The Escalator Principle: Military Employee Rights When Returning from Leave
Introduction
The escalator principle is a concept that applies to the employment and reemployment rights of uniformed service members who take a leave of absence from their civilian jobs to perform military duty. The principle is based on the Uniformed Services Employment and Reemployment Rights Act (USERRA), a federal law that protects service members from discrimination and retaliation based on their military service and guarantees their right to return to their pre-service jobs or equivalent positions after completing their service.
The Escalator Principle: An Overview
The escalator principle requires that the employer reemploy the service member in a position that reflects with reasonable certainty the pay, benefits, seniority, and other job perquisites, that he or she would have attained if not for the period of service. In other words, the service member should be placed on the same career trajectory as if he or she had never left the job for military duty.
The escalator principle may result in the service member being reemployed in a higher or lower position, laid off, or even terminated, depending on the circumstances of the employer and the industry during the period of service. For example, if the service member was in line for a promotion before leaving for military duty, but the promotion was contingent on passing a test or completing a training program, the employer must make reasonable efforts to qualify the service member for the promotion upon reemployment. On the other hand, if the employer had to downsize or restructure its operations due to economic conditions or other factors, and the service member’s position or an equivalent position was eliminated, the employer may reemploy the service member in a different or lower position, or even lay off or terminate the service member, as long as it can show that it would have taken the same action regardless of the service member’s absence.
The escalator principle is intended to ensure that service members do not suffer any disadvantage or loss of opportunity in their civilian careers because of their military service. It also aims to prevent employers from discriminating against or retaliating against service members who exercise their rights under USERRA. The principle is not absolute, however, and it is subject to some exceptions and limitations. For example, USERRA does not require employers to reemploy service members who exceed the cumulative five-year limit on periods of service (with some exceptions), who fail to provide advance notice of their service (unless prevented by military necessity or impossibility), who fail to report back to work within the prescribed time limits after completing their service, who receive a dishonorable or bad conduct discharge from their service, or who are not qualified or able to perform the duties of their reemployment position (after reasonable efforts by the employer to accommodate any disability or train the service member).
What Employers Need to Know
Employers should be aware of their obligations and responsibilities under USERRA and the escalator principle when dealing with employees who take military leave. Employers should also document any changes in their operations, policies, or personnel that may affect the reemployment rights of their service members. Employers who violate USERRA may be liable for damages, injunctive relief, attorney’s fees, and other remedies.
Conclusion
Employers should be careful when dealing with an employee returning from leave. That employee may be entitled to a monetary bonus, a promotion or potentially a demotion.
To learn more about The Escalator Principle: Military Employee Rights When Returning from Leave, please contact Beresford Booth at info@beresfordlaw.com or by phone at (425) 776-4100.