Changed Status

[u/legaleaglebeagle13]

So my employer classified me as AWOL while on AT orders and then two days later, changed it to military leave. Between that timeframe, I had my initial interview with the USERRA investigator. I have emails from management threatening me to provide them with my orders or else I was getting marked as AWOL for that time period. I am concerned that the investigator is going to deem it closed since they changed it and not see that they had initially violated it. Has anyone been in this predicament?

[u/demeterite]

So your employer corrected the issue. What harm did you sustain? What are you looking for? Why would it be bad if it's now a closed case?

[u/legaleaglebeagle13 → u/demeterite]

Well I was terminated days after this. Can i say it was USERRA related? Idk. It’s part of the issue.

[u/Semper_Right → u/legaleaglebeagle13]

You buried the lede. Obviously, termination is an adverse employment action under 38 USC 4311. The DOL-VETS investigator will examine what, if any, basis for the termination was offered by the employer. Your uniformed service or, in the case of retaliation, your protected activity (i.e. leaving for military service, complaining about a USERRA violation, assisting in an investigation, etc) cannot be "a motivating factor" in their decision. 38 USC 4311. DOL-VETS describes "a motivating factor" as follows:

• A motivating factor is one of the factors that a truthful employer would list if asked the reasons for its decision. A motivating factor is if the employer relied on, considered, or conditioned the decision to take the adverse action on the protected status or activity. There’s no requirement that it be the only factor that led to the adverse action. It can be one of many. For example, poor performance or the person is often absent.

DOL-VETS Investigation Manual (2025) Section 5.2.1.3.1

The service member may meet their burden to show their service or activity was "a motivating factor" by either direct or circumstantial evidence. Obviously, direct evidence is determinative, if it exists. This would be statements such as "you're being terminated, in part, because you're gone frequently (for uniformed service)" or "your military service is distracting you from giving us the 110% we require". In other words, any statements confirming that your service was "a factor" in the decision.

Conversely, you may have to rely upon circumstantial evidence that would allow the court and jury to infer that your service was a motivating factor. This is demonstrated by using the "Sheehan factors" which are:

1. Proximity in time between the claimant’s status or activity and the adverse action.

2. Employer’s expressed hostility toward uniformed service or the uniformed services, together with knowledge of the claimant’s status or activity.

3. Inconsistencies between the employer’s stated reasons for the adverse action taken and other actions the employer took.

4. Disparate treatment toward the claimant compared to other employees with similar work records or offenses.

Sheehan v. Dept. of the Navy, 240 F.3d 1009 (Fed. Cir. 2001). (cited in DOL-VETS Investigation Manual Section 5.2.1.3.2.

What you should do to advance your complaint with the DOL-VETS is gather any evidence that would support any of the Sheehan Factors. Obviously, the timing (#1) is suspect. Has there been hostility toward your service? What reasons have they given and are they credible, or are there inconsistencies? How were your coworkers treated?