How the Elizabeth Dole Act reshapes USERRA compliance obligations for employers

On Jan. 2, 2025, President Biden signed the Senator Elizabeth Dole 21st Century Veterans Healthcare and Benefits Improvement Act, referred to as the Dole Act, into law. While this legislation primarily focuses on veterans' healthcare and benefits, it also introduces the most significant amendments to the Uniformed Services Employment and Reemployment Rights Act (USERRA) in over 30 years.

Employers, especially those with military-affiliated employees, must be aware of these changes: they greatly expand potential liability under USERRA, increase exposure to damages, and limit the defenses available to employers in legal disputes. Now is the time for HR departments, in-house counsel, and compliance teams to review and update existing policies and training related to the employment rights of service members.

Below is a summary of the five key amendments to USERRA that employers should be aware of.

• USERRA now protects career military service — not just non-career service

  USERRA's stated purpose included encouraging "noncareer" military service. Some employers have successfully used this phrase in litigation to challenge "protection" for long-serving or full-time reservists. The term "noncareer" has been removed. USERRA protections now explicitly apply to all uniformed services, regardless of whether they are part-time, full-time, or lifelong.

  Employers can no longer argue that reemployment rights are limited to short-term or part-time military service. Long-term or "career" reservists returning from service must be granted full rights under USERRA if they meet the statutory criteria. Employers should revise their policies to reflect this broader interpretation.

• Expansion of anti-retaliation protections beyond the workplace

  USERRA prohibited "adverse employment actions" in retaliation for asserting USERRA rights, such as demotion or discharge. However, it did not "early cover non-employment-related retaliation, like reputational harm or malicious legal actions. The Dole Act now prohibits "any other retaliatory action," extending protections beyond employment-related issues. This amendment allows for broader retaliation claims, including actions taken by supervisors or colleagues outside the traditional workplace context.

  Employers must ensure that all personnel involved in disciplinary, legal, or investigatory decisions are trained on the expanded scope of retaliation risks under USERRA. Additionally, internal complaints related to military service should be handled with increased sensitivity and thorough documentation.

• Preliminary injunctive relief now easier to obtain

  Courts were often reluctant to grant preliminary injunctions in USERRA cases, believing that back pay could sufficiently compensate a plaintiff.

  The Dole Act has removed this judicial presumption, allowing service members to obtain injunctions when a USERRA violation is imminent or has already occurred, even before a trial. Employers may now receive court orders mandating reinstatement or imposing action freezes before a full trial. This creates a time-sensitive legal risk when a USERRA complaint is filed. It is now more crucial than ever for employers to have documented, legitimate business justifications for their employment decisions. To effectively manage litigation risk and potential injunctive exposure, legal counsel should be consulted promptly when USERRA-related disputes arise.

• Significant increase in liquidated damages for willful violations

  Liquidated damages, which typically amounted to double the lost wages and benefits, often resulted in modest awards since employees frequently found new jobs quickly. Under the new law, employers must pay more than $50,000 or double the actual damages if a court determines a willful violation has occurred. This change substantially elevates the risk associated with USERRA litigation. Even in cases with low damages, employers could now face a minimum liability of $50,000 if willfulness is established.

  The definition of "willfulness" includes a knowing disregard for legal obligations, meaning that ignorance of the law is not a valid defense. As a result, employers should review and strengthen their USERRA compliance programs, training, and documentation practices.

• Expanded attorney fee exposure

  Under USERRA, attorney's fees were not mandatory. The Dole Act enhances the attorney's fee provisions by making them mandatory and ensuring prevailing service members recover attorney's fees. Employers now face increased exposure to litigation costs, even when the actual damages are relatively modest, which may lead to a rise in claims from employees with military affiliations.

Recommended next steps:

1. Audit your USERRA policy and employee handbook for outdated language.
2. Train HR and management on the new scope of reemployment and retaliation protections.
3. Create a compliance protocol for responding to military leave, deployment, or reemployment requests.
4. Document all employment decisions involving military-affiliated employees, especially disciplinary or termination actions.
5. Consult employment counsel early when USERRA issues arise to manage risk and navigate the evolving legal landscape.

At McDonald Hopkins, we provide guidance to employers in various industries on compliance with military leave laws, including the Uniformed Services Employment and Reemployment Rights Act and relevant state laws. If you have questions about these recent amendments, please contact an attorney in our labor and employment practice group.