Military Status Discrimination Laws in Louisiana

Federal law prohibits military discrimination through the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4301 et seq. USERRA covers all employers with one or more employee, including federal, state, and private employers. The law protects individuals who serve or have served in the uniformed services, including the military, National Guard, and Reserve components. USERRA prohibits discrimination in hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment based on membership, application for membership, performance of service, or obligation to perform service in the uniformed services.

USERRA applies to employees who: (1) serve in the uniformed services; (2) were scheduled to serve; (3) have a history of service; or (4) are perceived to have served. The law protects both initial employment and reemployment rights—employers must restore employees to their original position or an equivalent position after military service with comparable seniority, status, and pay. USERRA also prohibits retaliation against employees for asserting USERRA rights.

The U.S. Department of Labor's Veterans Employment and Training Service (VETS) enforces USERRA. Employees can file a complaint with VETS within three years of an alleged violation. USERRA provides remedies including back pay, benefits, attorney fees, and liquidated damages equal to the amount of back pay and interest when discrimination is proven. Relief also includes corrective or preventive injunctive relief to ensure compliance.

Louisiana law provides parallel protection through La. Rev. Stat. § 23:312, which creates a state cause of action for military service discrimination. This statute applies to all employers in Louisiana, regardless of size, making it broader in some respects than federal USERRA which technically covers employers with one or more employees but has developed case law nuances. Louisiana's statute prohibits employers from refusing to employ, discharging, or in any manner discriminating against any person in regard to hiring, compensation, terms, conditions, and privileges of employment because such person is a member of, performs services for, or has performed services for the Louisiana National Guard, the U.S. Military Reserve, or any component thereof, or because such person is obligated to perform such service.

The state law covers not just active discrimination but also failure to rehire or reinstate service members upon return. Louisiana courts have interpreted § 23:312 to require that employers accommodate military service obligations and cannot penalize employees for absences due to military duty. The statute protects both full-time active duty service members and part-time Reserve and Guard members, creating broader coverage than some states.

Louisiana's statute allows employees to file complaints with the Louisiana Workforce Commission, Office of Workers' Compensation Administration, within 180 days of the alleged discrimination. The state law complements USERRA by providing an alternative forum and potentially faster state-level resolution. Under Louisiana law, remedies include reinstatement, back pay, and damages. Louisiana courts have awarded both compensatory damages for emotional distress and, in egregious cases, punitive damages, which USERRA does not explicitly authorize. The state statute also allows recovery of attorney fees and costs, incentivizing private enforcement.

Louisiana law and USERRA contain important exceptions and limitations. First, employers may take adverse employment actions against service members if the employer can demonstrate a legitimate, non-discriminatory reason unrelated to military service. For example, terminating an employee for misconduct discovered during or after military leave, if that misconduct would have resulted in termination regardless of service, may be defensible. However, the employer bears the burden of proving the reason is genuine and non-discriminatory.

Second, employers are not required to accommodate military service if it would cause undue hardship to the employer's operations. However, this defense is narrowly construed—the employer must show substantial and materially adverse change in operations, not merely inconvenience or minor cost. Small businesses sometimes assert this defense but rarely succeed unless military service truly disrupts critical operations.

Third, USERRA's reemployment rights have limits. An employee returning from military service must report to work within a specified timeframe (typically the day after service ends plus travel time). Failure to return on time without good cause may forfeit reemployment protections. Additionally, if an employee's service-related disability makes them unable to perform the job, the employer may place them in a comparable position rather than the original job.

Fourth, employees in the military may face different rules regarding at-will employment. Generally, at-will employment principles apply, but USERRA and La. Rev. Stat. § 23:312 create statutory exceptions—employers cannot discharge service members solely because of their military status or service obligations. Fifth, contractors or independent contractors may not be covered depending on the employment relationship classification. Finally, employers with unilateral authority to make employment decisions who are themselves under military command may have limited liability, though this exception is narrow and rarely applied in private employment contexts.

Step 1: Document the discrimination immediately. Keep detailed records of all employment actions, communications, and dates related to your military service and any adverse treatment. Document: (a) your military service dates and status (active duty, Reserve, National Guard); (b) when you informed your employer of military obligations or service; (c) any statements made by supervisors or HR about your military service; (d) dates of any adverse actions (denial of hire, demotion, termination, reduced hours, schedule changes); (e) how similarly situated non-military employees were treated; (f) emails, text messages, performance reviews, and witness statements. Preserve all documents—do not delete anything from your personal devices or work email. Take screenshots of online communications and keep physical copies of documents.

Step 2: Follow your employer's internal complaint process if one exists. Report the discrimination to your human resources department, supervisor's supervisor, or compliance officer in writing. Send the complaint via email with read receipt or certified mail so you have proof of delivery and date. Describe the discriminatory conduct, dates, and how your military service status was a factor. Keep a copy of your internal complaint and any responses. This step is important because: (a) it gives the employer notice and opportunity to correct the problem; (b) it demonstrates good faith on your part; (c) it may toll or extend filing deadlines; (d) it creates contemporaneous documentation; (e) courts sometimes view failure to use internal processes unfavorably, though it is not strictly required.

Step 3: File a complaint with the Louisiana Workforce Commission within 180 days of the alleged discrimination. Visit the Louisiana Workforce Commission website at www.lwc.la.gov or contact the Office of Workers' Compensation Administration. You may file online, by mail, or in person at a local office. Required information includes: (a) your name, address, phone number, and email; (b) your employer's name, address, and phone number; (c) the date of the alleged discrimination; (d) a detailed description of what happened and how your military service was involved; (e) names and contact information of witnesses; (f) copies of relevant documents (emails, performance reviews, termination letters, military discharge papers or orders); (g) the relief you seek (reinstatement, back pay, damages). Alternatively, you may file a federal complaint with the U.S. Department of Labor VETS within three years at www.dol.gov/vets or by calling 1-866-4-USVETS (1-866-487-8387). Filing federally provides access to the full USERRA remedial structure and DOL investigatory resources.

Step 4: Expect a state or federal investigation. The Louisiana Workforce Commission or DOL VETS will contact your employer and request documents, employment records, and explanations. This typically takes 30-60 days. You may be asked to provide additional information or participate in an interview. The investigator will examine whether: (a) you were engaged in protected activity (military service or military obligation); (b) your employer knew of your military service; (c) you suffered an adverse employment action; (d) your military service was a factor in the adverse action; (e) the employer has a legitimate, non-discriminatory explanation. The agency will issue a determination within 90-180 days in most cases. If the agency finds merit, it will attempt conciliation. If conciliation fails and state law was violated, you may proceed to further action.

Step 5: Consult an employment attorney specializing in military discrimination or USERRA if: (a) your internal complaint and agency filing do not resolve the matter; (b) the agency finds no merit but you believe it was wrong; (c) damages exceed $5,000; (d) reinstatement is contested; (e) your employer retaliates after you file; (f) the case involves multiple protected statuses (military status plus race, gender, disability, etc.). An attorney can help you file a civil lawsuit in Louisiana state court under La. Rev. Stat. § 23:312 or in federal court under USERRA. Federal court filing does not require filing with VETS first, though most people do for administrative exhaustion. An attorney can demand treble damages (three times back pay), which Louisiana courts have awarded in egregious cases, and can recover attorney fees and costs.