Johnny comes marching home to financial battles -- Page 2

Federal law also protects returning servicemen whose employers are unwilling to put them back on the job. The Uniformed Services Employment and Reemployment Rights Act has lots of teeth and case law supporting it, says Capt. Samuel F. Wright, a judge advocate with the Naval Reserve and ombudsman of the Reserve Officers Association.

Wright says the complaints he has received from returning servicemen focus primarily on a few small areas that are not as cut-and-dried as the rest of the law. In most cases, though, the law is clear that servicemen are entitled to return to the job he or she held previously. The person also must be treated for seniority and pension purposes as if there had been no time away for military service.

The serviceman who believes he or she has been wronged has the right to take the employer to court and seek back wages, penalties and legal fees. Wright advises first talking to your boss. Sometimes there's a misunderstanding. If that doesn't work, he suggests turning to your unit's judge advocate attorney. If that fails, ask the National Committee for Employer Support of the Guard and Reserve for a legal referral.

Recovering lost jobs
The situations where the issues are not as clear mostly involve layoffs, Wright says.

USERRA was first written to protect World War II soldiers. At that time, unions covered about half of all workers, a large portion of whom were most likely to be called to service. The law's references to layoffs use seniority, a common union benchmark, as a basis for deciding whether a military person still has a job. The employer who lays off workers can lay off a military person on active duty if that person would have been laid off anyway determined by their seniority date.

But most layoffs today aren't determined by seniority, Wright says. He points to the 35,000 people laid off by Boeing Corp., which affects many reservists.

"Without a system of seniority, it's hard to determine whether your job is really gone. Maybe they would have kept you on because they liked you," Wright says.

Still, the law does put the burden of proof on the employer. If a soldier comes home to no job and the reason is unclear, Wright points out that the employer has to initiate and bear the expense of any legal action to determine if the company is on solid ground.

Missed money
And some returning soldiers are finding that while they have a job to come back to, they missed out on raises while they were on active duty.

Companies that only give merit increases are in many cases telling the returning servicemen that they aren't entitled to raises because they weren't around for annual performance reviews. Wright says the issue is being litigated, and he believes the courts soon will decide that employers must give an affected employee an amount that reflects previous performance experience. A worker who had been a star performer in the past, for example, would be entitled to a raise reflecting that even though he or she was on active duty.

If you can't persuade your employer to see it your way, be patient. It's very likely that when the decision is made, you'll get a raise and back pay.

Jennie L. Phipps is a contributing editor based in Michigan