Employees who are serving the country on active military duty may miss a chance to participate in important tests that qualify them for promotions. If they miss those tests, they could also miss out on opportunities for promotions for years to come. And that may violate the Uniformed Services Employment and Reemployment Rights Act (USERRA).
You can avoid liability by making the test available to active-duty employees on a reasonable basis.
Recent case: Juan Sandoval and Sidney Pennix worked as Chicago police officers and were both on active military duty when the city scheduled a test for promotion to sergeant. Sandoval was in El Salvador, while Pennix served in Iraq. The police department offered to test them at the closest monitored sites—Sandoval in El Salvador and Pennix in Germany. Both took the exam.
Another officer who scored higher was promoted, and Sandoval and Pennix sued, alleging they should have been able to take their tests on their respective military bases.
The 7th Circuit Court of Appeals ruled that the city of Chicago had done all it was required to do—it allowed the men to take the test despite their active duty. USERRA didn’t require the city to give the test where the service members preferred.(Sandoval, Pennix v. City of Chicago, No. 08-2699, 7th Cir., 2009)
Final note: Courts are impressed when employers act fairly. By making special arrangements, the city won over the court. The arrangements may not have been ideal, but they were reasonable ones.
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