Military Status Discrimination Laws in Massachusetts

The Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4301 et seq., is the primary federal law protecting employees from military discrimination. USERRA applies to all employers in the United States, including private companies, state and local governments, and the federal government, regardless of the number of employees. The law prohibits employers from discriminating against employees based on membership in, application for membership in, performance of service in, or obligation to perform service in the uniformed services.

USERRA covers discrimination in hiring, firing, advancement, compensation, job training, and other terms and conditions of employment. Protected military service includes active duty, reserve duty, National Guard service, and inactive ready reserve service. The law also protects employees from retaliation for asserting rights under USERRA. Federal remedies include reinstatement to the same or an equivalent position, back pay with interest, restoration of benefits, and reasonable attorney's fees and costs. The U.S. Department of Labor's Veterans' Employment and Training Service (VETS) enforces USERRA, and complaints must be filed within three years of the alleged violation.

Massachusetts state law provides protections that align with and reinforce federal USERRA protections. Massachusetts General Laws chapter 149, section 24L, specifically prohibits employers from discriminating against employees based on military status, including membership in or application for membership in the uniformed services, the performance of military service, or obligation to perform military service. Section 24M addresses reemployment rights for employees returning from military service, requiring employers to restore positions and seniority upon return.

Massachusetts law applies to all employers operating in the state, including those with fewer employees than federal thresholds might apply to in other contexts. The state law is substantively similar to but potentially broader than USERRA in some respects, as Massachusetts courts have interpreted military protection statutes liberally in favor of service members. State law protections extend beyond federal requirements in that Massachusetts explicitly includes in its definition of protected classes veterans and those with military obligations.

Under Massachusetts law, employers cannot take adverse employment actions based on military status, and employees have the right to unpaid military service leave. The state does not impose size thresholds for coverage—all employers are covered. Remedies under state law include reinstatement, back pay, restoration of benefits, compensatory damages, and punitive damages in cases of willful violation. Complaints under Massachusetts law can be filed with the Massachusetts Commission Against Discrimination (MCAD) or pursued through civil litigation in state court. The state statute of limitations is three years from the date of the alleged violation.

USERRA and Massachusetts military discrimination laws contain limited exceptions. Employers are not required to provide paid military leave unless the employer's existing policy provides it; however, employers cannot impose stricter conditions on military leave than other types of leave. Employers may deny reemployment if the service member is no longer qualified for the position due to a service-connected disability or if circumstances have changed making reemployment impossible or unreasonable.

One important limitation is the doctrine of military necessity, which permits the military itself (though not private employers) to discharge service members for legitimate military reasons unrelated to status. However, this exception does not apply to private employers in Massachusetts.

Employers may lawfully consider job-related factors such as qualifications, performance, and conduct when making employment decisions, even if a service member is involved. The key distinction is that military status itself cannot be the basis for adverse action. Additionally, USERRA does not require employers to provide additional benefits beyond what would be provided to employees on other types of approved leave. Employers with fewer than 15 employees are subject to state military discrimination law but may have narrower obligations under some federal laws; however, USERRA applies to all employers. Union employees and collective bargaining agreements do not create exceptions but must comply with USERRA protections. Self-employed individuals and independent contractors are not covered by USERRA.

Step 1: Document Everything — Keep detailed records of all employment decisions, communications, performance reviews, and any statements made by management regarding your military status or service. Save emails, text messages, meeting notes, and witness statements. Document the timeline of events: when you notified your employer of military obligations, when adverse action occurred, and any explanations provided. Retain payroll records, benefit statements, and any policy handbooks that establish the employer's treatment of military leave or service members.

Step 2: Internal Complaint Process — Before pursuing external action, notify your employer's human resources department or management in writing of the potential discrimination. Send a dated email or letter explaining that you believe you have experienced discrimination based on military status and requesting an explanation. Keep copies of all correspondence. While this step is not legally required under USERRA, it creates a clear record and may prompt the employer to remedy the issue voluntarily. Request that the employer provide any policy regarding military leave, reemployment, or non-discrimination protections.

Step 3: File an Administrative Complaint — You have multiple options depending on the scope and nature of the discrimination. For federal USERRA violations, file a complaint with the U.S. Department of Labor Veterans' Employment and Training Service (VETS) at www.dol.gov/agencies/vets/usbln or by mail to your regional VETS office. Provide your name, contact information, employer name and address, dates of employment and military service, description of the alleged violation, and supporting documentation. The deadline to file is three years from the date of the alleged violation. For Massachusetts state law violations, file a complaint with the Massachusetts Commission Against Discrimination (MCAD) at www.mass.gov/mcad or by calling 617-994-6000. You may file with both VETS and MCAD simultaneously as they address different legal frameworks.

Step 4: Investigation Process — After you file a complaint with VETS, the agency will conduct an investigation, typically within 60 days. The investigator will contact the employer for their response and may interview you and witnesses. VETS will issue a determination letter stating whether a violation was found. If VETS finds no violation, you may request reconsideration or pursue the matter in federal court. If VETS finds a violation, the agency will attempt conciliation. If conciliation fails, you may file a civil action in federal district court. MCAD investigations follow a similar timeline; MCAD staff will investigate, and the Commission will hold a hearing if no settlement is reached.

Step 5: Consult an Attorney — Consider contacting an employment attorney who specializes in military law or USERRA if: the employer contests your complaint, you face ongoing retaliation, significant back pay or damages are at issue, or you have been terminated. An attorney can represent you during investigation, negotiate settlements, and litigate in court if necessary. Many employment attorneys work on contingency for strong cases, meaning they receive payment from any judgment or settlement. Organizations like the Veterans Legal Services Network or your state bar association can provide referrals.