What Constitutes Cause for Discharge Under USERRA


Under the Uniformed Services Employment and Re-employment Rights Act of 1994 (USERRA), an employee of an Armed Forces member returning from military duty may not be discharged from such employment within one year of re-employment, except for cause. This special protection under USERRA ensures that a returning serviceperson has adequate time to renew civilian skills and guards against a bad faith reinstatement.

The employer holds the burden of proof for showing cause of an employee discharge during this time. So, service members should contact legal representation from a qualified USERRA attorney, like those at The Cochran Firm South Florida if an employer cites a cause that seems to lack validity.

What is Cause Under USERRA?

Cause may be based on a number of things, including conduct or, in some circumstances, application of other legitimate nondiscriminatory reasons. A few of those reasons include:

  • Conduct – the employer bears the burden of proving reasonable employee discharge for conduct. The employer must also prove that the employee was given notice that the conduct could constitute cause for discharge
  • Job position elimination
  • Employee is placed on layoff status

In either of these last two cases, the employer must prove that the employee’s position would have been eliminated or that he or she would have been laid off.

Military Discharge That Makes Re-employment Ineligible Under USERRA

Those in the Armed Forces can become ineligible for re-employment rights under USERRA for several reasons. Revocation may become necessary if the following has occurred:

  • The uniformed service person has been dishonorably discharged or has had a bad conduct discharge
  • Separation from uniformed service under other than honorable conditions
  • A commissioned officer has been dismissed by sentence of a general court-martial
  • Due to absence without authority for at least three months, a commissioned officer has been dropped from the rolls
  • A commissioned officer has been sentenced to confinement decreed by a court-martial
  • A service person has been sentenced to confinement in a Federal or State penitentiary or correctional institute

When you return from military service, you should expect to immediately have your previous civilian employment and benefits reinstated. However, if you do experience any adverse employment action, please contact the attorneys at The Cochran Firm’s Florida office.