TABLE OF CONTENTS

INTRODUCTION i

OVERVIEW OF USERRA PROTECTIONS 1

USERRA SERVICES OF THE DEPARTMENT OF DEFENSE’S 

EMPLOYER SUPPORT FOR THE GUARD AND RESERVE (ESGR) 2

OVERVIEW 2

ESGR OUTREACH 2

ESGR OMBUDSMEN SERVICES 3

DEPARTMENT OF LABOR (DOL) USERRA OUTREACH AND CASE MANAGEMENT PROCESS 4

VETERANS’ EMPLOYMENT AND TRAINING SERVICE (VETS) PUBLIC EDUCATION 

AND COMPLIANCE ASSISTANCE CAMPAIGN

4

VETS INVESTIGATIVE PROCESS 4

DOL REFERRAL PROCESS 5

DEPARTMENT OF JUSTICE ENFORCEMENT 5

OFFICE OF SPECIAL COUNSEL (OSC) ENFORCEMENT 6

FY 2008 PROGRAM ACTIVITIES AND ACHIEVEMENTS 6

DOL/OSC DEMONSTRATION PROJECT 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 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 Fiscal Year 2008 report was prepared under 38 U.S.C. § 4332(a), which requires the 

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

prepare and transmit an annual report to Congress containing the following information for the 

preceding fiscal year:

1. The number of cases reviewed by the Department of Labor under this chapter during the fiscal 

year for which the report is made.

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

Employer Support of the Guard and Reserve of the Department of Defense during the fiscal 

year for which the report is made.

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

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

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

pursuant to Section 4324 during such fiscal year.

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

such fiscal year.

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

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

Department of Defense that involve the same person.

6. With respect to the cases reported on pursuant to paragraphs 1, 2, 3, 4, and 5 –

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

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

disability.

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

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, 

veteran or non-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. 

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

clear understanding of USERRA among employers and individuals regarding their respective 

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

and Training Service (VETS) and the Department of Defenses’ Employer Support of the Guard 

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

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

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

to them to secure those rights. 

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

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

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

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

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

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

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

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

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

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

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

attorney.

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

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

and resolution, referral, and finally, consideration of whether to provide legal representation. A 

section highlighting significant program activities and achievements for the fiscal year follows. 

Finally, the report responds to each of the statutorily-mandated reporting requirements described 

in the introduction to this report. 
2

USERRA SERVICES OF THE DEPARTMENT OF DEFENSE’S 

EMPLOYER SUPPORT OF THE GUARD AND RESERVE

OVERVIEW

ESGR is a Department of Defense (DoD) directorate within the Defense Human Resources 

Activity. ESGR provides information, education, and, when necessary, informal dispute 

resolution for Guard and Reserve members, as designated through Department of Defense 

Directive 1250.1. The ESGR mission is to gain and maintain employer support for Guard and 

Reserve service by recognizing outstanding support, increasing awareness of the law, and 

resolving conflict through mediation. 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 their 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 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 and dispute resolution services. 

• 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 Reserve Component 

employees in order to sustain Guard and Reserve participation. 

Today, more than 4,500 volunteers serve on local ESGR Field Committees. With help and 

resources from the National ESGR Headquarters in Arlington, Virginia, the 56 ESGR Field 

Committees conduct employer and military outreach programs and Ombudsmen services to 

further the understanding of and compliance with USERRA regulations. 

ESGR conducts both proactive outreach programs and offers reactive Ombudsmen services in 

support of its mission. 

E SGR OUTR E ACH 

ESGR’s awareness and recognition 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.
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Employers who sign a Statement of Support are those who pledge:

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

 Reemployment Rights Act.

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

 employees who serve in the Guard and Reserve.

3. They will continually recognize and support our country’s service members and their families 

 in peace, in crisis, and in war.

The ESGR Awards Program is designed to recognize employers for employment policies and

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

All ESGR employer recognition and awards originate from nominations by individual Reserve 

Component members, acknowledging 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 FY08, ESGR recognized 14,071 supervisors of RC members through the Patriot Award. 

During the same time period, 44,861 employers participated in the Statement of Support 

Program, and ESGR’s National Committee received 2,199 nominations for the Secretary of 

Defense Employer Support Freedom Award. 

E SGR OMBUDSMAN SERVICES

ESGR’s primary means of assisting Guard and Reserve members with USERRA conflicts is 

done through a nationwide Ombudsman Program that reduces, resolves and helps prevent 

employer and/or employee misunderstandings and problems. The Ombudsman Program 

provides education, information, and third-party neutral 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 a Memorandum of Understanding (MOU) in 2005 with the Department of Labor 

(DOL) that established timelines to resolve USERRA cases, and improved information sharing 

between the two agencies. DOL has working relationships with the Department of Justice (DOJ) 

and the Office of Special Counsel (OSC) that oversees 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 the DOL stipulates that when a 

case cannot be resolved by ESGR within 7 working days if it involves pay issues, or 14 working 

days for non-pay issues, 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 over 850 volunteer Ombudsmen to help resolve USERRA 

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

techniques, and serve as third-party neutrals 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. 
4

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 the Department of Labor, which has 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 ESGR’s USERRA complaints and information requests. The CSC provides expedient, 

expert telephonic and email responses to service members and employers on all USERRA 

related matters. 

DOL’S USERRA OUTREACH AND CASE MANAGEMENT PROCESS

VETS PUBLIC EDUCATION AND COMPLIANCE ASSISTANCE CAMPAIGN

VETS conducts an aggressive public outreach campaign to educate service members, employers 

and others on their rights and responsibilities under USERRA. Since the terrorist attacks of 

September 11, 2001, VETS has briefed over 536,000 individuals on USERRA. In FY 2008 

alone, VETS presented USERRA information to over 97,000 people. Briefings to mobilizing 

and demobilizing members of the Guard and Reserves are given in collaboration with the 

Department of Defense’s Employer Support of the Guard and Reserve. Together, the two 

agencies strive to ensure that every Guard and Reservist participates in 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 the National 

Committee for Employer Support of the Guard and Reserve, with the subsequent VETS

filing. Upon receipt of an electronically filed or signed completed complaint form (the VETS 

1010), VETS opens a formal investigation within five business days.

The assigned investigator collects and reviews pertinent documentary evidence and interviews 

available witnesses, under authority of subpoena if necessary. In order to ensure that 

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

VETS investigators are trained to follow the agency’s rigorous operating procedures. 

Investigators do not contact an employer or initiate an investigation before the signed or 

electronically-filed VETS 1010 has been received. 

If the evidentiary record 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. This is in 

keeping with the law’s stated 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, their 

fellow employees, and their communities.” 38 U.S.C. § 4301.
5

At any point during the investigative process, the claimant may elect to withdraw the complaint

and pursue enforcement through private counsel. In addition, a claimant whose case is being 

investigated by VETS may also be represented by a third party, but VETS will continue its 

efforts only as long as the third party does not interfere with the investigation. 

DOL REFERRAL PROCESS

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

satisfaction, VETS advises the claimant in a written closing letter of his or her right to have the 

case referred to either the DOJ or to the OSC, as appropriate. VETS must refer a claim if the 

claimant so requests, regardless of whether VETS has found merit in the complaint. As part of 

the referral process, before the case is sent to DOJ or OSC, the Department of Labor’s Office of 

the Solicitor (SOL) conducts a legal review of the case file and ensures that appropriate 

documentation necessary for litigation is included. 

DEPARTMENT OF JUSTICE ENFORCEMENT

When a claimant requests referral of a claim that involves a non-Federal employer, DOL refers

the 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 an 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. Within the Civil Rights Division, USERRA 

referrals are assigned to the Employment Litigation Section (ELS). ELS is made up of 

approximately 77 attorneys, paralegals, and support staff. Over the past 40 years, ELS attorneys 

have prosecuted and resolved some of the most complicated employment discrimination cases in 

the country. This experience made ELS well-suited to assume responsibility for enforcing 

USERRA.

DOJ, VETS and SOL work collaboratively to meet the MOU’s goals, and fully utilize the

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

VETS and the SOL will refer the claim to the Attorney General. Each referral includes: (1) the 
6

VETS investigative file; (2) a memorandum analyzing the case and providing a recommendation, 

based upon the facts and the law, as to whether representation should be provided or declined; 

and (3) an SOL legal analysis and recommendation regarding the merit of the claim.

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

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, ELS ensures that each USERRA referral receives 

careful consideration and is processed as expeditiously as practicable. 

In FY 2009, DOJ will continue to work with DOL to ensure that referrals are promptly and 

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

member and the government. While DOJ will continue to aggressively pursue litigation when 

warranted, it seeks to resolve meritorious referrals without contested litigation whenever 

practicable. 

OFFICE OF SPECIAL COUNSEL ENFORCEMENT

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

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

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

FY 2008 Program Activities and Achievements

VETS made a number of significant improvements to its USERRA case processing and data 

quality in FY 2008. Most importantly, in February 2008, VETS implemented a new USERRA 

Operations Manual. The manual was created as an electronic document, and allows investigators 

to toggle from instructions to the corresponding section of the law or the appropriate regulation. 

The manual also provides templates for many of the important communications that occur 

routinely in the course of an investigation. Because the templates are electronic, investigators 

are able to customize them to address the unique circumstances of a particular investigation, yet 

still retain the uniformity of the investigative process, including advising claimants whose claims 

are not resolved of their right to have their cases referred to DOJ or OSC.

An essential component of the Operations Manual’s implementation was the launching of a 

series of regional training conferences. These conferences, which were mandatory for all 

investigators, consisted of two and one half days of classroom training on USERRA law and 

regulations, identification of USERRA issues, VETS’ investigative procedures, use of the 

Operations Manual and VETS’ investigative database, and customer service. In addition, DOL’s 

Office of the Solicitor provided instruction on referrals, the use of subpoenas and a discussion of 

recent case law. The Department of Justice participated in one of the conferences, discussing the 
7

role of DOJ in USERRA; the session was so successful that plans were made to include DOJ in 

all of the FY 2009 training conferences.

VETS also tested a program of Regional Audits of USERRA case files in two of VETS’ six 

regions in FY 2008. Internal auditors from outside the audited regions reviewed randomly 

selected USERRA case files from each investigator, and discussed their findings with the 

investigator. The regions were then briefed on the overall findings of the audit of their USERRA 

case files, and provided recommendations for improvement. The audit program proved so 

valuable for investigators and managers that plans were made to audit all six regions starting in 

FY 2009.

Finally, VETS took proactive, aggressive action in FY 2008 to safeguard the privacy of 

USERRA claimants. In the light of news reports on breaches of electronic data in both the 

government and private sectors, VETS moved its USERRA investigative database out of a 

secure contractor facility to its current location in the Department behind the DOL firewall, with 

information technology (IT) security expertise provided by the Department’s IT specialists. This 

new IT relationship has resulted in enhanced protection of the privacy information of our 

claimants, and also allowed VETS to focus more on its clients – the veterans who seek our 

assistance.

Another important investment in VETS’ USERRA program was initiated in FY 2008, but will 

not yield results until FY 2009. VETS and DOL’s Center for Program Planning and Results 

contracted for a rigorous process review of the USERRA program. The research will examine 

VETS’ current investigative process and identify program improvement strategies to increase 

efficiency and effectiveness. 

DOL/OSC DEMONSTRATION PROJECT

Pursuant to continuing resolutions passed by Congress, the USERRA Demonstration Project 

(established by Sec. 204 of the Veterans’ Benefits Improvement Act (VBIA) of 2004) was 

extended from its original termination date of September 30, 2007, through December 31, 2007.

During the project, OSC investigated Federal sector USERRA claims brought by persons whose 

social security numbers had an odd-numbered terminal digit, and VETS retained Federal sector 

cases filed by individuals with even-numbered social security numbers. OSC received 37 

Federal sector USERRA cases in the three months of FY 2008 that the demonstration project 

was in place. VETS opened and investigated 166 new Federal sector USERRA claims during 

FY 2008, 30 of which were opened during the final three months of the demonstration project. 
8

MANDATED REPORTING REQUIRMENTS

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.

The Department of Labor reviewed 1,389 new unique cases in FY 2008.

1

 Reviewed cases are 

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

form. 

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

government in FY 2005 – FY 2008. 

 

Fiscal Year FY 2004 FY 2005 FY 2006 FY 2007 FY 2008

New VETS Cases 1,349 1,140 1,265 1,226 1,389

OSC Cases (Federal 

only)

0 112 169 139 37

Total New Cases 1,349 1,252 1,434 1,365 1,426

In FY 2008, the Department of Labor also carried over an additional 241 unique cases from FY 

2007, and one unique case from FY 2006. During FY 2008, the Department reopened 24 cases 

from FY 2007 and three from FY 2006 and earlier. In sum, DOL reviewed a total of 1,658 

unique cases in FY 2008. 

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

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

purposes, and from a claimant reopening a claim that was previously closed. 
9

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

NATIONAL COMMITTEE FOR EMPLOYER SUPPORT OF THE GUARD AND 

RESERVE OF THE DEPARTMENT OF DEFENSE DURING THE FISCAL YEAR.

During FY08, ESGR received 13,090 contacts by telephone, email and facsimile. Of those 

contacts 2,664 resulted in actual USERRA cases for which ESGR Ombudsmen services were 

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 2008, the Attorney General’s DOJ Civil Rights Division received 100 case referrals from 

DOL through VETS and SOL. 

In FY 2008, OSC received 15 case referrals from DOL through VETS and SOL. Three

additional cases were carried over from prior fiscal years. 

OSC provided representation before the Merit Systems Protection Board (MSPB) in one case, 

which was still pending before the MSPB at the end of FY 2008. The case involved was not a 

referral from DOL but was a complaint received directly by OSC pursuant to the USERRA 

Demonstration Project described earlier in this report. 

4. T HE NUMBE R OF COMPL AINT S FIL E D BY T HE AT TOR NE Y GE NE R AL PUR SUANT 

TO SE CT ION 4323 DUR ING SUCH FISCAL Y EAR . 

The Department of Justice filed 11 USERRA complaints in FY 2008. Ten of these cases have 

now settled and one remains in active litigation.

5. T HE NUMBE R OF CASE S R EVIEW E D BY T HE SECRETARY OF L ABOR AND T HE 

SECRETARY OF DE FE NSE T HR OUGH T HE NAT IONAL C OMMITTEE FOR 

E MPL OYER SUPPOR T OF THE GUAR D AND R E SE R V E OF THE DE PAR T ME NT 

OF DE FE NSE T HAT INV OL V E T HE SAME PE R SON.

ESGR provided VETS with the names of the 2,664 individuals who had cases reviewed by 

ESGR Ombudsmen in FY 2008, the date of each claim and the name of the employer involved in 

each case. VETS compared the ESGR data to its own data2 on cases opened from October 1, 

2007 through October 31, 20083

 2 Absent data on the specific allegation(s) involved, case matching cannot be made with complete confidence.

. This comparison resulted in 309 likely matches; thus it appears 

that 12% of FY 2008 ESGR cases were subsequently opened as VETS cases.

3 October was included to capture late FY 2008 ESGR cases that were filed with VETS early in FY 2009.
10

6. W IT H R E SPE CT T O T HE CASE S R E POR T E D ON PUR SUANT T O PAR AGR APHS 1,

2, 3, 4, AND 5—

A . T HE NUMBE R OF SUCH C ASE S T HAT INV OL V E A DISABIL IT Y -R E L AT E D ISSUE .

Thirty-six of the new unique cases, or 2.6 percent, of those reviewed by DOL in 

FY 2008, involved a disability-related issue. Of the 2664 cases reviewed by 

ESGR, twenty (less than 1 percent) involved a disability-related issue. Of the 

cases referred for consideration of litigation, one of those referred to DOJ and 

one of those referred to OSC involved a disability-related issue. None of the 

cases in which OSC initiated action, and none of the cases filed by DOJ in FY 

2008 involved a disability-related issue. Of the 309 cases reviewed by DOL and 

ESGR that involved the same person, 11 (3.6%) involved a disability-related 

issue.

B . T HE NUMBE R OF SUCH C ASE S T HAT INV OL VE A PE R SON WHO HAS A SE R VICE 

CONNE CT E D DISABIL IT Y .

This is a new reporting requirement of the Veterans’ Benefits Improvement Act 

of 2008, which was enacted on October 10, 2008. VETS implemented 

procedures in FY 2009 for collecting data on claimants who report a service 

connected disability, and will report on this category in future annual reports.

7. T HE NAT UR E AND ST AT US OF E ACH CASE R E POR T E D PUR SUANT T O 

PAR AGR APH 1, 2, 3, 4, OR 5.

The following issues were raised in the new unique USERRA cases reviewed by DOL: 

C ASE S R E V IE WE D BY T HE DE PAR T ME NT OF L ABOR 
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Cases Opened by VETS in FY 2008:

USERRA ISSUE

VE T S CASE S 

AL L E GING ISSUE *

NUMBER PE R CE NT

Military obligations discrimination 495 35.6%

Reinstatement 347 25.0%

Other non-seniority benefits 55 4.0%

Promotion 92 6.6%

Vacation 36 2.6%

Status 62 4.5%

Pay rate 53 3.8%

Reasonable accommodation/ retraining 

for non-qualified/non-disabled

5 0.4%

Discrimination as retaliation for any 

action

129 9.3%

Seniority 41 3.0%

Pension 46 3.3%

Initial hiring discrimination 58 4.2%

Layoff 64 4.6%

Special protected period discharge 18 1.3%

Health benefits 24 1.7%

Reasonable accommodations/retraining 

for disabled

36 2.6%

Other 98 7.1%

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

number of cases in this chart exceeds the 1,389 new unique cases 

reported in FY08 and the combined percentages exceed 100%.

DOL closed 1,387 cases in FY 2008 under the following closure codes: no merit 429 (31

percent); administrative 182 (13 percent); claim granted 217 (16 percent); claim settled 165 (12

percent); claim withdrawn 193 (14 percent); not eligible 61 (4 percent); referred 140 (10

percent). An explanation of case closure codes follows.
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Ombudsmen services covered an array of USERRA issues that included 1,207 complaints 

involving job reinstatement and reemployment problems; 1,451 complaints involving some type 

of military discrimination and 6 cases involving possible retaliation or reprisal. 

CASES REVIEWED BY THE SECRETARY OF DEFENSE UNDER THE NATIONAL COMMITTEE FOR 

EMPLOYER SUPPORT OF THE GUARD AND RESERVE

ESGR resolved 1,899 of the 2,664 Ombudsmen cases. There were 765 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 options to file a 

case with DOL or seek assistance through a private attorney. 

In recognition of Congressional interest in being able to compare USERRA data across agencies, 

VETS and ESGR developed the following crosswalk that aligns the issues identified in ESGR 

case data with VETS data on issues the USERRA cases filed involving membership in the Guard 

and Reserve. 

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 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: When the employer grants all of the claimant's entitlements. 

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

the claimant's full entitlements under USERRA. 

• 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 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. 
13
14

The 100 cases referred to the Civil Rights Division in FY 2008 involved a number of USERRA 

issues. Thirty-nine (39) of these cases involved allegations of termination, 25 involved 

reemployment allegations, while 21 involved allegations of loss or denial of benefits, such as 

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

cases involved various forms of discrimination, with 12 involving failure to promote, 7

involving failure to hire, and 4 involving actions affecting the service member’s terms and 

conditions of employment, such as discipline or harassment. The remaining three of these cases 

involved allegations of retaliation for asserting USERRA protection.

CASES REFERRED TO THE DEPARTMENT OF JUSTICE 

4

In FY 2008, the Civil Rights Division received 27 case referrals from DOL where DOL found 

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

ELS offered representation in three of these cases and declined representation in three cases. In 

one case, the service member withdrew his referral request. The remaining 20 cases were still 

under consideration by ELS at the end of the fiscal year. 

DOJ received an additional 73 case referrals from DOL in FY 2008 with a recommendation that 

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

and the ELS’s independent analysis of the merits of each case, ELS declined representation in 67 

case referrals. Six of these non-merit referrals were pending at the end of the fiscal year.

Of the 15 cases referred to the Office of Special Counsel in the fiscal year, six involved 

discrimination allegations, six involved an allegation of reemployment violations, one involved 

the allegation of both issues, and two alleged discrimination and reemployment violations as well 

as retaliation. Of the three cases carried over from previous fiscal years, one alleged disabled 

veteran discrimination and two alleged both discrimination and reemployment violations. 

C ASE S R E FE R R E D T O T HE OFFICE OF THE SPECIAL C OUNSE L 

During FY 2008, OSC closed 13 cases, ten of which were referred during FY 2008. There were 

five cases pending action at OSC at the end of FY 2008, all of which were referred during the 

same fiscal year. 

C ASE S R E V IE WE D BY DOL AND E SGR I NV OL V ING T HE SAME PE R SON

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

Issues involved in 309 cases reviewed by DOL and ESGR that appear to have involved the same 

person included allegations of the following issues: 
15

USERRA ISSUE

CASE S AL L E GING 

ISSUE *

NUMBER PERCENT

Military obligations discrimination 118 38.2%

Reinstatement 87 28.2%

Other non-seniority benefits 10 3.2%

Promotion 19 6.2%

Vacation 8 2.6%

Status 17 5.5%

Pay rate 16 5.2%

Reasonable accommodation/ retraining 

for non-qualified/non-disabled

2 0.7%

Discrimination as retaliation for any 

action

28 9.1%

Seniority 10 3.2%

Pension 6 1.9%

Initial hiring discrimination 11 3.6%

Layoff 18 5.8%

Special protected period discharge 6 1.9%

Health benefits 5 1.6%

Reasonable accommodations/retraining 

for disabled

11 3.6%

Other 17 5.5%

* 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 309 ESGR and VETS 

cases involving the same person, and the combined percentages 

exceed 100%. Case matching between FY08 ESGR cases and 

VETS cases opened 10/1/2007 to 10/31/2008 is based on claim 

dates, claimant names, and employer names.
16

DOL closed 259 of these 309 likely matches by October 31, 2008, under the following closure 

codes: no merit 83 (32 percent); administrative 18 (7 percent); claim granted 46 (18 percent); 

claim settled 43 (17 percent); claim withdrawn 33 (13 percent); not eligible 10 (4 percent); 

referred 26 (10 percent). An explanation of VETS case closure codes appears in the explanation 

of the status of cases reviewed by DOL.

8. W IT H R E SPE CT T O T HE CASE S R E POR T E D ON PUR SUANT T O PAR AGR APHS 1,

2, 3, 4, AND 5, T HE NUMBE R OF SUCH C ASE S T HAT INV OL VE PE R SONS WIT H 

DIFFE R E NT OCCUPAT IONS OR PE R SONS SE E K ING DIFFE R E NT OCCUPATIONS,

AS DE SIGNAT E D BY T HE ST ANDAR D OCCUPAT IONAL CL ASSIFICAT ION 

SY ST E M .

This is a new reporting requirement of the Veterans’ Benefits Improvement Act of 

2008, which was enacted on October 10, 2008. VETS implemented procedures in 

FY 2009 for collecting data on the occupations involved in the USERRA claims it 

receives, and will report on this category in future reports.

9. AN INDICAT ION 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 2008. The Department of Labor 

will continue to monitor its USERRA cases to identify trends as they arise.

10. R E COMME NDAT IONS 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.

The following are recommendations from the Department of Labor:

 Optional continuation of coverage under employer health plan: USERRA section 

4317 gives an employee the right to continue coverage under a health plan during a 

period of military service, but does not expressly preclude an employer from requiring 

continuation of such coverage (and charging the employee for his/her share of the 

premiums) during a period of service. Congress should consider clarifying that USERRA 

provides service members with the option of electing to continue an employer-provided 

health plan. This could be accomplished by amending section 4317 to expressly provide 

that an employer may not require an employee to continue health plan coverage during a 

period of service that exceeds 30 days. 
17

 Successor in Interest: USERRA defines “employer” very broadly, and includes a 

“successor in interest.” 38 U.S.C. § 4303(4)(A)(iv). The Department of Labor’s 

regulations provide, in general, that an employer is a “successor in interest” where there 

is a substantial continuity in operations, facilities and workforce from the former 

employer, and stipulate that the determination of whether an employer is a successor in 

interest must be made on a case-by-case basis using a multifactor test. 20 C.F.R. § 

1002.35. However, one Federal court, in a decision made prior to the promulgation of 

the regulations, held that an employer could not be a successor in interest unless there 

was a merger or transfer of assets from the first employer to the second. See Coffman v. 

Chugach Support Services, Inc., 411 F.3d 1231 (11th Cir. 2005); but see Murphree v. 

Communications Technologies, Inc., 460 F. Supp. 2d 702 (E.D. La. 2006) (applying 20 

C.F.R. § 1002.35 and rejecting the Coffman merger or transfer of assets requirement). 

Congress should consider clarifying the definition of “successor in interest” by 

incorporating the Department’s multifactor test for successor in interest into the statute, 

and also clarifying that neither a merger nor a transfer of assets is a prerequisite to the 

application of the multifactor test.
Office of Veterans’ Employment and Training

U.S. Department of Labor

200 Constitution Avenue, NW

Washington, DC 20210