Wrongful Termination for Military Service in California
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What Laws Protect California Employees from Wrongful Termination for Military Service?
California service members and veterans have layered legal protection against wrongful termination for military service. Federal law, USERRA, bars any employer from firing, demoting, or denying reemployment to an employee because of military service, and requires reinstatement with back pay plus double damages when a violation is willful. California adds its own shield: Military and Veterans Code §§ 394 and 395 independently prohibit discrimination and guarantee a leave of absence, and FEHA makes military and veteran status a protected class under state anti-discrimination law. California employees keep whichever set of protections, state or federal, is more favorable. If you were fired or penalized for serving, multiple remedies may be available.
Federal Protection: USERRA
The Uniformed Services Employment and Reemployment Rights Act (USERRA), implemented at 20 CFR Part 1002, applies to virtually every employer in the country regardless of size. Under USERRA, no employer may deny initial employment, reemployment, promotion, or any benefit of employment because of an employee’s past or present membership in the uniformed services, or because the employee applied to join. The law covers members of U.S. active-duty and reserve components, the National Guard, and also extends to personnel in FEMA’s Urban Search and Rescue System, the National Disaster Medical System, and the commissioned corps of the Public Health Service.
USERRA also explicitly prohibits discrimination against past members of the uniformed services and applicants to those services, not just current service members. That scope matters: a veteran fired from a new job because of prior deployment history has a viable USERRA claim.
California State Protection: Military and Veterans Code
California’s Military and Veterans Code provides a parallel and independent layer of protection:
- MVC § 394 states that a person shall not discriminate against a member of the military or naval forces of the state or of the United States because of that membership.
- MVC §§ 395 et seq. require employers to grant employees a leave of absence for military service and protect them from adverse employment treatment based on military duty.
- MVC §§ 394.5 and 395.06 specifically prohibit discrimination in employment on the basis of military service or duty.
These provisions operate independently of federal law. A violation of MVC § 394 is a California wrong regardless of whether USERRA also applies.
California State Protection: FEHA
The California Fair Employment and Housing Act (FEHA), enforced by the California Civil Rights Department (CRD), makes military and veteran status a protected class alongside race, sex, and disability. FEHA covers members and veterans of the U.S. Armed Forces, U.S. Armed Forces Reserve, the U.S. National Guard, and the California National Guard. It is unlawful under FEHA to discriminate against or harass an employee on any of those bases.
Because USERRA preempts state law only when state law reduces protections, California employees are entitled to whichever framework, state or federal, gives them more. In practice, this means FEHA harassment claims, CRD complaints, and civil court remedies under the Military and Veterans Code can run alongside a USERRA claim. Understanding how these grounds for suing an employer for wrongful termination overlap is critical to preserving all available relief.
What Counts as Wrongful Termination for Military Service Under These Laws?
Prohibited Employer Actions Beyond Just Firing
The wrongful termination frame is important, but these laws cover a wider range of employer conduct. Under USERRA and California law, the following actions are prohibited when motivated by an employee’s military status or service:
- Denial of initial employment or a job offer
- Denial of a promotion or advancement opportunity
- Denial of any benefit of employment (raises, bonuses, seniority credit)
- Demotion or reduction in hours upon return from service
- Hostile work environment or harassment based on military or veteran status (cognizable under FEHA)
- Constructive discharge, conditions so hostile that a reasonable person would feel compelled to resign
- Discrimination against a veteran for past service, not only a current service member
For a broader overview of how California courts analyze these situations, the firm’s guide to wrongful termination in California explains the general framework.
Warning Signs That a Termination Was Motivated by Military Service
Employers rarely announce that military service was the reason for termination. The following patterns, drawn from the types of cases these laws are designed to address, are common indicators:
- Termination occurs within a short period after the employer learns of upcoming deployment or reserve duty
- Employer fills the position permanently while the employee is on protected military leave and refuses reinstatement upon return
- Performance reviews were consistently positive before military service was disclosed and then turned negative afterward
- Supervisor or HR comments about the burden of covering for reserve duty, upcoming deployments, or absences
- Other employees with similar performance records were not terminated; the service member was singled out
- Position is labeled “eliminated” but equivalent duties are reassigned to another employee
- Return from deployment is met with a demotion, reassignment to a lesser role, or a pay cut
- Employer claims lack of notice even though you provided written or verbal advance notice of service
- Health insurance is cancelled during deployment without offering continuation rights
A frequent employer defense is that the position was eliminated during the service member’s absence. Under USERRA’s framework, the burden shifts to the employer to demonstrate that the employee’s separation was not motivated by their military service.
Your Right to Return: Reemployment After Deployment
A significant share of wrongful termination for military service cases arise not from a pre-deployment firing, but from a blocked return. Consider a scenario: a warehouse supervisor at a 60-person company deploys for seven months, gives written notice before leaving, and returns within the required window. The employer claims the position was restructured and offers only a part-time hourly role. Under USERRA, that refusal to reinstate to a comparable position is a violation, and the lost wages from the offered-but-inferior role form the basis for a compensation claim, with doubled damages if the refusal was willful.
The Four Requirements for USERRA Reemployment Rights
To qualify for reemployment protections under USERRA, a service member must satisfy all four of the following:
- The employer received advance oral or written notice of the military service
- The employee has five years or fewer of cumulative uniformed service with that particular employer
- The employee timely returns to work or timely applies for reemployment after service ends
- The employee was not separated from service with a disqualifying discharge or under other-than-honorable conditions
The Short-Leave Return Rule
For absences of fewer than 31 days, USERRA requires that the employer permit the employee to resume work at the start of the next regularly scheduled workday following return. Refusing to allow that resumption is itself a violation, separate from any termination claim.
Health Insurance Rights During and After Service
USERRA gives service members the right to elect continuation of existing employer-provided health coverage for up to 24 months during uniformed service. Upon reemployment, the employee must be reinstated to the employer’s health plan immediately, without any waiting periods or exclusions for conditions that are not service-connected. Cancelling a service member’s health coverage and then requiring a new waiting period upon return is a distinct USERRA violation.
What Can You Recover? Remedies for Military Service Wrongful Termination
Remedy Type | What It Covers | When It Applies
|
|---|---|---|
Injunctive relief | Court order compelling reinstatement, promotion, or other employer compliance | Any USERRA violation; also available under California law |
Lost wages and benefits | Back pay, lost bonuses, lost seniority-based benefits, lost health coverage value | Any USERRA violation establishing economic harm |
Liquidated damages | Doubles the lost wages and benefits award | Willful (deliberate) USERRA violations only |
FEHA / MVC state remedies | Additional state-law damages for discrimination and harassment; potential attorney fees | Where state law provides greater protection than USERRA; FEHA claims filed through CRD |
Because USERRA preempts state law only when state protections are weaker, California employees may pursue FEHA harassment and discrimination claims alongside USERRA claims. The result can be a broader recovery than either law alone would provide. Our wrongful termination attorneys can evaluate which combination of claims applies to your situation.
How to File a Wrongful Termination Claim for Military Service in California
Filing Under FEHA Through the CRD
To pursue a FEHA claim for discrimination or harassment based on military or veteran status, you must first file a complaint with the California Civil Rights Department within three years of the discriminatory act. Missing that window forfeits your FEHA claims entirely. After filing, the CRD will investigate; you may pursue a civil court action only after receiving a Right to Sue Letter from the CRD. Understanding the deadlines that govern wrongful termination claims in California is essential to preserving your rights.
Federal USERRA Claims: A Separate Pathway
USERRA enforcement is separate from the CRD process. You may file a USERRA complaint with the U.S. Department of Labor’s Veterans’ Employment and Training Service (VETS) or pursue a private civil action directly. Because the limitations period for USERRA claims involves specific legal questions that depend on the facts of your case, an attorney consultation is the appropriate step rather than relying on a general rule.
Why Parallel Claims Matter
Filing under FEHA and pursuing USERRA remedies are not mutually exclusive. Each claim has its own procedural path, its own deadline, and its own remedy structure. Failing to file a CRD complaint within three years closes the FEHA door permanently, even if a USERRA claim remains available. Acting promptly on both tracks protects the full scope of potential recovery.
What This Means If You Were Fired or Pushed Out for Your Military Service
If you were terminated, demoted, denied reinstatement, or forced into a lesser role because of military service or veteran status, you likely have claims under at least two of the three legal frameworks described above, and possibly all three. The three-year CRD deadline for FEHA claims runs from the date of the adverse action, not from when you discovered it was illegal, so every day of delay matters.
Document everything you have now: any written notice of service you gave your employer, communications about the termination, performance reviews, and any statements by supervisors about deployments or absences. The pattern of what happened, not just the termination itself, is often the evidence that establishes willfulness for liquidated damages. An attorney can help you determine whether your separation triggers the doubled-damages provision and whether a parallel FEHA claim adds to the recovery.
Frequently Asked Questions
Does USERRA apply to small employers?
Yes. Unlike some California statutes that set minimum employee thresholds, USERRA applies to all employers regardless of size, including private businesses, nonprofits, and government employers.
What if my employer says my position was eliminated while I was deployed?
A “position eliminated” defense does not automatically defeat a USERRA claim. The burden is on the employer to show the elimination was unrelated to the military service. If equivalent duties were simply reassigned to another employee, the defense is unlikely to succeed.
I am a veteran, not a current service member. Am I still protected?
Yes. USERRA expressly prohibits discrimination against past members of the uniformed services. FEHA also covers veterans of the U.S. Armed Forces, U.S. Armed Forces Reserve, U.S. National Guard, and California National Guard.
Can I sue my employer directly, or do I have to go through a government agency first?
For FEHA claims, you must first exhaust administrative remedies by filing with the CRD and obtaining a Right to Sue Letter before filing a civil action. USERRA allows a private civil lawsuit directly or after a VETS complaint. The two pathways are independent; filing one does not satisfy the requirement for the other.
What if I was not fired but was put on a worse shift or given fewer hours after returning from deployment?
Demotion, reduction in hours, and assignment to inferior positions after return from service are covered adverse actions under both USERRA and the Military and Veterans Code. The prohibition is not limited to outright termination.
Contact Setareh Law Group: If you believe you were wrongfully terminated or penalized for your military service, Setareh Law Group is ready to help. Contact our office to speak with a California employment attorney about your rights and options under USERRA, the Military and Veterans Code, and FEHA. We represent workers throughout California on a contingency basis, meaning you pay no fees unless we recover for you. Learn more about how we handle wrongful termination for military service or call us today for a confidential consultation.
Contact us today:
📞 Phone: 310-888-7771
✉️ Email: help@setarehlaw.com
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Disclaimer:This article is general legal information about wrongful termination for military service under California and federal law. It is not legal advice, and reading it does not create an attorney-client relationship between you and Setareh Law Group or any of its attorneys. Every employment situation is different, and outcomes depend on the specific facts of your case. No result is guaranteed..
Sources and Additional Resources
Authoritative sources cited
- Military and Veterans Code §§ 394
- 395
- Uniformed Services Employment and Reemployment Rights Act (USERRA), implemented at 20 CFR Part 1002
- California Fair Employment and Housing Act (FEHA), enforced by the California Civil Rights Department (CRD)
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