New Year Rings in Stronger USERRA Rights and Enforcement

By Kathryn S. Piscitelli

© Kathryn S. Piscitelli

The New Year rang in enhancement of the civilian employment rights of veterans and servicemembers under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). On January 2, 2025, President Biden signed into law the Senator Elizabeth Dole 21st Century Veterans Healthcare and Benefits Improvement Act. The Dole Act, among other things, amended USERRA to expand job protections of servicemembers and strengthen USERRA enforcement. Some amendments, however, may operate to reduce prior remedies.

USERRA prohibits employers from discriminating against veterans and servicemembers because of their military status or service; provides reemployment rights and other rights and benefits to workers whose civilian jobs are interrupted by military obligations; and bans retaliation against workers who seek to enforce USERRA rights.

Wider Protection from Retaliation

USERRA’s ban on retaliation against persons who exercise a USERRA right, seek to enforce USERRA, or testify or otherwise participate in a USERRA proceeding or investigation now covers much more than “discrimination in employment” and “adverse employment action.” The Dole Act substantially increased the types of reprisals against such persons that an employer is forbidden to take by including any “other retaliatory action.”

The expansion of prohibited retaliatory acts to include any retaliatory action by an employer will free USERRA retaliation litigation from hairsplitting over whether an alleged retaliatory act would qualify as an actionable “adverse employment action” and what legal test to use in making such a determination. Some courts had required a showing of a material change in the terms of conditions of employment.

No showing of a material change or significant harm is required to bring an act within the scope of the any-other-retaliatory-action prohibition.  Nor is there any requirement that the action be employment-related.

Clarification of Protection of Career Military Members

USERRA has always extended civilian employment and reemployment protection to past, current, and future servicemembers, whether in the regular military or the Reserve or National Guard. However, a provision in USERRA caused confusion as to whether USERRA protected regular military members. That provision included “to encourage noncareer service in the uniformed services” among the Act’s stated purposes.

Any misunderstanding caused by the reference to “noncareer service” in USERRA is now gone. The Dole Act deleted the word “noncareer” from the provision. Accordingly, as so amended, the provision now says a purpose of USERRA is “to encourage service in the uniformed services.”

Broader Pretrial Injunctive Relief

As amended by the Dole Act, USERRA now entitles a person suing an employer under USERRA to an injunction early in the lawsuit to stop the employer from violating USERRA if the person shows four things:

1. a violation of USERRA or a threatened or imminent violation of USERRA;
2. harm to the person outweighs injury to the employer;
3. likelihood of success on the employee’s USERRA claim against the employer; and
4. an injunction is in the public interest.

Moreover, the fact that a person suing for unlawful discharge or denial of employment under USERRA may receive an award of back pay no longer affects the person’s ability to obtain an injunction. The amendments prohibit courts from denying injunctive relief on the basis that a claimant may be awarded at the conclusion of a USERRA lawsuit wages unearned due to an unlawful discharge or denial of employment.

Prejudgment Interest Rate Set

Previously, USERRA did not set a rate for prejudgment interest on awards of lost wages or benefits. As amended by the Dole Act, USERRA now authorizes courts to require federal, state, local, and private-sector  employers to pay interest on lost wages or benefits “calculated at the rate of 3 percent per year.”

Prejudgment interest generally serves a make-whole purpose: to compensate an employee for interest on wages or benefits that he or she otherwise would have earned over a period of time had the wages and benefits not been lost due to an employer’s unlawful action. Unfortunately, the 3% annual interest rate set by USERRA may not adequately compensate employees during periods of higher prevailing interest rates. (Currently, the IRS interest rate on underpayment of taxes is 7 percent; the prime rate is 7.5 percent; and Florida’s interest rate on judgments is 9.38 percent.)

Liquidated Damages Enhanced

USERRA previously authorized awards of liquidated damages in an amount equal to a claimant’s lost wages and benefits in cases in which a state, private, or local government employer’s failure to comply with USERRA was found to be “willful.” A violation of USERRA was considered willful if the employer either knew or showed reckless disregard for whether USERRA prohibited its conduct.

The Dole Act enhanced the liquidated damages remedy under USERRA by authorizing liquidated damages even absent recovery of lost wages and benefits and setting $50,000 as the minimum amount for awards of liquidated damages. A court may now require an employer to pay liquidated damages in an amount that is the greater of $50,000 or the amount equal to the sum of lost wages and benefits and prejudgment interest awarded.

However, the standard for holding an employer liable for liquidated damages may be stricter than before. A showing that “the employer knowingly failed to comply with [USERRA]” is now required. The term “willful” has been dropped. It remains to be seen how courts will treat the change in terminology.

Mandatory Awards of Attorney Fees for Prevailing Claimants

As amended, USERRA mandates awards of reasonable attorney fees to claimants who prevail in any lawsuit or proceeding brought under USERRA against a state, private, or local government employer. Previously, USERRA permitted but did not require such awards.

USERRA similarly has been amended to mandate awards of reasonable attorney fees to claimants who prevail before the Merit Systems Protections Board (“MSPB”) in actions under the Act brought against federal agencies.

Moreover, USERRA now requires awards of reasonable attorney fees to claimants who prevail before the U.S. Court of Appeals for the Federal Circuit on petitions for review of MSPB decisions in USERRA cases. USERRA previously made no provision for awards of attorney fees to USERRA claimants prevailing before the Federal Circuit.

Attorney Fee Awards Authorized in Settled MSPB Cases

USERRA now allows awards of reasonable attorney fees to claimants in MSPB cases under USERRA that settle before the issuance of an order. To be eligible for such an award, the claimant must show that significant attorney fees were incurred and justice requires such an award.

Overall, the Dole Act amendments have substantially improved the substantive and procedural rights of servicemembers under USERRA. However, the new flat 3 percent prejudgment interest rate and the replacement of “willful” with “knowingly” as the proof standard for liquidated damages may be setbacks for servicemembers.

USERRA Frequently Asked Questions

What is USERRA?

USERRA is a federal law that protects military servicemembers and veterans from job discrimination and helps you get your civilian job back after military service. The law was strengthened in January 2025 to provide even better protection for service members.

What’s new with USERRA in 2025? 

Important changes to USERRA include:

• Stronger protection against retaliation: Employers are now banned from ANY retaliation, not just job-related actions
• Better protection for career servicemembers: The law now clearly protects both career military members and reservists
• Guaranteed attorney fees: If you win your case, the employer must pay your reasonable attorney fees
• Minimum damages: If an employer knowingly violates your rights, it must pay at least $50,000 in damages

Who does USERRA protect?

USERRA protects past, current, and future members of:

• Any military branch (Army, Navy, Marines, Air Force, Space Force, Coast Guard)
  • Whether regular (“career”) or Reserve members
• National Guard
• Reserve units
• Commissioned Corps of Public Health Service
• FEMA reserve personnel
• Other federal emergency response teams
• Commissioned officer corps of NOAA

What employers must follow USERRA?

Almost all employers must follow USERRA, including:

• Private companies
• Federal government
• State government
• Local government
• All sizes of employers (even small ones)

How does USERRA protect me from discrimination?

Your employer cannot take any of the following actions because of your past, current, or future military service or membership:

• Refuse to hire you
• Fire you
• Deny you a promotion
• Refuse to reemploy you
• Take away benefits

How am I protected from retaliation now?

•         Your employer cannot take ANY type of retaliation against you (not just job-related actions) because you:
  • Testify in USERRA cases
  • Participate in USERRA investigations
  • Report USERRA violations
  • Support others’ USERRA rights

•         The new law removes the need to show a material change in terms of conditions of employment
•         There is no requirement that the action be employment related

Can I get my job back after service?

Generally, yes, if you:

• Gave advance notice of the service to your employer
• Served 5 years or less total during your employment
• Weren’t dishonorably discharged
• Timely sought reemployment

 Does my employer have to pay me when I take military leave?

It depends:

1. Employer policy: If your employer has a policy providing paid military leave, failing to follow that policy could violate USERRA.
2. Equal treatment rule: If your coworkers receive pay while on non-military leave, you might be entitled to pay while on military leave under USERRA’s “equality rule.” You should consult with a USERRA attorney to determine if you qualify.
3. Your choice of paid leave: You have the right to use your accrued vacation, annual, or similar paid leave time while away for military service. This is your choice—your employer cannot force you to use this paid leave.
4. Florida public employees: If you work for a public employer in Florida, you have special paid leave rights under Florida law for certain periods of military service.

Will I lose my seniority and retirement rights if I leave for military service?

•         If you are entitled to reemployment under USERRA and are reemployed, you should not lose your seniority status or pension rights.
•         If reemployed, the entire time of your absence for military service is treated as time at work in computing your seniority and benefits based on seniority.
•         The employer must make up pension or other retirement plan contributions that it would have made.
•         Your makeup contributions may be made over a period 3 times the length of your service (but no longer than 5 years after reemployment).

What can I do if my employer is violating my USERRA rights?

You now have stronger options for immediate help. You can ask the court for an injunction (an order to stop your employer’s illegal behavior) early in your case if you can show:

1. Your employer is violating or about to violate USERRA
2. You’ll suffer more harm than your employer
3. You’re likely to win your case
4. An injunction serves the public interest

The court cannot deny an injunction just because back pay might be awarded later.

What compensation can I receive if I win my case?

If you win, you may be entitled to:

•         Back pay and benefits
•         Interest on lost wages and benefits (at 3% per year)
•         Liquidated damages of at least $50,000 if your employer knowingly violated USERRA
•         Attorney fees (now mandatory if you win)

Do I need a lawyer for my USERRA case?

While not required, having an attorney experienced in USERRA cases can be very helpful. The good news is that under the new law:

•         If you win your case, your employer must pay your reasonable attorney fees
•         This applies to cases against private employers, state and local governments, and federal agencies
•         Attorney fees may even be available in some cases before a final decision

Important note

No time limit exists for filing USERRA claims, but it’s best to act quickly if your rights are violated.

For specific guidance about your situation, consider consulting with an attorney with knowledge and experience in USERRA law. They can help evaluate your case and explain your rights under USERRA.D