Military Status Discrimination Laws in Missouri

The Uniformed Services Employment and Reemployment Rights Act (USERRA), codified at 38 U.S.C. § 4301 et seq., is the primary federal law protecting military service members from employment discrimination. USERRA applies to all employers in the United States, regardless of size, and covers all branches of the uniformed services, including the Army, Navy, Air Force, Marine Corps, Coast Guard, and reserve and National Guard components.

USERRA prohibits employers from discriminating against employees or job applicants based on military service, including past, present, or future service. The law covers hiring decisions, promotion, training, compensation, advancement, and termination. Employers cannot retaliate against employees for enforcing their USERRA rights or filing complaints. The law also requires employers to provide reemployment rights to service members who take military leave, ensuring they can return to their jobs or positions of equal seniority, status, and pay upon completion of military service.

The Department of Labor, Veterans' Employment and Training Service (VETS), enforces USERRA under 29 C.F.R. § 1002. An employee or applicant must file a complaint with VETS within 180 days of the alleged violation. VETS will investigate the claim and attempt to resolve it through informal mediation or formal findings. If VETS is unable to resolve the matter, the complainant may pursue a civil lawsuit in federal court. Remedies available under USERRA include reinstatement, back pay with interest, compensatory damages, and attorney fees and costs.

Missouri provides additional protections for military service members under Missouri Revised Statutes § 38.200 et seq., which applies to members of the Missouri National Guard, military reserve forces, and members of the uniformed services. While Missouri's statute is generally aligned with federal USERRA protections, Missouri law specifically includes provisions protecting state-based military personnel and those called to state active duty.

Missouri law prohibits employers from discharging, threatening, or otherwise discriminating against any member of the uniformed services, the Missouri National Guard, or military reserve forces on account of that military service. Mo. Rev. Stat. § 38.210 makes it unlawful for employers to refuse employment, discharge, or discriminate in any manner against a person on the basis of their military service or obligation. The statute applies to all employers operating in Missouri, including private, public, and nonprofit organizations.

Unlike federal USERRA, which focuses on reemployment rights after military service, Missouri's state law emphasizes anti-discrimination during active employment and upon return. Missouri law specifically protects employees who are on military leave or called to active duty, whether federal or state active duty. Employees called to military service are entitled to return to their positions without loss of seniority, pay, or benefits.

Missouri also provides broader remedies than federal law in some contexts. Under Mo. Rev. Stat. § 38.230, violations of military service protections are treated as unlawful employment practices subject to investigation by the Missouri Commission on Human Rights (MOCHR). An employee can file a charge with MOCHR within 180 days of the violation. MOCHR will investigate and can issue a finding of probable cause, which may lead to conciliation or a hearing before an administrative judge. Remedies include reinstatement, back pay, compensatory damages for emotional distress, and in cases of willful violation, punitive damages up to $5,000 or actual damages, whichever is greater. Attorney fees and costs are also recoverable. Missouri's dual-track system allows complainants to pursue either federal USERRA remedies or state remedies, or both.

USERRA contains important exceptions and limitations that employers should understand. The law does not guarantee employment if the individual is not qualified for the position or if the employer's circumstances have substantially changed due to the employee's absence. An employer may terminate a returning service member for cause unrelated to military service, such as poor performance, misconduct, or business necessity, provided the termination is not pretextual.

USERRA does not apply to elected officials, persons appointed to policymaking positions, or immediate family members of the employer. Additionally, the law has a "escalation of care" threshold—employers with fewer than 120 days of annual leave available may not be required to grant unpaid military leave in every circumstance, though this is narrowly construed.

Missouri state law under Mo. Rev. Stat. § 38.200 et seq. contains similar exceptions. An employer may refuse employment or discharge an employee if the refusal or discharge is based on legitimate, non-discriminatory business reasons unrelated to military service. However, employers bear the burden of proving that discrimination did not occur. Employers cannot use military service as a motivating factor in an adverse employment decision, even if other legitimate reasons also existed.

Retaliation is broadly prohibited, but an employer may take action against an employee for conduct unrelated to asserting USERRA or state military service rights. Employers may also enforce legitimate workplace rules consistently with non-military employees, provided the rules are applied uniformly and do not target service members.

Small employers—those with fewer than 15 employees—may claim undue hardship under USERRA if providing military leave would impose significant operational or financial burden, but this defense is interpreted narrowly and rarely succeeds. At-will employment principles do not override USERRA or Missouri state protections; service members cannot be terminated simply because they took military leave or asserted their military service rights.

Step 1: Document the discrimination or retaliation. Keep records of all communications related to your military service and the adverse employment action (emails, performance reviews, termination letters, witness statements, dates, times, and names of supervisors involved). Document any comments made by supervisors or managers about your military service, reserve status, or National Guard membership. Maintain records of your job duties, performance evaluations prior to military leave, and the position you held before service. Photograph or copy any written policies about military leave or service member accommodations. Save all personnel records, including hiring decisions, promotion denials, or pay reduction documents that coincided with your military service notification.

Step 2: Follow internal complaint procedures if available. Notify your human resources department or direct supervisor in writing (email is acceptable and creates a record) that you believe you have been discriminated against or retaliated against based on military service. State clearly that your concern relates to military service discrimination under USERRA and Missouri law. Request a written response and keep a copy of your complaint. Document how management responds, whether they investigate, and what steps they take. If your employer has a formal grievance procedure, file a grievance complaint within the required timeframe. Internal complaints do not waive your right to file with government agencies and may help preserve evidence, but they are not required before filing with VETS or MOCHR.

Step 3: File a federal complaint with the Department of Labor. You have 180 days from the date of the violation to file a complaint with the U.S. Department of Labor, Veterans' Employment and Training Service (VETS). File online at www.dol.gov/agencies/vets/USERRA/file-complaint or submit a written complaint by mail to the regional VETS office. Provide your name, contact information, employer name and address, date of the alleged violation, a detailed description of the discriminatory or retaliatory conduct, and copies of supporting documentation. Include your military service dates, the nature of your service (active duty, reserve, National Guard), and how your employer's conduct violated USERRA. Alternatively, file a state complaint with the Missouri Commission on Human Rights (MOCHR) at www.labor.mo.gov/mohr or by calling (573) 522-3846. You have 180 days from the violation to file with MOCHR under Mo. Rev. Stat. § 38.230. Both agencies must investigate allegations of military service discrimination, though federal VETS investigation typically occurs faster.

Step 4: Expect the investigation process. After filing with VETS, an investigator will contact you and your employer. The process typically takes 60–180 days, though complex cases may take longer. VETS will review your complaint, request documents from your employer, and conduct interviews with you, management, and witnesses. Your employer must preserve all relevant documents and provide them to VETS. You will have an opportunity to respond to your employer's position and submit additional evidence. VETS may attempt informal resolution or mediation before issuing a formal determination. If VETS finds that your employer violated USERRA, it will issue a "Notice of Determination" requiring the employer to take corrective action, such as reinstatement, back pay, and damages. If you are dissatisfied with VETS's determination, you may pursue a civil lawsuit in federal court within the statute of limitations. If filing with MOCHR, the investigation is similar; MOCHR will issue a finding of probable cause or no probable cause and may offer conciliation.

Step 5: Consult an employment attorney if necessary. Contact a military employment rights attorney if your employer retaliates against you after you file a complaint, refuses to comply with VETS or MOCHR's determination, or if the investigation is not progressing satisfactorily. An attorney can file a civil lawsuit in federal court under 38 U.S.C. § 4302 to enforce your USERRA rights and recover damages beyond what agencies can award. In Missouri, an attorney can also pursue state law remedies through MOCHR's hearing process or state court litigation. Military service attorneys often work on contingency or reduced fees and can recover attorney fees from the employer if you prevail. Consult an attorney within 180 days of the violation to ensure your federal filing deadline is met; delaying beyond 180 days may bar federal claims.