The quasi-judicial agency that protects federal employment rights set a precedent last month that affirms veterans who work in the government are protected from retaliation for speaking out against discrimination.
The Merit Systems Protection Board affirmed that federal employees who are veterans are protected from workplace harassment specifically under the Uniformed Services Employment and Reemployment Rights Act’s anti-retaliation provision. This landmark law has protected veterans from employment discrimination based on their military service since 1994.
Over the years, it been debated whether USERRA in itself protected veterans against “a hostile work environment” in the federal government. Refined standards make it clear that it does.
“USERRA was amended with explicit language to open the door for these kinds of [workplace harassment] claims to go forward,” said Ryan Gallucci, director of the Veterans of Foreign War’s Washington office, in a phone interview. “This is a positive development for veterans, and one that has been in the works for more than a decade.”
Several administrative bodies deal with USERRA cases, and MSPB’s focus is on appeals at the federal level. In a case last month, it clarified its standards, acknowledging that persistent harassment in a federal agency can rise to the level of severity such that it alters the conditions of a veteran’s employment, and therefore can trigger a freestanding retaliation complaint under the law if the protected activity was a motivating factor. Veterans make up about a third of the federal workforce, with 14% of all employed Gulf War-era veterans working for the government.
“The question of hostile work environments via USERRA asks the question of whether there’s a culture in a certain agency that is hostile to vets,” VFW’s Gallucci said. “And now veterans have peace of mind that workplace harassment will be taken seriously.”
The federal government has a host of laws and statutes that prevent discrimination of and retaliation against its employees. These can be confusing, especially if a veteran is new to government or is used to a different set of rules and reporting chains that applied to them as service members, said Siri Nelson, executive director of the National Whistleblower Center.
The MSPB case appears to harmonize those rules, she explained.
“The hostile work environment concept can be very confusing because it’s a term of art, which means that it’s something that the average person might interpret very differently than how it is [interpreted] under the law,” she said in an interview.
Better data still needed
The MSPB precedent is much needed, sources told Federal Times, but if the federal government is going to be a model employer as it has so often claimed, then that means not just adhering to the letter of the law, but also making sure federal agencies are self-reporting their success in doing so.
“Veterans have been an unappreciated minority since the 1970s, even as the country increasingly benefits from their service,” said Dan Meyer, a national security lawyer at Tully Rinckey, in a statement. He added that the next step should come from Congress to require more detailed reports of the MSPB and other enforcement agencies on what they are doing to protect veteran whistleblowers.
“The stats just are not being produced, and there is something odd in that silence,” he said in a statement.
Meyer said an example of the “gold standard” for reporting is the Department of Defense’s inspector general audit summary that goes to Congress every six months.
“Until you get to their level of granularity with respect to USERRA case handling, veterans’ discrimination reporting is just fluffing,” he said.
William Spencer, executive director of MSPB, told Federal Times that there’s no specific requirement for the agency to report or keep data on USERRA cases, though it does report some information in its annual report. The latest one is from fiscal 2021.
Spencer said as of April 2, there were 41 USERRA appeals pending before the Board on petition for review, and 22 initial USERRA appeals pending in regional offices. The agency declined to comment on whether the existing reporting mechanisms were sufficient to capture the true effectiveness of USERRA protections in the federal government.
The Department of Labor sends an annual report to Congress on USERRA cases, which includes data from state and private employers. USERRA applies to both public and private employers.
Gallucci said he supported having more detailed reporting standards at MSPB and in the federal government in general in order to paint a better picture of whether a certain agency is more hostile to veteran employees or whether a department fails to provide USERRA protections in good faith.
It’s not that the federal government is the worst perpetrator of discrimination against veterans, he said, but rather that the MSPB precedent makes clear that a veteran’s claim of a hostile workplace will be taken seriously, and that agencies, like all employers, must commit the same resources to a veterans’ concerns.
“I think the most important part of this, is the decision shows the value of protecting veterans right to assert their rights,” said Nelson. “The law doesn’t work if it can’t be used.”