How To Prove An Employer Violated USERRA

Feb 08, 2022
By Peter Friedmann

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that protects the rights of active service members and veterans in the employment setting. Employers are required, under USERRA, to reinstate service members who took time away from work due to a military obligation.

But that’s not the only protection that USERRA offers to service members.

Under USERRA, service members are also protected from “discrimination in the workplace based on their military service or affiliation.”

Below, we explore more about what a USERRA violation is and what can happen if an employer violates USERRA by discriminating against an employee.

What Is A USERRA Violation?

A USERRA violation can take different forms. Some common types of discrimination that can count as USERRA violations include:

  • Denying an initial employment application once an employer becomes aware of military obligations
  • Refusing to reinstate an individual after they have finished their military service
  • Denying a promotion or other employee benefits based on current or previous membership and/or application for membership with the military
  • Excluding an individual from job promotions based on time served in the military
  • Terminating an employee because of a military obligation

Employers that violate USERRA can face USERRA violation penalties including:

  • Forced compliance with USERRA provisions
  • Compensating the individual for any lost wages or benefits due to an adverse job action related to military status, like termination or demotion

Sometimes employers commit USERRA violations unknowingly. But if an employer is found to have willfully violated USERRA, they may also be required to pay a number of lost wages and benefits as liquidated damages.

You can read about the USERRA eligibility requirements here.

Establishing Discrimination

To establish discrimination under USERRA, you must show that your military service was a motivating factor in the adverse employment action taken against you. This does not mean it was the only reason, but that it was one of the reasons for the employer’s actions.

Some examples of discriminatory acts under USERRA include:

  • Being fired, demoted, or denied a promotion because of military service
  • Being denied initial employment because of military obligations
  • Facing harassment or hostility in the workplace due to service
  • Being reemployed in a lesser position or at lower pay because of absence for military duty

Gathering evidence of discrimination is crucial. Some key evidence to obtain includes:

  • Written or verbal comments from supervisors or colleagues showing bias against military service
  • Emails, memos, or other documents referencing military leave in a negative light
  • Records of promotions, pay increases, or other benefits given to non-military employees but not you during absence
  • Testimony of other employees who witnessed discriminatory statements or actions
  • Comparisons showing non-military employees with similar positions and experience being treated more favorably

What Happens If an Employer Violates USERRA?

If an employer violates USERRA, you have the right to report the violation to the U.S. Department of Labor – Veterans Employment and Training Service (VETS). VETS is the section of the Department of Labor that handles USERRA investigations.

You also have the right to file a lawsuit.

Before or after filing a USERRA complaint, you can also obtain legal advice from Columbus military discrimination lawyers. Knowledgeable lawyers will know the federal and state laws that will best apply to your situation.

According to the Department of Labor, you may bypass the VETS process. You may bring a civil action (lawsuit) against your employer for USERRA violations if you choose to do so.

Should you pursue a lawsuit, working with a Columbus USERRA attorney who can help guide you through the legal process is beneficial.

How To Prove An Employer Violated USERRA

If you fall under the protection of USERRA and you believe you have been discriminated against because of your military service, there are steps you can take to address what happened and ensure the employer is brought to justice.

Note these are just basic steps you can take on your own – this is not legal advice, and you should speak with a lawyer for further legal guidance and potential representation.

  • Double-check that you meet USERRA’s eligibility requirements. You must provide notice to your employer about your military service and meet other conditions such as having your service fall under “honorable conditions.”
  • Keep records of any communication and documentation between you and your employer. This can be used as evidence for your VETS complaint or civil action.
  • Seek outside advice and help from a military discrimination lawyer. Experienced lawyers can offer expert guidance on what the process will be like and can represent you throughout that process.
  • We highly recommend having counsel to represent you throughout this process. An experienced USERRA attorney is important to the success of your claim.

Common examples of adverse employment actions in USERRA cases include:

  • Termination, demotion, or denial of promotion upon return from military leave
  • Denying benefits like pension, bonuses, or profit sharing tied to military leave
  • Failure to reemploy in the proper position after returning from service
  • Harassment or discipline for drill/training requirements
  • Reduction in pay, working hours, or status due to absences for military duty

The key is being able to demonstrate the adverse action took place under circumstances giving rise to an inference of discrimination based on military service. Helpful evidence includes:

  • Documentation showing positive performance reviews and job history until disclosing your military obligations
  • Records of increased scrutiny, discipline, or undeserved demotion/pay cuts after notifying employer of upcoming military service requirements
  • Statements from the employer expressing negativity toward your service obligations
  • Evidence the adverse action violates company policy or only applies to you and not others

By thoroughly documenting the adverse action and showing a connection to your protected military activities, you can prove a USERRA violation occurred. Discuss your case with an attorney to enforce your rights.

Documenting Everything

Keeping detailed records is crucial for proving your case and showing how the employer violated USERRA. You’ll want to maintain documentation of all relevant events and communications. This includes:

  • Employment documents like job applications, offer letters, employment agreements, handbooks, job descriptions, performance reviews, etc.
  • All emails, letters, notices, warnings, memos, texts, or other written communications with your employer related to military service or employment.
  • Notes from any conversations, meetings, hearings, etc. related to your military obligations. Document date, time, location, who was present, and details discussed.
  • Military orders, letters, notifications, attendance records, etc. showing your service obligations and dates.
  • Pay stubs and other documentation related to compensation, benefits, raises, bonuses, etc. or any changes as a result of military service.
  • Job postings and any documentation related to hiring or promotions at your company.
  • Records related to any adverse actions like demotion, harassment, denial of promotion, termination, etc.
  • Anything documenting damages and lost wages.

Maintain thorough, organized records. Save digital copies and print physical copies. Keep notes in a dedicated notebook or digital file. Review documentation regularly. Use calendar reminders to log events and conversations promptly. Proper documentation is invaluable to prove USERRA discrimination.

Speak With a Columbus USERRA Attorney

Here at The Friedmann Firm, our team of Columbus military discrimination lawyers works hard to ensure that employees who have been discriminated against because of their military status receive the legal assistance they need.

If you believe that you are facing discrimination based on your military status, reach out to a Columbus USERRA attorney today. You can contact us online to make an appointment or over the phone at 614-610-9755.