• A Department of Labor agency enforces the USERRA provisions.
• USERRA does not preempt state military leave laws unless the laws provide less protection.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is administered by the Department of Labor, through the Veterans’ Employment and Training Service (VETS). VETS helps those experiencing service-related problems with their civilian employment and informs employers about the Act.

Employees have reemployment rights if they:

• Gave advance notice of the leave,
• Have five or fewer years of military service while with the employer,
• Timely returned to work or applied for reemployment, and
• Are not separated from military service with a disqualifying discharge or under other than honorable conditions.

VETS investigates complaints. Filing of complaints with VETS is optional; employees may freely choose to pursue a claim with private counsel.

Veterans Employment and Training Service (VETS) provides assistance to persons claiming rights under USERRA, including persons claiming rights with respect to the federal government as a civilian employer. USERRA has granted VETS subpoena authority so that it can obtain access to witnesses and documents to complete its investigations in a timely and comprehensive manner.

Employees whose complaints are not successfully resolved by VETS may request that their complaints be referred to the Attorney General for possible representation. If the Attorney General is satisfied that a complaint is meritorious, the Attorney General may file a court action on the complainant’s behalf.

If violations under USERRA are shown to be willful, the court may award liquidated damages. Award of back pay or lost benefits may be doubled in cases where violations of the law are found to be willful. “Willful” is not defined in the law, but in general, a violation is willful if the employer’s conduct was knowingly or recklessly in disregard of the law.

The law, at the court’s discretion, allows for awards of attorney fees, expert witness fees, and other litigation expenses to successful plaintiffs who retain private counsel. Also, the law bans charging of court fees or costs against anyone who brings suit.

State military leave laws

Individual states may have laws providing greater protection than USERRA. If that is the case, USERRA does not preempt those laws, but it does preempt state laws that provide less protection.