I. INTRODUCTION
The purpose of this article is to summarize the “rights” created under Nebraska state law for employees of private employers returning from military duty for reemployment. In addition to the federal Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. 43 (“USERRA”), it is important to remember that both federal and Nebraska state law should also be consulted. The provisions of Nebraska law are found in the Nebraska Military Code (Chapter 55, Article 1).
II. MILITARY LEAVE OF ABSENCE: EMPLOYEE RIGHTS
Neb.Rev.Stat. § 55-161 adopts parts of the federal USERRA, in existence and effective as of January 1, 2001, as Nebraska law. This section applies to all persons employed in the State of Nebraska and to all members performing duty in active service of the state. An employer may make a temporary appointment to fill any vacancy created by the absence of an employee in service and can not be discharged from his or her former or new position without justifiable cause within one year after reinstatement.
The Commissioner of the Nebraska Department of Labor is charged with enforcement of the law. Pursuant to Neb.Rev.Stat. § 55-161.01, any person who feel that his or her employment rights under the provisions of § 55-161 have been violated may file a complaint with the Commissioner of Labor. The complaint is not subject to formal requirements but is sufficient if it identifies the parties involved and the right or rights alleged to have been violated. The commissioner must promptly investigate each such complaint and if he or she finds that the allegations are true, the Commissioner will issue an order to the offending party to grant the complainant of all his or her rights, including the granting of backpay from the date the violation occurred.
If the order has not been complied with within 10 days after its mailing, by registered or certified mail, the commissioner may file suit in the district court for the county in which the alleged violation occurred for a writ of mandamus ordering the granting of the rights wrongfully denied, together with backpay from the date the violation occurred. The suit is to be determined by the court as expeditiously as practicable and the court will enter such order as the evidence shows to be appropriate, including, in cases of flagrant violations of rights, the removal from office or employment of the person or persons responsible when such removal is permitted by the Constitution of the State of Nebraska. In any suit or in appeal from the decision of the district court, the Commissioner of Labor may employ private counsel. A reasonable fee for counsel is allowed by the court in any case in which a decision favorable to the commissioner is rendered.
An employer is not incur liable to any person whose employment is terminated, or whose seniority, status or other employment rights are curtailed, as the result of the granting to a veteran of all the rights assured him or her under Neb.Rev.Stat. § 55-161.
III. REMEDIES FOR NONCOMPLIANCE
If an employer does not comply with the Act, the employee may, at his or her election, bring an action at law for damages for such noncompliance. The employee may also apply to the courts for equitable relief as may be just and proper under the circumstances.
Any person, firm, or organization violating Neb.Rev.Stat. § 55-160 or § 55-161 may be found guilty of a Class IV misdemeanor and, in addition, must restore to the employee all rights of which he or she has been illegally deprived. Any person, firm, or organization, who discharges an employee because of his membership in the National Guard of this state or his fulfillment of military duty in the active service of the state or of the United States, is guilty of a Class IV misdemeanor, and, in addition, must restore the employee to a position of like seniority, status and pay.