Workplace Military & Veteran Discrimination

+ When is military or veteran employment discrimination illegal?

USERRA prohibits employers from denying initial employment, reemployment, retention, promotion, or employment benefits because of a person’s past, present, or future military service obligations. It applies to members of the armed forces, National Guard, and reserve components, as well as people who apply to serve or have an obligation to serve.

+ What are examples of military-service workplace discrimination?

Examples of potential military-service workplace discrimination include:

• Termination or demotion: Firing or demoting an employee because they have been called to active duty.
• Denied promotions: Passing over an employee for advancement because their military obligations require periodic absences.
• Unequal treatment: Treating an employee less favorably because they serve in the National Guard or reserves.
• Hiring discrimination: Refusing to hire a qualified applicant because the employer expects future military absences.
• Retaliation for exercising military rights: Penalizing an employee for requesting military leave, seeking reemployment, or exercising other rights protected by USERRA.
• Lack of procedural protection: Failing to follow additional procedural protections for qualifying veterans facing discharge from public employment, per Minnesota law.

+ What employment rights do I have when I return from military service?

USERRA generally requires an employer to reemploy an eligible service member who leaves a civilian job to perform qualifying uniformed service and satisfies the law’s requirements. Those requirements include giving advance notice when required, staying within applicable service limits, and returning to work within the applicable time frame.

Eligible returning service members generally must be restored to the position they would have attained if their employment had continued without the military absence, or to a comparable position when required. This can include appropriate seniority, status, pay, and benefits.

+ Can my employer fire me because I am a veteran or serve in the military?

No. An employer generally cannot fire an employee because of protected military service or obligations. For example, an employer may violate the law by terminating a reservist because the employee must attend required military training or by refusing to restore an eligible service member to employment after qualifying service.

Veterans employed in certain Minnesota state or local government positions may have additional protections under the Minnesota Veterans Preference Act. Eligible veterans who have completed their initial probationary period generally cannot be discharged except for incompetence or misconduct established through a formal process. This includes written notice of the proposed discharge and an opportunity to request a hearing. These protections do not apply to every public employee or position.

+ Does Minnesota law protect military spouses and family members?

Yes. Minnesota law prohibits employers from taking adverse employment action against an employee because the employee’s spouse, parent, or child serves in the military.

The law also provides certain employees with unpaid time off to attend qualifying military departure or return ceremonies, family readiness events, and official military reintegration events involving an immediate family member. Employees must provide reasonable notice, and statutory limits apply to the amount of leave.

These protections are separate from USERRA’s protections for the service member. If an employer penalizes you because of a family member’s military service or because you attend a qualifying military-related event, the circumstances may warrant legal review.

+ How do I prove workplace service member discrimination?

You do not necessarily need direct evidence, such as a supervisor admitting that military service influenced an employment decision. A claim may be supported by circumstantial evidence, including the timing of an adverse action, inconsistent explanations,, or different treatment compared with employees who do not have similar service obligations. Potentially useful evidence includes:

• Emails, text messages, performance reviews, and disciplinary records.
• Military orders, training schedules, and communications about leave.
• Records of requests for military leave or reemployment.
• Statements suggesting that military service or absences were viewed negatively.
• Evidence that the employer changed its explanation for an employment decision.
• Records showing that the employer denied reemployment rights or failed to restore appropriate seniority, status, or benefits.

For example, if an employer gives an employee a negative performance review shortly after the employee returns from military training, communications criticizing the employee’s service obligations may be relevant. The evidence must be considered in context.

+ Can my employer retaliate against me for asserting my military employment rights?

No. USERRA prohibits retaliation against people who exercise or seek to enforce rights under the law, or who participate in a USERRA investigation or proceeding.

Retaliation may include termination, demotion, reduced hours, undesirable assignments, or other adverse actions because an employee requested military leave, sought reemployment, or complained about a possible violation. A retaliation claim can sometimes exist even if the underlying military discrimination complaint is not ultimately proven, provided the circumstances meet the requirements of the applicable anti-retaliation law.

+ Can I bring a service member discrimination claim if I quit my job?

Potentially. An employee who resigns may have a claim if unlawful discrimination or other illegal conduct made working conditions so intolerable that a reasonable person would feel compelled to resign. This is commonly known as constructive discharge.

However, a difficult work environment or disagreement with an employer does not automatically qualify. The facts, the employer’s conduct, and the legal basis for the claim all matter. If you are considering resigning because of military-related discrimination, seek legal advice before making that decision if possible.

+ How much is a workplace military or veteran discrimination case worth?

The value of a claim depends on the type of violation, the evidence, the financial losses involved, and the remedies available under the applicable law.

USERRA may provide remedies such as lost wages or benefits, reinstatement, and other relief. If a violation is found to be willful, additional liquidated damages may be available. Other state or federal claims may provide different remedies, depending on the circumstances.

There is no reliable average settlement that predicts what an individual case will be worth. An employment attorney can review the evidence, identify potentially applicable claims, and explain the remedies that may be available.

+ What is the statute of limitations for a service member discrimination case?

USERRA does not have a statute of limitations and expressly precludes any state from applying its own statute of limitations. However, that does not mean you should delay seeking legal advice. Evidence may become harder to obtain over time and other laws or types of claims may have different deadlines and requirements.

USERRA complaints can be submitted to the U.S. Department of Labor’s Veterans’ Employment and Training Service (VETS), and individuals may also have the option to pursue a civil action.

Other Minnesota protections, including veterans’ preference rights in public employment, may have separate procedures and deadlines. If you believe your employer has violated your military employment rights, consult an attorney promptly to determine which laws apply and what steps you should take.

+ What should I do if my employer has discriminated against me because of my military service or veteran status?

If you believe you have experienced military or veteran discrimination, document what happened as soon as possible. Consider these steps:

• Preserve military and employment records. Keep copies of relevant military orders, training schedules, discharge documents, pay stubs, performance reviews, and employer communications.
• Document leave and reemployment requests. Save your notices of military service, communications about leave, requests to return to work, and the employer’s responses.
• Request your personnel record. Minnesota law generally gives employees the right to request access to their personnel records in writing, subject to statutory conditions.
• Consider contacting VETS. The U.S. Department of Labor’s Veterans’ Employment and Training Service can assist with USERRA concerns.
• Be cautious before signing an agreement. A severance agreement or release may affect your options.
• Speak with an employment attorney. An attorney can help identify applicable protections, evaluate evidence, and explain possible remedies and procedures.

You do not need to prove your entire case before seeking legal advice. An attorney can help evaluate what happened and determine what additional evidence may be useful.