The Dole Act Supercharges USERRA Service Members’ Workforce Protections

Quick Hits

• The Dole Act provides minimum liquidated damage awards of $50,000 for certain USERRA violations and mandates awards for attorneys’ fees for successful USERRA plaintiffs.
• The Dole Act expands USERRA retaliation protections.
• The Dole Act makes it easier for USERRA claimants to obtain early case injunctive relief.
• The Dole Act sets a 3 percent interest rate on back pay awards.

The Dole Act provides broad benefits for veterans and service members, including provisions relating to Veterans Community Care Programs, nursing homes, long-term care, medical treatment, educational assistance, disabilities, and homeless veterans. Included with these benefits is the Employment and Training portion of the act, which provides several increased USERRA workforce protections discussed below.

Increased Retaliation Protections

Before the Dole Act, USERRA’s prohibitions against retaliation were limited to “discrimination in employment” and “adverse employment action.” Under the Dole Act these protections are expanded to also include “other retaliatory action.” Though the judiciary has not yet applied the Dole Act, the statute creates an arguable presumption that plaintiffs no longer need to prove adverse employment action to support a claim for retaliation under USERRA. By shifting the focus away from adverse employment actions and discrimination, employment plaintiffs may no longer be required to show a material change in employment conditions or significant harm to prove retaliation.

Increased Liquidated Damages

Before the Dole Act, USERRA allowed liquidated damages against a state, private, or local government employer where the employer’s failure to comply with USERRA was found to be “willful.” Before the Dole Act the liquidated damages were to be in amount equal to claimant’s lost wages and benefits. The Dole Act makes two significant changes to USERRA liquidated damages: (1) changing the standard to where an employer “knowingly failed” to comply with USERRA and (2) providing a minimum liquidated damages award of $50,000 even where no lost wages and benefits are recovered by the USERRA claimant. This means a court can now require an employer to pay the greater of either (1) $50,000 or (2) the sum of lost wages and benefits and prejudgment interest awarded.

Prejudgment Interest Rate Set

Before the Dole Act, USERRA did not set a prejudgment interest rate for awards of lost wages or benefits. In addition to setting a floor on liquidated damages, the Dole Act also sets a 3 percent interest rate for prejudgment awards of lost wages or benefits. This means that a court can now require an employer to pay 3 percent interest on lost wages and benefits resulting from a USERRA violation.

Mandatory Attorneys’ Fee Awards

Before the Dole Act attorneys’ fees were allowed for prevailing USERRA plaintiffs but they were not required. The Dole Act requires the awarding of attorneys’ fees for successful USERRA plaintiffs in actions against state or private employers, actions before the Merit Systems Protections Board, and in the Federal Circuit Court of Appeals. This entitlement to attorneys’ fees can potentially expose an employer to extensive attorneys’ fees in a case where a USERRA plaintiff receives a small monetary recovery. This change combined with the liquidated damages and prejudgment interest changes provides significant enhancement for prevailing USERRA plaintiffs.

Clarified Protection for Career Military Members

Before the Dole Act, USERRA’s stated purpose was to “encourage noncareer service in the uniformed services.” This statement was open to interpretation over whether USERRA protected regular military members on long-term, active duty, or full-time National Guard duty. The Dole Act amended USERRA’s purpose to “encourage service in the uniformed services” broadening the scope of USERRA’s protections to include those part of the regular active-duty forces as well as those whose uniformed service in the reserves or national guard could be considered “career service.” This change inherently amplifies USERRA’s application to voluntary service and broadens USERRA’s protections.

Broader Pretrial Injunctive Relief

The Dole Act allows USERRA plaintiffs to receive an injunction early in their lawsuit to stop USERRA violations if they demonstrate:

1. a violation or threatened violation of USERRA;
2. “the harm to the person outweighs the injury to the employer”;
3. “a likelihood of success on the merits”; and
4. “awarding such relief is in the public interest.”

The Dole Act also prevents courts from denying injunctive relief on the basis that claimants may later recover back pay due at the conclusion of the USERRA litigation. Taken together these changes provide a clear framework for obtaining injunctive relief in USERRA actions and allow this relief in cases where back pay is being requested.

Conclusion

The Dole Act provides significant enhancements to the protections provided by USERRA for employees who serve in the uniformed services. These increased protections bolster retaliation protections and provide easier access to early case injunctive relief. The Dole Act also provides more favorable terms for prevailing USERRA plaintiffs including an award of mandatory attorneys’ fees for prevailing plaintiffs, a set prejudgment interest rate, and minimum liquidated damages of $50,000. These increased protections elevate the risk to employers for USERRA violations and demonstrate the need for employers to understand and comply with USERRA’s provisions.

Ogletree Deakins’ Military Workforce Practice Group will continue to monitor developments with respect to USERRA and the Dole Act and will provide updates as additional information becomes available. Amy Quick Glenos and James A. Patton, Jr. are the co-chairs of the Military Workforce Practice Group.

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