u/Semper_Right

After 19 years as an ESGR Ombudsman and Ombudsman Director, I'm finally hanging up my spurs on that part of my life. Since I will no longer be affiliated with ESGR, I am seeking one or more Moderators to take over this subreddit.

Over the last five years, this Subreddit has, I hope, provided quality advice regarding USERRA and various civilian employment law guidance for our Reserve Component service members and their civilian employers. I hope someone will step up to carry on that tradition. Preferably, it will be someone who is already a volunteer for ESGR, or will at least volunteer for ESGR.

If you're interested, please DM me and describe your qualifications and why you are interested in assuming this role. Please, no attorneys practicing in the USERRA area--if I wanted this subreddit turned into a lawyer marketing site I would have done it myself.

Many of you have noted my previous comments that although USERRA applies to service members employed by the "three letter" agencies, the regulations from both the DOL (20 CFR Part 1002) and OPM (5 CFR Part 353) do not. Indeed, they do not have the regular resolution processes available to them that other FedGov employees typically enjoy. Congress specifically enacted special provisions relating to FedGov employees in these seven Intelligence Communities--ODNI, CIA, DIA, NGA, NRO, NSA, and FBI. These include 38 USC 4315, 4332 of USERRA, and other statutory provisions.

The Dole Act enacted in January 2025 contained a number of provisions relating to USERRA, such as expanding "retaliation" claims and remedies available for knowing violations. It also contained a provision requiring a GAO review of these seven agencies to determine the level of protections they have given their special status, with a focus on the statutorily required protections. The report found that the DIA, NRO, NSA and FBI have failed to provide all five protections mandated by Congress.

You can review the report here.

After 19 years as an ESGR Ombudsman and Ombudsman Director, I'm finally hanging up my spurs on that part of my life. Since I will no longer be affiliated with ESGR, I am seeking one or more Moderators to take over this subreddit.

Over the last five years, this Subreddit has, I hope, provided quality advice regarding USERRA and various civilian employment law guidance for our Reserve Component service members and their civilian employers. I hope someone will step up to carry on that tradition. Preferably, it will be someone who is already a volunteer for ESGR, or will at least volunteer for ESGR.

If you're interested, please DM me and describe your qualifications and why you are interested in assuming this role. Please, no attorneys practicing in the USERRA area--if I wanted this subreddit turned into a lawyer marketing site I would have done it myself.

Based upon some inartfully worded comments from posters on various subreddits I've seen recently, I feel compelled to clarify the role of the Employer Support of the Guard and Reserve (ESGR). ESGR is a DoW program that offers free mediation ("Ombudsman") services from volunteer trained Ombudsmen (OMB) when service members need assistance under USERRA. Our role and mission is limited and, unfortunately, there are a lot of sea lawyers out there that don't understand the limits of our involvement. So, here are a few salient points I want to make. If you have any questions or comments that would provide further clarification, we welcome your input:

First, OMB are neutrals under the federal Administrative Dispute Resolution Act (ADRA), and therefore we do not and cannot represent the SM or advocate for them. Instead, through the ESGR mediation process we educate the parties, explain USERRA and how it relates to the situation, and encourage resolution. We do not give legal opinions or even accuse a party of violating USERRA (a losing mediation strategy). We have a resolution rate of approximately 70% in following this process.

Second, under our Ombudsman regulations, ESGROI 1250.32, there are certain situations where we will not mediate, even if there is a clear USERRA issue. Those situations include

1. where it is a "LOW" (Loss of wages) case and the SM does not wish to return to that employer;
2. when the SM retains their own attorney;
3. when the SM files a complaint/claim with the DOL-VETS, DOJ, OSC, or MSPB;
4. Cases involving "an agency referred to in section 2302(a)(2)(C)(ii) of title 5" 38 USC 4303(5)(B)(i) (the "three-letter agencies");

Even when it is questionable whether USERRA applies, such as those cases involving Native American tribes or clergy, we will mediate with the understanding that USERRA may not compel compliance.

Third, once an OMB gets a case, they should mediate for "compliance with USERRA," although the SM can agree to something less than full compliance (which, in my opinion, should be discouraged, since it's unenforceable). This is required by not only the ESGROI, but also the Memorandum of Understanding with the DOL. This means, if its a LOW case, reinstatement at the appropriate reemployment position, plus any missed wages, benefits (don't forget missed pension plan/401K rights), etc., so the SM is "made whole." We do not mediate for any "liquidated damages," which is a type of penalty for knowingly violating USERRA.

We do not "mediate" for optional benefits above those required by USERRA, although we can, during our discussions, encourage an employer to provide additional benefits after the mediation is concluded, such as some type of paid leave policies or providing other non-seniority benefits.

Finally, any resolution reached during the process is not enforceable against either party. Not only is there no written or signed agreement memorializing the resolution, but even if there were it would probably not be enforceable under 38 USC 4302(b) (the "no-waiver" provision). Under that section, and the few cases considering it, there are heightened procedural requirements that must be met for a SM to waive or release their USERRA rights. In the Fifth Circuit, a written, signed agreement, negotiated by the SM's attorney, may not be enforceable if the SM does not believe that the benefits from the agreement exceed those they are entitled to under USERRA. Consequently, the ESGR process relies upon the good faith of the parties to carry out their terms of the resolution--if not, the case will end up with the DOL-VETS or a private attorney.

The above is not only for SMs and ERs who may become involved in mediations by ESGR, but, actually, our own Ombudsmen. Some of our OMB have served for decades, and may have learned techniques, policies, or processes that are now inconsistent with how ESGR handles such cases. The above is our current procedures as outlined in ESGROI 1250.32 and the MOU between the DoW and DOL. As the National Trainer who teaches mediation and USERRA to every new Ombudsman, I am quite familiar with these procedures.

The Torres v. Texas DPS case continues to make news regarding USERRA issues. Many on this subreddit know about the Supreme Court case dealing with sovereign immunity claims. See, Torres v. Texas Department of Public Safety, 597 U.S. 580 (2022). The case went to trial where Torres prevailed, and eventually his attorneys received over a $1 million in attorneys fees.

The Texas Court of Appeals just issued an opinion considering yet another unique issue under USERRA--whether a disability discovered after reemployment requires the employer to "restart" the reemployment process. Tex. Dep't of Pub. Safety v. Torres, 15-24-00089-CV (Tex. App. May 07, 2026). For some context, USERRA's disability considerations are typically only considered at the point of reemployment when the employer is required to make reasonable efforts to "qualify" the returning service member for the escalator position, or another reemployment position for which they can be qualified with reasonable accommodations. 20 CFR 1002.226. However, the DOL in 2005 when it published the regulations made the following comment in the preamble to the regulations:

• The disability must have been incurred or aggravated when the service member applies for reemployment, even if it has not yet been detected. If the disability is discovered after the service member resumes work and it interferes with his or her job performance, then the reinstatement process should be restarted under USERRA's disability provisions.

70 Fed. Reg. 75277 (Dec. 19, 2005) (emphasis added).

Just as in Torres, this is not an academic issue. I have actually mediated a case involving this issue--a returning SM was reemployed only to have PTSI symptoms interfere with his performance in the designated reemployment situation. The employer, who was very supportive, reversed their termination and accommodated his disability so he was able to perform the functions of that position.

This situation is more likely to occur in disabilities involving PTSI or TBI where symptoms are often delayed or hidden until some time after they were incurred.

So what happened to Torres' claim that DPS didn't accommodate his disability after he was reemployed? The Texas Court of Appeals refused to follow the DOL's comments in the preamble, and found that the trial court erred by instructing the jury based upon the DOL's preamble language regarding DPS' obligations during the reemployment process under 38 USC 4313. Again, it noted that the obligations to accommodate disabilities incurred or aggravated during uniformed service applied only at the time of reemployment.

I have included the DOL commentary in the preamble dealing with restarting the process when dealing with a "late discovered" disability in my employer and unit USERRA presentations, and will continue doing so notwithstanding the Texas Court of Appeals' decision. I hope the DOL-VETS will clarify this issue when it issues its updated USERRA regulations in the near future.