If a federal agency does not enforce a rule for ten years canit be implied that they will not enforce it.

UPDATED: Oct 1, 2022

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If a federal agency does not enforce a rule for ten years canit be implied that they will not enforce it.

I work for a federal agency and am also a military reservist. My agency is stating that I have always been in a position designated as a ‘key employee’ requiring me to be removed from the military roles. I filled out paperwork upon employment stating that I was in the military which allowed me to take military leave for ten years to perform my military duty. Do I have any recourse based upon non-enforcement? The automated personnel system did not show that I was in a key position until 2017. I was never informed that I was in a key position until my military leave was denied this year.

Asked on February 21, 2018 under Employment Labor Law, Virginia


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

No, unfortunately, an employer (whether a private employer or governmental) is not precluded from enforcing a rule now or in the future simply because they have not enforced it in the past. Prior nonenforcement does not waive the right to enforce rules; and employers may, in any event, change rules at or about employment at will (except when restricted from doing so by the terms of a written employment contract), so that regardless of past rules or past practice, they could elect to now make it a key position.

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