Employment: USERRA Rights - Is Verbal Notive of the Need for Leave Sufficient?
The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects the employment rights of civilians who serve in the uniformed services. The purposes of USERRA are to encourage non-career uniformed service, provide prompt reemployment upon completion of service, and prohibit discrimination as a result of service. USERRA provides that when a former employee returns from service, he has a right to be reemployed in his civilian job if:
he, or someone on his behalf, gave the employer notice of his service;
he had 5 years or less of cumulative service while employed by the particular employer;
he applied for reemployment in a timely manner after conclusion of service; and
he was not separated from service with a disqualifying discharge.
If the former employee meets these qualifications, he must be restored to the job he would have attained if he had not been absent due to military service, or a comparable job.
Recently, the Oklahoma Attorney General issued an Opinion on the USERRA notice provisions. The specific question posed to the Attorney General was:
May a municipality require written notice from an employee, either by an ordinance, a personnel manual or other means, that the employee has been called to military service in order for the employee to be able to return to covered employment?
The question arose because Oklahoma municipalities are subject to the Oklahoma Militia Code, in addition to USERRA, and the Militia Code is silent on this point.
In response to the question, the Attorney General first determined that USERRA, by its own language, preempts any state law on the subject of reemployment rights. In addition, the Attorney General concluded that the clear language of USERRA provides that the employee could give either "written or verbal" notice of impending service. Failure to give written notice, therefore, will not disqualify a former employee from the right to reemployment.
Although the Attorney General's Opinion responded to a very narrow question concerning the notice a municipality may require of employees departing for uniformed service, it appears to reflect an accurate interpretation of USERRA.
Because there is no case law under USERRA which would lead to a different conclusion, we recommend that all employers be prepared to accept verbal notice of impending uniform service.
By Rebecca M. Fowler, firstname.lastname@example.org