UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 (USERRA)

How Does the Enforcement Process Work?

VETS will conduct a thorough investigation of the complaint. If violations are confirmed, VETS will attempt to resolve the matter. If the matter cannot be resolved, the next step depends on the type of employer involved.

• If the employer is a federal executive agency, veterans have two options:
  • They can request that DOL refer the case to the Office of Special Counsel (OSC).
    • If OSC agrees there is a violation, federal employees can request that OSC represent them and take the case to the Merit Systems Protection Board (MSPB).
    • Federal employees can also choose to hire their own attorneys to represent them in front of the MSPB.
• If the employer is a private employer, veterans have similar options:
  • They can request that DOL refer the case to the Department of Justice (DOJ).
    • If DOJ agrees there is a violation, veterans can request that DOJ represent them in federal district court.
    • Veterans can also choose to hire their own attorneys to represent them in federal district court.
• If the employer is a state government agency, the statute states that the veteran has similar options, i.e., veterans can request DOL refer the case to DOJ or hire attorneys to represent them.
  • According to the statute, if DOJ decides to represent the veteran, the case is brought in the name of the federal government instead of the employee in federal district court, while if the veteran uses a private attorney, the suit is brought in state court.
    • These provisions were meant to deal with arguments that states are immune from individual lawsuits because of the Eleventh Amendment to the United States Constitution.
    • In Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), however, a similar federal statutory scheme providing for private litigation in state court was found unconstitutional.
• As a result, veterans employed by state agencies may have to rely on state statutes which protect veterans' reemployment rights.
  • In Arizona, A.R.S. § 26-167 and § 26-168 set forth the protections available for members of the national guard employed by private employers and by the state. A.R.S. § 38-298 contains provisions for state employees called to active duty while A.R.S. § 38-610 concerns granting state employees leaves of absence to perform military training.