By Evan Lange
Under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), employers of every size must give unpaid leave for military service and reemploy you when you return, as long as you gave advance notice, your cumulative service with that employer is generally five years or less, you were not discharged under other-than-honorable conditions, and you report back on time. Returning service members are protected from being fired without cause for one year if they served more than 180 days, or for 180 days if they served 31 to 180 days. Employers also cannot deny hiring, promotion or benefits because of past, current or future military service.
Houston is home to thousands of National Guard members, reservists and veterans, many of them balancing drill weekends, annual training and deployments with civilian jobs. Every year some come home to find their job gone, their position “restructured,” or a manager who isn’t happy about the next set of orders. Federal law gives you strong protection, and it applies to employers of every size.
USERRA protects employees who serve in the Army, Navy, Air Force, Marine Corps, Coast Guard and Space Force, their Reserves, the Army and Air National Guard (for federal training or duty), and the commissioned corps of the Public Health Service. It covers active duty, drills, annual training, fitness-for-duty exams and funeral honors duty.
To keep reemployment rights you generally must:
Military leave can be unpaid, but you can choose to use accrued vacation or PTO. Your employer can’t force you to.
After reemployment, you can’t be discharged except for cause:
The employer has the burden of proving the discharge was reasonable. Service of 30 days or less doesn’t get this “for cause” period, but you’re still protected from discrimination and retaliation because of your service at any time.
Family members caring for a service member may also qualify for up to 26 weeks of military caregiver leave under the FMLA. See also caregiver discrimination.
No. USERRA prohibits employers of any size from firing, refusing to hire or denying promotions or benefits because of military service, and requires reemployment after qualifying service.
No. Military leave under USERRA can be unpaid, but you may choose to use accrued vacation or paid time off. Your employer cannot require you to use it.
For service of 1 to 30 days, report at the next work period after safe travel plus 8 hours of rest. For 31 to 180 days, apply within 14 days. For 181 days or more, apply within 90 days.
After service of more than 180 days, you can only be fired for cause for one year after reemployment. After 31 to 180 days of service, that protection lasts 180 days.
You can contact ESGR for informal mediation, file a complaint with the U.S. Department of Labor’s Veterans’ Employment and Training Service, or bring a lawsuit with a private attorney.
The Lange Firm represents employees in Houston and across Texas, including service members and veterans. Attorney Evan Lange can review your reemployment rights and whether your firing was a wrongful termination or retaliation.
You served your country.
Your job should be there when you come home.
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