U.S. MERIT SYSTEMS PROTECTION BOARD

Information Sheet No. 10

Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA)

Purpose

The purpose of this information sheet is to provide general guidance and background information. It does not represent an official statement approved by the Board itself, and is not intended to provide legal counsel or to be cited as legal authority. Instead, it is intended only to help the public become familiar with the MSPB and its procedures. In all instances, however, the MSPB's regulations and current case law control with respect to matters discussed here.

What is the Uniformed Services Employment and Reemployment Rights Act of 1994?

The Uniformed Services Employment and Reemployment Rights Act of 1994 or USERRA is a federal law designed to encourage non-career service in the uniformed services by minimizing the disadvantages to civilian careers and employment which can result from such service; to minimize the disruption to the lives of persons performing service in the uniformed service by providing prompt reemployment of such persons upon their completion of military service; and to prohibit discrimination against persons because of their service in the uniformed services. 38 U.S.C. § 4301 .

What types of agency actions are appealable to the Board under USERRA?

There are two types of cases that fall within the Board's jurisdiction under USERRA. The first type is a reemployment case, in which an appellant claims that a federal agency has failed to comply with its obligations to reemploy the appellant after he or she has completed a period of military service. The second type is a “discrimination” case, in which an appellant claims that a federal agency has denied the appellant initial employment, reemployment, retention in employment, promotion, or any “benefit of employment” on the basis of the appellant's military service. Clavin v. U.S. Postal Service , 99 M.S.P.R. 619 , ¶ 5 (2005). In addition, the Board has jurisdiction to adjudicate USERRA reprisal claims, that is, claims that an agency has discriminated or taken an adverse employment action against an appellant in reprisal for: (1) an action to enforce a right under USERRA; (2) the provision of testimony or a statement in a prior USERRA proceeding; (3) participation or assistance in investigating a USERRA claim; or (4) the exercise of a right under USERRA. 38 U.S.C. § 4311 (b).

What constitutes a “benefit of employment” for the purposes of USERRA?

USERRA defines the phrase “benefit of employment” broadly as “any advantage, profit, privilege, gain, status, account, or interest (other than wages or salary for work performed) that accrues by reason of an employment contract or agreement or an employer policy, plan, or practice, and includes rights and benefits under a pension plan, a health plan, an employee stock ownership plan, insurance coverage and awards, bonuses, severance pay, supplemental unemployment benefits, vacations, and the opportunity to select work hours or location of employment.” 38 U.S.C. § 4303 (2).

How do I file a USERRA appeal with the Board?

A person who claims that a federal agency has failed or refused to comply with the provisions of USERRA with respect to the employment or reemployment of such person may file a complaint with the Secretary of Labor, who will investigate the complaint and attempt to resolve it if the Secretary's investigation reveals that the agency committed a USERRA violation. The Department of Labor website describes how to file a USERRA complaint: https://www.dol.gov/agencies/vets/programs/userra . If she is unable to resolve the complaint, the Secretary must provide written notification to the complainant, who may then file a USERRA appeal with the Board or request that the Secretary refer the complaint to the Office of Special Counsel. If a complaint is referred, and the Special Counsel is reasonably satisfied that the complainant is entitled to the benefit sought, the Special Counsel may initiate an action and act as the complainant's attorney before the Board. If the Special Counsel declines to initiate an action on the complainant's behalf, the complainant may file an appeal with the Board. A person may also elect to file a USERRA claim directly with the Board if he or she decides not to seek the assistance of the Secretary of Labor and the Office of Special Counsel. 38 U.S.C. § 4324 (a), (b).

What is the time limit for filing a USERRA appeal with the Board?

Unlike most appeals, there is no time limit for filing a USERRA appeal with the Board. 5 C.F.R. § 1208.12 . However, the Board encourages appellants to file USERRA appeals as soon as possible after the alleged violation occurs or after the appellant receives notice that the Secretary of Labor has been unable to resolve a complaint or that the Office of Special Counsel has declined to initiate an action on the appellant's behalf. Furthermore, while there is no time limit to file a USERRA appeal, the Board can enforce only those rights that existed under USERRA and its predecessor statute (the Vietnam Era Veterans' Readjustment Assistance Act of 1974) at the time the claim accrued. Fernandez v. Department of the Army , 234 F.3d 553 , 556-57 (Fed. Cir. 2000).

Which party has the burden of proof in a USERRA appeal?

In a reemployment case, the agency bears the burden of proving that it met its obligations to reemploy the appellant after a period of military service. Clavin v. U.S. Postal Service , 99 M.S.P.R. 619 , ¶ 6 (2005). In discrimination and reprisal cases, the appellant must initially prove that his or her military status or prior USERRA activity was at least a motivating or substantial factor in the agency action, and, if the appellant meets this burden, the agency must then prove that it would have taken the action for a valid reason despite the appellant's protected status. 38 U.S.C. § 4311 (c)(1), (2); Sheehan v. Department of the Navy , 240 F.3d 1009 , 1013 (Fed. Cir. 2001).

If I win my appeal, what relief will the Board provide?

If the Board determines that an agency has not complied with USERRA with respect to the employment or reemployment of the appellant, the Board will enter an order requiring the agency to comply with the provisions it violated and to compensate the appellant for any loss of wages or benefits the appellant suffered as a result of the agency's violation. In addition, if the Board issues an order in the appellant's favor, it has the discretion to award the appellant reasonable attorney fees, expert witness fees, and other litigation expenses. 38 U.S.C. § 4324 (c).