20 C.F.R. § 1002.193

Does the reemployment position include elements such as seniority, status, and rate of pay?

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(a) Yes. The reemployment position includes the seniority, status, and rate of pay that an employee would ordinarily have attained in that position given his or her job history, including prospects for future earnings and advancement. The employer must determine the seniority rights, status, and rate of pay as though the employee had been continuously employed during the period of service. The seniority rights, status, and pay of an employment position include those established (or changed) by a collective bargaining agreement, employer policy, or employment practice. The sources of seniority rights, status, and pay include agreements, policies, and practices in effect at the beginning of the employee's service, and any changes that may have occurred during the period of service. In particular, the employee's status in the reemployment position could include opportunities for advancement, general working conditions, job location, shift assignment, rank, responsibility, and geographical location.

(b) If an opportunity for promotion, or eligibility for promotion, that the employee missed during service is based on a skills test or examination, then the employer should give him or her a reasonable amount of time to adjust to the employment position and then give a skills test or examination. No fixed amount of time for permitting adjustment to reemployment will be deemed reasonable in all cases. However, in determining a reasonable amount of time to permit an employee to adjust to reemployment before scheduling a makeup test or examination, an employer may take into account a variety of factors, including but not limited to the length of time the returning employee was absent from work, the level of difficulty of the test itself, the typical time necessary to prepare or study for the test, the duties and responsibilities of the reemployment position and the promotional position, and the nature and responsibilities of the service member while serving in the uniformed service. If the employee is successful on the makeup exam and, based on the results of that exam, there is a reasonable certainty that he or she would have been promoted, or made eligible for promotion, during the time that the employee served in the uniformed service, then the promotion or eligibility for promotion must be made effective as of the date it would have occurred had employment not been interrupted by uniformed service.

Notes of Decisions

Cited in 11 cases (1 in the last 5 years), 2007–2021 · leading case: Serricchio v. WACHOVIA SECURITIES LLC

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Serricchio v. WACHOVIA SECURITIES LLC (2011) ca2 · cites it 2× “” 20 C.F.R. § 1002.193 (a). The regulations further provide that regardless of whether a servicemember is employed in the “pre-service position,” “another position” or in the “escalator position,” the “rate of pay must be determined by taking into account any pay increases,…”

Rodney Bodine v. Cook's Pest Control, Inc. (2016) ca11 · cites it 2× “, 20 C.F.R. § 1002.193 (a) (noting that sources of pay information under USERRA “include agreements, policies, and practices in effect at the beginning of the employee’s service”); id.”

Crawford v. Department of the Army (2013) cafc · cites it 2× “” 20 C.F.R. § 1002.193 . There is no fixed test for determining whether two positions are of “like status.”

Pittman v. Department of Justice (2007) cafc “§ 4313(a)(2)(A); 20 C.F.R. § 1002.193 (“The reemployment position includes the seniority, status, and rate of pay that an employee would ordinarily have attained in that position given his or her job history, including prospects for future earnings and advancement.”

Serricchio v. Wachovia Securities, LLC (2010) ctd “236 ; and (iv) failed to distinguish between seniority and non-seniority based benefits with reference to Plaintiffs compensation, as provided for in 20 C.F.R. § 1002.193 . (Def.’s Mem. Supp.”

Davis v. Crothall Services Group, Inc. (2013) pawd “§ 4312 (d); 20 C.F.R. § 1002.193 . Among these, is the “changed circumstances” defense, which allows an employer to be exempt from reemploying the employee if “the employer’s circumstances have so changed as to make reemployment impossible or unreasonable.”

Hogan v. United Parcel Service (2009) mowd “Under 20 C.F.R. 1002.193, an escalator position should be determined with reference to “seniority, status and pay” provided by collective bargaining agreements: The reemployment position includes the seniority, status, and rate of pay that an employee would ordinarily have…”

Paxton v. City of Montebello (2010) cacd · cites it 2× “3d at 763 ; see also 20 C.F.R. § 1002.193 (a) (“The reemployment position includes the seniority, status, and rate of pay that an employee would ordinarily have attained in that position given his or her job history, including prospects for future earnings and advancement.”

Smith v. United States Postal Service (2008) cafc “” 20 C.F.R. § 1002.193 (emphasis added). Case law establishes that “shift assignment” and regular hours are benefits of employment.”

Clarkson v. Alaska Airlines Inc (2021) waed “20 C.F.R. § 1002.193 (a). In relevant part, 4 the regulations state, “[t]he seniority rights, status, and pay of an employment 5 position include those established (or changed) by a collective bargaining 6 agreement, employer policy, or employment practice.”

Panarello v. State, Pc (2009) risuperct “Section 4313(a)(2)(A); section 4316(a) (restating the escalator principle); 20 C.F.R. 1002.193 (2008). A two-part test, discussed supra , is used to determine whether a particular right or benefit is seniority based.”

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