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
ii

TABLE OF CONTENTS

INTRODUCTION i

OVERVIEW OF USERRA PROTECTIONS 1

USERRA SERVICES PROVIDED BY THE DEPARTMENT OF DEFENSE’S 

EMPLOYER SUPPORT FOR THE GUARD AND RESERVE (ESGR) 2

OVERVIEW 2

ESGR OUTREACH 3

ESGR OMBUDSMEN SERVICES 3

DEPARTMENT OF LABOR (DOL) USERRA OUTREACH AND CLAIMS INVESTIGATION 4

VETERANS’ EMPLOYMENT AND TRAINING SERVICE (VETS)

PUBLIC EDUCATION AND COMPLIANCE ASSISTANCE EFFORTS

4

VETS INVESTIGATIVE PROCESS 4

DOL REFERRAL PROCESS 5

DEPARTMENT OF JUSTICE (DOJ) ENFORCEMENT 5

OFFICE OF SPECIAL COUNSEL (OSC) ENFORCEMENT 6

DOL’S FY 2011 PROGRAM ACTIVITIES AND ACHIEVEMENTS 7

MANDATED REPORTING REQUIREMENTS 8
i

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 2011 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 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. 
ii

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. 
1

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) of employed 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. 

DOL and DOD share responsibility for promoting a clear understanding of USERRA among 

employers and individuals concerning their respective rights and responsibilities under 

USERRA. DOL’s Veterans’ Employment and Training Service (VETS) and DOD’s 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 help them 

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 (DOJ) in cases 

involving a private or state or local government employer, or to Office of Special Counsel1

(OSC) 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 Federal 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 

 

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. 
2

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

requirements described in the introduction to this report. 

USERRA SERVICES PROVIDED BY THE DEPARTMENT OF DEFENSE’S 

EMPLOYER SUPPORT OF THE GUARD AND RESERVE

OVERVIEW

ESGR is an agency within DOD whose mission is to gain and maintain 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) 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 (50%) 

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 4,800 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, 

which also include participants from the volunteer ombudsmen services program. ESGR 

ombudsmen are specifically trained in USERRA and neutral mediation techniques, resolving 

conflicts between service members and employers, furthering the understanding of and 

compliance with USERRA regulations. ESGR conducts proactive outreach programs and 

provides responsive Ombudsmen services in support of its mission. In FY 2011, ESGR 

volunteers briefed over 153,000 employers and almost 475,000 service members to inform both 

on the responsibilities and rights under USERRA. 
3

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. 

Employers who sign a Statement of Support pledge that: 

1. They fully recognize, honor and enforce USERRA. 

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. 

Several employer recognition and awards originate from nominations by individual Service 

Members, recognizing individual supervisors through the Patriot Award, and culminating in 

national recognition of the most outstanding employers with the annual Secretary of Defense 

Employer Support Freedom Award. 

During FY 2011, ESGR recognized 16,560 supervisors of RC members with the Patriot Award. 

During the same time period, 45,140 employers signed Statements of Support, and Headquarters 

ESGR received 4,049 nominations for the 2011 Secretary of Defense 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 helps prevent 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 of Understanding (MOU) in 2010 with 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 DOJ and OSC overseeing the enforcement of USERRA 

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 600 volunteer ombudsmen to help resolve USERRA 
4

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 

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 prompt, 

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

related matters. During FY 2011, ESGR received 29,727 contacts by telephone, email and 

facsimile. Of those contacts, 2,884 resulted in actual USERRA cases for mediation purposes. 

These mediation efforts covered an array of USERRA issues that included 1,123 complaints 

involving some type of military discrimination, 1,557 complaints involving job reinstatement 

and reemployment problems, and 115 complaints involving possible retaliation or reprisal. 

There were 582 USERRA matters in which ESGR was unable to obtain an agreement between 

the employee and employer. 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 DOL/VETS 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 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, VETS has briefed more than 800,000 individuals on USERRA. In FY 2011 

alone, VETS presented USERRA information to more than 72,000 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 1010, available to the public online through VETS’ web page), VETS 

immediately opens a formal investigation. A brief notification of process rights, written in easyto-understand question-and-answer format, is sent to each claimant within five days of VETS’ 
5

receipt of a complaint. 

The assigned investigator collects and reviews pertinent documentary evidence and interviews 

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 of USERRA 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 case. 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 against a private-sector employer, the Service 

Member may ask VETS to refer the Service Member’s USERRA case 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 DOJ’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 (SOL) work collaboratively to meet the MOU’s goals, and continue to refine the 
6

integrated case management system that was put in place in FY 2006. This case management 

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 complaint against a State or private employer, upon the claimant’s 

request VETS will refer the case to the Attorney General. Each referral includes: (1) the VETS 

investigative file; and (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. 

Upon receipt of an unresolved USERRA case 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. If DOJ 

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. 

The Civil Rights Division continues its aggressive enforcement of USERRA against private, 

state and local employers, through litigation, facilitated settlements, outreach and advocacy. 

Since the Civil Rights Division assumed USERRA enforcement authority in 2004, we have filed 

76 USERRA lawsuits and favorably resolved 116 USERRA complaints either through consent 

decrees obtained in those suits or through facilitated private settlements. In addition, over the 

past year, DOJ has engaged in outreach and coordination to groups of servicemembers and 

employers nationwide, including to the American Bar Association, the National Association of 

State Attorneys General, and the National Association of Public Pension Attorneys. Finally, 

DOJ has actively participated as amicus curiae in appeals involving the important rights of 

servicemembers, including the Supreme Court case Staub v. Proctor Hospital, the Second 

Circuit appeal in Serrichio v. Wachovia Securities, and the First Circuit appeal in RiveraMelendez v. Pfizer Pharmaceuticals, LLC. 

In FY 2012, 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. 

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 following a VETS 

investigation are addressed in a manner very similar to that employed in DOJ referrals discussed 

above, and also include SOL legal analysis and recommendation regarding the merit of the 

claim. 

USERRA DEMONSTRATION PROJECT

The Veterans’ Benefits Act of 2010, Pub. L. No. 111-275 (VBA of 2010), established a new 36-
7

month USERRA Demonstration Project for complaints against Federal government agencies. 

Under the project, which began on August 9, 2011, OSC will investigate and attempt to resolve 

all Federal complaints filed by Service Members whose Social Security Number (SSN) ends in 

an odd digit or who allege a related Prohibited Personnel Practice (PPP) allegation under 5 

U.S.C. § 2302(b) (regardless of SSN). VETS will continue to investigate and attempt to resolve 

the remaining Federal complaints (those associated with even-numbered SSNs and no related 

PPP allegation) and all non-Federal complaints (those against private, state, and local 

employers). During Fiscal Year 2011, OSC reviewed 28 complaints and VETS reviewed 19 

complaints under the project. 

DOL’S FY 2011 PROGRAM ACTIVITIES AND ACHIEVEMENTS

VETS continued to successfully implement the requirements of the Veterans’ Benefits 

Improvement Act 2008, P.L. 110-389, for all claims filed during FY 2011. Despite a record 

1,548 new complaints filed during FY 2011, VETS successfully closed each case within the 

statutory time frame, or when necessary obtained extensions from those claimants to continue its 

investigative efforts in their behalf. 

VETS investigative staff, and in particular its Senior Investigators, has taken on greater 

responsibilities during FY 2011 in reviewing cases referred to DOJ for further review and 

possible representation in Federal District Court. VETS’ Senior Investigators developed new 

quality assurance review (QAR) standards to ensure that all issues are correctly identified, and 

that all evidence necessary for correct determinations and conclusions has been obtained. This 

effort has resulted in development of a number of best practices, and has improved the overall 

quality of VETS’ USERRA investigations. 

In order to make the most effective use of limited time and resources, VETS held a number of 

training conferences for its field investigators and Senior Investigators to develop and instruct on 

the new QAR form, and also to develop a mechanism whereby Department attorneys could 

continue to provide advice and guidance in difficult investigations. 

Lastly, pursuant to the VBA of 2010, VETS worked closely with OSC, the Government 

Accountability Office (GAO), and the Office of Personnel Management (OPM) to successfully 

initiate a three-year demonstration project between OSC and VETS to compare the performance 

of the two agencies across a number of dimensions. The law requires the collection of 

information on the performance of the two agencies in terms of customer satisfaction, cost, 

timeliness, case outcomes, and agency capacity. Under the terms of the demonstration project, 

VETS will receive all new USERRA complaints, and transfer approximately half of those 

complaints filed against Federal executive agencies to OSC for review, investigation, and 

resolution. In addition, OSC will receive those Federal-sector USERRA cases that also include 

allegations of PPPs which fall under its exclusive purview. 

In order to implement the demonstration project, VETS and OSC entered into a MOU 

establishing how cases will be transferred, reported, and how OSC will receive funding for those 

cases it receives from VETS. VETS’ USERRA Information Management System (UIMS), 

which collects and reports key information on USERRA cases, has been modified to collect and 
8

show data related to the demonstration project, and the appropriate electronically-filed claims are 

automatically transferred to OSC for greatest efficiency. In addition, VETS established a cost 

tracking system specific to its investigations under the demonstration project to enable GAO to 

compare the costs of Federal USERRA investigations in the two agencies. 

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: 

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 1,548 new unique cases in FY 2011 (OSC reviewed an additional 28 new unique 

cases as part of the USERRA Demonstration Project which began on 8/9/2011).2

 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 2006 – FY 2011. 

 

 Fiscal Year FY 2006 FY 2007 FY 2008 FY 2009 FY 2010 FY 2011 

New VETS Cases 

(Federal and Non-Federal) 

1,265 1,226 1,389 1,431 1,438 1,548 

OSC Cases 

(Federal only)

169 139 37 n/a* n/a* 28 

Total New Cases 1,434 1,365 1,426 1,431 1,438 1,576 

In FY 2011, DOL also carried over an additional 285 unique cases (open investigations) from FY 

2010. During FY 2011, the Department reopened 10 cases from FY 2010 and two from FY 2009 

and earlier. In sum, DOL reviewed a total of 1,845 unique cases in FY 2011, and OSC reviewed 

an additional 28 unique cases. 

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

OF DEFENSE, DURING THE FISCAL YEAR.

During FY 2011, ESGR received 29,727 contacts by telephone, email and facsimile. Of those 

contacts, 2,884 resulted in actual USERRA cases for which ESGR Ombudsmen services were 

 

2

 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 2010 because the assignment of such cases to OSC 

under a demonstration project established by the Veterans Benefits Improvement Act of 2004 ended in FY 2008. 

However, OSC again began to review unique cases in FY 2011 under another demonstration project established by 

the VBA of 2010. 
9

provided. 

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 2011, DOL referred 130 cases to the Attorney General’s Civil Rights Division and 36 

cases to OSC. During the fiscal year, OSC represented one Service Member before the MSPB 

which resulted in a MSPB decision. 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 12 USERRA complaints in FY 2011. Nine of these cases have now settled and the 

remaining three cases are 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 2,883 individuals who had filed the 2,884 cases 

reviewed by ESGR Ombudsmen in FY 2011, and the date of each case. VETS compared the 

ESGR data to its own data3 on cases initially opened from October 1, 2010 through October 31, 

20114

. This comparison resulted in 299 likely matches; thus, it appears that 10% of FY 2011 

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. Thirty-six of the new unique cases, or 2.4 %, of those reviewed by DOL 

in FY 2011, involved a disability-related issue. 

ii. Of the 2,884 cases reviewed by ESGR, 43 (1.5%) involved a disabilityrelated issue. 

iii. Of the cases referred for consideration of litigation, six of those referred 

to DOJ and none of those referred to OSC involved a disability-related 

issue. The case filed by OSC before the MSPB did not involve a 

disability-related issue. 

iv. Of the 12 cases filed by DOJ in FY 2011, none involved a disabilityrelated issue. 

v. With respect to the 299 cases reviewed by DOL and ESGR involving the 

 

3

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

with complete confidence. 

4

 October data was included to capture late FY 2011 ESGR cases that were filed with VETS early in FY 2012. 
10

same person in FY 2011, nine (3.0%) involved a disability-related issue.

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

SERVICE-CONNECTED DISABILITY.

5

i. In FY 2011, VETS asked claimants whether they had a service-connected disability. 

VETS obtained responses from 1,522 claimants, 16% (251) of whom reported having 

a service-connected disability. 

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

eight 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 12 cases filed by DOJ 

in FY 2011 that involved a person with a service-connected disability. 

v. With respect to the 299 cases reviewed by VETS and ESGR involving the same 

person in FY 2011, VETS obtained responses from all these claimants, 11% (32) of 

whom reported having a service-connected disability. 

 

5

 Data regarding claimants’ service-connected disability status was not collected by VETS before FY 2009, so such 

information is not available for some cases active in FY 2011 that originated in previous years (such as referrals). 
11

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 2011: ALLEGING ISSUE* 

USERRA ISSUE NUMBER PERCENT

Military obligations discrimination 610 39.4% 

Reinstatement 405 26.2% 

Other non-seniority benefits 75 4.8% 

Promotion 117 7.6% 

Vacation 50 3.2% 

Status 62 4.0% 

Pay rate 63 4.1% 

Reasonable accommodation/ retraining 

for non-qualified/non-disabled 

4 0.3% 

Discrimination as retaliation for any 

action 

124 8.0% 

Seniority 47 3.0% 

Pension 37 2.4% 

Initial hiring discrimination 102 6.6% 

Layoff 51 3.3% 

Special protected period discharge 42 2.7% 

Health benefits 27 1.7% 

Reasonable accommodations/retraining 

for disabled 

36 2.3% 

Other 58 3.7% 

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

this chart exceeds the 1,548 new unique cases reported by VETS in FY 2011 and the 

combined percentages exceed 100%. 

 

DOL closed 1,675 cases in FY 2011 under the following closure codes: no merit, 561 (33%); 

administrative, 132 (8%); claim granted, 253 (15%); claim settled, 156 (9%); claim withdrawn, 

290 (17%); not eligible, 79 (5%); referred, 183 (11%); merit, not resolved, 19 (1%); merit 

undetermined, 2 (< 1%). An explanation of case closure codes follows. 
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 1,123 complaints 

involving some type of military discrimination, 1,557 complaints involving job reinstatement 

and reemployment problems; and 115 cases involving possible retaliation or reprisal. 

ESGR resolved 2,302 of its 2,884 Ombudsman cases. There were 582 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 UIMS data. 

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 by 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 claimant insists on being represented by a third party in a USERRA case, 

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 case 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
14

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

COUNSEL 

CASES REFERRED TO THE DEPARTMENT OF JUSTICE

In FY 2011, the Civil Rights Division received 42 referrals from DOL in which DOL found that 

the complaints had merit and recommended that DOJ offer representation to the Service 

Member. DOJ offered representation in 13 referrals, facilitated settlement in 10 referrals, and 

declined representation in 17 referrals. As the United States government does not directly 

represent Service Members in cases against a State, no formal representation declination is 

necessary for referrals involving State employers. Accordingly, the remaining two of the 42 

referrals that DOJ did not purse in litigation resulted from DOJ’s determination not to pursue 

litigation on behalf of the United States against a State agency. 

DOJ received an additional 88 referrals from DOL in FY 2011 with a recommendation that the 

complaints 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 74 referrals, facilitated settlement in four referrals, and one referral was 

withdrawn by the Service Member. The remaining nine referrals that DOJ did not pursue in 

litigation resulted from DOJ’s determination not to pursue litigation on behalf of the United 

States against a State agency. 

The cases referred to the Civil Rights Division in FY 2011 involved a number of USERRA 

issues. Approximately 31% (40) of these cases involved allegations of termination and/or 

discharge, approximately 42% (54) of these cases involved reemployment allegations, while 

approximately 12% (16) 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 forms of discrimination, with approximately 18% (23) 

involving failure to promote, approximately 5% (6) involving failure to hire, approximately 5% 

(6) involving service connected disability, and approximately 45% (58) involving actions 

affecting the Service Member’s terms and conditions of employment, such as discipline or 

harassment. The remaining 9% (12) of these cases involved allegations of retaliation for 

asserting USERRA protection.6

CASES REFERRED TO THE OFFICE OF THE SPECIAL COUNSEL

During Fiscal Year 2011, DOL referred 36 cases to OSC at the request of the Service Member. 

Additionally, 12 cases referred to OSC during the previous fiscal year remained pending at the 

beginning of Fiscal Year 2011. Thus, 48 total cases were pending at OSC during the fiscal year. 

In 36 of the 48 cases, the Service Member alleged discrimination based on uniformed service, 

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

in 12 cases, violations of reemployment rights; in four cases, retaliation for exercising USERRA 

rights; and in one case, disabled Veteran discrimination.7

 

6

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

7 The totals do not add up to 48 cases because some cases contain multiple allegations (i.e., there were 53 allegations 

in the 48 cases). 
15

Of the 48 total cases, OSC closed 31 cases during Fiscal Year 2011, while 17 cases remained 

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

to four Service Members, successfully resolving three of those matters (the other remained 

pending at the end of the fiscal year) and informally obtained corrective action for two other 

Service Members. In one litigation matter before the MSPB, OSC achieved a favorable decision 

for the Service Member. 

iv. COMPLAINTS FILED BY THE ATTORNEY GENERAL

The Department of Justice filed 12 USERRA complaints in FY 2011. Nine of these cases have 

now settled and the remaining three cases are 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, 299 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: 
16

CASES ALLEGING ISSUE* 

USERRA ISSUE NUMBER PERCENT

Military obligations discrimination 106 35.5% 

Reinstatement 73 24.4% 

Other non-seniority benefits 11 3.7% 

Promotion 18 6.0% 

Vacation 8 2.7% 

Status 19 6.3% 

Pay rate 12 4.0% 

Reasonable accommodation/ retraining for nonqualified/non-disabled 0 0.0% 

Discrimination as retaliation for any action 21 7.0% 

Seniority 8 2.7% 

Pension 8 2.7% 

Initial hiring discrimination 7 2.3% 

Layoff 10 3.3% 

Special protected period discharge 8 2.7% 

Health benefits 5 1.7% 

Reasonable accommodations/retraining for disabled 9 3.0% 

Other 6 2.0% 

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

in a case. As a result, the number of cases in this chart exceeds the 299 ESGR and VETS cases involving 

the same person, and the combined percentages exceed 100%. Matching of FY 2011 ESGR cases and 

VETS cases initially opened 10/1/2010 to 10/31/2011 is based on claim dates and claimant names. 

DOL closed 298 of these 299 likely matches by May 31, 2012, under the following closure 

codes: no merit, 91 (31%); administrative, 30 (10%); claim granted, 53 (18%); claim settled, 33 

(11%); claim withdrawn, 43 (14%); not eligible, 10 (3%); referred, 34 (11%); merit, not 

resolved, 4 (1%); merit undetermined, 0. An explanation of VETS case closure codes appears in 

the explanation of the status of cases reviewed by DOL. 
 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. Therefore, SOCS code data 

is not available for cases filed only with ESGR. 

VETS was able to obtain the SOCS code in 97% (1,503) of the unique complaints filed in FY 2011. 

That data reveal that 21% of complaints involved Protective Services occupations. Another 11% 

involved Office and Administrative Support occupations, and 9% involved Transportation and Material 

Moving occupations. 

With respect to cases reviewed by VETS and ESGR likely involving the same person in FY 2011, VETS 

obtained the SOCS code in 97% (291) of the 299 cases. That data reveal that 23% of those cases 

involved Protective Services occupations. Another 11% involved occupations in Transportation and 

Material Moving, and 9% involved Office and Administrative Support occupations. 

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

VETS and SOL in FY 2011, VETS obtained the SOCS code in 50% (65) of the 130 cases. That data 

reveal that 25% of those cases involved Protective Services occupations, and 8% involved each of the 

following occupation categories: Transportation and Material Moving; Office and Administrative 

Support; and Education, Training, and Library. 

VETS obtained the Standard Occupational Classification System (SOCS) code in 44% (16) of the 36 

cases referred to OSC from DOL through VETS and SOL in FY 2011. That data reveal that 19% of 

cases involved Business and Financial Operations, with five other occupational categories each 

involving 13% of these cases. 
 18 

Occupations Involved in FY 2011 USERRA CASES8

As designated by the Standard Occupational Classification System (SOCS) 

SOCS Job Family 

Percentage of Cases 

involving SOCS Code 

 VETS Referrals to 

Cases 

DOJ OSC 

Common 

to VETS 

& ESGR 

Protective Service 21% 25% 13% 23% 

Office and Administrative Support 11% 8% 13% 9% 

Transportation and Material Moving 9% 8% 13% 11% 

Management 6% 5% 13% 6% 

Installation, Maintenance, and Repair 6% 5% 0% 6% 

Healthcare Practitioners and Technical 6% 3% 13% 7% 

Sales and Related 6% 6% 0% 7% 

Production 5% 6% 6% 7% 

Business and Financial Operations 6% 6% 19% 6% 

Construction and Extraction 4% 6% 0% 3% 

Food Preparation and Serving Related 3% 0% 0% 2% 

Education, Training, and Library 3% 8% 0% 3% 

Computer and Mathematical 3% 3% 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 2011. DOL will continue to monitor 

USERRA cases to identify trends as they arise. 

 

8

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

exceptions as noted here): Military Specific (Exception: 6% of Referrals to OSC and 3% of Referrals to DOJ); Farming, 

Fishing, and Forestry; Legal; Life, Physical, and Social Science (Exception:6% of Referrals to OSC); Healthcare Support; 

Architecture and Engineering (Exception: 5% of Referrals to DOJ); Building and Grounds Cleaning and Maintenance; 

Community and Social Services; Personal Care and Service (Exception: 3% of Referrals to DOJ); and Arts, Design, 

Entertainment, Sports, and Media occupations. 
 19 

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. 

 

RECOMMENDATION FROM DOJ AND DOL: Ensure that USERRA is consistent with other civil rights 

laws by allowing the United States to always serve as the plaintiff to vindicate the public interest in 

ensuring the statute is enforced; to preserve the right of the aggrieved Service Member to intervene in 

such suits or to bring his or her own suit where the Attorney General has declined to file suit; and to 

allow the Attorney General the authority to compel production of evidence. 

The Departments of Justice and Labor urge Congress to act on three provisions of the “Servicemembers 

Rights Enforcement Improvement Act,” S. 2299, which would strengthen the Attorney General’s 

authority to enforce USERRA significantly. First, S. 2299 would amend USERRA to allow the 

Attorney General, acting on behalf of the United States, to serve as a plaintiff in all USERRA suits, 

rather than only in suits filed against State employers. This amendment would make USERRA operate 

more like other civil rights laws by allowing the United States to always serve as the plaintiff to 

vindicate the public interest in ensuring the statute is enforced. At the same time, it would preserve the 

right of the aggrieved Service Member to intervene in such suits or to bring his or her own suit where 

the Attorney General has declined to file suit. 

S. 2299 also would grant independent authority to the Attorney General to investigate and file suit to 

challenge employment policies or practices that establish a pattern or practice of violating USERRA. 

This amendment would strengthen significantly the DOJ’s ability to enforce USERRA to address a 

systemic violation (such as a policy prohibiting extended absences, including absences for military 

service) that could adversely affect the employment rights of multiple Service Members. 

Finally, to support the proposed pattern-or-practice authority, S. 2299 would further amend USERRA to 

provide the Attorney General with civil investigative demand (CID) authority to compel the production 

of existing documents and unsworn answers to written questions from the custodian of such documents. 

DOL has subpoena power in its investigations under USERRA. The Attorney General, however, has no 

pre-suit investigatory authority. Because the proposal for pattern-or-practice authority includes the 

authority to initiate an investigation, Congress should provide the Attorney General with some 

investigative tools. The CID proposal in S. 2299 is more than reasonable because it is narrow in scope 

and would be subject to the same limitations that apply to DOJ’s authority under the False Claims Act. 

DOJ and DOL look forward to working with Congress on these USERRA provisions. 

 
USERRA annual reports are available for fiscal years (FY) 1995-1999 and 2004-2011. 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).