[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
EXAMINING THE FUTURE OF WORKFORCE
PROTECTIONS FOR SERVICEMEMBERS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON ECONOMIC OPPORTUNITY
OF THE
COMMITTEE ON VETERANS' AFFAIRS
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
__________
THURSDAY, MARCH 9, 2023
__________
Serial No. 118-3
__________
Printed for the use of the Committee on Veterans' Affairs
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via http://govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
51-537 WASHINGTON : 2023
COMMITTEE ON VETERANS' AFFAIRS
MIKE BOST, Illinois, Chairman
AUMUA AMATA COLEMAN RADEWAGEN, MARK TAKANO, California, Ranking
American Samoa, Vice-Chairwoman Member
JACK BERGMAN, Michigan JULIA BROWNLEY, California
NANCY MACE, South Carolina MIKE LEVIN, California
MATTHEW M. ROSENDALE, SR., Montana CHRIS PAPPAS, New Hampshire
MARIANNETTE MILLER-MEEKS, Iowa FRANK J. MRVAN, Indiana
GREGORY F. MURPHY, North Carolina SHEILA CHERFILUS-MCCORMICK,
C. SCOTT FRANKLIN, Florida Florida
DERRICK VAN ORDEN, Wisconsin CHRISTOPHER R. DELUZIO,
MORGAN LUTTRELL, Texas Pennsylvania
JUAN CISCOMANI, Arizona MORGAN MCGARVEY, Kentucky
ELIJAH CRANE, Arizona DELIA C. RAMIREZ, Illinois
KEITH SELF, Texas GREG LANDSMAN, Ohio
JENNIFER A. KIGGANS, Virginia NIKKI BUDZINSKI, Illinois
Jon Clark, Staff Director
Matt Reel, Democratic Staff Director
SUBCOMMITTEE ON ECONOMIC OPPORTUNITY
DERRICK VAN ORDEN, Wisconsin, Chairman
NANCY MACE, South Carolina MIKE LEVIN, California Ranking
C. SCOTT FRANKLIN, Florida Member
JUAN CISCOMANI, Arizona FRANK J. MRVAN, Indiana
ELIJAH CRANE, Arizona MORGAN MCGARVEY, Kentucky
DELIA C. RAMIREZ, Illinois
Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public
hearing records of the Committee on Veterans' Affairs are also
published in electronic form. The printed hearing record remains the
official version. Because electronic submissions are used to prepare
both printed and electronic versions of the hearing record, the process
of converting between various electronic formats may introduce
unintentional errors or omissions. Such occurrences are inherent in the
current publication process and should diminish as the process is
further refined.
C O N T E N T S
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THURSDAY, MARCH 9, 2023
Page
OPENING STATEMENTS
The Honorable Derrick Van Orden, Chairman........................ 1
The Honorable Mike Levin, Ranking Member......................... 2
WITNESSES
Mr. James Rodriguez, Assistant Secretary for Veterans' Employment
and Training Service, Department of Labor...................... 4
Col. Gilbert L. Patton (ret.), Reserve Organization of America... 14
Mr. Mike Hadley, Director of Legislative Affairs, National Guard
Association of the United States............................... 16
Mr. Kevin Hollinger, Legislative Director, Enlisted Association
of the National Guard of the United States..................... 17
Mr. Jonathan E. Taylor, Principal, Gupta Wessler................. 19
APPENDIX
Prepared Statements Of Witnesses
Mr. James Rodriguez Prepared Statement........................... 29
Col. Gilbert L. Patton (ret.) Prepared Statement................. 39
Mr. Mike Hadley Prepared Statement............................... 48
Mr. Kevin Hollinger Prepared Statement........................... 49
Mr. Jonathan E. Taylor Prepared Statement........................ 55
Statements For The Record
Department of Defense............................................ 61
EXAMINING THE FUTURE OF WORKFORCE
PROTECTIONS FOR SERVICEMEMBERS
----------
THURSDAY, MARCH 9, 2023
U.S. House of Representatives
Subcommittee on Economic Opportunity
Committee on Veterans' Affairs
Washington, D.C.
The subcommittee met, pursuant to notice, at 10:36 a.m., in
room 390, Cannon House Office Building, Hon. Derrick Van Orden
(chairman of the subcommittee) presiding.
Present: Representatives Van Orden, Ciscomani, Crane,
Levin, Mrvan, McGarvey, and Ramirez.
OPENING STATEMENT OF DERRICK VAN ORDEN, CHAIRMAN
Mr. Van Orden. The subcommittee will come to order.
Good morning.
Before we get to the subcommittee's first hearing of the
118th Congress, I want to introduce myself. My name is Derek
Van Orden. I represent the Third congressional District of the
State of Wisconsin. I am a proud retired Navy Seal, served our
country for 26 years. I did five combat tours during that time.
I am a 100 percent service-connected disabled veteran. I get
all my health care through the VA, and I have utilized a lot of
the programs myself and with my family and my shipmates that we
cover under this purview.
I am also incredibly excited to be working with Ranking
Member Levin and other members of the subcommittee to serve
those who have served us and given us our freedom. During this
last Congress, Representative Levin and Representative Moore
did amazing work by enacting meaningful legislation and
conducting oversight over the VA. And under your leadership,
this committee was not bipartisan, it was nonpartisan. I think
that is the highest compliment you can give anybody in this
town, and I intend to follow your example, and I expect every
member of this committee to do the same, because the issues we
are dealing with here supersede politics. I hope to continue to
work with my ranking member in this Congress, especially on the
Transition Assistance Program, the programs for homeless
veterans, and improving the GI Bill.
I recognize myself for an opening statement.
Pleased to be here today to discuss the Uniformed Services
Employment and Reemployment Rights Act of 1994, or USERRA, and
the impact it has had on our service members and veterans.
While I am thankful for the Department of Veterans Affairs
Employment Training Services Program to be here today, I would
like to say that I am not extremely disappointed that the
Department of Defense (DOD) declined to participate in this
important hearing on a program affecting those who serve our
country, I am angry at them. DoD's employer support of the
Guard and Reserve Program has a vital role in protecting
service members and educating employees about USERRA rights and
making sure our men and women transition from uniform to
veteran.
As more National Guard and Reserve units are called upon
active duty, I hope in the future the Department of Defense
makes protecting these service members and their jobs while
they are on active duty a priority, especially when the
Department continues to experience a recruiting shortage. At a
minimum, I expect them to show up.
USERRA, which was signed in law in 1994, does an incredibly
important job of making sure that when service member returns
to civilian life, they have employee protections and are not
negatively impacted for protecting our country. This is not a
workforce development or maintenance issue, this is a national
security issue, as our National Guard and Reservists are
integral to maintaining our freedoms.
When I was a SEAL platoon chief in Iraq, I had 50
Pennsylvania National Guard Operational Control (OPCON) to my
unit. They were incredibly professional. One of them was a
welder and I hoped that when he finished serving our country,
that he had his job waiting for him back in Pennsylvania. It is
incredibly important that we ensure that happens.
My goal for today is to hear you, sir, the Department of
Labor VETS, about their effort to implement a law and hear what
we can do to help make your job easier to carry out the goal of
a law. American businesses have been, and I know will continue
to be, supportive of the mission of the National Guard, but
there needs to be a balance of this mission and its impact on
businesses ability to survive. This is especially true after
COVID lockdowns and the rising inflation created by some poor
economic choices of the Biden Administration. I am also looking
forward to listening to the comments from our second panel on
how USERRA can be improved and what they are hearing about
implementing this law from a practitioner's point of view.
To be clear, the law is the law and I will not stand for
those companies or government entities who wave the flag and
post patriotic videos on Veterans Day and Memorial Day, but
then fail to support our service members and their families
when they are deployed. Not on my watch.
Thank you all for being here today. Look forward to hearing
your comments and recommendations. With that, I yield to
Ranking Member Levin for your opening statement, sir.
OPENING STATEMENT OF MIKE LEVIN, RANKING MEMBER
Mr. Levin. Thank you. Well, first, I want to congratulate
you, Mr. Chairman, on being selected to chair the subcommittee.
I am very grateful that in our interactions you have
demonstrated a tremendous commitment to the work that we do on
the subcommittee. As you said, it is not partisan in any way. I
want to make sure that we carry forward with the legacy that we
have had these last 4 years, first with Ranking Member
Bilirakis, good friend from Florida, and then, of course, with
Ranking Member Moore from Alabama. I hope to follow in their
footsteps as ranking member to do the work of this committee in
a nonpartisan bipartisan way. I also want to commend the staff.
The House Veterans' Affairs Committee (HVAC) staff also works
collaboratively, and we very much appreciate that. Both the
majority staff, minority staff, and we look forward to that
continued collaboration.
We accomplished a lot in the 4 years that I was able to
chair the subcommittee. We improved education standards, we
increased access to the home loan benefit, we housed more
homeless veterans. Again, none of that possible without that
hard work on both sides of the aisle. I look forward to
visiting western Wisconsin. I welcome you to San Diego.
Hopefully, we will catch it during a really good, you know,
beautiful--well, every time of year is a beautiful time of year
in San Diego.
Mr. Van Orden. I officially accept that invitation.
Mr. Levin. Excellent. All right, we have it on the record.
That brings us to the work that continues. We have got a
tremendous amount more to do. The subject today, I think, is
certainly an example of that.
The Uniformed Services Employment and Reemployment Rights
Act, or USERRA, is one of the bedrock laws which ensure that
service members are not punished professionally for their
commitments to our Nation's defense. Building upon the Veterans
Reemployment Rights Act, Congress passed USERRA to ensure that
no service member loses their job or is discriminated against
when they answer the call of duty. Under USERRA, the Department
of Labor investigates around 1000 violations each year, and
fortunately, resolves the vast majority without needing to
refer the case to the Department of justice (DOJ). However,
this law is not comprehensive for many service members and for
their families, does not cover military spouses, nor, in my
view, does it adequately allow for covered service time
commensurate with the length of a service member's employment.
Also, many service members are forced into arbitration clauses
in their employment contracts, giving our service members a
Sophie's Choice between a paycheck and the USERRA rights.
That is why our committee is actively working on
legislation to cover military spouses and their families and
finally end forced arbitration clauses.
It is no secret that our services are not meeting their
recruitment goals. For example, the Army National Guard only
managed 66 percent of their goal the last fiscal year. Making
it easier to serve while still pursuing a civilian life will
bring more individuals to the service, where we can continue to
offer the excellent benefits this committee oversees, such as
the GI bill, home loan program, and more. I hope these are all
places where our committee can continue to work in a
collaborative fashion.
Look forward to hearing from our witnesses--good to see you
again--to learn more about gaps in the law, gaps also in the
enforcement of the law, and how we can address those gaps.
With that, I will yield my time back to the chairman.
Mr. Van Orden. Thank you, Ranking Member Levin.
I will now introduce our witness panel.
Our first witness is from the Department of Labor, Mr.
James Rodriguez, a veteran of the United States Marine Corps,
an assistant secretary of Veterans Employment and Training
Service.
Sir, I am going to ask the Department of Labor (DOL)
witness on our panel to stand and raise your right hand,
please.
Thank you. Let the record reflect that the witness has
answered in the affirmative.
[Witness sworn]
Mr. Rodriguez, you are now recognized for 5 minutes to
deliver your opening statement.
STATEMENT OF JAMES RODRIGUEZ
Mr. Rodriguez. Good morning, Chairman Van Orden, Ranking
Member Levin, and distinguished members of the subcommittee.
My name is James Rodriguez and I serve as the assistant
secretary for the U.S. Department of Labor Veterans Employment
and Training Service (DOL VETS), commonly known as USERRA.
Thank you again for the opportunity to join you all today.
DOL VETS, with the support of our interagency partners
proudly administers, interpreter and enforces the Uniformed
Services Employment and Reemployment Rights Act of 1994, better
known as USERRA.
As described in my written testimony, I first want to
highlight my overall theme for this hearing, which is USERRA is
critical to U.S. national security interests because USERRA
supports the recruitment, retention, and readiness of the all
volunteer force. Based on the national importance of USERRA, we
welcome the opportunity to work with Congress, veteran service
organizations, and others to continuously improve USERRA.
I also want to recognize three of our interagency partners
that assist VETS in administering USERRA, the Department of
Defense's employer support of the Guard Reserve, the U.S.
Department of justice, and the U.S. Office of Special
Counsel.
For the remainder of my oral testimony, I will highlight
three important messages that support the overall theme of this
testimony.
First, VETS delivers positive USERRA outcomes for employees
and employers alike. VETS conducts robust public outreach to
educate service members, employers, and others on the USERRA
rights and responsibilities. Since the terror attacks of
September 11, 2001, which resulted in the single greatest
mobilization of Reserve components, VETS has briefed more than
1 million individuals on USERRA. So far this fiscal year, VETS
has already conducted over 500 compliance assistance events
nationwide, informing employees and employers alike of their
rights and responsibilities under USERRA. When VETS is unable
to resolve a USERRA issue through compliance assistance, a
service member or veteran can submit a claim to VETS for
investigation. When this occurs, VETS assigned the case to a
trained USERRA investigator, and on average, over the past 3
years, VETS has closed 943 cases for investigations per year.
When VETS investigators find a violation of USERRA, they work
diligently with both the claimant and the employer to resolve
the case to their mutual satisfaction.
Of cases in which VETS found a violation of USERRA in
Fiscal Year 2021, VETS resolved 85 percent of those cases. VETS
has also converted its 6 regional senior investigators to 1800
series, or full time investigators, and hired an additional 10
full-time 1800 series investigators to serve among the 6
national regions.
Second, VETS identified gaps in service delivery and
coverage that Congress may want to address. Military spouses
are not presently covered under USERRA. Removing barriers to
military spouse employment could minimize some of the
disadvantages and disruptions that Congress sought to address
in enacting USERRA. It could also alleviate a significant
stress around military families while recognizing the vital
role of military spouses in the retention, recruitment, and
readiness of the all volunteer force. Employment protections
could easily help military spouses build successful careers
without frequent interruption and restarts. They could bolster
the financial stability of their families, especially during
their service member's transition from military service to
civilian life.
Third, VETS asked for future congressional support to
provide full funding of the VETS Federal Administration
appropriation. VETS USERRA program does not have an independent
budget. It is funded exclusively through the VETS Federal
Administration appropriation. In Fiscal Year 2022, the
President's budget request for the VETS Federal Administration
was $52.5 million, but Congress only appropriated 46 million.
In Fiscal Year 2023, the President's budget request for the
VETS Federal Administration was just over $53.7 million, but
Congress only appropriated $47 million. Appropriations below
the budget. Requests have negatively impacted VETS' efforts to
digitally modernize our paperless, VETS Case Management System,
otherwise known as VCMS, that will enhance the customer service
experience of our Veterans Service members, their families and
their employers.
In closing, VETS looks forward to working with the
subcommittee to ensure that USERRA remains of fundamental
importance to the recruitment, retention, and readiness of the
all volunteer force. VETS is also committed to continued
collaboration with our interagency partners to provide positive
USERRA outcomes to employees and employers alike.
Chairman Van Orden, ranking Member Levin, distinguished
members of the subcommittee, thank you for the opportunity to
highlight important work VETS is doing in support of our
veterans, service members, military spouses who have served our
country, and I look forward to any questions you may have.
[The Prepared Statement Of James Rodriguez Appears In The
Appendix]
Mr. Van Orden. Thank you, Mr. Rodriguez.
The written statement of Mr. Rodriguez will be entered into
the hearing record.
We will now proceed to questioning, and I recognize myself
for 5 minutes.
Mr. Rodriguez, in your testimony, said that in 2021, DOL
VETS resolved 85 percent of the claims to the satisfaction of
claimant. This means there is 15 percent that were not resolved
to their satisfaction. Were those all referred to the DOL or
the OSC, Office of Special Counsel? Those 15 percent?
Mr. Rodriguez. Well, Mr. Chairman, what we do once we
finish our part of the investigation, working with the
claimant, then we give them the option to have that claim
referred to DOJ. It is entirely up to the claimant. Once the
claimant decides to do that, then we do refer to DOJ. We have a
good track record within DOJ that if a claimant does get
referred to there, that they have a good track record of
resolving that claim. However, if it is not to their
satisfaction, then the claimant can also take it to civilian
court if they decide to do so.
Mr. Van Orden. Of the 15 percent that is not resolved to
the satisfaction of the claimant, do you have an idea--I am
just trying to get a grasp of how many people we are talking
about here.
Mr. Rodriguez. I do not have the exact number in front of
me, sir, but I would be glad to provide that in a response,
written testimony, response back to you that would be I do not
have the exact number this time.
Mr. Van Orden. That would be awesome. Appreciate it
greatly.
Then they have to pay--if they decide to go to a civilian
court that is paid out of pocket by the service member, is that
correct?
Mr. Rodriguez. That is correct.
Mr. Van Orden. Okay, writing that one down.
I also just want to acknowledge the fact, we talked about
this briefly, that it is very clear that military spouses are
the most overeducated and underemployed demographic. We are
going to try to work that out. There are several different
groups that work with military spouses, but you are absolutely
correct that transition period when you are twice the husband
and half the paycheck, it would be fantastic to have the spouse
being able to pick up that slack. Thank you very much, sir.
I am going to yield back my time so that my colleagues can
have time to speak.
I now recognize Mr. Levin.
Mr. Levin. Thank you, Mr. Chairman.
Secretary Rodriguez, good to see you again. Thanks for
being here today. I know we are here to talk about USERRA. I
will ask about that shortly. While you are here, I want to ask
you a few questions about another law that DOL VETS is
responsible for enforcing, and that is the Vietnam Era Veterans
Readjustment Assistance Act of 1974, also known as VEVRAA.
Last year, my staff inquired with DOL about VETS' Fiscal
Year 2021 report to Congress, which omitted VEVRAA data as
required by statute. I appreciate that DOL at that time
committed to provide the available data in future reports, but
I want to make sure this does not happen again. Why was the
data excluded from the Fiscal Year 2021 report? What specific
steps is DOL taking to ensure it will be included in the
future?
Mr. Rodriguez. Ranking Member Levin, I take full
responsibility for that not being submitted. What I will tell
you that we have been working with our colleagues at the Office
of Federal Contractor Compliance who has the ability to capture
this data, which we are working with them to try to find the
right data from the State levels, but also looking at what data
is the most relevant to the report requests. We are still in
the process of doing that. I can assure you that we will work
through this to provide the report to you.
Mr. Levin. Thank you. We appreciate you following up,
appreciate your taking full responsibility.
One thing DOL did mention is that it may not have the
mechanisms to track or collect the number of qualified covered
veterans receiving priority and employment referrals, but I
will mention that DOL committed to making sure they figure out
a path forward to track and report this information. Have you
taken any specific steps since we brought this up with your
office?
Mr. Rodriguez. We have. We have been working with the
Office of Federal Contractor Compliance looking at what data
they currently have and what data they do not have. Our teams
have been working with their teams to figure out again what
information is the most relevant. We have had numerous
conversations with them at various levels of our organization.
We plan to continue that to figure out how we can again
conceptualize the right report, and we are still in the process
of working on it.
Mr. Levin. Okay, we appreciate your following up, and it is
important priority as we have got constituents specifically who
are impacted by the lack of this data being included as per
required by statute. We appreciate it.
I will turn to USERRA. And--actually, I will hold for now.
I will wait until our next witness.
I yield back.
Mr. Van Orden. Thank you very much.
I now recognize Mr. Ciscomani for Arizona for 5 minutes.
Mr. Ciscomani. Thank you, Chairman. I look forward to
working with you and the continued leadership of this
subcommittee. I want to thank all the witnesses for coming here
to testify on this important topic.
I am proud to represent Arizona's 6th congressional
District with over 70,000 veterans that call my district home.
My district has the ninth highest concentration of veterans for
any congressional district in the U.S. I know intimately that
the work that we do here must be focused on advancing
bipartisan solutions for those who fought to protect our
country.
Mr. Rodriguez, thank you for being here. Thank you for
joining us. Thank you as well for your service.
In your testimony, you speak about the need to break down
the barriers to military spouse employment by including USERRA
for military spouses. How many spouses, do you have an idea,
would be included in this new rule?
Mr. Rodriguez. Congressman, based off the data that we
currently have working through with our DoD partners, capturing
data from things that they have also looked at as far as
research, almost a million--right under a million military
spouses would be affected by a change in USERRA.
Mr. Ciscomani. Thank you.
Do you have an estimate of how many more USERRA cases and
Department of Labor VETS would see if military spouses were
included in USERRA.
Mr. Rodriguez. How many more cases we would see?
Mr. Ciscomani. Mm-hmm.
Mr. Rodriguez. We are still working through that number.
What we do know, though, is that in our current situation, with
the amount of investigators we have, we would have to update
the amount of investigators, hire new investigators to help
with those claims. We are still going through the estimates
right now, but we do not have an exact number of how many more
places we would have.
Mr. Ciscomani. Would the same be true for the cost of this,
the final price tag that you think would impose on this new
rule? If you extended the benefits to spouses, any estimate on
the cost that the private sector would have for implementing
such a change?
Mr. Rodriguez. We do not have an estimate on the cost at
this time.
Mr. Ciscomani. Okay.
Do you think spouse USERRA claims would be more difficult
to verify and adjudicate with this change?
Mr. Rodriguez. I think based off of our track record with
USERRA claims processing as the chairman--and has been
mentioned in our written testimony, 87 percent of our cases are
roughly adjudicated. I have full confidence that we would be
able to resolve the same amount of cases if we had military
spouses as part of the USERRA process.
Mr. Ciscomani. Okay.
Then going back to the other two questions that you do not
have all the details on this, is this something that you could
get in terms of the cost and also the cost of the private
sector? Obviously, that would be an estimated cost of that.
Also the estimated on the Department of Labor VETS would see on
the caseload increase there as well. Just to get an idea of
what would be coming
Mr. Rodriguez. We would be glad to do that, Congressman. We
would be glad to submit that information back to you post
hearing.
Mr. Ciscomani. Thank you, Mr. Rodriguez.
I yield back my time, Mr. Chair.
Mr. Van Orden. Thank you, Mr. Ciscomani.
I now recognize Mr. Mrvan from Indiana for 5 minutes.
Mr. Mrvan. Thank you, Chairman.
At this time, I just like to ask a question about USERRA.
When you speak to employers about USERRA what do they say and
why do you think some employers have USERRA violations?
Mr. Rodriguez. Congressman, I speak to employers all the
time, and I can tell you, for the most part, almost every
employer wants to hire veterans, Guard Reserve, because they
know how valuable they are to their bottom line. They know it
is good for business. They know the value that veterans bring
to their industries. For the most part, every organization
wants to hire veterans, and they can not hire enough veterans
for that part.
Mr. Mrvan. What is the motivation for the violations, do
you think?
Mr. Rodriguez. I think most of it is a lack of education. I
think when you look at the lack of education with regards to
how to employ someone who is a Guard Reserve and they are in
the process of getting orders maybe the first time, and the
organization may not have ever had someone that was Guard
Reserve that worked for them. What we try to do is mitigate
that by providing outreach, providing education to employers
who ask of us. By being proactive in providing that outreach,
our investigators are constantly--when they are not
investigating, they are constantly providing training and
education to organizations.
Mr. Mrvan. One of my questions new to the committee, a
National Guardsman is deployed, comes back, there is a
disruption in employment. How do they prove discrimination?
Mr. Rodriguez. Well, if they feel like they are
discriminated, they can file a claim with us directly and let
our investigators do the work. The investigators will work with
the claimant and the employer to try to come to a resolution.
If they feel like they have been discriminated, they have every
right to file a claim.
Mr. Mrvan. Then one of my follow-up questions for military
spouses. As the chairman talked about, the DOL VETS considers
other statutes that may improve the--has the DOL considered
other statutes that may improve the employment situation for
military spouses rather than USERRA?
Mr. Rodriguez. We looked at other statutes, we have done a
lot of research. We still feel that USERRA is the best avenue
for that.
Mr. Mrvan. Okay.
With that, I yield back.
Thank you. Thank you for your service and your wife's
service.
Mr. Rodriguez. Thank you, sir.
Mr. Van Orden. Thank you, Mr. Mrvan.
I now recognize Mr. Crane from Arizona for 5 minutes.
Mr. Crane. Thank you, Mr. Chairman. Man, I never thought I
would say that. Holy cow. This town is in trouble.
Mr. Van Orden. Nothing like a friend.
Mr. Crane. If you guys only knew this guy, I mean, you
would be concerned as I am.
Thank you guys for showing up today.
You know, I am also from Arizona. Like my colleague, Mr.
Ciscomani here, I represent a rural district, a lot of
patriots, a lot of veterans up there. I also formerly owned a
veteran owned business where we hired a lot of veterans. It was
called Bottle Breacher. Have you ever heard of it, Mr.
Rodriguez?
Mr. Rodriguez. I have heard of it now because I looked it
up.
Mr. Crane. Okay. It is kind of disappointing, Mr.
Rodriguez, I have got to tell you. I am disappointed that you
never had a bottle breacher, because I know some vets out there
most certainly did.
A couple of questions I have for you real quick, sir. In
your experience, what type of entity is most likely to have a
USERRA claim brought to DOL VETS? Small or large business,
private, public, or nonprofit?
Mr. Rodriguez. Congressman, I can tell you it varies. I
think every category that you mentioned are likely to have a
USERRA claim against them just because, again, as I mentioned
earlier, it could be a lack of information about the USERRA
process, a lack of information about the service members
rights. It could be either one of those. Could be Federal
Government, could be State government. Every one of those
entities that you listed could fall into that category.
Mr. Crane. I recognize that, Mr. Rodriguez, but have you
seen any trends?
Mr. Rodriguez. Trends? We have trends. I do not have that
data in front of me. I would be glad to provide the trends to
you. I do not have that data in front of me, but we do.
Again, when you look at industries, they vary. Our veterans
are employed in every single industry, as you know. I do not
have those exact trends in front of me, but I would be glad to
provide those to you.
Mr. Crane. Thank you, sir.
Next question. Some veteran service organizations in our
second panel are concerned that DOL VETS investigators are not
consistently conducting such oversight as is required by the
USERRA operations manual. They have also stated that DOL VETS
has wrongly investigated claims. Why has DOL VETS refused to
send this manual to anyone?
Mr. Rodriguez. Well, Congressman, I could tell you our
manual has been updated and based off of policies. We are
sticking to the policies that are currently in place. If the
policies dictate that we do not release the manual right now,
we are going to stick to the policies.
I can give you some areas of improvement that we have had
where often folks do not realize that the areas that we have
improved when it comes to investigations, if I may
One of those things, we have created specialized full-time
Investigator 800 series, as I mentioned, positions in our 6
regions exclusively in investigations. We have updated our
investigators' manual also to emphasize the importance of
conducting witness interviews, as well as the use of subpoena
power to obtain evidence. We have also implemented a report of
investigation for each case as a tool for investigators to plan
their investigation and conduct case analysis for supervisors,
to conduct frequent and meaningful reviews throughout the
course of investigation. we continuously looked at ways to
improve our investigative training. We are definitely taking a
proactive approach to ensuring that our investigators are well
trained and well positioned to support our service members when
they file a claim.
Mr. Crane. Just a real quick follow up there, real quick.
Why again has DOL VETS refused to send this manual out? What is
the purpose of keeping it in house?
Mr. Rodriguez. At this point, I can tell you right now that
I will have to review that. I know that is been a practice of
ours. I will definitely review the practice and figure out if
we can we can release it. In our current practice right now, we
are not releasing it.
Mr. Crane. Can you please get back to us on that, Mr.
Rodriguez?
Mr. Rodriguez. I definitely will.
Mr. Crane. I yield back my time, Mr. Chairman.
Mr. Van Orden. Thank you, Mr. Crane. I appreciate that
greatly.
Mr. Rodriguez, I would like you to take a note on that. I
would like this committee to have access to that manual. I
think it is incredibly important that we have transparency
amongst your position and mine.
Mr. Rodriguez. I agree, Mr. Chairman.
Mr. Van Orden. All right. Let us get her done.
At this point I would like to recognize Mr. McGarvey from
Kentucky for 5 minutes, sir.
Mr. Mcgarvey. Thank you, Mr. Chairman. I appreciate it.
Thank you so much. Thank you for your testimony. Thank you
for being in here and highlighting the importance of USERRA. I
am glad to know that our service members and vets back home in
Louisville, Kentucky, have some legal protection, both when
active and when they return.
Always been looking out for workers and employees. I am
proud to advocate for the protection of USERRA. In my opinion,
no employer should have the ability to discriminate against any
workers, whether on the basis of being a veteran, race, gender,
you name it. We know that USERRA offers some level of recourse
for veterans, but like so many things, we need to make sure
that these protections are enforced with deliberate speed and
that they do not just exist on paper.
Mr. Rodriguez, what do you think Congress should do to
improve the enforcement of USERRA?
Mr. Rodriguez. Congressman, that is a great question, as I
wholeheartedly believe that there are ways to improve USERRA. I
know the committee has worked on this in the past, and what we
want to do is continue to work with the committee to find ways
to improve it.
If I can, I would like to highlight a couple of ways that
we can work with the committee to improve USERRA.
One, eliminate mandatory arbitration agreements. I think we
have all agreed that that is something that is a disadvantage
to our service members.
Two, permitting pattern or practice claims.
Three, voting or avoiding State sovereign immunity defenses
and then authorizing late payment penalties. One of the biggest
challenges we have is when a resolution is agreed upon between
the claimant and the employer, then one of the challenges we
have is ensuring that that individual does receive their
compensation in a timely manner. We want to ensure that if
there is a way to create penalties, if you will, for someone
who does not meet that obligation, then we would more than
happy to work with the committee on that.
Allowing DOJ representation for all plaintiffs as well as
including DOJ pattern or practice authority and then adding DOJ
civil investigative demand authority.
Those are ways that we have looked at in depth that we
figure can definitely help improve the USERRA process.
Mr. Mcgarvey. I really appreciate you sharing that. I think
those are good steps that we can take to help protect our
veterans and help protect our service members.
My brother right now is in his 20th year of active duty and
likely to get deployed again soon. I know in talking to him and
to so many other active duty service members, one of the things
that they are concerned about when preparing for active duty
is, of course, leaving families behind. This applies when we
talk about USERRA looking at it with spouses. If Congress
expanded USERRA to cover military spouses, would you all have
the capacity to enforce it?
Mr. Rodriguez. One of the things, when we look at the
ability to expand USERRA spouses, we know that is something
that is well founded, well needed. It is something that many
organizations have talked about in the past, and we are having
even more robust conversations about that now. When we talk
about it, the capacity of it from a budget standpoint,
unfortunately, I cannot speak about the budget at this point
because it has not been released. We definitely would want to
work with Congress to look at the ability to have more
capacity, if you will, to protect military spouses.
Mr. Mcgarvey. Yes, I think that is something we would love
to talk with you about and work with you on as well is
strengthening USERRA to protect our active duty and our vets,
and also that expansion to spouses. As we know, whether it is
service here, whether it is service in the military, you do not
serve alone. Making sure that military spouses are protected, I
think, is important as well.
Thank you for your testimony.
I yield back.
Mr. Van Orden. Thank you, Mr. McGarvey.
I now recognize Ms. Ramirez from Illinois for 5 minutes.
Ms. Ramirez. Good morning. Thank you, Chairman Van Orden
and Ranking Member Levin, for taking the time to consider this
real critical issue enacting to protect military service
members, veterans, and their families from employment
discrimination due to their service.
I represent Illinois Third congressional District, and it
is the district that starts in the northwest side of the city
of Chicago, and it goes to Elgin in West Chicago in the
suburbs. There are many critical infrastructure improvements
needed there that will benefit greatly from Infrastructure
Investment and Jobs Act. We need to build and support and
empower the workforce with the livable wages to actually carry
out the work. We know we have a long way to go to do that.
Employers should know that Uniformed Service Employment and
Reemployment Rights Act requires them to treat employees who
take leave from Uniformed Service duty respectfully and without
discrimination. This includes veterans with all rights and
benefits that they would have earned in their civilian
employment had it not been interrupted.
Additionally, employers must protect an employee's job
seniority when performing Uniformed Service duties. Employers
must understand their obligations under this law to properly
support the Uniformed Service personnel to ensure compliance
with USERRA requirements. Doing so will protect both employees
serving in Uniformed Services, as well as the integrity of the
entire organization.
With that said, Mr. Rodriguez, I want to talk a little bit
about hourly versus salary employees. Does the Uniformed
Service Employment and Reemployment Rights Act, USERRA, allow
employees to continue to accrue vacation time during their
military service?
Mr. Rodriguez. Yes, it does, Congresswoman.
Ms. Ramirez. Great, great. What about for hourly employees?
Do they accrue vacation time as well?
Mr. Rodriguez. Yes, if they are afforded vacation time as
part of their roles and responsibilities, then that is
protected USERRA.
Ms. Ramirez. Great. How are hourly employees treated
differently from salaried employees under the law?
Mr. Rodriguez. They are not treated any differently than
any of the other employees.
Ms. Ramirez. Okay.
Now, in terms of health insurance, can you explain how
health insurance coverage is or is not protected for hourly
employees?
Mr. Rodriguez. Under the current USERRA Law, if they have
health insurance coverage, then it is protected. All of their
rights, all of their benefits are protected under USERRA.
Ms. Ramirez. That is really important to hear, and I think
it is important as we talk about how we provide the protections
and the benefits that our veterans deserve and certainly those
that are going back to active duty.
I want to talk a little bit also about arbitration. What is
the difference between substantive and procedural rights that
may be affected by mandatory arbitration clauses?
Mr. Rodriguez. The legal definition is pretty complicated,
as you can imagine, and I definitely can make sure that you
have that legal definition. I wanted to not--convey that
accurately, but what I can tell you, when we look at mandatory
arbitration, depending on what courts or look at it from the
circumstances and the other piece of it, they can decipher it
differently. One of the things that we want to ensure that
veterans are not forced to have arbitration as a supplement
over USERRA. We want ensure that their rights are protected
through USERRA. That is one of the things that we would look
forward to working with the committee to ensure that we find
ways to protect those rights and veterans are not forced into
arbitration prior to having the ability to file USERRA claim.
Ms. Ramirez. Thank you, Mr. Rodriguez.
I just want to thank you for your attention to this
critical matter. As you can tell here in our subcommittee, we
look forward to discussing how we can further educate public
and private employers on USERRA so that the Uniformed Services
personnel serving our country receive legal entitlements
without discrimination or reprisal. I know that together we can
ensure that service members and veterans are protected from
employment discrimination due to their uniformed service
duties. Thank you.
I yield back.
Mr. Van Orden. Thank you, Ms. Ramirez.
Thank you, Mr. Rodriguez. You are excused. I hope that you
and your staff will stay for the second panel. I am just going
to tell you, Semper Fi, Devil Dog. Keep it on.
Mr. Rodriguez. Thank you, Mr. Chairman, Ranking Member
Levin, and members of the subcommittee, it is been a pleasure
and Semper Fi.
Mr. Van Orden. All right.
Okay, we are going to go ahead and get set up for the
second panel. Take a 5 minute break.
[Recess]
Mr. Van Orden. Committee will come to order.
In our second panel, we have several veteran service
organizations. Colonel Patton from The Reserve Organization Of
America, Mr. Mike Hadley, director Of Legislative Affairs at
The National Guard Association Of The United States, Mr. Kevin
Hollinger, the legislative director of Enlisted Association of
The National Guard Of The United States, and Mr. Jonathan
Taylor, principal at Gupta Wessler.
I would now like to welcome the witnesses on our second
panel to the witness table.
Let the record reflect that the witnesses have answered in
the affirmative.
[Witnesses sworn]
Colonel Patton, you are now recognized for 5 minutes to
deliver your opening statement.
STATEMENT OF GILBERT L. PATTON
Colonel Patton. Good morning, Chairman Van Orden, Ranking
Member Levin, and distinguished members of the House Veterans
Affairs Economic Opportunity Subcommittee.
On behalf of the congressionally chartered Reserve
Organization of America, thank you for the opportunity to
participate in this important oversight hearing on protecting
the employment and reemployment rights of our Nation's service
members and veterans.
The Reserve Organization of America, or ROA, commends the
subcommittee's commitment to fortifying the integrity of USERRA
to ensure that service members are not disadvantaged in their
civilian careers because of their military service, that they
are promptly reemployed in their civilian jobs upon return from
duty, and that they are not discriminated against by employers
because of past, present or future military service. In this
spirit, ROA offers the following insights into how to better
gauge the effectiveness of existing USERRA protections,
modernize regulations governing USERRA enforcement, and ensure
DOL VETS personnel are properly resourced and trained.
First, ROA urges the members of this subcommittee to
support amending Section 4332 of USERRA to require the
Secretary of Labor to fulfill additional reporting
requirements, including reporting the number of closed case
reviews conducted by the Agency, and the number of disposed
cases found to have been originally closed by DOL VETS with
substantive errors. Current law requires the Department of
Labor to report each year on the number of USERRA complaints
received, the number of cases substantiated, and the number of
cases referred to the Department of Justice or to the Office of
Special Counsel. However, this data is merely transactional,
and while it may serve to demonstrate the taskload of USERRA
complaints filed by DOL VETS for budgetary purposes, it does
not provide any indicators as to the accuracy or the
completeness of how the complaints were processed.
I served in the United States Air Force for 31 years. One
of the most valuable lessons I learned first early on as an
officer, then as an operational unit commander, and then as
well as a leader of large headquarters staff organizations, is
that you get what you inspect and you get what you measure.
Without a proper inspection of DOL VETS performance to
effectively execute the various provisions currently in USERRA
law, we do not get a proper measure of USERRA. To correct this,
ROA urges the members of the subcommittee to support directing
a Government Accountability Office (GAO) study to examine DOL
VETS performance of its statutory responsibilities under
USERRA.
I might suggest that the scope of that would include the
findings of past GAO reports and past Department of Labor
inspector general reports, and the evaluation of the previously
assured corrective actions by DOL VETS to each of those
reports.
The desired end State of the study is to measure the
capability and the preparedness of DOL VETS to ensure service
members and veterans are truly protected under USERRA, identify
potential changes in ensuring compliance with USERRA, and
provide recommendations that would improve USERRA enforcement.
While these studies may take time to develop and unfold, an
action that can be taken now is to update the Department of
Labor's regulations under 20 Code of Federal Regulation (CFR)
that it promulgates that drive how USERRA is implemented. DOL's
regulations currently serve as the primary basis for training
and providing references to the investigators charged with
preserving USERRA rights and benefits of service to members and
veterans. However, these regulations in 20 CFR were last
promulgated in 2005, and there have been several amendments to
USERRA since then. The regulations are 13 years out of date to
the most recent amendments to USERRA that were enacted.
ROA believes DOL should be compelled by Congress to update
their regulations on a more regular basis to ensure that
investigators and staff are equipped with what is required to
completely fulfill their statutory responsibilities under
USERRA. Further, ROA encourages the members of the subcommittee
to take a proactive approach in pulling back the curtain on how
DOL currently enforces USERRA and has enforced USERRA in the
past.
Under Federal Freedom Information Act (FOIA) law, each
agency of the Federal Government shall make available to the
public, and I quote, ``administrative staff manuals and
instructions to staff that affect the member of the public.''
Despite this, DOL has invoked an exemption to avoid the release
of its own USERRA operations manual, based on the assertion
that the manual is compiled for ``law enforcement purposes''
and that its release would ``disclose guidelines for law
enforcement investigations or prosecutions that, if disclosed,
could reasonably be expected to risk circumvention of the
law''. There is nothing known to ROA to be within that manual
that could remotely or much less reasonably be construed to
provide an advantage to any party trying to circumvent a USERRA
regulation or the law. ROA believes it is wholeheartedly
necessary to immediately make the manual in its entirety public
for the purposes of ensuring its processes and procedures are
truly aligned with the text and the intent of USERRA.
On behalf of ROA, thank you for your support of our young
men and women in the reserve components, your support for their
employers and for our Nation's veterans. Thank you for
providing ROA with this opportunity to testify before you
today. I look forward to any questions you might have.
[The Prepared Statement Of Gilbert L. Patton Appears In The
Appendix]
Mr. Van Orden. Thank you, Colonel Patton.
I now recognize Mr. Hadley for 5 minutes to deliver your
opening statement.
STATEMENT OF MIKE HADLEY
Mr. Hadley. Chairman Van Orden, Ranking Member Levin, and
other distinguished members of the committee, on behalf of
almost 445,000 members of the National Guard Association of the
United States and nearly 450,000 members of the National Guard,
we truly appreciate the opportunity to share our thoughts on
today's topic for the hearing. We thank you for your oversight
and attention paid to the issues affecting those that have
served and are currently serving our Nation.
The operational tempo of the National Guard has increased
significantly over the past 20 years, and even more so
recently. From overseas deployments in support of Combatant
Commands, the pandemic, civil unrest, wildfires and floods, the
National Guard has remained always ready.
In 2021 alone, the National Guard executed over 10 million
man days. This has put an immense strain on our service
members, families, and employers. National Guard soldiers and
Airmen are unique in that they simultaneously manage civilian
careers alongside their military careers. This has become even
more challenging as military requirements expand. Regardless of
what the law says, we know that Guard members' ability to find
and maintain steady employment has been impacted and
challenged. USERRA is in place to protect against
discriminations of our soldiers and airmen. Employers must be
educated in regarding existing law and USERRA protections and
should be expanded where the gaps exist.
The 116th Congress contract has made great progress in the
Veterans Healthcare Benefits Improvement Act and which ensured
coverage for specific areas of State active duty. However,
those protections only covered duty beyond 14 days. State
National Guard response missions are often less than those 2
week time periods. We ask that the Committee remove this limit
to protect all State active duty, regardless of the length.
Another area of concern is the time off for treatment of
service-connected disabilities. Military duty can be physically
strenuous and injuries can occur. As members return from their
missions, they should be given the time for appointments,
rehabilitation, physical therapy, whether the Department of
Veterans Affairs or other private healthcare facilities. The
service members should focus on improving their healthcare
without concern for retribution from their employer.
That said, a healthy soldier airmen is one that has
healthcare coverage. Today there are currently over 60,000
National Guard members that do not have health care of any
sort. This is a key readiness issue. It is imperative that all
service members have the access to healthcare needed to meet
their medical deployment requirements. We ask all members to
support the Healthcare for our Troops Act, affording zero care
or Tricare coverage, will dramatically increase readiness,
solve turbulence in moving on and off healthcare plans, and
ultimately save money. It will also provide additional cost
savings benefit to the employer who would not need to provide
health care to this employee.
We understand that the challenge the military service can
place on employers. An additional way to encourage our
employers is through the Reserve Employers Comprehensive Relief
and Uniform Incentives Act. The RECRUIT Act would authorize an
annual tax credit for small business employers who employ
National Guard and Reserve members and would go a long way in
supporting communities. National Guard Association of the
United States (NGAUS) supports and encourages the
reintroduction of this bill in the 118th Congress.
I thank you again for inviting NGAUS here to testify today.
Your efforts are critical to the well being of our service
members and the success of our National Guard. I look forward
to continuing our work together and sincerely appreciate the
steadfast leadership from the members and their staffs in
advocating for the men and women of the National Guard.
Thank you.
[The Prepared Statement Of Mike Hadley Appears In The
Appendix]
Mr. Van Orden. Thank you, Mr. Hadley. The written statement
of Mr. Hadley will be entered into the hearing record, as will
Colonel Patton's.
Mr. Hollinger, you are now recognized for 5 minutes to
deliver your opening statement.
STATEMENT OF KEVIN HOLLINGER
Mr. Hollinger. Chairman Van Orden, ranking Member Levin,
and members of the Committee, thank you for the opportunity to
be here today and provide our thoughts on USERRA protection.
Enlisted Association of the National Guard of the United
States (EANGUS) is the only professional military service
organization dedicated solely to the enlisted members of the
National Guard. Unfortunately, National Guard service members
frequently do not receive the same comparable benefits or
afforded the same protections as active duty component and in
some cases, even other reserve component service members, due
to the duty status under which they are working. Today, EANGUS
would like to address three concerns regarding USERRA
protection affecting the National Guard. An employer's ability
to use forced arbitration as a means of settling legal issues
concerning USERRA, noncovered state funded service in uniform,
noncovered family members.
Removing forced arbitration is important legislation that
will empower service members and their families against the
practice of forced arbitration. This much too standard dispute
process strips our service members of their rights under the
Service Member Civil Relief Act, SCRA, and USERRA. Forced
arbitration is a one sided nontransparent process in which
service members have very little chance to achieve a favorable
outcome when their rights and protections set forth under these
Federal laws are violated. Service members need this legal
protection restored without delay, not another study to show
what they already know, that forced arbitration hurts them and
their families and renders rights granted by SCRA and USERRA
virtually meaningless. EANGUS urges the 118th Congress to
introduce and pass legislation removing forced arbitration from
USERRA and SCRA.
The next concern I would like to discuss is non covered,
state funded service in uniform. State active duty is available
for Governors and adjudicate generals to use for various State
concerns like State environmental disasters, civil unrest, or
fulfill community needs. If a service member do not fall under
one of the following three categories, they will not be
protected by USERRA. State active duty for 14 or more days,
State active duty in support of the national emergency, State
active duty in support of a major disaster declared by the
President. Since March 2020, the National Guard has activated
over 320,000 service members in support of many overseas and
domestic activities. From combat missions in places like
Afghanistan to running COVID tests and vaccine sites in the
U.S. Our dedicated service members of the National Guard must
know that their job is safe and available when they return.
In Torres v. The Texas Department of Public Safety, the
Supreme Court considered whether the State, by ratifying the
Constitution, gave Congress the power to authorize suits
against states using its constitutional war powers. In the
opinion authored by Stephen Justice Breyer, he stated
Congress's ability to build and maintain the Armed Forces fits
the test outline and PennEast's test. Thus, in joining together
to form a union, the State agrees to sacrifice their sovereign
immunity for the good of the common defense.
With that opinion, we now know all duty statuses performed
by National Guard should be considered by Congress therein.
EANGUS would urge the 118th Congress to ensure USERRA
protections for all Reserve and National Guard duties without
timelines and regardless of who orders them the duty.
The third concern I would like to discuss, USERRA
protection for spouses. Everyone knows the sacrifice of the
Reserve and National Guard personnel being pulled from their
everyday lives and thrust into service of our country, but
imagine if you were removed from your spouse at a moment's
notice. If you still have or have had small children, how hard
would it be for your spouse to make up for your absence? Well,
that is how being a National Guard spouse works. Spouses often
must take time away from their employment to figure out new
schedules. At a moment's notice, they become the sole head of
household. Army General Raymond Odierno often said, our country
is great because of our military, our military is great because
of our service members, and our service members are great
because of our families. I think putting these three things
together is the correct answer. EANGUS would urge the 118th
Congress to legislate USERRA protection for spouses of
activated Reserve and Guard service members.
Finally, I would like to say military and veteran law and
policies are often developed without understanding or
appreciation for the essential distinction between the National
Guard and active duty service. The members of the National
Guard regularly lose out, and so do their families. These past
3 years have shown America how important the National Guard is
to everyday life. Regardless of the mission, a pandemic
assistance, civil unrest, capital security, or overseas direct
combat assistance, the National Guard has selflessly answered
that call. Despite many of these activations happening at a
moment's notice, the National Guard did not hesitate. They
faithfully served their country and communities and
accomplished the mission.
Thank you for your time and I look forward to your
questions.
[The Prepared Statement Of Kevin Hollinger Appears In The
Appendix]
Mr. Van Orden. Thank you, Mr. Hollinger. The written
statement of Mr. Hollinger will be entered into the hearing
record.
Mr. Taylor, you are now recognized for 5 minutes to deliver
your opening statement.
STATEMENT OF JONATHAN E. TAYLOR
Mr. Taylor. Chairman Van Orden, ranking Member Levin, and
distinguished members of the subcommittee, thank you for
inviting me to testify today.
I want to make three points.
First, USERRA has never been more important than it is
today. Since September 11, our country has heavily relied on
Reservists and National Guard members to defend us. These
service members account for nearly half of the 2 million people
in our military, and they are essential to our safety. Most
days, they go about their lives like anyone else working their
civilian jobs, caring for their families, worried about their
finances. They are also trained soldiers who balance their
roles as civilians with ongoing military obligations, so they
can stand ready to be called to active duty at a moment's
notice.
USERRA is the key statute that protects these service
members in the workplace. It is the reason that when they are
called to serve their country, they do not have to worry that
their jobs will be there for them when they get back. Nor do
they have to worry that they will be disadvantaged or
discriminated against simply because they answered the call to
serve. Take these protections away, and our military would have
a hard time convincing people to join the Reserves.
For that reason, as one Senate report put it, it is
imperative that employers comply with USERRA. Employers often
fail to do so. When that happens, Congress has given service
members the tools to protect themselves. They can go straight
to court. There, they can shine a light on their employer's
practices, present their case to a neutral judge and jury, rely
on the rule of law, and obtain a written decision that can be
appealed and reviewed by the political branches. None of that
will happen if they are forced against their will into secret
arbitration, which leads to point two.
USERRA has never been more at risk than it is today. When
it was enacted in 1994, forced arbitration was barely a thing.
Now it is everywhere. Corporations have learned from their
lawyers that they can escape accountability for violating the
law by inserting fine print into their take it or leave it
contracts. As a result, getting a job increasingly requires
checking one's rights at the door. Most nonunion private sector
employers in the United States, over 60 million American
workers are now subject to forced arbitration. Service members
are no exception. Despite strong statutory language to the
contrary, including a provision barring enforcement of any
contract that impairs USERRA's rights, several courts have held
that USERRA permits employers to impose forced arbitration on
service members. That violates the statute's text and purpose,
but more than that, it is immoral and unwise.
A real life example helps to make the point. In 2012, a
reservist named Kevin Ziober was called to active duty in
Afghanistan. On his last day of work before his deployment, his
employer threw him a party to celebrate his service, but
afterward, they summoned him to a room and told him he was
being fired. This meant that as Kevin was heading to a war
zone, he now had to worry about how to pay his bills when he
returned. That is the last thing that should be on a service
member's mind as they go to war, and it is exactly why USERRA
exists. After kicking him out of his job, his employer then
kicked him out of court, invoking a forced arbitration clause.
Service members like Kevin deserve better. Fortunately, as
judges have noted, Congress can fix this problem. Now is the
time for it to do so and clarify what should already be clear,
forced arbitration has no place in USERRA.
Last, this is not a partisan issue. Over 80 percent of
Republicans, Democrats, and Independents support Federal
legislation to end forced arbitration, and those percentages
are surely higher when it comes to our troops. If nothing else,
basic fairness dictates as much. Our service members fight for
our freedom and defend our Constitution, the least we can do is
preserve their freedom to decide how to protect themselves and
defend their constitutional rights. Forced arbitration is the
opposite of these values.
As the Bush department of Defense observed, waiver is not a
matter of choice and take it or leave it contracts of adhesion.
The very reason we have a bill of rights in the first place is
because the original Constitution lacked a right to a civil
jury trial. As John Adams said, representative government and
trial by jury are the heart and lungs of liberty.
Eliminating forced arbitration for USERRA claims is not
just about fairness to individual service members, it is also
about empowering them as a group and protecting us as a Nation.
Forced arbitration does not channel cases into a better system
for resolving disputes, it extinguishes them entirely. For
those precious few cases that actually get arbitrated, the
secret nature of the proceeding means that even if a service
member can beat the odds and win, no one else benefits. No one
will become aware of the unlawful practice or the fact that
they might have a claim, nor will Congress have any idea about
how the statute is being applied and whether it needs to be
amended.
Add it all up, and the upshot is plain, forced arbitration
badly undermines compliance with USERRA and it makes us less
safe.
I am happy to answer your questions.
[The Prepared Statement of Jonathan E. Taylor appears in
the Appendix]
Mr. Van Orden. Thank you, Mr. Taylor. The written statement
of Mr. Taylor will be entered into the record, the hearing
record.
We will now proceed to questions and I recognize myself for
5 minutes.
You guys may not have noticed it, but in the spirit of our
opening statements, you just saw bipartisanship take place.
Colonel, I spoke to Ranking Member Levin, we are going to get a
hold of the GAO and we are going to make sure that they start a
study to report what is going on with the actual--we want the
real numbers for this arbitration. Mr. Rodriguez will be made
aware of this. We will apparently have to send him a letter
because he did not--where are you?
There you are, Devil Dogs. Sneaking in the back on me. Mr.
Rodriguez, we are going to get that to you. We want real
numbers because, as we said, opening up the statement, we
really want to help our veterans, and you owe us transparency,
and we owe you honesty. How does that sound? Pretty good. All
right? Good. Good call.
Colonel, thank you for your 31 years of service. I
appreciate it. As a Navy guy, it is really hard for me to say
that, but I mean it. I know you are in the Air Force and still
good to go.
The committee staff, our staff, has heard that they have
concerns since the Biden Administration has taken over the DOL,
that the DOL VETS, the Department of Labor, have been difficult
to reach when regarding these issues. What does DOL VETS, what
do you need to hear from these folks, and how many times have
you tried to talk and bring up these issues with DOL VETS? What
do you guys need to hear specifically regarding to USERRA?
Colonel Patton. Thank you for the question, Mr. Chairman.
I would say, in the preceding 3 years, so that actually
spans the first half of the current Administration and the
trailing end of the previous Administration as well, that we
have been trying to reach out on a regular basis and reaching
out into various levels of the organization at the action
officer level, if you will, at the State level leadership, at
the region level leadership and at the national office. I can
get you fairly accurate numbers as to the exact number of
engagements of each, but suffice it to say, they have been
regular. Deliberately we have tried to reach out at different
levels within the organization to at least get to consensus on
defining the problem. Until we get to consensus on defining the
problem, there is not much hope in getting to consensus on
getting to the solution.
Mr. Van Orden. Roger that. I would really appreciate that
data so we have a solid metric that we can bring.
Colonel Patton. Thank you, sir.
Mr. Van Orden. You bet.
One follow up for you. While DOL VETS administers USERRA,
my subcommittee has legislative jurisdiction over this issue.
Is your staff willing to discuss the issues with our staff and
work toward ensuring your Reserve Officer Association's
concerns are listened to and legislated?
Colonel Patton. Absolutely, Mr. Chairman.
Mr. Van Orden. Fantastic.
I yield back.
Colonel Patton. Thank you, sir.
Mr. Van Orden. I now recognize Ranking Member Levin for 5
minutes.
Mr. Levin. Thank you, Chairman, and thanks to all our
witnesses for being with us and for your testimony.
I have been a strong supporter and am a strong supporter of
strengthening benefits and protections for our Guard and
Reserve members. It has been a pleasure working with many of
you and others that are not here over the past 4 years,
particularly on GI Bill Parity. We are going to continue to
work very hard on that, and I look forward to our continued
partnership on many of these issues.
One area for improvement I want to explore is USERRA's,
limitation that the cumulative length of service that causes a
person's absences from a position may not exceed 5 years. I
want to ask each of you, we will start on your side, is the 5
year window adequate for employees who stay with one employer
for a long period of time? Colonel Patton will start with you.
Colonel Patton. I will start off, ranking member, by
stating that there are exceptions or allowances to the 5 year
limit, first off. I am going to paraphrase, but those are for
things such as readiness training. Training is not all done
upfront one shot, you know, and then you are trained for life.
Certainly our tactics, our procedures, our equipment, our
technology evolves over time, units are re-missioned over time.
There is developmental education that, that a military member
receives perhaps in their 30's or their 40's that just would
not have the same efficacy giving it to an 18 year old military
member. There are allowances for all sorts of those things. I
would say in a very generalized sense, that those allowances
are fairly adequate.
Having operationalized the Reserve component in the 1990's,
and then the demands that were then placed on the
operationalized Reserve components soon after 9/11 have
certainly then invoked other exceptions that require a military
member to be--if they deploy over and over and over again, they
may exceed that limit with a particular employer. There are
exceptions in the law and those exceptions are granted to
different levels within the executive branch, depending on
which status in which the member is called to service.
Mr. Levin. Thank you.
I want to make sure to get everybody in, and we only have 5
minutes, so I will go to Mr. Hadley.
Colonel Patton. Thank you, sir.
Mr. Hadley. Thank you, sir.
Yes, I would agree with the first witness' unit statement
there. I do not think that it is an easy one size fits all kind
of provision that is in there. There is a lot of unique
circumstances that occur throughout the, you know, the course
of a service member's life and employment life as well. I think
that we need to, you know, explore that and look for ways that
we can capture that and then accommodate those needs.
Mr. Levin. Thank you.
Mr. Hollinger.
Mr. Hollinger. As the enlisted member, we are going to keep
it really direct and say no, it is absolutely not enough time.
I served 22 years in both the Army active duty and in the
National Guard, I have 11 combat deployments. If this rule
would have solely been enforced on me, I would not have had a
job. As we stay in longer, our senior leadership becomes
extremely important and vital to our success. Because of that
fact, we are very loyal on the outside. Five years is not
enough, sir.
Mr. Levin. Thank you.
Mr. Taylor, you get the last word here.
Mr. Taylor. Sure, I will keep it brief.
I have not studied the issue carefully enough to offer an
opinion, but what Mr. Hollinger just said sounded pretty good
to me.
Mr. Levin. Let me ask you, Mr. Hollinger, can you speak to
any instance in which you have seen a service member personally
impacted by the 5 year window? I think you just mentioned your
own experience.
Mr. Hollinger. I only have one example. I am not going to
use his name because I have not talked to him about it, but it
was in northern Indiana at one of the steel mills. As he came
on his seventh deployment, and it was about 2015, he was told
not to come back. Now, his union was very strong and just sent
him to a new steel mill when he got back. That did come into
effect.
Mr. Levin. Got you.
One last question for you, Mr. Hollinger. You noted in your
testimony the U.S. Supreme Court decision Torres v. Texas
Department of Public Safety. It held that states may not invoke
sovereign immunity to avoid liability under USERRA. That is not
specifically codified in law, is my understanding. What is your
position on the decision and can you speak to the need for
legislation on the issue?
Mr. Hollinger. Well, I think government accountability,
especially when it comes to employment, is the utmost
importance. I think the government sets the standard for all
the rest of us to follow. I think the government standard needs
to be a lot higher and make sure that they are following the
law.
As far as that decision, I truly do believe that an
individual that is affected at a state level does need that
easy path through opening the case in their name, in a Federal
court or in a state court is imperative. It is very, very hard
for especially lower enlisted individuals to wait 5, 6, 7 years
for a case to work through DOJ or through DOL and try to get
resolution. We need----
Mr. Levin. Thank you.
Mr. Hollinger [continuing]. to take care of----
Mr. Levin. Over time, but thank you all for your testimony
and your service.
I yield back to the chairman.
Mr. Van Orden. Thank you, Raking Member Levin.
I will recognize Mr. Ciscomani from Arizona for 5 minutes.
Mr. Ciscomani. Thank you, Mr. Chairman. Thank you again to
all the witnesses for coming here with us today to testify.
Questions for the Colonel. In your testimony, you suggested
that another agency might be more appropriate to administer
USERRA. How do you think it would benefit service members to
have another agency administer the program and part of that,
what issues would you foresee with moving the program out of
the Department of Labor?
Colonel Patton. Thank you for the question, Mr. Ciscomani.
To be clear, I did not make that as a recommendation or
certainly did not intend to in my oral remarks. It is merely an
acknowledgement that it is our understanding that there is a
discussion going on within staffs, potential legislation that
might do so.
As far as the challenges to another agency, I would foresee
that those could be very similar to the challenges that the
current agency has with consistent USERRA enforcement.
Mr. Ciscomani. Based on the discussions that are going on,
how would you think it would benefit?
Colonel Patton. Certainly this will be my own opinion, but
as a veteran, having worked through the systems, if you will,
of veterans benefits both with the Department of Labor and the
Department of Veterans Affairs, I might suggest the Department
of Veterans Affairs has kind of had that watershed moment
culturally already in terms of how it responds to and provides
to veterans needs, particularly their statutory needs. That
Department of Veterans Affairs might be further down the road
of being veteran focused and able to be responsive to those
veterans benefits. That is purely my personal opinion.
Mr. Ciscomani. It will be noted as that.
Colonel Patton. Pretty speculative as well, so.
Mr. Ciscomani. Understood. Thank you for your thoughts on
that, Colonel.
Colonel Patton. Thank you, sir.
Mr. Ciscomani. Thank you for your service.
Mr. Hollinger, for your membership, how long does it
usually take for a claim to be resolved by the Department of
Labor, in your experience?
Mr. Hollinger. I do not have that exact number up. I would
say a lot of times by the time it gets to the Department of
Labor, what would be the variation on that? I would say it
would probably be somewhere around a year.
Mr. Ciscomani. About a year? How long would it generally
take for a claim to be resolved, do you think, in Department of
Veteran Affairs or Department of Justice?
Mr. Hollinger. Well, I am not advocating for it to go
anywhere else, I am advocating for them to be able to bring it
in their name into a courtroom of their local jurisdiction or
the Federal side. I am not advocating for another department or
another bureaucracy at all, sir.
Mr. Ciscomani. Okay.
Now, do you think that most businesses are aware of the
protections afforded to serve as members by USERRA? What steps
could we take to make sure that more businesses are aware?
Mr. Hollinger. I believe that the education needs to come a
lot through the military service community. So myself. So a
business that is not that is not aware of how USERRA works,
please refer them to me.
Number two, I think most businesses are very patriotic and
love this country. I think the wear down of a 20 plus year war
has fatigued a lot of businesses and kind of hurts the
decisionmaking process every once in a while. I think most of
these cases would be settled outside of a courtroom if they
were opened in the name of the individual.
Mr. Ciscomani. Got you.
Thank you so much, Mr. Chairman. I yield back.
Mr. Van Orden. Thank you, Mr. Ciscomani.
I now recognize Mr. McGarvey from Kentucky for 5 minutes.
Mr. Mcgarvey. Thank you, Mr. Chairman. Thank you, Mr.
Hollinger. I appreciate what you just said too, about the fact
that we are 20 years going on this. I mentioned my brother in
the previous panel who got commissioned in May 2002 and
watching what he has gone through in his career, the number of
deployments, how hard that is on families.
I want to continue to hit a little bit on the questions I
was talking with Mr. Rodriguez about, about spousal
protections. I mean we know what we are asking our men and
women who are willing to put on a uniform to keep this country
safe to do, and that is whether it is being activated, whether
it is being deployed, whether it is going to a natural disaster
if you are in the Guard, something like that. We expect a lot,
it will require a lot, and there is honestly not often a ton of
notice on when you are leaving or a lot of certainty on the
date you actually come back.
Dr. Taylor, you told the story about the individual who was
given the party, and in the same day given a party by the
employer let go on going to active duty. This is tough. This is
tough on readiness of our Force. I again want to go back to the
spousal part of it.
Mr. Hollinger, I know you know just as much as probably
anybody about what our members go through when they are
activated, called to serve, and you know the difficulty that
their spouses go through when that happens. Could you speak a
little bit more about why expanding USERRA protections to
spouses would improve our readiness and well-being of our
National Guard and service members?
Mr. Hollinger. Well, I think everybody in this room is
aware of how important our spouses are. Mine sits right behind
me, right over here in the blue dress. Anyway.
Mr. Mcgarvey. Thank you both for your service.
Mr. Hollinger. The spouses are the most critical aspect of
what we see every day and what makes the National Guard
function. Without them, everything ceases to maneuver.
Retention, recruiting, all of this stuff will suffer greatly
without the spouses. When a spouse is thrust into that
environment where they have to be the sole caregiver to their
household, it takes tremendous dedication, patience,
intelligence. They are the heartbeat of what happens in the
National Guard. They need that protection just like they are
active duty service members.
As I said earlier, I deployed 11 times. That is the easiest
thing in the world to do is deploy. I had great leadership that
said, go that way, do great things for America, and I did that.
My spouse who sits at home does not have that same leadership
to say, hey, go that way. Make sure your kids do great things
for America. She has to figure that out on her own. I think
that is the important part that we need to focus on, is how
important the spouses are every single day.
Mr. Mcgarvey. Amen. Thank you for sharing that.
I am going to ask you the same question that basically I
asked Mr. Rodriguez as well. If you could just tell us what
Congress should be doing to improve the enforcement of USERRA
and what are you hearing from your membership in that regard?
Mr. Hollinger. To make sure that the enforcement, I think
DOL is making great strides going forward. I think if we
support them, continue to support them, I think the right
individuals are probably in place there. I am very fortunate
when it comes to the DOL and very pro what they are doing
today. I have an individual, not sure if he is still back
there. I have called him commander two different times, I have
called him friend and now I call him co-worker. I think he is
the right guy to have there. I think Mr. Rodriguez is the right
guy to have there, and I think DOL will do great things.
Mr. Mcgarvey. Thank you. I appreciate it. Mr. Hollinger,
thank you for your service and to your spouse, thank you for
your service as well.
I yield back.
Mr. Van Orden. Thank you very much, Mr. McGarvey. I
appreciate it greatly.
This panel is excuse from the witness table.
I want to thank our witnesses for appearing today to
discuss this national security issue, because that is what
USERRA is. We have got to make sure that our service members
are protected while they serve overseas or in the United States
in emergency declarations. We also have to make sure that DOL
VETS continues to do their good work. In the future, I do not
hope, but I expect to see the Department of Defense here as
witnesses as well. Their absence is duly noted, and it is
unacceptable. USERRA, SCRA, and the Transitional Assistance
Program (TAP) programs are important programs that this
committee has jurisdiction over, but the Department of Defense
administers them, and we need them to show up to do their job.
With that, I yield to Ranking Member Levin for any
concluding remarks he may have.
Mr. Levin. I associate myself with the chairman's comments
regarding the Department of Defense. This is something that
would consistently frustrate me throughout my 4 years as
chairman. Getting all the relevant folks to attend these
hearings is essential for us to do our work on this
subcommittee, and we are grateful to those of you who are here
and who stayed for our second panel. I also want to
congratulate the chairman on a fine first hearing of our
subcommittee. I am looking forward to really an excellent
couple of years.
With that, I will yield back.
Mr. Van Orden. Well, thank you, Ranking Member Levin.
I want to thank you all for coming here today. Your
participation is vital so that we can help do what is right by
our veterans.
I ask unanimous consent that all members have 5 legislative
days to revise and extend their remarks and include extraneous
material.
Without objection, so ordered.
The hearing is adjourned.
[Whereupon, at 11:57 a.m., the subcommittee was adjourned.]
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A P P E N D I X
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Prepared Statement of Witnesses
----------
Prepared Statement of James Rodriguez
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
______
Prepared Statement of Gilbert L. Patton
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
______
Prepared Statement of Mike Hadley
Chairman Van Orden, Ranking Member Levin, and other distinguished
members of the committee:
On behalf of the almost 45,000 members of the National Guard
Association of the United States and the nearly 450,000 members of the
National Guard, we truly appreciate this opportunity to share our
thoughts on today's topic for hearing. We thank you for your oversight
and the attention paid to the issues affecting those who have served
and are currently serving our Nation.
The operational tempo for the National Guard has increased
significantly over the past 20 years, and even more so recently. From
overseas deployments in support of combatant commands, the pandemic,
civil unrest, wildfires, and floods, the National Guard has remained
``Always Ready.'' In 2021 alone, the National Guard executed over 10
million man-days. This has put an immense strain on our servicemembers,
families, and employers. National Guard Soldiers and Airmen are unique
in that they simultaneously manage a civilian career alongside their
military careers. This has become ever more challenging as military
requirements expand.
Regardless of what the law says, we know Guard members' ability to
find and maintain steady employment has been impacted and challenged.
USERRA is in place to protect against discrimination of our Soldiers
and Airmen. Employers must be educated regarding existing law and
USERRA protections should be expanded where gaps exist. The 116th
Congress made great progress with the Veterans Health Care and Benefits
Improvement Act which ensured coverage for specific areas of State
Active Duty. However, those protections only cover duty beyond 14 days.
State National Guard response missions are often less than two weeks.
We ask that the committee remove this limit to protect all State Active
Duty, regardless of length.
Another area of concern is time off for treatment of service-
connected disabilities. Military duty can be physically strenuous, and
injuries can occur. As members return from missions, they should be
given time for appointments, rehabilitation, or physical therapy,
whether at the Department of Veterans Affairs or other private health
care facilities. The service member should focus on improving their
health without concern of retribution from their employer.
That said, a healthy Soldier or Airman is one that has health care
coverage. There are currently 60,000 National Guard members that do not
have health care of any sort. This is a key readiness issue. It is
imperative all service members have access to the health care needed to
meet medical deployability requirements. We ask all members to support
the Healthcare for our Troops Act. Affording zero-cost TRICARE coverage
will dramatically increase readiness, solve turbulence moving on and
off health plans, and ultimately save money. It will also provide an
additional cost-saving benefit to the employer who would not need to
provide coverage to that employee.
We understand the challenges military service can place on
employers. An additional way to encourage our employers is through the
Reserve Employers Comprehensive Relief and Uniform Incentives Act. The
RECRUIT Act would authorize an annual tax credit for small business
employers who employ Guard and Reserve members and would go a long way
in supporting our communities. NGAUS supports and encourages the
reintroduction of this bill in the 118th Congress.
I thank you again for inviting NGAUS to testify. Your efforts are
critical to the well-being of our service members and the success of
our National Guard. I look forward to continuing our work together and
sincerely appreciate the steadfast leadership from the members and
their staffers in advocating for the men and women of the National
Guard.
______
Prepared Statement of Kevin Hollinger
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
______
Prepared Statement of Jonathan Taylor
Chairman Van Orden, Ranking Member Levin, and distinguished members
of the Subcommittee: Thank you for inviting me to testify today. My
name is Jonathan Taylor. I am a principal at Gupta Wessler PLLC, a law
firm focused on Supreme Court and appellate advocacy. Since joining the
firm over a decade ago, I have argued some of the most important cases
under the Uniformed Services Employment and Reemployment Rights Act,
including White v. United Airlines, 987 F.3d 616 (7th Cir. 2021),
Travers v. Federal Express, 8 F.4th 198 (3d Cir. 2021), and Clarkson v.
Alaska Airlines, 59 F.4th 424 (9th Cir. 2023). I have also represented
parties in several key arbitration cases, including American Express v.
Italian Colors Restaurant, 570 U.S. 228 (2013). And I have represented
a bipartisan group of 20 Members of Congress, including past members of
this Committee, in a case at the intersection of these two subjects--
Ziober v. BLB Resources, 137 S. Ct. 2274 (2017).
My testimony today makes a few basic points:
First, USERRA's provisions are essential to protecting reservists
and National Guard members--and thus to protecting the Nation as a
whole. USERRA has never been more important than it is today. Since
September 11th, our military has relied heavily on reservists and
National Guard members to defend us at home and abroad. These
servicemembers work civilian jobs, while simultaneously devoting
countless hours to ensuring military readiness so they can be deployed
at a moment's notice. USERRA helps them balance their civilian lives
with their military responsibilities, providing a broad set of
substantive and procedural protections.
In doing so, USERRA also helps fulfill its primary goal: ``to
encourage noncareer service in the uniformed services by eliminating or
minimizing the disadvantages to civilian careers and employment which
can result from such service.'' 38 U.S.C. Sec. 4301(a). As a Senate
Report put it in 2008: ``Because the National Guard and Reserves have
become an essential part of the military's operational force, it is
imperative that employers comply with USERRA.''
But employers often fail to comply with USERRA. And when that
happens, Congress has given servicemembers the tools to protect
themselves: They can go straight to court. There, they can shine a
light on their employer's practices, make arguments to a neutral judge
and a jury of their peers, and obtain a written decision that can be
appealed, if necessary, and reviewed by the political branches to
ensure the proper development of the law. But none of that will happen
if they are forced, against their will, into secret arbitration.
Which leads to point two: Forced arbitration threatens reservists
and National Guard members--stripping them of their freedoms and
immunizing violations of their rights--and thus threatens the Nation as
a whole. Even as USERRA has grown in importance, it has never been more
at risk than it is today. When USERRA was enacted in 1994, forced
arbitration was barely a thing. Now it's everywhere. Big corporations
have learned from their lawyers that they can escape public
accountability for violating the law simply by inserting fine print
into their take-it-or-leave-it contracts. As a result, getting a job
increasingly requires checking one's rights at the door: More than half
of nonunion private-sector employees in the United States--over 60
million American workers--are now subject to forced arbitration.
Servicemembers are no exception. Despite strong statutory language
to the contrary, several courts have held that (as currently written)
USERRA permits employers to impose forced arbitration on
servicemembers. That is incompatible with USERRA's text and purpose.
But more than that: It is immoral and unwise. So it is of vital
importance that Congress clarify what should already have been clear:
forced arbitration has no place in USERRA.
Third, this is not a partisan issue. Overwhelming majorities of
Democrats, Republicans, and independents--80 percent or more of each--
support federal legislation to end forced arbitration across the board.
But if there's any area where those numbers should approach total
agreement, it is for the hundreds of thousands of patriots who risk
their lives in service to our country.
If nothing else, basic fairness dictates as much. These men and
women fight for our freedom and for our Constitution. The least we can
do is preserve their freedom to decide for themselves how to protect
their own interests, and their constitutional rights to a day in court
and a civil trial by jury. Forced arbitration is the opposite of these
bedrock values. As the Bush Department of Defense observed in 2006:
``Waiver isn't a matter of `choice' in take-it-or-leave-it contracts of
adhesion.'' And the very reason the Constitution has a Bill of Rights
in the first place is because the original document lacked a right to a
civil jury trial. As John Adams once said: ``[R]epresentative
government and trial by jury are the heart and lungs of liberty.
Without them we have no other fortification against being ridden like
horses, fleeced like sheep, worked like cattle and fed and clothed like
swine and hounds.'' We should all be able to agree that, if anyone
deserves constitutional fortification against such a fate, it's the men
and women who voluntarily serve in our Nation's military.
But eliminating forced arbitration for USERRA claims isn't just
about fairness to individual servicemembers; it's also about empowering
them as a group and protecting our country as a whole. The reality (and
this is backed up by empirical data) is that forced arbitration doesn't
channel cases into a better system for resolving disputes. It
extinguishes cases altogether. And for those precious few cases that
actually get arbitrated, the secret nature of the proceeding means
that, even if the servicemember can beat the odds and prevail, no one
else will benefit. No one will become aware of the unlawful practice or
the fact that they might have a claim. Nor will Congress have any idea
about how the statute is being applied in such proceedings, and hence
whether it needs to be strengthened or amended. Add it all up and the
upshot is plain: Forced arbitration badly undermines compliance with
USERRA.
And ultimately, it makes us less safe. USERRA is critical to
military recruiting and retention efforts. ``If individuals lack
confidence that their USERRA rights will be respected or enforced, they
will be less likely to join or continue to serve in the Armed Forces,
especially in the Reserve Forces.'' S. Rep. No. 110-449, at 24 (2008).
Congress must act and reverse that trend.
I.
Congress has long recognized that when someone puts on a uniform to
serve in our military, we owe them certain obligations in return. One
of the most basic obligations is the assurance that, when they have
discharged their duties, they will be able to return to their jobs
without being penalized for serving their country--an obligation, in
other words, ``to compensate for the disruption of careers and the
financial setback [from] military service.'' 140 Cong. Rec. S7670-71
(June 27, 1994) (statement of Sen. Rockefeller).
To make good on this solemn obligation--and to advance a ``national
policy to encourage service in the United States Armed Forces,'' H.R.
Rep. No. 448, 105th Cong., 2d Sess. 2 (1998)--Congress has repeatedly
expanded and strengthened workplace protections in ``a long line of
federal veterans' rights laws enacted'' since World War II. DeLee v.
city of Plymouth, Ind., 773 F.3d 172, 174 (7th Cir. 2014). The most
recent and comprehensive of these statutes is USERRA, which Congress
passed in 1994 to ``strengthen existing employment rights of veterans
of our armed forces.'' Id. at 174-75.
In the run-up to USERRA, Congress kept a watchful eye on the
development of this area of law. During the 1970's and 80's, ``more
than 600 court cases'' were issued interpreting the scope of USERRA's
predecessor statute and ``occasional confusion resulted.'' 137 Cong.
Rec. S6058-66, S6065 (May 16, 1991) (Statement of Sen. Specter).
Congress eventually concluded that the existing statute was too
``complex and difficult to understand,'' 139 Cong. Rec. H2203-02, H2209
(May 4, 1993), and was ``sometimes ambiguous, thereby allowing for
misinterpretations,'' H.R. Rep. 103-65(I), at 18 (1993). These
misinterpretations took too narrow a view of the law, thwarting the
ability of veterans and reservists to vindicate their rights. As
Senator Rockefeller explained in 1993: ``over the last 53 years the
[law] has become a confusing and cumbersome patchwork of statutory
amendments and judicial constructions that, at times, hinder the
resolution of claims.'' 139 Cong. Rec. S5181-91, S5182 (Apr. 29, 1993).
Congress felt the need ``to restate past amendments in a clearer manner
and to incorporate important court decisions interpreting the law,''
while correcting the misinterpretations. 137 Cong. Rec. S6035, S6058
(May 16, 1991) (statement of Sen. Cranston).
The result was USERRA. Enacted just three years after the Persian
Gulf War served as a fresh reminder of the urgent need for reform, the
statute sought to ``clarify, simplify, and, where necessary, strengthen
the existing veterans' employment and reemployment rights provisions.''
H.R. Rep. No. 103-65(I) at 18. Its text identifies three core
objectives: (1) ``to encourage noncareer service in the uniformed
services by eliminating or minimizing the disadvantages to civilian
careers and employment which can result from such service,'' (2) to
``provid[e] for the prompt reemployment of such persons upon their
completion of such service,'' and (3) ``to prohibit discrimination
against persons because of their service.'' 38 U.S.C. Sec. 4301(a).
These objectives have taken on ``particular interest'' and importance
in the years since USERRA's passage ``because of the large number of
reservists [that were] called up for military duty as a result of the
conflicts in Iraq and Afghanistan.'' Gordon v. Wawa, Inc., 388 F.3d 78,
79-80 (3d Cir. 2004); see Army Reserve: A Concise History, Office of
Army Reserve History 15 (2013), https://perma.cc/3UHS-D5UN (noting that
many hundreds of thousands National Guard members and reservists have
served on active duty in the War on Terror).
USERRA seeks to accomplish its broad objectives by establishing a
broad set of substantive and procedural rights. Substantively, the
statute guarantees servicemembers the right to be promptly reemployed
upon return from military service, to be free from discrimination based
on military service, to take military leave from civilian jobs, and to
receive (while on such leave) any benefits that their employer provides
to employees on comparable forms of leave. 38 U.S.C. Sec. Sec. 4311,
4112, 4113, 4316. Further, unlike most federal employment statutes,
USERRA applies to all public and private employers in the United
States, regardless of their size. Id. Sec. Sec. 4303(4), 4314(a), (d).
To make these rights real, Congress created a ``broad remedial
scheme.'' Davis v. Advoc. Health Ctr. Patient Care Express, 523 F.3d
681, 684 (7th Cir. 2008). The scheme is premised on the idea that the
best way to protect servicemembers is to empower them to protect
themselves. USERRA doesn't require soldiers to first plead their case
to a bureaucrat in Washington, DC, or otherwise exhaust administrative
remedies. To the contrary, it authorizes them to go straight to court,
to ``commence an action for relief'' in any district where their
private employer has a place of business, 38 U.S.C. Sec. 4323(a)(3),
(b)(3), (c)(2), and ``authorize[s] suits against State employers.''
Torres v. Tex. Dep't of Pub. Safety, 142 S. Ct. 2455, 2466 (2022).
USERRA also forbids the assessment of fees or costs, id. Sec.
4323(h)(1), and has no statute of limitations, id. Sec. 4327(b). And,
on top of all this, Congress included a robust anti-waiver provision,
barring enforcement of ``any'' contract or State law ``that reduces,
limits, or eliminates in any manner any right or benefit provided by
[USERRA].'' Id. Sec. 4302(b). Congress intended for this provision to
apply to both substantive and procedural rights, ``including the
establishment of additional prerequisites to the exercise of any
[statutory] right'' or benefit. Id.
These expansive substantive and procedural provisions don't just
protect our servicemembers. They also protect our country. Experience
has shown that, at any point, the United States may be required to wage
war anywhere in the world. Experience has also shown that creating a
massive peacetime standing army, backed by a national draft, is
undesirable and infeasible. So our military has instead turned (with
ever increasing reliance) to reservists and National Guard members to
ensure that we have the fighting force necessary to meet modern
challenges and defend against global threats.
Today, about 800,000 people--nearly half the country's two million
servicemembers--are reservists or National Guard members. These people
make enormous personal sacrifice for our country. Most days, they go
about their lives like anyone else--working their day jobs, caring for
their families, worried about their finances, volunteering in their
communities, and so on. But they're also trained soldiers who balance
their roles as civilians with ongoing military obligations that allow
them to stand ready to be called into active duty. By doing so, they
``provide[] the mechanism for manning the Armed Forces of the United
States.'' Ala. Power Co. v. Davis, 431 U.S. 581, 583 (1977).
That's where USERRA comes in: To convince people to shoulder these
burdens and sign up for the reserves, Congress has recognized that we
must offer them some assurances in return. USERRA is indispensable to
this effort: ``Because the National Guard and Reserves have become an
essential part of the military's operational force, it is imperative
that employers comply with USERRA. . . . . If individuals lack
confidence that their USERRA rights will be respected or enforced, they
will be less likely to join or continue to serve in the Armed Forces,
especially in the Reserve Forces.'' S. Rep. No. 110-449, at 24 (2008);
see also S. Rep. No. 104-371, at 27-28 (1996) (similar); H.R. Rep. No.
105-448, at 2 (1998) (emphasizing that USERRA is ``particularly
important today to such persons who are integral to this country's
defense'' because ``the Guard and Reserve are frequently called to
active duty to carry out missions integral to the national defense'').
Undermining USERRA thus ``threaten[s] not only a long-standing policy
protecting individuals' employment rights, but also raise[s] serious
questions about the United States' ability to provide for a strong
national defense.'' H.R. Rep. No. 105-448, at 5-6.
Or as counsel for the United States told the U.S. Supreme Court
just last year:
``[Reservists and National Guard members] never been more
important to the military than they are right now.
And one of the first questions that [a prospective reservist]
will ask when they're considering whether to join the military
is, well, do I get to keep my job? You know, does my employer
have to let me take leave for training exercises or be
deployed?
And it really does matter in the real world for the Army to be
able to tell them, yes, your employer does have to do that. In
fact, . . . the brochure that the Army gives to its recruits
lists the USERRA protections as part of the incentive package
that they receive to join the military. And it would matter a
great deal in the real world if it was harder for the United
States to recruit Guardsmen and Reservists for the military.
Obviously, . . . the national security needs are unpredictable,
and the government doesn't know when it's going to need to
deploy troops overseas, and being able to have a supply . . .
of forces to defend the Nation is one of the most existential
jobs of the Federal Government in the first place.''
Tr. of Oral Argument in Torres v. Tex. Dep't of Pub. Safety, at 67-
68.
II.
The War on Terror isn't the only pertinent development in the years
since USERRA's passage. Since 1994, many employers have begun quietly
stripping their employees (including their servicemember employees) of
their legal rights through forced arbitration. These clauses are added
to the fine print of take-it-or-leave-it form contracts and require
employees to give up their right to a day in court and instead pursue
their cases in forced arbitration. Companies write these clauses in
their favor, picking their preferred arbitral forum. The arbitrators
are often selected by the companies (or else have a financial incentive
to side with them to secure their business in the future). Arbitrators
also conduct their work in secret, and their decisions are exceedingly
difficult to reverse in court given the highly deferential standard of
judicial review.
A few years ago, the Economic Policy Institute estimated that more
than half of nonunion private-sector employees in the United States are
now subject to forced arbitration. See Alexander J.S. Colvin, The
growing use of mandatory arbitration: Access to the courts is now
barred for more than 60 million American workers, Economic Policy
Institute (April 6, 2018), https://perma.cc/A3FZ-7LLJ/. That's roughly
60 million American workers--a number that has been steadily rising
each year. Further, forced arbitration is more common in low-wage
workplaces and among larger employers and has disproportionate effects
on women and Black employees. Id.
Although Congress might not have had forced arbitration firmly in
mind when it enacted USERRA, there should be little doubt that forced
arbitration is utterly incompatible with the statute. Yet several
courts of appeals have held otherwise. Relying on a 1925 law called the
Federal Arbitration Act--and more recent Supreme Court decisions that
have interpreted that statute far beyond its text and original
meaning--these courts have held that USERRA permits employers to force
servicemembers out of court and into arbitration. See Ziober v. BLB
Resources, 839 F.3d 814, 816 (9th Cir. 2016) (citing cases).
One of these cases involved was brought by a Navy reservist named
Kevin Ziober. In 2012, 4 years into his service, Lieutenant Ziober was
called into active duty--a 1-year deployment to Afghanistan. He
expected to fulfill his service obligations and then return to work
once he returned home. On his last day of work before being deployed,
Lieutenant Ziober's employer threw him an office-wide party to
celebrate his military service. Dozens of colleagues, as well as the
company's CEO and president, turned out for the celebration. They
watched as he ``dug into a cake decorated with an American flag and the
words, `Best Wishes Kevin' in red, white and blue.'' Margot Roosevelt,
Navy reservist wants a day in court, not arbitration, OC Register, June
6, 2016, http://bit.ly/2qAaOuu. They feted him with balloons, cards,
and a gift--prompting him to text family members: ``What a great
sendoff!'' Id. But just hours after the party ended, Lieutenant Ziober
was summoned to a meeting with the head of human resources, as well as
his supervisor and the company's attorney. They told him that he was
being fired. Then, when he tried to enforce his USERRA rights in court
upon returning home, his employer compounded the indignity by telling
him that he would have to arbitrate his claims instead.
This is plainly not what Congress envisioned when it enacted
USERRA. But the good news is that Congress can do something about that.
It can do what it has done many times in the past: strengthen and
clarify the statute to fix judicial decisions that have incorrectly
limited servicemembers' rights.
III.
Congress shouldn't hesitate to do so. When Americans are polled
about forced arbitration, it's no contest: they hate it. And despite
the hyper-partisan era in which we now live, this sentiment is widely
shared by voters across the political spectrum. Overwhelming majorities
of Republicans, Democrats, and independents support federal legislation
to end forced arbitration in general. In this context, in particular,
public opinion likely approaches unanimity.
And for good reason: For one thing, eliminating forced arbitration
for servicemembers is a moral imperative. Our servicemembers protect
our freedom and defend our Constitution. It is not too much to ask that
we protect their freedom and defend their constitutional rights.
For another thing, eliminating forced arbitration would help to
ensure that USERRA's rights are made real. It would empower
servicemembers to make their own choices about how to enforce their own
rights and whether to avail themselves of the procedural protections
under the statute. It would also empower them to protect the interests
of their fellow servicemembers--whether by serving as a representative
plaintiff in a class action, by seeking to enjoin an unlawfulpolicy, by
creating judicial precedent to govern future cases, or by providing a
public record of illegality that can be used for the benefit of others.
To strip servicemembers of their ability to serve their peers in these
ways, as forced arbitration does, only compounds the harms that it
inflicts. And it only further weakens USERRA--inhibiting development of
the law, allowing violations to go unnoticed and unpunished, and
reducing compliance.
For still another, eliminating forced arbitration would ensure that
small-dollar cases, in particular, can be vindicated. For these cases,
especially, forced arbitration cuts off compensation and deterrence.
This can be seen empirically by looking the results that people
actually obtain out of arbitration. In the consumer context, for
example, data compiled by the Consumer Financial Protection Bureau
shows that few consumers with low-value cases are able to successfully
advocate for themselves when forced to seek individual relief (which is
what forced arbitration typically requires). And when I say ``few,'' I
mean that in an absolute sense, not a relative sense: Of the hundreds
of millions of consumers that interact with banks, credit cards,
student loans, payday loans, debt collectors, and other companies, only
four of them (yes, you read that right) have won affirmative relief on
cases of $1,000 or less in arbitration. By contrast, between 2008 and
2012, at least 34 million consumers of the same universe of companies
received compensation through class actions. More than 400 consumer
financial class-action settlements garnered more than $2 billion in
cash relief for consumers and more than $600 million in in-kind relief.
And those numbers don't capture the additional benefits of industry-
changing injunctions and deterrence of future bad practices.
Finally, forced arbitration of USERRA claims undermines our
national defense. As the military has emphasized, USERRA is critical to
its recruiting and retention efforts. ``[T]he brochure that the Army
gives to its recruits lists the USERRA protections as part of the
incentive package that they receive to join the military,'' so ``it
would matter a great deal in the real world'' if those protections
continue to be weakened through forced arbitration, by making it
``harder for the United States to recruit Guardsmen and Reservists for
the military.'' Tr. of Oral Argument in Torres, at 67-68. ``If
individuals lack confidence that their USERRA rights will be respected
or enforced, they will be less likely to join or continue to serve in
the Armed Forces, especially in the Reserve Forces.'' S. Rep. No. 110-
449, at 24 (2008). Congress shouldn't let that happen. It's long past
time to step in and stop this slide in its tracks.
If it did so, this would not be the first time that Congress has
acted to protect national security by ensuring that servicemembers are
not subject to forced arbitration. The bipartisan Military Lending Act
prohibits forced arbitration in consumer credit contracts with
servicemembers. See 10 U.S.C. Sec. 987(e) (making certain extensions
of credit to servicemembers unlawful where ``the creditor requires the
borrower to submit to arbitration''); id. Sec. 987(f)(1) (making a
knowing violation a misdemeanor); 80 Fed. Reg. 43559 (July 22, 2015)
(expanding definition of covered consumer credit and banning
arbitration clauses in such products). Congress did so at the request
of the Department of Defense, which found that this was a key part of
protecting servicemembers from predatory lending--an issue that had
threatened national security and war readiness. See Report on Predatory
Lending Practices Directed at Members of the Armed Forces and their
Dependents 7, 14, 21, 51 (Aug. 9, 2006). When Department of Defense
expanded the scope of the Military Lending Act's prohibition of forced
arbitration to include a broader array of financial services, it
reaffirmed that the personal financial well-being of service members is
``at the core'' of servicemember retention and maintaining national
military readiness. 80 Fed. Reg. 43600 (July 22, 2015).
Congress should make a similar judgment as to the rights provided
by USERRA. Doing so would simply clarify what the statute should
already mean, and restore servicemembers' ability to choose to enforce
their rights in court, as envisioned by a bipartisan Congress. And it
would impose no burden to, or cost on, the federal government. Congress
should act without delay.
Statements for the Record
----------
Prepared Statement of Department of Defense
Chairman Van Orden, Ranking Member Levin, distinguished members of
the Committee, thank you for the opportunity to present the Department
of Defense statement for the record for this oversight hearing on the
Uniformed Services Employment and Reemployment Rights Act (USERRA).
Across America, our Guard and Reserve Service members are trained,
equipped, and ready with the critical capabilities needed to compete
globally across a full range of military operations and to provide
support to their local communities. In today's complex security
environment, these citizen Service members leverage their professional
skills while serving in uniform, adding value and depth to America's
military force with skills, education, and expertise acquired in the
private sector. These Service members are also teachers, first
responders, doctors, lawyers, academics, scientists, engineers, cyber
specialists, transportation specialists, and administrators at all
levels. These Service members depend on the support of their families
and communities, especially their civilian employers, to thrive in
their military roles.
More than 50 years ago, the Department of Defense recognized the
value of the support civilian employers provide to military employees,
and in 1972 created the Employer Support of the Guard and Reserve
(ESGR) office to gain and maintain employer support for an all-
volunteer Force. Over the decades since, ESGR's mission expanded to
include educating employers and Service members about the rights and
responsibilities of USERRA. The Act is intended to ensure these Service
members are not disadvantaged in their civilian careers because of
their service, are promptly reemployed in civilian jobs upon their
return from duty, and are not discriminated against in employment
because of military status or obligations.
In support of the Secretary of Defense's priority to ``Take Care of
Our People,'' ESGR accomplishes its mission through effective military
and employer outreach services, employer recognition programs, and a
broad range of assistance services. These services provide education on
the applicability of USERRA and emphasize the importance of the
National Guard and Reserve in our Nation's defense. Ensuring Service
members understand their rights and benefits under USERRA is a key
example of implementing the Secretary's priority to ``Take Care of Our
People.''
In recent years, the Department has leaned heavily on our Guard and
Reserve, such as during the COVID-19 pandemic when those Service
members were critical in supporting public health initiatives and
maintaining services across the country. As Guard and Reserve Service
members have played increasingly important roles in protecting our
Nation, it is equally important that their employment rights are
protected. Educating and informing Service members and their families
about USERRA's rights, benefits, and protections is important for the
Department to recruit and retain the all-volunteer Force integrated
between Active and Reserve components. Propsective Guard and Reserve
Service members need confidence their civilian careers will not be
adversely impacted by their uniformed service responsibilities, to
ensure the Department's reliance on Reserve Component forces can
support overall mission readiness.
ESGR plays a central role in protecting those rights, recognizes
and supports employers to honor those rights. It works as a volunteer-
centric program, with a nationwide network of over 2,800 dedicated
volunteers with diverse backgrounds, who assist with employment
concerns of Guard and Reserve Service members. These volunteers
represent all walks of life; business executives, small business
owners, civic leaders, retired military members, and patriotic citizens
who have never served in the Armed Forces, but want to give back. In
Fiscal Year 2022, ESGR volunteers served more than 180,000 hours to
provide education and increase awareness on the rights and
responsibilities under USERRA, reaching 125,496 employers and 234,095
Service members.
ESGR's proactive efforts to increase awareness of related laws and
DoD policies helps prevent disputes between Service members and their
employers. By preventing disagreements through reduced confusion,
ESGR's efforts serve as mission enablers by allowing Service members to
concentrate on military service requirements. ESGR engages with Guard
and Reserve leadership and appropriate staff elements through formal
information sharing venues (e.g., office calls with Guard and Reserve
Chiefs) and ad hoc communication in support of their readiness efforts.
This sustained coordination at the staff level is critical to mutual
success.
In addition, ESGR's Customer Service Center employs trained subject
matter experts who provide prompt, telephonic and email responses to
Service members and civilian employers on USERRA-related matters. In
Fiscal Year 2022, ESGR responded to more than 13,000 inquiries and
provided free confidential mediation services in over 1,100 cases with
a 76 percent resolution rate. Nearly 400 ESGR volunteer ombudsmen
across the country assist employers and Service members daily with
USERRA matters, helping to resolve civilian employment conflicts that
arise because of military service. These volunteers, along with ESGR
headquarters staff, provide assistance, at no cost, to help Service
members resolve workplace issues and improve relationships with
civilian employers.
ESGR also assists employers by addressing concerns about the
timing, frequency, and duration of service by connecting employers with
the appropriate Guard or Reserve points of contact within chain-of-
command. This could mean assisting a small business employer to contact
a military commander and request a flexible drill schedule that
supports their continuity of business operations or ensuring that an
employer understands the rights of Service members under USERRA.
Although misunderstanding occasionally exist between employers and
Reserve Component Service members during military duty, ESGR provides
assistance to alleviate stress between parties and supports stronger
communication, through the involvement of military chain-of-command,
advanced notification of military service, and open-lines of
communication while the employee is away.
ESGR's role regarding USERRA is limited to conducting outreach that
does not conflict with investigations or other legal actions. ESGR
assistance does not include cases where a Service member files a formal
complaint with the Department of Labor Veterans' Employment and
Training Service (DOL VETS) or when a Service member retains private
legal representation. Regardless of the outcome of an ESGR USERRA
mediation case, Service members can still file a case with the DOL
VETS. ESGR and DOL VETS, however, work in collaboration to ensure
USERRA educational materials are accurate and that all volunteer
Ombudsmen are properly trained.
ESGR also offers a robust tiered awards program to recognize the
many employers who go above what is required by law to support military
employees. This support includes helping Guard and Reserve families by
checking in after a natural disaster, sending care packages during an
extended deployment, and continuing pay and benefits when a Reservist
is activated. Most employer awards originate from Patriot Award
nominations, submitted by Service members who recognize supportive
supervisors. During Fiscal Year 2022, ESGR recognized 6,871 supervisors
with Patriot Awards. ESGR is also currently reviewing 1,863 nominations
for the Secretary of Defense Employer Support Freedom Award, the
Secretary of Defense's highest honor bestowed on employers. The Freedom
Award is presented annually to a maximum of 15 large, small, and
public-sector employers who have demonstrated exceptional support to
Guard or Reserve employees.
In addition, during Fiscal Year 2022, ESGR obtained 5,245
Statements of Support from employers across the Nation. The intent of
the program is to increase employer support through encouragement to
act as advocates for employee participation in the military. Service
members who know they have employer support, are more likely to stay in
the Service and help recruit others. Employers who sign Statements of
Support pledge that they will:
Fully recognize, honor, and comply with the USERRA.
Provide managers and supervisors with the tools they need
to effectively manage employees who serve in the National Guard and
Reserve.
Appreciate the values, leadership, and unique skills
Service members bring to the workforce, and encourage opportunities to
hire Guardsmen, Reservists, transitioning Service members, and
Veterans.
Continually recognize and support our country's Service
members and their families, in peace, in crises, and in war.
CONCLUSION:
In the two decades since September 11, 2001, over one million Guard
and Reserve Service members have mobilized as part of the Total Force.
Currently, over 30,000 are deployed to 23 countries in direct support
of Geographic Combatant Commands, while stateside Service members
directly support local communities through service related to natural
disasters, declared emergencies, and more. ESGR and the Department of
Defense as a whole remain committed to our National Guard and Reserve
Service members and their civilian employers as they deal with the
challenges and complexities of balancing civilian and military life.
Taking care of our Service members is one of Secretary Austin's top
priorities. As important members of the Total Force, the Department
will continue to provide our Reserve Component Service members and
their families with the resources, services, and support they need.
In closing, Mr. Chairman, the Department of Defense thanks you, the
Ranking Member, and the members of this Subcommittee for your
outstanding and continuing support of the men and women who proudly
wear the uniform in defense of our great Nation.
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