DDN - Reservist: Military Duty Cost Him Job. Employer denies charge; case shows hurdles for both sides.
July 5, 2005
Reservist: Military Duty Cost Him Job
Employer denies charge; case shows hurdles for both sides
By Lawrence Budd, Dayton Daily News
David Banks came home in February from three weeks in Italy with his Middletown-based military police reserve unit to learn he'd been demoted to assistant manager of a Cassano's pizza shop in Carlisle.
By May, he was unemployed, claiming the company forced him out after he insisted it accommodate his military commitment.
Banks' experience contrasts with that of Brian Dominguez. More than two years after mobilization of his reserve airlift unit at Wright-Patterson Air Force Base, Delta Airlines continues to work around Dominguez's volunteer missions to Iraq. While Dominguez is evacuating wounded soldiers, Delta preserves his job based at the Cincinnati/Northern Kentucky International Airport and those of other pilots who also are part-time soldiers.
Federal law is supposed to protect the civilian jobs of the almost 150,000 other reservists on active duty in Iraq and elsewhere in the world. However, the experiences of Banks, Dominguez and others demonstrate employers' diverse responses and the limits of laws designed to define the responsibilities of employers and employees unable to work due to military service.
"By and large, it appears more guardsmen and reservists are running into more difficulty with employers who are having problems with frequent deployments," said Woody Stroud, a volunteer ombudsman for the National Committee for Employer Support of the Guard and Reserve in the Dayton area.
Part of this appearance is surely due to the sheer volume involved as the Guard and Reserve become essentially wholly consumed by the war effort. Another portion is probably due to what could be termed patriotism-fatigue: employers, like the civilian population at large, lose their initial focus and enthusiasm for "supporting the troops" when it actually requires them to do so.
While responses vary, larger employers more often embrace their reservists, said retired U.S. Air Force Col. Anthony "Chip" Augello, executive director of the Ohio Committee for the ESGR in Columbus. Smaller companies tend to be more likely to take stands testing the limits of the Uniformed Services Employment and Reemployment Rights Act , said Augello, the first paid ESGR staff member in the state.
"In most cases, it's just a question of educating the employer as to what the law is," Augello said.
Some employers become sufficiently educated that they exploit loopholes in the law. My former civilian employer, Carlysle Group-owned BDM, terminated me as a "reduction in force" upon my return from Operation Joint Endeavor. The ESGR representative who briefed me in 1996 told me there was nothing I could do.
Bear in mind that Operation Joint Endeavor was the initial rotation for the Bosnian intervention, also known as IFOR. BDM was the defense contractor which was awarded the contract to provide Serbian/Croatian linguists to the Army during OJE.
So while they were raking it in on the one side, they were dis-employing reservists on the other. Nice.
In some cases, reservists who feel their rights have been violated wind up bringing lawsuits in civil courts to settle battles with employers unmoved by mediation by ESGR officials or federal labor officials charged with resolving the disputes.
Augello estimated about 7 percent of 100 reservists whose employment disputes he's tried to mediate since he started his job last August have wound up out of a job.
"Things can be done very discreetly and still have the same effect," Augello said. "There's always two sides to it."
David Foster and David Banks share more than a name. Both claim they lost jobs because of discrimination by employers due to their military commitments.
Foster, former transportation director for Mason City Schools and a first sergeant in the U.S. Marine Corps reserve, claims in a lawsuit pending in Warren County Common Pleas Court that school officials convinced him to resign in 2002 rather than make due without a transportation director during his deployment in Iraq and Kuwait.
Foster, a Fairfield resident, filed the lawsuit in February after returning from the Middle East, claiming the school district reneged on its agreement by providing prospective employers with bad references.
The school district denies Foster's claims, including any connection between Foster's resignation and his call to active duty.
"I just wanted to tell you that we did not attempt to get David to leave because he was in the armed forces," Superintendent Kevin Bright wrote in an e-mail to school officials on March 1. "Philosophically, that's the last thing we would do ... it was his performance."
Banks, a cook with the 324th Army Military Police reserve unit in Middletown, has filed complaints about Cassano's with the committee for the Employer Support of the Guard and Reserve and the U.S. Department of Labor. Banks retained his manager's job after interventions by Augello and officials from the Department of Labor, Division of Veterans Employment and Training, in Columbus.
On Friday, he was working at the National Guard Armory in Middletown and paid through remedial military assistance days available to reservists. Banks said a headhunter told him the pool of prospective employers was shallow because some shied away from reservists. "I feel I am discriminated against because I am in the National Guard," he said.
Cassano's owner Vic Cassano said Banks failed to make the grade as a manager and refused employee development assistance. Cassano's highly values employees' military service, the company owner added.
"You won't find me, my sons or anybody in this company not supporting those folks," Cassano said. "We're not going to make their life miserable like we did when they came back from Vietnam."
So this is a tradition for Mr. Cassano? He's done this before?
Federal law requires employers to hold positions for employees until they return from military duty. The 1994 law mandates how employers should handle promotional opportunities, retirement and other benefits involving employees with military commitments.
ESGR's authority in employment disputes is limited to mediation. Unresolved disputes are referred to the U.S. Department of Labor or state authorities, Augello said. Stroud, a retired banker, said it's important to keep in mind the economic pressures faced by businesses.
"These are difficult times for some employers also," he said.
Still some companies, in addition to saving jobs for employees on active military duty, continue health insurance and other benefits. Some make up the difference between military and civilian pay of employees at war.
But not the federal government.
In February 2003, the 356th Airlift Squadron, including Col. Brian Dominguez, was called to active duty at Wright-Patterson Air Force Base to transport wounded soldiers out of Iraq. Although demobilized a year later, Dominguez and other members of this and other squadrons of the 445th Wing, stationed at Wright-Pat, continue to take turns flying their giant transport planes outfitted as flying hospitals to Ramstein Air Force Base in Germany, into to Iraq, and back carrying wounded soldiers.
Dominguez said he's one of many pilots at Delta, where the airline continues to juggle schedules to accommodate pilots who volunteer to fly wounded back from Iraq.
Dominguez's last turn with the 356th came about six weeks ago.
"They basically wished me good luck," he said.
Sarah Buehrle of Cox News Service contributed to this report.