Can You Get Fired for Military Leave Under USERRA?

No. Firing an employee because they took military leave is illegal under the Uniformed Services Employment and Reemployment Rights Act (USERRA). The law applies to nearly every employer in the country, public and private, regardless of size, and it protects your civilian job during service in the Armed Forces, Reserves, or National Guard. USERRA goes further than simply banning discrimination: once you return, it also blocks your employer from firing you without cause for a set period, giving you a real cushion before you go back to at-will status.¹

The protection covers every phase of the employment relationship. An employer cannot skip you for a promotion because you might deploy next year, dock your review because you missed work for training, or discipline you for attending drills. Retaliation is also barred, so filing a USERRA complaint, helping in an investigation, or supporting a coworker’s claim cannot legally be the reason you lose your job.²

What Military Service Is Covered

USERRA reaches much further than active-duty deployments. Voluntary and involuntary service in the Armed Forces, Reserves, and National Guard all qualify. So do active and inactive duty for training, fitness-for-duty examinations, funeral honors duty performed by Guard or Reserve members, and duty by intermittent employees of the National Disaster Medical System activated for a public health emergency.³ A single weekend drill counts. A multi-year deployment counts. The scope of “service” is not where these cases usually turn.

What You Have to Do to Keep the Protection

USERRA does not hand you protection unconditionally. Miss one of these steps and an employer may have a legal basis to refuse reemployment, which is often how a “firing” for military leave actually happens.

Give Advance Notice

Tell your employer about upcoming military service as far in advance as reasonably possible. The notice can be verbal or written, and it can come from you or from an officer in your branch of service. Notice is excused only when military necessity prevents it (a classified mission, for instance) or when giving notice is genuinely impossible or unreasonable.³ Writing it down is not required, but it creates a record if a dispute develops later.

Stay Within the Five-Year Limit

Your cumulative military absences from a single employer generally cannot exceed five years and still qualify for reemployment. Several categories are exempt from this cap, including service during a war or national emergency, required training, and involuntary recalls.¹ Most service members never hit the limit, but it becomes relevant with multiple long deployments under the same employer.

Report Back on Time

When service ends, you have to apply for reemployment within specific windows based on how long you were gone:

1 to 30 days of service: report by the start of your next regularly scheduled work period on the first calendar day after arriving home safely, with an eight-hour rest period built in.
31 to 180 days: apply within 14 days of completing service.
More than 180 days: apply within 90 days of completing service.

These deadlines are extended by up to two years if you are hospitalized or recovering from an injury or illness incurred or aggravated during service. That two-year extension can stretch further where circumstances beyond your control make even the extended deadline impossible.³

Provide Documentation When Asked

If your service lasted more than 30 days, your employer can request documentation showing that your application was timely, that you have not exceeded the five-year limit, and that your discharge was not disqualifying. A DD-214, a copy of completed duty orders with an endorsement, a letter from a commanding officer, or a discharge certificate showing the character of service will all do the job.⁴ An employer cannot delay or deny reemployment by demanding documents that do not exist or are not readily available.

The Protection Against Firing After You Return

This is the piece many service members do not know about, and it is the direct answer to whether you can be let go once you are back at your desk. USERRA gives returning employees a window during which the employer must have cause to fire them:

Service of 31 to 180 days: protected from termination without cause for 180 days after reemployment.
Service of more than 180 days: protected for a full year after reemployment.

Inside that window, the employer must show legitimate cause: poor performance, misconduct, or a genuine reduction in force that would have swept you up regardless of your service.⁵ “We don’t have room for you anymore” is not cause on its own. Once the window closes, you can be treated like any other at-will employee, but your employer still cannot fire you because of your military service. That prohibition never expires.²

The protection extends past termination to the whole employment picture. When you return, USERRA’s “escalator principle” entitles you to the job you would have held if you had never left, including any promotions, pay raises, and seniority increases that would have accrued during your absence.³ Demoting or underpaying you on return is a USERRA violation even if you are not technically fired.

When an Employer Can Legally Refuse to Bring You Back

The protections are strong but not absolute. The employer carries the burden of proving each of the following defenses.

Changed circumstances. If the employer’s situation has changed so drastically that reemployment is impossible or unreasonable, such as a business closure or a genuine reduction in force that eliminated the position, the obligation is excused.
Undue hardship. If retraining you or accommodating a service-connected disability would impose significant difficulty or expense, that obligation is excused. It has to be proved case by case.
Disqualifying discharge. A dishonorable or bad conduct discharge, or separation under other than honorable conditions, wipes out your USERRA reemployment rights entirely.
Brief, nonrecurrent employment. If the job you left was for a brief period with no reasonable expectation that it would have continued, the employer is not required to reemploy you.

⁴

Temporary, part-time, probationary, and seasonal employees still have USERRA rights. Holding one of those positions does not shrink your protection on its own; what matters is whether the job was so brief and nonrecurrent that it had no reasonable prospect of continuing.⁶

What to Do If You Are Fired Anyway

If your employer terminates you because of military service, refuses to reemploy you, or fires you without cause during the protected window, you have several ways to push back, and you do not have to pick them in order.

File a Complaint With VETS

The most common first step is a complaint with the U.S. Department of Labor’s Veterans’ Employment and Training Service. It is free and can be done online or at a local VETS office. Bring documentation of your employment, your military service, and the employer’s action. VETS will investigate, gather information from both sides, and try to negotiate a resolution that could include reinstatement, back pay, or restoration of lost benefits.³ If VETS cannot resolve it, you can ask the agency to refer the case to the Department of Justice (for private employers and state or local governments) or the Office of Special Counsel (for federal employers). The Attorney General has 60 days to decide whether to take your case and must notify you in writing.

File a Private Lawsuit

You are not required to go through VETS at all. USERRA lets you skip the administrative process and sue on your own. Claims against private employers go to federal district court; claims against a state as an employer can be brought in state court.⁷ You can also sue if you asked VETS for help and the Attorney General declined the case.

What You Can Recover

A court can order reinstatement, back wages and lost benefits, and future compliance with USERRA. If the violation was willful, meaning the employer knew its conduct was illegal or showed reckless disregard for the law, the court can award liquidated damages equal to the amount of lost wages and benefits, effectively doubling your recovery.⁸

Two features of USERRA enforcement work in your favor. There are no court costs or filing fees for a USERRA claim, and if you hire an attorney and win, the court can order the employer to pay reasonable attorney fees and litigation expenses.⁹ There is also no statute of limitations. Federal law explicitly states there is no time limit for filing a USERRA complaint or claim.¹⁰ That said, unreasonable delay that prejudices the employer could open the door to a laches defense, so acting promptly is still the smart play.

The Burden of Proof Works in Your Favor

In a discrimination or retaliation case, you only need to show that your military service or USERRA activity was one of the reasons behind the employer’s action. You do not have to prove it was the only reason. Once you establish that, the burden shifts to the employer to prove it would have taken the same action regardless of your military status.¹¹ An employer cannot simply gesture at “other reasons”; those reasons have to hold up as ones that would have produced the same outcome on their own.

1
U.S. Department of Labor. Know Your Rights Under USERRA
2
U.S. Office of Special Counsel. Your USERRA Rights as an Employee
3
U.S. Department of Labor. USERRA Pocket Guide
4
eCFR. 20 CFR Part 1002 Subpart C – Eligibility For Reemployment
5
eCFR. 20 CFR 1002.247 – Protection Against Discharge
6
eCFR. 20 CFR 1002.41 – Temporary, Part-Time, Probationary, or Seasonal Employment
7
U.S. Department of Labor. USERRA Fact Sheet 5 – Employment Protections
8
eCFR. 20 CFR Part 1002 Subpart F – Compliance Assistance, Enforcement and Remedies
9
eCFR. 20 CFR 1002.310 – How Are Fees and Court Costs Charged
10
Office of the Law Revision Counsel. 38 USC 4327 – Noncompliance of Federal Officials
11
eCFR. 20 CFR 1002.22 – Burden of Proving Discrimination or Retaliation