Layoffs have been hitting Texans hard: from El Paso to Houston. The Worker Adjustment and Retraining Notification Act (WARN) requires employers to give laid-off employees adequate notice to prepare for their job loss. WARN does not, however, make any layoffs illegal. Most layoffs in Texas are completely legal because this is an at-will employment state. But it is still possible to fire someone in Texas for an illegal reason. And when a layoff is used as pretext to cover up another, unlawful reason for firing an employee, the layoff is unlawful in that case.

Members of the uniformed services have additional protections under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA)—including during a layoff or plant closure. Employers must not discriminate against an employee because of their service (38 U.S.C. §4311). This includes past service, a current service obligation, or application to serve in future.

Special Considerations for Military Facing Layoffs

If you are a current or former uniformed service member, you have enhanced employment rights under USERRA. In addition to protecting the jobs of those who leave to serve, USERRA guarantees service members the benefits and privileges they would have earned if service had not interrupted their employment (38 U.S.C. §4316).

USERRA covers those in the uniformed services for periods of service—past, present, and future. But the scope of service and related activities USERRA covers is broad and extends beyond active duty. Under USERRA, any of the following may qualify as protected activity:

• Active duty
• Active-duty or inactive-duty training
• National Guard duty (fulltime)
• State active duty (14 days or longer)
• Providing assistance during a national disaster or public health emergency
• Fitness-for-service examinations
• Funeral honors
• Application for service
• Holding a service obligation
• Assisting in a USERRA investigation

Whom Does USERRA Protect?

USERRA protects military service members, including:

• Armed Forces (Army, Navy, Air Force, Marine Corps, and Coast Guard)
• Army National Guard
• Air National Guard
• Army Reserve, Naval Reserve, Air Force Reserve, Marine Corps Reserve, and Coast Guard Reserve

In addition to the military, USERRA also applies to those serving in the following:

• National Oceanic and Atmospheric Administration officer corps
• Federal Emergency Management Agency service
• National Urban Search and Rescue Response System

USERRA also covers those serving in any other position designated by the President during a national emergency.

Notably, USERRA protects any employee who assists in a USERRA investigation, not only service members (38 U.S.C. §4311).

Special Considerations for Service Members During Layoffs

USERRA may offer the following protections to service members during a layoff or plant closure.

Discrimination

USERRA prohibits employers from firing an employee because of their service—past, present, or future—including service obligation or applying to serve (38 U.S.C. §4311). If your inclusion in a layoff is motivated by your military service, application for service, or service obligation, your termination may be unlawful.

Escalator Principle

USERRA guarantees service members the benefits and privileges they would have earned if service had not interrupted their employment (38 U.S.C. §4316). If you left for qualifying service, you may be entitled to additional benefits like:

• Severance benefits
• Unemployment benefits
• Preferential status during a layoff.

If workers are laid off according to years served, your years of service to your employer should include any qualifying uniformed service as well. And if more senior employees receive a more beneficial severance package, make sure your severance benefits appropriately reflect your service time.

Note that the escalator moves both ways: if your job classification conforms to USERRA requirements and results in your being included in a layoff, that is lawful under USERRA (20 CFR 1002.194).

Retaliation

If you assert your USERRA rights or participate in another employee’s USERRA investigation, and you are then selected for a layoff, it is possible your protected USERRA activity was a motivating factor. This would make your layoff unlawful. Employees need not be a member of the uniformed services to qualify for retaliation protections under USERRA.

Scope of Coverage

While employment protections like the WARN Act only apply to employers with a certain number of employees, USERRA applies to most employers, whether private, public, state, or federal.

What to do if you suspect a layoff is coming?

Consider taking proactive steps if you are worried you may be laid off—especially if you recently engaged in protected activity, like qualifying uniformed service, participating in a USERRA investigation, or reporting/experiencing unlawful discrimination. It is possible you will lose access to work accounts and devices with little to no warning. Compile documentary evidence that could support your claim, like positive performance reviews and email correspondence. It may be easier to establish a clear and accurate timeline of relevant events before losing access to your work accounts. Consult an employment attorney before taking action or removing information from your workplace in a way that might expose you to liability.

Texas employment is subject to laws and regulations that differ from those in other states. USERRA procedural requirements and standards of proof further differ significantly from other federal or state employment statutes. Consulting with an attorney versed in both military matters and employment law can make all the difference. Tully Rinckey’s team of dedicated employment attorneys and military law attorneys are available to assist you today. Please call (888) 617-0477 to schedule a consultation, or schedule a consultation online.

As Managing Partner of Tully Rinckey PLLC’s Houston office, Sean oversees all of the office’s operations while concentrating his practice on military law; routinely handling cases involving Article 15s, letters of reprimand, courts-martial and officer/enlisted separation proceedings. Sean also handles federal labor and employment law cases and security clearance representation. He is also a member of the National Security Lawyers Association (NSLA). He can be reached at 8885294543 or at info@tullylegal.com.