Military Service Discrimination: Key Compliance Guidance for California Business Owners
Introduction
As a California business owner, it’s essential to understand your responsibilities—and risks—when it comes to employees who are members of the U.S. Armed Forces or California National Guard. With such a strong military presence in communities like San Diego, where my own family has served, respecting and accommodating those who serve is part of being a good leader and employer.
What Does the Law Say?
California law strictly prohibits employers from discriminating against, retaliating against, or penalizing any employee because of their current or previous military service, or because they need time off for required military duty or training (Cal. Mil. & Vet. Code § 394(d); Cal. Gov’t Code § 12940(a)). This applies not just to termination and hiring, but to all employment terms and conditions, including promotions, pay, benefits, assignments, and discipline (Cal. Mil. & Vet. Code § 394(a), (b), (d); Cal. Gov’t Code § 12940(a)).
What an Employee Must Prove
If a claim is brought against your business, the employee must prove:
They were employed by you.
They currently serve or have served in the military.
They suffered an adverse employment action (such as termination, discipline, demotion, denial of promotion, or failure to hire).
Their military status, obligations, or need for leave were a substantial motivating reason for your action.
They suffered harm as a result.
Your conduct was a substantial factor in causing that harm (Cal. Mil. & Vet. Code § 394; Harris v. City of Santa Monica, 56 Cal.4th 203, 232 (Cal. 2013); Haligowski v. Superior Court, 200 Cal.App.4th 983, 998 (Cal. Ct. App. 2011)).
Penalties for Violating the Law
Violating California Military and Veterans Code section 394 carries serious consequences:
Criminal Penalty: Employers can be found guilty of a misdemeanor, which may result in fines and even jail time (Cal. Mil. & Vet. Code § 394(e)).
Civil Remedies: The business may be liable for actual damages including lost wages, lost benefits, emotional distress, reinstatement, promotion, hiring, and reasonable attorney’s fees (Cal. Mil. & Vet. Code § 394(f); Cal. Gov’t Code § 12940(a)).
The employee may also pursue additional remedies under federal law, or the California Fair Employment and Housing Act.
Best Practices for Employers
Update Your Policies: Clearly state in handbooks and postings that discrimination against military personnel and veterans is strictly prohibited.
Educate Managers: Train all leaders and HR staff in the law’s requirements and the need to accommodate military duty and training.
Document Decisions: Record the legitimate, neutral reasons behind all employment actions, especially for service members and veterans.
Respond Supportively: Work collaboratively with employees who request leave or time off for military service, and avoid any negative commentary or retaliation.
Consult Legal Counsel: When in doubt, seek legal guidance (e.g., myself) before taking any adverse action involving a current or former member of the military.
Why It Matters—Especially in San Diego
Employers in San Diego, with its numerous military bases and service members, have a unique opportunity— and responsibility— to foster workplaces that are both compliant and welcoming to those who serve. By modeling respect for servicemembers and veterans, you strengthen your business’s reputation, foster loyalty, and contribute positively to our community. This is more than just compliance—it’s about supporting those who protect us, a value I hold personally.
Citations:
Cal. Mil. & Vet. Code § 394(a), (b), (d), (e), (f); Cal. Gov’t Code § 12940(a); Harris v. City of Santa Monica, 56 Cal.4th 203, 232 (Cal. 2013); Haligowski v. Superior Court, 200 Cal.App.4th 983, 998 (Cal. Ct. App. 2011).
