July 2022: Outcome of State Lawsuit Reminds Employers to Not Discriminate Against Veterans Employees Under USERRA

26 Jul

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Update Applicable to:
All employers with employees who are military veterans.

What happened?
On June 29, 2022, the Supreme Court of the United States decided veterans can sue their former employer under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) after the Texas Department of Public Safety (DPS) would not accommodate medical conditions by moving the employee to a different role.

What are the details?
In a 5-4 decision, the Court in Torres v. Texas Department of Public Safety ruled that state employers cannot invoke sovereign immunity as a defense to suits brought under USERRA.

USERRA protects military service members and veterans from employment discrimination based on their service and allows them to regain civilian employment following a period of uniformed service. To invoke USERRA’s protections, if the employer is the state rather than a private employer, the employee may sue in federal court only if, after filing a complaint with the Secretary of Labor, the Department of Justice (DOJ) decides to file suit against the state in the name of the United States. If the DOJ declines to take on the case, USERRA permits the employee to bring action “in a State court of competent jurisdiction in accordance with the laws of the State.”

Although the decision of the case makes it clear that state agencies whose employees have military service obligations must comply with USERRA or potentially face a civil, however, the facts of the case remind all employers — not just state agencies — of an important provision of USERRA. If an employee incurs a service-connected disability upon return to employment, the employer’s obligation goes beyond the typical disability accommodation requirements. If an employer cannot accommodate the employee’s return to the position they would have had. For military service members, the employer must place the employee in a position of “equivalent seniority, status, and pay” if the employee can become qualified for the position. If the employee cannot become qualified for the equivalent position, the employer must place the employee in a position that “most nearly approximates” the equivalent position.

For more information, please see the links below:

Torres v. Texas Department of Public Safety

Article 1Article 2Article 3

What do employers need to do?
Although the decision result of the case applies to State employers, private employers should still review the links provided above and do their best not to discriminate against employees who are military veterans.

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