Yes. The Act does not prohibit lawful adverse job consequences that result from the employee's restoration on the seniority ladder. Depending on the circumstances, the escalator principle may cause an employee to be reemployed in a higher or lower position, laid off, or even terminated. For example, if an employee's seniority or job classification would have resulted in the employee being laid off during the period of service, and the layoff continued after the date of reemployment, reemployment would reinstate the employee to layoff status. Similarly, the status of the reemployment position requires the employer to assess what would have happened to such factors as the employee's opportunities for advancement, working conditions, job location, shift assignment, rank, responsibility, and geographical location, if he or she had remained continuously employed. The reemployment position may involve transfer to another shift or location, more or less strenuous working conditions, or changed opportunities for advancement, depending upon the application of the escalator principle.
Notes of Decisions
Serricchio v. Wachovia Sec. LLC, 658 F.3d 169 (2d Cir. 2011).
· cites it 2× “” 20 C.F.R. § 1002.194 . “The reemployment position may involve transfer to another shift or location, more or less strenuous working conditions, or changed opportunities for advancement, *183 depending upon the application of the escalator principle.”
Vahey v. Gen. Motors Co., 985 F. Supp. 2d 51 (D.D.C. 2013).
· cites it 4× “” 20 C.F.R. § 1002.194 . “In some cases, for example, the escalator principle could deliver an employee into ‘layoff status’ if the ‘employee’s seniority or job classification would have resulted in the employee being laid off during the period of service, and the layoff…”
Milhauser v. Minco Prods., Inc., 855 F. Supp. 2d 885 (D. Minnesota 2012).
· cites it 5× “20 C.F.R. § 1002.194 . 1. Termination as a Possible “Position of Employment” Under USERRA Mineo has never claimed that Milhauser was not qualified for the escalator position.”
Douglas Milhauser v. Minco Prods., Inc., 701 F.3d 268 (8th Cir. 2012).
· cites it 2× “20 C.F.R. § 1002.194 . The regulations state that "[d]epending on the circumstances, the escalator principle may cause an employee to be reemployed in a higher or lower position, laid off, or even terminated.”
Woodard v. New York Health & Hospitals Corp., 554 F. Supp. 2d 329 (E.D.N.Y 2008).
“See 20 C.F.R. § 1002.194 (“The reemployment position may involve transfer to another shift or location, more or less strenuous working conditions, or changed opportunities for advancement, depending upon the application of the escalator principle.”
Hanson v. Cnty. of Kitsap, 21 F. Supp. 3d 1124 (W.D. Wash. 2014).
“” 20 C.F.R. § 1002.194 ; (Milhauser v. Minco Products, Inc.”
Thomas Harwood, III v. Am. Airlines, Inc., 37 F.4th 954 (4th Cir. 2022).
“” 20 C.F.R. § 1002.194 . Further, the district court’s reasoning, citing this DOL guidance, indicates that it did in fact take the location change and Harwood’s indicated willingness to accept a position in Dallas into account as part of a totality of the circumstances analysis.”
Davis v. Crothall Servs. Grp., Inc., 961 F. Supp. 2d 716 (W.D. Pa. 2013).
· cites it 2× “See Milhauser; 20 CFR § 1002.194 . Defendant could argue that Plaintiff would have been either terminated or transferred to one of the lesser positions.”
Pittman v. Dep't of Just., 486 F.3d 1276 (Fed. Cir. 2007).
“See 20 C.F.R. § 1002.194 (noting factors relevant in determining the like status of a reemployment position, including opportunities for advancement, working conditions, job location, shift assignment, rank, and responsibility); see also Nichols, 11 F.”
Serricchio v. Wachovia Sec., LLC, 706 F. Supp. 2d 237 (D. Conn. 2010).
“213 ; (ii) failed to include an instruction on the permissibility of lawful adverse job consequences, or the “downward escalator” principle in accordance with 20 C.F.R. § 1002.194 ; (iii) failed to define “rate of pay” in accordance with 20 C.”
Hogan v. United Parcel Serv., 648 F. Supp. 2d 1128 (W.D. Mo. 2009).
“20 C.F.R. § 1002.194 considers the possibility of adverse consequences resulting from application of the escalator principle: The Act does not prohibit lawful adverse job consequences that result from the employee’s restoration on the seniority ladder.”
Woodard v. New York Health & Hospitals Corp., 350 F. App'x 586 (2d Cir. 2009).
“correctly found that HHC permissibly reemployed Woodard in a vacant position of similar status based on its staffing needs, consistent with USERRA regulations permitting an employer “to assess what would have happened to such factors as the employee’s opportunities for…”
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