THE OKLAHOMA BAR JOURNAL 24 | FEBRUARY 2025 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. 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. 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
RkJQdWJsaXNoZXIy OTk3MQ==