Military Attorney vs Wrongful Termination Attorney: When a Firing Crosses a Legal Line
On this page
In most of the country, employment is at will. An employer can end it for almost any reason, or for no reason at all, and a worker can leave on the same terms. Wrongful-termination law is the set of exceptions to that rule, the lines an employer cannot cross even in an at-will world. Military service carves one of those lines, and it is sharper than most.
This guide explains how federal law protects a service member’s job from termination, and where that protection sits next to ordinary wrongful-termination claims.
At Will, and Its Exceptions
A wrongful-termination attorney works in the gap between at-will employment and the limits the law places on it. A firing can be unlawful if it breaks a contract, violates a statute, retaliates against protected activity, or runs against public policy. Outside those exceptions, an at-will employer generally owes no reason for ending a job.
Military service produces two separate protections that narrow that freedom, both under the Uniformed Services Employment and Reemployment Rights Act. One bars firing a person because of their service. The other bars firing a recently reemployed member at all, except for cause, for a defined stretch of time. They work differently, and a service member may rely on either.
Firing Because of Service
The first protection is part of USERRA’s anti-discrimination rule. An employer may not discharge a person because of past, present, or future military service or obligation. A reservist let go shortly after informing a manager of an upcoming deployment, or an employee pushed out because monthly drill duty is inconvenient, can fall within this prohibition.
Because employers rarely announce service as the reason, the law allows the motive to be shown by circumstance: the timing between the service event and the firing, whether the employer followed its own policies, and whether military employees were treated differently from others. Once a member shows that service was a motivating factor in the discharge, the employer carries the burden of proving it would have fired the person anyway for a valid, independent reason.
The For-Cause Window After Return
The second protection is more absolute, and it is unique to USERRA. When a service member is reemployed after a period of service, the employer cannot discharge that member except for cause for a set period after the return. The length depends on how long the member served:
- after service longer than one hundred eighty days, no discharge without cause for one year following reemployment
- after service of thirty-one to one hundred eighty days, that shield lasts one hundred eighty days following reemployment
- after service of thirty days or fewer, no for-cause shield attaches, though the bar on discrimination because of service remains
Inside that window, the ordinary at-will rule is suspended. The burden sits with the employer to show that any discharge rested on cause, meaning misconduct or a legitimate, nondiscriminatory reason, rather than on the member’s absence.
Why the Distinction Matters
The two protections answer different facts. A member fired the week after a deployment notice, before ever leaving, relies on the discrimination rule, because there is no reemployment yet to trigger the for-cause window. A member fired three months after returning from a long deployment, for a vague performance reason, relies on the for-cause window, which forces the employer to prove cause regardless of motive. Read together, they cover the service member from the moment an obligation is announced through the first year of being back at work.
Asserting the USERRA Job Shield
A firing tied to service draws on a federal protection and the help to invoke it. The Uniformed Services Employment and Reemployment Rights Act bars an employer from firing a member because of military service or the obligations that come with it. A military legal assistance attorney can advise on whether that protection reaches a given firing, and Employer Support of the Guard and Reserve and the Department of Labor’s veterans’ employment service offer mediation and investigation outside court. The wrongful-termination claim itself, under that statute or state law, is carried by a civilian employment attorney.
Worth noting: advising on a job dispute is a legal-assistance role, distinct from the JAG prosecutors and defense counsel whose work is confined to the military justice system.
Who Counsels, Who Litigates
| Military legal assistance and USERRA resources | Wrongful termination attorney |
|---|---|
| Advises on USERRA protection against service-based discharge | Litigates the wrongful-termination claim |
| ESGR mediates and the Department of Labor can investigate | Represents the employee in court |
| Explains how service affects a discharge | Pursues remedies under statute or state law |
| Available without charge to eligible members | Hired and compensated by the client |
| Advises and mediates, but stops short of litigation | Argues the party's case before the court |
Two Claims From One Firing
A wrongful-termination attorney measures a firing against every exception to at-will employment and brings the claim in civilian court. The two USERRA protections are a specialized corner of that work, reached only when the fired worker is a service member. This is where a base legal-assistance attorney earns its place, spotting whether a discharge ran afoul of the discrimination rule, the for-cause window, or both, before the deadline to act passes. Enforcement travels a separate road, through the Labor Department’s veterans’ service rather than a state wrongful-termination suit. A single firing can support a claim on each road.
Frequently Asked Questions
Can an employer fire someone for being in the National Guard or Reserve?
No. USERRA prohibits discharging a person because of past, present, or future military service, including drill and deployment obligations.
What does the for-cause protection after reemployment mean?
After returning from service, a reemployed member cannot be fired except for cause for a set period: one year if the service exceeded one hundred eighty days, or one hundred eighty days if the service ran thirty-one to one hundred eighty days.
How is it proven that a firing was because of military service?
Because employers rarely say so, the motive is often shown by circumstances such as timing, departures from company policy, and different treatment of military employees. The member shows service was a motivating factor, and the employer must then prove it would have acted anyway.
Does the for-cause window apply to short periods of service?
No. Service of thirty days or fewer does not trigger the for-cause window, but the prohibition on discrimination because of service still applies.
What counts as cause for firing during the protected window?
Cause generally means misconduct or a legitimate, nondiscriminatory business reason, and the employer bears the burden of showing it.
Sources
- Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4316(c) (protection against discharge except for cause)
- Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4311 (discrimination and reprisal prohibited)
- Department of Labor regulations, 20 C.F.R. Part 1002
- U.S. Department of Labor, Veterans’ Employment and Training Service (VETS)
Disclaimer
This article provides general information about wrongful termination and the protections that can apply to service members. It is not legal advice, does not create an attorney-client relationship, and may not reflect the most recent changes in the law. Employment rules combine state and federal law and change over time, and how they apply depends on the specific facts of a termination and a person’s service. Anyone who believes a firing was unlawful should consult a qualified attorney or a military legal-assistance office about their particular circumstances.