On November 21, 2011, President Obama signed into law the Veterans Opportunity to Work (VOW) to Hire Heroes Act of 2011. Key provisions of the new law include:

Notably, the VOW to Hire Heroes Act of 2011 amends the definition of a "benefit of employment" under Section 4303(2) of USERRA to include "the terms, conditions, or privileges of employment." Because this language mirrors the language in the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964 (Title VII), many commentators note that this amendment clarifies that hostile work environment claims are actionable under USERRA. For more information on hostile work environment harassment, see Practice Note, Harassment: Hostile Work Environment Harassment.

In addition, this statutory amendment addresses the US Court of Appeals for the Fifth Circuit's decision in Carder v. Continental Airlines, which held that USERRA, unlike Title VII, did not provide for a hostile work environment claim because Congress did not include the phrase "terms, conditions, or privileges of employment" in the statutory text of USERRA, among other reasons. Neither the US Supreme Court nor other circuit courts have directly ruled on this issue. However, some circuit courts have assumed that USERRA recognizes hostile work environment claims, and district courts are divided on the question.

Although the Department of Labor has not yet implemented regulations interpreting the new language and courts have not yet addressed it, the amendment emphasizes the importance of complying with USERRA. In light of this amendment and the potential for hostile work environment claims under USERRA, employers should: