National Guard and Reservist Job Security in State Governments
Job Security for Those Serving in National Guard and Reserve
Gaps in USERRA Protection
Job security is closely tied to overall well-being. When a job is threatened or lost due to unclear or non-existing regulations, systems that protect service members need to be improved.
Populations within the military perpetually fall in “gray areas.” Unclear regulations should not exist in the realm of job security for National Guard members and Reservists.
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) protects the employment rights of individuals who leave a position of employment to fulfill military service commitments. USERRA Applies to service members including:
- Marine Corps
- Air Force
- Coast Guard
- Public Health Service commissioned corps
- Reserve components of the above services
Generally, an employer must re-employ service members returning from military service commitments such as active duty service, training, funeral honors duty, and fitness examinations.
USERRA and equal employment opportunity laws prohibit discrimination in employment decisions based on veteran status.
USERRA applies to virtually all U.S. employers – including states (and their political subdivisions), the District of Columbia, the Commonwealth of Puerto Rico, and United States territories. USERRA supersedes state laws unless the state laws are more generous.
In a McClatchy Washington Bureau article on Task & Purpose, however, Tara Copp explains that the U.S. Supreme Court asked the Texas attorney general’s office why USERRA protections should not extend to states. This dialogue was triggered by the case Le Roy Torres v. The Texas Department of Public Safety.
One of hundreds of thousands of Americans with National Guard or reservist experience working in a state or local government job, Le Roy Torres was forced to resign in 2012. After a 12-month deployment in Iraq, where the former Texas state trooper was exposed to toxic ash from an open-air pit, he was not able to perform former duties. Torres was also not offered an alternative job to accommodate his condition, according to the Copp article.
State Law and USERRA
The Torres case highlights a situation where discrepancies between state and federal regulations can have a negative impact.
The Reserve Organization of America explains that USERRA supersedes any state laws unless the state laws provide more generous benefits than USERRA. This website provides an index of state laws – some of which offer more generous benefits than USERRA and some that offer significantly less.
It has also been noted that the accuracy with which courts have interpreted USERRA is debatable.
Improving Laws Protecting Jobs
USERRA has a long history, rooted in the Selective Training and Service Act of 1940. This legislation provided the first reemployment rights for service members and has evolved continuously over the last 80 years.
Since 1994, however, USERRA has not undergone major changes. As long as unclear regulations continue to exist, improving protections for National Guard members and reservists needs to continue.
Will the U.S. Supreme Court hear the Torres case? If so, what will the decision mean for the rights of National Guard members and reservists in state government jobs?
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