Monday, May 29, 2006

Veteran Reemployment Notice Issues

Images_37 A civilian employee called to military duty must provide two types of notice to her employer if she wishes to return to her military job: she must first notify her employer that she is leaving, and then later she must later notify her employer that she is returning.  Heather E. DePremio discusses these notice issues in The War Within the War: Notice Issues for Veteran Reemployment, available on ssrn:

Three federal statutes provide reemployment rights to veterans called to duty who later seek to return to their original non-military jobs. The statutes require such a veteran to provide her non-military employer with two types of notice. First, the veteran must provide notice prior to leaving for military duty. Second, the veteran must provide notice when military duty is complete and the wishes to return to her original job.

Unfortunately, the applicable statutes and regulations provide little indication of what constitutes proper notice, other than that the notice must be “adequate” or “reasonable.” Not surprisingly, court decisions are inconsistent. The resulting indeterminacy disserves both employers and returning veterans. Employers cannot proactively implement reemployment policies, and instead must react to demands for reemployment on a case-by-case basis. Returning veterans may not know until they appear for work whether they still have a job.

This article examines in detail both the pre- and post-deployment notice obligations imposed by the federal statutes. It proposes that the federal statutes be amended to expressly enumerate the factors that courts will consider in evaluating notice. These factors should include the length of the veteran’s deployment, the veteran’s position within the company, and the (in)ability of the veteran to provide notice due to military commitments. Enumerating these factors in the statute will provide employers and returning veterans with better guidance regarding the adequacy of notice, and should result in more consistent case outcomes.

All three veteran reemployment right statutes were passed at times when the large numbers of veterans returning from major wars created unanticipated problems to which Congress was forced to react. There currently are more than 125,000 reservists on active duty, and another 2.6 million soldiers in the U.S. military. Congress would serve these prospective veterans well by acting proactively to address the notice issue, so both these servicemembers and employers will know what to expect when the servicemembers return.

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