Military Status Discrimination Laws in South Carolina

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, including private employers, federal agencies, state and local governments, and the military itself.

USERRA prohibits discrimination and retaliation against employees based on their military service, membership in the uniformed services, or obligation to serve. The law covers discrimination in hiring, firing, promotion, compensation, job assignments, and all other terms and conditions of employment. The law also protects against retaliation when an employee exercises rights under USERRA, such as taking military leave or requesting reemployment.

USERRA establishes reemployment rights for service members. When an employee returns from military service, the employer must restore them to their original position or a position of equivalent seniority, status, and pay. The employee must provide notice of their intent to return within specific timelines depending on the length of service.

The Department of Labor's Veterans' Employment and Training Service (VETS) is the federal agency responsible for enforcing USERRA. Employees can file a complaint with the DOL within 3 years of the alleged violation. The DOL investigates the complaint, and if a violation is found, attempts to reach a voluntary agreement. If settlement fails, the employee can pursue litigation in federal court. Remedies available include reinstatement, back pay with interest, restoration of benefits, and compensatory damages. Successful plaintiffs can also recover attorney fees and costs.

South Carolina provides military service member protections under S.C. Code § 25-1-2310, which prohibits discrimination against members of the uniformed services and individuals obligated to perform military service. This state statute runs parallel to federal USERRA protections but is more limited in scope and enforcement mechanisms.

South Carolina law applies to all employers operating within the state and covers discrimination based on military status and service membership. However, unlike USERRA, the state statute does not explicitly establish a reemployment right or detailed procedures for restoring seniority and benefits after military leave. The state law is generally considered weaker than federal USERRA because it lacks the comprehensive reemployment framework and doesn't provide as detailed a cause of action.

Under S.C. Code § 25-1-2310, employers cannot discharge, discipline, penalize, or otherwise discriminate against an employee because of the employee's membership in or obligation to perform service in the uniformed services. The law covers active duty, reserve duty, and National Guard service. South Carolina courts have interpreted this statute to protect service members from adverse employment actions taken because of their military service.

While South Carolina law provides a state-level cause of action, most service members pursue claims under USERRA because federal law offers stronger protections, broader remedies, and a more established enforcement process through the Department of Labor. South Carolina law is not preempted by USERRA; instead, the two operate concurrently. An employee may bring claims under both state and federal law, though relief is not duplicative.

Remedies under South Carolina law are less clearly defined than under USERRA. Potential remedies may include reinstatement, back pay, and damages for violation of the statute, though South Carolina courts have not extensively developed the remedies framework for military discrimination claims. Attorney fees may be available depending on how courts interpret the statute. Most South Carolina employers are covered by USERRA regardless of size, making federal law the primary enforcement mechanism in practice.

Federal USERRA applies to all employers with one or more employees, regardless of size.

You have 3 years from the date of the alleged discrimination or retaliation to file a complaint with the Department of Labor.

For reemployment purposes, service of less than 91 days requires notification of return to work within 14 days of discharge from service.

Service of 91 days or more requires notification of intent to return within 90 days of discharge or before the expiration of the service member's leave period, whichever occurs first.

Service of more than 6 years requires the employer to be notified of intent to return before expiration of the service member's leave period.

Back pay under USERRA accrues with interest from the date of the discriminatory action.

USERRA contains important exceptions and limitations that employers often invoke as defenses. First, an employer is not required to rehire or reemploy a service member if the employer's circumstances have so changed that reemployment is impossible or unreasonable. However, this exception is interpreted narrowly; the employer must show genuine and substantial changes in business circumstances, not merely inconvenience or expense.

Second, an employer may deny reemployment if the service member is not able to perform the duties of the position. However, the employer must make reasonable efforts to accommodate the employee and cannot deny reemployment solely because the employee requires accommodation for a service-connected disability. Reasonable accommodations under USERRA may be required even if the same accommodations would not be required under the ADA.

Third, the exception for "cause" discharge applies under USERRA. An employer may discharge a reemployed service member for cause just as any other employee, but the discharge cannot be motivated by the employee's military service or military status. The burden is on the employer to prove the discharge was for legitimate, non-discriminatory reasons.

Fourth, "de minimis" changes in working conditions or job assignments do not constitute discrimination. An employer may reassign duties or change schedules for legitimate business reasons unrelated to military service.

Fifth, union members and collective bargaining agreements do not exempt employers from USERRA obligations. The law applies regardless of union status, and union representatives cannot waive USERRA rights.

Sixth, federal contractors are subject to additional requirements under Executive Order 13779 and federal acquisition regulations, which strengthen USERRA protections for federal contractors specifically.

Seventh, at-will employment doctrine does not override USERRA protections. Even in at-will states like South Carolina, an employer cannot terminate an employee based on military service status. However, an employer may terminate an at-will employee for any other lawful reason.

Eighth, small employers do not have exceptions under USERRA. The law applies to all employers, including sole proprietors and businesses with only a few employees. The only true exception is for the federal government in certain contexts involving classified national security positions.

Step 1: Document Everything. From the moment you experience discrimination or retaliation, keep detailed records. Document the date, time, location, and nature of the discriminatory conduct or decision. Write down the names and titles of individuals involved. Preserve all emails, text messages, performance reviews, and written communications that relate to your military service or status. If your employer denied you a promotion, transfer, or raise, request written explanations in writing. Keep copies of your military discharge papers (DD Form 214) and any documentation of your service obligations. Store these documents in a personal location, not just on employer systems. Take screenshots of emails and messages. If possible, save copies of your job posting, employee handbook, and any communications about the adverse action.

Step 2: Internal Complaint Process. Before filing with the government, consider making an internal complaint to your employer's HR department or management. Send a written complaint (email is acceptable) to HR or your supervisor's manager, clearly stating that you believe you have experienced discrimination based on your military service status. Reference specific incidents and dates. Explain how the adverse action was connected to your military service or your service obligations. Keep a copy of your written complaint. Request a written response. While an internal complaint is not required under USERRA, it creates a paper trail and may prompt your employer to correct the problem. Some employers have internal dispute resolution procedures; follow these procedures if available. However, pursuing an internal complaint does not extend your deadline for filing with the Department of Labor.

Step 3: File a Complaint with the Department of Labor. You must file your USERRA complaint with the Department of Labor's Veterans' Employment and Training Service (VETS), not with the EEOC. You have 3 years from the date of the alleged violation to file. You can file online at https://www.dol.gov/agencies/vets/USERRA or by mail. To file online, go to the VETS complaint portal and provide: (1) Your name, contact information, and military status; (2) Your employer's name, address, and number of employees; (3) The date of the alleged violation; (4) A detailed description of what happened, including how the action was related to your military service; (5) The name and contact information of witnesses; (6) Copies of supporting documents (performance reviews, emails, termination letters, DD Form 214). You do not need to hire an attorney to file; the complaint form is designed for individual filers. After filing, VETS will contact you to confirm receipt and may ask follow-up questions.

Step 4: Investigation Process. Once your complaint is filed with VETS, the agency will conduct an investigation. VETS will contact your employer and request their response to your allegations. The investigation typically takes 30 to 90 days, though it may take longer for complex cases. During the investigation, VETS may request additional documents from both you and your employer, conduct interviews with witnesses, and review personnel records. You will be kept informed of the investigation's progress. VETS will not contact you daily, but you can request status updates. If VETS determines there is "reasonable cause" to believe USERRA was violated, the agency will attempt to reach a voluntary settlement between you and your employer. If a settlement is reached, you may receive back pay, reinstatement, damages, or other relief as agreed. If no settlement is reached within a specified timeframe, VETS will notify you of your right to pursue a civil action in federal court.

Step 5: Consult an Attorney. Contact a military employment law attorney if: (1) Your employer refuses to cooperate with the DOL investigation; (2) The DOL investigation does not result in a settlement within 60 to 90 days; (3) Your employer has terminated you or taken a serious adverse action; (4) You have suffered significant financial losses or damages; (5) Your case involves complex legal issues or multiple violations; (6) You are considering filing a civil lawsuit. A USERRA attorney can represent you in settlement negotiations, assist with the DOL investigation, or litigate your case in federal court if necessary. Many USERRA attorneys work on contingency, meaning you pay nothing unless you win. Consult an attorney licensed to practice in South Carolina or in federal court in the District of South Carolina. The National Veterans Legal Services Program and the Veterans Consortium Free Legal Services Program provide free or low-cost consultations for eligible veterans.