Employers May be Required to Provide Paid Military Leave to Employees

Employers may be required to provide paid military leave for employees serving in the armed forces.  This was the holding in White v. United Airlines, Inc., a recent case decided by the United States Court of Appeals for the Seventh Circuit.

In 1994, Congress enacted the Uniformed Services Employment and Reemployment Rights Act (USERRA) which protects military service members and veterans from employment discrimination on the basis of their service and allows them to regain their civilian jobs following a period of uniformed service.  It applies to members of the Armed Forces, Reserves, National Guard, and other “Uniformed Services” (including the National Disaster Medical System and the Commissioned Corps of the Public Health Service) who are employed by private and public sector employers.  USERRA ensures that service members:

• Are not disadvantaged in their civilian careers because of their military service;
• Are promptly re-employed in their civilian jobs upon return from duty;
• Are not discriminated against by employers because of past, present, or future military service.

The law explicitly requires that employers offer unpaid leaves of absence for military service members, who must be absent from work in order to perform military service.

In White v. United Airlines, Inc., the Court ruled that USERRA also requires that employers provide paid leave for military service members who are absent from work to perform military services if the employer provides paid leave for other comparable, nonmilitary purposes (e.g., sick leave, jury duty).

The plaintiff, Eric White, was a member of the Air Force Reserves, and also a commercial airline pilot.  Periodically, his reservist duties required his absence from work for several days at a time.  White’s employer refused to compensate him for his intermittent, short-duration leaves of absence.  White filed a lawsuit in federal court under USERRA to seek paid military leave from his employer for the days when he was absent from work to perform his military service.  The Court issued a decision in his favor.

USERRA explicitly provides:

A person who is absent from a position of employment by reason of service in the uniformed services shall be:

(A)  deemed to be on furlough or leave of absence while performing such service; and

(B)  entitled to such other “rights and benefits” not determined by seniority as are generally provided by the employer of the person to employees having similar seniority, status, and pay who are on furlough or leave of absence under a contract, agreement, policy, practice, or plan in effect at the commencement of such service…

USERRA defines “rights and benefits” as:

The terms, conditions, or privileges of employment, including any advantage, profit, privilege, gain, status, account, or interest (including wages or salary for work performed) that accrues by reason of an employment contract or agreement or an employer policy, plan, or practice…

According to the Court in White v. United Airlines, Inc., Congress wrote USERRA with the intent that paid leave is a “right and benefit” that may be required while their employee is on military leave.  However, this does not mean service members are entitled to paid leave under USERRA.  USERRA only requires paid military leave when such military leave is “comparable” to other forms of employer-provided paid leave (“available paid leave”).  The Department of Labor (“DOL”) provides guidance for employers who are engaging in this comparison:

…the employee must be given the most favorable treatment accorded to any comparable form of leave when he or she performs service in the uniformed services.  To determine whether two types of leave are comparable, the duration of the leave may be the most significant factor to compare.  For instance, a two-day funeral leave will not be “comparable” to an extended leave for service in the uniformed service…Other factors such as the purpose of the leave and the ability of the employee to choose when to take the leave should also be considered.

Thereafter several other Courts of Appeals in other federal circuits issued decisions that relied upon and used the same analysis of White v. United Airlines, Inc., and related Guidance from the Department of Labor (DOL).  Thus, it is now clear that USERRA requires an employer to provide paid leave for service members performing military duties when the employer, pursuant a contract, agreement, policy, or practice, provides paid leave for other “comparable” leaves of absence.  To determine the level of comparability between the military leave and available paid leave a court looks at how comparable the two are in (1) duration (most significant), (2) purpose, and (3) the amount of discretion the employee has in choosing when to take leave.

To aid in compliance with USERRA, employers should review their paid leave policies and practices.  Any current paid leave offered as part of an employment agreement (e.g., sick leave) will be compared to the military leave in question based on duration, purpose, and/or the amount of employee discretion over when to take such leave.  If the available paid leave is sufficiently comparable to the military leave in question, the employer is required to provide paid leave.  Therefore, it is important for an employer to take inventory of their paid leave policies for when employees may be called away on official service duties.