20 C.F.R. § 1002.191

What position is the employee entitled to upon reemployment?

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As a general rule, the employee is entitled to reemployment in the job position that he or she would have attained with reasonable certainty if not for the absence due to uniformed service. This position is known as the escalator position. The principle behind the escalator position is that, if not for the period of uniformed service, the employee could have been promoted (or, alternatively, demoted, transferred, or laid off) due to intervening events. The escalator principle requires that the employee be reemployed 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. Depending upon the specific circumstances, the employer may have the option, or be required, to reemploy the employee in a position other than the escalator position.

Notes of Decisions

Cited in 36 cases (10 in the last 5 years), 2008–2026 · leading case: Dale Huhmann v. Fed. Express Corp., 874 F.3d 1102 (9th Cir. 2017).

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Dale Huhmann v. Fed. Express Corp., 874 F.3d 1102 (9th Cir. 2017). · cites it 3× “20 C.F.R. § 1002.191 . . Courts applying the “reasonable certainty test” use both a forward-looking and a backward-looking approach.”

Leon Belaustegui v. Ilwu, 36 F.4th 919 (9th Cir. 2022). · cites it 3× “” 20 C.F.R. § 1002.191 . The idea behind this “escalator principle” is “that a returning service member not be removed from the progress (‘escalator’) of his career trajectory.”

Dianne Butts v. Prince William Cnty. Sch. Bd., 844 F.3d 424 (4th Cir. 2016). · cites it 2× “See 20 C.F.R. § 1002.191 . Here, such position was the fifth grade teaching position.”

Douglas Milhauser v. Minco Prods., Inc., 701 F.3d 268 (8th Cir. 2012). · cites it 4× “20 C.F.R. § 1002.191 . According to Minco, Milhauser's position of employment would have been termination in light of the workforce cuts it had been in the process of making at the time.”

Woodard v. New York Health & Hospitals Corp., 554 F. Supp. 2d 329 (E.D.N.Y 2008). · cites it 2× “See 20 C.F.R. § 1002.191 (“[USERRA’s] escalator principle requires that the employee be reemployed 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…”

Hanson v. Cnty. of Kitsap, 21 F. Supp. 3d 1124 (W.D. Wash. 2014). · cites it 2× “” 20 C.F.R. § 1002.191 . This position is referred to as the “escalator position.”

Serricchio v. Wachovia Sec. LLC, 658 F.3d 169 (2d Cir. 2011). “” 20 C.F.R. § 1002.191 . This position is referred to as the “escalator position.”

Rivera-Melendez v. Pfizer Pharm., LLC, 730 F.3d 49 (1st Cir. 2013). · cites it 3× “20 C.F.R. § 1002.191 (emphases added). The regulations also provide guidance on *55 the determination of the specific reemployment position: In all cases, the starting point for determining the proper reemployment position is the escalator position, which is the job position…”

Milhauser v. Minco Prods., Inc., 855 F. Supp. 2d 885 (D. Minnesota 2012). · cites it 4× “” 20 C.F.R. § 1002.191 . “Reasonable certainty” is a “high probability,” not an absolute certainty.”

Serricchio v. Wachovia Sec., LLC., 556 F. Supp. 2d 99 (D. Conn. 2008). · cites it 2× “, reemploying the servicemember “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,” 20 C.”

Hogan v. United Parcel Serv., 648 F. Supp. 2d 1128 (W.D. Mo. 2009). · cites it 2× “20 C.F.R. § 1002.191 sets forth this obligation, known as the “escalator principle”: *1141 As a general rule, the employee is entitled to reemployment in the job position that he or she would have attained with reasonable certainty if not for the absence due to uniformed service.”

Serricchio v. Wachovia Sec., LLC, 606 F. Supp. 2d 256 (D. Conn. 2009). “” 20 C.F.R. § 1002.191 . In a civil action brought pursuant to USERRA, a “court may require the employer to compensate the person for any loss of wages or benefits suffered by reason of such employer’s failure to comply with the provisions of [USERRA].”

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