USERRA generally prohibits employment discrimination because of military service and protects qualifying reemployment rights. An employer cannot simply treat protected military absence as an ordinary attendance violation. Coverage and eligibility must still be assessed under the statute’s requirements. [1]
Notice and return to work
Employees generally should provide advance notice unless an exception applies, remain within applicable service limits and exceptions, and timely report or apply for reemployment. The return deadline varies with the duration and circumstances of service. [3] Do not assume every returning service member has the same number of days.
A restored employee can have special protection against discharge without cause for a period tied to the length of service. That protection differs from permanent immunity against legitimate employment decisions. [2]
Document the real reason
Keep orders, notice to the employer, communications about return, schedules, evaluations, and any termination explanation. If the employer cites restructuring or misconduct, assess whether the same decision would have occurred without military service.
DOL’s Veterans’ Employment and Training Service can assist with USERRA complaints; federal employees have additional enforcement routes involving the Office of Special Counsel. [4] Raise concerns promptly and identify both discrimination and reemployment issues. A company’s small size does not automatically exempt it from USERRA as it might from some other workplace statutes.
Example: a return request after deployment
A returning service member should communicate the wish to return, provide information the law permits the employer to request, and comply with the deadline applicable to the service period. The employer should evaluate the proper reemployment position and benefits rather than automatically treating the person as a new applicant for any vacant opening.
The position may involve the statutory escalator principle, including the seniority and related benefits the employee would have attained with reasonable certainty. That analysis is not always identical to returning to the exact old desk. Training or accommodation obligations can also matter where skills or disability have changed. [2][3]
Keep service dates and discharge documentation available. If a deadline was missed because of hospitalization or another qualifying circumstance, assess the actual exception instead of assuming all rights vanished. An employer claiming undue hardship, impossibility, or a lawful basis for discharge must be evaluated under the applicable legal standards; merely saying the business was inconvenienced by the absence does not complete that analysis.
Military families can also face civil proceedings during service. Employment retaliation after another type of leave involves separate FMLA protections.
Primary sources
- 38 U.S.C. § 4311: Discrimination against persons who serve in the uniformed services and acts of reprisal prohibited
- 38 U.S.C. § 4316: Rights, benefits, and obligations of persons absent from employment for service in a uniformed service
- 38 U.S.C. § 4312: Reemployment rights of persons who serve in the uniformed services
- 38 U.S.C. § 4322: Enforcement of employment or reemployment rights
Sources checked: October 31, 2026.