The 21st Century Veterans Healthcare and Benefits Improvement Act, also known as the Dole Act, was signed into law by President Biden on January 2, 2025. This legislation expands employment protections for veterans under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). USERRA establishes rights and benefits for employees and job applicants who have served in the military or engaged in other forms of protected governmental service (including the Federal Emergency Management Agency, the National Medical Disaster System, and the Commissioned Corps of the Public Health Service). It provides veterans with reemployment rights and prohibits discrimination and retaliation when their civilian jobs are affected by military obligations. Since its enactment in 1994, USERRA has been the foundation for many employers’ military leave provisions in handbooks and personnel policies, which will likely need to be reviewed for updated compliance.
The Dole Act, named for its sponsor Senator Elizabeth Dole, expands job protections for service members, strengthens USERRA enforcement, expands remedies and mandates attorney’s fees for successful plaintiffs. It also removes confusion in USERRA about qualifying military service due to prior inconsistent references to “career service” and “noncareer service.” By removing the term “noncareer,” the Dole Act now clarifies that USERRA encompasses all regular military members.
Employers are now explicitly prohibited from any form of retaliation. USERRA’s previous references to “discrimination in employment” and “adverse employment actions” generated judicial uncertainty about whether certain employer actions violated USERRA. As now amended, USERRA no longer requires plaintiffs to prove that the retaliation was job related, that they experienced a material change in their jobs and other employment conditions, or that they were significantly harmed.
The Dole Act greatly expands remedies that are available to employees experiencing USERRA violations including early injunctions, increased liquidated damages, mandatory attorney’s fees and a set prejudgment interest rate on awards. These are as follows:
Injunctions: Plaintiffs may obtain early injunctive relief upon a showing: (1) of an actual or imminent USERRA violation; (2) that harm experienced by the employee would be greater than any harm to the employer if the injunction is not granted; (3) that the plaintiff is likely to prevail on the USERRA claim; and (4) that a public interest is served by granting the injunction. Additionally, an injunction cannot be denied solely because the plaintiff might recover back pay.
Liquidated Damages: An employer that “knowingly” fails to comply with USERRA requirements is subject to a minimum liquidated damages award of $50,000, even if the plaintiff has not lost wages and benefits. Employees who have experienced lost wages or benefits can recover the greater of $50,000 or the sum of lost wages, benefits, and prejudgment interest.
Attorney Fees: Successful USERRA plaintiffs can now recover mandatory reasonable attorney fee awards. If similar federal acts are a guide, employers should anticipate that losing a USERRA retaliation case will result in a sizeable fee award to the plaintiff.
Prejudgment Interest: As now amended, USERRA allows courts to include prejudgment interest at three percent (3%) per year on back pay and benefits awards.
How can employers comply with the Dole Act amendments?
In light of these recent changes to USERRA, employers are encouraged to review and update their military leave policies for compliance, including any state laws protecting military service. The majority of U.S. states have military leave laws which also must be complied with and reflected in employer policies. For compliance with USERRA and state military service laws, employers are recommended to have, at a minimum, the following:
1. A detailed compliance protocol for addressing requests related to military leave. This protocol should include clear procedures for communication, response timelines, and documentation guidelines.
2. Management training for all personnel involved in implementing or reviewing disciplinary actions or investigations to understand legal obligations against discrimination related to military service and the risks of retaliation under USERRA.
3. Complaint procedure: internal complaints regarding military service should be handled with sensitivity and confidentiality. A robust reporting and resolution system, along with thorough documentation, are important considerations for effective complaint management and protection against potential legal issues.
In summary, proactive measures and a solid understanding of military leave laws will help employers create an inclusive environment for service members while ensuring compliance.
* * *
Ballard Spahr’s Labor & Employment Group will continue to monitor the latest changes to the USERRA and provide guidance to our clients on compliance with this law. If you have questions about the recent amendments, please contact an attorney in our group.