Members of the United States Armed Forces may be called back to active duty at any time to support a declaration of war or state of national emergency or may volunteer for long or short-term periods of military duty. USERRA protects both. Both, however, require that a servicemember sacrifices time with his or her employer in order to fulfill his or her responsibility with the Armed Forces.
Because of this, USERRA provides employment protection, helping to ensure that those who go on military leave do not suffer upon reemployment because of it. However, that protection goes beyond requiring that employers hold the position you left when you went on military leave. It actually helps ensure that you are able to move upward on your career path even if you are called to duty. Training, retraining, upskilling, and other requirements are also considered when determining the appropriate position in which to reemploy a returning servicemember.
The Escalator Principle
Most servicemembers are aware that their current employment position is protected if they are required to perform service with the US Armed Forces. Once you’ve been honorably released from qualifying service that did not exceed five years (subject to some exceptions), you simply make an application for reemployment with your employer (within the specified deadline that pertains to your length of duty), and then you can go back to work.
However, what if you were up for a promotion, but because of deployment, training, or retraining, you were passed over? Or what if you would have received a promotion or raise solely based on how long you had been with your employer? While it might seem that this is just something that you’ll have to deal with and move on, the truth is that USERRA provides protection for just these types of situations. A servicemember is entitled to reemployment not just in their original position, but in the job position “that he or she would have attained with reasonable certainty if not for the absence due to uniformed service,” according to the Code of Federal Regulations (CFR).
Imagine that you step off the escalator when you go on military leave and you step back on the escalator when you return, not where you got off, however, but where the escalator is when you return, hence the name. Be aware, though, that this position could result in you getting demoted, or receiving less pay and fewer benefits if, for instance, the company has restructured or downsized, and your job is no longer available.
How Does It Work?
The escalator principle works on the premise that the only reason a servicemember did not attain a particular position, promotion, or raise was due to the interruption caused by a period of uniformed service. So, if you were in line for a promotion, but a period of uniformed service arose before you could be promoted, your employer would be required to promote you on your return from service, as long as all other requirements for reemployment were met and you were otherwise qualified for the promotion. If the promotion or raise was based solely on seniority (i.e. time you had worked with the company), this promotion or raise would be automatic. Note that there are five conditions on which reemployment hinges.
USERRA’s escalator principle requires that your employer reemploy you in a position that reflects “with a reasonable certainty” what you would have achieved with the employer if the period of uniformed service had not interrupted. This includes the following:
- Pay (hourly rate of salary)
- Benefits, including insurance, paid time off, vacation, etc.
- Any other job-related perquisites
The Potential for Negative Outcomes
It should be noted that the escalator principle does not always work to promote servicemembers because it is based on the most likely outcome had a period of uniformed service not caused the employee to be absent from employment. This means that it is possible that the employment outcome could be negative. Rather than being promoted on return, it is possible that an employee could be demoted to a lower position, transferred to another department, or even laid off.
Again, note that a negative outcome for servicemember reemployment is only possible if that outcome was most likely due to intervening events that occurred during the employee’s absence, or if the outcome was put on hold while the employee was performing uniformed service. For instance, if an employee were going to be laid off, but a period of uniformed service intervened, it is possible that after completing uniformed service, the employee would be laid off. USERRA does not prevent lawful adverse job consequences.
How to Determine Your Reemployment Position
Because the escalator principle does not always equate to a servicemember being given a higher position in his or her return from uniformed service, it is important that you are able to make an educated guess about your reemployment position. So, how do you determine your specific reemployment position?
The escalator position is the starting point for all USERRA-based reemployment situations. Your employer must determine what job position you would have attained had the period of uniformed service not occurred. In some situations, this may mean reemployment at your previous position at your previous rate of pay and with the same benefits/perks, plus any other advancements you would have received solely based on your seniority. That is not the case for all situations. Once your employer has determined what position you would have attained, other factors must be considered, such as:
- Your employment-related qualifications
- Your length of service
Based on these considerations, your employer can decide to place you in:
- A higher position than the one you held prior to unformed service
- The same position you held prior to uniformed service
- A position comparable to the one you would have attained under the escalator principle
- A position comparable to the one you held prior to uniformed service
- The closest approximation to one of these mentioned positions
Note that if your employer decides to move you up the escalator, but after reasonable efforts by the employer to prepare you for this position, you are unable or unqualified to perform the duties of that position, you must be reemployed in the position you held prior to uniformed service, or the closest equivalent of that position.
Ultimately, USERRA provides essential protection for your civilian employment. The escalator principle helps ensure that uniformed service does not prevent you from moving forward with your career by requiring employers to reemploy you in the position you would most likely have held had the period of uniformed service not occurred, and provide you with any seniority-based benefits you would have earned had you not been on military leave.