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USERRA: What Position Should I Get After Returning From Active Duty?

by | Mar 30, 2022 | Employment Discrimination, Employment Law, Military Status Discrimination |

Why do employers keep screwing with our troops? They protect us and put their lives on the line to make sure our freedoms and way of life are secure. The very least we can do is make sure that their jobs are secure when they return home.

What is the Escalator Principle under USERRA?

Best Military Employment Lawyer Answer: Our employment law attorneys recently address the rights of returning military members (Army, Navy, Air Force, Marines or National Guard) under Uniformed Services Employment and Reemployment Rights Act (“USERRA”) (Best Law Read: What are my USERRA Reinstatement Rights?). By way of refresher, the United States Supreme Court in Fishgold v. Sullivan Drydock and Repair Corp., 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230 (1946), created the “escalator” principle in stating that a returning service member “does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously during the war.” Although Fishgold was decided prior to the enactment of USERRA, its principal was legislatively included in the Act. The escalator principle applies to the employment position, rate of pay, and the seniority rights to which the returning service member is entitled. To that end, USERRA requires that the returning service member be reemployed in the escalator job position comparable to the position he would have held had he remained continuously in his civilian employment. See 38 U.S.C. § 4313. After service of 90 days or less, the person is entitled to reinstatement in the position of employment in which she or he would have been but for the interruption of employment by uniformed service. See 38 U.S.C. § 4313(a)(1)(A). If the military service period lasted longer than 90 days, the service member is entitled to reemployment in the escalator position, but the employer is also permitted to reinstate the returning member in any position of like seniority status and pay for which he or she is qualified. See 38 U.S.C. § 4313(a)(2)(A). The employer must make reasonable efforts to assist the returning service member to become qualified, including providing any training or education necessary. If the returning service member is still nonetheless unable to qualify for either the escalator or comparable position, despite the required reasonable efforts by the employer, the employee is entitled to reemployment in a position that is the nearest approximation to the escalator position. See 38 U.S.C. § 4313(a)(2)(A), (B).

What is an example of a USERRA violation?

Best Military Discrimination Lawyer Answer: This brings us to our most recent example of a bad employer. A police sergeant in Asheville, South Carolina recently filed a lawsuit in federal court asserting that his USERRA rights were violated when his police department demoting him after he was involuntarily activated by the National Guard. Just so you appreciate who Brett Foust is, he joined the National Guard and served multiple tours in Iraq, Afghanistan, and Cuba. He then joined the Asheville Police Department (APD) as a patrol officer in 2014, where he was promoted to sergeant in 2015.

In April 2020, the National Guard involuntarily activated Foust for about six weeks to assist the N.C. Department of Health and Human Services in its COVID contact-tracing efforts.

After his return, Foust was promoted (with a pay raise) to a field training officer position in August of 2020.

Shortly thereafter, the National Guard called Foust to active duty between September 2020 and March of 2021 to supervise food bank operations for western North Carolina as part of the worst months of the COVID pandemic. According to the lawsuit, a new patrol captain took away his field training officer position and added pay that came with that position.

Foust asserts that when he returned from active duty, the APD precluded him from participating in the federal leadership training session because he was “just returning to duty.” This in and of itself, if true, is an admitted violation of USERRA as the stated reason for the adverse action is Foust’s military service. Moreover, the lawsuit further reports that APD blocked Foust from receiving firearms instructor training which caused his police prequalification’s to expire. And to make matters worse, after his return from active duty, APD denied his ordinary equipment requests.

From my perspective, it certainly appears that APD was attempting force Foust to “voluntarily” choose to leave his job in order to accomplish what it could not directly. However, not only is this type of conduct also unlawful, juries tend to find this type of manipulative conduct even more offense.

When the above APD conduct did not get Foust to quit, the lawsuit reports that APD started giving Foust multiple write-ups and subjecting him to baseless investigations despite have a perfectly clean record prior to being called to military duty.

In June of 2021, Foust was placed on a light duty assignment after hurting his wrist in the line of duty. Unlike other officers injured in the line of duty, APD used this opportunity to revoke his police powers, confiscate his firearm, badge, and vehicle, and place him on indefinite administrative leave. By the time, a APD doctor certified Foust as fit for duty, APD had promoted another sergeant into Foust’s position.

How do I find a USERRA attorney to sue my civilian employer?

Best Ohio Employment Lawyer Answer: If you have been fired, discriminated against, demoted based on your military service, be it for the Army, Navy, Air Force, Marines or National Guard; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation. Call our Cleveland, Cincinnati, Columbus, Toledo, Boardman, and Detroit attorneys right now. If you have been wrongfully terminated or fired for any reason within one year of returning from serving in the United States Armed Forces, you may have a claim. Do not wait. You have protected us. Let us protect you. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.


The materials available at the top of this page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “How do I get reinstated after serving in the U.S. military (Army, Navy, Air Force, Marines or National Guard)?”, “What should I do if I was fired after returning from active duty?” “I was demoted after returning from active duty in the Army” or “My civilian manager is trying to force me out after coming back from active service in the U.S. military (Army, Navy, Air Force, Marines or National Guard). What should I do?” — It would be best for to contact an Ohio attorney to obtain advice with respect to any particular employment law issue or problem. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.

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