When reinstating an employee returning from military service under USERRA, an employer is required to consider non-automatic, “discretionary” promotions that the employee might have applied for and received had he or she not been absent, at least according to the First Circuit Court of Appeals. Rivera-Melendez v. Pfizer Pharmaceuticals, LLC, No. 12-1023 (1st Cir. Sept. 20, 2013).

USERRA requires that an employer reinstate an employee returning from military service to his or her “escalator” position—the position he or she would have been in had employment not been interrupted. This “escalator” includes automatic promotions such as those based on seniority. In this case, an employee sued, claiming he should have been reinstated to a position that was a promotion and for which he would have had to apply and been selected.

The lower court held that the “escalator” did not include discretionary promotions. The First Circuit reversed, stating that the regulations are clear that employers must reinstate returning employees to the positions they would have held “with reasonable certainty” had they not been away on military service, including positions they would have obtained through a discretionary promotion process. The lower court now has to evaluate the employee’s claim using this correct legal standard.

Having to consider discretionary promotions certainly will make employer obligations under USERRA more challenging.