USERRA's definition of “employer” includes a successor in interest. In general, an employer is a successor in interest where there is a substantial continuity in operations, facilities, and workforce from the former employer. The determination whether an employer is a successor in interest must be made on a case-by-case basis using a multi-factor test that considers the following:
(a) Whether there has been a substantial continuity of business operations from the former to the current employer;
(b) Whether the current employer uses the same or similar facilities, machinery, equipment, and methods of production;
(c) Whether there has been a substantial continuity of employees;
(d) Whether there is a similarity of jobs and working conditions;
(e) Whether there is a similarity of supervisors or managers; and,
(f) Whether there is a similarity of products or services.
authority: Section 4331(a) of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA),
38 U.S.C. 4331(a) (Pub. L. 103-353, 108 Stat. 3150)
source: 70 FR 75292, Dec. 19, 2005, unless otherwise noted.
cite as: 20 CFR 1002.35