The First Circuit Court of Appeals held that an employer may have discriminated against an employee by not giving him a discretionary promotion upon his return from a military deployment in Rivera-Melendez v. Pfizer Pharm., LLC, No. 12-1023 (1st. Cir 2013).
Under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), employers must ensure employees that take a military leave of absence are reemployed to the position in which it is “reasonably certain” they would have been employed if the “continuous employment … had not been interrupted by such service.” These requirements were clearly understood to mean that covered employees are entitled to automatic promotions and pay raises that would have been received during their leave; however, the recent First Circuit opinion illustrates that a careful analysis must be applied in the case of discretionary promotions as well.
Labor & Employment Developments 