Kang Haggerty News
In the July 3, 2025 edition of The Legal Intelligencer, Edward Kang writes, “Uniform Protections, Civil Consequences: Litigating Employer Duties to Servicemembers Under USERRA.”
It is common to see businesses marking Veterans Day with social media posts thanking service members for their service and sacrifices. It is notably less common for the same businesses to understand or honor their legal obligations to employees who are current or former members of the military. Too often, businesses discriminate against their employees who spend time serving in the uniformed services, such as the National Guard. While it is understandable that the employees’ time away from work could cause disruption at work (e.g., an employee spending six months on overseas service), the businesses need to understand that these employees provide vital functions for the public.
Passed by Congress in 1994, the Uniformed Services Employment and Reemployment Rights Act (USERRA) was designed to shield servicemembers from economic harm and affirmatively encourage them to assert their rights when they are violated. Now, with the Dole Act of 2024, Congress has made it even clearer: USERRA is meant to be used, and it has teeth. With mandatory award of attorney fees, no statute of limitations for most claims, and an expansive view of liability, USERRA, as amended, is one of the most powerful tools in the employment litigator’s arsenal. Employers whose support for the military is limited to thoughts, prayers, and posts should take heed.
USERRA: A Plaintiff-Friendly Statute by Design
USERRA, codified at 38 U.S.C. Sections 4301–4335, protects members of the uniformed services from discrimination and retaliation in civilian employment. It also guarantees reemployment rights following a service period, requiring that returning servicemembers be placed in the position they would have attained had their employment not been interrupted.
From its inception, USERRA has been unmistakably plaintiff-friendly by design. Congress was not subtle about its intent. Section 4301(a) lays out the statute’s purposes: “to encourage noncareer service,” “to minimize disruption,” and “to prohibit discrimination.” Courts universally construe USERRA in favor of servicemembers. See, e.g., Rivera-Melendez v. Pfizer Pharmaceuticals, 730 F.3d 49 (1st Cir. 2013) (“USERRA’s provisions should be broadly construed in favor of military service members as its purpose is to protect such members”).
Moreover, USERRA does not require a plaintiff to prove that military status was the sole or even primary factor in an adverse employment action; rather, a plaintiff needs to prove only that it was a motivating factor. In Staub v. Proctor Hospital, 562 U.S. 411 (2011), the U.S. Supreme Court held that the so-called “cat’s paw” liability applies to USERRA claims, meaning that USERRA’s anti-discrimination provision reaches even indirect forms of animus, such as when a biased supervisor influences a neutral decision-maker in causing an adverse employment decision.
USERRA provides broader substantive and procedural protection than many other anti-discrimination laws. Unlike Title VII of the Civil Rights Act of 1964, USERRA applies to all public and private employers in the United States, regardless of size. Moreover, unlike other anti-discrimination statutes, USERRA does not require administrative exhaustion. The plaintiffs can go directly to federal court without first filing a charge with the Equal Employment Opportunity Commission (EEOC) or a state agency. The effect, as intended, is to make it faster and easier for servicemembers to assert their rights.
USERRA also departs from the typical burden-shifting frameworks found in other anti-discrimination statutes. Under Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, courts apply a three-step burden-shifting framework known as the “McDonnell Douglas Test” that requires an initial showing that the plaintiff is objectively qualified for the position. However, courts apply a two-step burden-shifting framework for USERRA claims whereby the employee bears the initial burden of showing by a preponderance of the evidence that their military service was “a substantial or motivating factor” in the adverse employment action. If this requirement is met, the employer then has the opportunity to come forward with evidence to show, by a preponderance of the evidence, that the adverse action would have been taken regardless for valid cause. Accordingly, a plaintiff’s objective qualifications or overall fitness for a position do not need to be pleaded or proved for the plaintiff to meet the initial burden. See Carroll v. Delaware River Port Authority, 843 F.3d 129 (3d Cir. 2016).
Bolstering Protections under USERRA Through Amendments
The 2025 Dole Act represents one of the most consequential amendments to USERRA in decades by equipping plaintiffs with enhanced remedies and lowering barriers to litigation.
Foremost among the Dole Act’s provisions is the transformation of USERRA’s fee-shifting mechanism. Before the amendment, courts had discretion under Section 4323(h)(2) to award attorney fees and costs to prevailing plaintiffs, but were not obligated to do so. The Dole Act eliminates that discretion, replacing the permissive “may” with the mandatory “shall,” guaranteeing successful plaintiffs the recovery of reasonable attorney fees and costs. The Dole Act also increases the potential for liquidated damages in cases of willful violations, subjecting any employer that “knowingly” fails to comply with USERRA requirements to a minimum liquidated damages award of $50,000, even if the plaintiff has not lost wages and benefits. Additionally, the Dole Act authorizes courts to include prejudgment interest at three percent per year on awards of backpay and lost benefits.
Transformative as its new provisions are, the Dole Act builds on a series of earlier amendments that have steadily expanded USERRA’s power. For example, in 2008, Congress amended the law to prohibit the application of any limitations period to claims arising after Oct. 10, 2008. That amendment, codified in Section 4327(b), effectively makes USERRA the only major employment statute without a time bar. The u.S. Court of Appeals for the Seventh Circuit later clarified in Middleton v. City of Chicago, 578 F.3d 655 (7th Cir. 2009) that the new no-limitations rule applies to claims accruing after the effective date of the amendment.
The expansion and strengthening of USERRA underscores Congress’s clear policy preference for robust, private enforcement of servicemembers’ rights. By removing time bars, guaranteeing attorney fees, and increasing financial penalties for bad actors, Congress has effectively rebalanced the procedural and economic dynamics that often make employment litigation difficult for individual plaintiffs to pursue.
Conclusion
For too long, many employers have seen support for servicemembers as a branding strategy rather than a legal obligation. But, USERRA is not a quiet statute or an ineffective afterthought: it is a robust, substantial right with severe consequences for noncompliance.
For plaintiff-side attorneys, USERRA offers a rare combination: easy access to federal court, minimal procedural hurdles, mandatory fee recovery, and no time bar. These features make USERRA a valuable tool in representing servicemembers and veterans who have been denied reemployment, passed over for promotion, or disciplined for absences, all due to their military service. Proper fact discovery is key to succeeding in USERRA claims, as plaintiffs must establish that military service is a motivating factor in the adverse employment action.
For businesses, the Dole Act should be a wake-up call. With USERRA, lawmakers have sent repeated, unambiguous messages that the rights of servicemembers and veterans should be taken seriously. They should put into practice and treat servicemembers fairly and as required under the law, rather than engaging in lip service.
Edward T. Kang is the managing member of Kang Haggerty. He devotes the majority of his practice to business litigation and other litigation involving business entities. Contact him at ekang@kanghaggerty.com.
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