Oklahoma Bar Journal
When Johnny Comes Marching Home: Employment Protection for the Citizen-Soldier
By Robert Don Gifford II
“When we assumed the Soldier we did not lay aside the Citizen.”
– Gen. George Washington[1]
The citizen-soldier, those civilians who also serve part time in the Reserve and National Guard, is a foundational part of our nation going back to 1636 when the first militia was formed at the Massachusetts Bay Colony.[2] After Sept. 11, 2001, the United States workforce went through an adjustment as thousands of employees who were members of the military Reserve and National Guard components were called to active duty. What many may not realize is that 40% of the United States fighting force is comprised of the Reserve and/or National Guard.
For the past 70 years, there has been some form of federal protection for those who have, as Abraham Lincoln stated, “laid aside his civilian pursuits to serve his country in its hour of need.” To further mitigate any hardship, Congress enacted the Uniformed Services Employment and Reemployment Rights Act (USERRA).[3] It is the guarantee from Congress that members of the uniformed services will not suffer negative employment repercussions based on their military service,[4] and it protects members of the Reserve and National Guard from unlawful employment discrimination.[5] USERRA enables citizens to serve by guaranteeing reemployment upon returning from active duty back to civilian life,[6] and it not only covers reemployment rights but also health insurance, pension and any usual fringe benefits following military service.[7]
HISTORY
Workers having trouble with employers is not a new concept and has arisen whenever the country has beckoned its part-time military members.[8] The first legislation by Congress was the Selective Training and Service Act of 1940[9] and later the Military Selective Service Act of 1967,[10] the Vietnam Era Veterans' Readjustment Assistance Act of 1974[11] and the Veterans' Reemployment Rights Act (VRRA).[12] These USERRA predecessors had become cumbersome given the greater responsibilities of reservists in “every phase of military preparedness.”[13]
President George H.W. Bush ordered the first large-scale call-up of reservists, with 228,000 reservists ordered to active duty and an additional 132,000 authorized during the first Gulf War.[14] This substantial mobilization of reservists brought the concern of job protection to the forefront. With concerns regarding those Gulf War veterans returning home and reentering the civilian workforce, Congress proposed USERRA,[15] and it was signed into law by President Bill Clinton on Oct. 13, 1994.[16]
DISCRIMINATION BASED ON MILITARY SERVICE
USERRA prohibits discrimination based on an individual's military service. Specifically, an employer cannot take any action based on a person's current obligations as a member of the uniformed services, prior service in the uniformed services or intent to join the uniformed services. Title 38, United States Code, Chapter 43, §4311 states, “[A] person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.” In addition, when Congress proposed USERRA, it made it clear that any prior case law interpreting the predecessors to USERRA would be applied to current law[17] and noted that previous courts had called for a liberal construction of the statute.[18]
THE LEGAL CONCEPT AND STRUCTURE
“[F]or the benefit of he who has laid aside his civilian pursuits to serve his country in its hour of need.”[19]
The U.S. Department of Labor’s Veterans and Training Service (VETS) enforces cases arising under USERRA. A wronged employee may be entitled to not only reinstatement to their job but also to receive back pay, attorney’s fees and even double damages for a willful violation. Furthermore, the employee servicemember may also seek a private civil action.
A burden-shifting framework is used by the courts to determine whether an employer has violated the statute by discriminating against the “dual-hatted” employee. Under this structure, an employee first bears the burden of proving by a preponderance of the evidence that their military duties were the "substantial or motivating factor" in the employer's actions.[20] In other words, military duty needs to be only one of the reasons for an employment action that is adverse to the employee. The burden then shifts to the employer to prove and rebut, also by a preponderance of the evidence, the adverse action (or inaction) would have been taken in the absence of military service.[21] If the employer meets this burden, the servicemember claimant can only prevail if they establish that the action, or inaction, would not have happened but for the military obligation.[22]
RETALIATION AGAINST NONMILITARY EMPLOYEES FOR ASSISTING
The act also prohibits civilian employers from retaliating against an employee solely because they are trying to enforce those protected rights under USERRA. USERRA also protects those nonmilitary employees from retaliation for assistance in an investigation under the statute. The same burden-shifting framework used to prove discrimination applies to retaliation cases.
ADVANCE NOTICE
The act also specifies certain obligations of the military member as well to invoke its protections. It further mandates that if reasonably possible, an employee called to military service must give advance notice to the civilian employer of activation.[23] The employee (or an appropriate officer from the employee’s military branch) must give advance written or verbal notice to the employer of the employee’s intended absence due to military service.[24] In giving this advance notice, the employee does not have to indicate the expected length of service or whether the servicemember intends to return to their position after service. The employee must inform that civilian employer that they are leaving for military service to have reemployment rights upon completion of that service. Advance notice is not required if giving notice was precluded by military necessity or if giving notice was otherwise unreasonable or impossible.[25]
LENGTH OF SERVICE
The employee's cumulative length of military service generally cannot exceed five years per employer, and the clock is reset with a new civilian employer. Naturally, there are exceptions to the rule – usually those matters that are beyond the control of the employee. The five-year limitation period also does not include the period of military absence before or after military duty to allow for training, counseling or transition of equipment and supplies.
TIMELY APPLICATION FOR REEMPLOYMENT
Upon returning to civilian life, the employee must report or submit a written or oral application for reemployment in a reasonably timely manner. An employee's application for reemployment is deemed timely, depending upon the length of service.
If an employee has served up to 30 days of military duty, the member must report to their employer by the beginning of the first regularly scheduled work period that begins on the next calendar day after allowance for reasonable and safe travel home. If the military duty lasted 31 days to six months, the employee must submit a reemployment application (verbal or written) within 14 calendar days upon completion of military service. If the military service exceeds six months (181 days or more), the application for reemployment must be submitted no later than 90 calendar days after completion of military service. In any event, if the resubmission of a “timely” application is impossible for one reason or another, the application must be submitted as soon as it becomes reasonably possible.
Once these requirements are met, the employee must be promptly reinstated to their employment. While “prompt reemployment” is not defined by statute, USERRA regulations indicate that employment within two weeks of the reapplication is expected. In addition, an employee’s rights are not necessarily and automatically forfeited if the employee does not timely return to work or properly apply for reemployment within the time constraints. In those circumstances, reemployment is not by USERRA, and an employer's rules governing unexcused absences will apply to the employee.
Furthermore, an employee who is reemployed has certain protections from subsequent firing. The employee who served 31 days to six months cannot be discharged within six months of reemployment without cause. The servicemember who was mobilized for more than six months may also not be fired for up to one year of reemployment except “for cause.” This protection concept allows the returning military employee to readjust to civilian employment after a long military mobilization. Cause for removal may be based on two things: an employee’s misconduct or the application of the so-called “escalator principle.” Regardless of the situation, the burden of proving a lawful firing during this grace period falls upon the civilian employer.
REEMPLOYMENT POSITION
As a general principle, the “escalator principle” provides that the citizen-soldier employee must be allowed to be reemployed back to a position where they would have been employed for not the break due to military duty or given the opportunity to be in another position of similar seniority, status and pay. This principle, as by the U.S. Supreme Court in Fishgold v. Sullivan Drydock and Repair, states that the military employee "does not step back on the seniority escalator at the point [the employee] stepped off" but "steps back on at the precise point [the servicemember] would have occupied had [the military member] kept his [civilian] position continuously during [military duty.]”[26]
It is worth noting that while the employment escalator may go up, it also may go down. Therefore, the returning servicemember is also subject to any pay or benefit decreases they would have suffered if they had not been on military leave. Also, an employer is not required to reemploy a servicemember in a position they are not qualified to perform. The employer, however, must make "reasonable efforts" to enable the returning servicemember to qualify for the position. Reasonable efforts have included providing training that does not cause an undue hardship on the employer.
This principle also applies to missed promotional opportunities. An employee coming home from military duty must be elevated with a promotion if there is "reasonable certainty" that it would have occurred but for the obligated absence. A servicemember is not automatically entitled to receive a promotion based on some measure of performance, but the member must be allowed a fair opportunity to compete for a promotion missed because of military service. Any missed promotion must be retroactive to the date it would have occurred had the member's employment not been interrupted by service.
EXCEPTIONS TO THE RULE
There are three statutory exceptions to USERRA’s reemployment requirement that are considered affirmative defenses, with the employer bearing the burden of proof. If the employer's circumstances have so changed as to make reemployment impossible or unreasonable (i.e., reduction in force), USERRA does not apply. Also, if reemployment would impose an undue hardship on the employer, the employer is exempt. The “hardship” is limited in scope, and employers must be cautious and sure when claiming this exemption. Finally, an employer is not required to bring back the employee whose employment was limited in nature for a brief, nonrecurring period with no reasonable expectation of continued employment. To clarify, this does not necessarily mean that a part-time or seasonal employee who is also a member of the National Guard or Reserve is without USERRA protections.
COMPENSATION
Employers are not required to continue their employees on military leave. However, an employee does have the right to use any accrued vacation (paid) leave instead of unpaid military leave.[27] The employer, however, cannot require that the employee use their accrued vacation leave. In addition, an employer is prohibited from reducing the pay of a salaried employee for less than a week’s military leave in accordance with the Fair Labor Standards Act.[28]
BENEFITS
In addition, the National Guard or Reserve military member employee who is covered under a health plan may continue that same health care coverage for themselves and family members for up to 24 months after they are called into military service.[29] The military member and their family will also have coverage from the military medical facilities through TRICARE.
Retirement plans are also covered under USERRA. Those plans cannot treat returning servicemember employees as having a break in time by sole reason of military service and are not required to reapply to qualify for participation.[30] The act requires employers to treat servicemember employees called to military duty as if they were merely on leave and, accordingly, must also provide all other benefits enjoyed by similarly situated employees on leave.[31] Once the employee is reemployed to the civilian job after activation, employers must also provide for a make-up contribution for plan service periods during which the servicemember employee was on active military service.[32]
CONCLUSION
USERRA is meant for “the benefit of he who has laid aside his civilian pursuits to serve his country in its hour of need.”[33] Without the citizen-soldier to answer the call of duty, it would be impossible for the United States to maintain a substantive military force. Congress has provided a tool so that the citizen-soldier does not have to choose between serving in uniform and keeping their job when “Johnny comes marching home.”[34] In the defense of this nation, everyone should make sacrifices. While nonmilitary employers may have their own challenges with losing an employee to a deployment, Congress and the courts have prioritized job security for our citizen-soldiers while trying to do so and being as fair as possible to an employer. As it was when Frederick Douglas told President Abraham Lincoln during the Civil War regarding allowing former slaves to fight, the United States without the Reserve and the National Guard components would be “fighting with [its] right hand behind [its] back.”
For more information and additional resources, visit the Department of Labor website, www.dol.gov.
ABOUT THE AUTHOR
Robert Don Gifford II is an Oklahoma City attorney who began his legal career as an active-duty Army judge advocate (JAG Corps) and remained in the Army Reserve until he retired as a colonel in 2019 with 23 years of active and Reserve service. He is a graduate of the OU College of Law and the U.S. Army War College at Carlisle Barracks, Pennsylvania.
ENDNOTES
[1] Jared Sparks, ed., The Writings of George Washington 13 (1834) (from Answer to an Address of the New York Provincial Congress, June 26, 1775).
[2] Id. (Males between the ages of 16 and 60 were obligated to possess arms, “drill” every week, perform guard duty and defend the colonists against attacks from the Pequot tribe.).
[3] 38 U.S.C. §§4301-4333 (2006 & Supp. 2008).
[4] See id. §4301(a)(1).
[5] See 38 U.S.C. §4301(a)(1)-(3) (individuals who serve in the armed services “shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of” their membership in the uniformed services.).
[6] See id. §4311(a).
[7] “Uniformed services” is not limited only to those serving in the Army, Air Force, Marines and Navy but also the Army and Air National Guard, Coast Guard and Public Health Service commissioned corps, as well as any other category designated by the president in time of war or emergency.
[8] Lucy G. Barber, Marching on Washington: The Forging of an American Political Tradition, (California Press, 1971), p. 75 (2002) (Toward the end of World War I, the “Bonus Marchers,” who were unemployed after serving in the war effort, protested in an attempt to receive an early payment of a promised “bonus” to the veterans for their service – but not yet due for over a decade.).
[9] See H.R. Rep. No. 103-65, at 18-19 (1993), as reprinted in 1994 U.S.C.C.A.N. 2449, 2451-52.
[10] Pub. L. No. 90-40, 81 Stat. 100 (1967) (codified as amended at 50 U.S.C. app. §§451-471 (2006)).
[11] Pub. L. No. 93-508, 88 Stat. 1578 (1974) (codified as amended in scattered sections of 38 U.S.C.); Nichols, 11 F.3d at 162.
[12] Pub. L. No. 93-508, 88 Stat. 1594 (1974).
[13] H.R. Rep. No. 103-65, at 18-19.
[14] Stephen M. Duncan, ROA National Security Report: Gulf War Was a Test of Reserve Components and They Passed, Officer, June 1991, available at https://apps.dtic.mil/sti/tr/pdf/ADA352895.pdf.
[15] See Pub. L. No. 103-353, §2(a), 108 Stat. 3150 (1994) (codified as amended at 38 U.S.C. §§4301-4333 (2006 and Supp. 2008)).
[16] Alexei Oreskovic, “On the Home Front: Call up of Reservists Raises Questions for Employment Bar,” Recorder, Oct. 18, 2001, at 4.
[17] See H.R. Rep. No. 103-65, at 19 (“[T]he Committee wishes to stress that the extensive body of case law that has evolved over that period, to the extent that it is consistent with the provisions of this Act, remains in full force and effect in interpreting these provisions. This is particularly true of the basic principle established by the Supreme Court that the Act is to be ‘liberally construed.’” Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285 (1946); Ala. Power Co. v. Davis, 431 U.S. 581, 584 (1977).
[18] Id.
[19] Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285 (1946).
[20] 38 U.S.C. §4311(c)(1).
[21] Sheehan v. Dept. of the Navy, 240 F.3d 1009, 1013-1014 (Fed. Cir. 2001).
[22] Id.
[23] 20 CFR §102.85.
[24] Id.
[25] 38 U.S.C. §4312.
[26] 328 U.S. 275, 284-85 (1946).
[27] 38 U.S.C. §4316(d).
[28] WH Admin. Op. (Feb. 26, 1965).
[29] 38 U.S.C. §4317(a)(1)(A).
[30] 38 U.S.C. §§4312, 4316(a), 4318; 20 C.F.R. §1002.191.
[31] Id.
[32] 20 C.F.R. §1002.262(c).
[33] Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285 (1946).
[34] “When Johnny Comes Marching Home Again” was a popular Civil War-era song.
Originally published in the Oklahoma Bar Journal – OBJ 96 No. 2 (February 2025)
Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.