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Does USERRA Apply to State Employees?

Posted by David P. Martin | May 23, 2023 | 0 Comments

The Uniformed Services Employment and Reemployment Rights Act of 1994 “ 38 U.S.C. §4301 et seq, commonly called USERRA, provides broad protection for service members and private jobs to reclaim their jobs upon return. In fact, generally speaking, the veteran must not be penalized in any way for an absence from work due to serving in the military, even on matters of benefits or seniority. However, what if the employer is a state agency? Such as the Texas Department of Public Safety?

Despite the admonition not to mess with Texas, LeRoy Torres did just that when he filed a lawsuit against the state when he returned from military service with a disability. The state refused to accommodate him for his service-related disability.

Mr. Torres was a state trooper in the well-respected Texas Department of Public Safety. He was also in the Army reserves when he was called to duty during the war in Iraq. While serving, he was exposed to some toxic burn pits, which harmed his lungs. After that exposure, just breathing was very difficult. He was honorably discharged from the military and returned to Texas to resume his employment.

However, upon his return, he found that due to his breathing difficulty, he could no longer perform his duties as a state trooper. He asked his state employer to use reasonable efforts to accommodate the disability or find an equivalent position or the nearest approximation of a position that could allow him to continue to work. However, the state department refused, forcing Mr. Torres to file a lawsuit in federal court.

The state immediately sought to dismiss the matter contending that it was not bound by the same rules as a private employer and did not have any obligation to accommodate Mr. Torres. It had sovereign immunity from such a lawsuit. The trial court disagreed with Texas, but on appeal, the circuit court reversed that decision. Mr. Torres then petitioned the United States Supreme Court for certiorari. The U.S. Supreme Court granted that. Torres v. Texas Department of Public Safety, No. 20-603 (June 29, 2022) resulted.

In a 5 to 4 opinion, the Supreme Court narrowly agreed that Mr. Torres has a right to proceed with his lawsuit. It held that by ratifying the United States Constitution, the states agreed that sovereign immunity would yield to the national power to raise and support armies and navies. That power included the right to authorize private damages lawsuits against nonconsenting states as called for by USERRA. This waiver was referred to as a structural waiver. Accordingly, Mr. Torres could continue with his lawsuit and seek damages from the state. So, the state is liable for failing to follow the requirements of USERRA. The bottom line lesson for me is – Do not mess with the military.

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David P. Martin

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