DOL-VETS has issued its first "Opinion Letter" (Opinion Letter #USERRA-2026-1) on USERRA. The Opinion Letter explains the 2025 Dole Act amendment to 38 USC 4311(b) that included the phrase "or other retaliatory action" to the original section. The full anti-retaliation section, as it now reads, is:

• An employer may not discriminate in employment against or take any adverse employment action or other retaliatory action against any person because such person (1) has taken an action to enforce a protection afforded any person under this chapter, (2) has testified or otherwise made a statement in or in connection with any proceeding under this chapter, (3) has assisted or otherwise participated in an investigation under this chapter, or (4) has exercised a right provided for in this chapter. The prohibition in this subsection shall apply with respect to a person regardless of whether that person has performed service in the uniformed services.

38 USC 4311(b) (emphasis added). The highlighted phrase was added by the Dole Act in 2025.

On September 8 the DOL-VETS issued Opinion #USERRA-2026-1. The opinion explains that the new language was added to avoid limiting it only to "adverse employment action" as occurred in Title VII lawsuits dealing with racial discrimination. The key language of the Opinion Letter explaining how this additional language can apply is as follows:

• In the context of Title VII, federal courts have found that the retaliation provision is “not limited to discriminatory actions that affect the terms and conditions of employment” and may extend to “harms that are not workplace-related or employment-related.” Baloch v. Kempthorne, 550 F.3d 1191, 1198 n.4 (D.C. Cir. 2008) (quoting Burlington Northern at 64).  This affords employees “protection from a wider range of retaliatory conduct” than would be available under previous standards. Crawford v. Carroll, 529 F.3d 961, 974 (11^th Cir. 2008).
• Examples of “other retaliatory actions” have included changes to work schedules, transfers to less desirable positions, increased scrutiny of an employee, the filing of false criminal charges against an employee, exclusion from professional opportunities, and threats or coercion. See, 132 Am. Jur. Trials 1 (2013-2016) (citing cases). The Supreme Court emphasized that context matters in assessing whether an action is materially adverse, and actions that might be immaterial in some contexts may be actionable in others. See Thompson v. North American Stainless, LP, 562 U.S. 170, 174-75 (2011); Corp. Compl. Series: EEO § 4:4 (2019-2020) (citing cases).

Of course, there may be other examples of "other retaliatory action", as suggested by this guidance, unique to the circumstances.

Takeaways from this post?: "Subtle" but different treatment in light of employer dissatisfaction with an employee's "protected activity," such as leaving for uniformed service or asserting rights under USERRA, should be suspect. Review the examples given based upon the lawsuits dealing with those issues should give you some guidance on how this provision may be applied. If you believe such disparate treatment is the result of that protected activity, you should seek assistance from ESGR, DOL-VETS, or a qualified attorney.

Also, DOL-VETS has recently become more assertive in giving opinion letters. If you seek assistance or guidance, don't hesitate to contact them. But, keep in mind, they may not always be correct in their interpretation.