In this second article of our USERRA series, we explain how a veteran or member of the military recognizes discrimination and/or retaliation in violation of USERRA.

Discrimination

USERRA prohibits an employer from discriminating against an employee because of their past or current military service. Specifically, USERRA prohibits an employer from denying service members initial employment, reemployment, retention in employment, promotion, or any benefit of employment due to their military status. USERRA provides an expansive definition of “benefit of employment” that includes wages, rights and benefits under a pension plan, health benefits, insurance coverage, bonuses, severance pay, vacation, the opportunity to select work hours and location, among others. Additionally, courts have interpreted “benefit of employment” liberally and in favor of service members.

Retaliation

USERRA also prohibits an employer from taking an “adverse employment action” against an employee for:

• taking action to seek enforcement of their rights under this law.
• testifying or otherwise making a statement in connecting with any proceeding under this law.
• being involved in an investigation under this law.
• exercising or attempting to exercise their rights under this law.

An “adverse employment action” is defined as a “tangible change in working conditions that produces a material change in working conditions” such as hiring, firing, demotion, a forced transfer to a less desirable position, cuts in pay or benefits, or other changes that affect an employee’s future career prospects.

Motivating Factor

An employer violates USERRA if an employee’s military service is a “motivating factor” in the adverse employment action, unless the employer can prove they would have taken the action regardless of their military status. This means that the employer can be liable under USERRA even if it was just one of the reasons for the adverse employment action. Military status is a motivating factor if the employer relied on, considered, or conditioned its action on that consideration.

Examples

If your employer did any of the following, it may give rise to an inference of discriminatory intent:

• proximity between the employee’s military activity (e.g., performing reservist training) and the adverse action;
• an employer makes discriminatory remarks about service members together with knowledge of the employee’s military status;
• treating other non-service members more favorably (e.g., not discipling non-service members for being late/missing work while penalizing service members for missing work to fulfill service obligations);
• inconsistencies in the employer’s stated reason for the adverse action.

What Can I Do?

If you believe your employer has discriminated and/or retaliated against you, consider contacting an experienced employment attorney, reviewing the Department of Labor (DOL) resources, or filing a USERRA Complaint with the Veterans’ Employment and Training Service (VETS) of the DOL – which we will discuss further in our subsequent articles.