May 20, 2019 Court Decision Regarding Military Leave
KEEPING YOU INFORMED…
We are writing to inform you of a recent decision issued by the New York State Supreme Court, Appellate Division, First Department, reconfirming that probationary employees are entitled to receive credit toward satisfying their probationary period for time during which they are on military duty.
In Aroca v. Bratton, the City of New York terminated a probationary police officer’s employment while she was serving overseas on military duty. The officer appealed, arguing that, pursuant to Military Law § 243(9), her time serving on military duty counted toward fulfilling her probationary period. The court agreed, reinstated her, applied her time on military duty toward her probationary period and granted her return to permanent status because she had completed her probationary period through the combination of time worked and military duty.
The impact of Military Law § 243(9) is that, if an employee’s probationary period will end while he/she is on military duty, the decision to terminate the employee should be made in advance of his/her absence. The underlying facts for the termination should be well documented to avoid a claim that the employer discriminated against the employee on the basis of military status.
If you have any questions regarding this decision and how it impacts your workforce, please contact Alyson Mathews at 631-694-2300.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
© Lamb & Barnosky, LLP 2019