LAW REVIEW 1096
Prior Notice to Civilian Employer - Part 2
By Captain Samuel F. Wright, JAGC, USN
188.8.131.52—USERRA Applicability to Regular Military
184.108.40.206—Left Job for Service and Gave Prior Notice
Q: I own and
operate a company in Guam. We have 300
employees. By the standards of Guam,
that makes us a big company. Three of
the employees (let’s call them Bob Jones, Mary Smith, and Steve Williams) did
not show up for work on Monday. In
Tuesday’s newspaper, there was a long article about them, with a photograph of
the three of them boarding an airplane to travel to Army boot camp. It seems that all three enlisted some months
ago, without consulting me or even informing me.
Jones gave me no notice whatsoever. I saw him late Friday afternoon, as he was
leaving our premises at the end of his shift.
He said nothing to me about not being at work on Monday. On that same Friday, Smith told me that she
was quitting, but she said nothing about joining the Army. Williams told me that he was quitting and
that he was joining the Army. He told me
that he had firmly decided to make the Army his career, and that he might be
back to Guam in about 25 years, when he retires.
I have read about the Uniformed Services Employment
and Reemployment Rights Act (USERRA).
Does that law apply here in Guam?
Most of the material I have seen about USERRA relates to members of the
National Guard and Reserve. My three
employees joined the Regular Army, not the Army Reserve or Army National
Guard. Does USERRA apply to Regular Army
service? Is it possible that Jones,
Smith, and Williams will have the right to reemployment with my company at some
A: First, let me assure you that USERRA applies in Guam
just as it applies in Kansas. Guam is a
U.S. territory, with a U.S. District Court. Second, the federal reemployment
statute has always applied to regular military service and is not limited to
National Guard and Reserve service. I
invite your attention to Law Review 0719 (May 2007), available at www.roa.org/law_review. At that site,
you will find more than 750 articles about USERRA and other laws that are
particularly pertinent to those who serve our nation in uniform. You will also find a detailed subject index
and a search function, to facilitate finding articles about very specific topics.
As I explained in Law Review
0766 and other articles, an individual must meet five eligibility criteria to
have the right to reemployment under USERRA:
Must have left the civilian job for the
purpose of performing voluntary or involuntary service in the uniformed
services. The period of service can be
anything from five hours (one drill period for a National Guard or Reserve
member) to five years or more of full-time voluntary active duty.
Must have given
the employer prior oral or written notice.
cumulative period or periods of uniformed service (with respect to the employer
relationship for which the individual seeks reemployment) must not have
exceeded five years. All involuntary
service and some voluntary service are exempted from the computation of the
five-year limit. Please see Law Review
201 for a definitive discussion of what counts and what does not count.
Must have been
released from the period of service without having received a punitive or other
than honorable discharge.
Must have made a
timely application for reemployment after release from the period of
service. After a period of more than 180
days of service, the individual has 90 days to apply for reemployment. Shorter deadlines apply after shorter periods
It is necessary to meet all
five of these conditions to have the right to reemployment. It appears that Jones and Smith will not have
the right to reemployment, because they failed to give you oral or written
notice that they were leaving their jobs for the purpose of performing
Section 4312(a)(1) provides
that the notice to the civilian employer may be provided by the individual who
is to perform service or by an appropriate officer of the uniformed service in
which the service is to be performed.
Perhaps the Army recruiter sent you a postcard or e-mail informing you
that Jones and Smith had enlisted in the Army and would be leaving their jobs
to report to boot camp. If so, that
notice from the recruiter would satisfy the requirements of section 4312(a)(1).
Section 4312(b) provides that
prior notice is not required in cases where it is precluded by military
necessity or otherwise impossible or unreasonable. It seems most unlikely that this exception to
the notice requirement would apply to Jones or Smith.
It seems clear that Jones and Smith will not
have reemployment rights, because they failed to give you advance notice that
they were leaving their jobs for service.
Williams, however, will have reemployment rights, provided he meets the
other four eligibility criteria. His use
of the word “quit” or “resign” when giving you notice does not defeat his right
to reemployment. Please see Law Review
63, and please see Law Review 1095 (the immediately preceding article in our
chronological index) for a definitive discussion of USERRA’s prior notice
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