UNIFORMED SERVICES EMPLOYMENT

AND REEMPLOYMENT RIGHTS ACT OF 1994 

(USERRA) 

FISCAL YEAR 2006 

ANNUAL REPORT 

TO

CONGRESS 

FEBRUARY 2008 

PREPARED BY: 

OFFICE OF THE ASSISTANT SECRETARY 

FOR VETERANS’ EMPLOYMENT AND TRAINING 

U. S. DEPARTMENT OF LABOR 

200 CONSTITUTION AVENUE, NW 

WASHINGTON, DC 20210 
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, Purpose and Sense of Congress.
TABLE OF CONTENTS

LETTER FROM ASSISTANT SECRETARY CHARLES CICCOLELLA i

INTRODUCTION ii

PROGRAM OVERVIEW 1

USERRA CASE MANAGEMENT PROCESS OVERVIEW

ESGR OUTREACH

VETS INVESTIGATIVE PROCESS

VETS REFERRAL PROCESS

DOJ ENFORCEMENT

OSC ENFORCEMENT

FY06 PROGRAM ACTIVITIES AND ACHIEVEMENTS 3

MANDATED REPORTING REQUIREMENTS

APPENDIX 8
i USERRA Annual Report to Congress
INTRODUCTION

The Uniformed Services Employment and 

Reemployment Rights Act of 1994, 38 U.S.C. §§ 4301-

4334, (USERRA) was signed into law on October 13, 

1994. USERRA prohibits discrimination in 

employment on the basis of 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 

an investigation 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 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 

applies to United States employers operating overseas 

as well. 

This report was prepared under Section 4332 of 

USERRA, 38 U.S.C. 4332, 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 referred to the Attorney 

General or the Special Counsel pursuant to Section 

4323 or 4324, respectively, during such fiscal year. 

3. The number of complaints filed by the Attorney 

General pursuant to Section 4323 during such 

fiscal year. 

4. The nature and status of each case reported 

pursuant to paragraph 1, 2, or 3. 

5. An indication of whether there are any apparent 

patterns of violation of the provisions of this 

chapter together with an explanation thereof. 

6. 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.

USERRA annual reports are available for fiscal years 1995–1999 and 2004–

2005. No reports are available for fiscal years 2000–2003 because the 

reporting requirement expired in 2000. It was reinstated by Section 202 of 

the Veterans Benefits Improvement Act of 2004, P.L. 108-454, 118 Stat. 3598 

(December 10, 2004). This Report covers Fiscal Year 2006 and is the third 

report to Congress under the reinstated reporting requirement. 

FISCAL 2006 ii 
PROGRAM OVERVIEW

In order to foster better understanding of the USERRA 

program, the purpose of USERRA and the case 

management process are described below as a context 

for the congressionally- mandated information. 

USERRA, 38 U.S.C. §§ 4301-4334, 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. USERRA 

mandates that employers may be liable for funding their 

share, if any, to the service member’s retirement plans. 

Discrimination related to service in the military, the 

National Disaster Medical System or the commissioned 

corps of the Public Health Service is prohibited. 

USERRA protects anyone (civilian or veteran) from 

reprisal when either exercising rights under the statute 

itself, or when assisting in an investigation. Eligibility 

requirements for service members generally provide 

that the absence must be due to service; advance notice 

(orally or in writing) must be given to the employer; 

cumulative period(s) of service while employed by the 

employer must not exceed five years; application for 

reemployment must be timely; and that the discharge 

must not be disqualifying. 

USERRA CASE MANAGEMENT PROCESS OVERVIEW

USERRA investigations are complaint driven and may 

originate from a variety of sources. Cases originate 

with the filing of the VETS complaint form, VETS 

1010, directly with VETS, including electronically 

through an on-line submission process. Cases can also 

be generated from complaints originally reviewed by 

the National Committee for Employer Support of the 

Guard and Reserve (ESGR), with the subsequent 

submission of a VETS 1010 complaint form filed with a 

VETS local field office. In addition, complaints may 

evolve from technical assistance requests. 

ESGR OUTREACH

The Department of Defense’s ESGR maintains a 

national network of over 900 trained volunteer 

ombudsmen to educate USERRA stakeholders and to 

help resolve USERRA compliance issues. They are an 

essential component of USERRA education for 

America’s employers. These volunteers receive 

training on USERRA and dispute resolution 

techniques, and serve as the informal mediators 

between the employer and employee to inform and 

educate all parties on the requirements of the law. In 

situations in which the ESGR ombudsman assesses a 

claimant's position as meritorious, the ombudsman 

assists claimants and employers to reach agreeable 

solutions. 

ESGR is an essential partner to DOL/VETS in 

providing services to Guard and Reserve members 

seeking assistance under USERRA. In 2006, DOL 

signed a Memorandum of Understanding (MOU) with 

ESGR to improve information sharing regarding 

USERRA cases. ESGR also maintains an informal 

working agreement with the Office of Special Counsel. 

Under the terms of the MOU with DOL, if ESGR is 

unable to resolve a matter it deems meritorious within 

14 days, their ombudsmen will recommend that the 

claimant submit a VETS 1010 complaint form to 

pursue the matter through the VETS formal 

investigative process. 

At the writing of this report, Congress is considering 

legislation that would require future USERRA Annual 

Reports to Congress to include information on 

complaints received by ESGR during the fiscal year 

(FY) covered by the report. In recognition of the 

Congress’ interest, the Department requested and 

ESGR provided the information available for FY06, 

which is included as an Appendix to this report. The 

Department will work with ESGR to provide a format 

and appropriate reporting categories for such 

information in future reports. 

THE VETS INVESTIGATIVE PROCESS

Upon receipt of an electronically-filed or signed 

completed complaint form (the VETS 1010), VETS 

will open a formal investigation within five business 

days. 

The assigned investigator will then undertake a review 

of all documentary evidence and will interview all 

available identified witnesses, under authority of 

subpoena if necessary. VETS investigators are 

advocates for the law, and the veteran. However, they 

must remain neutral until the investigation is complete. 

In order to ensure that investigations are of the highest 

quality and are conducted in a uniform and timely 

manner, VETS has developed standard operating

1 USERRA Annual Report to Congress
procedures setting forth standards that its investigators 

must meet in order to be considered fully successful in 

performing their assigned duties. These standard 

operating procedures not only ensure consistent quality 

in case administration, but are also highly useful in 

protecting the claimant’s privacy, as well as avoiding 

potential conflicts of interest or other improprieties. 

VETS standard investigative procedures preclude 

investigators from contacting an employer or initiating 

an investigation before the signed or electronically-filed 

VETS 1010 has been received. 

If the evidentiary record during a USERRA 

investigation supports the allegations made, VETS’ role 

shifts from neutrality to that of advocate for the 

employee. The agency then attempts to obtain 

satisfactory resolution through negotiation or mediation. 

VETS encourages all parties to resolve disputes and 

avoid litigation. This is in keeping with the Purpose 

and Sense of Congress “to minimize the disruption to 

the lives of persons performing service in the uniformed 

services as well as to their employers....” 38 U.S.C. 

§4301. 

A claimant whose case is being investigated by VETS 

may also be represented by a third party, so long as the 

third party does not interfere with VETS’ investigation. 

Accordingly, if a third party representative contacts the 

employer during VETS’ investigation, such 

unauthorized contact may result in VETS closing the 

case administratively. 

VETS REFERRAL PROCESS

A claimant may request referral to the Department of 

Justice (DOJ) for claims involving private and 

State/local government entities or to the Office of 

Special Counsel (OSC) for claims involving Federal 

executive agencies. VETS must refer a claim if the 

claimant so requests, regardless of whether VETS has 

found merit in the complaint. Also, at any point during 

the investigative process, the claimant may elect to 

withdraw the case and pursue enforcement through 

private counsel. 

DOJ ENFORCEMENT

If the Attorney General is reasonably satisfied that the 

claimant is entitled to relief, then the Attorney General 

may exercise his prosecutorial authority and represent 

the service member’s USERRA claim. On September 

28, 2004, DOL signed an MOU with the Attorney 

General outlining each agency’s 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 to 

improve the processing of many USERRA referrals 

and to allow for prompt resolution of complaints. 

DOJ, VETS, and DOL’s Regional Solicitors Offices 

(RSOL) have worked cooperatively to meet the 

MOU’s goals, including the recent implementation of a 

new integrated case management system that will 

increase communication between the agencies. DOJ, 

VETS, and RSOL will continue in FY07 to improve 

and refine the processes they have established to 

guarantee future success. 

In the MOU, the Attorney General assigned 

responsibility for handling USERRA referrals to DOJ’s 

Civil Rights Division. Within the Civil Rights 

Division, USERRA referrals are assigned to the 

Employment Litigation Section (ELS). ELS is made 

up of approximately seventy attorneys, paralegals, and 

support staff. Until the 2004 MOU, ELS’s primary 

responsibility had been to enforce provisions of Title 

VII of the Civil Rights Act of 1964 against state and 

local government employers. Over the past forty years, 

ELS attorneys have investigated, litigated and resolved 

some of the most complicated employment 

discrimination cases in the country. This experience 

has made ELS well-suited to assume responsibility for 

enforcing USERRA. 

Since the signing of the MOU, members of ELS’s 

management staff regularly participate in monthly 

USERRA conference calls with DOL’s National Office 

of the Solicitor and RSOL offices. These monthly 

teleconferences allow participants to discuss 

developing USERRA issues and provide ELS the 

opportunity to share any issues it may be experiencing 

in processing USERRA referrals. In addition, DOJ has 

taken measures to ensure attorneys handling USERRA 

referrals receive training in USERRA jurisprudence. 

Each attorney joining ELS receives USERRA training 

materials. DOJ periodically provides continuing legal 

education to update ELS staff on USERRA 

developments. Finally, ELS management staff actively 

participated in the creation and integration of the new 

USERRA case management information system. 

OSC ENFORCEMENT

OSC’s enforcement responsibilities apply in the 

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. 

FISCAL 2006 2 
FY06 PROGRAM ACTIVITIES AND 

ACHIEVEMENTS

In order to increase awareness of rights and 

responsibilities among USERRA stakeholders, the 

Secretary of Labor, under USERRA authority, directed 

the Department to promulgate regulations (an authority 

not previously exercised). Prepared in consultation with 

the Secretary of Defense, these regulations implement 

the law as it applies to States, local governments, and 

private employers. The USERRA regulations became 

effective January 18, 2006, and were codified as 20 

C.F.R. Part 1002. Written in a plain-English questionand-answer format, the regulations cover all aspects of 

USERRA. In the rulemaking process, the Department 

of Labor reviewed more than 300 comments from 80 

sources on the proposed rule to address topics important 

to employers and service members. 

Employers, benefits associations, law firms, veterans, 

reserve component members and military attorneys 

were the principal source of substantive comments. 

Their collective recommendations involved health and 

pension benefits, reemployment positions, rate of pay, 

the form and timing of advance notice, employees’ 

waivers of reemployment rights and various other 

issues. VETS carefully considered all comments. This 

process was critical to determining whether changes to 

the proposed rule were warranted. 

The campaign to increase USERRA stakeholder 

awareness of rights and responsibilities continued in 

2006 through periodic updates of the USERRA elaws 

Advisor (www.dol.gov/elaws/userra.htm), targeted 

outreach to stakeholders, USERRA training provided at 

the National Veteran Training Institute (NVTI), and a 

USERRA 101 basic online instruction 

(http://nvti.cudenver.edu/USERRAcd/). The USERRA 

online instruction course is primarily intended for use 

by VETS employees, as well as by ESGR ombudsmen. 

The purpose of this course is to introduce and reinforce 

understanding of the various employment and 

reemployment protections set forth in the USERRA 

statute itself. VETS continues to improve USERRA 

case management coordination and the program’s 

operational efficiency across Federal agencies. 

In April 2006, VETS commissioned a system 

enhancement project aimed at creating a shared 

electronic case and data management system. The 

enhanced USERRA Information Management System 

(UIMS) allows VETS’ Federal partners with 

administrative and enforcement responsibilities under 

USERRA (OSC, DOL and ESGR) to access the 

system, thereby transforming the UIMS into a 

centralized system for tracking individual USERRA 

cases throughout their lifecycle. It should be noted that 

each of the stakeholder agencies still maintain their 

own systems for case tracking, but the VETS enhanced 

UIMS provides a centralized means for those agencies 

to track cases from their inception to resolution. 

In July 2006, VETS designated a corps of six regional 

Senior Investigators and a Chief Senior Investigator in 

the VETS national office to provide training and 

guidance to regional investigative staffs, as well as to 

provide quality assurance reviews of existing USERRA 

cases and review closed USERRA cases. In addition, 

they are responsible for preparing memorandums of 

referral (MORs) and maintaining oversight of all 

compliance activities undertaken in their respective 

regions. They are also responsible for providing 

training at USERRA basic and investigator courses as 

well as Veterans’ Employment Opportunity Act 

(VEOA) courses held at the National Veterans 

Training Institute (NVTI) in Denver, Colorado (to 

ensure that course material is current and properly 

applied). 

 

...VETS is helping make the process seamless.

3 USERRA Annual Report to Congress
DOL/OSC Demonstration Project 

Section 204 of the Veterans Benefits Improvement Act 

of 2004 (VBIA), P.L. 108-454, established a three-year 

demonstration project by which OSC must investigate 

Federal sector USERRA claims brought by persons 

whose social security numbers have an odd-numbered 

terminal digit. VETS retains even-numbered Federal 

sector cases. VETS investigators have received training 

from OSC on identifying cases in which other 

prohibited personnel practices are alleged (so-called 

“mixed claims”) and immediately refer those cases 

containing such allegations to OSC. 

In FY06, OSC received and opened 169 cases under the 

demonstration project. Sixty-seven (67) percent 

(114/169) of those cases came from VETS, and thirtythree (33) percent (55/169) were filed directly by 

service members or their representatives with OSC. 

Twenty-five (25) percent (43/169) of the demonstration 

project cases opened in FY06 were mixed claims. The

remaining seventy-five (75) percent (126/169) were 

filed by service members having a social security 

number that ended in an odd-numbered digit whose 

claims did not also contain a prohibited personnel 

practice allegation. 

The 169 demonstration project cases contained 176 

USERRA allegations. The 176 allegations were 

comprised of 127 discrimination allegations (72%), 28 

reemployment allegations (16%), 16 disabled veteran 

discrimination allegations (9%), and 5 retaliation 

allegations (3%). 

OSC obtained corrective action in twenty-seven (27) 

percent (34/125) of the demonstration project cases 

closed in FY06. 

The OSC demonstration project was scheduled to end 

September 30, 2007. 

 

  

MANDATED REPORTING REQUIRMENTS

THIS REPORT WAS PREPARED IN ACCORDANCE WITH SECTION 4332 OF USERRA, 38 U.S.C. § 4332, 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 MATTERS 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.

The Department of Labor (VETS) reviewed 1357 cases 

in FY06. Reviewed cases are those cases opened in 

conjunction with a signed or electronically-filed 1010-

form (complaint form). The Department of Labor also 

carried over an additional 217 cases from FY05. The 

GAO has expressed concern that individuals who file a 

VETS 1010 form be counted as only one case in VETS’ 

reporting. The count of cases reviewed in FY06 

eliminates one area where duplication might have 

existed in previous reports. That is, when cases were 

closed in one state and reopened in another based on 

the location of the employer. However, if a case is 

closed and subsequently reopened by VETS at the 

claimant’s request, it may be counted as two cases. 

VETS will work to ensure that the FY07 report 

includes only unique cases. 

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

SECTION 4323 OR 4324, RESPECTIVELY, DURING SUCH FISCAL YEAR.

Attorney General (DOJ)

In FY06, 81 merit and non-merit USERRA complaints 

were referred to DOJ through DOL’s Regional 

Solicitors. The DOJ Civil Rights Division’s 

Employment Litigation Section (ELS) handled 75 of 

these complaints and referred 6 to United States 

Attorneys offices for investigation. ELS completed its 

own review of 29 referrals. 

U.S. Office of Special Counsel 

At the start of FY06, OSC had six USERRA referrals 

pending. OSC received and opened 11 merit and nonmerit USERRA referrals from the U.S. Department of 

Labor in FY06.

FISCAL 2006 4 
3. THE NUMBER OF COMPLAINTS FILED BY THE ATTORNEY GENERAL PURSUANT TO SECTION 4323 DURING SUCH 

FISCAL YEAR.

Attorney General (DOJ)

In FY06, DOJ, which includes the Civil Rights Division 

and U.S. Attorneys’ Offices (USAOs), filed 4 

complaints in Federal District Court on behalf of 

USERRA claimants and resolved 3 cases through 

consent decrees. Two of the consent decrees entered 

related to complaints filed in FY06, and one of the 

consent decrees related to a complaint filed in FY05. 

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

Cases Reviewed by DOL

During FY06, DOL reviewed 1357 cases and 217 

reviewed cases were carried over from FY05. 

The total combined percentage of all USERRA issues 

alleged in the cases reported exceeds 100% because 

many USERRA cases involve multiple allegations. The 

nature of allegations reported are as follows: military 

obligations discrimination 33.6%; reinstatement 24.3%; 

other non-seniority benefits 9.1%; promotion 7.3%; 

vacation 6.1%; status 6.6%; pay rate 6.3%; reasonable 

accommodation/ retaining for non-qualified/non- 

 disabled 0.3%; discrimination as retaliation for any 

action 5.8%; seniority 5.4%; pension 4.4%; initial 

hiring discrimination 3.4%; layoff 3.1%; special 

protected period charge 2.5%; health benefits 1.9%; 

reasonable accommodations/retraining for disabled 

1.7%; and other 11.6%. 

 

DOL closed 1377 cases in FY06 under the following 

closure codes: no merit 383; administrative 280; claim 

granted 245; claim settled 169; claim withdrawn 136; 

not eligible 71; referred 93. An explanation of case 

closure codes follows. 

  

CASE CLOSURE CODES EXPLAINED

• ADMINISTRATIVE CLOSURE (AD): 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 claim, 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 (CG): When the employer grants all of the claimant's entitlements. 

• CLAIM SETTLED (CS): When the claimant and the employer agree to settle the claim for less than the 

claimant's full entitlements under USERRA. 

• WITHDRAWN CLAIM (CW): When the claimant informs VETS in writing of his/her desire to withdraw the 

claim. 

• NOT ELIGIBLE (NE): 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 (NM): The claimant is not entitled to any 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. 

 5 USERRA Annual Report to Congress
Cases Referred to and Complaints filed by the 

Attorney General (DOJ) 

In FY06, the DOJ Civil Rights Division’s Employment 

Litigation Section (ELS) received 81 case referrals from 

VETS through the Regional Solicitor of Labor (RSOL). 

The Civil Rights Division forwarded 6 cases to the 

USAOs, and declined representation in 71 cases, 

including 15 cases referred in previous years, based 

upon the division’s independent analysis and the 

Department of Labor’s recommendation that they 

lacked merit. 

 

The cases referred to the Civil Rights Division in FY06 

involved a number of USERRA issues. Approximately 

twenty-seven percent or 22 of these cases involved 

allegations of termination, another approximately 

twenty-four percent or 20 of these cases involved 

allegations of improper reinstatement, while 

approximately thirty-one percent or 25 of these cases 

involved allegations of various forms of 

discrimination such as failure to promote, failure to 

hire, improper discipline, and retaliation. The 

remaining approximately forty-four percent or 36 of 

these cases involved other USERRA issues, including 

loss of pay, loss or reduction in benefits or leave, and 

loss of seniority. There was some overlap because 

many of the cases involved allegations of discrimination 

in addition to the underlying adverse action. In those 

instances, ELS staff counted each issue separately. 

In FY06, the Department of Justice filed 4 complaints in 

Federal District Court on behalf of USERRA claimants 

and resolved 3 cases through consent decrees. 

Settlements were negotiated in 3 cases. USAOs 

declined representation in 4 cases (including 3 cases 

referred in FY05), based on their findings that the cases 

lacked merit. Eleven cases remained under USAO 

review at the end of FY06 (including 7 cases from 

previous fiscal years). 

ELS attorneys are currently litigating Woodall et al. v. 

American Airlines, Inc. in the U.S. District Court for 

the Northern District of Texas. In that case, the 

complaint alleged class USERRA violations against 

American Airlines, Inc. The named plaintiffs were all 

military pilots who were also commercial pilots for 

American. The complaint alleged that, based upon 

American Airlines’ audit of military leave taken by 

American Airlines pilots in 2001, American Airlines 

reduced the employment benefits of those pilots who 

had taken military leave, while not reducing the same 

benefits of those who had taken similar types of nonmilitary leave. Specifically, the complaint alleged that 

non-military pilots were allowed to accrue sick leave 

and vacation time and bid on flights while similarly 

situated pilots on military leave were not allowed to do 

so. 

In FY07, DOL will continue to work with DOJ to 

ensure referrals are promptly and carefully processed 

and that each meritorious referral is resolved to the 

satisfaction of the veteran and the government. While 

DOJ will continue to aggressively pursue litigation 

when warranted, it seeks to resolve meritorious 

referrals without litigation whenever feasible. 

Avoidance of litigation allows the veteran to receive 

relief without having to endure lengthy delays inherent 

in litigation, and provides DOJ the opportunity to 

leverage its resources to assist a greater number of 

claimants. 

Cases Referred to OSC

Nature of Referrals Received – The 11 referrals 

received in FY06 were comprised of 7 discrimination 

cases (64% of total referrals), two reemployment cases 

(18%), and two cases containing both discrimination 

and reemployment allegations (18%). 

Disposition of Referrals – OSC processed (i.e., 

reviewed, conducted supplemental investigations, and 

resolved, closed, or designated as MSPB litigation) 

14 referrals during the fiscal year. Three USERRA 

referrals were pending at the end of the fiscal year. 

OSC declined representation in 11 referrals. The 

Special Counsel obtained corrective action in three 

referrals and also successfully resolved one referral 

that had been previously designated for litigation and 

was pending before the MSPB. 

FISCAL 2006 6 
5. AN INDICATION OF WHETHER THERE ARE ANY APPARENT PATTERNS OF VIOLATION OF THE PROVISIONS OF 

THIS CHAPTER, TOGETHER WITH AN EXPLANATION THEREOF. 

Department of Labor

Federal Military Leave Cases – The Department of 

Labor worked cooperatively and successfully during 

FY06 with officials from the Department of Defense 

and the Office of Personnel Management to address 

administratively an expected surge in cases rising from 

a decision by the U.S. Court of Appeals for the Federal 

Circuit in Butterbaugh v. Department of Justice, 336 

F.3d 1332 (Fed. Cir. 2003). The court in that case held 

that, pursuant to 5 U.S.C. § 6323, Federal employees 

could be required to take military leave only on days 

which they were required to work and that agencies 

should have allowed 15 workdays – not calendar days 

– of military leave for reserve training. Believing that 

administrative processing of Butterbaugh claims could 

produce quicker relief for service members than could 

be achieved through the normal USERRA investigation 

and litigation process, the Labor Department opened a 

dialog with DOD and OPM. These talks resulted in 

comprehensive guidance that now helps Federal human 

resource officers resolve these cases quickly and 

efficiently, leaving VETS investigators free to 

concentrate on other equally important USERRA 

matters. 

Office of the Special Counsel

Educating the Federal Sector and Preventing Future 

Violations via Systemic Relief – In FY06, OSC 

identified two common USERRA violations. The first 

involved the manner in which a Federal employer 

handled the reemployment of injured service members. 

For example, many Federal employers were unaware of 

their obligation to seek placement assistance from the 

U.S. Office of Personnel Management upon 

determining that it was unable to reemploy the injured 

service member. The second violation concerned the 

kinds of documentation that federal employers 

demanded from service members requesting leave in 

connection with military service. 

In response to those problems, OSC created federal 

employer training documents that identify and explain 

federal employers’ obligations regarding these two 

issues. Whenever these issues are identified during the 

course of an OSC USERRA investigation, the training 

document is sent to the involved agency to be 

disseminated to managers and human resource staff. 

When such letters were sent, the agencies were grateful 

to receive appropriate guidance from OSC. 

6. 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. 

a) Currently, a person who dies while serving on 

active duty will not receive any pension credit 

under USERRA because pension rights do not 

mature until reemployment. Congress may wish to 

consider amending USERRA to provide that if a 

person dies during an absence due to performance 

of active duty, the individual’s estate would receive 

proper credit for the period of service up to the date 

of death. 

b) USERRA does not incorporate a statute of 

limitations and expressly precludes application of 

a State statute of limitations. At least one court, 

however, has held that the four-year general 

Federal statute of limitations, 28 U.S.C. 1658, 

applies to actions under USERRA. Rogers v. City 

of San Antonio, 2003 WL 1566502 (W.D. Texas), 

reversed on other grounds, 392 F.3d 758 (5th Cir. 

2004). The Department of Labor’s regulations 

presume that there is no statute of limitations, but 

Congress may wish to consider amending 

USERRA to clarify that no statute of limitations 

may apply to USERRA. 

7 USERRA Annual Report to Congress
APPENDIX

Report of the Employer Support of the Guard and Reserve 

Employer Support of the Guard and Reserve (ESGR) is 

a Department of Defense organization within the Office 

of the Assistant Secretary of Defense for Reserve 

Affairs (OASD/RA). ESGR provides information, 

education, and when necessary, informal mediation, for 

employers of Guard and Reserve members, as 

designated through Department of Defense Directive 

1250.1. The ESGR mission is to gain and maintain 

active support from all public and private employers for 

the men and women of the National Guard and Reserve. 

As such, ESGR is the primary DOD organization 

dedicated to providing its customers and stakeholders 

with information about USERRA.

ESGR has conducted outreach to Reserve component 

(RC) members and the nation’s employers since its 

inception in 1972. Hundreds of thousands of RC 

members and employers have benefited from ESGR 

products and services. Since the terrorist attacks of 

September 11, 2001, and the subsequent Global War on 

Terrorism, ESGR has ramped up its activity in step with 

the increased mobilization of the RC. 

ESGR has a 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 National 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 National Guard 

or Reserve service, training, or duty requirements 

through information services and informal 

mediation. 

• Assist in educating National 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 Reserve component employees, 

in order to sustain National Guard and Reserve 

participation. 

Today, more than 4,000 volunteers serve on local 

ESGR Committees. With help and resources from the 

National ESGR Headquarters in Arlington, Virginia, 

the 56 ESGR Field Committees conduct employer 

support programs, including Ombudsmen services and 

employer outreach programs to further the 

understanding and compliance of USERRA 

regulations. 

ESGR conducts both proactive outreach programs and 

offers reactive 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 5-Star Employer Program and 

recognition of employers who go “above and beyond” 

the requirements of USERRA. 

Five-Star employers are those who have completed the 

following steps: 

1. Sign Statement of Support – demonstrable 

compliance of USERRA 

2. Review HR policy 

3. Train supervisors and managers on USERRA 

4. Provide “Above and Beyond” HR policy 

5. Advocate for Guard/Reserve 

The ESGR awards program is designed to recognize 

employers for employment policies and practices that 

are supportive of their employees’ participation in the 

National Guard and Reserve. 

FISCAL 2006 8 
All employer recognition and awards originate from 

nominations by individual Reserve component 

members, and recognize individual supervisors through 

the Patriot Award, and culminate in national recognition 

of the most outstanding employers through the annual 

Secretary of Defense Employer Support Freedom 

Award. 

During FY06, ESGR recognized 16,193 supervisors of 

RC members through the Patriot Award. During the 

same time period, 11,396 employers participated in the 

5-Star Employer Program, and the National Committee 

on ESGR received 918 nominations for the Secretary of 

Defense Employer Support Freedom Award. In 

comparison, during FY05, ESGR recognized 18,102 

supervisors of RC members through the Patriot Award. 

During the same time period, 10,909 employers 

participated in the 5-Star Employer Program, and ESGR 

received 1,492 nominations for the Freedom Award. 

Ombudsman Services 

The primary means of assistance in preventing, 

resolving, or reducing employer and/or employee 

problems and misunderstandings that result from 

National Guard or Reserve membership is done through 

a nationwide Ombudsman Program. The Ombudsman 

Program provides information, informal mediation, and 

referral service to resolve employer conflicts. ESGR is 

not an enforcement agency and does not have statutory 

authority to offer formal legal counsel or to participate 

in any formal litigation process. 

ESGR provides a national network of over 900 

volunteer Ombudsmen to help resolve USERRA 

compliance issues. These volunteers receive training on 

USERRA and dispute resolution techniques, and serve 

as informal mediators between the employer and 

employee to inform and educate all parties on the 

requirements of the law and to assist in finding a 

mutually agreeable solution. 

The ESGR Ombudsman Program is but one avenue 

available to RC members and their employers in 

resolving USERRA issues. The Department of Labor 

has Congressional authority to investigate USERRA 

violations. RC members and employers may also retain 

private counsel. 

ESGR signed a Memorandum of Understanding 

(MOU) in 2006 with the Department of Labor (DOL) 

to improve information sharing regarding USERRA 

cases, and also has an informal working agreement 

with the Office of Special Counsel. These inter-agency 

relationships have considerably improved services 

provided to all customers regarding USERRA issues. 

ESGR classifies incoming queries to its Ombudsman 

Program as information-only queries, or as actual 

Ombudsman cases. Information-only queries are those 

resolved through a factual provision of the law. Cases 

are defined as a specific challenge due to perceived or 

actual violation of the law. The MOU between ESGR 

and the DOL stipulates that ESGR forward any case 

not informally resolved by ESGR after 14 days to the 

DOL. 

During FY06, ESGR received 8,158 inquiries. Of 

those, 5,093 were information-only, and 3,065 were 

actual USERRA cases. Of those 3,065, ESGR 

resolved all but 87, and referred those 87 to the DOL. 

During FY05, ESGR received 7,897 inquires. Of 

those, 3,761 were informational, and 4,136 were 

USERRA cases. ESGR resolved all but 141 of the 

4,136 ombudsman cases, and referred the 141 to DOL. 

9 USERRA Annual Report to Congress
FOR USE BY PRIVATE SECTOR AND STATE GOVERNMENT EMPLOYERS
FOR USE BY FEDERAL EXECUTIVE AGENCIES
OFFICE OF VETERANS’ EMPLOYMENT AND TRAINING SERVICE

U.S. DEPARTMENT OF LABOR

200 CONSTITUTION AVENUE, NW 

WASHINGTON, DC 20210