Military Law

Veterans: Employer Discrimination and Retaliation

Do you have any employees who are considering joining the military? Are there military veterans with disabilities who are applying for jobs? People that serve in the military are given special employment rights. Most of these rights are contained in the Uniformed Services Employment and Reemployment Rights Act (USERRA).

As an employer, you need to know the employment rights of veterans. One important right is the right to reemployment. This right means that you must rehire a former employee when he's finished with his military service. There are five conditions that must be met for an employee to gain a reemployment right:

  • He worked for you when he volunteered or was called to duty
  • He gives you advance notice that he's entering the military
  • He serves five years or less
  • He's released from the military with at least a general discharge
  • He applies for reemployment in a timely manner

Whether a veteran is being employed or reemployed, he has the right to be free from discrimination. If he claims discrimination by you, he also has the right to be free from retaliation.

Right to Be Free from Discrimination

The USERRA forbids employers from discriminating based on military service. This rule applies to past, present or future service. The veteran has a right to be free from discrimination throughout the entire employment relationship. Based on military service, you can't deny:

  • Initial employment
  • Reemployment
  • Promotions
  • Employee benefits
  • Retention in employment

The USERRA applies to all employers. You must make sure not to discriminate based on military service. A veteran has the right under the USERRA to bring a lawsuit against you for any violations.

Burden of Proving Discrimination

You're considered innocent of discrimination at the start of a lawsuit. The employee has the burden of proof. This means he must prove his military service was a motivating factor when you made the decision against him. He can use either direct or circumstantial evidence.

If he proves you discriminated based on military service, the burden of proof shifts to you. You have the opportunity to avoid liability under the USERRA. You aren't liable if you can prove that you would have made the same employment decision in the absence of the employee's military service.

Right to Be Free from Retaliation

Another right given to veterans is the right to be free from retaliation. Under the USERRA, employees with military service are free to:

  • Bring a lawsuit to enforce a protection
  • Testify or make statements
  • Assist or participate in an investigation
  • Exercise a right

You can't retaliate against the employee for any of these actions under the USERRA. You must treat him as if he never committed the action. The employee has the right to bring a lawsuit against you for any retaliation.

Just like discrimination, the employee has the burden of proof that his action under the USERRA was a motivating factor when you made the decision against him. You aren't liable if you can prove that you would have made the same employment decision in the absence of the employee's action.

Questions for Your Attorney

  • What are the benefits of having an attorney help me reemploy veterans to prevent discrimination?
  • Can I refuse to rehire a former employee with military experience on the basis that he's no longer qualified for the job?
  • Can I discipline an employee who's assisting in a discrimination investigation for always being late to work?
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