What employment rights do employees that are in the military or that are veterans of the military have?
Employees and job applicants with military or veteran status now qualify for state law protection under the California Fair Employment and Housing Act (FEHA), which makes it unlawful to discriminate against or harass a person on the basis of either military or veteran status.
In addition to the rights provided for under FEHA, the Uniformed Services Employment and Reemployment Rights Act (USERRA) provides federal law protection to service members returning to employment from a period of service in the uniformed services, including members of the reserves or National Guard, and further prohibits employer discrimination based on military service or obligations. California law also provides reemployment rights similar to those provided under USERRA.
FEHA covers any member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.
USERRA coverage includes a broader range of persons, including: “[a] person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service.”
Prohibited practices under the FEHA include:
- Refusal to hire or employ the person on the basis of military or veteran status;
- Refusal to select the person for a training program leading to employment on the basis of military or veteran status;
- Actions that bar or discharge the person from employment or from a training program leading to employment on the basis of military or veteran status;
- Discrimination against the person in compensation on the basis of military or veteran status;
- Discrimination in the terms, conditions, or privileges of employment on the basis of military or veteran status; or
- Harassment based on military or veteran status.
FEHA permits employers to inquire about an applicant’s military or veteran status for the purpose of awarding a veteran’s preference as permitted by law.
In addition to military or veteran status, FEHA prohibits discrimination on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation.
If you have a physical or mental disability, you may be entitled to reasonable accommodations on the job. Please see “Disabilities in the Workplace: Reasonable Accommodation” fact sheet for more information.
Other rights may be available to you, depending on your particular circumstances. For example, you might have a right to family leave under the Family and Medical Leave Act that would enable you to take a leave of absence to care for a spouse, son, daughter, parent, or next of kin recovering from a serious illness or injury sustained in the line of duty. Please see our “Military Family Leave” fact sheet for more information.
In California, employees who work at least 20 hours a week for employers with 25 of more employees are entitled to take up to 10 days of unpaid, job-protected leave while their spouse is on leave from deployment.
Administrative Relief: A person who wishes to make a claim under the FEHA must first “exhaust” their administrative remedies by filing a claim against the employer with the California Department of Fair Employment and Housing (DFEH) within one year of the alleged discriminatory practice. The DFEH will then investigate your claim to determine if it wishes to proceed against your employer.
Right to Sue in Court: Upon filing a complaint with the DFEH, a person who wishes to proceed upon their FEHA claim in court may do so, but only upon receiving a “right to sue notice.” A “right to sue notice” may be requested at the time of filing a complaint with the DFEH; alternatively, one may wish to wait for the resolution of the DFEH investigation, at which point the DFEH will issue a “right to sue notice” and the claimant can pursuit their claim in court at this time.
USERRA is the federal law that provides job and benefit protection for U.S. Military Reservists. Congress enacted this law to encourage people to become reservists by minimizing the disruption to the reservist who must leave his/her job when called into service. USERRA also prohibits discrimination based on military of veteran status.
You should give your employer notice of the need for leave and intent to return. Notification may be either oral or written. However, if you are “shipped out” before you are able to give adequate notice to your employer the notice requirement may be delayed or waived.
Depending on the length of the active-duty service, you are required to return promptly to work after the active service is completed. If you are in service and absent from work less than 31 days, you must return to work the first full day following completion of service, not including time to travel home and an eight-hour rest period. If you are absent from work between 31-180 days, you must submit an application for re-employment within 14 days of the completion of military service. If you are absent from work more than 180 days, you must submit an application for re-employment within 90 days of the completion of military service. (Note: Since reservists must be rehired, the “application” is actually a notice of an intent to return to work rather than a typical new job application that carries a risk of rejection.)
If your employer can show that it will suffer “undue hardship,” (not just mere inconvenience) because of significant difficulty or expense, it is excused from having to rehire you. Whether or not something is an undue hardship depends on many factors (e.g., the employer would go out of business if it had to rehire you) that tend to be difficult for employers to prove.
When I return from military leave can my employer place me in a position lower than I was before I left?
Normally, no. When you return from military leave, your employer is required to place you in the position you would have been in had you never left, as long as you are qualified for the job or can become qualified after reasonable efforts are made by your employer to help you become qualified. Also, you should receive any pay raises, promotions and seniority as if you never left.
Yes. Although most employees are “at-will,” meaning they can be fired for any reason as long as it is not discriminatory (e.g., on the basis of race, sex, religion, national origin, etc.) or for reasons in violation of public policy (e.g., reporting an unsafe work condition), military service may change your “at-will” employment status. If your military service was more than 30 days but less than 181 days, for the 180 days after you begin work again your employer can fire you only if it has a good reason. If you served more than 180 days, then for the one year after you begin work again your employer can fire you only for a good reason.
USERRA requires your employer to provide you with reasonable accommodations if you incur any service-related disabilities regardless of whether the disability would be protected under the ADA (Americans with Disabilities Act) or its California counterpart, the FEHA (Fair Employment and Housing Act). If you do not qualify for the position that you would have had due to service-related disabilities, your employer must transfer you to another position with equal seniority, status and pay, if such position is available.
Although some employers may provide paid military leave days, they are not required to do so. However, if your employer chooses to pay an employee while on military leave, it is required to uniformly extend that policy to all reservists.
Your employer cannot require you to use my vacation time while you are on a military leave of absence and cannot stop you from using your vacation time if you choose to do so.
Your employer is required to continue your health insurance for 30 days while you are on military duty. After 30 days, a federal law known as “COBRA” requires your employer to continue your health insurance coverage for up to 36 months but can require that you pay up to 102% of its full premium under the plan.
If you are on active duty for more than 30 days, you and your dependents should be covered by military health care. For more information on these programs contact your military unit.
Finally, another law known as the Health Insurance Portability and Accountability Act (HIPAA) may give you and your family rights to enroll in another group health plan such as your spouse’s employer’s group health plan. You have this opportunity to enroll regardless of the other plan’s otherwise applicable enrollment periods. To qualify, you must request enrollment in the other plan within 30 days of losing eligibility for coverage under your current employer’s plan. After that special enrollment is requested, you have to be covered in the other plan no later than the first day of the first month following your request for enrollment. If you will be on active duty more than 30 days in your current plan, coverage in another plan through special enrollment may be cheaper than your COBRA continuation coverage because the other employer often pays a part of the premium.
Your pension plan benefits should not be affected because of military leave. Your pension credit should be as it would have been had you never left. If you are required to make employee contributions to your pension plan, you must be given the opportunity to make up any missed contributions over a period up to three times the length of the military service but not more than five years.
You may file a complaint with the Department of Labor or file a court action directly. If your employer violated USERRA, it may be liable for various damages, including, lost wages, attorney fees, expert witness fees and other costs incurred from litigation. USERRA has no statute of limitations (a certain length of time an employee has to bring a claim), but if you intend to sue your employer for a violation of USERRA, you should do so as soon as possible to preserve the evidence in the case that may be helpful to you.
For further information about your employment rights, contact the Workers’ Rights Clinic.
This Fact Sheet is intended to provide accurate, general information regarding legal rights relating to employment in California. Yet because laws and legal procedures are subject to frequent change and differing interpretations, the Legal Aid Society–Employment Law Center cannot ensure the information in this Fact Sheet is current nor be responsible for any use to which it is put. Do not rely on this information without consulting an attorney or the appropriate agency about your rights in your particular situation.