Any person who, after having given advance written or verbal notice of an obligation or intention to perform service in the uniformed services to the person's employer, unless notice is precluded by military necessity or is otherwise impossible or unreasonable, since July 1, 1940, has left or leaves a position the person has held, other than a temporary position, in the employ of any employer to enter the armed forces of the United States, an organized reserve or the national guard of this state or any other state or territory of the United States and who serves on active duty and is honorably discharged or released from active duty to complete the person's remaining service in a reserve component or is entitled to a certificate of service, or who terminates service without dishonor, has not had a cumulative period of absence in excess of five years by reason of service in the uniformed services and is still qualified to perform the duties of that position and makes application for reemployment within ninety days after the person is relieved from training and service, or from hospitalization and convalescence continuing after discharge for a period of not more than two years, shall be reemployed as follows:
A. if the person's position was in the employ of a private employer, the employer shall restore the person to that position or to a position of like seniority, status and pay unless the employer's circumstances have so changed as to make it impossible or unreasonable to do so; or
B. if the person's position was in the employ of the state or any political subdivision thereof, the person shall be deemed to meet all the requirements of the Personnel Act [Chapter 10, Article 9 NMSA 1978] as well as all residency requirements or other provisions of law and shall be restored to that position or to a position of like seniority, status and pay.
History: Laws 1941, ch. 10, § 1; 1941 Comp., § 57-701; Laws 1945, ch. 24, § 1; 1953 Comp., § 74-5-1; Laws 1969, ch. 260, § 1; 1971, ch. 163, § 1; 2017, ch. 26, § 2.
ANNOTATIONSCross references. — For veteran's preference in Personnel Act, see 10-9-13.2 NMSA 1978.
The 2017 amendment, effective July 1, 2017, extended employment rights to persons who are members of the military active or reserve components outside of the State of New Mexico, but have civilian employment within the State of New Mexico, and added gender neutral language; in the introductory paragraph, added "after having given advance written or verbal notice of an obligation or intention to perform service in the uniformed services to the person's employer, unless notice is precluded by military necessity or is otherwise impossible or unreasonable", after armed forces of the United States", deleted "national guard or" and added "an", after "organized reserve", added "or the national guard of this state or any other state or territory of the United States", after "who terminates", deleted "his", after "without dishonor", deleted "if an officer", added "has not had a cumulative period of absence in excess of five years by reason of service in the uniformed services", after "perform the duties of", deleted "such" and added "that", after "hospitalization", added "and convalescence", and after "not more than", deleted "one year" and added "two years"; in Subsection A, after the next occurrence of "to", deleted "such" and added "that"; and in Subsection B, after "the state", deleted "of New Mexico", and after "restored to", deleted "such" and added "that".
Sovereign immunity barred USERRA claim against the state. — Article I, Section 8, Clause 11 of the United States Constitution, known as the war powers clause, does not authorize congress to subject the state to private suits for damages in state courts pursuant to the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. §§ 4301 to 4335, absent the state's consent and the Legislature has not waived the state's constitutional immunity to private USERRA suits for damages. Ramirez v. State ex rel. CYFD, 2014-NMCA-057, cert. granted, 2014-NMCERT-005.
Where plaintiff, who was a member of the New Mexico national guard, was employed by the department; plaintiff was deployed to Iraq; upon plaintiff's return from active duty, plaintiff was reemployed by the department in plaintiff's previous position; plaintiff's working relations with plaintiff's supervisors deteriorated and plaintiff's employment was terminated; and filed a suit under Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. §§ 4301 to 4335, alleging that the department discriminated against plaintiff and terminated plaintiff because of plaintiff's military service, plaintiff's claim was barred by state sovereign immunity. Ramirez v. State ex rel. CYFD, 2014-NMCA-057, cert. granted, 2014-NMCERT-005.
Generally. — An "employee," who leaves a position to enter the armed forces of the United States, may remain in the service indefinitely and retain his reemployment rights. No distinction is made between volunteers and draftees under the Veterans' Reemployment Act (Sections 28-15-1 to 28-15-3 NMSA 1978). No distinction is drawn between officers and enlisted personnel under the Veterans' Reemployment Act. 1959 Op. Att'y Gen. No. 59-18.
Scope of benefits. — Volunteers as well as draftees are entitled to the benefits of this act (Sections 28-15-1 to 28-15-3 NMSA 1978). 1942 Op. Att'y Gen. No. 42-4104.
Legislative intent. — The legislative policy indicated by this act (Sections 28-15-1 to 28-15-3 NMSA 1978) is to restore the veteran to his old position whenever possible, and if not, to a position of like seniority, status and pay. 1946 Op. Att'y Gen. No. 46-4832.
Intent regarding Personnel Act. — The language of Subsection B makes it clear that the legislature does not intend for returning veterans seeking reemployment with the state to meet the standards of the Personnel Act. 1969 Op. Att'y Gen. No. 69-108.
Officers of state not affected. — This act (28-15-1 to 28-15-3 NMSA 1978) does not apply to officers of the state of New Mexico or its subdivisions, but only to employees. 1946 Op. Att'y Gen. No. 46-4882.
Time between leaving employment and induction. — An employee who left his employment within a reasonable time before induction without obtaining other employment in the meantime is entitled to reemployment. 1945 Op. Att'y Gen. No. 45-4829.
Effect of return of veteran. — Since contracts are entered into subject to existing statutes, where a teacher is employed to fill a vacancy caused by the absence of a person in the armed forces, his contract is terminated when the veteran returns to his former position. 1945 Op. Att'y Gen. No. 45-4813, 1945 Op. Att'y Gen. No. 45-4818.
Seven-year absence. — A veteran who was employed within the state of New Mexico as a locomotive fireman and locomotive engineer on January 27, 1951, at which time he was called to active service with the United States Air Force, may upon his discharge from military service on January 31, 1958 secure reemployment under Sections 28-15-1 to 28-15-3 NMSA 1978. 1958 Op. Att'y Gen. No. 58-209.
Salary increases. — When a veteran returns to his former position, he is entitled to proportionate salary increases and other benefits, if any, to which other employees who continued in service have become entitled. 1946 Op. Att'y Gen. No. 46-4815, 1946 Op. Att'y Gen. No. 46-4832.
Service credit for retirement purposes. — Section 10-11-6A(1) NMSA 1978 must be interpreted in a manner consistent with the federal and state laws on veteran reemployment rights. If the veteran otherwise qualifies for reemployment and applies within 90 days of the termination of his active duty period, he still may acquire service credit for retirement purposes even though the employer does not actually rehire him until after the ninetieth day. 1988 Op. Att'y Gen. No. 88-24.
Employee more rights than probationer. — If a person contemplated by Subsection B has gained the status of an "employee" as that term is defined by Section 10-9-3 NMSA 1978 and the personnel board rules, he will have additional rights under the state personnel board rules that a "probationer" would not. 1969 Op. Att'y Gen. No. 69-108.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 77 Am. Jur. 2d Veterans and Veterans' Laws § 88 et seq.
Rights of non-civil service public employees, with respect to discharge or dismissal, under state veterans' tenure statutes, 58 A.L.R.2d 960.
When does sale or reorganization exempt business from reemployment requirements of military veterans' reemployment laws (38 USCS §§ 2021 et seq.), 63 A.L.R. Fed. 132.
6 C.J.S. Armed Services §§ 268 to 287.