Military Status Discrimination Laws in Pennsylvania

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 service discrimination. USERRA prohibits employers from denying employment, reemployment, promotion, pay, benefits, or any other term or condition of employment based on an employee's military service, obligation to perform military service, or absence from employment due to military service obligations.

USERRA covers all employers of any size, including private employers, federal agencies, state and local governments, and labor unions. The law applies to employees who have served or are serving in the uniformed services, including the Army, Navy, Air Force, Marine Corps, Coast Guard, and Space Force, as well as the Reserve and National Guard components.

The law prohibits discrimination in hiring, promotion, compensation, training, assignment, and termination. It also protects employees who take military leave, including active duty, reserve duty, National Guard service, and military medical appointments. Employers cannot require employees to notify them of military service obligations, nor can they impose penalties or discipline related to USERRA-protected absences.

USERRA provides several remedies, including reinstatement, back pay, benefits restoration, and compensatory damages for lost wages and benefits. The U.S. Department of Labor's Veterans' Employment and Training Service (VETS) investigates complaints and attempts to resolve disputes. Employees can also file civil actions in federal court seeking damages, including attorney's fees and costs.

Pennsylvania does not have a separate state law specifically addressing military discrimination in employment, but protects military service members through the federal USERRA framework and state general employment protections. Under the Pennsylvania Human Relations Act (PHRA), 43 P.S. § 955 et seq., employers cannot discriminate in hiring, employment terms, or termination based on protected characteristics; however, military status is not explicitly listed as a protected class under state law.

Since Pennsylvania lacks a dedicated state-level military discrimination statute, USERRA federal protections apply directly and exclusively to military service discrimination claims in the state. This means state law does not provide stronger protections than federal law for military service-based discrimination, but it also does not preempt or weaken USERRA's federal standards.

Pennsylvania employers of all sizes are covered under USERRA regardless of the employee threshold that might apply to other state employment protections. The federal law applies uniformly across Pennsylvania to private employers, public sector employers, and small businesses alike. Unlike some federal employment laws that only apply to employers with 15 or more employees, USERRA has no employer size threshold.

Pennsylvania does offer certain military family protections under the Pennsylvania Military Family Relief Act, 51 P.S. § 20602 et seq., which addresses leave rights and benefits for military family members, though this is narrower than direct discrimination protection. Employees in Pennsylvania can pursue USERRA claims through federal administrative and judicial channels without needing to exhaust state remedies first, since state law does not duplicate USERRA protections.

Remedies available to Pennsylvania employees include reinstatement to the same position or a position of equal seniority, back pay, benefits restoration, and compensatory damages under the federal system. Punitive damages may be available in certain willful violation cases. Attorney's fees and litigation costs are recoverable if the employee prevails.

USERRA contains important exceptions and limitations that employers often cite as defenses. Employers are not required to reemploy an employee if the employee's absence was not due to military service obligations or if the employee has no reasonable expectation of reemployment. An employee's absence must be for a qualifying military reason, such as active duty, Reserve or Guard training, military medical examination, or duty performed pursuant to a military call or order.

Employers can deny reemployment or deny benefits if they can demonstrate that the denial was based on factors unrelated to military service, such as legitimate business reasons, performance issues predating the military absence, or the person's inability to perform the job after returning from military service. The burden is on the employer to prove the non-military reason by clear and convincing evidence. However, this defense is difficult to establish successfully if the employer previously praised the employee's performance or if performance issues arise only after return from military service.

Small employer exceptions are limited under USERRA. While some federal employment laws exempt employers with fewer than 15 employees, USERRA applies to all employers regardless of size. However, employers with fewer than 20 employees may invoke a hardship exception in limited circumstances, requiring proof that reemployment would cause substantial increased costs or significant disruption to operations.

USERRA does not protect employees absent from work without properly notifying the employer or without returning to work within the timeline specified by military orders. Employees must provide reasonable notice of military service obligations unless military necessity prevents such notice. Service members who go Absent Without Leave (AWOL) or who are dishonorably discharged generally do not qualify for USERRA protection.

The law does not require employers to provide pay for military service time, though many do; USERRA only requires that service members not be penalized or terminated for taking military leave. Employers can require employees to use accrued paid leave during military service absences in some circumstances. Jobs that are temporary or seasonal, or positions created specifically to replace the military service member, may have limited reemployment rights.

Step 1 — Document Everything. Keep detailed records of all communications related to your military service, including emails, text messages, letters, and performance evaluations. Document the exact date you informed your employer of your military service or military leave need, how you communicated it, and your employer's response. Save copies of your military orders, Leave and Earnings Statements (LES), or official military documentation proving your service dates. Record the date of any adverse employment action (denial of promotion, termination, disciplinary action, or reduced hours) and what was said to you. Document any statements made by managers or supervisors about your military service being a factor in the decision. Take screenshots of company communications, policies, or announcements if relevant. Keep a written timeline with specific dates, people involved, and what occurred.

Step 2 — Initiate Internal Complaint Process. Before filing a formal complaint, attempt to resolve the issue internally if safe to do so. Submit a written complaint to your employer's Human Resources department, clearly stating that you believe you have been discriminated against based on military service under USERRA. Provide specific dates, actions, and how military service was a factor in the adverse action. Keep a copy of your written complaint and any receipt or acknowledgment from HR. Send the complaint via email or certified mail so you have proof of delivery and timing. Follow your employer's established grievance procedures if one exists, documenting each step. Request a written response with a timeline for resolution. Do not resign unless absolutely necessary, as this can complicate later claims. Internal complaint efforts demonstrate good faith and may pressure the employer to resolve the issue, though they are not required by USERRA.

Step 3 — File a Formal Complaint. You have two options in Pennsylvania: file with the U.S. Department of Labor Veterans' Employment and Training Service (VETS) or file a civil action directly in U.S. District Court. To file with VETS, contact the Regional Office serving Pennsylvania at 717-782-4842 or visit www.dol.gov/agencies/vets. You can file online, by mail, or in person. Provide a detailed written complaint describing the violation, the date it occurred, your military service dates and branch, your employer's name and address, and the impact on you. Include copies of all documentation: military orders, performance reviews, termination letters, and email communications. VETS will investigate at no cost to you, typically within 30-45 days, and attempt informal resolution. If VETS resolves the complaint or if you are unsatisfied with the outcome, you can proceed to civil court.

To file a civil action directly in U.S. District Court for the Eastern District of Pennsylvania (located in Philadelphia) or the Western District of Pennsylvania (Pittsburgh), you must file within three years of the alleged violation. You do not need to exhaust administrative remedies first, though many employees file with VETS first to preserve evidence and obtain an investigation. Consult an employment attorney before filing; they will file a complaint in the appropriate federal district court where you worked or where the employer is located. The complaint must allege the military service discrimination, describe the harm suffered, and state the relief sought (reinstatement, back pay, damages). You can file jointly with an attorney or proceed pro se (without an attorney) if you choose, though federal court procedures are complex.

Step 4 — Understand the Investigation and Resolution Timeline. If you filed with VETS, they will contact your employer and request a response to your allegations. The investigation typically takes 30-60 days. VETS may interview you, your employer, witnesses, and request documents. If the agency finds a violation, it will issue a letter of violation and attempt to negotiate a settlement. Many cases settle during this phase with agreements for reinstatement, back pay, or corrective action. If VETS cannot reach a settlement or if you disagree with their findings, you retain the right to file a civil action in federal court; VETS involvement does not eliminate this right.

If you filed a civil action in federal court, the timeline is longer. The employer will be served with the complaint and has 21 days to respond. Discovery follows, during which both sides exchange documents and conduct depositions (recorded interviews). This phase typically lasts 6-12 months. Either side may file a motion for summary judgment arguing there is no factual dispute and judgment should be entered. If the case proceeds to trial, it may be heard before a judge or jury. Federal court cases typically take 1-3 years from filing to resolution. During this time, both sides are exploring settlement options.

Step 5 — Consult an Employment Attorney. Contact an employment law attorney experienced in USERRA cases before taking formal action if possible. Many offer free initial consultations. An attorney can evaluate whether your situation qualifies for protection, advise on timing and strategy, and represent you in negotiations or court proceedings. USERRA allows recovery of attorney's fees and costs if you prevail, meaning the employer may be ordered to pay your legal fees. This makes it more feasible to hire counsel. An attorney can also advise whether to file with VETS first or go directly to court based on your circumstances. Look for attorneys in Pennsylvania who specialize in veterans' rights, military employment, or USERRA specifically. Contact the Pennsylvania Bar Association Lawyer Referral Service at 1-800-392-6960 or www.pabar.org for referrals. Consider reaching out to the Veterans Legal Clinic or non-profit organizations like the American Civil Liberties Union (ACLU), which sometimes take military discrimination cases pro bono.