What Must be Proven in USERRA Cases?


Once an employee returns from active duty, the employer is obligated to treat the employee as if he or she had never left, assuming that all employee requirements have been met. All of this is guaranteed under the Uniformed Services Employment and Re-employment Rights Act of 1994 (USERRA) – a federal law signed into effect by former president Bill Clinton.

In cases where employment discrimination may have occurred, the burden of proof rests on both the defendant and the plaintiff, who must prove that military service was a motivating factor in an adverse employment action. By contacting a lawyer with extensive USERRA experience, like those at The Cochran Firm South Florida, you can learn more about USERRA and its sweeping protection.

Proving a USERRA Case

The test for determining discrimination based on military service under USERRA is two-fold. For the employee, he or she must prove that,

  • Being in the military or joining the service was a motivating factor, but not necessarily the only reason.

The burden then transfers to the employer, who must prove that,

  • They would have made the same adverse decision despite the employee’s military service.

Possible Damages Recovered in USERRA Cases

If a member of the Armed Forces prevails in a USERRA case against an employer, many different types of damages can be recovered including, but not limited to:

  • Back pay – wages for the difference of time between filing of a claim and a final determination in the case
  • Front pay – money awarded for lost wages during the period between judgment and employee reinstatement
  • Lost benefits
  • Litigation costs
  • Emotional distress
  • Reasonable attorney fees – cost of legal representation in a law suit

Court Decisions in USERRA Cases

Prevailing in a USERRA court case can have a financially negative impact upon the employer. Judges have been known to rule against the employer in the following ways:

  • Force the company to be USERRA compliant
  • Compensate the employee for lost wages or benefits for failure to comply with USERRA
  • Demand that the company pay double the amount of lost wages and benefits, if the company has been proven of willful violation of USERRA

If you have returned from military service and feel your employer is liable for violating the re-employment, discrimination, and retaliation provisions defined by USERRA please contact one of the experienced USERRA attorneys at The Cochran Firm’s Florida office.