When National Guard members and reservists deploy, a federal law is supposed to preserve their civilian jobs and benefits. It also includes protections for veterans who get injured in the line of duty, and requires employers to accommodate their disabilities. But in some places, including Texas, veterans who work for state governments can't access those protections.
The Supreme Court recently heard arguments in a Texas case that addresses the inconsistency.
Army reservist LeRoy Torres came back from Iraq in 2008 with severe lung and brain injuries, the result of months he spent living near a massive, open-air burn pit. When he tried to return to his civilian job as a state trooper in Texas, Torres couldn’t keep up.
A chronic cough, extreme fatigue, headaches and memory problems meant he often missed work. But he thought the Texas Highway Patrol would work to accommodate his disability.
“I'm thinking in my head that I'm going to be taken care of,” Torres remembered. “You know, that there are laws that protect us. That with my experience and my education, I'll be able to at least be able to finish my six years that I was hoping to finish with the department.”
But Torres says the agency didn’t accommodate his requests for job modification. He eventually resigned and didn’t get all of the benefits he’d earned. So he sued in state court in 2017, invoking his rights under a federal law called USERRA — the Uniformed Services Employment and Reemployment Rights Act.
Texas officials argue that they worked with Torres and didn’t violate his rights. The state also says it’s immune from the suit. The merits of the case have yet to be weighed in court, as the case has been embroiled in debates over jurisdiction. It is now before the U.S. Supreme Court.
“I just never thought that it was going to be this difficult,” Torres said.
There are a handful of states that won’t allow individuals to sue them under USERRA. At issue is the balance of power between states’ rights and federal authority.
“The underlying issue is one that could potentially affect up to tens of thousands of Reserve and Guard personnel who are employed by state agencies, some of whom have the right to sue their state agencies, some of whom don't,” said Torres’ attorney Brian Lawler.
The 11th Amendment to the Constitution prohibits federal courts from hearing certain lawsuits against states. According to the National Constitution Center, the amendment has also “been interpreted to mean that state courts do not have to hear certain suits against the state, if those suits are based on federal law.”
In recent years, there has been disagreement over whether Congress can abrogate the sovereign immunity of states – or, more specifically, state government employers – in private USERRA cases.
More than a quarter of all USERRA claims are filed against public sector employers, according to the Department of Labor. Suzanna Sherry, professor emerita at Vanderbilt Law School, said the federal government wants to make sure service members can bring those cases.
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“Because otherwise we won't be able to raise an army,” she explained.
“That's the government's main argument for why this particular statute [USERRA] was passed: to ensure that people would feel comfortable joining the Reserves and being called up because they would know that they would come back to a job.”
Officials from the Texas Attorney General’s office wouldn’t comment on the Torres case. But in its brief, Texas agrees that former service members have rights under USERRA. The issue is who gets to sue the state for employment violations.
“Texas is not arguing that Congress can't pass USERRA or that Congress can't tell states that they have to abide by USERRA,” Sherry added. “What they are arguing is you can't enforce USERRA through a private individual suit. You've got to do it some other way.”
Texas argues that individual service members should bring their USERRA complaints to the U.S. Department of Justice, and try to persuade the department to file suit on their behalf. But advocates say those suits rarely happen.
“The DOJ is extremely shorthanded right now, and they don't take most of the cases that come to them,” said Kevin Hollinger, legislative director for the Enlisted Association of the National Guard of the United States. “So it becomes a very large problem very rapidly and it's not easily resolved. Even if it does rise to that level and the DOJ does take it, we're still talking about years for people to get jobs back or to get any form of justice.”
Hollinger co-authored an amicus brief on behalf of Torres along with Reserve Organization of America attorney Scott Felder. They argue that military readiness and retention will suffer if service members can’t reliably access legal remedy through USERRA, and point to the Defense Department’s increasing reliance on Guard and Reserve troops.
LeRoy Torres has long since shelved his dream of returning to work at the Texas Department of Public Safety. His duty right now, he said, is to protect other veterans who face employment violations.
“It's been burdensome,” Torres said. “But knowing that it not only affects me — that it affects my fellow brothers and sisters who have served the dual role — that gives me more momentum to stay in this effort.”
The Supreme Court is due to rule on Torres’ case this summer.
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