Working World

I am in the National Guard, and am called up for duty from time to time, usually on a regular schedule. Unfortunately, I forgot to let my manager know that I had to serve last weekend (when I was scheduled to work) until two days beforehand. My manager fired me, saying that company rules require more notice for leaves of absence or vacation. He told me in a pretty nasty tone that “just because I’m in the military, doesn’t mean I get special treatment.” I would really like my job back. Do I have a legal leg to stand on?

If you have a legal leg to stand on, it is a feeble one. Although the Uniformed Services Employment and Reemployment Rights Act (USERRA) can help to hold your job during military service, you must give your employer adequate advance notice.

USERRA regulations suggest that an employee should provide notice as far in advance as is reasonable under the circumstances. A Department of Defense regulation "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." 

A service member is excused from giving advance notice of service only where prevented by "military necessity," or where it is otherwise impossible or unreasonable under the circumstances. “Military necessity" covers situations where a mission, operation or exercise is classified or could be compromised by public knowledge. "Impossibility" or "unreasonable under the circumstances” might include a situation where the service member is called up for service in an extremely short period of time.

The employee’s notice to the employer may be either verbal or written, and does not have to follow any particular format. It is always a good idea, however, to provide written notice to avoid disputes.

Unfortunately, it appears in your situation that you knew well in advance of your obligation to serve, but merely forgot to inform your employer. On the other hand, if other employees took time off without giving more than two days’ notice, you might be able to show that the manager is retaliating against you in particular because of your military duties —
a violation of USERRA.  

Amy Semmel is a partner with the firm Kelley • Semmel, where her practice focuses on employment law. The information discussed here is a general explanation of the law, and is not intended to serve as legal advice. Readers requiring legal advice regarding a specific situation should consult an employment attorney.