My question regards a probationary employee called to active duty. We have an employee who is serving a 9-month probationary period who was called to active duty for 2 years. By law, do we have to make them a permanent employee? Or do extend the probation and upon her/his return have the employee complete their probationary period?
Answer: Thank you for your question regarding a probationary employee called to active duty.
Under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), any veteran who receives a certificate showing satisfactory completion of service in the uniformed services must be restored to his previous employment. The law requires employers to provide up to five years of job-protected military leave (and sometimes longer leaves).
USERRA has very specific reemployment requirements. If the period of military service exceeds 90 days, the veteran must be reemployed in the position he would have held except for the interruption for military service, or in a position of like seniority, status and pay, if he is qualified for that position.
This “escalator principle” requires that the employee be reemployed in a position that reflects, with reasonable certainty, the pay, benefits, seniority, and other job perquisites, that he would have attained if not for the period of service. See 38 U.S.C. §4313(a)(2) and 20 C.F.R. §1002.191.
So, in your situation, if the employee would have completed his probationary period if he had not been called to active duty, then when he returns from military leave you should not further extend his probation and require him to complete the period. You should make him a permanent employee if that would have been the outcome if he had not been called to active duty. Similarly, his pay, benefits, seniority, and other job perquisites should reflect this status.
Because of the complex reinstatement requirements for employees who take military leave under the USERRA, you should consult an attorney about this matter.