This guest post was authored by Timothy Owen

This is the second installment of a 2-part series on military leave law.  Part 1 discussed basic principles.  This installment explains why the position to which a returning veteran is reinstated depends on whether advancement in that particular job classification is based on seniority or merit.


Reinstatement: Which Position?

USERRA provides that returning service members are to be reemployed in the job that they would have attained had they not been absent for military service, with the same seniority, status and pay, as well as other rights and benefits determined by seniority.  This policy is known as the “escalator” principle, a term coined by the U.S. Supreme Court in 1946 in Fishgold v. Sullivan Drydock Repair Corp.   

The escalator principle provides that the returning service member is not reinstated at the point where he or she got off the escalator to take military leave, but rather higher up, as if the person had never gotten off.  The escalator principle is most easily applied where promotion depends solely on seniority, or longevity on the job.  In those instances, invariably the returning service member is reinstated as if he or she had stayed on the escalator.

No doubt the escalator principle is a key concept in determining where a veteran is reinstated, but what if advancement in a particular job classification is not based solely on seniority, but rather is discretionary and dependent on meritorious job performance, e.g., promotion of a public safety officer?  In this situation, does the escalator principle require an employer to reinstate the returning service member at a rank higher than the one held when military leave commenced? 

According to the Supreme Court, the short answer is, no.  “A veteran is not entitled to demand that he be assigned a position higher than he formerly held when promotion to such a position depends, not simply on seniority or some other form of automatic progression, but on the exercise of discretion on the part of the employer.”  U.S. Department of Labor regulations are in agreement: the returning service member is entitled to reinstatement at a higher rank only if it is “reasonably certain” that, had the person remained continuously employed (stayed on the escalator), he or she would have been promoted.  

In determining “reasonable certainty,” of overriding importance is the existence of a defined, well-established policy regarding discretionary promotions.  Equally important is the employer’s consistent adherence to the policy.  A policy that is not followed regularly is of little help to an employer in a dispute over reinstatement.

Bear in mind that the escalator does not always move upward.  Unfavorable business conditions may cause the escalator to shift into reverse, resulting in reinstatement at a lower level than the one previously held, a different job, or conceivably a layoff.