Under the “escalator principle” of the Uniformed Services Employment and Reemployment Rights Act of 1994, employers must consider workers returning from military service for discretionary promotions they might otherwise have received — not just automatic promotions, according to the recent decision of the 1st U.S. Circuit Court of Appeals that overturned a ruling by the U.S. District Court for the District of Puerto Rico. The case is Rivera-Melendez v. Pfizer Pharmaceuticals, LLC, No. 12-1023 (1st Cir., Sept. 20, 2013).
USERRA protects the career prospects of an active duty service member on leave by considering not only the certainty, but the likelihood of what may have occurred had it not been for his or her absence due to military service. USERRA requires employers to reemploy a returning service member to: (1) the seniority status that he or she would have acquired by virtue of continued employment if it had not been for his or her absence in military service; and (2) the job position that he or she would have attained with “reasonable certainty” if not for the absence.
Facts of the Case
Luis Rivera-Melendez, a U.S. Naval Reserve member who had been called to active duty in Iraq between December 2008 and October 2009, sued his employer, Pfizer, because he had not been considered for promotion to active pharmaceutical ingredient team leader, a position that had been created while he was away.
While Rivera-Melendez was on active duty away from his job, Pfizer eliminated his previous position of API group leader, and upon his return, appointed him to the post of API service coordinator, which had fewer job responsibilities than his previous position. In turn, Rivera sued Pfizer alleging a USERRA violation.
Courts Weigh in
The district court granted summary judgment to Pfizer ruling that under USERRA, Rivera was not entitled to the promotion because it was not an automatic one and instead involved employer discretion. However, in appeals court, the three-judge panel unanimously supported Rivera’s stance and said he should have been considered for promotion to team leader under USERRA’s “escalator principle” and “reasonable certainty” test.
USERRA, the appellate court determined, does not limit the application of the reasonable certainty test and the escalator principle to seniority-based or “automatic” promotions.
The appellate court remanded the case to the district court and asked it to reconsider whether it is reasonably certain that Rivera would have received the promotion to API team leader if his work had not been interrupted by military service.
Employer Takeaways
USERRA affords broad remedies to a returning service member who is entitled to reemployment. Similar to the job protection and reinstatement clause under the Family and Medical Leave Act, the USERRA entitlement prohibits an employer from refusing to reemploy the employee because another employee was hired to fill his or her position during the employee’s absence. If necessary, under USERRA, reemployment may even require the termination of that replacement employee.
Under USERRA, the escalator principle does not run in only one direction as it “may cause an employee to be reemployed in a higher or lower position, laid off, or even terminated.” In some cases, for example, the escalator principle could deliver an employee into “layoff status” if the employee’s seniority or job classification would have resulted in the employee’s being laid off during the period of service, and the layoff continued after the date of reemployment.
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