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 2

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 4

DEPARTMENT OF JUSTICE (DOJ) ENFORCEMENT 5

OFFICE OF SPECIAL COUNSEL (OSC) ENFORCEMENT 6

DOL’S FY 2009 PROGRAM ACTIVITIES AND ACHIEVEMENTS 6

MANDATED REPORTING REQUIREMENTS 7

i

Introduction: 

The Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. §§ 

4301-4335 (USERRA), was signed into law on October 13, 1994. USERRA prohibits 

discrimination in employment based on an individual’s: prior service in the uniformed services; 

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

services. An employer is prohibited from discriminating against a person because of such 

person’s attempt to enforce his or her rights under the Act. In addition, an employer may not 

retaliate against an individual who has testified or otherwise assisted in any proceeding under the 

Act. USERRA also provides reemployment rights with the pre-service employer following 

qualifying service in the uniformed services. In general, the protected person is entitled to be 

reemployed with the status, seniority, and rate of pay as if continuously employed during the 

period of service. USERRA applies to private employers, the Federal Government, and State 

and local governments. It also applies to United States employers operating overseas. 

This Fiscal Year 2009 report was prepared in accordance with 38 U.S.C. § 4332(a), which 

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

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

information for the preceding fiscal year: 

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

year for which the report is made. 

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

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

year for which the report is made. 

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

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

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

pursuant to Section 4324 during such fiscal year. 

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

such fiscal year. 

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

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

Department of Defense that involve the same person. 

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

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

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

disability. 

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

i
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. 
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. Employers 

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

Medical System, or the commissioned corps of the Public Health Service. USERRA also 

protects anyone – Veteran or non-Veteran – from reprisal for either exercising rights, or assisting 

in any proceeding under the statute. Eligibility requirements for Service Members seeking 

reemployment generally provide that the absence must be due to service; advance notice (oral or 

in writing) must be given to the employer; the cumulative period(s) of service while employed 

by the employer must not exceed five years; the application for reemployment must be timely; 

and the discharge from service must not be disqualifying. 

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

clear understanding of USERRA among employers and individuals concerning their respective 

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

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

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

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

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

to them to secure those rights. 

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

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

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

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

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

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

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

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

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

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

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

attorney. 

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

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

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

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

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

requirements described in the introduction to this report. 

1
USERRA SERVICES PROVIDED BY THE DEPARTMENT OF DEFENSE’S 

EMPLOYER SUPPORT OF THE GUARD AND RESERVE

OVERVIEW

ESGR is a DOD organizational element with a vision to develop and promote a culture in which 

all American employers support and value the military service of their employees with ESGR as 

the principal advocate within DoD. Its mission is to develop and promote employer support for 

Guard and Reserve service by advocating relevant initiatives, recognizing outstanding support, 

increasing awareness of applicable laws, and resolving conflict between employers and service 

members. 

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

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

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

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

national defense now more than ever. 

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 services and informal 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 Reserve Component 

employees, in order to sustain Guard and Reserve participation. 

Today, almost 4,600 ESGR volunteers serve across the nation in all 50 states, U.S. territories and 

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

Arlington, Virginia, the 54 ESGR field offices conduct employer and military outreach 

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

USERRA regulations. ESGR conducts proactive outreach programs and provides responsive 

Ombudsmen services in support of its mission. 

 

ESGR OUTREACH 

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

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

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

who go “above and beyond” the requirements of USERRA. 

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

2
1. They fully recognize, honor and enforce USERRA. 

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

employees who serve in the Guard and Reserve. 

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

families in peace, in crisis, and in war. 

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

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

All employer recognition and awards originate from nominations by individual RC members, 

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

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

Support Freedom Award. 

During FY09, ESGR recognized 14,571 supervisors of RC members through the Patriot Award. 

During the same time period, 54,965 employers signed Statements of Support, and ESGR’s 

National office received 3,202 nominations for the 2009 Secretary of Defense Employer Support 

Freedom Award. 

ESGR OMBUDSMAN SERVICES

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

a nationwide Ombudsman Program that reduces, resolves, and helps prevent employer and/or 

employee misunderstandings and problems. The Ombudsman Program provides education, 

information, and informal mediation services to resolve employee/employer USERRA conflicts. 

ESGR is not an enforcement agency, and does not participate in formal litigation processes. 

ESGR has signed a Memorandum of Understanding (MOU) with the Department of Labor 

(DOL) that establishes timelines to resolve USERRA cases, and clarifies information-sharing 

rights and responsibilities between the two agencies. DOL has working relationships with the 

Department of Justice (DOJ) and the Office of Special Counsel (OSC) offices that oversee the 

enforcement of USERRA violations. These inter-agency relationships have enhanced ESGR’s 

USERRA compliance services. 

Among its many volunteers, ESGR has a national network of more than 800 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 resolution. 

The ESGR Ombudsman Services Program is available at no cost to RC members and their 

employers who seek to resolve USERRA questions and differences without litigation. RC 

members may also file complaints directly with DOL, which has Congressional authority to 

investigate USERRA violations and legal authority to subpoena records during an investigation. 

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

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

3
and expert telephonic and email responses to Service Members and employers on all USERRArelated matters. 

DOL’S USERRA OUTREACH AND CLAIMS INVESTIGATION

VETS PUBLIC EDUCATION AND COMPLIANCE ASSISTANCE EFFORTS

VETS conducts an aggressive public outreach campaign to educate Service Members, 

employers, and others on their rights and responsibilities under USERRA. Since the terrorist 

attacks of September 11, 2001, VETS has briefed more than 634,000 individuals on USERRA. 

In FY 2009 alone, VETS presented USERRA information to more than 98,000 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), VETS immediately opens a formal investigation. A brief 

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

to each claimant within five days of VETS’ receipt of a claim. 

The assigned investigator collects and reviews pertinent documentary evidence and interviews 

necessary witnesses, under authority of subpoena if necessary. To ensure investigations are of 

the highest quality and are conducted in a uniform and timely manner, VETS investigators are 

extensively trained in the legal aspects of USERRA and in the agency’s rigorous operating 

procedures. 

If the evidence compiled in a USERRA investigation supports the allegations made, the agency 

will attempt to obtain satisfactory resolution through negotiation or mediation. VETS 

encourages all parties to resolve disputes promptly and avoid litigation if possible. 

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

time for VETS to continue the investigation and attempt to resolve the case. At any point during 

the investigative process, the claimant may elect to withdraw the complaint and pursue 

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

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

as the third party does not interfere with the investigation. 

DOL REFERRAL PROCESS

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

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

4
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, DOL’s Office of the Solicitor (SOL) 

conducts a legal review of the case file and ensures that appropriate documentation necessary for 

litigation is included. DOL has 60 days to complete this referral process, unless the claimant 

agrees to an extension of time. 

DEPARTMENT OF JUSTICE ENFORCEMENT

If VETS cannot resolve a Service Member’s case, the Service Member may ask VETS to refer 

the Service Member’s USERRA claim to the Attorney General for review. If the Attorney 

General is reasonably satisfied that the Service Member is entitled to relief, the Attorney General 

may exercise DOJ’s prosecutorial authority and commence an action in federal court on behalf of 

the Service Member. If the employer is a state or state agency, the action is brought in the name 

of the United States. In all other cases, the United States files suit in the name of the Service 

Member. 

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

of Understanding (MOU) outlining each agency’s respective role in handling claims arising 

under USERRA. The MOU confirmed DOJ’s and DOL’s longstanding commitment to ensuring 

that Service Members’ USERRA rights are protected. The MOU modified the procedures 

regarding the conduct of USERRA investigations and referrals, expediting the processing of 

many USERRA referrals and the prompt resolution of claims. 

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

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

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

case management system that tracks the status and progress of every USERRA referral. This 

case management system has increased communication between the agencies and allows for 

more accurate and uniform case tracking and reporting. 

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

the claim is referred to the Attorney General. Each referral includes: (1) the VETS investigative 

file; (2) a memorandum analyzing the case and providing a recommendation, based upon the 

facts and the law, regarding whether representation should be provided or declined; and (3) an 

SOL legal analysis and recommendation regarding the merit of the claim. 

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

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

Member, or, if the employer is a state, to seek relief on the Service Member’s behalf. If DOJ 

determines that it will not offer representation, or seek relief on the Service Member’s behalf, it 

will inform the Service Member of this decision and notify him or her that he or she has the right 

to proceed with private counsel. In all cases, DOJ ensures that each USERRA referral receives 

careful consideration and is processed as expeditiously as practicable. 

5
In FY 2010, DOJ will continue to work with DOL to ensure that referrals are promptly and 

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

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

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

practicable. 

OFFICE OF SPECIAL COUNSEL ENFORCEMENT

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

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

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

DOL’S FY 2009 PROGRAM ACTIVITIES AND ACHIEVEMENTS

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

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

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

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

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

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

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

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

USERRA claims. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

6
added to VETS’ USERRA Information Management System to catalog and report on new 

information necessitated by the VBIA 08. 

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

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

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

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

and the audit team’s findings were discussed with the investigator. The regions were then 

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

findings will be used to target future USERRA training objectives and to gauge regional and 

national program enhancements. 

Another important activity in FY 2009 was the completion of an independent assessment of 

VETS’ USERRA process, cosponsored by VETS and DOL’s Center for Program Planning and 

Results. The research examined VETS’ current investigative process and recommended several 

program improvement strategies to increase efficiency and effectiveness. VETS is currently 

assessing those recommendations and will begin implementation, as appropriate, in FY 2010. 

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.

The Department of Labor reviewed 1,431 new unique cases in FY 2009.1

 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 2004 – FY 2009. 

 

Fiscal Year FY 2004 FY 2005 FY 2006 FY 2007 FY 2008 FY 2009 

New VETS Cases 1,349 1,140 1,265 1,226 1,389 1,431 

OSC Cases 

(Federal only) 

n/a 112 169 139 37 n/a 

Total New Cases 1,349 1,252 1,434 1,365 1,426 1,431 

 

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. 

7
In FY 2009, the Department of Labor also carried over an additional 244 unique cases from FY 

2008, and two unique cases from FY 2007. During FY 2009, the Department reopened 17 cases 

from FY 2008 and five from FY 2007 and earlier. In sum, DOL reviewed a total of 1,699 unique 

cases in FY 2009. 

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

OF DEFENSE, DURING THE FISCAL YEAR. 

During FY09, ESGR received 31,544 contacts by telephone, email and facsimile. Of those 

contacts 2,475 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 2009, the Attorney General’s DOJ Civil Rights Division received 175 case referrals from 

DOL through VETS and SOL. 

During Fiscal Year 2009, DOL referred 41 cases to OSC at the request of the Service Member. 

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

beginning of Fiscal Year 2009. Thus, 46 total cases were pending at OSC during the fiscal year. 

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

number seven of this report. 

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

TO SECTION 4323 DURING SUCH FISCAL YEAR. 

The Department of Justice filed 22 USERRA complaints in FY 2009. The nature and status of 

those complaints is included in mandatory reporting requirement number seven of this report. 

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 the 2,475 individuals who had cases reviewed by 

ESGR Ombudsmen in FY 2009, 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, 

 

2

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

8
2008 through October 31, 20093

. This comparison resulted in 295 likely matches; thus it appears 

that 12 percent of FY 2009 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-eight of the new unique cases, or two percent, of those reviewed 

by DOL in FY 2009, involved a disability-related issue. 

ii. Of the 2,475 cases reviewed by ESGR, 14 (less than one percent) 

involved a disability-related issue. 

iii. 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. OSC did not initiate any actions before the MSPB in FY 2009. 

iv. Of the 22 cases filed by DOJ in FY 2009, none involved a disabilityrelated issue. 

v. Of the 295 cases reviewed by DOL and ESGR that involved the same 

person, six (two percent) involved a disability-related issue. 

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

SERVICE-CONNECTED DISABILITY.

4

i. In FY 2009, VETS asked claimants whether they had a service-connected disability. 

VETS obtained responses from 1,341 claimants, 17 percent (232) of whom reported 

having a service-connected disability. 

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

person with a service-connected disability, 

iii. Of the cases referred for consideration of litigation, nine of those referred to DOJ and 

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

disability. 

iv. Among the 22 cases filed by DOJ in FY 2009, one claimant reported having a 

service-connected disability. 

v. With respect to the 295 cases reviewed by VETS and ESGR involving the same 

person in FY 2009, VETS obtained responses from 282 claimants, 11 percent (33) of 

whom reported having a service-connected disability. 

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

PARAGRAPH 1, 2, 3, 4, OR 5. 

 

3

 October data was included to capture late FY 2009 ESGR cases that were filed with VETS early in FY 2010. 4

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

information is not available for some cases active in FY 2009 that originated in previous years (such as referrals). 

9
i. CASES REVIEWED BY THE DEPARTMENT OF LABOR 

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

VETS CASES 

Cases Opened by VETS in FY 2009: ALLEGING ISSUE* 

USERRA ISSUE NUMBER PERCENT

Military obligations discrimination 490 34.2% 

Reinstatement 392 27.4% 

Other non-seniority benefits 51 3.6% 

Promotion 94 6.6% 

Vacation 35 2.5% 

Status 67 4.7% 

Pay rate 74 5.2% 

Reasonable accommodation/ retraining 

for non-qualified/non-disabled 

6 0.4% 

Discrimination as retaliation for any 

action 

125 8.7% 

Seniority 47 3.3% 

Pension 53 3.7% 

Initial hiring discrimination 79 5.5% 

Layoff 103 7.2% 

Special protected period discharge 20 1.4% 

Health benefits 20 1.4% 

Reasonable accommodations/retraining 

for disabled 

28 2.0% 

Other 63 4.4% 

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

cases in this chart exceeds the 1,431 new unique cases reported in FY09 and the 

combined percentages exceed 100 percent. 

 

DOL closed 1,448 cases in FY 2009 under the following closure codes: no merit, 454 (31 

percent); administrative, 108 (seven percent); claim granted, 222 (15 percent); claim settled, 182 

(13 percent); claim withdrawn, 229 (16 percent); not eligible, 71 (five percent); referred, 167 (12 

percent); merit, not resolved, 12 (one percent); merit undetermined, 3 (< one percent). An 

explanation of case closure codes follows. 

10
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, 

and that representation interferes with a VETS investigation, he or she will be informed that 

VETS can no longer continue its involvement in the case and that the case will be 

administratively closed. 

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

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

the claimant's full entitlements under USERRA. 

 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 claim, 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.

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

ESGR Ombudsmen services covered an array of USERRA issues that included 1,555 complaints 

involving some type of military discrimination, 918 complaints involving job reinstatement and 

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

ESGR resolved 1,982 of its 2,475 Ombudsmen cases. There were 493 USERRA matters in 

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

Ombudsmen informed both parties that the employee (Service Member) had the option to file a 

case with DOL or seek assistance through a private attorney. 

The following crosswalk aligns the issues identified in ESGR case data with VETS UIMS data. 

11
iii. CASES REFERRED TO THE DEPARTMENT OF JUSTICE OR THE OFFICE OF SPECIAL 

COUNSEL

CASES REFERRED TO THE DEPARTMENT OF JUSTICE

The 175 cases referred to the Civil Rights Division in FY 2009 involved a broad range of 

USERRA issues. Approximately 25 percent (44) of these cases involved allegations of 

12
termination and/or discharge, approximately 46 percent (80) of these cases involved 

reemployment issues, and approximately 12 percent (21) of these cases involved allegations of 

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

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

approximately 10 percent (18) involving failure to promote, approximately .01 percent (2) 

involving failure to hire, and approximately 33 percent (58) involving actions affecting the 

Service Member’s terms and conditions of employment, such as discipline or harassment. The 

remaining .05 percent (9) of these cases involved allegations of retaliation for asserting 

USERRA protection.5

 

In FY 2009, the Civil Rights Division received 65 case referrals from DOL where DOL found 

that the case had merit and recommended that DOJ offer representation to the Service Member. 

DOJ offered representation in 20 referrals, facilitated settlement in seven referrals, and declined 

representation in 34 referrals. In three referrals, the Service Member withdrew his or her referral 

request. The remaining referral remained under consideration by DOJ at the end of the fiscal 

year. 

DOJ received an additional 110 case referrals from DOL in FY 2009 with a recommendation that 

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

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

107 referrals, facilitated settlement in one such referral, and DOL facilitated settlement in 

another referral. DOJ representation was offered in the remaining non-merit referral.

CASES REFERRED TO THE OFFICE OF THE SPECIAL COUNSEL

During Fiscal Year 2009, DOL referred 41 cases to OSC at the request of the Service Member. 

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

beginning of Fiscal Year 2009. Thus, 46 total cases were pending at OSC during the fiscal year. 

In 80.4 percent of the cases, the Service Member alleged discrimination based on military 

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

in 26.1 percent, violations of reemployment rights; in 15.2 percent, retaliation for exercising 

USERRA rights; and in 4.3 percent, disabled Veteran discrimination.6

Of the 46 total cases, OSC completed 39 cases during Fiscal Year 2009, while seven cases 

remained pending at the end of the fiscal year. While OSC did not initiate any new actions 

before the MSPB during the fiscal year, OSC sought and obtained corrective action for four 

Service Members and offered legal representation to three other Service Members, whose claims 

OSC expects to file with the MSPB during Fiscal Year 2010. OSC also successfully litigated a 

previously filed case before the MSPB during the fiscal year. 

iv. COMPLAINTS FILED BY THE ATTORNEY GENERAL

Fourteen of the 22 USERRA complaints filed by DOJ during Fiscal Year 2009 have settled and 

eight remain in active litigation. 

 

5

 Several cases involved multiple issues. Each issue was counted separately. 6

 The totals do not add up to 100 percent because some cases contain multiple allegations. 

13
v. CASES REVIEWED BY DOL AND ESGR INVOLVING THE SAME PERSON

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

comparing ESGR data on USERRA cases during the fiscal year, 295 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: 

CASES ALLEGING 

ISSUE* 

USERRA ISSUE NUMBER PERCENT

Military obligations discrimination 110 37.3% 

Reinstatement 84 28.5% 

Other non-seniority benefits 5 1.7% 

Promotion 15 5.1% 

Vacation 6 2.0% 

Status 16 5.4% 

Pay rate 13 4.4% 

Reasonable accommodation/ retraining for 

non-qualified/non-disabled 

1 0.3% 

Discrimination as retaliation for any action 25 8.5% 

Seniority 12 4.1% 

Pension 9 3.1% 

Initial hiring discrimination 10 3.4% 

Layoff 30 10.2% 

Special protected period discharge 8 2.7% 

Health benefits 5 1.7% 

Reasonable accommodations/retraining for 

disabled 

6 2.0% 

Other 5 1.7% 

* 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 295 ESGR and VETS 

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

FY09 ESGR cases and VETS cases opened 10/1/2008 to 10/31/2009 is based on claim dates, 

claimant names, and employer names. 

DOL closed 218 of these 295 likely matches by October 31, 2009, under the following closure 

codes: no merit, 66 (30 percent); administrative, 12 (6 percent); claim granted, 39 (18 percent); 

claim settled, 36 (17 percent); claim withdrawn, 35 (16 percent); not eligible, 3 (1 percent); 

14
referred, 22 (10 percent); merit, not resolved, 4 (2 percent); merit undetermined, 1 (< 1 percent). 

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

reviewed by DOL. 

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 implemented procedures in FY 2009 for collecting data on the occupations involved in the 

USERRA claims it receives. VETS is the only federal agency that collected occupational data 

on these claimants and recorded the respective Standard Occupational Classification System 

(SOCS) code. Therefore, SOCS code data is not available for cases filed only with ESGR. 

VETS was able to obtain the SOCS code in 90 percent (1,289) of the unique claims filed in FY 

2009. That data reveal that 17 percent of claims involved Protective Services occupations. 

Another 13 percent involved Office and Administrative Support occupations, and 10 percent 

involved Transportation and Material Moving occupations. 

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

2009, VETS obtained the SOCS code in 92 percent (270) of the 295 cases. That data reveal that 

16 percent of claims involved Protective Services occupations. Another 13 percent involved 

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

Transportation and Material Moving. 

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

through VETS and SOL in FY 2009, VETS obtained the SOCS code in 30 percent (53) of the 

175 cases.

7

 That data reveal that 23 percent of claims involved Protective Services occupations, 

and 11% involved Office and Administrative Support occupations. 

VETS obtained the Standard Occupational Classification System (SOCS) code in 41 percent (17) 

of the 41 cases referred to OSC from DOL through VETS and SOL in FY 2009.8 That data 

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

involved Business and Financial Operations occupations. 

 

7

 These 175 cases include all but six of the 22 referral cases filed by the Attorney General in FY 2009. Because 

those six cases were originally filed by the claimants prior to FY 2009, no SOCS data was recorded; therefore, no 

separate SOCS data category is provided here for the 22 cases filed by the Attorney General in FY 2009. 8

 OSC did not initiate any new actions before the MSPB during FY 2009. 

15
Occupations Involved in FY 2009 USERRA CASES9

As designated by the Standard Occupational Classification System (SOCS) 

SOCS Job Family 

Percentage of Cases 

involving SOCS Code 

VETS Referrals to 

Cases 

DOJ OSC 

Common 

to VETS 

& ESGR 

Protective Service 17% 23% 13% 16% 

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

Transportation and Material Moving 10% 8% 4% 10% 

Installation, Maintenance, and Repair 7% 6% 0% 9% 

Production 7% 9% 0% 5% 

Management 6% 9% 8% 9% 

Healthcare Practitioners and Technical 6% 9% 8% 5% 

Sales and Related 5% 2% 0% 4% 

Business and Financial Operations 4% 2% 13% 2% 

Construction and Extraction 3% 2% 4% 4% 

Computer and Mathematical 3% 2% 0% 5% 

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

Education, Training, and Library 3% 4% 0% 3% 

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 2009. DOL will continue to 

monitor USERRA cases to identify trends as they arise. 

 

9

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

(with exceptions as noted here): Architecture and Engineering (Exception: 4 percent of Referrals to DOJ); Building 

and Grounds Cleaning and Maintenance (Exception: 4 percent of Referrals to OSC); Life, Physical, and Social 

Science (Exception: 4 percent of Referrals to OSC); Community and Social Services; Personal Care and Service; 

Legal; Healthcare Support; Arts, Design, Entertainment, Sports, and Media; Farming, Fishing, and Forestry; and 

Military Specific occupations. 

16
10. RECOMMENDATIONS FOR ADMINISTRATIVE OR LEGISLATIVE ACTION THAT THE 

SECRETARY, THE ATTORNEY GENERAL, OR THE SPECIAL COUNSEL CONSIDERS 

NECESSARY FOR THE EFFECTIVE IMPLEMENTATION OF THIS CHAPTER,

INCLUDING ANY ACTION THAT COULD BE TAKEN TO ENCOURAGE MEDIATION,

BEFORE CLAIMS ARE FILED UNDER THIS CHAPTER, BETWEEN EMPLOYERS AND 

PERSONS SEEKING EMPLOYMENT OR REEMPLOYMENT. 

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. 

 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 caseby-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. 

 Clarify that USERRA prohibits wage discrimination against members of the armed 

forces. USERRA’s definition of the terms “benefit”, “benefit of employment”, or “rights 

and benefits” as set forth at 38 U.S.C. § 4303(2), includes “...any advantage, profit, 

privilege, gain, status, account, or interest (other than wages or salary for work performed) 

that accrues by reason of an employment contract or agreement or an employer policy, plan, 

or practice...” (italics added). The parenthetical clause “other than wages or salary for work 

performed” is believed to have been included in the definition to ensure that employers 

would not be required to pay wages to service members who are absent due to a period of 

military service. However, the clause has been wrongly interpreted by at least one court to 

exempt wages and salary from the class of protected employment benefits under USERRA. 

Gagnon v. Sprint Corp., 284 F.3d 839 (8th Cir. 2002) (USERRA does not protect against 

17
18

th Cir. 2008) (“The 

USERRA exempts employers from an obligation to pay benefits that are ‘wages or salary for 

work performed.”). 

The Department of Labor considers it a violation of USERRA for an employer to reduce an 

individual’s wages or salary for work performed” on the basis of that person’s uniformed 

service obligations. DOL therefore recommends that Congress consider clarifying that 

USERRA prohibits wage discrimination on the basis of a person’s military service 

obligations. 

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.
Office of Veterans’ Employment and Training

U.S. Department of Labor

200 Constitution Avenue, NW

Washington, DC 20210