet when he returned from Iraq in 2003, he was told that he would be let go at the end of the week. When his efforts with the Departments of Labor and Defense led nowhere, Duarte hired a private attorney and spent $12,000 of his own money for fees. Several years later, he won his lawsuit and was awarded almost $400,000. Duarte is not an isolated case. Numbers indicate that:
10,061 formal complaints were filed with DOL from October 1, 1996 through June 30, 2005. [iii]
Nearly 10,000 informal complaints were filed with the Office of Employment Support for the Guard and Reserve (ESGR), and over 2,000 formal complaints were filed with the Veterans’ Employment and Training Service (VETS) and Office of Special Counsel (OSC) during fiscal years 2004-2005 (a total of almost 16,000).[iv]
Though numbers show slight improvement, the June 2006 Status of Forces Survey showed that military personnel reported being briefed on USERRA 1.8 times on average (up from 1.3 in 2004). The number of servicemembers who had never been briefed on USERRA decreased from 27 percent in 2004 to 21 percent in 2006.[v]
·According to the GAO, about seventy percent of reservists facing difficulties in being reemployed or promoted did not seek any type of redress.
We must agree that these numbers are unacceptable. However, recent court decisions have weakened service members’ ability to use USERRA to enforce their rights. These include allowing service members to be subject to binding arbitration agreements and limiting the types of relief the court can provide. My bill, HR 3393, will correct and clarify gaps in USERRA that have allowed employers to escape their legal obligations to the military service members they hire.
For example, in 2003 Lt Col Michael Garrett, USMCR was fired from his position with Circuit City stores following more than ten years of work-related problems due to his service and training in the Marine Corps Reserve. When he sued the company, Circuit City responded with a motion to compel arbitration on the basis of a binding arbitration agreement that had been distributed to all employees in 1995. While the district court found that USERRA superseded the arbitration agreement, the 5th Circuit Court of Appeals reversed, finding that because Congress has not explicitly stated that USERRA plaintiffs “procedural” (as opposed to “substantive”) rights are superseded by USERRA, the agreement was enforceable. The Reservist Access to Justice Act will provide needed clarity on this issue by amending the Federal Arbitration Act to exempt USERRA plaintiffs from binding pre-dispute arbitration agreements.
This legislation also addresses the need to ensure that injunctive relief is available to reservists who have been fired in violation of USERRA. Current law holds that only violations that result in “irreparable injury” can be prevented by a court injunction. Firings are not considered “irreparable” injury, since a court can award backpay if it finds that the firing was discriminatory. However, the unique goals of USERRA – to ensure that the jobs of service members are protected – cannot be achieved if the Court cannot act to prevent a discriminatory firing. HR 3393 strengthens USERRA by clarifying that the court “shall” use its equity powers to protect military servicemembers.[vi]
Additional key provisions of RAJA would accomplish the following:
- Expand Availability of Liquidated Damages in USERRA disputes. Section 4323(d) of USERRA currently allows for liquidated damages only in disputes with a State or local government, or a private employer. Further, because liquidated damages are determined by doubling the amount of actual damages, a veteran may still end up without any monetary relief. RAJA will extend section 4323(d)(C) by making it applicable to the Federal Government. RAJA will also ensure that liquidated damages are always available by making the amount of damages equal to the actual amount of damages or $20,000, whichever is greater.
- Make compensatory damages automatic absent a showing of good faith by the employer. Section 4323(d) allows for a range of discretionary relief, including compensatory damages. RAJA will make the award of damages the default outcome, except where the employer can show that the USERRA violation was made in good faith.
- Provide for Punitive Damages in the Worst Cases of Discrimination. USERRA currently does not provide the court with additional remedies to deter the most egregious violations of service members’ employment rights. RAJA would make punitive damages available as a remedy in cases where the discriminator acted with “malice or reckless indifference to the federally-protected rights of the person.”
- Holds State Governments Accountable. RAJA provides that States that accept federal funds for any state programs or activities have waived their sovereign immunity in cases of USERRA actions.
In addition to these key provisions, my office is currently finalizing the drafting of several additional provisions which would further re-invigorate USERRA. These provisions would do the following:
- Clarify the Definition of Successor in Interest. In Coffman v. Chugach Support Services, Inc., 411 F.3d 1231 (11th Cir. 2005), a court found that Coffman had no remedy under USERRA. While the USERRA definition of “employer,” includes a “successor-in-interest,” the definition does not make clear that a merger or transfer of assets need not occur for a successor company to take on the reemployment obligations of the original company. In USERRA’s legislative history, Congress stated its intent to apply factors used in Leib v. Georgia-Pacific Corp., 925 F.2d 240 (8th Cir. 1991) to define “successor-in-interest.” RAJA will codify Congress’ intent so that a company like Chugach, which interviewed all 100 of the previous contractors’ employees and hired 97 of them, would be considered a successor-in-interest for the purposes of protecting USERRA plaintiffs.
- Ensure that Prevailing Plaintiffs Receive Attorneys’ Fees. Currently, USERRA makes the award of attorneys’ fees discretionary. By requiring the award of attorneys’ fees where appropriate, USERRA will ensure that reservists are able to turn to private attorneys to represent them when they are unable to find relief through government channels.
The views and recommendations of a number of experts were considered in the drafting of this legislation. As a result, HR 3393 has been endorsed by the National Defense Committee, The Military Officers Association of America, the Military Coalition, and the Reserve Officers Association. In a letter of support signed by representatives of 32 member organizations, the Military Coalition states, “Since September 11, 2001, more than 600,000 members of the Guard and Reserve have served the nation on active duty in the war on terror. Over 132,000 have served multiple tours and thousands more are in the call-up pipeline. For these selfless patriots and their families returning to home, hearth, and jobs is second only to accomplishing their mission…The Military Coalition appreciates your introduction of this legislation. Your bill is a very positive step in helping sustain the Guard and Reserve as full partners in our operating forces. TMC strongly supports HR 3393 and pledges to work with you and all of Congress to secure its enactment.”
I urge you to join these organizations and support this legislation.
[i] Jill Carroll. The Christian Science Monitor. While Reservists Serve, Their Jobs Don’t Always Wait. April 10, 2008
[ii] Kimberly Hefling. Associated Press. Iraq War Vets’ Suicide Rates Analyzed: High Numbers Found Among members of Guard, Reserves. February 13, 2008.
[iii] GAO. Posthearing Questions Related to Federal Agencies’ Activities regarding the Uniformed Services Employment and Reemployment Rights Act. GAO-08-397R Military Personnel. Senate Committee on Health, Education, Labor and Pensions. 1/9/08
[vi] Section 4323(e) of USERRA allows the court to make discretionary use of its equity powers in order to vindicate the rights and benefits of the veteran. In the case of Bedrossian v. Northwestern Memorial Hospital, 409 F.3d 840 (7th Cir. 2005), the court declined to grant Dr. Bedrossian an injunction to prevent his employer from firing him. By amending Section 4323(e) to read that the court “shall use its full equity powers” instead of “may use its full equity powers,” RAJA ensures that courts can act to prevent discriminatory firings.