The U.S. Department of Labor (DOL) recently issued an opinion letter confirming broad anti-retaliation protections under the Uniformed Services Employment and Reemployment Rights Act (USERRA). The letter interpreted federal legislation enacted on January 2, 2025, which expanded USERRA’s protections to encompass “other retaliatory action” (Senator Elizabeth Dole 21st Century Veterans Healthcare and Benefits Improvement Act, PL 118-210, section 221(b)).
For employees who leave their civilian jobs to serve in the U.S. military, USERRA addresses protected time off, benefits during leave, and reinstatement rights. Before the Dole Act took effect, USERRA had just prohibited employers from taking “adverse employment action” or discriminating against workers for exercising rights under USERRA.
The DOL’s opinion letter says that the Dole Act makes USERRA’s anti-retaliation provisions consistent with the broad protections of Title VII of the Civil Rights Act. The U.S. Supreme Court has ruled that Title VII prohibits employers from taking any action that would dissuade a reasonable worker from asserting a claim under Title VII—the action doesn’t have to be related to the job or employment conditions to be retaliatory (Burlington Northern & Santa Fe Railway Co. v. White, US, June 2006). Applying the Supreme Court’s reasoning, the DOL says that an employer violates USERRA if it takes a negative action (regardless of any connection to the job) that would deter a reasonable worker from exercising their rights under USERRA (DOL opinion letter USERRA-2026-1).
Tips: Examples of other retaliatory actions that don’t affect a returning military employee’s working conditions but would be prohibited under USERRA might include giving a falsely negative employment reference, threatening to report the employee to the authorities, or firing a relative. Make sure that supervisors and interviewing committees know how to respond if an employee or applicant discloses the need to take time off to serve in the U.S. military, including the National Guard. They should avoid any appearance of discrimination or retaliation by letting the individual know that the organization has a military leave policy, and by alerting Human Resources to follow up. See our Legal Guides, At a Glance: Veterans’ Employment Rights Under USERRA, Veterans’ Employment Rights Under USERRA, and Retaliation Claims: How to Avoid Them, and if you’re a Vigilant member, contact your Vigilant Law Group employment attorney with any questions.
