Legal Update

Legal Update with Richard Hood

USERRA RIGHTS — WHAT YOU NEED TO KNOW

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) creates federal rights and protections for employees who serve or have served in the uniformed services. In addition, the State of Texas provides its own cause of action for similar claims under the Texas Government Code, which extends protections for Servicemembers to allow for punitive damages. One of the rights afforded under federal and Texas state law is the right to reemployment upon return from a period of service.

In general, an employer must not deny reemployment to an employee based on the employee’s uniformed service. However, many employees don’t know the steps they must take to protect their eligibility under USERRA for reemployment.

First, employees must provide employers advanced notice of their intent to leave employment to perform service in the uniformed services. There is no prescribed method to give notice to an employer. Any verbal or written notice will suffice, although a written record will provide better protection in the event a dispute over reemployment arises. Notice of training or a deployment should be given reasonably in advance. A good rule of thumb is to provide notice at least 30 days prior to departure for service. There is no requirement to notify an employer of intent to seek reemployment upon return from service. Second, an employee must timely return to work or apply for reemployment. Whether an employee must merely return to work or undergo an application process for reemployment depends on the length of service. If the period of service is less than 31 days, an employee must report to work on the next regularly scheduled workday. If the period of service is more than 30 days but less than 181 days, then an employee must apply for reemployment no later than 14 days after completing service. Lastly, if the period of service was greater than 180 days, the deadline to apply is 90 days.

Both federal and state laws provide flexibility when it is time to return to work, but the best practice is to meet prescribed deadlines and keep the boss informed. Keep in mind also that you lose your right to reemployment if your combined periods of service while working for a single employer total more than five years. H

Richard Hood is an Associate Attorney at the law firm of O’Connell West, PLLC. Before attending law school, Richard spent 8 years in the U.S. Army serving as an Infantry Officer. If you would like to know more about your reemployment rights or think you may have a claim, call O’Connell West, PLLC at 512-547-7265.

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