USERRA entitles servicemembers to return to their civilian employment upon completion of their military service with the seniority, status, and rate of pay that they would have obtained had they remained continuously employed by their civilian employer. USERRA also prohibits discrimination based on present, past and future military service.
The Attorney General has authority to bring lawsuits against private, state, and local government employers for violations of USERRA only upon receiving complaint referrals from the Department of Labor (“DOL”). Prior to referral, DOL’s Veterans’ Employment and Training Service (“VETS”) investigates and attempts to resolve servicemember complaints. If the Attorney General is reasonably satisfied that the servicemember is entitled to relief, the Attorney General may commence an action in federal court on behalf of the servicemember. 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 servicemember.
In cases where the Attorney General does not bring the case against a state employer, an individual is often precluded from bringing suit.
The Attorney General has assigned responsibility for handling USERRA referrals to the Civil Rights Division (“the Division”) of the United States Department of Justice. Within the Division, USERRA referrals are assigned to the Employment Litigation Section, which often handles the referrals in cooperation with local United States Attorneys’ Offices.
Since the Division assumed USERRA enforcement authority in 2004, it has filed 106 USERRA lawsuits and favorably resolved 193 USERRA complaints either through consent decrees obtained in those suits or through facilitated private settlements.
USERRA currently allows for recovery of lost wages and benefits and liquidated damages up to double that amount.
The Division continues to seek other advantageous ways to improve protections for servicemembers under USERRA. For example, in 2017-18, the Division supported sections of legislation introduced in the prior Congress, S.646, the “Justice for Servicemembers and Veterans Act of 2017,” that would have strengthened protections for servicemembers under USERRA. The Department recently organized a listening session with the Reserve Officers Association and the Department of Labor in order to gather information on current trends in USERRA litigation and determine methods in which the statute may be improved. The Division also files amicus briefs in cases where the Department has a substantial interest in the interpretation of the statute. Recently, the Department filed an amicus brief in Mueller v. City of Joliet in support of an Illinois National Guard member who alleged that the City of Joliet violated his USERRA protections by denying him the opportunity to accrue employment benefits while he was deployed as part of a state counter-drug operation. The district court dismissed his claim, agreeing with the defendants that USERRA does not protect a servicemember called to duty in a state counter-drug operation because it considered this to be state, not federal, National Guard service. The Department filed a brief on the appeal from the district court urging reversal.
Department Of Justice Pleadings And Case Information
Goodman v. City of New York
Collins v. Key Safety Systems, Inc.
Mueller v. City of Joliet