The Uniformed Services Employment and Reemployment Rights Act (USERRA) contains some of the most wide-reaching employer obligations of any federal labor law. Under USERRA's "escalator" principle, employees returning from military leave must be reinstated not only to their previous position, but to a higher one if they can demonstrate that they would likely have been promoted but for their absence. Earlier this month, the First Circuit Court of Appeals concluded that this escalator requirement applies not only to automatic promotions, but also to those that were within the discretion of the employer.

Rivera-Melendez v. Pfizer Pharm., LLC involved a Navy reservist called to active duty in Iraq. During his absence, his job category was eliminated, and employees were given the opportunity to apply for a limited number of promotions as an alternative to being demoted. When the plaintiff retuned from active duty, Pfizer recreated his old job, but did not offer him a promotion to the higher position. The district court rejected his USERRA claim, concluding that the law's escalator requirement applies only to promotions that the plaintiff can show he would automatically have been moved into but for his military service.

The First Circuit reversed this decision on appeal. The court said that the escalator principle applies to positions that the plaintiff would have been moved to with "reasonable certainty" except for his absence. This test applies regardless of whether the promotion was automatic or discretionary. The plaintiff may have a harder time proving reasonable certainty in the case of a discretionary promotion, but USERRA does not legally preclude returning service members from making such arguments.