Discrimination Because of Service
The short answer
An employer may not fire, discipline, deny promotion to, or otherwise penalize you because of Guard or Reserve membership, drill weekends, annual training, or any other service obligation — no small-business exception, and you give notice of duty, you don't ask permission (20 CFR § 1002.87). If it already happened, the complaint pathway below is free and starts with a phone call.
Statute
38 U.S.C. § 4311
Summary
Employers may not discriminate against employees or applicants because of their military service or obligation.
Protected Activities
- Membership in uniformed services
- Application for membership
- Performance of service
- Application for reemployment
- Obligation for service
Burden of Proof
Military service need only be a 'motivating factor' — not the sole cause (Sheehan v. Department of the Navy, 240 F.3d 1009 (Fed. Cir. 2001)).
Notice, Not Permission
You must give advance notice of duty — verbal or written, as far ahead as reasonable (20 CFR § 1002.85) — but you are not required to ask for or obtain the employer's permission to go (20 CFR § 1002.87), find your own shift coverage, or reschedule your duty.
If You Were Fired — the Complaint Pathway
Step 1 — Document Everything
Write down dates, what was said, and by whom — now, while it's fresh. Save texts, emails, schedules, your duty notice to the employer, the stated termination reason, and your drill/orders dates. Timing of the firing relative to your duty dates is powerful evidence.
Step 2 — ESGR Mediation (Free)
Contact Employer Support of the Guard and Reserve (ESGR) — a free, neutral DoD mediation program: 1-800-336-4590 (option 1) or ESGR.mil. A trained ombudsman typically contacts the employer within days; ESGR reports about 95% of assistance requests resolve informally.
Step 3 — DOL-VETS Complaint (Form VETS-1010)
File a formal USERRA complaint with the Department of Labor's Veterans' Employment and Training Service (VETS) using Form VETS-1010 — online at dol.gov/agencies/vets, by email to VETS1010@dol.gov, or by mail (20 CFR § 1002.288). VETS investigates and attempts to resolve the complaint.
Step 4 — DOJ/OSC Referral or Private Suit
If VETS cannot resolve it, you may request referral to the Department of Justice (private and state/local employers) or the Office of Special Counsel (federal employers) to litigate on your behalf — or skip the agencies entirely and sue in federal court; USERRA requires no administrative exhaustion.
Deadline
USERRA has no federal statute of limitations (38 U.S.C. § 4327(b); 20 CFR § 1002.311) — but act promptly anyway: courts can still bar an unreasonably delayed claim under the doctrine of laches, and evidence goes cold.
Remedies
Reinstatement, back pay, lost benefits, liquidated (double) damages for willful violations, and attorney fees.