What employment rights do military service members or veterans have?
Employees and job applicants with military or veteran status 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, service members and veterans also have unique rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA is the federal law that provides job and benefit protection for U.S. Military Reservists returning to civilian employment after a period of uniformed service. USERRA also prohibits discrimination based on military or veteran status.
California law also provides reemployment rights similar to those provided under USERRA.
Am I covered under FEHA or USERRA?
FEHA covers any member or veteran of the U.S. Armed Forces, U.S. Armed Forces Reserve, the U.S. National Guard, and the California National Guard.
USERRA covers a broader range of people, 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.” This includes FEMA reservists.
What actions does FEHA prohibit?
FEHA prohibits:
- 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.
What other employment rights might I have?
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 or more employees are entitled to take up to 10 days of unpaid, job-protected leave while their spouse is on leave from deployment.
How do I keep my job if I am called to active-duty?
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 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)—this tends 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 pay raises and promotions as if you never left.
Do I have any protection against termination once I return to my job after military leave?
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) 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 one year after you resume work your employer can fire you only for a good reason.
What if I become disabled in the course of my military service?
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 the FEHA. 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.
Is my employer required to pay me while I am on a military leave of absence?
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 vacation time while you are on a military leave of absence and also cannot stop you from using your vacation time if you choose to do so.
Am I still covered by my employer’s health insurance while on military duty?
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 the employer can require that you pay more of the 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 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.
How is my pension plan affected by military leave?
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 for up to three times the length of the military service but not more than five years.
What remedies do I have if my employer violates my rights under USERRA?
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, attorneys’ fees, expert witness fees, and other costs incurred from litigation. USERRA has no statute of limitations (a certain window of time when 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.
What can I do if I believe that my rights under FEHA have been violated?
Administrative Relief: A person who wishes to make a claim under FEHA must first “exhaust” their administrative remedies by filing a claim against the employer with the California Civil Rights Department (CRD) within three years of the alleged discriminatory practice. The CRD 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 CRD, you may pursue your FEHA claim in court, but only after receiving a Right to Sue Letter. You can request a Right to Sue Letter when you file a complaint with the CRD or you can wait for the CRD to finish its investigation, at which point the CRD will issue a Right to Sue Letter and you can then pursue your claim in court.
Last updated: October 2024