Fri, 02/26/2021
The Uniformed Services Employee and Reemployment Rights Act (“USERRA”)—a federal law protecting employment rights of service members—mandates that employers provide the same “rights and benefits” to employees on military leave as they do for employees on “comparable” non-military leave.
A number of federal district courts have reached inconsistent conclusions as to whether paid leave is a “right or benefit” within the meaning of USERRA, with two courts in the Eastern District of Pennsylvania reaching opposite conclusions in 2019 and 2020. However, on February 3, 2021, a panel of judges in the United States Court of Appeals for the Seventh Circuit—the first federal appellate court to rule on the issue—unanimously determined, as a matter of law, that USERRA provides a right to paid military leave if an employer provides “comparable” types of non-military paid leave.
In White v. United Airlines, Inc., the lead plaintiff, and airline pilot, had taken periods of short-term military leave to complete his reserve duty. He was granted leave without pay, even though the employer’s short-term leave policy provided paid leave for other types of involuntary short-term leave, such as jury duty and sick leave. The plaintiff claimed that this practice violated USERRA’s guarantee of equal rights and benefits for service members. The Seventh Circuit rejected United Airlines’ position that Congress intended to exclude paid leave entirely from USERRA and reversed the lower court’s decision to dismiss the case.
Although the White court did not rule on the factual question of whether paid short-term military leave and jury duty or sick leave are actually comparable, it indicated that the “comparability analysis”—that is, whether types of paid leave are comparable in duration, purpose and controllability—“is not affected by the fact that the service-member has voluntarily signed up for military service (and thus will be eligible for military leave at some point).… Instead, what matters is an employee’s control over the timing of her leave of absence—i.e., whether she has the option to choose when to take a given stretch of leave.”
United Airlines has filed a Petition for Rehearing with the Seventh Circuit, but employees and employers in other jurisdictions should also watch for further developments in this area of law, as a similar class action suit has been filed against Southwest Airlines in the Northern District of California, and the issue is currently being appealed to the 3rd Circuit.
