Yes, a protected veteran can be fired, but only under specific circumstances where the termination is based on legitimate, non-discriminatory reasons unrelated to their veteran status, and in accordance with the organization's established policies and applicable laws.
Understanding Protected Veteran Status
Protected veterans are individuals who have served in the U.S. armed forces and meet specific criteria outlined under the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA). This status offers protections against employment discrimination, requiring federal contractors and subcontractors to take affirmative action to employ and advance qualified protected veterans.
Categories of protected veterans generally include:
- Disabled Veterans: Those who served on active duty in the U.S. armed forces and were discharged or released from active duty because of a service-connected disability, or who are entitled to compensation for a service-connected disability.
- Recently Separated Veterans: Veterans discharged or released from active duty within the last three years.
- Active Duty Wartime or Campaign Badge Veterans: Veterans who served on active duty in the U.S. armed forces during a war, or in a campaign or expedition for which a campaign badge has been authorized.
- Armed Forces Service Medal Veterans: Veterans who, while serving on active duty in the U.S. armed forces, participated in a U.S. military operation for which an Armed Forces Service Medal was awarded.
Legitimate Reasons for Termination
While protected veterans receive specific legal protections, these safeguards do not grant absolute immunity from termination. Employers are still permitted to make employment decisions, including termination, as long as these decisions are based on legitimate, non-discriminatory reasons.
Non-Discriminatory Basis
The critical element is that the reason for termination must be unrelated to their veteran status. This means an employer cannot fire a protected veteran simply because of their military service, a service-connected disability, or any other characteristic associated with their veteran status that is protected by law.
Compliance with Policies and Laws
For a termination to be considered lawful, it must also be carried out in accordance with:
- Organizational Policies: Adherence to the company's own written policies regarding conduct, performance, disciplinary actions, and termination procedures.
- Applicable Laws: Compliance with all relevant federal, state, and local labor laws, including anti-discrimination statutes, contract terms, and general employment regulations.
Examples of Lawful Termination Reasons
Protected veterans can be lawfully terminated for the same legitimate, non-discriminatory reasons as any other employee. These often fall into categories such as:
| Reason for Termination | Description | Examples |
|---|---|---|
| Poor Performance | Consistent failure to meet job expectations or responsibilities, despite warnings and opportunities for improvement. | Failing to meet sales quotas, repeated errors in work, inability to complete assigned tasks effectively. |
| Misconduct | Violations of company policy, unethical behavior, or actions that harm the workplace environment or business operations. | Theft, harassment, insubordination, unauthorized disclosure of confidential information, substance abuse on duty. |
| Company Restructuring | Legitimate business decisions to downsize, reorganize, or eliminate positions due to economic necessity or strategic changes. | Layoffs due to budget cuts, departmental elimination, closure of a business unit. |
| Attendance Issues | Excessive absenteeism or tardiness that disrupts operations, even after progressive disciplinary actions. | Frequent unexcused absences, habitual late arrival, failure to notify management of absences. |
| Violation of Safety Rules | Willful disregard for workplace safety protocols that could endanger the employee or others. | Operating machinery without proper certification, refusing to wear required personal protective equipment, violating lockout/tagout procedures. |
Unlawful Termination (Discrimination)
Conversely, a termination would be considered unlawful if it is found to be discriminatory. This occurs when a protected veteran is fired because of their veteran status, a service-connected disability, or any other characteristic protected under VEVRAA or the Americans with Disabilities Act (ADA) (if the disability is service-connected).
Examples of unlawful termination could include:
- Firing a veteran because they need time off for a service-connected medical appointment.
- Terminating a veteran shortly after discovering they have a service-connected disability, without any legitimate performance or conduct issues.
- Laying off a protected veteran during a restructuring while retaining non-veteran employees with less experience or lower performance, where veteran status appears to be a factor in the decision.
Proving Discrimination
If a protected veteran believes they were wrongfully terminated due to their veteran status, they would typically need to demonstrate that:
- They are a member of a protected class (e.g., a protected veteran).
- They were qualified for the position.
- They suffered an adverse employment action (e.g., termination).
- The circumstances surrounding the termination suggest discriminatory intent (e.g., non-veterans were treated more favorably, or the stated reason for termination was a pretext).
Protections for Veterans
Several federal laws provide employment protections for veterans:
- Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA): Administered by the U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP), VEVRAA prohibits discrimination against protected veterans by federal contractors and subcontractors and requires affirmative action for their employment.
- Uniformed Services Employment and Reemployment Rights Act (USERRA): Administered by the U.S. Department of Labor, USERRA protects civilian employment for non-career military members by ensuring they can return to their civilian jobs after military service without loss of seniority, status, or pay. It also prohibits discrimination based on past, present, or future military service.
- Americans with Disabilities Act (ADA): While not specific to veterans, the ADA protects individuals with disabilities from discrimination. Many service-connected disabilities qualify under the ADA, providing additional protections.
Best Practices for Employers
Employers should implement robust practices to ensure fair and lawful treatment of all employees, including protected veterans:
- Clear Policies: Establish and communicate clear policies regarding performance expectations, conduct, disciplinary actions, and termination procedures.
- Consistent Application: Ensure all policies are applied consistently to all employees, regardless of protected status.
- Thorough Documentation: Maintain detailed and accurate records of performance reviews, disciplinary actions, and any incidents leading to termination.
- Fair Process: Conduct thorough investigations into alleged misconduct or performance issues, providing employees with an opportunity to respond.
- Legal Review: Consult with HR and legal counsel before terminating a protected employee to ensure compliance with all applicable laws and regulations.
What to Do if You Believe You Were Wrongfully Terminated
If a protected veteran believes their termination was unlawful or discriminatory, they can take several steps:
- Review Company Policies: Understand the company's termination process and policies.
- Gather Evidence: Collect any relevant documents, emails, performance reviews, or communications that support their claim.
- Consult Legal Counsel: Seek advice from an attorney specializing in employment law to assess the strength of their case.
- File a Complaint:
- For discrimination related to veteran status by a federal contractor, a complaint can be filed with the OFCCP.
- For discrimination based on military service (USERRA), a complaint can be filed with the U.S. Department of Labor's Veterans' Employment and Training Service (VETS).
- For discrimination based on disability (including service-connected disabilities), a complaint can be filed with the U.S. Equal Employment Opportunity Commission (EEOC).
