{"id":353874,"date":"2016-04-04T10:47:11","date_gmt":"2016-04-04T15:47:11","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-law\/military\/family-employment-housing\/what-is-military-employment-discrimination.html"},"modified":"2016-06-20T20:25:07","modified_gmt":"2016-06-21T01:25:07","slug":"what-is-military-employment-discrimination","status":"publish","type":"page","link":"https:\/\/www.findlaw.com\/military\/family-employment-housing\/what-is-military-employment-discrimination.html","title":{"rendered":"What is Military Employment Discrimination?"},"content":{"rendered":"\n
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What is Military Employment Discrimination?<\/h1>\n
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Created by FindLaw’s team<\/a> of legal writers and editors<\/i><\/p>\n\n | Last updated\n

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This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw\u2019s team of legal writers and attorneys<\/a> and in accordance with our editorial standards<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n\n

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The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors<\/a>. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n<\/section>\n

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The Uniformed Services Employment and Reemployment Rights Act<\/a> (USERRA) is a federal law that requires the reemployment of service members upon discharge from their military service. It also prohibits discrimination on the basis of past, current, or future military obligations. <\/p>\n\n <\/div>\n\n

When military service members in the Reserves or in the National Guard (when in federal status) are required to take leave from their civilian jobs for uniformed service, they have special anti-discrimination and reemployment rights. USERRA applies to employers of all sizes and even protects part-time and probationary employees.<\/p>\r\n

This article covers the basics of USERRA and its protections against military employment discrimination, with information for both employers and employees. See Employment Discrimination: Overview<\/a> to learn about other workplace anti-discrimination laws and FindLaw’s Military Law<\/a> section for related resources.<\/p>\r\n

Your Rights Against Military Employment Discrimination<\/h2>\r\n

Yes, employers are generally required to provide returning service members with the same or substantially similar job. But they\u2019re also required to reemploy them with the same seniority and benefits that they would have earned had they not left for active duty. This is often called the "escalator" principle. For example, Army reservist "Jane" is next in line for an important promotion at her accounting firm, but is called into active duty for six months. During this time, two of her coworkers acquire the necessary skills and experience to also be eligible for the same promotion. Upon Jane’s return, however, her employer rightly promotes her. Not every case will follow this same fact pattern, but it is a good illustration of how employers cannot discriminate against military members for their service.<\/p>\r\n

Employers also are required by USERRA to make reasonable efforts to train (or retrain) returning service members for their position. However, the employers don’t have to promote individuals who are no longer qualified. In these instances, returning service members should be reemployed in the next-highest position or their pre-service position. Also, an employer is not required to return a service member to the exact same position he or she left, if that position would have been subject to a termination, lay-off or pay-cut regardless of whether the service member left for duty or not.<\/p>\r\n

Additionally, discrimination against employees on the basis of past, current, or intended military service is prohibited. As with other types of discrimination, this applies to hiring and firing decisions; compensation and benefits; and other employment decisions. For instance, National Guard member "Joe" has the most seniority in his department but a much less-qualified coworker is promoted because the manager fears Joe may be called into active duty soon. This could lead to a military discrimination complaint, as would an employer\u2019s refusal to hire a newly recruited service member because of her need to take leave for basic training.<\/p>\r\n

Other USERRA rights include uninterrupted health care coverage for up to 30 days and a continuation of pension plans (vesting, accrual of benefits, etc.) for the duration of any uniformed service obligation. Service members performing service for more than 30 days may continue coverage by paying an additional portion of the monthly premium.<\/p>\r\n

Bottom line \u2013 if you\u2019re facing a conflict between your civilian job and your military service obligations, don\u2019t quit your job and expect to get it back. Instead, provide your employer with reasonable notice and a copy of your orders and you\u2019ll be protected by USERRA. See the Department of Labor’s eLaws USERRA Advisor<\/a> and A Guide to the Uniformed Services Employment and Reemployment Rights Act<\/a> for more details. Remember, especially for service members in the National Guard in state status, additional employment protections may apply to you under state law.<\/p>\r\n

Time Limits for Reemployment<\/h2>\r\n

Service members must return to work within a certain window of time in order to maintain their USERRA protections. That time period is based on the length of their service obligation, as described below:<\/p>\r\n