THE OKLAHOMA BAR JOURNAL 22 | 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. 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
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