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military members

Federal and state laws protect U.S. and state service members and veterans from adverse employment actions that might otherwise result from their military service.

Federal Law

A federal statute known as the Uniformed Services Employment and Reemployment Rights Act (USERRA) clarifies and strengthens the Veterans' Reemployment Rights (VRR) statute. USERRA is located in the United States Code beginning at 38 U.S.C. §4301.

USERRA protects civilian job rights and benefits for veterans and members of Reserve components. For example, under certain conditions, USERRA requires employers to put service members back to work in their civilian jobs after their military service. USERRA also protects service members from discrimination in the workplace based on their military service or affiliation.

And USERRA increases the protection of service member rights and benefits by clarifying the law, improving enforcement mechanisms, and adding federal government employees to those employees already eligible to receive Department of Labor (DOL) assistance in processing claims.

USERRA increases the length of time that an individual may be absent from work for military duty and retain reemployment rights (five years). The previous law provided four years of active duty, plus an additional year if it was for the convenience of the government.

There are important exceptions to the five-year limit, including initial enlistments lasting more than five years; periodic National Guard and Reserve training duty; and involuntary active-duty extensions and recalls, especially during a time of national emergency. USERRA makes clear that reemployment protection does not depend on the timing, frequency, duration, or nature of an individual's service, as long as the basic eligibility criteria are met.

USERRA provides protection for disabled veterans, requiring employers to make reasonable efforts to accommodate the disability. Service members convalescing from injuries received during service or training may have up to two years from the date of completion of service to return to their jobs or apply for reemployment.

USERRA requires that returning service members be reemployed in the job that they would have attained had they not been absent for military service (the long-standing "escalator" principle), with the same seniority, status, and pay—as well as other rights and benefits determined by seniority. USERRA also requires that reasonable efforts (such as training or retraining) be made to enable returning service members to refresh or upgrade their skills to help them qualify for reemployment.

USERRA also provides for alternative reemployment positions if the service member cannot qualify for the "escalator" position. While individuals are performing military service they are deemed to be on a furlough or leave of absence and entitled to the non-seniority rights accorded other individuals on non-military leaves of absence.

Health and pension plan coverage for service members is provided for by USERRA. Individuals performing military duty of more than 30 days may elect to continue employer-sponsored health care for up to 24 months—but they may be required to pay up to 102 percent of the full premium.

For military service of less than 31 days, health care coverage is provided as if the service member had remained employed. USERRA clarifies pension plan coverage by clearing stating that all pension plans are protected.

The period an individual has to make application for reemployment or report back to work after military service is based on time spent on military duty. For service of less than 31 days, the service member must return at the beginning of the next regularly scheduled work period on the first full day after release from service, taking into account safe travel home plus an eight-hour rest period.

For service of more than 30 days but less than 181 days, the service member must submit an application for reemployment within 14 days of release from service. For service of more than 180 days, an application for reemployment must be submitted within 90 days of release from service.

USERRA also requires that service members provide advance written or verbal notice to their employers for all military duty unless giving notice is impossible, unreasonable, or precluded by military necessity. An employee should provide notice as far in advance as is reasonable under the circumstances. Additionally, service members are able—but are not required—to use accrued vacation or annual leave while performing military duty.

State Law

Laws vary from state to state but some state laws prohibit an employer from terminating the employment of an employee who is a member of the state military forces because the employee is ordered to authorized training or duty by a proper authority.

For example, the employee may be entitled to return to the same employment held when ordered to training or duty and may not be subjected to loss of time, efficiency rating, vacation time, or any benefit of employment during or because of the absence. The employee may be required to give written or actual notice of intent to return to employment as soon as practical after release from duty.

In Texas, both federal and state laws provide protections for service members and veterans regarding their employment rights. Federally, the Uniformed Services Employment and Reemployment Rights Act (USERRA) offers comprehensive protections, including job reinstatement after military service, protection against workplace discrimination due to military service, accommodation for disabilities incurred during service, and continuation of health and pension benefits. USERRA applies to all employers in the United States and covers all service members and veterans, with specific provisions for reemployment based on the duration of military service and requirements for advance notice to employers. Under USERRA, service members have reemployment rights for up to five years of military service, with certain exceptions allowing for longer periods. Texas state law complements these protections by prohibiting employers from terminating employees who are members of the state military forces due to their required attendance at authorized training or duty. Texas service members are entitled to return to their same employment position, without loss of benefits or efficiency ratings, and must provide notice of their intent to return to work as soon as practical after their military duty ends.

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