U.S. Code » Title 38 » Part PART III— READJUSTMENT AND RELATED BENEFITS › Chapter CHAPTER 43— EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE UNIFORMED SERVICES › Subchapter SUBCHAPTER III— PROCEDURES FOR ASSISTANCE, ENFORCEMENT, AND INVESTIGATION

38 U.S.C. § 4322

Enforcement of employment or reemployment rights

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(a) A person who claims that—(1) such person is entitled under this chapter to employment or reemployment rights or benefits with respect to employment by an employer; and(2)(A) such employer has failed or refused, or is about to fail or refuse, to comply with the provisions of this chapter; or(B) in the case that the employer is a Federal executive agency, such employer or the Office of Personnel Management has failed or refused, or is about to fail or refuse, to comply with the provisions of this chapter,may file a complaint with the Secretary in accordance with subsection (b), and the Secretary shall investigate such complaint.(b) Such complaint shall be in writing, be in such form as the Secretary may prescribe, include the name and address of the employer against whom the complaint is filed, and contain a summary of the allegations that form the basis for the complaint.(c)(1) Not later than five days after the Secretary receives a complaint submitted by a person under subsection (a), the Secretary shall notify such person in writing of his or her rights with respect to such complaint under this section and section 4323 or 4324, as the case may be.(2) The Secretary shall, upon request, provide technical assistance to a potential claimant with respect to a complaint under this subsection, and when appropriate, to such claimant’s employer.(d) The Secretary shall investigate each complaint submitted pursuant to subsection (a). If the Secretary determines as a result of the investigation that the action alleged in such complaint occurred, the Secretary shall attempt to resolve the complaint by making reasonable efforts to ensure that the person or entity named in the complaint complies with the provisions of this chapter.(e) If the efforts of the Secretary with respect to any complaint filed under subsection (a) do not resolve the complaint, the Secretary shall notify the person who submitted the complaint in writing of—(1) the results of the Secretary’s investigation; and(2) the complainant’s entitlement to proceed under the enforcement of rights provisions provided under section 4323 (in the case of a person submitting a complaint against a State or private employer) or section 4324 (in the case of a person submitting a complaint against a Federal executive agency or the Office of Personnel Management).(f) Any action required by subsections (d) and (e) with respect to a complaint submitted by a person to the Secretary under subsection (a) shall be completed by the Secretary not later than 90 days after receipt of such complaint.(g) This subchapter does not apply to any action relating to benefits to be provided under the Thrift Savings Plan under title 5.(Added Pub. L. 103–353, § 2(a), Oct. 13, 1994, 108 Stat. 3164; amended Pub. L. 104–275, title III, § 311(9), Oct. 9, 1996, 110 Stat. 3335; Pub. L. 110–389, title III, § 311(a)–(c), Oct. 10, 2008, 122 Stat. 4162.)Editorial NotesPrior Provisions

A prior section 4322 was renumbered section 7622 of this title.

Amendments

2008—Subsec. (c). Pub. L. 110–389, § 311(a), amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: “The Secretary shall, upon request, provide technical assistance to a potential claimant with respect to a complaint under this subsection, and when appropriate, to such claimant’s employer.”

Subsec. (e). Pub. L. 110–389, § 311(b), inserted “in writing” after “submitted the complaint” in introductory provisions.

Subsecs. (f), (g). Pub. L. 110–389, § 311(c), added subsec. (f) and redesignated former subsec. (f) as (g).

1996—Subsec. (d). Pub. L. 104–275, § 311(9)(A), inserted “attempt to” before “resolve”.

Subsec. (e). Pub. L. 104–275, § 311(9)(B)(i), substituted “with respect to any complaint filed under subsection (a) do not resolve the complaint,” for “with respect to a complaint under subsection (d) are unsuccessful,” in introductory provisions.

Subsec. (e)(2). Pub. L. 104–275, § 311(9)(B)(ii), inserted “or the Office of Personnel Management” after “Federal executive agency”.

Statutory Notes and Related SubsidiariesEffective Date of 1996 Amendment

Amendment by Pub. L. 104–275 effective Oct. 13, 1994, see section 313 of Pub. L. 104–275, set out as a note under section 4301 of this title.

Effective Date

Section effective with respect to reemployments initiated on or after the first day after the 60-day period beginning Oct. 13, 1994, with transition rules, except that provisions necessary for implementation of section 4311 of this title are effective Oct. 13, 1994, see section 8 of Pub. L. 103–353, set out as a note under section 4301 of this title.

Notes of Decisions
Cited in 30 cases (15 in the last 5 years), 1994–2025 · leading case: Kevin Ziober v. Blb Resources, Inc., 839 F.3d 814 (9th Cir. 2016).
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Kevin Ziober v. Blb Resources, Inc., 839 F.3d 814 (9th Cir. 2016). · cites it 2× “38 U.S.C. §§ 4322 , 4323. First, an individual may file a complaint with the Secretary of Labor and request that the Secretary refer the matter to the Attorney General for further prosecution.”
Kitlinski v. Merit Sys. Prot. Bd., 857 F.3d 1374 (Fed. Cir. 2017). · cites it 2× “See 38 U.S.C. § 4322 (a). The Secretary may attempt to resolve the matter or refer it to the Office of Special Counsel, which may assist the employee with his complaint before the Board.”
Joel Bradberry v. Jefferson Cnty., Texas, 732 F.3d 540 (5th Cir. 2013). “See 38 U.S.C. § 4322 (a). In March 2009, the assistant director in Texas of the Veterans’ Employment and Training Service which is authorized by Section 4321 of Title 38 to review such complaints, found that the County, “while not intentionally, did violate” Section 4311(c) by…”
Darek Kitlinski v. Dep't of Just., 2023 MSPB 13 (MSPB 2023). · cites it 2× “1 If an appellant previously sought corrective action from the Department of Labor in connection with his claim under 38 U.S.C. § 4322 , he also must prove by preponderant evidence that he has exhausted his administrative remedies.”
William E. Woodman v. Off. of Pers. Mgmt., 258 F.3d 1372 (Fed. Cir. 2001). “Pursuant to 38 U.S.C. § 4322 (a)(2)(B) (1994), VETS filed a complaint against OPM with the Office of Special Counsel (“OSC”).”
United States v. Alabama Dep't of Mental Health & Mental Retardation, 673 F.3d 1320 (11th Cir. 2012). “See 38 U.S.C. § 4322 (e). The for *1325 mer employee may then ask the Secretary to refer the matter to the Attorney General of the United States (AG).”
Baney v. Merit Sys. Prot. Bd., 415 F. App'x 244 (Fed. Cir. 2011). “327 , 333-34 (2007) (USERRA complainant who files a complaint with the Department of Labor pursuant to 38 U.S.C. § 4322 must exhaust administrative remedies before initiating a proceeding before the Board).”
Lopez v. Dillard's, Inc., 382 F. Supp. 2d 1245 (D. Kan. 2005). “38 U.S.C. §§ 4322 , 4323(a). In addition to, or as an alternative to, those avenues of relief, an aggrieved person is authorized to bring a civil action in an appropriate United States District Court.”
Glasser v. Gov't of the Virgin Islands, 853 F. Supp. 852 (D.V.I. 1994). “In support of this contention, the government points to the enforcement provision of the Act, 38 U.S.C. § 4322 , which provides in relevant part as follows: If any employer, who is a private employer or a State or political subdivision thereof, fails or refuses to comply with…”
Kasten v. Saint-Gobain Performance Plastics Corp., 585 F.3d 310 (7th Cir. 2009). “§ 2561 (a) (Trade Agreements Act) (federal agency may not consider a complaint unless the Trade Representative informs the agency concerned "in writing"); 38 U.S.C. § 4322 (a) & (b) (Uniformed Services Employment and Reemployment Act) (person claiming violation of right to…”
David Hendy v. Dep't of Vets. Affairs (MSPB 2024). · cites it 3× “An appellant may either file a USERRA complaint with the Secretary of Labor pursuant to 38 U.S.C. § 4322 or file an appeal directly with the Board pursuant to 38 U.”
Clark v. City of Montgomery(CONSENT) (M.D. Ala. 2020). · cites it 2× “38 U.S.C. § 4322 (a); (b). DOL is required to investigate each USERRA complaint within 90 days, and if it determines that a violation occurred, “shall attempt to resolve the complaint by making reasonable efforts to ensure that the person or entity named in the complaint…”
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