Military Service/Veteran Discrimination and Right to Military Leave

The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) protects the rights of employees taking leaves for military service. All employers (regardless of size) and all employees (regardless of length of time employed or number of hours worked) are covered. Specifically, the USERRA:

  • guarantees returning veterans a right of reemployment, with reinstatement of benefits, after military service ;
  • prescribes the position to which such veterans are entitled upon their return;
  • prevents employers from discriminating against returning veterans on account of their military service;
  • prevents employers from firing without cause any returning veterans within one year of reemployment.

Employers are required to grant employees leaves for periods of military service, generally for a total of up to five years. Service members’ rights to Family & Medical Leave are also protected. The period an employee was on USERRA-protected leave is included in determining his or her eligibility for FMLA leave (12–month/1250–hours length-of-employment tests).

Moreover, employers must make reasonable accommodations for employees with service-connected disabilities. If despite such accommodations, an employee is not qualified for the position he or she would have held but for military service, the employee must be reemployed in a position of equivalent seniority, status and pay for which he or she is qualified or could become qualified to perform.

California military leave laws (Mil. & Vet.C. § 389 et seq.), like the USERRA, ensure that employees are not adversely affected in their employment because of military service. California law provides that employers cannot discriminate against a member of the military or naval forces of California or the U.S. because of that membership. In addition, an employer may not discharge such person because of the performance of military duty or training or by virtue of the person's status as a member of the military or naval forces of California or the U.S. Like the USERRA, the California state military leave provisions generally cover all private employers (regardless of size).

Furthermore, family members of a person in military service are entitled to leave under existing law. Employers with 25 or more employees must allow the spouse of a person in military service up to 10 days of unpaid leave while the soldier-spouse is on leave from deployment during a military conflict. Additionally, the FMLA allows up to 12 weeks of leave to an employee who is a family member of a person in military service during time of hostilities if a “qualifying exigency” exists; or, up to 26 weeks to care for a wounded servicemember during rehabilitation.

An employer who violates these provisions is liable for damages and attorney fees. Moreover, discrimination, discharge, or other discipline or prejudice in employment based on military status is a misdemeanor.

If you feel you have been discriminated in your employment based on your military service, you should contact a military and veteran discrimination attorney at Workplace Justice Advocates, a Professional Law Corporation, to determine your legal options.

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