Helping to Serve Our American Heroes Returning Home: Filing a Reemployment Suit for a Disabled Military Veteran by Christina Pasquali: Statutes for Military Services Portion of Claim

In an action against an employer for employment discrimination based on military service, the plaintiff must plead and prove the following elements to establish a prima facie case:

1) That the plaintiff was a person protected by the act, or (in a retaliation case) was a person who exercised or sought to enforce rights under USERRA or who participated in proceedings or investigations under the statute.

2) That the plaintiff's employer took one of the statute's specified prohibited adverse actions against the plaintiff and

3) That the employer's action was motivated by the plaintiff's status as a person protected by the act, or (in a retaliation case) by the plaintiff's exercise or attempt to enforce rights under USERRA, or the plaintiff's participation in proceedings or investigations under the Act.

38 U.S.C.A. §4311 (c).

Under the Uniformed Services Employment and Reemployment Rights Act (USERRA),an employer is not required to reemploy a person if

period of service cannot include any service performed by a member of a uniformed service who is—

1.) ordered to or retained on active duty under certain statutory provisions.

2.) ordered to or retained on active duty (other than for training) under any provision of law because of a war or national emergency declared by the President or the Congress, as determined by the Secretary concerned.

3.) ordered to active duty (other than for training) in support, as determined by the Secretary concerned, of an operational mission for which personnel have been ordered to active duty.

4.) ordered to active duty in support, as determined by the Secretary concerned, of a critical mission or requirement of the uniformed services.

5.) called into federal service as a member of the National Guard.