LegalFix
Select your state

Employment law

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.


Texas Statutes & Rules

Texas Government Code, Chapter 437 (State Militia), Subchapter B. Rights and Privileges
This statute provides rights and protections for members of the state militia, which includes the Texas National Guard, when they are called into active service.

Under Texas law, members of the state militia who are called to active service are entitled to reemployment rights similar to those provided under USERRA. Employers are required to restore these service members to the position they would have held had they not been absent for military service, with the same pay, seniority, and benefits. Additionally, employers are prohibited from discriminating against individuals because of their membership or service in the state militia.

Texas Labor Code, Chapter 105. Employment Discrimination Against Individuals Required to Attend Military Duty
This statute prohibits employment discrimination against individuals who are obligated to attend military duty.

In Texas, employers are not allowed to terminate the employment of an individual because they are required to attend military duty. The law also prohibits discrimination in employment decisions, such as hiring, promotion, or any benefit of employment, based on an individual's obligation to participate in military service. Employers must allow employees to take leave for military service and must not impose any form of penalty due to their absence for this reason.

Texas Labor Code, Chapter 105. Reemployment Rights of Persons Ordered to Military Duty
This statute outlines the reemployment rights of Texas employees who are ordered to military duty.

Texas employees who leave a position of employment for military duty have the right to be reemployed in their previous job or a position of similar seniority, status, and pay, provided they are still qualified to perform the duties of this position. If they are not qualified due to a disability sustained during service, reasonable efforts must be made to accommodate the disability or to reemploy them in a position they are qualified to perform.

Texas Government Code, Chapter 437 (State Militia), Subchapter F. Leave of Absence for Certain State Officers and Employees
This statute provides leave of absence rights for state officers and employees who are members of the state militia or armed forces reserve.

State officers and employees who are members of the state militia or the armed forces reserve are entitled to a leave of absence from their state employment without loss of time, efficiency rating, vacation time, or salary when engaged in authorized training or duty ordered by proper authority. The leave of absence is limited to 15 days each federal fiscal year.

Texas Education Code, Chapter 51. Military Leave for Students
This statute addresses the rights of students who are members of the Texas National Guard, Texas State Guard, reserve component of the U.S. armed forces, or a member of a state or federally authorized Urban Search and Rescue Team to a leave of absence from their studies for military service.

Students who are members of the aforementioned military organizations are entitled to a leave of absence from their studies for the period of time they are engaged in authorized training or duty. They must be allowed to withdraw or be granted a grade in courses without penalty. Upon completion of military service, they have the right to be readmitted and reenrolled without having to reapply or pay additional application fees.

Federal Statutes & Rules

Uniformed Services Employment and Reemployment Rights Act (USERRA) - 38 U.S.C. §4301 et seq.
USERRA is the primary federal statute that protects the employment and reemployment rights of U.S. service members and veterans.

USERRA ensures that individuals who serve or have served in the Armed Forces, Reserve, National Guard, or other uniformed services are not disadvantaged in their civilian careers because of their service. It mandates that they should be promptly reemployed in their civilian jobs upon return from duty with the same seniority, status, and pay, as well as other rights and benefits determined by seniority. USERRA applies to all U.S. employers, both public and private, and includes protection against discrimination based on military service or obligation. The Act provides for reemployment rights for up to five years of military leave, with certain exceptions allowing for longer periods. It also requires employers to make reasonable accommodations for any service-connected disabilities. If a service member is unable to qualify for their previous position, they must be offered an alternative position that is the nearest approximation to the original position in terms of status and pay. USERRA also addresses health and pension benefits, ensuring coverage during certain periods of military service and clarifying the rights to pension plan benefits. The Act outlines specific time frames within which service members must return to work or apply for reemployment after military service, which varies depending on the length of military service. Additionally, USERRA obligates service members to provide their employers with advance notice of military service, with some exceptions.