Military Status Discrimination Laws in Virginia

The Uniformed Services Employment and Reemployment Rights Act (USERRA), codified at 38 U.S.C. § 4301 et seq., is the primary federal law prohibiting discrimination based on military service. USERRA applies to all employers in the United States with one or more employees, including private employers, state and local governments, and the federal government.

USERRA prohibits employers from: (1) discriminating against employees or applicants based on military service status; (2) retaliating against service members for asserting USERRA rights; (3) denying employment opportunities, promotions, or benefits based on military obligations; and (4) refusing to reemploy service members returning from military duty. The law covers active duty, reserve duty, National Guard service, and temporary military training.

The Department of Labor (DOL), Veterans' Employment and Training Service (VETS), enforces USERRA for private sector employees. Federal employees fall under the Office of Personnel Management. Remedies include reemployment, back pay with interest, restoration of benefits, and attorney fees. Private right of action allows employees to sue in federal court. The statute of limitations is governed by the applicable statute of limitations for breach of contract in the relevant state, typically three to six years.

Virginia Code § 40.1-28.7 provides parallel state-level protection against military status discrimination, making it unlawful for any employer to fail or refuse to hire, promote, demote, or terminate any person, or to discriminate against any person in compensation or in terms, conditions, or privileges of employment because such person is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in the uniformed services.

Virginia's statute applies to all employers in the state, including those with fewer than 15 employees (the threshold for some federal employment laws). The law explicitly covers military service status as a protected characteristic and prohibits both intentional discrimination and retaliation for asserting military service rights.

Under Virginia Code § 40.1-49.1, employees called to active military duty receive additional protection. Employers must provide unpaid leave for military duty and cannot penalize employees or deny benefits based on military activation. Upon returning from military service, employees must be restored to their former position or a position of comparable seniority, status, and pay.

Virginia's law is at least as strong as USERRA in most respects. The state law covers a broad class of employers without size restrictions. Unlike USERRA, which requires a federal filing process, Virginia law violations can be pursued through the state employment discrimination complaint process. Remedies under state law include back pay, reinstatement, damages for emotional distress, and attorney fees. The Virginia Employment Commission investigates complaints alongside or instead of federal VETS investigation.

Military discrimination claims under Virginia law have limited statutory exceptions. USERRA provides an exception only when an employer can demonstrate that an employment decision is based on legitimate, non-discriminatory reasons unrelated to military service. This is an affirmative defense requiring clear and convincing evidence.

Employers cannot claim business hardship, loss of productivity, or temporary replacement costs as valid exceptions to USERRA protections. An employer cannot refuse to reemploy a service member because the employee's position was eliminated or because the employer made other operational decisions during the service member's absence, unless the service member's position genuinely no longer exists and the employer would not have hired the service member had the employee remained employed.

Small employer exception: USERRA applies to all employers regardless of size; Virginia Code § 40.1-28.7 similarly applies without size restrictions. There is no at-will employment exception to military discrimination law. An employee's at-will status does not permit discrimination based on military service.

Union or collective bargaining agreements must comply with military discrimination law and cannot override USERRA or Virginia state protections. Seniority rights and job restoration cannot be diminished because of military service. Veterans' preference laws are not exceptions; they are separate affirmative protections that may benefit service members in public sector hiring.

Employers are not required to provide paid leave for military duty in Virginia, but employees cannot be penalized or have benefits reduced because unpaid leave was taken for military service.

Step 1: Document the discrimination immediately. Keep records of: (a) dates, times, and locations of discriminatory statements, actions, or decisions; (b) the name and title of the person who discriminated; (c) witnesses present; (d) your military status or service information disclosed to the employer; (e) employment records showing your job performance, salary, benefits, and any adverse employment actions; (f) emails, texts, performance reviews, and termination or demotion notices; (g) evidence that similarly situated non-military employees were treated more favorably. Store all documents in a secure location outside the workplace (personal email, cloud storage, or with an attorney).

Step 2: Follow the employer's internal complaint process if one exists. Report the discrimination to Human Resources, a supervisor, or the company's ethics hotline in writing. Retain a copy of your complaint and any response. Document the date you filed and to whom. This creates an internal record and may trigger an investigation. However, filing an internal complaint does not waive your right to file an external charge, and federal law prohibits retaliation for internal complaints. Keep a written record of any retaliation that occurs after you complain internally.

Step 3: File a charge with the appropriate agency. For private sector employees, file with the U.S. Department of Labor Veterans' Employment and Training Service (VETS) at https://www.dol.gov/agencies/vets/is-userra-violation. You can also file with the Virginia Employment Commission (VEC) at https://www.vec.virginia.gov. Federal employees must file with the Office of Personnel Management (OPM) at https://www.opm.gov/forms/pdf_fill/opm71a.pdf. Deadline: 180 days from the discriminatory act for USERRA (VETS and OPM). Virginia law does not specify a separate state deadline but typically follows the 5-year statute of limitations. Information needed: (a) your name, address, phone number, and email; (b) employer name, address, and size; (c) date discrimination occurred; (d) detailed description of what happened; (e) your military status or service information; (f) basis of discrimination (status, performance of duty, or retaliation); (g) witnesses; (h) whether you filed an internal complaint; (i) damages sought. File in writing or by telephone; VETS accepts charges at 1-866-4-USERRA or online through the federal system.

Step 4: Expect the investigation process to take 30-90 days. VETS will: (a) contact the employer for a response; (b) request documents from both sides (personnel files, communications, employment decisions); (c) conduct interviews with you, the employer, and witnesses; (d) analyze whether military service was a factor in the employment decision; (e) determine if legitimate, non-discriminatory reasons exist (employer's burden of proof). You will receive updates on the investigation's status. The investigator may ask follow-up questions in writing or by phone. VETS will issue a determination letter stating whether a violation occurred. If VETS finds a violation, it will attempt to resolve the matter through conciliation, requiring the employer to offer remedies (reinstatement, back pay, damages). If conciliation fails, VETS will refer the case to the Department of Justice or provide you a right-to-sue notice allowing private litigation.

Step 5: Consult an attorney if your internal complaint was ignored, if retaliation occurred, if the employer does not respond to VETS investigation, or if VETS conciliation fails. Retain an employment attorney licensed in Virginia who specializes in military discrimination or USERRA claims. Many offer free initial consultations. An attorney can: (a) help gather evidence; (b) represent you in administrative investigations; (c) demand additional remedies on your behalf; (d) file a civil lawsuit in federal court for violation of USERRA or in Virginia state court for violation of Virginia Code § 40.1-28.7; (e) recover damages including back pay with interest, front pay, emotional distress damages, punitive damages, reinstatement, and attorney fees. Federal courts award reasonable attorney fees and costs to the prevailing party in USERRA cases. Virginia courts similarly award attorney fees under state law.