The Impact of the Dole Act on USERRA

On January 2, 2025, the “Dole Act,” officially named the Senator Elizabeth Dole 21st Century Veterans Healthcare and Benefits Improvement Act, was signed into law. The Dole Act brought significant changes to several laws affecting veterans and service members. Among these changes included amendments to the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”).

Since its inception, USERRA has been the primary protection for veterans and service members from employment discrimination based on military obligations or deployments. The goal of the Dole Act for USERRA claims was to modernize USERRA protections by increasing accountability, broadening its applicability, and providing more liquidated damages to redress harm in successful USERRA claims.

Prior to the Dole Act, there was confusion about whether USERRA applied to regular uniformed service members in active duty. The elimination of the “noncareer service” has clarified that USERRA is applicable to those regular uniformed service members.

The Dole Act revises the landscape of USERRA law in a few notable ways. First, the Dole Act amends USERRA to broaden it from “noncareer service in the uniformed services” to “uniformed services.” The amendment makes USERRA applicable to all men and women who serve in uniform in a wide range of positions, such as the National Disaster Medical System or the Commissioned Corps of the Public Health Service. Moreover, the term “uniformed services” applies to active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, and state activity in response to a major disaster. The Dole Act further broadens USERRA by prohibiting various forms of retaliation from employers with the catch-all phrase “other retaliatory action.” The amendment will open up new challenges to employer actions that might not be discriminatory or adverse but are nonetheless retaliatory.

Prior to the Dole Act, courts could only address retaliatory actions that were discriminatory or adverse, meaning a material impact on one’s employment. However, after the Dole Act, “other retaliatory action” may broaden a court’s ability to redress retaliatory action that is not discriminatory or adverse, such as an exclusion from meetings or denial of training opportunities.

Second, the Dole Act amends USERRA to provide a uniformed service member with injunctive relief if he or she can demonstrate:

1. A violation of USERRA.
2. A violation is threatened or imminent.
3. The harm to the uniformed service member outweighs the injury to the employer.
4. There is a likelihood of success on the merits.
5. Awarding injunctive relief is in public interest. In addition, injunctive relief won’t be denied on the basis that the uniformed service member may also be entitled to backpay or unearned wages. This gives the uniformed service members the ability to immediately redress ongoing or future harm from an employer in violation of USERRA.

Third, the Dole Act amends liquidated damages under USERRA to add that a court may require a 3% interest rate per year on the amount of liquidated damages awarded to a prevailing uniformed service member. Courts may also require an employer to pay $50,000 or more to the prevailing uniformed service member if the courts determine that the employer knowingly failed to comply with USERRA provisions. These amendments provide a greater possible recovery to the uniformed service member. However, the amendment changes “willfully” to “knowingly,” which creates a different standard of evidence for any uniformed service member seeking to claim liquidated damages for an intentional violation of USERRA.

Fourth, prior to the Dole Act, USERRA claimants were only afforded the ability to seek reasonable attorneys’ fees. The Dole Act amends the language that a claimant “may” be entitled to reasonable attorney’s fees to “shall be,” which gives uniformed service members significant recourse to litigate their cases and recover damages. The Dole Act thus mandates reasonable attorneys’ fees for uniformed service members litigating their USERRA claims against federal, state, private or local government employers.

The Dole Act brings several new changes to the litigation of USERRA claims. The full impact of these changes will be played out through courts and litigation, which will shape the final reach of the Act and determine how these new protections will serve uniformed service members moving forward.