You answer the call to serve. Whether you’re training with the Air National Guard members, deployed overseas with the Marine Corps Reserve, or taking care of a loved one under military caregiver leave, your sacrifice deserves respect, not retaliation or wrongful termination. But what happens when your civilian job doesn’t see it that way? When returning from duty costs you your career, your income, or your peace of mind, the question becomes urgent: Can you sue your employer for retaliation for military leave?
Military service members, especially those in the reserves or on active duty, often face subtle and blatant discrimination after taking time off to fulfill military obligations. The law protects you, but you must understand your rights, the signs of retaliation, and how to prove employer misconduct in court.
What Counts as Retaliation for Military Leave?
Retaliation happens when an employer punishes an employee for taking or requesting military leave. It may not always come in the form of a direct firing. Instead, it can look like:
- A sudden pay cut after you return from duty.
- Denial of promotions or benefits you earned before your military service.
- Hostility from supervisors or other employees due to anti-military bias.
- Being denied reemployment or being placed in a lesser role rather than your same position or an equivalent position.
If your employer failed to honor your reemployment rights or treated you unfairly after your return, they may be violating federal protections under USERRA, the Uniformed Services Employment and Reemployment Rights Act.
USERRA: The Law That Protects You
The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a powerful federal law. It protects individuals who leave civilian jobs to perform military service, including military training, active deployments, and service by National Guard or Coast Guard reservists.
USERRA guarantees:
- Prompt reemployment in your same job or a position with the same seniority, same benefits, and same pay.
- Continuation of retirement plans, pension benefits, and accrued benefits as if you had remained continuously employed.
- Protection from any employment discrimination based on military status or obligations.
- That reemployment rights apply whether you’re returning from a short-term training service or extended active duty.
Your pre-service employer, whether a private employer, the federal government, or a local government employer, must rehire you with reasonable certainty. If they don’t, it may be time to file a USERRA claim.
Can a Job Fire You for Military Duty?
Many service members worry, “Can a job fire you for military duty?” No—federal law prohibits termination based solely on military obligations, as long as you meet the eligibility requirements under USERRA. If you’re a qualified employee who gave proper advance notice (unless impossible), USERRA strictly prohibits employers from firing you just for fulfilling your military obligations.
That includes:
- Active duty deployments.
- Time off for military training.
- Absences under family military leave or military caregiver leave.
Even if your absence causes temporary disruption, employer defenses don’t include personal inconvenience. USERRA also doesn’t allow employers to delay your reemployment with a “waiting period” or reassign you to an inferior role.
If your employer penalized you for serving in the armed forces or refused to reinstate you, they violated federal law, not just ethical standards.
What You Need to Prove Retaliation or Discrimination
To file a successful retaliation or employment discrimination claim under USERRA, you need to show:
- Your military service was a motivating factor in the employer’s decision to demote, terminate, or mistreat you.
- You met the eligibility criteria under USERRA.
- Your employer is covered under USERRA, which allows you to bring a claim in federal court, district court, or the appropriate jurisdiction based on your employer’s status.
- You returned to work or applied for prompt reemployment within the appropriate time after completing military duty.
Evidence to collect includes:
- Written or verbal statements showing anti-military bias.
- Records of denied pension benefits, lost promotions, or reduced pay.
- Emails or performance reviews that changed immediately after your leave.
- Statements from other employees who witnessed retaliatory behavior.
Even if your employer argues other reasons for termination, you can file a case by showing that your military status contributed to their decision.
The Legal Process: Filing a USERRA Claim
You can start by filing a claim with the U.S. Department of Labor’s Veterans’ Employment and Training Service (VETS), which helps protect veterans’ employment rights under federal law. You may consult the Department of Labor’s online USERRA Advisor to better understand your rights and gather necessary information, but this tool does not replace legal counsel in complex or disputed cases.
If mediation fails, VETS may refer your case to the U.S. Department of Justice or the Office of Special Counsel, depending on whether your employer is a federal government, state, private, or local government employer.
Alternatively, you can file a USERRA claim in federal court or district court directly without going through an administrative process.
You may be entitled to:
- Reinstatement to your civilian job.
- Compensation for lost benefits.
- Back pay and front pay.
- Reimbursement of legal fees.
- Restoration of retirement plans and the same benefits you would have earned.
Some courts even award punitive damages if your employer acted maliciously.
Stand Up for Your Rights
Retaliation for military leave isn’t just unfair—it’s illegal. If you’re wondering, “Can my job fire me for joining the military?” or if you’ve already faced job loss, demotion, or denied benefits after serving, it’s time to take action.
Under USERRA, you have the right to be promptly reemployed, to retain your same job or equivalent position, and to return with the same benefits and seniority you would’ve had if you never left.
At Bourassa Law Group, we understand the weight of your service. Whether you’re active duty in the Air Force, in the navy reserves, or among the millions of military veterans returning to civilian employment, we believe your employer should honor your commitment. If you’ve experienced military leave employee retaliation, we’re here to help you reclaim your rights and your future.
Contact us today for a free consultation.
1-800-870-8910