Prepared by the Office of 

the Assistant Secretary 

for Veterans’ Employment 

Annual Report to Congress and Training • July 2018

FY 2017

USERRA

UNIFORMED SERVICES EMPLOYMENT AND 

REEMPLOYMENT RIGHTS ACT OF 1994
The purposes of the Uniformed Services Employment and Reemployment Rights Act (USERRA) are: to encourage 

non-career service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers 

and employment which can result from such service; to minimize the disruption to the lives of persons performing 

service in the uniformed services as well as to their employers, their fellow employees, and their communities, by 

providing for the prompt reemployment of such persons upon their completion of such service; and to prohibit 

discrimination against persons because of their service in the uniformed services. It is the sense of Congress that the 

Federal Government should be a model employer in carrying out the provisions of USERRA.

38 U.S.C. § 4301, Purposes and Sense of Congress
i

TABLE OF CONTENTS PAGE NUMBER

INTRODUCTION 1

OVERVIEW OF USERRA PROTECTIONS

2

USERRA SERVICES PROVIDED BY THE DEPARTMENT OF DEFENSE’S

EMPLOYER SUPPORT FOR THE GUARD AND RESERVE 3

OVERVIEW 3

OUTREACH PROGRAMS 4

OMBUDSMAN SERVICES 4

DEPARTMENT OF LABOR’S USERRA OUTREACH AND CLAIMS INVESTIGATION 5

VETS PUBLIC EDUCATION AND COMPLIANCE ASSISTANCE EFFORTS 5

VETS INVESTIGATIVE PROCESS 5

CASE REFERRAL PROCESS 6

DEPARTMENT OF JUSTICE ENFORCEMENT 6

OFFICE OF SPECIAL COUNSEL ENFORCEMENT 7

USERRA IN THE FEDERAL SECTOR 7

MANDATED REPORTING REQUIREMENTS 7

1. THE NUMBER OF CASES REVIEWED BY THE DEPARTMENT OF LABOR UNDER THIS CHAPTER

DURING THE FISCAL YEAR FOR WHICH THE REPORT IS MADE. 8

Figure 1. Unique USERRA Cases Reviewed by the Federal Government 8

2. THE NUMBER OF CASES REVIEWED BY SECRETARY OF DEFENSE UNDER THE NATIONAL

COMMITTEE FOR EMPLOYER SUPPORT OF THE GUARD AND RESERVE DURING THE FISCAL

YEAR. 8
ii

3. THE NUMBER OF CASES REFERRED TO THE ATTORNEY GENERAL OR THE SPECIAL COUNSEL 

PURSUANT TO SECTION 4323 OR 4324, RESPECTIVELY, DURING SUCH FISCAL YEAR AND THE 

NUMBER OF ACTIONS INITIATED BY THE OFFICE OF THE SPECIAL COUNSEL BEFORE THE 

MERIT SYSTEMS PROTECTION BOARD PURSUANT TO SECTION 4324 DURING SUCH FISCAL 

YEAR. 8

4. THE NUMBER OF COMPLAINTS FILED BY THE ATTORNEY GENERAL PURSUANT TO SECTION 

4323 DURING SUCH FISCAL YEAR. 8

5. THE NUMBER OF CASES REVIEWED BY THE SECRETARY OF LABOR AND SECRETARY OF 

DEFENSE UNDER THE NATIONAL COMMITTEE FOR EMPLOYER SUPPORT OF THE GUARD AND 

RESERVE THAT INVOLVE THE SAME PERSON. 9

6. WITH RESPECT TO THE CASES REPORTED ON PURSUANT TO PARAGRAPHS 1, 2, 3, 4,

AND 5—

A. THE NUMBER OF SUCH CASES THAT INVOLVE A DISABILITY-RELATED ISSUE. 9

B. THE NUMBER OF SUCH CASES THAT INVOLVE A PERSON WHO HAS A SERVICECONNECTED DISABILITY. 9

7. THE NATURE AND STATUS OF EACH CASE REPORTED PURSUANT TO PARAGRAPH 1, 2, 3, 4,

OR 5. 10

 Figure 2. Cases Opened by VETS in FY 2017 10

 Figure 3. Investigated and subsequently closed by VETS in FY 2017 11

 Figure 4. Case Closure Codes Explained 12 

 Figure 5. Crosswalk of USERRA Issues, FY 2017 13

 ESGR Ombudsman Services VETS' National Guard & Reserve Complaint Cases

 Figure 6. VETS’ Data for 161 Likely Case Matches with FY 2017 ESGR Cases 16

 

8. WITH RESPECT TO THE CASES REPORTED ON PURSUANT TO PARAGRAPHS 1, 2, 3, 4, AND 5,

THE NUMBER OF SUCH CASES THAT INVOLVE PERSONS WITH DIFFERENT OCCUPATIONS OR 

PERSONS SEEKING DIFFERENT OCCUPATIONS, AS DESIGNATED BY THE STANDARD 

OCCUPATIONAL CLASSIFICATION SYSTEM. 17

 Figure 7. Occupations Involved in FY 2017 USERRA Cases 18

9. AN INDICATION OF WHETHER THERE ARE ANY APPARENT PATTERNS OF VIOLATION OF THE 

PROVISIONS OF THIS CHAPTER, TOGETHER WITH AN EXPLANATION THEREOF. 18

10. RECOMMENDATION FOR ADMINISTRATIVE OR LEGISLATIVE ACTION THAT THE SECRETARY,

THE ATTORNEY GENERAL, OR THE SPECIAL COUNSEL CONSIDERS NECESSARY FOR THE 

EFFECTIVE IMPLEMENTATION OF THIS CHAPTER, INCLUDING ANY ACTION THAT COULD BE 

TAKEN TO ENCOURAGE MEDIATION, BEFORE CLAIMS ARE FILED UNDER THIS CHAPTER,

BETWEEN EMPLOYERS AND PERSONS SEEKING EMPLOYMENT OR REEMPLOYMENT. 19
1

Introduction

The Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. 

§§ 4301-4335 (USERRA), was signed into law on October 13, 1994. USERRA prohibits 

discrimination in employment based on an individual’s prior service in the uniformed services; 

current service in the uniformed services; or intent to join the uniformed services. An employer 

is also prohibited from discriminating against a person because of such person’s attempt to 

enforce his or her rights under the Act. In addition, an employer may not retaliate against an 

individual for filing a USERRA claim, testifying, or otherwise providing assistance in any 

proceeding under the Act. USERRA also provides reemployment rights with the pre-service 

employer following qualifying service in the uniformed services. In general, the protected 

person is entitled to be reemployed with the status, seniority, and rate of pay as if he or she had 

been continuously employed during the period of service. USERRA applies to private 

employers, the Federal Government, and State and local governments. It also applies to United 

States employers operating overseas and foreign employers operating within the United States.

This Fiscal Year (FY) 2017 report was prepared in accordance with 38 U.S.C. § 4332(a), which 

requires the Secretary of Labor, after consultation with the Attorney General and the Special 

Counsel, to prepare and transmit an annual report to Congress containing the following 

information for the preceding fiscal year:

1. The number of cases reviewed by the Department of Labor (DOL) under this chapter during 

the fiscal year for which the report is made.

2. The number of cases reviewed by the Secretary of Defense under the National Committee for 

Employer Support of the Guard and Reserve (ESGR) of the Department of Defense (DOD) 

during the fiscal year for which the report is made.

3. The number of cases referred to the Attorney General or the Special Counsel pursuant to 

Section 4323 or 4324, respectively, during such fiscal year and the number of actions 

initiated by the Office of Special Counsel (OSC) before the Merit Systems Protection Board 

(MSPB) pursuant to Section 4324 during such fiscal year.

4. The number of complaints filed by the Attorney General pursuant to Section 4323 during 

such fiscal year.

5. The number of cases reviewed by the Secretary of Labor and the Secretary of Defense 

through ESGR of DOD that involve the same person.

6. With respect to each of the cases referenced above:

A. the number of such cases that involve a disability-related issue; and

B. the number of such cases that involve a person who has a service-connected 

disability.
2

7. The nature and status of each of the cases referenced above. 

8. With respect to each of the cases referenced above, the number of such cases that involve 

persons with different occupations or persons seeking different occupations, as designated by 

the Standard Occupational Classification System (SOCS).

9. An indication of whether there are any apparent patterns of violation of the provisions of this 

chapter together with an explanation thereof.

10. Recommendations for administrative or legislative action that the Secretary of Labor, the 

Attorney General, or the Special Counsel considers necessary for the effective 

implementation of this chapter, including any action that could be taken to encourage 

mediation, before claims are filed under this chapter, between employers and persons seeking 

employment or reemployment.

Overview of USERRA Protections

USERRA generally requires U.S. employers, regardless of size or location of operation, as well as 

foreign employers operating in the United States or its territories, to reemploy eligible veterans returning 

to their civilian employment after a period of service in the uniformed services. It requires employers, 

with certain exceptions, to provide training to restore competency in duties, and to restore seniority, 

status, pay, pensions, and other benefits that would have accrued but for the employee’s absence due to 

military service. Under USERRA, employers are generally liable for funding their share, if any, to the 

civilian retirement plan(s) of employed service members away on military service. 

Eligibility requirements for service members seeking reemployment generally provide that the absence 

must be due to service; advance notice (oral or in writing) must be given to the employer; the cumulative 

period(s) of service while employed by the employer must not exceed five years; the application for 

reemployment must be timely; and the discharge from service must not be disqualifying. 

Employers are also prohibited from discriminating on the basis of service in the military, the National 

Disaster Medical System, and the commissioned corps of the Public Health Service. USERRA also 

protects anyone—veteran or non-veteran—from reprisal for either exercising rights or assisting in any 

proceeding under the statute.

DOL is statutorily tasked with providing assistance to any person with respect to USERRA employment 

and reemployment rights and benefits and may request the assistance of other federal and state agencies 

engaged in similar or related activities to do so. DOL, DOD, and the Secretary of Veterans Affairs share 

responsibility for promoting a clear understanding of USERRA among employers and individuals 

concerning their respective rights and responsibilities under USERRA. In addition, USERRA requires 

all Federal agencies to provide USERRA awareness training to human resources personnel, in 

consultation with the U.S. Office of Personnel Management (OPM). OPM issues guidance on ways to 

improve USERRA protection policies and practices for Federal agencies. DOL’s Veterans’ 

Employment and Training Service (VETS) and DOD’s ESGR provide extensive public education, 

outreach, and compliance assistance with the goals of preventing violations caused by ignorance or 
 3

misunderstanding of the law and ensuring that protected individuals understand their rights and know 

what assistance is available to help them secure those rights.

An individual who believes his or her USERRA rights have been violated may file a complaint with 

VETS, who will then investigate the claim(s). Alternatively, an individual may seek to informally 

mediate his or her claims utilizing ESGR Ombudsmen’s informal mediation services to try to resolve his 

or her USERRA-related issues. Informal mediation is not required and an individual may file a 

complaint with VETS at any time. Once a complaint is filed with VETS, VETS will formally 

investigate the complaint and attempt to resolve those complaints found meritorious. If, following 

VETS’ investigation there is no resolution of the complaint(s), the claimant may request referral of 

his/her case to the Department of Justice (DOJ) for cases involving a private, State, or local government 

employer, and to OSC1for cases involving a Federal employer. Claimants also have the right at any time 

to withdraw their case to pursue enforcement at their own expense, in U.S. District Court or before the 

MSPB, either on their own or with the assistance of a private attorney.

This report begins by describing the various roles each of the Federal agencies referenced above play in 

the administration of USERRA. Next, the report responds to each of the statutorily-mandated reporting 

requirements described in the introduction to this report. In addition, the report contains other 

information of interest including USERRA case outcomes for cases closed by DOJ, OSC, and VETS. 

USERRA SERVICES PROVIDED BY THE DEPARTMENT OF DEFENSE’S

EMPLOYER SUPPORT OF THE GUARD AND RESERVE

OVERVIEW

Employer Support of the Guard and Reserve (ESGR) is a Department of Defense (DOD) program 

established in 1972 to promote cooperation and understanding between Reserve Component (RC) 

service members and their civilian employers, and to assist in the informal resolution of USERRArelated employment conflicts arising from an employee’s military commitment through its network of 

volunteers nationwide. ESGR develops and promotes supportive work environments for service 

members in the RCs through outreach, recognition, and educational opportunities that increase 

awareness of applicable laws.

ESGR is a volunteer-centric program that works to ensure all employers support and value the 

employment of RC members by providing outreach and informal mediation. Its nearly 3,800 volunteers 

operate in 54 State Committees located across all 50 states, the District of Columbia, Guam-CNMI, the 

U.S. Virgin Islands, and Puerto Rico. Headquarters (HQ) ESGR in Alexandria, Virginia, provides 

guidance and resources to the 54 ESGR State Committees that conduct employer and military outreach 

programs.

In FY 2017, ESGR volunteers engaged 81,695 employers and 209,927 service members, educating both 

groups on their responsibilities and rights under USERRA.

 

1 The U.S. Office of Special Counsel (OSC) is an independent Federal investigative and prosecutorial agency.

OSC’s primary mission is to safeguard the merit system by protecting Federal employees and applicants from prohibited 

personnel practices, including protections included in USERRA.
 4

Outreach Programs

ESGR conducts awareness and recognition programs aimed at employers of RC service members to 

engender positive support for National Guard and Reserve service. ESGR conducts proactive outreach 

directed at U.S. employers, employees, and communities that ensures understanding and appreciation of 

the role of the National Guard and Reserve. It assists in preventing, resolving, or reducing employer 

and/or employee conflicts and misunderstandings that result from RC service, training, or duty 

requirements through information services and educating National Guard and Reserve members as well 

as their employers regarding Uniformed Services Employment and Reemployment Rights Act 

(USERRA) rights. ESGR also communicates directly with military units to promote better 

understanding of the importance of maintaining positive working relations between employers and their 

RC employees in order to sustain military participation.

Outreach programs also include the voluntary participation by employers in the Statement of Support 

Program, who 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 

will 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.

Outreach programs also include the ESGR Awards Program, designed to recognize employers for 

employment policies and practices that are supportive of their employees’ participation in the National 

Guard and Reserve. Most employer awards originate from nominations submitted by service members, 

recognizing supervisors with the Patriot Award. ESGR administers the Secretary of Defense Employer 

Support Freedom Award, the U.S. Government’s highest honor bestowed on employers. This award is 

presented annually to a maximum of 15 select large, small, and public-sector employers who have 

demonstrated exceptional support to RC employees.

During FY 2017, ESGR recognized 10,281 supervisors of RC service members with the Patriot Award,

received 3,064 nominations for the 2017 Secretary of Defense Employer Support Freedom Award, and 

obtained 7,834 Statements of Support from employers across the Nation.

Ombudsman Services

ESGR assists National Guard and Reserve members with USERRA employment conflicts through its 

nationwide Ombudsman Services Program. The Ombudsman Services Program provides education, 

information, and neutral, informal third-party mediation services in order to resolve employee/employer 

USERRA conflicts. The program has over 500 volunteers nationwide that work to reduce, resolve, and 

help prevent employer and/or employee conflicts and misunderstandings. ESGR ombudsmen are 

specifically trained on the rights and responsibilities contained within USERRA, the use of neutral, 

informal mediation techniques to help resolve employment conflicts related to USERRA between 

employees and employers, and how to further an understanding of and compliance with USERRA. 

ESGR is not an enforcement agency and does not participate in formal litigation processes.
 5

In addition to the support provided by ESGR’s Ombudsman Services Program, the Defense Personnel 

Family Support Center’s Customer Service Center (CSC) assists Service members and employers by 

responding to USERRA-related inquiries and information requests from customers worldwide. The 

Ombudsman Services Program and the CSC work together closely to provide prompt, expert telephonic 

and email responses to service members and civilian employers and employees on all USERRA-related 

matters. During FY 2017, ESGR received 10,739 contacts by telephone and email; of which 1,801

contacts resulted in actual USERRA mediation cases. ESGR’s mediation efforts covered an array of 

USERRA issues that included 1,160 complaints involving some type of military discrimination; 597

complaints involving job reinstatement; and 44 complaints involving possible retaliation or reprisal.

There were 418 USERRA mediation cases in which ESGR was unable to facilitate an agreement 

between the employee and employer. In those instances, ESGR ombudsmen informed both parties that 

the employee had the right to file a case with DOL or seek assistance through a private attorney.

ESGR and DOL coordinate and track problems, coordinate efforts to resolve issues, and identify trends 

as part of their joint efforts to protect service members’ rights and promote positive working 

relationships between service members and their civilian employers.

DEPARTMENT OF LABOR’S USERRA OUTREACH AND CLAIMS 

INVESTIGATION

VETS PUBLIC EDUCATION AND COMPLIANCE ASSISTANCE EFFORTS

VETS conducts a robust public outreach campaign to educate service members, employers, and others 

on their rights and responsibilities under USERRA. Since the terrorist attacks of September 11, 2001, 

which resulted in the single greatest mobilization of reserve components, VETS has briefed more than 

one million individuals on USERRA. In FY 2017, VETS presented USERRA information to 7,000

individuals including service members, members of professional groups, and to members of the general 

public. To help facilitate these efforts, VETS maintains a USERRA page on its website at: 

www.dol.gov/vets, containing the USERRA elaws Advisor, frequently-asked-questions, and other useful 

information. Briefings to mobilizing and demobilizing members of the Guard and Reserve are given in 

collaboration with ESGR. Together, the two agencies strive to ensure that every service member 

receives a USERRA briefing upon mobilization and demobilization from active military service. In FY 

2017, VETS and OSC also collaborated to provide educational briefings to a number of Federal 

agencies. Also in FY 2017, VETS continued its customer satisfaction survey (CSS) to obtain feedback 

on its investigations from USERRA claimants and their employers. VETS will use the information 

gathered to improve and shape its USERRA program. 

VETS INVESTIGATIVE PROCESS

USERRA investigations are complaint-driven. An individual who believes that his or her USERRA 

rights have been violated may file a complaint with VETS online or submit a signed form in person or 

via mail or facsimile. Upon receipt of an electronically-filed or signed and completed hard-copy 

complaint form (the VETS 1010, available to the public online through VETS’ web page), VETS 

immediately opens a formal investigation. A brief notification of process rights, written in easy-tounderstand question-and-answer format, is sent to each claimant within five days of VETS’ receipt of a 

complaint.

The assigned investigator collects and reviews pertinent documentary evidence and interviews necessary 

witnesses, and may use an administrative subpoena to obtain the necessary evidence. To 

ensure investigations are of the highest quality and are conducted in a uniform and timely manner, 

VETS investigators are extensively trained in the legal aspects of USERRA, in investigative techniques,
 6

and in the agency’s operating procedures. If the evidence compiled in a USERRA investigation 

supports the allegations made, the agency will attempt to obtain satisfactory resolution through 

negotiation or mediation. VETS encourages all parties to resolve disputes promptly and avoid litigation. 

VETS has 90 days to complete its investigation, unless VETS obtains an extension of time from the 

claimant for VETS to continue the investigation and attempt to resolve the case. At any point during the 

investigative process, the claimant may elect to withdraw the complaint from VETS and pursue the 

claim with private counsel. 

CASE REFERRAL PROCESS

Upon completion of the investigation, if VETS does not resolve the case to the claimant’s satisfaction, 

VETS advises the claimant in a written closing letter of his or her right to have the case referred to either 

DOJ or to OSC, as appropriate, for consideration of legal representation at no cost to the claimant. If a 

claimant requests that his or her case be referred, VETS must refer the claim regardless of whether 

VETS has found merit in the complaint. VETS has 60 days to complete this referral process, unless 

VETS obtains an extension of time from the claimant.

DEPARTMENT OF JUSTICE ENFORCEMENT

DOJ and DOL work collaboratively to meet the goal of ensuring service members’ USERRA rights are 

protected. If DOL is unable to resolve a service member’s USERRA claim against a private, State, or 

local government employer, the service member may ask DOL to refer the service member’s claim to 

the Attorney General for review. Each DOL referral includes: (1) the VETS investigative file; and (2) a 

memorandum that analyzes the USERRA claim(s) and provides an assessment on whether or not the 

claim(s) has merit. 

Upon receipt of an unresolved USERRA claim from DOL, DOJ conducts an independent review of the 

complete DOL investigative file and analysis. If the Attorney General is reasonably satisfied that the 

service member is entitled to relief, the Attorney General may exercise DOJ’s prosecutorial authority 

and commence an action in Federal court on behalf of the service member. If the employer is a State or 

State agency, the action is brought in the name of the United States. In all other cases, the United States 

files suit in the name of the service member. DOJ also attempts to seek relief on the service member’s 

behalf and to settle the claim without commencing an action in court. If DOJ determines that it will not 

offer legal representation to a claimant, or seek relief on the service member’s behalf, it informs the 

service member of this decision and notifies him or her that he or she has the right to proceed with 

private counsel. In all cases, DOJ ensures that each USERRA referral receives careful consideration and 

is processed as expeditiously as practicable. 

In FY 2017, DOJ filed two complaints on behalf of service members and negotiated settlements in 

excess of $233,500. For example, on June 1, 2017, DOJ reached a settlement agreement with the Pierce 

County Transportation Benefit Area Corporation of Pierce County, Washington, resolving allegations 

that Pierce Transit violated the employment rights of Washington Army National Guard Member 

Lieutenant Colonel C. Van Sawin. LTC Sawin is a United States Military Academy graduate, who 

served as a reservist between 2005 and 2006 and deployed to Iraq in support of Operation Iraqi 

Freedom. Following military reserve duties in 2016, Pierce Transit declined to re-employ LTC Sawin, 

stating that, while he was on active duty (in March 2016), it had laid him off following a reorganization 

that eliminated his position. Under the terms of the settlement agreement, Pierce Transit paid LTC 

Sawin $105,000 to compensate him for lost and/or reduced wages and benefits, and other damages. 

Additionally, the settlement reduced the likelihood of future USERRA violations by requiring Pierce 
 7

Transit to adopt a USERRA policy, to provide training to its high-level officials and human resources 

staff on the USERRA rights and obligations of employers and covered employees, and to report 

allegations of violations of USERRA and certify its compliance therewith to DOJ for a period of two 

years.

DOJ also works closely with the Solicitor’s Office at DOL in training VETS’ investigators, discussing 

case trends, and collaborating on USERRA strategy. For example, the DOJ and the Solicitor’s Office at 

DOL have a scheduled monthly call where all case referrals and case resolutions are discussed.

In FY 2018, DOJ will continue to work with DOL to ensure that referrals are promptly and carefully 

processed and that each meritorious referral is resolved to the satisfaction of the service member and the 

government. While DOJ will continue to aggressively pursue litigation when warranted, it seeks to 

resolve meritorious referrals without contested litigation whenever possible, in order to achieve the best 

possible result for the service member. DOJ, on behalf of the United States, will also continue to seek 

out opportunities to participate as amicus curiae and file statements of interest on behalf of service

members as part of DOJ’s enforcement powers under the statute.

OFFICE OF SPECIAL COUNSEL ENFORCEMENT

OSC’s enforcement responsibilities apply to Federal-sector USERRA cases. Pursuant to an existing 

MOU between DOL and OSC, case referrals from DOL to OSC following a VETS investigation are 

addressed in a manner similar to that used in DOJ referrals discussed above. 

USERRA IN THE FEDERAL SECTOR

The Federal Government is committed to being a model employer under USERRA. OPM is responsible 

for administering USERRA policy for the Federal Government to ensure it meets that goal. 

During FY 2017, VETS and OSC professional staff conducted outreach to a number of Federal 

agencies, teaching and training agency staff on the law and best practices set forth in OPM’s guidance. 

VETS and OSC continue to collaborate in this effort, which has earned praise from agencies who 

received the training. These activities were conducted in furtherance of the idea that the Federal 

Government should be a model employer, particularly with respect to honoring its commitment to 

preserving and promoting service members’ and veterans’ employment rights. 

Moving forward into the coming fiscal years, VETS plans to continue these activities, and in an effort to 

broaden and strengthen partnerships with other Federal agencies in coordination with OSC, DOD, and 

OPM to work together to identify and share best practices to ensure that our nation’s veterans are well 

served. Through these partnerships, VETS can better respond to ideas and requests for assistance, 

promoting veteran employment, and find additional ways to implement employer-driven ideas and 

initiatives. 

MANDATED REPORTING REQUIREMENTS

SECTION 4332 OF USERRA, 38 U.S.C. § 4332, REQUIRES THE SECRETARY OF LABOR, AFTER 

CONSULTATION WITH THE ATTORNEY GENERAL AND THE SPECIAL COUNSEL, TO PREPARE AND TRANSMIT 

AN ANNUAL REPORT TO CONGRESS CONTAINING THE FOLLOWING INFORMATION FOR THE PRECEDING 

FISCAL YEAR:
 8

1. THE NUMBER OF CASES REVIEWED BY THE DEPARTMENT OF LABOR UNDER THIS CHAPTER 

DURING THE FISCAL YEAR FOR WHICH THE REPORT IS MADE.

DOL reviewed 944 new unique2cases in FY 2017 opened in conjunction with a signed or electronicallyfiled VETS 1010 complaint form. The table below provides the numbers of unique USERRA cases 

reviewed by the Department of Labor and OSC in FY 2012 – FY 2017. 

 

Figure 1. Unique USERRA Cases Reviewed by the Department of Labor and OSC3

 Fiscal Year FY 2012 FY 2013 FY 2014 FY 2015 FY 2016 FY 2017

Total New Cases 1,425 1,281 1,286 1,123 930 944

Total Cases 1,644 1,553 1,511 1,288 1,107 1,098

In FY 2017, DOL carried over an additional 140 unique cases (open investigations) from FY 2016. 

During FY 2017, DOL reopened 10 cases from FY 2016 and four from FY 2015 or earlier. In sum, 

DOL reviewed a total of 1,098 unique cases in FY 2017. 

2. THE NUMBER OF CASES REVIEWED BY ESGR, ON BEHALF OF THE SECRETARY OF 

DEFENSE, DURING THE FISCAL YEAR.

During FY 2017, ESGR received 10,739 contacts by telephone and email. Of those contacts, 1,801

resulted in actual USERRA cases which were reviewed by ESGR Ombudsmen. 

3. THE NUMBER OF CASES REFERRED TO THE ATTORNEY GENERAL OR THE SPECIAL 

COUNSEL PURSUANT TO SECTION 4323 OR 4324, RESPECTIVELY, DURING SUCH FISCAL 

YEAR AND THE NUMBER OF ACTIONS INITIATED BY THE OFFICE OF THE SPECIAL 

COUNSEL BEFORE THE MERIT SYSTEMS PROTECTION BOARD PURSUANT TO SECTION 

4324 DURING SUCH FISCAL YEAR.

In FY 2017, DOL referred 54 cases to the Attorney General and 17 cases to OSC. During the fiscal 

year, OSC did not initiate any actions before the MSPB. The nature and status of these referred cases is 

reflected in mandatory reporting requirement number seven of this report.

4. THE NUMBER OF COMPLAINTS FILED BY THE ATTORNEY GENERAL PURSUANT TO 

SECTION 4323 DURING SUCH FISCAL YEAR. 

DOJ filed two USERRA complaints in Federal court in FY 2017. Both of these cases were in active 

litigation in FY 2017.

 

2 This excludes duplicative cases such as cases that are filed multiple times by the same claimant with the same complaint or 

cases that have been previously investigated and have been reopened.

3

From FY 2011-FY 2014, OSC also reviewed unique cases under a demonstration project established by the Veterans 

Benefits Act of 2010. This table captures cases reviewed by OSC as well from FY 2012-2014. New unique cases reviewed 

by OSC totaled 150 in FY 2012; 137 in FY 2013; and, 146 in FY 2014. Unique case assignments to OSC under this 

demonstration project ended in FY 2014.
 9

5. THE NUMBER OF CASES REVIEWED BY THE SECRETARY OF LABOR AND ESGR

THAT INVOLVE THE SAME PERSON.

ESGR provided VETS with the names of 1,741 individuals who had filed the 1,801 cases reviewed by 

ESGR Ombudsmen in FY 2017, and the date of each case. VETS compared the ESGR data to its own 

data4 on cases initially opened between October 1, 2016 and October 31, 2017.

5

 This comparison 

resulted in 161 likely matches; thus, it appears that 9% of FY 2017 ESGR cases were subsequently 

opened as VETS cases.

6. WITH RESPECT TO THE CASES REPORTED ON PURSUANT TO PARAGRAPHS 1, 2, 3, 4,

AND 5—

A. THE NUMBER OF SUCH CASES THAT INVOLVE A DISABILITY-RELATED ISSUE.

i. Sixteen of the new unique cases first reviewed by VETS in FY 2017 (1.7%)

involved a disability-related issue.

ii. Twenty-four of the ESGR cases first reviewed in FY 2017 (1.3%) involved a 

disability-related issue.

iii. Of the cases referred by DOL for consideration of litigation in FY 2017, none of 

those referred to DOJ and none of those referred to OSC involved a disabilityrelated issue. 

iv. Of the two USERRA complaints filed by DOJ in FY 2017, none involved a 

disability-related issue. 

v. With respect to the 161 cases reviewed by DOL and ESGR involving the same 

person in FY 2017, three (1.9%) involved a disability-related issue.

B. THE NUMBER OF SUCH CASES THAT INVOLVE A PERSON WHO HAS A SERVICECONNECTED DISABILITY.

i. In FY 2017, VETS asked claimants whether they had a service-connected disability. Among 

the 944 new unique cases VETS received, VETS obtained responses from 926 claimants, 255

(28%) of whom reported having such a disability. Among these 255 claimants, 11 also 

claimed a USERRA-related disability issue. Among the remaining 671 claimants who 

responded but did not report having a service-connected disability, five claimed a USERRArelated disability issue. 

ii. No information is available on the number of cases handled by ESGR that involved a person 

with a service-connected disability.

iii. Of the cases referred to DOJ by DOL for consideration of litigation, 19 involved a claimant 

who reported a service-connected disability, and none included a USERRA-related disability 

issue. Eight of those referred to OSC by DOL involved a claimant who reported a serviceconnected disability, and none of the referred cases included a USERRA-related disability 

issue. 

iv. Of the two USERRA complaints filed by DOJ in FY 2017, none involved a serviceconnected disability. 

 

4 Absent more specific data on the employer(s) and specific allegation(s) involved, case matching cannot be made with 

complete confidence. 

5 October VETS data was included to capture the ESGR cases that were opened late FY 2017 and may have been filed with 

VETS in October 2017. 
 10

v. With respect to the 161 cases reviewed by VETS and ESGR involving the same person in FY 

2017, VETS obtained service-connected disability responses from 157 of these claimants, 29

(18%) of whom reported having such a disability. One claimant among the 29 who reported 

having a service-connected disability also claimed a USERRA-related disability issue. 

Among the remaining 128 claimants who responded but did not report having a serviceconnected disability, none claimed a USERRA-related disability issue. 

7. THE NATURE AND STATUS OF EACH CASE REPORTED PURSUANT TO PARAGRAPH 1,

2, 3, 4, OR 5.

i. CASES REVIEWED BY THE DEPARTMENT OF LABOR 

The following issues were raised in the new unique USERRA cases reviewed by DOL. Because many 

USERRA cases involve multiple issues, the number of cases in this chart exceeds the 944 new unique 

cases reported by VETS in FY 2017 and the combined percentages exceed 100%.

Figure 2. Cases Opened by VETS in 

FY 2017

USERRA ISSUE

VETS CASES 

ALLEGING ISSUE

NUMBER PERCENT

Military obligations discrimination 393 41.6%

Reinstatement 162 17.2%

Other non-seniority benefits 21 2.2%

Promotion 62 6.6%

Vacation 13 1.4%

Status 18 1.9%

Pay rate 29 3.1%

Reasonable accommodation/ retraining for nonqualified/non-disabled 3 0.3%

Discrimination as retaliation for any action 110 11.7%

Seniority 13 1.4%

Pension 33 3.5%

Initial hiring discrimination 61 6.5%

Layoff 38 4.0%

Special protected period discharge 7 0.7%

Health benefits 8 0.8%

Reasonable accommodations/retraining for disabled 16 1.7%

Other 39 4.1%
 11

DOL investigated and closed 926 cases in FY 2017 under the following closure codes (each code is 

explained in Figure 4): 

Figure 3. Investigated and subsequently 

closed by VETS in FY 20176

CLOSURE CODE

VETS CASES 

CLOSED

NUMBER PERCENT

No merit 344 37.1%

Referrals requested in FY 2017: 33

Administrative 59 6.4%

Claim granted 95 10.3%

Claim settled 75 8.1%

Referral requested in FY 2017: 1

Claim withdrawn 265 28.6%

Not eligible 44 4.8%

Referrals requested in FY 2017: 2

Merit, not resolved 43 4.6%

Referrals requested in FY 2017: 22

Merit undetermined 1 0.1%

Referral requested in FY 2017: 1

TOTAL: 926 100.0%

Total Referrals requested in FY 2017: 597

 

6 Beginning with the FY 2017 USERRA Annual Report, “VETS Cases Closed” count in Figure 3 no longer counts cases 

whose investigation had been previously closed in past fiscal years but were requested by the claimant to be referred to DOJ 

or OSC in FY 2017. Instead, the Figure 3 “VETS Cases Closed” count only includes cases that were investigated and closed 

in the fiscal year for which the report represents. 

7

In addition to the 59 cases requested for referral to DOJ or OSC in FY 2017 regarding FY 2017 cases closed, 13 other cases 

that were closed in past fiscal years were requested for referral to DOJ or OSC in FY 2017 – 10 for FY 2016 closures (2 

“Merit, Not Resolved”; 7 “No Merit”; and 1 “Not Eligible”), and 3 for FY 2015 closures (2 “Merit, Not Resolved”; and 1 “Not 

Eligible”). In total there were 72 referrals requested in FY 2017.
 12

ii. CASES REVIEWED BY THE ESGR ON BEHALF OF THE SECRETARY OF DEFENSE 

ESGR Ombudsman services covered an array of USERRA issues that included 1,160 complaints 

involving some type of military discrimination; 597 complaints involving job reinstatement; and 44

complaints involving possible retaliation or reprisal during FY 2017. 

ESGR resolved 1,383 of its 1,801 Ombudsman cases. There were 418 USERRA Ombudsman cases in 

which the employee and employer could not reach an agreement. In these instances ESGR Ombudsmen 

informed both parties that the employee had the option to file a case with DOL or seek assistance 

through a private attorney. 

The following crosswalk aligns the issues identified in ESGR case data with VETS data. It shows the 

number of cases for each separate issue. For three groupings of issues defined as “Primary 

Categories” – Discrimination; Reinstatement/Reemployment; and, Reprisal – the crosswalk also shows 

both the total cases, and the percentage of all cases, for each category. 

FIGURE 4. CASE CLOSURE CODES EXPLAINED

 ADMINISTRATIVE CLOSURE: A case should be closed administratively under any of the following 

circumstances: 

Lack of Interest – Administrative closure is appropriate when the claimant clearly displays lack of 

interest or is obviously uncooperative. Examples are failure to reply to multiple VETS’ letters, failure 

to give VETS a change of address, failure to supply information that could be easily obtained, and 

failure to attend scheduled meetings or conferences.

Continued Unauthorized Contact by Third Party with Employer – Although a claimant is 

entitled to be represented by a third party under USERRA while the case is investigated by VETS, if 

the representation interferes with the investigation, he or she will be informed that VETS can no 

longer continue its involvement in the case and that the case will be administratively closed. 

 CLAIM GRANTED: When the employer grants all of the claimant’s entitlements. 

 CLAIM SETTLED: When the claimant and the employer agree to settle the case potentially for less 

than the claimant's full entitlements under USERRA. 

 WITHDRAWN CLAIM: When the claimant informs VETS in writing of his/her desire to withdraw 

the claim. 

 NOT ELIGIBLE: If a case has already been opened, and VETS finds that the claimant does not meet 

the eligibility requirements in the statute, the case should be discussed with the claimant and, with 

his/her concurrence, closed on the basis of no eligibility. 

 NO MERIT: The claimant is not entitled to relief for reasons other than failure to meet eligibility 

requirements. 

 CASES REFERRED: Unsettled cases are closed only when they are referred to the Regional 

Solicitor's Office for appropriate referral action. 

 MERIT, NOT RESOLVED: When the completed investigation finds merit to the complaint, but 

VETS is unable to obtain a satisfactory resolution.

 MERIT UNDETERMINED: When the investigation is not complete but the statutory deadline for 

case completion (or an extension previously agreed to by the claimant) is reached and the claimant 

does not agree to a further extension.
 13

Figure 5.
 14

iii. CASES REFERRED TO THE DEPARTMENT OF JUSTICE OR THE OFFICE OF SPECIAL COUNSEL 

In FY 2017, VETS/DOL received a total of 72 requests for referral to DOJ and OSC, and referred 71 

cases to DOJ and OSC.8

CASES REFERRED TO THE DEPARTMENT OF JUSTICE

In FY 2017, the Civil Rights Division received a total of 54 referrals from DOL, of which 41 were from 

cases investigated by DOL in 2017 and 13 were from cases investigated by DOL prior to 2017. 

Seventeen of the 54 had been previously assessed by the DOL as having merit, and 37 had been assessed 

as not having merit. 

Of the 17 cases that had been assessed as having merit by DOL, DOJ offered representation in eight

cases, and declined representation in four cases (one of which resulted in a DOJ facilitated settlement). 

Two referrals involved State agencies as potential defendants, one of which DOJ declined to pursue 

litigation in agreement with DOL, and one of which resulted in a DOJ facilitated settlement. The 

remaining three referrals assessed as having merit were still under consideration by DOJ in FY 2017.

Of the 37 cases that had been assessed as having no-merit by DOL, based on DOL’s assessment and 

DOJ’s independent analysis of the merits of each referral, DOJ declined representation with respect to 

27 referrals and offered representation in one referral. Four non-merit referrals involved state agencies;

DOJ declined to pursue litigation in these four cases. The remaining five referrals were still under 

consideration by DOJ in FY 2017.

The cases referred to the Civil Rights Division in FY 2017 involved a number of USERRA issues. 

Approximately 26% (14) of these cases involved allegations of termination and/or discharge, 

approximately 28% (15) of these cases involved reemployment allegations, while approximately 6% (3)

of these cases involved allegations of loss or denial of benefits, such as loss of pay, assignment, 

reduction or loss of pension or health benefits, and loss of seniority. The remaining cases involved 

various allegations of discrimination, with approximately 4% (2) involving allegations of failure to 

promote, approximately 4% (2) involving allegations of failure to hire, and approximately 52% (28) 

involving allegations regarding actions affecting the service member’s terms and conditions of 

employment, such as hostile work environment, discipline or harassment. The remaining 6% (3) of 

these cases involved allegations of retaliation for asserting USERRA protection.

9

CASES REFERRED TO THE OFFICE OF THE SPECIAL COUNSEL

In FY 2017, OSC received a total of 17 referrals from DOL, of which 13 were from cases investigated 

by DOL in 2017 and four were from cases investigated by DOL prior to 2017. Additionally, five cases 

referred to OSC during previous fiscal years remained pending at the beginning of FY 2017. Thus, 22

total cases were pending at OSC during the fiscal year. OSC closed 19 of the 22 cases during FY 2017

(approximately 80% within the 60-day time limit), while three cases remained pending at the end of the 

fiscal year. OSC did not file any actions with the MSPB during the fiscal year.

 

8 Not all of the cases referred to DOJ and OSC in FY 2017 were pursuant to referral requests made in FY 2017 due to the 

timing of the fiscal year. Seventeen cases requested to be referred in FY 2016 were sent to DOJ and OSC in FY 2017. In 

addition, 17 cases requested to be referred in FY 2017 were not yet sent to DOJ and OSC at the close of FY 2017. 

Furthermore, one referral request to DOJ received by VETS in FY 2017 was withdrawn by the claimant, and thus was not 

delivered to DOJ.

9

Several cases involved multiple issues. Each issue was counted separately.
 15

The cases referred to OSC in FY 2017 involved a number of USERRA issues. Approximately 59% (13)

of the 22 cases involved allegations of discrimination based on uniformed service, including 

termination, non-promotion, non-selection, or improper denial of employment benefits; 45% (10)

involved allegations of violations of reemployment rights; and 9% (2) involved allegations of retaliation 

for exercising USERRA rights.

10

iv. COMPLAINTS FILED BY THE ATTORNEY GENERAL

DOJ filed two USERRA complaints in Federal court in FY 2017. Both of these cases were in active 

litigation in FY 2017. On July 25, 2017, DOJ filed a complaint against Farmacia Lugo, Inc., a business 

based in Puerto Rico, alleging that it violated the employment rights of U.S. Army Reservist Anna J. 

Santiago under USERRA. The complaint alleges that Santiago’s military service was a motivating 

factor in Farmacia Lugo’s decision to terminate her employment. Settlement negotiations are currently 

underway. On August 17, 2017, DOJ filed a complaint alleging that the City of Glendale, Arizona, 

violated the employment rights of Arizona Air National Guard member Captain Rebecca Cruz by 

terminating her employment shortly after receiving her orders for deployment. Captain Cruz has served 

the United States honorably as a member of the Arizona Air National Guard since 2007. According to 

the complaint, filed in the United States District Court for the District of Arizona, the City of Glendale 

hired Captain Cruz as a Management Analyst in its Public Works Department, knowing at that time that 

she also served as a member of the Guard. Approximately two months after she was hired, the Guard 

notified Cruz that she would need to attend military training for a new Air National Guard job 

classification to which she was being assigned. Cruz provided her military orders conveying that 

schedule to the City of Glendale, and six days later she was fired. The case is currently in discovery.

v. CASES REVIEWED BY DOL AND ESGR INVOLVING THE SAME PERSON

DOL’s response to Mandated Reporting Requirement #5, setting forth the number of cases reviewed by 

DOL and DOD through ESGR that involve the same person, indicates that in comparing ESGR data on 

USERRA cases during the fiscal year, 161 likely matches were identified. This figure indicates that first 

ESGR, and subsequently DOL, handled the same individuals’ claims. 

DOL closed all 161 of these likely matches by May 17, 2018, under the following closure codes: no 

merit, 62 (39%); administrative, 5 (3%); claim granted, 26 (16%); claim settled, 19 (12%); claim 

withdrawn, 32 (20%); not eligible, 5 (3%); referred, 0 (0%); merit, not resolved, 12 (7%); merit 

undetermined, 0 (0%). An explanation of VETS case closure codes appears in the explanation of the 

status of cases reviewed by DOL.

The following chart shows how the alleged issues in these 161 likely match cases were distributed 

among the various VETS’ closure codes.

 

10 Some cases involved multiple issues. Each issue was counted separately.
 16

Figure 6.
 17

8. WITH RESPECT TO THE CASES REPORTED ON PURSUANT TO PARAGRAPHS 1, 2, 3, 4,

AND 5, THE NUMBER OF SUCH CASES THAT INVOLVE PERSONS WITH DIFFERENT 

OCCUPATIONS OR PERSONS SEEKING DIFFERENT OCCUPATIONS, AS DESIGNATED BY 

THE STANDARD OCCUPATIONAL CLASSIFICATION SYSTEM.

VETS is the only Federal agency that collected occupational data on USERRA claimants and recorded 

the respective Standard Occupational Classification System (SOCS) code in FY 2017. Therefore, SOCS 

code data is not available for ESGR mediation cases. The chart below shows the full distribution of the 

SOCS codes in FY 2017 USERRA cases, across four different categories: VETS cases; cases common 

to VETS and ESGR; referrals to DOJ; and referrals to OSC. The predominant occupations found among 

each of these four categories of cases can be summarized as follows: 

 Out of 923 (98%)

11 of the unique complaints filed in FY 2017, 20% of complaints involved 

Protective Service occupations; 12% involved Management occupations; and 11% involved 

Office and Administrative Support occupations.

 Out of 159 (99%)12 of the cases reviewed by VETS and ESGR likely involving the same person 

in FY 2017, 19% of those cases involved Protective Service occupations; 13% involved 

Management occupations; and each of two categories (Office and Administrative Support, and 

Transportation and Material Moving) involved 9% of complaints.

 Out of the 54 cases referred to the Attorney General from DOL in FY 2017, 17% of those cases 

involved Healthcare Practitioners and Technical occupations; 15% involved Protective Service

occupations; and 13% involved Management occupations.

 Out of the 17 cases referred to OSC from DOL through VETS in FY 2017, 29% of complaints 

involved Protective Service occupations, and each of two categories (Management, and Office 

and Administrative Support) involved 24% of complaints.

 

11 Total is less than 100% because the SOCS code was not recorded for some cases.

12 Total is less than 100% because the SOCS code was not recorded for some cases.
 18

Figure 7. Occupations Involved in FY 2017 USERRA CASES13

As designated by the Standard Occupational Classification System (SOCS)

SOCS Job Family

Percentage of Cases 

involving SOCS Code

VETS Cases Referrals to Common

to VETS 

DOJ OSC & ESGR

Protective Service 20% 15% 29% 19%

Management 12% 13% 24% 13%

Office and Administrative Support 11% 7% 24% 9%

Transportation and Material Moving 7% 9% 0% 9%

Business and Financial Operations 7% 6% 0% 5%

Healthcare Practitioners and Technical 6% 17% 6% 8%

Installation, Maintenance, and Repair 6% 4% 12% 9%

Construction and Extraction 4% 7% 0% 3%

Computer and Mathematical 4% 6% 0% 4%

Sales and Related 4% 6% 0% 1%

9. AN INDICATION OF WHETHER THERE ARE ANY APPARENT PATTERNS OF VIOLATION OF 

THE PROVISIONS OF THIS CHAPTER, TOGETHER WITH AN EXPLANATION THEREOF.

No patterns of violations of USERRA became apparent in FY 2017. DOL will continue to monitor 

USERRA cases to identify trends as they arise.

 

13 The following occupations accounted for 2% or fewer within each case/referral category shown in this chart (with 

exceptions as noted here): Healthcare Support (Exception: 6% of Referrals to OSC); Architecture and Engineering

(Exceptions: 5% of Cases Common to VETS & ESGR, and 3% of VETS Cases); Education, Training, and Library (Exception: 

4% of Referrals to DOJ); Production (Exceptions: 4% of Referrals to DOJ, and 3% of VETS Cases); Community and Social 

Services (Exception: 3% of Cases Common to VETS & ESGR); Arts, Design, Entertainment, Sports, and Media; Building and 

Grounds Cleaning and Maintenance; Farming, Fishing, and Forestry; Food Preparation and Serving Related; Legal; Life, 

Physical, and Social Science; Military Specific; and, Personal Care and Service occupations.
 19

10. RECOMMENDATION FOR ADMINISTRATIVE OR LEGISLATIVE ACTION THAT THE 

SECRETARY, THE ATTORNEY GENERAL, OR THE SPECIAL COUNSEL CONSIDERS 

NECESSARY FOR THE EFFECTIVE IMPLEMENTATION OF THIS CHAPTER, INCLUDING ANY 

ACTION THAT COULD BE TAKEN TO ENCOURAGE MEDIATION, BEFORE CLAIMS ARE 

FILED UNDER THIS CHAPTER, BETWEEN EMPLOYERS AND PERSONS SEEKING 

EMPLOYMENT OR REEMPLOYMENT.

Recommendation from DOL: None at this time.

Recommendation from DOJ: DOJ has sent to Congress proposed legislation that would strengthen 

protections for service members under USERRA and increase DOJ’s enforcement authority. Among 

other things, this legislation would give DOJ authority to initiate pattern or practice litigation to address 

systemic violations of service members’ rights, rather than having to wait to receive a referral from 

DOL. The legislation would also add jurisdiction in state courts for service members seeking to enforce 

their USERRA rights through private litigation. DOL concurs with these legislative proposals. 
USERRA annual reports are available for fiscal years (FY) 1995-1999 and 2004-2016. No reports are available 

for FY 2000-2003 because the reporting requirement expired in FY 2000. It was reinstated by Section 202 of the 

Veterans Benefits Improvement Act of 2004, P.L. 108-454, 118 Stat. 2598 (December 2004).
OFFICE OF VETERANS’ EMPLOYMENT AND TRAINING 

U.S. DEPARTMENT OF LABOR | 200 CONSTITUTION AVENUE, NW | WASHINGTON, DC