As more of New Mexico’s National Guard members or reservists are called to active duty, employers should be aware that state and federal laws provide strong protection to employees and job candidates who serve in the armed forces or the National Guard.
For example, under federal law and providing certain conditions are met an honorably discharged veteran has a right to full reemployment, and cannot be laid off for one year.
This article summarizes the federal and New Mexico laws. If your business has employees in other states, the laws in those states should be reviewed to see if they address this issue.
The federal law is the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), and it applies to all organizations that have at least one paid employee.
Under the law, employers may not discriminate against any applicant or employee who is, or has been, a member of the U.S. armed forces or the National Guard on the basis of the person being a member of those uniformed services.
Employees are entitled to up to five years of leave for military service (plus any additional obligated time), provided that the employee gives the employer advance notice of the need for the leave (unless advance notice is impossible or unreasonable). This time period may be extended if the employee is hospitalized or recovering from a service-related illness or injury. The employee may elect to use accrued paid vacation, annual or similar leave during the military service; however, the employer cannot require the employee to use paid leave.
If the employee is honorably discharged, and requests reemployment within the applicable time period, the employer must reemploy the person after the military service has ended. The time period for requesting reemployment ranges from the next work day after the military service has ended, up to 90 days after the military service has ended, depending upon the length of the military service.
The employee must be reemployed in the position with the same seniority, status, pay, benefits and other rights as if he or she was continuously employed during the leave (or be reemployed in a similar position if the military service exceeded 90 days); except if the employee is not qualified for that position, he or she must be reemployed in the position he or she had when the leave commenced. The employer does not have to reemploy the person: (1) if the employer’s circumstances have changed such that reemployment is impossible or unreasonable; (2) if reemployment would cause an undue hardship on the employer; or (3) if, before taking the leave, the employee was working in a temporary, nonrecurring position, and there was no reasonable expectation that his or her employment would continue “indefinitely or for a significant period.” The employer will have the burden of proving that one of these exceptions applies. Employers must provide a reasonable accommodation to employees who suffer a disability during their military service, or who have a disability aggravated during their military service.
If the employer pays a portion of the employee health plan costs for employees on other types of leaves, the employer must also do so for employees on military leave, for a period of up to 18 months.
A person who is reemployed after military service cannot be discharged, except for cause: (1) within one year of the reemployment if the person served in the military for more than 180 days; or (2) within 180 days of the reemployment if the person served for 30 to 180 days.
If an employer violates the provisions of USERRA, the employee may file a lawsuit, or file a complaint with the Secretary of Labor, who will investigate the complaint. If the Secretary believes that a violation has occurred, the Secretary will attempt to ensure that the employer complies with the law. If that effort is unsuccessful, the Secretary will notify the employee of his or her right to request that the Attorney General bring an action against the employer on his or her behalf, or that the employee may initiate his or her own lawsuit. If the employer loses the lawsuit, the court may order the employer: (1) to comply with the law; (2) to pay the employee his or her lost wages or benefits as damages; (3) to pay double damages to the employee if the court finds that the employer’s failure to comply with the law was willful; and/or (4) to pay the employee’s attorneys fees and costs if he or she obtained private counsel. The employer is not entitled to recover its attorneys’ fees and costs even if the employer prevails in the lawsuit.
New Mexico law prohibits employers from discharging, or refusing to hire, any person based on that person being an officer or enlisted member of the military forces of the state. The employee must be reemployed in his or her previous position (or a similar position) with the same status, pay and seniority, if he or she is still qualified to perform those duties. Willful violation of these provisions is a misdemeanor punishable by a jail term of less than one year or to the payment of a fine of up to $1,000, or both.
New Mexico law also requires public employers to permit employees to take up to 15 days per year of unpaid leave for military training in the National Guard or reserve forces of the United States; and unlimited leave if deemed necessary by the governor of New Mexico.
