A protected veteran can be fired, but not without cause during a federally protected window after returning from military service. Under the Uniformed Services Employment and Reemployment Rights Act (USERRA), a veteran who served more than 180 days cannot be discharged without cause for one year after reemployment, and a veteran who served 31 to 180 days is protected for 180 days.1Office of the Law Revision Counsel. 38 U.S. Code 4316 – Rights, Benefits, and Obligations of Persons Absent From Employment for Service in a Uniformed Service Outside those windows, at-will employment resumes, but firing a veteran because of military service, a service-connected disability, or in retaliation for asserting legal rights remains illegal.
The Two Protected Windows After Reemployment
USERRA temporarily suspends at-will employment for returning service members. The length of the protection depends on how long the veteran was away:
- Service of more than 180 days: no discharge without cause for one year after the date of reemployment.
- Service of 31 to 180 days: no discharge without cause for 180 days after the date of reemployment.
- Service of 30 days or less: no special discharge protection, though anti-discrimination and anti-retaliation protections still apply.
These protections attach automatically the moment the veteran is reemployed. No paperwork, no request. The clock simply starts.1Office of the Law Revision Counsel. 38 U.S. Code 4316 – Rights, Benefits, and Obligations of Persons Absent From Employment for Service in a Uniformed Service
USERRA covers every employer in the United States regardless of size, down to a single-employee business.2eCFR. 20 CFR Part 1002 Subpart C – Coverage of Employers and Positions The law reaches service in the Armed Forces, Reserves, National Guard, commissioned corps of the Public Health Service, and the National Disaster Medical System, and it protects past, present, and prospective service members.3U.S. Department of Labor. VETS USERRA Fact Sheet 5 – Employment Protections for Veterans and Service Members
What Counts as Cause During the Protected Period
During the protected window, the employer carries the burden of proving cause. USERRA’s regulations recognize two paths.4eCFR. 20 CFR 1002.248 – What Constitutes Cause for Discharge Under USERRA
The first is conduct. The employer must show that the employee’s behavior reasonably warrants termination and that the employee had notice, either explicit or reasonably implied, that the conduct could lead to being fired.
The second is a legitimate business reason unrelated to the veteran’s status. A genuine restructuring that eliminates the position qualifies. So does a layoff the veteran would have been swept up in even without the military absence. Either way, the employer must prove the reason, with evidence, not adjectives. A vague reference to “poor fit” or “reorganization” without documentation is unlikely to hold up. This is where most employer defenses fall apart: a real reason may exist, but the paper trail supporting it does not.
Mixed-Motive Firings
Sometimes an employer has a genuine performance concern and a bias problem at the same time. Courts have recognized mixed-motive claims under USERRA. If the veteran shows military service was a substantial or motivating factor in the decision, the burden shifts to the employer to prove it would have made the same decision anyway. Clean, consistent disciplinary records matter here more than anywhere else.
Protections That Continue After the Window Closes
The one-year or 180-day period is not a cliff. Once it ends, at-will employment resumes for ordinary reasons, but several protections keep running indefinitely.
Discrimination Based on Military Service
USERRA prohibits employment discrimination based on past, current, or future military service obligations. An employer cannot deny hiring, promotions, or any employment benefit because someone serves in the Guard, is about to deploy, or served previously.5U.S. Department of Labor. Your Rights Under the Uniformed Services Employment and Reemployment Rights Act After the protected window, the burden flips: the veteran must show that military status was a motivating factor in the termination. The prohibition itself does not expire.
Retaliation
An employer cannot fire, demote, or take any adverse action against an employee for filing a USERRA complaint, participating in an investigation, testifying in a proceeding, or otherwise asserting rights under the law.6eCFR. 20 CFR 1002.19 – What Activity Is Protected From Employer Retaliation by USERRA The same prohibition applies to veterans who raise concerns under the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) or other anti-discrimination statutes.7U.S. Equal Employment Opportunity Commission. Protections Against Employment Discrimination for Service Members and Veterans
Service-Connected Disabilities
Veterans with disabilities, service-connected or not, are also protected by the Americans with Disabilities Act. The ADA requires employers with 15 or more employees to provide reasonable accommodations that let a qualified individual perform essential job functions, unless doing so would cause undue hardship, meaning significant difficulty or expense.8U.S. Equal Employment Opportunity Commission. Small Employers And Reasonable Accommodation Accommodations can include modified schedules, adjusted duties, assistive equipment, or changes to the work environment.
Firing a veteran because of PTSD, a traumatic brain injury, or another service-connected condition, without first exploring reasonable accommodations, can violate both the ADA and USERRA. An employer who claims the veteran “can’t do the job” must show that no reasonable accommodation would make the essential functions possible.9U.S. Equal Employment Opportunity Commission. Veterans and the Americans with Disabilities Act – A Guide for Employers Veterans with non-visible disabilities are not required to disclose them unless they need an accommodation, so the decision to request one belongs to the veteran.10ADA.gov. ADA – Know Your Rights – Returning Service Members with Disabilities
Federal Contractor Employees
Veterans working for federal contractors have an additional layer of protection under VEVRAA. The law covers disabled veterans, recently separated veterans (discharged within the past three years), active duty wartime or campaign badge veterans, and Armed Forces service medal veterans. A single veteran can fall into more than one category.11U.S. Department of Labor. Am I A Protected Veteran? VEVRAA applies to federal contractors and subcontractors with contracts of $200,000 or more, and it requires affirmative action in hiring, promotion, and retention, not just neutrality.12U.S. Department of Labor. Vietnam Era Veterans’ Readjustment Assistance Act
What To Do If You Are Fired
A veteran who believes an employer violated USERRA has two main routes. The informal path runs through the Employer Support of the Guard and Reserve (ESGR), which provides ombudsmen who mediate between the veteran and the employer. According to the Department of Labor, about 95% of cases referred to ESGR are resolved informally.13U.S. Department of Labor. File A Claim
If mediation fails or the veteran wants formal action, the next step is filing a complaint with the Department of Labor’s Veterans’ Employment and Training Service (VETS) using Form 1010.14U.S. Department of Labor. VETS 1010 Form On-line Submission VETS investigates and attempts to resolve the complaint. Unresolved cases can be referred to the Attorney General (for private and state employers) or the Office of Special Counsel (for federal employers) for court enforcement.
Veterans can also skip the administrative process and file a private lawsuit. Private-sector employees file in federal district court, state employees can file in state court, and federal employees can appeal to the Merit Systems Protection Board.13U.S. Department of Labor. File A Claim USERRA has no statute of limitations, though courts have applied the four-year general federal limitations period in some cases, and unreasonable delay that prejudices the employer can trigger the equitable doctrine of laches.15eCFR. 20 CFR 1002.311 – Is There a Statute of Limitations in an Action Under USERRA
What a Veteran Can Recover
A veteran who wins a USERRA claim can recover several forms of relief. Reinstatement to the position the veteran would have held is the most common remedy, with full seniority, status, and pay restored. Back pay covers lost wages and benefits for the entire period of lost employment, including missed retirement contributions, bonuses, and vacation time.
When an employer knowingly violated USERRA, the court can award liquidated damages equal to the amount of lost wages and benefits, effectively doubling the recovery. Courts can also order the employer to pay the veteran’s attorney’s fees and litigation costs, which removes a significant financial barrier to bringing a claim. Injunctions requiring reinstatement, an end to retaliation, or policy changes are also available.
Veterans pay no filing fees for USERRA complaints with VETS, and the Department of Labor and Department of Justice can represent veterans at no cost if a case is referred for enforcement. Private lawsuits can take months or longer, so consulting an attorney experienced in military employment law early is worthwhile.