FEBRUARY 2025 | 23 THE OKLAHOMA BAR JOURNAL 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. 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.
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