prepared by

Office of the Assistant Secretary

for Veterans’ Employment and Training 

U.S. Department of Labor

200 Constitution Avenue, NW | Washington, DC

uniformed services employment and reemployment rights act of 1994

ANNUALREPORT TOCONGRESS

december 2013

2012
The purposes of the Uniformed Services Employment and Reemployment Rights Act (USERRA) are: to encourage 

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

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

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

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

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

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

38 U.S.C. § 4301, Purposes and Sense of Congress
TABLE OF CONTENTS

INTRODUCTION 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 2012 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; 

an individual’s current service in 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 for filing a USERRA claim, testifying, or otherwise providing assistance in any 

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

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

person is entitled to be reemployed with the status, seniority, and rate of pay as if 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 2012 report was prepared in accordance with 38 U.S.C. § 4332(a), which 

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

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

information for the preceding fiscal year: 

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

the fiscal year for which the report is made.

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

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

during the fiscal year for which the report is made.

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

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

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

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

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

such fiscal year.

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

through ESGR of the Department of Defense that involve the same person. 

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

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

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

disability.

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

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

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

the Standard Occupational Classification System.

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 nonveteran – 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. The Office of 

Personnel Management (OPM) and all Federal agencies have a responsibility for promoting 

USERRA awareness on account of the training law requirement at 38 U.S.C. § 4335. 

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 formally investigates complaints received and attempts to 

resolve those complaints. 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 the 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, in U.S. District Court or before the MSPB, either on their own or with the assistance of a 

private attorney. 

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

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

 

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 

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

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 a DOD operational committee 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) service members and their employers since 

its inception in 1972. Hundreds of thousands of RC service 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 coupled with humanitarian response, 

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 military participation. 

Today, more than 4,900 volunteer ombudsmen serve across the nation in all 50 States, the District of 

Columbia, Guam-CNMI, Puerto Rico, and the U.S. Virgin Islands. 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 2012, ESGR volunteers influenced 

161,440 employers and 482,916 service members, informing both groups on the responsibilities and 

rights under USERRA. 
3 

Outreach Programs 

ESGR conducts awareness and recognition programs aimed at employers of RC service 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 participate in the Statement of Support Program 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 appreciate the values, leadership, and unique skills service members bring to the 

workforce and will encourage opportunities to hire Guardsmen, Reservists, and veterans.

4. 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 National Guard and Reserve. 

Several employer awards originate from nominations submitted by service members, recognizing 

supervisors with 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 2012, ESGR recognized 12,073 supervisors of RC service members with the Patriot 

Award. HQ ESGR received 3,236 nominations for the 2012 Secretary of Defense Employer Support 

Freedom Award. During the same time period, 54,889 employers signed Statements of Support. 

Ombudsman Services 

The primary means of assisting National 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 interagency relationships have considerably improved services provided to all customers regarding 

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

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

that the service member may file a case with DOL or retain private counsel. ESGR has a national 

network of more than 650 volunteer ombudsmen to help resolve USERRA compliance issues. 

ESGR’s volunteers receive training on USERRA and dispute resolution techniques, and serve as a 

neutral third-party between the employer and employee to inform and educate all involved parties on 

the requirements of the law and to assist in finding a mutually agreeable solution. 
4 

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

address USERRA conflicts without litigation. RC service 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 2012, ESGR received 21,521 contacts by telephone and email. Of those contacts, 2,793 

resulted in actual USERRA cases for mediation purposes. ESGR mediation efforts also covered an 

array of USERRA issues that included 1,271 complaints involving some type of military 

discrimination, 764 complaints involving job reinstatement and reemployment problems, and 15 

complaints involving possible retaliation or reprisal. There were 627 complex USERRA cases 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 had the option to file a case 

with DOL or seek assistance through a private attorney. 

 

ESGR and 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 National 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 950,000 individuals on USERRA. In FY 2012 alone, VETS 

presented USERRA information to more than 75,000 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 easy-to-understand question-andanswer format, is sent to each claimant within five days of VETS’ receipt of a complaint. 

The assigned investigator collects and reviews pertinent documentary evidence and interviews 

necessary witnesses, 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 
5 

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 from VETS and pursue the 

claim with private counsel. A claimant whose case is being investigated by VETS may be 

concurrently represented by a third party including private counsel, but VETS will continue its efforts 

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

CASE REFERRAL PROCESS

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

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

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

requests, regardless of whether VETS has found merit in the complaint. DOL has 60 days to 

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

DEPARTMENT OF JUSTICE ENFORCEMENT

The Department of Justice and the Department of Labor work collaboratively to meet the goal of 

ensuring service members’ USERRA rights are protected. If DOL cannot resolve a service member’s 

USERRA claim, the service member may ask DOL to refer the service member’s claim to the 

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

memorandum analyzing the case and providing a recommendation as to whether representation 

should be provided or declined. 

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

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

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

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

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

States files suit in the name of the service member. If DOJ determines that it will not offer 

representation to the service member, it informs the service member of this decision and notifies him 

or her that he or she has the right to proceed with private counsel. In all cases, DOJ ensures that each 

USERRA referral receives careful consideration and is processed as expeditiously as practicable. 

The Department of Justice continues to ramp up its enforcement of USERRA against private, State

and local employers, through litigation, facilitated settlements, outreach and advocacy. Since 2004, 

DOJ has filed 77 USERRA lawsuits seeking relief for service members and favorably resolved 119 

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 service members and employers nationwide, including the American Bar Association, the 
6 

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

Attorneys. DOJ also has sent to Congress proposed legislation that would strengthen protections and 

increase DOJ’s enforcement authority. Among other things, this legislation would give DOJ 

authority to initiate pattern or practice litigation to address systemic violations affecting multiple 

service members. Finally, DOJ has actively participated as amicus curiae in appeals involving the 

important rights of service members, including the Supreme Court case Staub v. Proctor Hospital, the 

Second Circuit case Serrichio v. Wachovia Securities, and the First Circuit case Rivera-Melendez v. 

Pfizer Pharmaceuticals, LLC. DOJ also intervened and participated as amicus curiae to defend 

USERRA’s constitutionality in Weaver v. Madison City Board of Education (N.D. Ala.), filed in 

2012, and Ramirez v. State of New Mexico Youth and Family Services (N.M. App.), filed in 2013. 

In FY 2013, 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 a written legal analysis from the Solicitor’s Office which includes a recommendation 

regarding the merit of the claim. 

USERRA IN THE FEDERAL SECTOR

The Federal government is committed to being a model employer under USERRA. In July of 2012, 

President Obama issued a Memorandum reaffirming the Administration’s commitment to the 

employment and reemployment rights of service members and veterans and reiterating that the 

“Federal Government, as our Nation’s largest employer, has a responsibility to adopt best practices 

with respect to employing returning service members.” The President established a USERRA 

Employment Protection Working Group to coordinate and review agency efforts to implement model 

practices and comply with the statute. DOL, DOJ, OSC, and other key Federal agencies participated. 

The Working Group led Federal agencies in the establishment of training protocols for senior leaders 

and managers, human resources professionals, legal departments, and service members, so that all 

front-line agency personnel understand their role in USERRA. On September 10, 2013, the U.S. 

Office of Personnel Management issued guidance in response to the President’s Memorandum on 

ways to improve USERRA protection policies and practices. This guidance contains strategies and 

data improvements for agencies to use to help strengthen their response to USERRA. A focus on 

continuous engagement with service members before, during and after their military service will help 

ease their transition from active duty to the civilian Federal workforce, which will in turn help further 

the goal of making the Federal government a model employer and help agencies comply with 

USERRA. In addition, continued identification and sharing of best practices will ensure that the most 

effective approaches are used to assist our veterans and service members as they search for 

employment or return to their civilian jobs with the Federal government. 
7 

USERRA DEMONSTRATION PROJECT

VETS and OSC have been collaborating on implementing and supporting the General Accountability 

Office’s (GAO) assessment of a three-year demonstration project, mandated by the Veterans’ 

Benefits Act of 2010, Pub. L. No. 111-275 (VBA of 2010), to compare the performance of VETS and 

OSC in the handling of USERRA complaints against Federal government agencies across a number 

of dimensions, such as timeliness, case outcomes, and cost effectiveness. Under the Demonstration 

Project, which began on August 9, 2011, OSC investigates and attempts 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 investigates and attempts to resolve the remaining Federal complaints 

(those associated with even-numbered SSNs that have no related PPP allegation), and all non-Federal 

complaints (those against private, State, and local employers).2 

During Fiscal Year 2012, USERRA Demonstration Project cases were distributed as follows:

 

Demonstration 

Project Cases

Cases 

Pending at 

Start of 

FY 2012

New 

Cases 

Opened in 

FY 20123

Total Cases 

Reviewed in 

FY 2012

Cases 

Closed in 

FY 2012 

Cases 

Pending at 

Start of 

FY 2013

VETS 14 114 128 100 28

OSC 28 150 178 90 88

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 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. 

To further comply with the VBA of 2010, VETS and OSC developed and implemented a customer 

satisfaction survey (CSS) to measure USERRA claimants’ overall satisfaction with the investigative 

process and to offer them an opportunity to comment on the manner in which their claims were

handled. Recognizing that the responses to the CSS may be based on the outcome of a particular 

case, VETS and OSC developed a series of questions designed to elicit unbiased information in such 

 

2 USERRA complaints received by OSC under the Demonstration Project are separate and apart from USERRA cases 

referred to OSC by DOL under 38 U.S.C. Sec. 4324 (see “CASES REFERRED TO THE OFFICE OF THE SPECIAL COUNSEL”).

3 Investigations of certain USERRA Demonstration Project cases that started in one agency were found to belong properly 

with the other agency for completion of the investigation, under Project guidelines. For Annual Report tracking purposes, 

each such case is counted under the agency that completed the investigation. In FY 2012, OSC initiated investigation on 

two Demonstration Project cases that were later forwarded to VETS for completion of the investigation. Those two cases 

are counted under VETS’ totals.
8 

areas as professionalism, oral and written communication, courtesy, access to VETS or OSC staff, 

and the claimants’ view of the overall quality of the investigation. 

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 1,275 new unique cases in FY 2012 (OSC reviewed an additional 150 new unique 

cases as part of the USERRA Demonstration Project which began on 8/9/2011).4 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 2007 – FY 2012. 

 Fiscal Year FY 2007 FY 2008 FY 2009 FY 2010 FY 2011 FY 2012

New VETS Cases

(Federal and Non-Federal)

1,226 1,389 1,431 1,438 1,548 1,275

OSC Cases 

(Federal only)

139 37 n/a* n/a* 28 150

Total New Cases 1,365 1,426 1,431 1,438 1,576 1,425

In FY 2012, DOL also carried over an additional 179 unique cases (open investigations) from FY 

2011, and OSC also carried over from FY 2011 an additional 28 unique cases (open investigations, as 

part of the USERRA Demonstration Project). During FY 2012, the Department reopened 10 cases 

from FY 2011 and two from FY 2010 or earlier. In sum, DOL reviewed a total of 1,466 unique cases 

in FY 2012, and OSC reviewed an additional 178 unique cases. 

 

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

DEFENSE, DURING THE FISCAL YEAR.

During FY 2012, ESGR received 21,521 contacts by telephone and email. Of those contacts, 2,793 

resulted in actual USERRA cases for which ESGR Ombudsmen services were provided. 

 

4 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 

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 2012, DOL referred 111 cases to the Attorney General’s Civil Rights Division and 23 cases to 

OSC. During the fiscal year, OSC did not represent any Service Members 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 nine USERRA complaints in FY 2012. Eight of these cases have now settled and the 

remaining case is in active litigation. 

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

THAT INVOLVE THE SAME PERSON. 

ESGR provided VETS with the names of 2,793 individuals who had filed the 2,793 cases reviewed 

by ESGR Ombudsmen in FY 2012, and the date of each case. VETS compared the ESGR data to its 

own data5 on cases initially opened from October 1, 2011 through October 31, 20126. This 

comparison resulted in 258 likely matches; thus, it appears that 9% of FY 2012 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. Twenty-three of the new unique cases, or 1.8%, of those reviewed by DOL in 

FY 2012, involved a disability-related issue.

ii. Forty-one of the new unique cases, or 1.5% of those reviewed by ESGR in FY 

2012, involved a disability-related issue. 

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

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

iv. Of the nine cases filed by DOJ in FY 2012, none involved a disability-related 

issue. 

v. With respect to the 258 cases reviewed by DOL and ESGR involving the 

same person in FY 2012, four (1.6%) involved a disability-related issue.

 

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

complete confidence. 

6 October data was included to capture late FY 2012 ESGR cases that were filed with VETS early in FY 2013.
10 

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

i. In FY 2012, VETS asked claimants whether they had a service-connected disability. 

Among the 1,275 new unique claims VETS received, VETS obtained responses from 

1,261 claimants, 21% (261) of whom reported having such a disability. Among these 261 

claimants who reported having a service-connected disability, 21 also claimed a 

USERRA-related disability issue. Among the remaining 1,000 claimants who responded 

but did not report having a service-connected disability, two claimed a USERRA-related 

disability issue. 

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

person with a service-connected disability.

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

claimant who reported a service-connected disability, with four of those claimants also 

claiming a USERRA-related disability issue. Eight of those referred to OSC involved a 

claimant who reported a service-connected disability, with two of those claimants also 

claiming a USERRA-related disability issue. 

iv. Of the nine cases filed by DOJ in FY 2012, one involved a person with a serviceconnected disability; however, none of those nine claimants also claimed a USERRArelated disability issue. 

v. With respect to the 258 cases reviewed by VETS and ESGR involving the same person in 

FY 2012, VETS obtained service-connected disability responses from 255 of these 

claimants, 16% (42) of whom reported having such a disability. Four claimants among 

the 42 who reported having a service-connected disability also claimed a USERRArelated disability issue. 

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

1, 2, 3, 4, OR 5. 

i. CASES REVIEWED BY THE DEPARTMENT OF LABOR 

The following issues were raised in the new unique USERRA cases reviewed by DOL: 
11 

Cases Opened by VETS in FY 2012

USERRA ISSUE

VETS CASES 

ALLEGING ISSUE*

NUMBER PERCENT

Military obligations discrimination 471 36.9% 

Reinstatement 347 27.2% 

Other non-seniority benefits 39 3.1% 

Promotion 66 5.2%

Vacation 46 3.6% 

Status 38 3.0% 

Pay rate 74 5.8% 

Reasonable accommodation/ retraining for nonqualified/non-disabled 5 0.4% 

Discrimination as retaliation for any action 87 6.8%

Seniority 49 3.8% 

Pension 44 3.5%

Initial hiring discrimination 90 7.1% 

Layoff 38 3.0%

Special protected period discharge 25 2.0% 

Health benefits 17 1.3% 

Reasonable accommodations/retraining for disabled 23 1.8% 

Other 37 2.9%

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

1,275 new unique cases reported by VETS in FY 2012 and the combined percentages exceed 100%.

 

DOL closed 1,290 cases in FY 2012 under the following closure codes: no merit, 427 (33%); 

administrative, 86 (7%); claim granted, 227 (18%); claim settled, 116 (9%); claim withdrawn, 228 

(18%); not eligible, 53 (4%); referred, 125 (10%); merit, not resolved, 25 (2%); merit undetermined, 

3 (<1%).7 An explanation of case closure codes follows. 

 

7 Combined closure code percentages exceed 100% due to the effects of rounding each code to a whole percentage. 
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 1,271 complaints 

involving some type of military discrimination, 764 complaints involving job reinstatement and 

reemployment problems; and 15 cases involving possible retaliation or reprisal during FY 2012. 

ESGR resolved 2,166 of its 2,793 Ombudsman cases. There were 627 USERRA Ombudsman cases 

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

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

assistance through a private attorney. 

The following crosswalk aligns the issues identified in ESGR case data with VETS 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 multiple 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 2012, the Civil Rights Division received 41 referrals from DOL where DOL found that the 

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

offered representation in 12 cases, facilitated 11 settlements, and declined representation in 13 cases 

(one due to the service member obtaining private counsel). Two referrals were withdrawn by the 

service member, and two referrals involved State agencies and DOJ declined to pursue litigation. 

With respect to the remaining referral, DOL was able to settle the matter before DOJ decided whether 

to offer representation. 

DOJ received an additional 70 referrals from DOL in FY 2012 with a recommendation that the 

claims 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 with respect 

to 57 referrals. Two referrals were withdrawn by the service member, and the remaining 11 referrals 

involved State agencies and, in agreement with DOL, DOJ declined to pursue litigation. 

The cases referred to the Civil Rights Division in FY 2012 involved a number of USERRA 

issues. Approximately 26% (29) of these cases involved allegations of termination and/or discharge, 

approximately 33% (37) of these cases involved reemployment allegations, while approximately 18% 

(20) 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 13% (14) involving failure to promote, 

approximately 12% (13) involving failure to hire, approximately 2% (2) involving service-connected 

disability, and approximately 61% (68) involving actions affecting the service member’s terms and 

conditions of employment, such as discipline or harassment. The remaining 5% (5) of these cases 

involved allegations of retaliation for asserting USERRA protection.8

CASES REFERRED TO THE OFFICE OF THE SPECIAL COUNSEL

During Fiscal Year 2012, DOL referred 23 cases to OSC at the request of the service member, under 

38 U.S.C. Sec. 4324. Additionally, 18 cases referred to OSC during the previous fiscal year 

remained pending at the beginning of Fiscal Year 2012.9

 Thus, 41 total cases were pending at OSC 

during the fiscal year. OSC did not file any actions with the U.S. Merit Systems Protection Board 

during the fiscal year, but obtained corrective action for four service members, including two service 

members for whom OSC provided legal representation. 

In 33 of the 41 cases, the service member alleged discrimination based on uniformed service, 

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

10 cases, violations of reemployment rights; and in five cases, retaliation for exercising USERRA 

rights.

10

 

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

9 One referral counted here as pending at the beginning of FY 2012 had actually been referred by DOL to OSC during FY 

2011; however, that case file was not received by OSC until FY 2012. 

10 The totals do not add up to 41 cases because some cases contain multiple allegations (i.e., there were 48 allegations in 

the 41 cases).
15 

Of the 41 total cases, OSC completed 30 cases during Fiscal Year 2012, while 11 cases remained 

pending at the end of the fiscal year. OSC did not file any actions with the U.S. Merit Systems 

Protection Board during the fiscal year, but obtained corrective action for four service members, 

including two service members for whom OSC provided legal representation 

USERRA cases referred to OSC by DOL under 38 U.S.C. Sec. 4324 are separate and apart from 

USERRA complaints received by OSC under the current USERRA Demonstration Project (see

“USERRA DEMONSTRATION PROJECT”).

iv. COMPLAINTS FILED BY THE ATTORNEY GENERAL

The Department of Justice filed nine USERRA complaints in FY 2012. Eight of these cases have 

now settled and the remaining case is in active litigation. 

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

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

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

data on USERRA cases during the fiscal year, 258 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 REVIEWED BY DOL AND ESGR

INVOLVING THE SAME PERSON 

USERRA ISSUE

CASES ALLEGING ISSUE*

NUMBER PERCENT

Military obligations discrimination 107 41.5% 

Reinstatement 71 27.5% 

Other non-seniority benefits 6 2.3% 

Promotion 8 3.1% 

Vacation 3 1.2% 

Status 12 4.7% 

Pay rate 16 6.2% 

Reasonable accommodation/ retraining for nonqualified/non-disabled 1 0.4% 

Discrimination as retaliation for any action 16 6.2% 

Seniority 17 6.6% 

Pension 7 2.7%

Initial hiring discrimination 6 2.3% 

Layoff 6 2.3%

Special protected period discharge 6 2.3% 

Health benefits 5 1.9% 

Reasonable accommodations/retraining for disabled 4 1.6% 

Other 5 1.9%

* 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 258 ESGR and VETS cases involving the same person, 

and the combined percentages exceed 100%. Matching of FY 2012 ESGR cases and VETS cases initially opened 

10/1/2011 to 10/31/2012 is based on claim dates and claimant names.

DOL closed all of these 258 likely matches by May 31, 2013, under the following closure codes: no 

merit, 85 (33%); administrative, 19 (7%); claim granted, 48 (19%); claim settled, 26 (10%); claim 

withdrawn, 42 (16%); not eligible, 8 (3%); referred, 22 (9%); merit, not resolved, 7 (3%); merit 

undetermined, 1 (<1%). 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 in FY 2012. Therefore, SOCS 

code data is not available for cases filed only with ESGR. 

VETS was able to obtain the SOCS code in 98% (1,252) of the unique complaints filed in FY 

2012. That data reveal that 21% of complaints involved Protective Service 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 2012, VETS 

obtained the SOCS code in all but one of the 258 cases. That data reveal that 23% of those cases 

involved Protective Service occupations, 9% involved Office and Administrative Support occupations, 

and each of the following occupational categories involved 7% of these cases: Management; Sales and 

Related; Installation, Maintenance, and Repair; and Healthcare Practitioners and Technical. 

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

2012, VETS obtained the SOCS code in all but two of the 111 cases. That data reveals that 25% of those 

cases involved Protective Service occupations. Two other occupational categories each involved 11% of 

these cases: Transportation and Material Moving; and, Management. 

VETS obtained the SOCS code in all 23 of the cases referred to OSC from DOL through VETS and 

SOL in FY 2012. That data reveals that 22% of cases involved Business and Financial Operations, 17% 
18 

involved Protective Service occupations, and three other occupational categories each involved 13% of 

these cases: Office and Administrative Support; Healthcare Practitioners and Technical; and, Life, 

Physical, and Social Science. 

Occupations Involved in FY 2012 USERRA CASES11

As designated by the Standard Occupational Classification System (SOCS)

SOCS Job Family 

Percentage of Cases 

involving SOCS Code

VETS Cases Referrals to Common 

to VETS 

DOJ OSC & ESGR

Protective Service 21% 25% 17% 23%

Office and Administrative Support 11% 6% 13% 9%

Transportation and Material Moving 9% 11% 4% 6%

Management 8% 11% 4% 7%

Sales and Related 7% 3% 0% 7%

Installation, Maintenance, and Repair 7% 3% 0% 7%

Production 5% 2% 0% 4%

Healthcare Practitioners and Technical 4% 6% 13% 7%

Food Preparation and Serving Related 4% 2% 0% 2%

Business and Financial Operations 4% 6% 22% 2%

Education, Training, and Library 3% 6% 0% 5%

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 2012. DOL will continue to monitor 

USERRA cases to identify trends as they arise.

 

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

exceptions as noted here): Architecture and Engineering (Exception: 4% of Cases Common to VETS & ESGR); Arts, Design, 

Entertainment, Sports, and Media; Building and Grounds Cleaning and Maintenance; Community and Social Services; 

Computer and Mathematical (Exceptions:4% of Referrals to both DOJ & OSC, and 5% of Cases Common to VETS & 

ESGR); Construction and Extraction (Exception:5% of Referrals to DOJ); Farming, Fishing, and Forestry; Healthcare 

Support (Exception:4% of Referrals to OSC); Legal (Exceptions:6% of Referrals to DOJ & 4% of Referrals to OSC); Life, 

Physical, and Social Science (Exception:13% of Referrals to OSC); Military Specific; and, Personal Care and Service

occupations. 
19 

10. RECOMMENDATION FOR ADMINISTRATIVE OR LEGISLATIVE ACTION THAT THE 

SECRETARY, THE ATTORNEY GENERAL, OR THE SPECIAL COUNSEL CONSIDERS 

NECESSARY FOR THE EFFECTIVE IMPLEMENTATION OF THIS CHAPTER, INCLUDING ANY 

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

FILED UNDER THIS CHAPTER, BETWEEN EMPLOYERS AND PERSONS SEEKING 

EMPLOYMENT OR REEMPLOYMENT. 

 

RECOMMENDATION FROM DOJ AND DOL: Strengthen the United States’ ability to enforce USERRA, 

in the following ways: Ensure that USERRA is consistent with other civil rights laws by allowing the 

United States to bring suit in its own name as the plaintiff, to vindicate the public interest in ensuring the 

statute is enforced; to challenge identified patterns and practices that violate the law; 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 strengthen the United States’ ability to enforce 

USERRA, including by the means set forth in two provisions of the “Putting Our Veterans Back to 

Work Act of 2013,” S. 6, which would significantly strengthen the Attorney General’s authority to 

enforce USERRA. First, Section 401 of S. 6 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. 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. 6 would also 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 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, Section 404 of S. 6 would further amend 

USERRA to provide the Attorney General with civil investigative demand 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 civil investigative demand proposal in S. 6 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 2004-2012. No reports are available 

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

Veterans Benefits Improvement Act of 2004, P.L. 108-454, 118 Stat. 2598 (December 2004).
Office of Veterans’ Employment and Training 

U.S. Department of Labor | 200 Constitution Avenue, NW | Washington, DC