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LAW REVIEW 1095
Prior Notice to Civilian Employer
By Captain Samuel F. Wright, JAGC, USN
(Ret.)
1.3.1.1—Left Job for Service and Gave Prior Notice
“Subject to subsections (b), (c), and
(d) and section 4304, any person whose absence from a position of civilian
employment is necessitated by reason of service in the uniformed services shall
be entitled to reemployment rights and benefits and other employment benefits
of this chapter if—(1) the person (or an appropriate officer of the uniformed
service in which such service is performed) has given advance written or verbal
notice of such service to such person’s employer.” 38 U.S.C. 4312(a)(1).
“No notice is required under subsection
(a)(1) if the giving of such notice is precluded by military necessity or,
under all the relevant circumstances, the giving of such notice is otherwise
impossible or unreasonable. A determination
of military necessity for the purposes of this subsection shall be made
pursuant to regulations prescribed by the Secretary of Defense and shall not be
subject to judicial review.” 38 U.S.C.
4312(b).
Congress enacted the
Uniformed Services Employment and Reemployment Rights Act (USERRA) in 1994, to
replace the Veterans’ Reemployment Rights Act (VRRA), which goes back to
1940. USERRA’s legislative history
explains the requirement for the person leaving a civilian job for uniformed
service to give advance notice to the civilian employer, as follows:
“Section 4312(a)(1) would
generally require an individual who leaves a civilian job for service in the
uniformed services to give written or verbal notice of the forthcoming military
absence from employment to his or her employer.
Under current law [the VRRA], only a member of the Selected Reserve must
notify his or her employer before leaving work for active duty for training or
inactive duty training. See 38 U.S.C. 2024(d). There is no requirement to notify the
employer before leaving for active duty or initial active duty for
training. See Winders v. People Express Airlines, Inc., 595 F. Supp. 1512,
1518 (D.N.J. 1984), affirmed, 770
F.2d 1078 (3rd Cir. 1985). An
individual who does not indicate in any way that he or she is leaving because
of military service would no longer be protected (unless the exception provided
in section 4312(b) is applicable), but an individual who leaves for two or more
reasons, one of which is for military duty, would continue to be protected. See
Adams v. Mobile County Personnel Board, 115 LRRM 2936 (S.D. Ala.
1982). This new notice requirement is
effective 60 days after the enactment of the Committee bill [enacted October
13, 1994, so effective December 12, 1994] and applies only to persons who leave
their jobs for military service after that date. The notice requirement of current section
2024(d) of title 38 would continue in effect during that 60-day period.
“Section 4312(b) would
provide that the employee is excused from the requirement to give his or her
employer advance notice of military leave if doing so is impossible or
unreasonable because of military necessity or for other legitimate
reasons. During the 1983 Grenada
operation, for example, members of the National Guard and Reserve were called to
active duty with little notice, and notifying their civilian employers was
impossible for many individuals without jeopardizing military security. It is also made clear, in unambiguous
language, that the determination as to whether military necessity precluded
notification shall be made by the uniformed services and shall not be subject
to judicial review.
“The Committee [House
Committee on Veterans’ Affairs] believes that the employee should make every
effort, when possible, to give timely notice.
The issue of timely notice should be considered on a case-by-case
basis. In the event that an employee is
notified by military authorities at the last minute of impending military duty,
resulting short notice given to the employer should be considered timely. On the other hand, last-minute notice that
could have been given earlier by the employee but unjustifiably not given, and
which causes severe disruption to the employer’s operation, should be viewed
unfavorably. Lack of timely notification
which does not result in harm to the employer should not be a sufficient basis
to deny reemployment rights.
The Committee does not intend
that the requirement to give notice to one’s employer in advance of service in
the uniformed services be construed to require the employee to decide, at the
time the person leaves a job, whether he or she will seek reemployment upon
release from active service. One of the
basic purposes of the reemployment statute is to maintain the servicemember’s
civilian job as an ‘unburned bridge.’
Not until the individual’s discharge or release from service and/or
transportation time back home, which triggers the application time, does the
servicemember have to decide whether to recross that bridge. See
Fishgold, supra, 328 U.S. at 284: ‘He is not pressed for a decision
immediately on his discharge, but has the opportunity to make plans for the
future and readjust himself to civilian life.”
[Fishgold v. Sullivan Drydock
& Repair Corp., 328 U.S. 275 (1946).]
House Rep. No. 103-65, 1994 United
States Code Congressional & Administrative News 2449, 2458-59.
Section 4331 of USERRA, 38
U.S.C. 4331, gives the Secretary of Labor the authority to promulgate
regulations about the application of USERRA to state and local governments and
private employers. The Secretary
exercised that authority and published the final USERRA regulations in the Federal Register on December 19,
2005. The regulations are codified in
title 20 of the Code of Federal Regulations (C.F.R.), Part 1002. Four sections of the regulations address the
requirement to give notice to one’s employer prior to absence from work
necessitated by military service, as follows:
§ 1002.85 Must
the employee give advance notice to the employer of his or her service in the
uniformed services?
(a) Yes. The employee, or an appropriate
officer of the uniformed service in which his or her service is to be
performed, must notify the employer that the employee intends to leave the
employment position to perform service in the uniformed services, with certain
exceptions described below. In cases in which an employee is employed by more
than one employer, the employee, or an appropriate office of the uniformed
service in which his or her service is to be performed, must notify each
employer that the employee intends to leave the employment position to perform
service in the uniformed services, with certain exceptions described below.
(b) The Department of Defense USERRA
regulations at 32 CFR 104.3 provide that an “appropriate officer” can give
notice on the employee's behalf. An “appropriate officer” is a commissioned,
warrant, or non-commissioned officer authorized to give such notice by the
military service concerned.
(c) The employee's notice to the employer
may be either verbal or written. The notice may be informal and does not need
to follow any particular format.
(d) Although USERRA does not specify how
far in advance notice must be given to the employer, an employee should provide
notice as far in advance as is reasonable under the circumstances. In
regulations promulgated by the Department of Defense under USERRA, 32 CFR
104.6(a)(2)(i)(B), the Defense Department “strongly recommends that advance
notice to civilian employers be provided at least 30 days prior to departure
for uniformed service when it is feasible to do so.”
20 C.F.R. 1002.85 (bold
question in original).
§ 1002.86 When
is the employee excused from giving advance notice of service in the uniformed
services?
The employee is required to give advance notice of pending
service unless giving such notice is prevented by military necessity, or is
otherwise impossible or unreasonable under all the circumstances.
(a) Only a designated authority can make a determination of
“military necessity,” and such a determination is not subject to judicial
review. Guidelines for defining “military necessity” appear in regulations
issued by the Department of Defense at 32 CFR 104.3. In general, these
regulations cover situations where a mission, operation, exercise or
requirement is classified, or could be compromised or otherwise adversely
affected by public knowledge. In certain cases, the Secretary of Homeland
Security, in consultation with the Secretary of Defense, can make a
determination that giving of notice by intermittent disaster-response
appointees of the National Disaster Medical System is precluded by “military
necessity.” See 42 U.S.C. 300hh–11(e)(3)(B).
(b) It may be impossible or unreasonable to give advance notice
under certain circumstances. Such circumstances may include the unavailability
of the employee's employer or the employer's representative, or a requirement
that the employee report for uniformed service in an extremely short period of
time.
20 C.F.R. 1002.86 (bold question in original).
§ 1002.87 Is
the employee required to get permission from his or her employer before leaving
to perform service in the uniformed services?
No. The employee is not required to ask for or get his or her
employer's permission to leave to perform service in the uniformed services.
The employee is only required to give the employer notice of pending service.
20 C.F.R. 1002.87 (bold question in original).
§ 1002.88 Is
the employee required to tell his or her civilian employer that he or she
intends to seek reemployment after completing uniformed service before the
employee leaves to perform service in the uniformed services?
No. When the employee leaves the
employment position to begin a period of service, he or she is not required to
tell the civilian employer that he or she intends to seek reemployment after
completing uniformed service. Even if the employee tells the employer before
entering or completing uniformed service that he or she does not intend to seek
reemployment after completing the uniformed service, the employee does not
forfeit the right to reemployment after completing service. The employee is not
required to decide in advance of leaving the civilian employment position
whether he or she will seek reemployment after completing uniformed service.
20 C.F.R. 1002.88 (bold question in original).
If you have questions, suggestions, or comments, please contact Captain
Samuel F. Wright, JAGC, USN (Ret.) (Director of the Servicemembers’ Law Center)
at swright@roa.org or 800-809-9448, extension 730.
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