An employer who has discriminated against an employee because of his or her miliary service may be in violation of the Uniform Services Employment and Re-employment Rights Act of 1994 (USERRA).  Under the USERRA, an employee who is absent from work because of his or her activation for military service is entitled to reinstatement to his or her position upon return from military service if the employee is qualified.  

A qualified employee has:

1.    Provided oral or written notice of military activation to his or her employer;
2.    Has five years or less of cumulative military service with that particular employer;
3.    Has returned to work or applied for re-employment in a timely manner after conclusion of service;
4.    Has not left the military service with a disqualifying discharge.  

In a recent case decided in 2007 from the United States First Circuit Court of Appeals, entitled Velazques-Garcia v. Horizon Lines, the First Circuit held that an employee only needs to show that his or her military service was a substantial or motivating factor in an employer’s decision to impose an adverse employment action.  The burden will then shift to the employer to prove that it would have taken the adverse employment action regardless of the employee’s military service.

Employers need to ensure that employees who perform military service are treated in the same manner as other employees.  If a termination of employment does occur with an employee who served in the military, the employer must be certain that it can demonstrate a non-discriminatory reason for any adverse employment action taken against that employee.

Further, employers should make efforts to avoid subjecting returning military employees to criticism or harassment that has the potential to create a hostile workplace environment even if the criticism or harassment comes from non-supervisory personnel.