USERRA and California Military Leave: Employer Exposure After 2025

$50,000 is now the floor on liquidated damages when an employer knowingly violates the Uniformed Services Employment and Reemployment Rights Act. Amendments that took effect January 2, 2025, rewrote 38 U.S.C. section 4323 to add that minimum, add prejudgment interest, and make attorney fees mandatory for a prevailing employee with private counsel. California’s Military and Veterans Code and the FEHA add their own rules. A company that mishandles a reservist’s return or discipline now faces a much larger claim than it did before 2025.

Who does USERRA protect, and what does it bar?

Anyone with a connection to uniformed service. Section 4311(a) covers a person who “is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service.” That person “shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of” that service.

The burden structure is what makes these cases hard to win early. Under section 4311(c), the employer violates the statute if service “is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of” it. Service doesn’t have to be the main reason. Once it was a factor, the company carries the burden of proving it would have made the same decision anyway.

USERRA also bars retaliation. Subsection (b) protects anyone who enforces a USERRA right, testifies, or assists an investigation, and it applies “regardless of whether that person has performed service in the uniformed services.”

What does a returning service member get back?

The job, or a better one. Section 4312(a) grants reemployment rights when the employee gave advance notice, when “the cumulative length of the absence and of all previous absences from a position of employment with that employer by reason of service in the uniformed services does not exceed five years,” and when the employee reports back on time. Several kinds of service, including many involuntary call-ups, don’t count against the five years.

The deadline to come back depends on how long the service lasted. Under section 4312(e), service under 31 days requires reporting at the start of the next full scheduled work period after safe travel home and eight hours of rest. Service of 31 to 180 days requires an application “not later than 14 days after the completion of the period of service.” Longer service allows an application “not later than 90 days after the completion of the period of service.”

The old job isn’t always the right one. Section 4313 generally requires placement “in the position of employment in which the person would have been employed if the continuous employment of such person with the employer had not been interrupted by such service.” That includes the raises and seniority the employee would likely have earned. HR teams often miss this rule, and it produces back-pay claims even when the employee was rehired.

When can an employer decline to reemploy?

Rarely, and the employer has to prove it. Section 4312(d) excuses reemployment where “the employer’s circumstances have so changed as to make such reemployment impossible or unreasonable,” where the job was “for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period,” and in some cases of undue hardship. The statute says “the employer shall have the burden of proving” each of those defenses.

Changed circumstances means something like a closed location or an eliminated department, documented at the time. Hiring a replacement during the absence isn’t a changed circumstance. A company that filled the seat and now has no opening should expect to make room.

A late return doesn’t end the right either. A person who misses the reporting window “shall not automatically forfeit” reemployment under section 4312(e)(3), but is “subject to the conduct rules, established policy, and general practices of the employer pertaining to explanations and discipline with respect to absence from scheduled work.” The employer’s ordinary attendance policy applies, and it has to be applied the way it’s applied to everyone else.

Can a reemployed employee be fired?

Only for cause, for a while. A person reemployed under the statute “shall not be discharged from such employment, except for cause,” under section 4316(c), for one year after reemployment if the service lasted more than 180 days, and for 180 days if it lasted 31 to 180 days.

That’s a real departure from at-will employment. During the protected period, the employer has to show the discharge was reasonable and that the employee had notice the conduct could lead to termination. Any layoff or performance termination in that window should go to counsel first. Keep the records explaining why this employee was selected.

How did the 2025 amendments change the exposure?

They raised it on several fronts. Public Law 118-210, enacted January 2, 2025, amended the remedies section. The court may now require the employer to pay lost wages and benefits with “interest on such amount, calculated at a rate of 3 percent per year,” under section 4323(d)(1)(C). And it may require “the greater of $50,000 or the amount equal to the amounts referred to in subparagraphs (B) and (C) as liquidated damages, if the court determines that the employer knowingly failed to comply with the provisions of this chapter.”

Two changes in that sentence matter. The old standard required a willful violation, and the liquidated award matched back pay. The new standard is a knowing failure, and the award can’t be less than $50,000, even in a case with modest lost wages. A short-tenure employee with a few weeks of back pay can now present a five-figure claim.

Fees changed too. Under section 4323(h)(2), when an employee with private counsel prevails, “the court shall award any such person who prevails in such action or proceeding reasonable attorney fees, expert witness fees, and other litigation expenses.” Before the amendment, the word was “may.” Mandatory fee shifting changes the settlement math for every USERRA case.

How does a supervisor’s bias reach the company?

Through the people who feed information to the decision-maker. In Staub v. Proctor Hospital (2011) 562 U.S. 411, the Supreme Court held “that if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.”

The ruling limits what an independent review can do. The Court said that “if the employer’s investigation results in an adverse action for reasons unrelated to the supervisor’s original biased action (by the terms of USERRA it is the employer’s burden to establish that), then the employer will not be liable.” But a biased report “may remain a causal factor if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisor’s recommendation, entirely justified.”

The practical lesson is that HR review has to be real. A decision-maker who reads a supervisor’s write-ups and signs off hasn’t cut the causal chain. One who checks the underlying facts, talks to other witnesses, and documents an independent basis for the decision gives the company a defense.

What does California add?

A state-law layer that sits on top of USERRA. Federal law expressly leaves room for it. Section 4302(a) says USERRA doesn’t diminish any state law “that establishes a right or benefit that is more beneficial to, or is in addition to, a right or benefit provided for such person in this chapter.”

Military and Veterans Code section 394 bars an employer from discharging a person “because of the performance of any ordered military duty or training,” and makes a violator “liable for actual damages and reasonable attorney’s fees incurred by the injured party.” Section 394.5 gives reservists and Guard members “a temporary leave of absence without pay” for ordered training of up to 17 calendar days a year.

National Guard members called up by a state get their own reemployment statute. Section 395.06 requires a private employer to treat a returning member of “the National Guard of any state” as having been on leave, and to restore a full-time employee to the former position or one “of similar seniority, status, and pay.” The employer “shall not discharge the former employee from the position without cause within one year after restoring them to the position.”

Spouses are covered too. Under section 395.10, an employer with 25 or more employees “shall allow a qualified employee to take up to 10 days of unpaid leave during a qualified leave period,” meaning while a deployed spouse is home on leave.

The FEHA also lists the category. Government Code section 12940(a) bars discrimination because of “veteran or military status,” which section 12926 defines as “a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.” A single termination can produce a USERRA count, a Military and Veterans Code count, and a FEHA count.

How do military leave claims compare?

What should an employer do once a military leave claim arrives?

USERRA claims turn on what the company knew about the employee’s service and what it did after. Lock down that record first.

1. Preserve the employee’s personnel file, the military orders and leave requests, the reemployment application, payroll and benefits records for the leave period, and every email or text about the employee’s service or schedule.
2. Calendar the deadline on the DOL complaint, demand letter, or lawsuit, and check for an arbitration agreement and an employment practices liability (EPLI) policy with notice requirements.
3. Identify every supervisor who reported on the employee’s performance or commented on drill weekends or deployment, and pause any further action against the employee until counsel has reviewed it.
4. Pull the documents that show what position the employee would have held without the leave, along with any record of changed circumstances, cause, or an independent review of a supervisor’s report.
5. Talk to a lawyer before responding, contacting the employee, or offering anything to resolve the claim.

Companies looking for defense lawyers for California employment claims can review the firm’s practice page.

Military leave questions from California employers

Do we have to pay an employee during military leave?

Private employers generally don’t. Military and Veterans Code section 394.5 describes the training leave as “without pay.” USERRA treats the employee as on a leave of absence and requires the company to provide the non-seniority benefits it gives other employees on comparable leave. If the company pays employees on jury duty or other leaves, check whether its policy creates a comparable benefit.

Can we require an employee to use vacation during military service?

No. Under 38 U.S.C. section 4316(d), the employee may choose to use accrued paid leave, but “No employer may require any such person to use vacation, annual, or similar leave during such period of service.” A policy that automatically draws down vacation during military leave should be changed. The employee decides.

What happens to health insurance during a deployment?

The employee can keep it. Section 4317 lets the employee elect continued coverage for up to “the 24-month period beginning on the date on which the person’s absence begins,” at a cost of “not more than 102 percent of the full premium under the plan.” Shorter absences carry lower limits on what the employee can be charged. Coverage must be reinstated on return without new waiting periods for most conditions.

Does USERRA apply to a small business?

Yes. USERRA has no minimum employee count for private employers, so a ten-person company is covered. California’s spouse-leave rule in section 395.10 applies only at 25 or more employees, but the reemployment and anti-discrimination rules reach every size of business.

If a military leave claim reaches your company

If your company has received a DOL complaint, demand letter, or lawsuit from an employee returning from military service, the orders, the reemployment records, and what supervisors said about the service usually decide how much of the claim is real. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving military leave and reemployment. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.

Sources

The federal statutes are 38 U.S.C. section 4302, section 4311, section 4312, section 4313, section 4316, section 4317, and section 4323. The California statutes are Military and Veterans Code section 394, section 394.5, section 395.06, section 395.10, and Government Code sections 12926 and 12940. The decision is Staub v. Proctor Hospital (2011) 562 U.S. 411, a decision of the Supreme Court of the United States.

This post is general information about California employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.