Service members who hold civilian jobs may worry about their employment should the military call them to duty. Fortunately, federal laws such as the Uniformed Services Employment and Reemployment Rights Act provide various legal protections for service members in the civilian workplace. But can a civilian employer still fire you because of your military service?

An Overview of USERRA

The Uniformed Services Employment and Reemployment Rights Act, or USERRA, provides legal protections for civilian job rights and benefits for military veterans and current active duty, Reserve, and National Guard members. The law seeks to ensure that service members can return to civilian jobs with the same pay, status, and seniority they would have had if they had not left to serve in the military. The law also prohibits employers from discriminating against military veterans or current service members based on their military service, including in hiring, pay, promotion, and firing decisions. USERRA applies to nearly every employer in the U.S., including both private and government employers, regardless of size. 

Can an Employer Fire You for Military Service?

USERRA’s anti-discrimination provisions preclude employers from discriminating against active-duty, Reserve, or National Guard service members or military veterans in employment decisions, including terminating an employee by reason of their past, current, or future military service. Reemployment rights under USERRA also enable qualifying service members and veterans to return to their civilian employment. 

When Can Employers Lawfully Terminate Service Members?

Employers may have lawful reasons for terminating a service member, including one who has left their civilian job to perform military service. Situations where an employer may have grounds to terminate a service member include:

• The employer terminated the service member in a plant closure or mass layoff of employees for reasons unrelated to their military service
• The employer terminated the service member for insufficient performance unrelated to military service
• The employer terminated the service member for cause (e.g., documented workplace misconduct like harassment or theft)

USERRA further provides employers with three statutory defenses against a service member’s claim that their civilian employer violated their reemployment rights under the law:

• The employer’s circumstances have changed such that it cannot feasibly or reasonably reemploy the service member.
• Reemploying the service member would impose an undue hardship, such as when a service member no longer qualifies for their civilian job due to disability, and the employer cannot feasibly provide reasonable accommodations.
• The service member held a brief, non-recurring employment, so they should not have had a reasonable expectation that their employment would continue. 

Reemployment Rights Under USERRA

Under USERRA, service members who must leave a civilian job temporarily to volunteer for military service or upon being involuntarily called to military service have the right to prompt reemployment by their civilian employer, provided the service member meets certain requirements, including:

• Leave a civilian job by reason of voluntary or involuntary service in the U.S. Uniformed Services
• Provide advance notice of uniformed service to one’s civilian employer
• Have cumulative absence for uniformed service for five years or less from a civilian job with the same employer
• Return to work or apply for reemployment promptly following the conclusion of uniformed service
• Are not separated from uniformed service under other than honorable conditions or with a disqualifying discharge 

USERRA’s reemployment rights entitle a service member to reemployment in the job they would have attained had they not left their civilian employer for military service, with the same seniority, status, pay, rights, and benefits afforded by seniority. The law also requires employers to provide reasonable training or retraining to returning service members to refresh or upgrade their skills to qualify for reemployment. 

Contact Our Firm Today

Federal law provides military service members and veterans with critical rights that preclude termination from civilian employment for their military service. Contact Patriots Law Group today for an initial consultation with an employment law attorney to learn more about your legal protections under USERRA to understand when a civilian employer can and cannot fire you or refuse to give you your job back due to your military service.