Regular readers of this blog know that we have talked a lot about the National Labor Relations Board and arbitration agreements in the last few years. It doesn’t look like we’re likely to stop talking about those two things anytime soon, either.
The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) is unique among employment laws, in part due to the affirmative obligations it puts on the employer. For example, when an employee returns to work after having taken more than 90 days of leave under USERRA, it is not enough that the employer gives the employee his or her old job back. Instead, the employer must place the employee in the position he or she likely would have had but for the military service. So, suppose an employer typically advances employees based upon length of employment. And during the one year an employee was serving in the military, the employee would have advanced to another position. Under USERRA, when the employee returns, he is not to be put back in his old position, but in the position he would have held had his employment not been interrupted by military service. This is known as the “escalator” position.