waiver, service members never give up rights to reemployment, or the right to be treated as continuously employed for seniority purposes upon return to the job. However, a statement of non-return does waive non- seniority benefits. To be effective, a waiver must be made with full knowledge of the rights the service member is giving up, and the employer bears the burden of proof on this issue. Signing such a waiver will almost never be in a service member's best interest.
Q: What enforcement rights are available to a service member if they believe their USERRA rights have been violated? A service member who believes his or her USERRA rights have been violated has several options as discussed below:
(1) The service member should start by contacting the National Committee for Employer Support of the Guard and Reserve (ESGR) at 1-800-336-4590. If an ESGR Ombudsman cannot resolve the matter, the service member may file a complaint with the Veterans' Employment and Training Service (VETS), U.S. Department of Labor, 1-800-442-2838 or (202) 219-9110. If VETS cannot resolve the problem, VETS will inform the complainant of the unsuccessful outcome and further enforcement rights, which include requesting the U.S. Attorney General (in the case of a civilian employer) or the Merit Systems Protection Board (MSPB) Office of Special Counsel (if the employer is the federal government) to bring an enforcement action on the service member's behalf. Such actions are discretionary on the part of the Attorney General or the Office of Special Counsel. USERRA contains jurisdictional and remedial authority for actions by the Attorney General in U.S. District Courts.
(2) The service member may seek legal assistance from the Department of Labor (DOL) and Department of Justice (DOJ). However, the DOL and DOJ will not pursue a USERRA case if a service member is represented by an attorney including a military legal assistance attorney. Therefore, in order to preserve the service member's ability to get assistance from the DOL and DOJ, legal assistance attorneys are limited to conducting mobilization and demobilization briefings, providing sample letter formats, advising service members of the notice requirements of USERRA, advising service members of their rights under USERRA and applicable State laws, referring service members to VETS or ESGR, and providing and preparing DOL Form 1010 to open a file with VETS.
(3) Service members may file a private lawsuit against their employer.
Q: What remedies are available to service members subjected to USERRA violations? U.S. District Courts have broad remedial powers against private employers, to include (1) injunctive relief, (2) money damages, (3) attorney costs, (4) expert witness fees, and (5) other litigation expenses. If the court finds the employer's failure to comply with USERRA was willful, the court may award liquidated damages (in an amount equal to the actual damages) in addition to actual damages. For the purpose of remedies, states are treated as private employers. When the federal government is the employer, the MSPB may award lost wages and benefits, attorney costs, expert witness fees, and other litigation expenses, but may not order liquidated damages for willful misconduct. MSPB may also order federal agencies to comply with USERRA.
Q: Where can I obtain more information on USERRA? Useful information on USERRA may be found on the DOL and ESGR websites at http://www.dol.gov/compliance/laws/comp-userra.htm and http://www.esgr.org.
ASA DIX LEGAL BRIEF is one of a series of Information Papers from the ASA Dix Joint Readiness Legal Section containing general legal information on topics which Legal Assistance Attorneys frequently advise on. Information provided is general in nature and does not constitute formal, specific legal advice. Consult an Attorney for specific legal advice for your particular situation. You may schedule a legal assistance appointment by calling the Joint Base Legal Assistance Division at 609-754-2010. February 2010.