Failure to Promote

[u/NewTrack6413]

This is a lot so I hope I explain it. I am a full time firefighter and in army reserves. In early 2025, my fire department conducted a partial promotion process which consisted of a written a test. Prior to this, our department had a promotion list from 2024, and I was number 3. In mid 2025, the chief ultimately decided to use the 2024 promotion list instead of finishing the one that was started in 2025. The chief promoted the 2 guys ahead of me from the 2024 promotion list. Shortly after they were promoted, in mid 2025, I was sent on a 12 month combat deployment.

In early 2026, the department started a new promotion process with a test, interview, and live scenarios. I was actively deployed and asked if I could engage virtually. They denied and said I’d have a chance to test when I got back. They ended up promoting 2 other guys in March 2026. They were below me on the original promotion list, but that list no longer matters because of the new list. I do know I was number 1 on the 2024 list and have significantly more points than 2 of the guys who were promoted (length of service, time with department, certifications, training, military service, etc). There is concrete proof I am more qualified than them.

I got back from deployment mid 2026 and returned to work in July. They let me start the new promotion process. However, one chief did tell me that they would “hold my spot” for the next round of promotions, which I know they can’t do because of the laws. They also told the 2 guys who were promoted that I would also have a chance for promotion.

Fast forward to now. It’s been almost 3 months since I tested and they have yet to finish my promotion process. Im waiting for them to do interviews. The promotion process from months prior was completed in 3 days. Do I have the right to a speedy process? I know that they will be required to backdate promotion, but I think they are trying to be sneaky.

I think they’re waiting for a spot to open up before they finish the process and make a decision. I can’t prove that, but the chief who said he would “hold my spot” said so because there were no available promotions. Even if they wait for a spot to open, am I legally owed the promotion date of the 2 guys from March 2026? I want to make sure I hold them accountable.

[u/Semper_Right]

Your USERRA issue(s) involve the reemployment process and how to determine what the proper reemployment position is when you miss a promotion. The process generally involves determining what position you would have had if you had remained continuously employed during your uniformed service, the "escalator position." 20 CFR 1002.191. Once this position is determined in terms of pay, seniority, and status, the employer must either reemploy you in that position or, if your service was longer than 90 days, one of like pay, seniority and status, if you can be qualified for that position. 20 CFR 1002.196-.197. The "escalator position" does include consideration of any missed promotion opportunities. 20 CFR 1002.193(b). That Regulation states:

• (b) If an opportunity for promotion, or eligibility for promotion, that the employee missed during service is based on a skills test or examination, then the employer should give him or her a reasonable amount of time to adjust to the employment position and then give a skills test or examination. No fixed amount of time for permitting adjustment to reemployment will be deemed reasonable in all cases. However, in determining a reasonable amount of time to permit an employee to adjust to reemployment before scheduling a makeup test or examination, an employer may take into account a variety of factors, including but not limited to the length of time the returning employee was absent from work, the level of difficulty of the test itself, the typical time necessary to prepare or study for the test, the duties and responsibilities of the reemployment position and the promotional position, and the nature and responsibilities of the service member while serving in the uniformed service. If the employee is successful on the makeup exam and, based on the results of that exam, there is a reasonable certainty that he or she would have been promoted, or made eligible for promotion, during the time that the employee served in the uniformed service, then the promotion or eligibility for promotion must be made effective as of the date it would have occurred had employment not been interrupted by uniformed service.

Id. Although it appears they are following this process, the threshold issue is whether you should have been promoted off of the 2024 list rather than be forced to compete for the later list. This, in my opinion, depends upon whether there were any promotions from the 2024 list after you left for uniformed service. If so, that would have been your "escalator position", and it would be improper to force you to compete for a position on a new list. In a sense, you would have been grandfathered into the old list, and imposing new requirements that are applied after you return is likely improper.

If, as you suspect, they are delaying the process until a spot opens up, that would also be improper under USERRA. An employer cannot refuse to reemploy a service member in the appropriate position merely because it is already occupied. 20 CFR 1002.139(a).

Also, even if it is appropriate to require you to compete for positions on the 2026 list, any promotion would be retroactive to when you would have been promoted had you remained continuously employed for all pay, seniority and status issues. 20 CFR 1002.193(b). That was the issue in a case similar to your situation that was brought by the Dept of Justice against the City of Summerville Mass. In that case, a Marine reservist returned after nine years of service seeking reemployment as a firefighter. He was allowed to take the Lt. exam, which he passed, and sought to take the Captain's exam given the retroactive date for his promotion. The employer refused and the DOJ brought a lawsuit to compel them to provide the Captain's exam. (See, DOJ Press release here.)

You should check to see if there were any promotions prior to your return off of the old lists. If so, there is probably a good argument that they should have promoted you retroactively off of that list as the reemployment position, even if it means demoting whoever was promoted in your place.

You should contact ESGR.mil or DOL-VETS to have them look at the situation closely to determine whether it complies with USERRA.