WASHINGTON, April 20 (UPI) -- In a March 31 fundraising e-mail, the Democratic National Committee made a pitch for contributions that exploited the potential plight of returning veterans of the Iraq war.
"White House spokesman Ari Fleischer told reporters that we need the Bush tax scheme," the message said, "so that when our men and women in the military return home, they'll have jobs to come home to."
The pitch, at least as far as the reference to men and women serving overseas is concerned, is shameful. It is also, both as a matter of rhetoric and a matter of fact, misleading.
Under the terms of a 1994 law approved overwhelmingly by the last Democratic-majority Congress and signed by President Bill Clinton, employers must reinstate reservists who return from active service.
As an attorney working for the U.S. Department of Labor for close to a decade, I participated in the drafting of the Uniformed Services Employment and Reemployment Rights Act, codified at 38 U.S.C. 4301-4333.
USERRA was enacted in 1994 but the right to reemployment can be traced back to 1940, when Congress enacted what came to be known as the Veterans' Reemployment Rights law.
For 63 years, persons returning from voluntary or involuntary military service, including but not limited to National Guard and Reserve personnel called to active duty in emergencies, have had the right to reemployment in their civilian jobs.
The federal government, regardless of which party constituted a majority in Congress or held the White House, has continually supported reemployment rights for returning veterans.
In the opening days of the 104th Congress, the now-Republican-majority Congress enacted the Congressional Accountability Act, applying 11 Federal laws -- including USERRA -- to itself as an employer.
As previously stated, the right of reemployment did not originate with USERRA. It did, however, make some major improvements.
Credit for USERRA, indeed for most all the major pro-veteran legislation enacted by Congress between 1980 and 1996, goes to former U.S. Rep. Sonny Montgomery, D-Miss., at the time the chairman of the House Veterans' Affairs Committee .
Montgomery was much more pro-military then many of his Democrat colleagues in the U.S. House. In the early 1980s, he was chastised by House Speaker Thomas P. 'Tip' O'Neill, D-Mass., for "consorting with Ronald Reagan" on defense and national security matters.
The veteran House member responded, "I would rather consort with President Reagan than with Daniel Ortega," at the time the Communist leader of of Nicaragua.
After he retired from Congress Montgomery dropped most all pretense of being a Democrat, co-chairing the Veterans for Bush-Cheney coalition in 2000.
The law that Montgomery shepherded through Congress applies to anyone who leaves a civilian job for voluntary or involuntary military service. The cumulative period or periods of service, relating to that particular employer, must not exceed five years. All involuntary service and some voluntary service are excluded from computing the five-year limit.
Under USERRA a returning veteran must make a timely application for reemployment after release from service under honorable conditions.
A person who meets these criteria must be promptly reinstated and must be treated, for seniority and pension purposes, as if he or she had been continuously employed. USERRA explicitly ratifies the "escalator principle" first enunciated by the Supreme Court in 1946 in Fishgold v. Sullivan Drydock & Repair Corp.
In that case the Court ruled that, "The returning veteran does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously during [his military service]."
Returning veterans, along with all Americans, benefit when the economy grows. The president's tax cut package, if history is any guide, should play an important role in kickstarting economic activity as veterans of the Iraq war return home.
A reservist who left a part-time job could find the job to which they are returning has, thanks to increased economic activity, "escalated" to full-time. Moreover, it should be emphasized that this "escalator" does not always go up, as is sometimes the case.
Fishgold was an example of a descending escalator who was laid off shortly after he returned from World War II.
In establishing the "escalator principle," the Supreme Court upheld Fishgold's layoff because the evidence showed he would have been laid off even if he had never left the drydock company to join the Army.
Everyone benefits when political leaders in Washington support reemployment rights for returning veterans. Using their situation as cannon fodder in political fundraising pieces only cheapens them and diminishes their sacrifice.
(Samuel F. Wright is an attorney in Washington, DC. You can reach him by e-mail at [email protected]. Further information about USERRA can be found at the National Committee for Employer Support of the Guard and Reserve's Web site at www.esgr.com.
-- "Outside View" commentaries are written for UPI by outside writers on issues of public interest.)
