We’ve got a quandary. A number of our workers have been sent to Iraq and will be returning at some point. We are, of course, more than happy to reinstate them. But they will have missed a year or two of training and development. As we read the law, it looks like we must reinstate them with their “class”—the people they entered training with. But they have missed too much to function well at that level—they’re going to be poor performers at best. What are our options? — Samson, HR Manager in Atascadero
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Samson is correct that an employer should, indeed must, reemploy the returning veteran with his or her “class” and must make reasonable efforts to help the employee become qualified to perform the duties of this position. However, if after these reasonable efforts, the employee remains unqualified, the company may transfer the employee into the lesser position that the employee had when he or she began military service or another comparable position that he or she is qualified to perform.
As employers increasingly reemploy veterans returning from military service, they must comply with a feature of the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) that is unlike other laws requiring employers to reinstate employees after a protected period of absence. For instance, the federal Family and Medical Leave Act (FMLA) requires employers to reinstate the employee in the same or a comparable position on return from an FMLA-covered leave. In contrast, USERRA requires the employer to reemploy the returning veteran into the position he or she would have attained, with reasonable certainty, if not for the absence because of uniformed service. This requirement is referred to as the “escalator” principle.
In interpreting a predecessor statute to USERRA, the U.S. Supreme Court in Fishgold v. Sullivan Drydock and Repair Corp,. (328 U.S. 275, 284-85 (1946)) explained that returning service members are like individuals who step off an escalator during their period of military service. On returning from service, they do not step back on the escalator at the point they left. Rather, they step back on at the point they would have occupied had they kept their position continuously during military service. The position to which the returning service member should be restored is referred to as the “escalator position” (38 U.S.C. 4313).
The escalator position is defined as the job that reflects with reasonable certainty the pay, benefits, seniority, and other job perquisites that the returning veteran would have attained if not for the period of military service (20 CFR Section 1002.191). An employer must determine the escalator position on a case-by-case analysis, applying factors such as the employee’s length of service, qualifications, and disability, if any (20 CFR section 1002.192).
After determining the escalator position, the employer must decide whether to reemploy the returning veteran in the escalator position or in another job. The employer is not required to reemploy the employee in the escalator position if the returning veteran is unqualified for the job. Rather, the employer should review such situations case by case to decide whether to reemploy returning veterans into the escalator position, their position before they left for military service, or a position comparable to either the escalator or pre-service position.
However, on determining that a returning employee is currently unqualified for the escalator position, the employer should not immediately reinstate the employee into a lesser position. Rather, the employer “must make reasonable efforts to help the employee become qualified to perform the duties of this [escalator] position” (20 CFR sections 1002.196 and 1002.197). These reasonable efforts must be made at no cost to the employee (20 CFR section 1002.198). If the employee remains unqualified to perform the escalator position’s duties after the employer’s reasonable efforts, the employer may instead reemploy the employee in the position he or she had before starting military service (or another comparable position).
If eligibility for the escalator position is normally determined by successful completion of a skills test or examination, the employer must give the employee a reasonable amount of time to adjust to the employment position and then administer the skills test or examination.
In determining a reasonable amount of time before scheduling a makeup test or examination, an employer may take into account a variety of factors, including but not limited to how long the returning employee was absent from work, how difficult the test is, the typical time necessary to prepare or study for the test, the duties and responsibilities of the position, and the nature of the responsibilities of the service member while serving in the uniformed service (20 CFR section 1002.193).
An immediate refusal to reemploy in the escalator position should only be considered if it is clear that the returning individual will be unqualified to perform the escalator position even after reasonable efforts are made to qualify him or her.
Allen M. Kato is an associate at the San Francisco office of law firm Fenwick & West.