VETS Opinion Letter Takes Broad View of USERRA Retaliation

Recently, the U.S. Department of Labor’s Veterans’ Employment and Training Service (VETS) issued an opinion letter taking a broad position on what it considers retaliatory action under the Uniformed Services Employment and Reemployment Rights Act (USERRA) and bringing its interpretation in line with Title VII of the Civil Rights Act retaliation principles.

USERRA protects employees who leave work for military service, whether the service is voluntary or involuntary. Subject to some exceptions, the law generally guarantees an employee returning from military service the right to be reemployed at their former job with the same benefits. USERRA also protects employees from discrimination based on their uniformed service.

Until 2025, the law specifically prohibited employers from discriminating in employment or taking an “adverse employment action” against employees engaged in USERRA-protected activity, which would include, for example, a termination or demotion. In 2025, however, USERRA was amended to prohibit employers from “taking an adverse action or other retaliatory action” against employees engaged in USERRA-protected activity. The VETS’ recent opinion letter discusses the meaning of the phrase “other retaliatory action” and provides some examples.

To guide its analysis, VETS looked at retaliation cases based on Title VII of the Civil Rights Act. VETS noted that in the context of Title VII, federal courts have found that retaliation is not limited to discriminatory actions that affect the terms and conditions of employment, such as a demotion or termination. It may also extend to actions that are not necessarily workplace-related or employment-related. Examples include:

• Changes to work schedules.
• Transfers to less desirable positions.
• Increased scrutiny of an employee.
• Filing of false criminal charges against an employee.
• Exclusion from professional opportunities.
• Threats or coercion.

VETS concluded that with the addition of “other retaliatory action” in USERRA, the principles established in Title VII retaliation cases are now equally applicable to retaliation claims under USERRA. Citing the U.S Supreme Court, VETS noted that context matters in assessing claims. Actions that may be retaliatory in one case may not be in another, but generally speaking, retaliatory actions include anything that would be sufficient to dissuade a reasonable employee from engaging in USERRA-protected activity, including enforcing a protection, testifying in a proceeding, assisting in an investigation or exercising a right.

Employers with employees returning from uniformed service, or otherwise protected by USERRA, should consult with legal counsel regarding employment decisions related to those individuals, considering the law’s expanded interpretation of retaliation.

James W. Ward, J.D., Employment Law Subject Matter Expert/Legal Writer and Editor, CalChamber

CalChamber members can read more about Military Service Leave (USERRA) in the HR Library. Not a member? Learn how to power your business with a CalChamber membership.