The Law @ Work

Job Leave May Result in Return to a Better Position

By now, you should know that employees who need to take time off from work because of a disability are often entitled to a job-protected leave of absence as a reasonable accommodation.  (If this information is new to you, be sure to attend our Master Class on the Americans with Disabilities Act (ADA) next month, featuring Skoler Abbott Attorney Susan Fentin.)  Employers often ask how long a leave is required and whether additional accommodations are necessary once the employee returns.  The answer, unfortunately, usually depends on a number of circumstances.

One question that comes up is whether the employee gets to return to the exact same job when he or she returns.  Typically, under the ADA at least, the employee is entitled to return to the same job, assuming that position is available.

But what if the employee wants to return to a better job?  That’s right, a better job.  Under the Uniformed Services Employment and Reemployment Rights Act (USERRA), a different employee-protecting law that protects service members’ reemployment rights when returning from a period of service in the uniformed services, including those called up from the reserves or National Guard, employees who return might be entitled to a better job than they left with.  The law entitles returning service members to the job they would have attained had they not been absent for military service.  This is commonly referred to as the “escalator” principle.  This means that employees returning from military service must be “escalated” to the position they would have attained had military service not interrupted their employment.

You might be asking, what if the “escalation” sought involves a discretionary promotion?   In other words, what if the employee had to apply for the promotion and get selected from a pool of candidates, but did not have the opportunity to apply because he or she was engaged in military service?  How can we be sure he or she would have gotten the “escalated” promotion?  Understandably, some courts have ruled that the “escalator” principle only applies to non-discretionary promotions.  However, according to a recent decision from the First Circuit Court of Appeals, the “escalator” principle may apply even to discretionary promotions.  In that case, the Court of Appeals overruled a lower court decision where the judge ruled that an employee returning from military service was not entitled to an “escalated” position because he would have had to apply for and win the promotion.  So, the promotion was not a given or “automatic.”   The Court of Appeals reversed the decision.  The Court concluded that the “escalator” principle doesn’t depend on whether the promotion is “automatic.”  Instead, the test is whether there is a reasonable certainty that the returning service member would have attained the higher position but for his absence.  How do employers determine whether there was a reasonable certainty that the employee would have gotten the promotion?  At this point, your guess is as good as ours, as the Court did not provide a blueprint for tackling this question.

The case reminds us that employees returning from military service have significant job protection under USERRA.  State law often protects these individuals as well.  If you have questions about employees returning from military service, contact one of the attorneys at Skoler Abbott.

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