Can Your Employer Fire You if You're Called to Military Service?

Can Your Employer Fire You if You’re Called to Military Service?

If you’re called to active duty, or if you’re thinking about joining the military, you should know that federal and state laws grant military employees certain rights to unpaid leave and to be reinstated to their positions when their service is over. Here’s what you need to know.

Your Employer Can’t Fire You if You’re Called to Military Service

The jobs of employees who are called to active duty or training are protected under the Uniformed Services Employment and Reemployment Rights Act (USERRA).

USERRA prohibits your employer from discriminating against you, whether you’re a current military employee, a veteran, or applying for membership in the uniformed services.

This federal law, which applies to employers across the country, covers employees who serve in the United States uniformed services, including the Army, Navy, Marine Corps, Air Force, Coast Guard, Reserves, National Guard, the Commission Corps of the Public Health Service, and any other category that’s designated by the president during a war or national crisis.

USERRA applies whether military service is voluntary or involuntary.

This isn’t to say your employer can’t fire you for misconduct or for another reason, though. Your employer can legally terminate you for a reason other than you being called up to military service.

Your Rights Under USERRA: A Quick Look

  • You are entitled to unpaid time off for military service, training, or other activities.
  • You have the right to be reinstated to your job with the same benefits and seniority.
  • You have the right not to be fired for a certain period of time without good cause.
  • You have the right to be free from discrimination or retaliation.
  • Your employer must give you written notice of your rights under USERRA.

Requirements for Reinstatement

If you serve in the uniformed services you may take up to five years of unpaid leave from your job and be reinstated if you meet these requirements:

  • You worked for your employer at the time you were called to active duty, or volunteered for service.
  • You gave your employer advance notice that you would be leaving for military service.
  • You were away for military service for five years or less.
  • You did not receive a dishonorable discharge, or similar release, from service.
  • You applied for reinstatement in a timely fashion.

Your Deadline to Apply for Reinstatement

Your deadline to apply for reinstatement depends on the length of your service. Here are the time guidelines:

  • If you served 30 days or less you must apply to be reinstated on your next scheduled workday after you have safely returned home and had an 8-hour period of rest.
  • If you served from 31 to 180 days you must apply within 14 days after the end of your military service.
  • If you served for 181 days or more you must apply within 90 days of the end of your military service.

Your Employer’s Obligations Under USERRA

If you meet the requirements for reinstatement your employer must return you to the position you would have held if you had been continuously employed. For instance, if employees are routinely promoted from an assistant to an associate after a two-year period, you would be entitled to that promotion—just as long as you are qualified for the job. If you aren’t qualified, your employer must make reasonable efforts to help you qualify, like providing training or accommodations.

As an employee returning from military leave your employer must make pay raises, seniority, additional work duties—or other benefits you would’ve received if you’d never left—available to you. Your employer may not fire you for a certain period of time without cause, depending on the length of your military service. With that in mind:

  • If you served for 181 days or more, you cannot be fired without cause for one year.
  • If you served between 31 and 180 days, you may not be fired without cause for 180 days.

“Cause” generally refers to a legitimate, business-related reason. This might include a violation of company rules, excessive absences, insubordination, or other misconduct.
Under USERRA your employer cannot discriminate against you as a current military employee, veteran, or applicant for membership in the uniformed services. This applies to all aspects of employment, including, hiring, work duties, promotions, benefits, and firing.

Also, your employer may not retaliate against you as a military employee who exercises your rights under USERRA, which include taking time off, applying for reinstatement, filing a complaint for an USERRA violation, or participating in an USERRA-related investigation. Retaliation may include shift changes, exclusion from meetings or social events, or other changes that can be viewed as punishment.

Do You Need to Talk to an Attorney About Losing Your Job After Performing Military Service?

If you were terminated after performing military service, we may be able to help you. Call our office at 818-230-8380 or fill out the form below to discuss your situation during a free consultation.

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