20 C.F.R. § 1002.213

How can the employee demonstrate a reasonable certainty that he or she would have received the seniority right or benefit if he or she had remained continuously employed during the period of service?

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A reasonable certainty is a high probability that the employee would have received the seniority or seniority-based right or benefit if he or she had been continuously employed. The employee does not have to establish that he or she would have received the benefit as an absolute certainty. The employee can demonstrate a reasonable certainty that he or she would have received the seniority right or benefit by showing that other employees with seniority similar to that which the employee would have had if he or she had remained continuously employed received the right or benefit. The employer cannot withhold the right or benefit based on an assumption that a series of unlikely events could have prevented the employee from gaining the right or benefit.

Notes of Decisions

Cited in 6 cases (2 in the last 5 years), 2010–2024 · leading case: Serricchio v. Wachovia Sec. LLC, 658 F.3d 169 (2d Cir. 2011).

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Serricchio v. Wachovia Sec. LLC, 658 F.3d 169 (2d Cir. 2011). · cites it 3× “We cannot reconcile that position with the statute and the regulations promulgated thereunder, which expressly state that an employee “does not have to establish” that he would have received the total amount of compensation “as an absolute certainty.”

Serricchio v. Wachovia Sec., LLC, 706 F. Supp. 2d 237 (D. Conn. 2010). · cites it 2× “2 Specifically, Wachovia charges that the Court: *248 (i) failed to define “reasonable certainty” as specified in 20 C.F.R. § 1002.213 ; (ii) failed to include an instruction on the permissibility of lawful adverse job consequences, or the “downward escalator” principle in…”

Tole v. Amazon.com Inc (W.D. Wash. 2023). · cites it 2× “192 ; see also 6 20 C.F.R. § 1002.213 . 7 The “reasonable certainty test” contains “both a forward-looking and a backward-looking 8 approach.”

Jeong Ko v. City of La Habra, 637 F. App'x 973 (9th Cir. 2015). · cites it 2× “” 20 C.F.R. § 1002.213 . I would therefore affirm the district court’s grant of summary judgment in favor of Ko.”

Tole v. Amazon.com Inc (W.D. Wash. 2024). “192 ; see also 20 C.F.R. § 1002.213 . 14 The “reasonable certainty test” contains “both a forward-looking and a backward-looking 15 approach.”

Rivera-Meléndez v. Pfizer Pharm., Inc., 788 F. Supp. 2d 33 (D.P.R. 2011). “20 C.F.R. § 1002.213 (emphasis added). Plaintiff claims that in “March, 2009, defendant informed the team leaders (except plaintiff Rivera-Meléndez) that it was restructuring and eliminating their classification, but 7 supervisory positions and 4 as service coordinator positions…”

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