Returning Veterans Have Preferential Treatment

Written by Galen T. Shimoda and Justin P. Rodriguez

The Uniformed Services Employment & Reemployment Rights Act ("USERRA") is simply one of the most favorable employment laws out there. Not only does it provide protection against discrimination and retaliation based on one's affiliation with, and/or service in, the military, but it also alters one of the most basic principals in employment law: the "at will" employee. At its core, the "at will" employee doctrine means that an employer can fire you at any time, for any reason, so long as it is not an illegal reason, e.g. because of your age, race, gender, sexual orientation, etc. Thus, an employer can fire you for something as arbitrary as your distaste for hamburgers. The "at will" doctrine can lead to what many may consider to be unfair termination; however, the ability for individuals to select their workplace and/or profession and the ability of employers to select the labor force of their choosing has always been given a premium in our free market economy. The USERRA changes this most basic principal to the benefit of our nation's veterans.

For example, depending on your length of deployment, an employer must have just cause to terminate you for a specified number of days. If a service member was deployed for more than thirty (30) days, but less than 181 days, he or she cannot be terminated without cause for 180 days. If a service member was deployed for a year or more, then he or she cannot be terminated without cause for one (1) year. What constitutes "cause" will vary depending on the situation, but the best way to think about it is that now an employee may be protected from the "unfair" terminations rather than just terminations based on a protected category. Essentially, the employer will have to provide that the decision to terminate was reasonable and that the employee had notice that his or her conduct would be grounds for discharge. Examples may include the failure to report several absences to a supervisor after receiving notice of the need to do so or notice of a particular reporting period. This is why the USERRA is such a powerful statute and provides employees with some of the best protection around.

These protections will, of course, depend upon the veteran making sure he or she has successfully gone through the reapplication process and corresponding timelines. Where the veteran's length of service was for more than thirty (30) days but less than 181 days, the service member must submit an application for reemployment within fourteen (14) days of release from service. Where the veteran's length of service was for more than 180 days, an application for reemployment must be submitted within ninety (90) days of release from service. If the veteran is successful in proving their claim that they were terminated without cause, they may be able to recover lost wages, emotional distress damages, medical expenses, liquidated damages, and attorneys' fees, interest, and costs.

If you believe you have been discriminated against, harassed, or wrongfully terminated/demoted because of your military status, please contact our office to have your claims evaluated.

The Shimoda Law Corp. legal articles should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents of these articles are intended for general information purposes only, and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have.

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