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The Supreme Court recently ruled 5-4 that states are not exempt from providing military veterans with employment and reemployment rights granted under federal law. The June 29, 2022, decision in Torres v Texas Department of Public Safety allows a veteran to continue with a lawsuit against the state, which he says violated his protections under the Uniformed Services Employment and Reemployment Rights Act (USERRA).

According to the case summary:

“Le Roy Torres enlisted in the Army Reserves in 1989. In 2007, he was called to active duty and deployed to Iraq. While serving, Torres was exposed to toxic burn pits, a method of garbage disposal that sets open fire to all manner of trash, human waste, and military equipment. Torres received an honorable discharge. But he returned home with constrictive bronchitis, a respiratory condition that narrowed his airways and made breathing difficult. These ailments, Torres says, left him unable to work his old job as a state trooper. Torres asked his former employer, respondent Texas Department of Public Safety (Texas), to accommodate his condition by reemploying him in a different role. Texas refused. So Torres sued Texas in state court to enforce his rights under USERRA.”

The Supreme Court explained that a standing military is a power granted in the Constitution, and so leave granted to anyone serving in the military is provided under that power. That includes protection under USERRA, which is a federal law that extends to accommodating an employee returning to work after being absent while on active duty in the military. There are times when the federal government cannot compel a state government to follow certain laws due to sovereign immunity, such as under wage and hour laws; keep in mind that municipalities are not necessarily protected by sovereign immunity. But Justice Stephen Breyer wrote in the opinion of the court, “Text, history, and precedent show that the States, in coming together to form a Union, agreed to sacrifice their sovereign immunity for the good of the common defense.”

If a government employer has questions about the laws that apply to them, Employers Council can help. Members may view our online resources and contact us with questions.