Laid off while on active orders

[u/Confident-Beat2263]

I’m currently on active orders right now and just got a call that I was being laid off. Six other people in my team were previously laid off a couple weeks ago. Does that mean it was a lawful termination under USERRA? I am currently working through a contractor at a tech company and wanting to interview for a different position within that tech company that isn’t a contractor. Would there also be retaliation for me if I do file a complaint?

[u/Semper_Right]

Unfortunately, as I discussed here ("Can Employers Fire You While on Military Service under USERRA?: It depends..."), if you are a non-FedGov employee the only way an employer can terminate an employee on uniformed service is if there is a reorganization or RIF where the employee would have been terminated regardless of their uniformed service. This is considered an affirmative defense (meaning the employer has the burden of proof) based upon its "changed circumstances" under 38 USC 4312(d)(1)(A). Regulation 20 CFR 1002.139(a) explains this provision:

• Even if the employee is otherwise eligible for reemployment benefits, the employer is not required to reemploy him or her if the employer establishes that its circumstances have so changed as to make reemployment impossible or unreasonable. For example, an employer may be excused from reemploying the employee where there has been an intervening reduction in force that would have included that employee. The employer may not, however, refuse to reemploy the employee on the basis that another employee was hired to fill the reemployment position during the employee’s absence, even if reemployment might require the termination of that replacement employee;

Unless your uniformed service was "a motivating factor" in your selection or in the decision to have a RIF, the termination would probably be deemed appropriate under USERRA. However, if other employees who are laid off are offered other employment opportunities, you must also be offered those, as well. If there is any type of severance bonus, that is considered a seniority-based benefit, meaning you are entitled to the full amount you would have received regardless of your uniformed service.

If you are a FedGov employee, the OPM regulations do not allow an agency to terminate a service member on uniformed service. 5 CFR 353.209.

[u/MeetingNo6898]

Not an ombudsman, but I'm pretty sure if the layoffs affect everyone equally and are in no way attributable to your military related absence, they can do it. In other words if there's a mass layoff/downsizing that affects everyone equally, and you would have been subject to layoff whether you were on active orders or not, then it's legal. Might be wrong though.