Do You Need a Military Discrimination Lawyer?
Have you faced wrongful discharge because of your Army Reserve duties?
- Does your manager treat you worse because of your military service?
- Have you been knocked off the fast track — because you chose to serve your country?
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is a federal law that outlaws workplace discrimination based on an employee's military service. Employers may not fire, fail to hire, or deny any workplace benefit to workers based on their membership in or duties to a uniformed service — or based on their exercise of any right under USERRA, including the right to file USERRA discrimination complaints.
If you have been treated differently in the workplace because you're a veteran perhaps including wrongful discharge, USERRA may help you get what you deserve.
People ask us:
The attorneys at The Employment Law Group® law firm are experienced in representing employees in USERRA cases, both before the U.S. Department of Labor — which enforces the law — and in federal court. Several of our cases have broken legal ground in the protection of veterans and service members.
Representing an employee before a federal appeals court, for instance, our firm helped to establish a generous reading of USERRA that helps employees who face anti-military bias. We helped obtain a ruling for a federal employee for a more robust investigation when the federal agency failed to produce statements. And before the Merit Systems Protection Board, we represented a federal employee in a successful motion requiring the federal agency to produce information and respond to requests.
Important statutes in this area of law:
Discrimination against persons who serve in the uniformed services and acts of reprisal prohibited; reemployment rights of persons who serve in the uniformed services; rights, benefits, and obligations of persons absent from employment for service in a uniformed service
Notable TELG cases in this area of law:
The MSPB ordered that the documents and witnesses the plaintiff requested were relevant, and that the agency had to produce them.
A federal appeals court laid down a favorable analytical approach for victims of discrimination based on their military service.
If you have suffered illegal discrimination or retaliation under USERRA, you may be entitled to relief that includes reinstatement in your job; lost wages or benefits; liquidated damages equal to lost wages and benefits for willful violations; attorney fees, expert witness fees, and other litigation expenses.
As with all legal claims, deadlines are crucial. USERRA does not have an express statute of limitations, but employees who delay unreasonably will lose their rights — and at least some courts have applied a four-year statute of limitations. An employee may pursue an administrative remedy by filing with the Department of Labor or may file a complaint directly in court.
Frequently Asked Questions
What benefits do service members and veterans get from USERRA discrimination protection?
USERRA establishes or strengthens several important workplace protections for service members and veterans. Most notably, it forbids discrimination against employees based on their military service, including service with the Army Reserve and National Guard, and it entitles employees who must leave their jobs for military service — because their unit is called to active duty, for instance — to return to the job with accrued seniority if they meet basic eligibility requirements. (Learn more about military reemployment rights.)
What sort of discrimination is forbidden?
Under USERRA, employers may not discriminate against workers because of their service in the National Guard, Armed Forces (including the Reserve), or other uniformed service. In particular, employers are prohibited from firing, failing to hire, or denying employment benefits to an employee because of the employee’s membership, application for membership, performance of service, application for service, or obligation for service in the uniformed services.
Employers are also prohibited from retaliating against an employee who files a complaint under USERRA, testifies in a USERRA proceeding, participates in a USERRA investigation, or exercises a right under USERRA.
How do courts analyze USERRA cases?
To prevail in military discrimination cases, an employee must prove by a preponderance of the evidence that the employee’s military service was a motivating factor in the employer’s decision to take an adverse employment action against the employee. If the employee meets this burden, he or she will prevail on a claim for discrimination unless the employer can prove that it would have taken the same adverse action in the absence of the employee’s military service.
Why would an employee file such a case?
If a military veteran employee prevails in a USERRA case, he or she can recover back pay, front pay, lost benefits, litigation costs, and reasonable attorney fees.
What’s the procedure for filing a USERRA complaint?
If you think you were discriminated against on the basis that you are a veteran, you may pursue an administrative remedy at the U.S. Department of Labor or file a complaint directly in federal court. Comparatively, federal employees may pursue an administrative remedy at the DOL or file an appeal with the Merit Systems Protection Board.
To pursue an administrative remedy, you must file a complaint with the DOL’s Veterans’ Employment and Training Service, known as VETS. Within 90 days of receiving the complaint, VETS must investigate your dispute. If VETS fails to resolve the case, you can ask it to refer your complaint to the Department of Justice. Federal employees, however, do not have to file a complaint with VETS prior to going to the MSPB. In fact, if a federal employee does file a complaint with VETS, then they must wait for a decision from VETS before they can go to the MSPB.
If you decide not to file with the DOL — or if the Justice Department declines to represent you — you still can file a USERRA action in federal court, where you will have the right to a jury trial.