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. 
TABLE OF CONTENTS 

INTRODUCTION 

OVERVIEW OF USERRA PROTECTIONS 

USERRA SERVICES PROVIDED BY THE DEPARTMENT OF DEFENSE'S 

EMPLOYER SUPPORT FOR THE GUARD AND RESERVE (ESGR) 

OVERVIEW 

ESGR OUTREACH 

ESGR OMBUDSMEN SERVICES 

DEPARTMENT OF LABOR (DOL) USERRA OUTREACH AND CLAIMS INVESTIGATION 

VETERANS' EMPLOYMENT AND TRAINING SERVICE (VETS) 

PUBLIC EDUCATION AND COMPLIANCE ASSISTANCE EFFORTS 

VETS INVESTIGATIVE PROCESS 

DOL REFERRAL PROCESS 

DEPARTMENT OF JUSTICE (DOJ) ENFORCEMENT 

OFFICE OF SPECIAL COUNSEL (OSC) ENFORCEMENT 

DOL's FY 20 10 PROGRAM ACTIVITIES AND ACHIEVEMENTS 

MANDATED REPORTING REQUIREMENTS 

2 

2 

2 

3 

4 

4 

4 

5 

5 

6 

6 

7 
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 obligations as a member of the uniformed services; or intent to join the uniformed 

services. An employer is 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 who has testified or otherwise assisted 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 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. 

This Fiscal Year 2010 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 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 of the Department of Defense 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 before the Merit Systems Protection Board 

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 the National Committee for Employer Support of the Guard and Reserve of the 

Department of Defense that involve the same person. 

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; and 

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

disability. 

7. The nature and status of each case reported pursuant to paragraph 1, 2, 3, 4, or 5. 
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. 

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. 

11 
Overview of USERRA Protections 

USERRA generally requires U.S. employers, regardless of size or location of operation (United 

States, its territories, or any foreign country) 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) ofthe Service Members. Employers 

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

Medical System, or 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. 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. 

The Department of Labor and the Department of Defense share responsibility for promoting a 

clear understanding ofUSERRA among employers and individuals concerning their respective 

rights and responsibilities under USERRA. The Department of Labor's Veterans' Employment 

and Training Service (VETS) and the Department of Defense's Employer Support of the Guard 

and Reserve (ESGR) provide extensive public education, outreach, and compliance assistance 

with the goal of preventing violations caused by ignorance or misunderstanding of the law, and 

ensuring that protected individuals understand their rights and know what assistance is available 

to them to secure those rights. 

There are three levels of federal assistance available to individuals who believe their USERRA 

rights may have been violated. ESGR Ombudsmen services are the most informal level at which 

resolution can be sought. If the issue cannot be resolved by the ESGR Ombudsman, or if the 

individual prefers to bypass informal resolution, VETS receives, formally investigates and 

attempts to resolve complaints filed by aggrieved parties. If, following VETS' investigation and 

attempts at resolution, the claimant is not fully satisfied with the outcome, VETS informs the 

individual of his or her right to have the case referred for consideration of legal representation at 

no cost to the claimant. Referrals are made to the Department of Justice in cases involving a 

private or state or local government employer, or to the Office of Special Counsel in cases 

involving a federal employer. Claimants also have the right at any time to withdraw their case to 

pursue enforcement at their own expense, either on their own or with the assistance of a private 

attorney. 

This report begins by describing the levels of federa l assistance available, beginning with 

outreach and education and continuing through informal dispute resolution, formal investigation 

and resolution, referral, and finally, consideration of and provision of legal representation, as 

appropriate. A section highlighting significant program activities and achievements for the fiscal 

year follows. Finally, the report responds to each of the statutorily-mandated reporting 

requirements described in the introduction to this report. 

1 
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 ofDefense Agency whose 

mission is to develop and promote employer support for Guard and Reserve service by 

advocating relevant initiatives, recognizing outstanding support, increasing awareness of the law, 

and resolving conflict between employers and Service Members. As such, ESGR is the principal 

advocate within DOD dedicated to providing its customers and stakeholders with information 

about USERRA. 

ESGR has conducted outreach to Reserve Component (RC) service members and their employers 

since its inception in 1972. Hundreds of thousands of RC members and employers have benefited 

from ESGR products and services. With Guard and Reserve forces making up nearly 50 percent 

of our military strength and ongoing global operations, civilian employers' support is critical to 

our national defense now more than ever. 

ESGR has national and local organizational structure to support the following functions: 

• Operate a proactive program directed at U.S. employers, employees, and communities 

that ensures understanding and appreciation of the role of the Guard and Reserve in the 

context of the DoD Total Force Policy. 

• Assist in preventing, resolving, or reducing employer and/or employee problems and 

misunderstandings that result from Guard or Reserve service, training, or duty 

requirements through information services and mediation. 

• Assist in educating Guard and Reserve members regarding their obligations and 

responsibilities to employers. 

Use the military chain of command to promote better understanding of the importance of 

maintaining positive working relations between employers and their RC employees, in 

order to sustain Guard and Reserve participation. 

Today, more than 4,700 volunteers serve across the nation in all 50 states, U.S. territories and the 

District of Columbia. With help and resources from the Headquarters ESGR in Arlington, 

Virginia, the 54 ESGR State Committees conduct employer and military outreach programs, as 

well as Ombudsmen services to further the understanding of and compliance with USERRA 

regulations. ESGR conducts proactive outreach programs and provides responsive Ombudsmen 

services in support of its mission. 

Outreach Programs 

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

engender positive support for Guard and Reserve service. These programs include the voluntary 

participation by employers in the Statement of Support Program and recognition of employers 

who go "above and beyond" the requirements of USERRA. 

2 
Employers who sign a Statement of Support are those who pledge: 

1. They fully recognize, honor and enforce the Uniformed Services Employment and 

Reemployment Rights Act. 

2. Their managers and supervisors will have the tools they need to effectively manage those 

employees who serve in the Guard and Reserve. 

3. They will continually recognize and support our country's Service Members and their 

families in peace, in crisis, and in war. 

The ESGR awards program is designed to recognize employers for employment policies and 

practices that are supportive of their employees' participation in the Guard and Reserve. 

ESGR has a robust employer recognition program. It is a sequential tiered program starting with 

the Patriot Award that originates from nominations by individual service members recognizing 

individual supervisors. The most prestigious award culminates with national recognition of the 

most outstanding employers through the annual Secretary of Defense Employer Support 

Freedom Award in which up to 15 employers are recognized annually in three categories Public, 

Private Large, and Private Small. 

During FY 2010, ESGR recognized 22,236 supervisors ofRC service members with the Patriot 

Award. During the same time period, 58,8 17 employers signed Statements of Support, and 

Headquarters ESGR received 2,470 nominations for the 20 10 Secretary ofDefense Employer 

Support Freedom Award. 

Ombudsman Services 

The primary means of assisting Guard and Reserve members with USERRA conflicts is through 

a nationwide Ombudsman Services Program that reduces, resolves and he lp prevents employer 

and/or employee misunderstandings and problems. The Ombudsman Services Program provides 

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

USERRA conflicts. ESGR is not an enforcement agency, and does not participate in formal 

litigation processes. 

ESGR signed an updated Memorandum ofUnderstanding (MOU) in 2010 with the Department 

of Labor (DOL) that continued organizational cooperation and established calendar day time 

limits to resolve USERRA cases, improving and expediting information sharing between the two 

agencies. DOL has working relationships with the Department of Justice (DOJ) and the Office of 

Special Counsel (OSC) overseeing the enforcement ofUSERRA violations. These inter-agency 

relationships have considerably improved services provided to all customers regarding USERRA 

compliance. The MOU between ESGR and DOL stipulates that when a case cannot be resolved 

by ESGR within 14 and 30 calendar days, ESGR will close the case and notify the parties that 

the Service Member may file a case with DOL or retain private counsel. 

ESGR has a national network of more than 650 volunteer ombudsmen to help resolve USERRA 

compliance issues. ESGR's volunteers receive training on USERRA and dispute resolution 

techniques, and serve as a neutral third-party between the employer and employee to inform and 

educate all involved parties on the requirements of the law and to assist in finding a mutually 

3 
agreeable solution. 

The ESGR Ombudsman Services Program is available to RC members and their employers to 

address USERRA conflicts without litigation. RC members may also file complaints directly 

with DOL, which has Congressional authority to investigate USERRA violations and legal 

authority to subpoena records during an investigation. 

ESGR operates and maintains a Customer Service Center (CSC) that acts as the initial entry 

point for USERRA complaints, inquiries and information requests. The CSC provides expedient, 

expert, telephonic and email responses to Service Members and employers on all USERRA 

related matters. During FY 2010, ESGR received 34,612 contacts by telephone, email and 

facsimile. Of those contacts 3,202 resulted in actual USERRA cases for mediation purposes. 

These mediation efforts covered an array of USERRA issues that included 1,282 complaints 

involving job reinstatement and reemployment problems; 1,905 complaints involved some type 

of military discrimination; and 15 cases involving possible retaliation or reprisal. There were 

499 complex USERRA matters in which the employee and employer could not reach an 

agreement. In these instances, ESGR ombudsmen informed both parties that the employee 

(service member) had the option to file a case with DOL or seek assistance through a private 

attorney. 

ESGR and DOLNETS will continue to track problems, coordinate issues, and identify trends in 

future fiscal years, as a key part of both agencies' efforts to improve services to the Guard and 

Reserve. 

DOL'S USERRA OUTREACH AND CLAIMS INVESTIGATION 

VETS PUBLIC EDUCATION AND COMPLIANCE ASSISTANCE EFFORTS 

VETS conducts an aggressive 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, VETS has briefed more than 727,000 individuals on USERRA. 

In FY 2010 alone, VETS presented USERRA information to more than 93,000 people. Briefings 

to mobilizing and demobilizing members of the Guard and Reserves are given in collaboration 

with ESGR. Together, the two agencies strive to ensure that every RC member receives a 

USERRA briefing upon mobilization and demobilization from active military service. 

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 by submitting a 

signed form in person or via mail or facsimile. Some complaints originate with ESGR and are 

subsequently filed with VETS. Upon receipt of an electronically-filed or signed completed 

complaint form (the VETS 101 0), VETS immediately opens a formal investigation. A brief 

notification of process rights, written in easy-to-understand question-and-answer format, is sent 

to each claimant within five days ofVETS' receipt of a claim. 

The assigned investigator collects and reviews pertinent documentary evidence and interviews 

4 
necessary witnesses, under authority of subpoena if necessary. 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 ofUSERRA and in the agency's rigorous 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 if possible. 

VETS has 90 days to complete its investigation, unless the claimant agrees to an extension of 

time 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 and pursue 

enforcement through private counsel. A claimant whose case is being investigated by VETS 

may be concurrently represented by a third party, but VETS will continue its efforts only as long 

as the third party does not interfere with the investigation. 

DOL 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 the DOJ or to the OSC, as appropriate. VETS must refer a claim if the 

claimant so requests, regardless of whether VETS has found merit in the complaint. DOL has 60 

days to complete this referral process, unless the claimant agrees to an extension of time. 

DEPARTMENT OF JUSTICE ENFORCEMENT 

If VETS cannot resolve a service member's case, the service member may ask VETS to refer the 

service member's USERRA claim to the Attorney General for review. 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. 

On September 28, 2004, the Attorney General and the Secretary of Labor signed a MOU 

outlining each agency's respective role in handling claims arising under USERRA. The MOU 

confirmed DOl's and DOL's longstanding commitment to ensuring that Service Members' 

USERRA rights are protected. The MOU modified the procedures regarding the conduct of 

USERRA investigations and referrals, expediting the processing of many USERRA referrals and 

the prompt resolution of claims. 

In the MOU, the Attorney General reassigned responsibility for handling USERRA referrals 

from the Civil Division to the Civil Rights Division. DOJ, VETS and the DOL's Office of the 

Solicitor work collaboratively to meet the MOU's goals, and continue to refine the integrated 

case management system that was put in place in the last fiscal year. This case management 

5 
system has increased communication between the agencies and allows for more accurate and 

uniform case tracking by both DOJ and DOL. 

If DOL does not resolve a claim against a State or private employer, upon the claimant's request 

VETS and the DOL Office of the Solicitor (SOL) will refer the claim to the Attorney General. 

Each referral includes: (1) the VETS investigative file; (2) a memorandum analyzing the case 

and providing a recommendation, based upon the facts and the law, as to whether representation 

should be provided or declined; and (3) an SOL legal analysis and recommendation regarding the 

merit of the claim. 

Upon receipt of an unresolved USERRA claim from DOL, DOJ reviews the complete DOL 

investigative file and analysis and decides whether to provide representation to the service 

member, or, if the employer is a State, to seek relief on the service member's behalf. lfDOJ 

determines that it will not offer representation, or seek relief on the service member's behalf, it 

will inform the service member of this decision and notify 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 20 11 , 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 

practicable. 

OFFICE OF SPECIAL COUNSEL ENFORCEMENT 

OSC's enforcement responsibilities apply in federal sector USERRA cases. Pursuant to an 

existing MOU between DOL and OSC, case referrals from DOL to OSC are addressed in a 

manner very similar to that employed in DOJ referrals discussed above. 

DOL'S FY 2010 PROGRAM ACTIVITIES AND ACHIEVEMENTS 

On October 10,2008, the Veterans' Benefits Improvement Act of2008 (VBIA 2008) P.L. 110-

389, was signed into law. The law's amendments to USERRA established new statutory 

timeframes for VETS investigations, DOL referrals, and DOJ and OSC decisions regarding the 

provision of legal representation. Other VBIA 2008 provisions require a notification of rights to 

be provided to claimants within five days of VETS receiving their USERRA complaint, and 

quarterly reports by DOL, DOJ, and OSC on the agencies' success in meeting their respective 

statutory timeframes. In addition, the mandatory reporting elements of this report were 

expanded to include, among other things, reporting on the different occupations involved in 

USERRA claims. 

VETS successfully implemented the new requirements of the VBIA 2008 for all claims filed on 

6 
or after October 10, 2008. New procedures were established to ensure that within five days of 

VETS' receipt of a complaint, every claimant received a clear and comprehensive notification of 

rights. New data collection protocols were also implemented to identify the Standard 

Occupational Code (SOC) for the occupation involved in the USERRA claim, and to learn 

whether the claimants self-identified as having a service-connected disability. 

Investigators received instructions on how to finalize investigations within 90 days, and were 

trained to identify investigations that might exceed 90 days. If an investigation is likely to 

exceed 90 days, or the limit of a previous extension, investigators must contact the claimant 

regarding the status of the investigation and request consent to an extension of time. Two new 

closing codes were established for cases in which the statutory deadline was reached (or a 

subsequent extension expired). One of those new closing codes, "Merit, Not Resolved," is used 

when VETS believes that the evidence substantiates part or all of a claimant's USERRA 

allegations, but a resolution acceptable to both claimant and employer cannot be reached. The 

other new closing code, "Merit Undetermined," is to be used in cases in which the investigation 

is not completed before a deadline, and the claimant does not consent to an extension of time. 

Finally, VETS and SOL collaborated on procedures to ensure that the DOL referral process is 

completed within 60 days, unless the claimant agrees to an extension of time. Data fields were 

added to VETS' USERRA Information Management System to catalog and report on new 

information necessitated by the VBIA 08. 

In conjunction with annual training conferences in each of its six regions, VETS conducted 

regional audits of USERRA case files in each region. These audits, which were tested in FY 

2008 and fully implemented in FY 2009 and 2010, were conducted by internal auditors from 

outside the audited regions. Randomly selected USERRA case files from each investigator were 

reviewed and the audit team's findings were discussed with the investigator. The regions were 

then briefed on the findings of the audit, and provided recommendations for improvement. Audit 

findings are used to target future USERRA training objectives and to gauge regional and national 

program enhancements. 

Another important activity in FY 2010 was implementation of a quality assurance review of 

closed cases. A 2009 Lean 6-Sigma study ofVETS' USERRA process, cosponsored by VETS 

and DOL's Center for Program Planning and Results, examined VETS' investigative process and 

recommended several program improvement strategies to increase efficiency and effectiveness. 

One of the recommendations was for VETS to implement a Quality Assurance Review (QAR) of 

closed USERRA cases. The QAR helps ensure that all substantive issues raised have been 

properly identified and addressed, that the evidence obtained is sufficient to support the 

conclusions reached, and that all necessary procedures have been followed, and due process 

requirements have been met. 

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 

7 
PRECED£NG FISCAL YEAR: 

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

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

The Department of Labor reviewed 1,438 new unique cases in FY 2010. 1 Reviewed cases are 

those cases opened in conjunction with a signed or electronically-filed VETS 1010 complaint 

form. The table below provides the numbers of new unique USERRA cases handled by the 

Federal government in FY 2005 - FY 20 10. 

Fiscal Year I FY 2005 I FY 2006 I FY 2007 I FY 2008 I FY 2009 I FY 2010 I 

New VETS Cases I 1,14o 1 1,265 1 1,226 1 1,389 1 t,431 1 1,438 1 

OSC Cases 

1 

112 1 169 1 139 1 37 1 n/a* I n/a* I 

(Federal only) 

Total New Cases I 1,252 1 1,434 1 1,365 1 1,426 1 1,431 1 t,438 1 

In FY 2010, the Department of Labor also carried over an additional 244 unique cases (open 

Investigations) from FY 2009. During FY 2010, the Department reopened 17 cases from FY 

2009 and two from FY 2008 and earlier. In sum, DOL reviewed a total of 1, 701 unique cases in 

FY 2010. 

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

OF D EFENSE, DURING THE FISCAL YEAR. 

During FY 2010, ESGR received 34,6 12 contacts by telephone, email and facsimile. Of those 

contacts 3,202 resulted in actual USERRA cases for which ESGR Ombudsmen services were 

prov ided. 

3. THE NUMBER OF CASES REFERRED TO THE ATTORNEY G ENERAL 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 20 l 0, the Attorney General's DOJ Civil Rights Division received 117 case referrals from 

DOL through VETS and SOL. 

1 In this report, the count of"unique" cases eliminates duplications that result from a claimant filing the same 

complaint more than once, from a case being closed in one state and reopened in another for administrative 

purposes, and from a claimant reopening a claim that was previously closed. 

* OSC did not review new unique cases in FY 2009 and FY 20 I 0 because the assignment of such cases to OSC 

under a demonstration project established by the Veterans Benefits Improvement Act of2004 ended in FY 2008. 

8 
During Fiscal Year 2010, DOL referred 32 cases to OSC at the request of the service member. 

Additionally, seven cases referred to OSC during the previous fiscal year remained pending at 

the beginning of Fiscal Year 2010. Thus, 39 total cases were pending at OSC during the fiscal 

year 

The nature and status of these referred cases is reflected in mandatory reporting requirement 

number seven of this report. 

During the fiscal year, OSC provided legal representation to four Service Members and 

informally resolved another service member's complaint (who OSC did not formally represent). 

Before the MSPB, OSC settled one previously filed matter and filed and litigated one new 

matter, which remained pending at the end of the fiscal year. 

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

TO SECTION 4323 DURING SUCH FISCAL YEAR. 

The Department of Justice filed 5 USERRA complaints in FY 2010. Four of these cases have 

now settled and the remaining case is in active litigation. 

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 3, 172 individuals who had cases reviewed by ESGR 

Ombudsmen in FY 2010 and the date of each case. VETS compared the ESGR data to its own 

data2 on cases opened from October 1, 2009 through October 31, 20103

. This comparison 

resulted in 344 likely matches; thus it appears that 11 percent of FY 2010 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. 

1. Thirty-five of the new unique cases, or two percent, of those reviewed by 

DOL in FY 20 10, involved a disability-related issue. 

11. Of the 3,202 cases reviewed by ESGR, 23 (less than one percent) 

involved a disability-related issue. 

iii. Ofthe cases referred for consideration of litigation, two of those referred 

to DOJ and one of those referred to OSC involved a disability-related 

issue. Neither of the two cases filed by OSC before the MSPB (one 

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

with complete confidence. · 3 October data was included to capture late FY 20 I 0 ESGR cases that were filed with VETS early in FY 20 II. 

9 
previously filed and one newly filed) involved a disability-related issue. 

tv. Of the five cases filed by DOJ in FY 2010, none involved a disabilityrelated issue. 

v. With respect to the 344 cases reviewed by DOL and ESGR involving the 

same person in FY 2010, seven (two percent) involved a disability-related 

lSSUe. 

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

SERVICE-CONNECTED DISABILITY.4 

1. In FY 2010, VETS asked claimants whether they had a service-connected disability. 

VETS obtained responses from 1,407 claimants, 17 percent (242) of whom reported 

having a service-connected disability. 

11. 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 for consideration of litigation, 17 of those referred to DOJ and 

12 of those referred to OSC involved a claimant who reported a service-connected 

disability. 

iv. No information is available on the number of cases among the five cases filed by DOJ 

in FY 2010 that involved a person with a service-connected disability. 

v. With respect to the 344 cases reviewed by VETS and ESGR involving the same 

person in FY 2010, VETS obtained responses from all these claimants, 12 percent 

(41) of whom reported having a service-connected disability. 

4 VETS did not collect data regarding claimants' service-connected disabil ity status before FY 2009, so such 

information is not available for some cases active in FY 20 l 0 that originated in previous years (such as referrals). 

10 
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: 

VETS CASES 

Cases Opened by VETS in FY 2010: ALLEGING ISSUE* I 

USERRA ISSUE NUMBER I PERCENT I 

Military obligations discrimination I 473 1 32.9% 1 

Reinstatement I 407 1 28.3% 1 

Other non-seniority benefits I 65 1 4.5%1 

Promotion I 114 1 7.9% 1 

Vacation I 41 1 2.9% 1 

Status I 51 1 3.6%1 

Pay rate I 69 1 4.8% 1 

Reasonable accommodation/ retraining I 5 0.4% I 

for non-qualified/non-disabled 

Discrimination as retaliation for any 110 7.7% I 

action 

Seniority I 56 3.9% 

Pension I 39 2.7% 

Initial hiring discrimination I 79 5.5% 

Layoff I 72 5.0% 

Special protected period discharge I 22 1.5% 

Health benefits I 28 2.0% 

Reasonable accommodations/retraining I 35 2.4% I 

for disabled 

Other I 60 4.2% 1 

* Note: Because many USERRA cases involve multiple issues, the number of 

cases in this chart exceeds the I ,438 new unique cases reported in FY 20 1 0 and the 

combined percentages exceed 100 percent. 

DOL closed 1,404 cases in FY 2010 under the following closure codes: no merit, 440 (31 

percent); administrative, 106 (eight percent); claim granted, 255 (1 8 percent); claim settled, 147 

11 
(10 percent); claim withdrawn, 236 (17 percent); not eligible, 55 (four percent); referred, 147 (10 

percent); merit, not resolved, 13 (one percent); merit undetermined, 5 (<one percent). An 

explanation of case closure codes follows. 

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 VETS' letters, failure 

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

failure to attend scheduled meetings or conferences, and failure to make a written request for 

referral after being given the opportunity to do so. 

Continued Unauthorized Contact bv Third Party with Employer - Although a claimant is 

entitled to be represented either by VETS or by a third party under USERRA, he or she may not 

be simultaneously represented by both parties if the representation interferes with the 

investigation. If the c laimant insists on being represented by a third party in a USERRA claim, 

and that representation interferes with a VETS 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 claim for less than 

the claimant's full entitlements under USERRA. 

• WtTHDRA WN CLAIM: When the claimant informs VETS in writing of his/her desire to 

withdraw the claim. 

NOT ELIGIBLE: If a case has already heen 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 c laimant is not entitled to relief for reasons other than failure to meet eligibility 

requirements. 

CASES REFERRED: Unsettled cases are c losed 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 claim, but VETS 

is unable to obtain a satisfactory resolution. 

• MERIT U DETERMINED: 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. 

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

ESGR Ombudsman services covered an array ofUSERRA issues that included 1,905 complaints 

involving some type of militaty discrimination, 1,282 complaints involving job reinstatement 

and reemployment problems; and 15 cases involving possible retaliation or reprisal. 

ESGR resolved 2,703 of its 3,202 Ombudsman cases. There were 499 USERRA matters in 

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

Ombudsmen informed both parties that the employee (Service Member) 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 USERRA 

Information Management System (UIMS) data. 

12 
Crosswalk ofUSERRA Issues, FY 2010 

ESGR Ombudsman Services ~ VETS' National Guard & Reserve Complaint Cases 

(j 

~ "'0 ESGR VETS -:::. ("> 

~ 3 Ombudsman Cases Complaint Cases 0 ~ ""l 

~ "Problem Codes" "Jssue Codes" * ... ("> 

fJl 

. \2 Uonu> 

~ Bft 2. Uil 'l. Jl(, 4, Ull (, l>i ~nminatit'\t l 

Vl -· 10- ~lili iM) Obligalioos -\ 1 r>i~riuun.1rifln r"Pdr"l -426 n R5 Harncts.nt:~lt 1905 DJ.scnnlmation 

"1 

-· U3.1. U3.3. U3.4. UJ ~ \\\>rl- Sdlotlulo 3 tOthcr wJ,pt~rt , '~/ n3 J,J nol crt.~J.nt\dk) 

-· 86 1 Hiring ur job plnc..:mcnt Di::ocrimination II • Initial Hiring Discriminalioo 45 :::1 

:,:! 

~ 1,905 Ombudsman Cases 471 Issues in 467 Complaint Cases 

0 -· (59.5%) (39% of Complaint Cases) :::1 

AJ .\to!dicol ll<nofir. IH - HOllhh ll<n<li" 2.1 

.-\4 R~tir~m.: t Ben..: til~ IP ·Pension 23 

.\.5 s~,.,\il1ri \; o\t..xl l~n~t1ts IS -S..:nic.\ril · 4 1 

.-\6.1 Oth..::r ~nd b ... nvnilub\,; tooth...:r ...:mploy~A:'\ IB • (Jtl)..'f' Jn-S...:nk, ri · B.,;n..:fih• 5~ 

.'\6.2. :\6 3 Oll.:r l>on<lil> lZ - tu tu~ 45 

IN :\I IL- LayulT 5J 

n.- \ 3 \:Mii<Hl I imc;: 1\ -\ ~t-.;alitlll :w 

" ::d n I Nnri~ in g. npll)yo: r ahout military dut\· 

~ ~ 0~ Granting. militan ~nve 

~ -· Cl F.ltgtbtltty tOr r~mplo~111~nt 12R2 II( • l<cin-clttlc:mcnt 

= 150 8 Vl C2 Tim~ limtr~ lOr ~~ piO)ltK:nt 

"0 f""to CJ C'lmng~s in mploy~r ctrcumstDnoos 

-:,:! C'4.2. C4.3. ~.4. .5. C~ 7. 8 Job placcm<nl 

0 f""to 

~ ~ C4.1 limplv~· .... -,.: tf..:ni"xl pwmolkm rt' · Prumolimt I.JJ 

8 3 C4.6 Job lc ~cmcnt ... Lmploycr ti(XS lltJI acnmunodnlc: r~ rurnin¥ lA - l~ ~·mah l! Accrunmndnti ~d~l!train ing f,l,.. l>i ~nh d 20 

~ t~tbl ... 'd u~·" 

~ 

= 1\\.- c.lsonahl ~ .-\cCf'l tunod attotl~ R~training tOr Non-

= - fN•,\l Quahliod 'N<li ~D< !<o1h lo!d ~ 

-- fN -\) 1\1- P.-· Rnl< 61 

C5 T~nn ulAtJOn Pn.lt~ction II· • Spcdul I'WI<:<;Icd l'oriod Ui,..,hurwc 22 

J,282 Ombudsman Cases 828 Jssues in 698 Complaint Cases 

(40%) (59% of Complaint Cases) 

::d fl(, s R<rri""' } 15 11)2 - UiJOCrinunnlit.'fl r11:: 1\1 Ul.4 R,,n,.l R~t nhun for any . \ction 

~ 

"0 15 Ombudsman Cases 79 Issues in 79 Complaint Cases "1 

Vl -· (0.5%) (7% of Complaint Cases) :,:! 

- *To tJ~.: ilit<~lt.: r;umpar~on.~ \ .. ith ESGR dJtJ. \ 'ETS' ciJt;J intN~ arln.:1l~~.:: s onJy N.ttionJI Gu.tn.l & R~""'''~ (NG&R) ~.:nm :~i111 .. ·:t'i4,:.'1, n lll.:l\.'J., ALL ~,;umpl:au ~.: :a~!!: \\l,:n: i.: l\l'~,:tf.'d "'Jr b~<r lll lhi" 

~orl ln 1lk ~~ 1Jndatc:4.l Kc:por1ing c:< uiren~ent<," lC:I.lion. ~bny (If \'L 1 S' :-..G&R cuntpl.liJII c:.sc: \ U1\ol\'c:d mulliptc: hsuc: <.:odc:a. ;~ d ~me: ml~tiplc ssuc: caS<:\ in\·ohc:d muttiplc (.' Jtc:~ c:\: lhu"'. 

\.'FTS'wt~1 ,..;n;..: nt;t~ 41 fNCI&R C(lmpl:nnt r..J-.c." Jmong lh..: 1hr..:~.: PnnlJI) CJt..:!_(nlk.:" m lh1 .. ch:.u1..:'r.."'\:d'i IUtY'ro 

13 
iii. CASES REFERRED TO THE DEPARTMENT OF J USTICE OR THE OFFICE OF SPECIAL 

COUNSEL 

CASES REFERRED TO THE DEPARTMENT OF JUSTICE 

In FY 2010, the Civil Rights Division received 43 case referrals from DOL where DOL found 

that the case had merit and recommended that DOJ offer representation to the service member. 

DOJ offered representation in 3 referrals, facilitated settlement in 9 referrals, and declined 

representation in 18 referrals. In one referral, the service member withdrew his or her referral 

request. The remaining 12 referrals were still under consideration by DOJ at the end of the fiscal 

year. 

DOJ received an additional 74 case referrals from DOL in FY 2010 with a recommendation that 

the case lacked merit and representation should be declined. Based on DOL's recommendation 

and DOJ' s independent analysis of the merits of each referral, DOJ declined representation in 69 

referrals, and offered representation in one referral. The remaining four referrals were still under 

consideration by DOJ at the end of the fiscal year. 

The cases referred to the Civil Rights Division in FY 20 10 involved a number ofUSERRA 

issues. Approximately 34 percent ( 40) of these cases involved allegations of termination and/or 

discharge, approximately 42 percent (49) of these cases involved reemployment allegations, 

while approximately 15 percent ( 17) of these cases involved allegations of loss or denial of 

benefits, such as loss of pay, reduction or loss of pension or health benefits, and loss of 

seniority. The remaining cases involved various forms of discrimination, with approximately .09 

percent ( 10) involving failure to promote, approximately .03 percent (4) involving failure to hire, 

approximately .02 percent (2) involving service related disability, and approximately 15 percent 

( 18) involving actions affecting the service member's terms and conditions of employment, such 

as discipline or harassment. The remaining .06 percent (7) of these cases involved allegations of 

retaliation for asserting USERRA protection.

5 

CASES REFERRED TO THE OFFICE OF THE SPECIAL COUNSEL 

During Fiscal Year 2010, DOL referred 32 cases to OSC at the request of the service member. 

Additionally, seven cases referred to OSC during the previous fiscal year remained pending at 

the beginning ofFiscal Year 20 10. Thus, 39 total cases were pending at OSC during the fiscal 

year. 

In 32 of the 39 cases, the service member alleged discrimination based on uniformed service, 

including termination, non-promotion, non-selection, or improper denial of employment benefits; 

in 11 cases, violations of reemployment rights; in three cases, retaliation for exercising USERRA 

rights; and in one case, disabled veteran discrimination.5 

Of the 39 total cases, OSC completed 27 cases during Fiscal Year 2010, while 12 cases remained 

pending at the end of the fiscal year. During the fiscal year, OSC provided legal representation 

to four Service Members and informally resolved another service member's complaint (who 

5 The totals do not add up to 39 cases because some cases contain multiple allegations (i.e., there were 47 

allegations in the 39 cases). 

14 
OSC did not formally represent). Before the MSPB, OSC settled one previously filed matter and 

filed and litigated one new matter, which remained pending at the end of the fiscal year. 

iv. COMPLAINTS FILED BY THE ATTORNEY GENERAL 

The Department of Justice filed 5 USERRA complaints in FY 2010. Four of these cases have 

now settled and the remaining case is in active litigation. 

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

DOL's response to Mandated Reporting Requirement # 5 of this report indicates that in 

comparing ESGR data on USERRA cases during the fiscal year, 344 likely matches were 

identified. This figure indicates that first ESGR, and subsequently DOL, handled the 

same individuals' claims. The claims included allegations of the following issues: 

.. -

-I CASES ALLEGING ISSUE* I 

USERRA ISSUE NUMBER I PERCENT I . Military obligations discrimination 122 1 35.5% 1 . , 

Reinstatement 119 1 34.6% 1 

Other non-seniority benefits 13 1 3.8% 1 

Promotion 23 1 6.7%1 

Vacation 8 1 2.3% 1 

Status 13 1 3.8% 1 

Pay rate I 17 1 4.9% 1 

Reasonable accommodation/ retraining for 

I 3 1 0.9% I 

non-qualified/non-disabled 

Discrimination as retaliation for any action I 25 1 7.3% 1 

Seniority I 91 2.6% 1 

Pension I 5 1 1.5% I 

Initial hiring discrimination I 7 1 2.o% 1 

Layoff I 15 1 4.4% I 

Special protected period discharge I 10 1 2.9% 1 

Health benefits I 7 1 2.o% 1 

Reasonable accommodations/retraining for 

I 7 1 2.0% I 

disabled 

Other I 12 1 3.5% 1 

*Note: Many USERRA cases involve multiple issues, and VETS records all the USERRA issues 

15 
involved in a case. As a result, the number of cases in this chart exceeds the 344 ESGR and VETS 

cases involving the same person, and the combined percentages exceed 100 percent. Matching of 

FY 20 I 0 ESG R cases and VETS cases opened I 0/ 1/2009 to I 0/3 1/20 I 0 is based on claim dates 

and claimant names. 

DOL closed 343 ofthese 344 likely matches by April15, 2011, under the following closure 

codes: no merit, 97 (28 percent); administrative, 21 (6 percent); claim granted, 65 (19 percent); 

claim settled, 50 ( 15 percent); claim withdrawn, 4 7 ( 14 percent); not eligible, 13 ( 4 percent); 

referred, 43 (13 percent); merit, not resolved, 7 (2 percent); merit undetermined, 0. An 

explanation of VETS case closure codes appears in the explanation of the status of cases 

reviewed by DOL. 

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. 

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

the respective Standard Occupational Classification System (SOCS) code. Therefore, SOCS code data 

is not available for cases filed only with ESGR. 

VETS was able to obtain the SOCS code in 96 percent (1,387) of the unique claims filed in FY 2010. 

That data reveal that 18 percent of claims involved Protective Services occupations. Another L 2 percent 

involved Office and Administrative Support occupations, and 10 percent involved Transportation and 

Material Moving occupations. 

With respect to cases reviewed by VETS and ESGR likely involving the same person in FY 2010, VETS 

obtained the SOCS code in 97 percent (335) of the 344 cases. That data reveal that 21 percent of claims 

involved Protective Services occupations. Another 12 percent involved Office and Administrative 

Support occupations, and 10 percent involved occupations in Transportation and Material Moving. 

With respect to cases referred to the Attorney General's DOJ Civil Rights Division from DOL through 

VETS and SOL in FY 2010, VETS obtained the SOCS code in 66 percent (77) of the 117 cases. That 

data reveal that 16 percent of claims involved Protective Services occupations, and 13 percent involved 

Transportation and Material Moving occupations. 

VETS obtained the Standard Occupational Classification System (SOCS) code in 78 percent (25) of the 

32 cases referred to OSC from DOL through VETS and SOL in FY 2010. That data reveal that 32 

percent of claims involved Protective Services occupations, and 20 percent involved Office and 

Administrative Support occupations. 

Occupations Involved in FY 2010 USERRA CASES6 

As designated by the Standard Occupational Classification System (SOCS) 

Percentage of Cases 

SOCS Job Family I involving SOCS Code 

I VETS I Referrals to I Common I 

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

exceptions as noted here): Military Specific (Exception: 4 percent of Referrals to OSC); Farming, Fishing, and Forestry 

(Exception: 4 percent of Referrals to OSC); Legal (Exception: 4 percent of Referrals to OSC); Computer and Mathematical 

(Exception: 3 percent of Common to VETS & ESGR); Life, Physical, and Social Science (Exception: 3 percent of Referrals to 

DOJ); Healthcare Support (Exception: 3 percent of Referrals to DOJ); Architecture and Engineering; Building and Grounds 

Cleaning and Maintenance; Community and Social Services; Personal Care and Service; and Arts, Design, Entertainment, 

Sports, and Media occupations. 
Cases . DOJ I~ to VETS 

&ESGR 

Protective Service I 18% 16% 32% 21% I 

Office and Administrative Support I 12% 10% 20% 12% I 

Transportation and Material Moving I 10% 13% 0% 10% I 

Management I 8% 6% 8% 7% I 

Installation, Maintenance, and Repair I 7% 5% 4% 7% I 

Healthcare Practitioners and Technical I 5% 8% 12% 7% 

Sales and Related I 5% 3% 0% 4% 

Production I 5% 8% 8% 5% 

Business and Financial Operations I 4% I 8% 4% I 5% 

Construction and Extraction I 4% I 3% 0% I 4% 

Food Preparation and Serving Related I 4% I 1% 0% I 3% 

Education, Training, and Library I 3% I 5% 0% I 3% I 

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 ofUSERRA became apparent in FY 2010. DOL will continue to monilur 

USERRA cases to identify trends as they arise. 

10. RECOMMENDATIONS 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. 

Clarify that USERRA prohibits workplace harassment and the creation of a hostile working 

environment, and creates the obligation to take prompt and effective action to correct harassing conduct 

USERRA's definition of the terms "benefit", "benefit of employment", or "rights and benefits" as set 

forth at 38 U.S.C. § 4303(2), includes " ... any advantage, profit, privilege, gain, status, account, or 

interest (including wages or salary for work performed) that accrues by reason of an employment 

contract or agreement or an employer policy, plan, or practice .... " In the Department of Labor's view 

these terms include the right not to suffer workplace harassment or the creation of a hostile working 

environment because of an individual's membership in the uniformed service or uniformed service 

obligations. Several courts have assumed without deciding that such a right is protected under USERRA 

and that its deprivation would constitute a violation of the Act. See Vega-Colon v. Wyeth Pharms., 625 

F. 3d 22, 32 (1st Cir. 2010); Dees v. Hyundai Motor Mfg. Alabama, LLC, 368 Fed. Appx. 49, 53 (11th 

Cir. 2010); Church v. City of Reno, 168 F.3d 498 (9th Cir. 1999). However, a recent United States 

Court of Appeals decision interpreted the definition as not including such a right. See Carder v. 
Continental Airlines, Inc. 2011 WL 996169 (51

h Cir. 2011). 

The Department of Labor considers it a violation of USERRA for an employer to cause or permit 

workplace harassment, the creation of a hostile working environment, or to fail to take prompt and 

effective action to correct harassing conduct because of an individual's membership in the uniformed 

service or uniformed service obligations. Although the Department believes that the statute currently 

supports this reading, in light of the risk of contrary interpretations by the courts, the Department 

recommends that Congress consider clarifying that USERRA prohibits workplace harassment or the 

creation of a hostile working environment. The Department of Justice and the Office of Special Counsel 

concur with this recommendation. 
USERRA annual reports are available for fiscal years (FY) 1995-1999 and 2004-2010. 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, 11 8 Stat. 3598 

(December 2004.) 
Office of Veterans' Employment and Training 

U.S. Department of Labor 

200 Constitution Avenue, NW 

Washington, DC 20210