Monday, April 12, 2010

Requiring military employees provide written notification to return to work not likely under USERRA

An Oklahoma municipal employer most likely cannot, under state law and USERRA, require written notice by an employee in order for that employee to return to work after serving on active duty in the National Guard, Oklahoma Attorney General W. A. Drew Edmondson advised in a March 17, 2010 opinion letter issued at the behest of a state representative. In addition, a municipality must pay its employees called to military service the full regular pay they would have received during the 30-day calendar period they are on leave.

The Attorney General first noted that the state has adopted USERRA as law for members of the Oklahoma National Guard. After explaining that municipalities are covered under the USERRA rules, the attorney general then explained that a requirement that an officer or employee provide written notification in order to return to work would establish an extra “prerequisite to the exercise of the right to reemployment beyond that required by USERRA,” which is prohibited. Such a notice requirement adopted by a municipality would, in the attorney general’s opinion, be unenforceable, because a municipality cannot require written notice by an employee to invoke rights already granted by USERRA.

The attorney general then answered whether a municipality had to pay its employees and officers called to military service the full regular pay they would have received during the 30-day calendar period they are on leave. First, the attorney general found that a previous attorney general’s opinion (71-396) was incorrect, in that it applied the definition of “employee” from the Minimum Wage Act to the statute governing military leave. This opinion was overruled by the attorney general, as it was determined that this definition did not belong incorporated into the military leave rules.

The attorney general then pointed out that, pursuant to 44 O.S.Supp.2009 §209, full and regular pay must be paid for the first 30 calendar days, and this applies to both hourly and salaried employees. As such, an employee called to military service is entitled to be paid an amount equal to his/her yearly salary, converted to a daily rate, and multiplied by 30, and this included hourly workers.

So, while this is the Oklahoma Attorney General's opinion based on his reading of the law, it most likely will hold true. However, while there is little doubt that people will have much of a problem with further protecting our military personnel upon returning to their jobs, employers may argue that a letter stating one's intent to return, and a time to return, would merely aid it in better preparing for a worker's return from duty. The problem with that line of thinking is that a written notification of return creates just one more obstacle for returning military personnel, and that seems to run counterpoint to the very protections afforded by USERRA.

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