We have an employee who returned from a 6 month military leave of absence in February. His performance review was due in March and his manager wants to extend his performance review the six months he was gone. Can we do this? If not, where would I find the regulations that show the employee is entitled to his performance review? Thank you.

There are no laws requiring employers to give performance reviews and, thus, no laws requiring when they be given. If doing one now means that you'd be reviewing time when the employee wasn't even at work, it may make sense to delay it.

I guess I'm curious how to interpret the USERRA regulations that state the employee is entitled upon their return from leave to the seniority and other rights and benefits that they had on the date of the leave. Our policy for any leave of absence is to delay the review for a short period of time, so I'm thinking we should remain consistent; however, are we not compliant with the regulations by doing so?

If your policy is to delay it for a short time in the case of any leave of absence, then I would suggest that you stick with it. Consistency in the application of polices is a good thing in the eyes of the law.

I do not believe that any extention of the time period would be allowed. The regulations are fairly clear that the veteran must be returned to the same place she would have been in had she not been deployed in terms of senority, status, and pay. There are exceptions if the veteran is disabled or can not otherwise perform the duties of the job, but those do not seem to apply here. You can read 38 U.S.C. 4313 for a complete description.

In any case, the reason there is a statute for this is to make it clear that military service is NOT to be treated like other types of extended leave. Thus, a consistent policy would be no defense to non-compliance.