Military Law

Employment Discrimination against Veterans

By Sachi Barreiro, Attorney, University of San Francisco School of Law
Employees who serve in the military are entitled to leave and other rights.

Are you a military member or veteran seeking employment? The Uniformed Services Employment and Reemployment Rights Act (USERRA) was created to help employees return to their civilian jobs after military service and to remove discriminatory barriers to finding new employment. USERRA and the laws of many states prohibit employers from discriminating against current or former military personnel in all aspects of employment.

Reinstatement Rights

If you are a military employee who has recently completed service in the U.S. armed forces—such as the Army, Navy, Marine Corps, Air Force, Coast Guard, National Guard, and Reserves—you may have the right to be reinstated to your old job. The Uniformed Services Employment and Reemployment Rights Ac (USERRA)

Under USERRA, your employer is required to rehire you at the end of your military service, if all of the following requirements are met:

  • You notified your employer in advance that you were leaving for military service.
  • Your service was for five years or less.
  • You did not receive a dishonorable discharge.
  • You applied for reinstatement shortly after returning from military service.

The timeline for applying for reinstatement depends on how long your service lasted. If it was 30 days or less, you must apply on the next scheduled work day after getting home safely and having an 8-hour rest period. If the service was between 31 and 180 days, you have two weeks to reapply. If you served more than 180 days, you have 90 days to reapply.

As long as you meet these requirements, your employer must reinstate you to the position you would have held if you never left. You must also receive the same seniority, pay, and benefits that you would have received had you been continuously employed.

If you served for more than 180 days, your employer cannot fire you without good cause for one year. If you served between 31 and 180 days, your employer cannot fire you without good cause for 180 days (about six months). Good cause means a legitimate, business-related reason for firing you—such as poor performance or misconduct.

Prohibition Against Discrimination & Retaliation

USERRA also prohibits employers from discriminating based on past, present, or future military service. This extends to all aspects of employment, including hiring, wages, work duties, promotions, terminations, and more. So, even if you don’t qualify for reinstatement for your old job, you cannot be denied a new job based on your military service. Many states also have laws prohibiting employers from discriminating against applicants and employees on the basis of military service. To learn the rules in your state, see our state articles on employment discrimination.

Similarly, your employer cannot retaliate against you for exercising your rights under USERRA—such as requesting leave, applying for reinstatement, or filing a complaint regarding an USERRA violation. You also can’t be fired for participating in an investigation into your employer’s potential violation of USERRA.

Filing a Complaint for USERRA Violations

The Veterans Employment and Training Service (VETS) is a division of the U.S. Department of Labor that enforces USERRA and investigates potential violations. To file a claim, you must complete Form 1010. You can fill the form out by hand and deliver it in person or by mail or fax. You can also fill out Form 1010 online at the VETS website. VETS will investigate your claim, review documents and other evidence, and decide whether your employer violated USERRA.

You can also seek assistance from Employer Support of the Guard and Reserve (ESGR), an agency that informs employers and employees of their rights and obligations under USERRA. ESGR also provides mediation services to help employers and employees reach a settlement in an informal setting. To utilize these services, you can file an online request for support.

If you prefer to skip these steps, you may file a lawsuit in court right away. However, pursuing a lawsuit in court is a complicated process, and you will most likely need the assistance of an employment lawyer.

Leave for Family Members

Your family members might also be entitled to time off related to your military service, such as helping you with your affairs, spending time with you during rest and recuperation leave, or caring for you if you are injured during service. To learn more, see our article on family leave for military family members.

Questions for Your Attorney

  • What kind of proof do I need to show my employer discriminated against me due to military service?
  • Should I directly confront my employer about the discrimination?
  • What do I do if I am fired? How do I know if my military service was a motivating factor?
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