Understanding USERRA and probationary periods

Q         Under the Uniformed Services Employment and Reemployment Rights Act (USERRA), can a police officer's probationary period be extended for the amount of time she is on military leave? This also would cause her performance evaluation to be delayed for the same amount of time as the leave.

A   When an individual returns to state service, she also returns to the status of appointment she held at the time she left on military leave. As a general matter, a probationary employee can be required to complete her probationary period following her return from military leave. If she was serving a probationary period, she will be required to complete the remaining portion of her probation if there’s a need for actual training and/or observation instead of merely time served in the position.

Importantly, the U.S. Department of Labor's (DOL) regulations governing USERRA instruct that the probationary period must be "a bona fide period of observation and evaluation.” A returning veteran cannot claim a promotion that depends solely on satisfactory completion of a prerequisite period of employment training unless she first works the bona fide period. Once she completes the remaining portion of the probationary period, however, USERRA requires an employer to reinstate her to the position she would have attained had she remained continuously employed, with commensurate titles and salary.

Sarah K. Downey is an attorney with Jackson Loman Stanford & Downey, P.C., in Albuquerque, New Mexico. You can reach her at sarah@jacksonlomanlaw.com.