By: Jennifer Ward
Last month, the Supreme Court ruled in a 5-4 decision that an army veteran could skirt sovereign immunity and sue the state of Texas for employment discrimination.
Le Roy Torres was employed as a Texas state trooper prior to serving in Iraq. During service, he suffered lung damage from toxic burn pits and received an honorable discharge. When Torres returned home, he informed the Texas Department of Public Safety that his medical condition prevented him from performing his responsibilities as a state trooper and requested to be moved to a different role. His employer refused, and Torres sued under the Uniformed Services Employment and Reemployment Rights Act (USERRA).
The USERRA requires employers to rehire returning service members. Texas argued that sovereign immunity, which prevents states from being sued, also protected Texas from USERRA lawsuits. In the past, the Supreme Court has reinforced states’ claims of sovereign immunity. This time around though, this was not the case.
In the majority opinion, Justice Stephen G. Breyer stressed: “Text, history, and precedent show that the States, in coming together to form a Union, agreed to sacrifice their sovereign immunity for the good of the common defense.”
“Texas’ contrary view would permit States to thwart national military readiness,” Justice Breyer warned. “If a State— or even 25 States—decided to protest a war by refusing to employ returning servicemembers, Congress, on Texas’ telling, would be powerless to authorize private reinstatement suits against those States.”
StraightforWARD Legal Advice:
The Supreme Court’s decision only applies to government agencies, but the decision is also a good reminder for private employers to be wary of USERRA lawsuits. Employers should be aware that the USERRA protects service members in the following circumstances:
- Seeking civilian employment – applicants may not be discriminated against based on past, present, or future service;
- Actively engaged in civilian employment – employees may not be discriminated against for military service;
- Preparing for military deployment – employees must give prior notice of military service (no required time limit);
- Away on military deployment – employers must provide the same benefits that are provided to non-military employees who are on a leave of absence; and
- Returning from military deployment – returning services members are entitled to reemployment under most circumstances:
- Generally, employees must be reinstated/promoted to the position they would have held had they remained employed – this includes benefits
- Additionally, certain service members are protected from termination without cause:
- 31-180 days of service: 6-month protection
- 180+ days of service: 1-year protection
To avoid costly litigation, employers should review policies to ensure USERRA compliance. For help with USERRA compliance, employers should contact Jennifer Ward at 215-647-6601 or firstname.lastname@example.org.