Probationary Employees And USERRA

A recent California case examined the relationship between probationary status, seniority, and the Uniformed Services Employment and Reemployment Rights Act (USERRA). The case involved Johnnie Paxton and Brandon Contreras, who were probationary police officers with the City of Montebello, California, when they were activated for military service. The City reinstated them to their probationary status and credited them with having completed eight months of probation. The officers successfully completed their probationary periods, and the City later awarded them step increases.

The officers filed a federal court lawsuit, contending the City violated USERRA in the way it reinstated them, and by retaliating against them for taking military leave. In largely resolving the case in the officers’ favor, the Court engaged in a sweeping review of USERRA’s requirements with respect to probationary status.

The first issue was whether the City violated USERRA when it reinstated the officers as probationary police officers and placed them in Step Two of its pay structure. The officers argued their probation should have ended while they were on military leave. The Court disagreed, finding that “as a general matter, a probationary employee can be required to complete his probationary period following his return from military leave. A returning veteran cannot claim a promotion that depends solely upon satisfactory completion of a prerequisite period of employment training unless he first works that period. Thus, the City properly reinstated the officers as probationary employees, and properly required them to successfully complete probation.”

The Court then turned to the issue of the officers’ seniority and pay steps. The Court noted that “Congress intended a reemployed veteran who, upon returning from military service, satisfactorily completes his interrupted training, to enjoy the seniority status which he would have acquired by virtue of continued employment but for his absence in military service. This requirement is met if, as a matter of foresight, it was reasonably certain that advancement would have occurred, and if, as a matter of hindsight, it did in fact occur. In other words, upon satisfactorily completing a probationary period, the employee can insist upon a seniority date reflecting the delay caused by military service. Here, the officers successfully completed their probation after reinstatement as probationary police officers, and upon such successful completion of probation, the officers were entitled to have their seniority and pay changed to reflect their twelve months of military service.”

The Court then turned to the matter of annual leave. At the time the officers were placed on military leave, they were accruing 9.23 prorated hours of annual leave for each two-week pay period. For the two months the officers were on paid military leave, the City allowed them to accrue annual leave; however, the City did not allow the officers to accrue annual leave for the remaining ten months of military leave.

The Court found the City’s practice violated the law: “USERRA provides that an employee who is absent from work to perform military service is generally ‘deemed to be on furlough or leave of absence while performing such service’ and is ‘entitled to such other rights and benefits not determined by seniority as are generally provided by the employer of the person to employees having similar seniority, status, and pay who are on furlough or leave of absence under a contract, agreement, policy, practice, or plan in effect at the commencement of such service or established while such person performs such service.’ As a general matter, however, accrual of vacation leave is considered to be a non-seniority benefit that must be provided by an employer to an employee on a military leave of absence only if the employer provides that benefit to similarly situated employees on comparable leaves of absence.

“Here, the City has a written policy that employees who are reinstated following ordered military leave, are entitled to ‘receive the same vacation, sick leave and holiday or annual leave privileges as [they] would have enjoyed had [they] not been absent.’ Yet, despite this policy, the City claims that its rules preclude the officers from accruing annual leave while on military leave. The City is in error in treating the six months the officers were on military leave without pay like being absent without pay for the purpose of accruing annual leave. Since it is undisputed that the officers would have accrued annual leave if they had not been on military leave, the officers are entitled under USERRA to accrue annual leave while on military leave – even unpaid military leave.”

Paxton v. City of Montebello, 2010 WL 1255915 (C.D. Cal. 2010).

This article appears in the May 2010 issue