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Seventh Circuit holds that employers may have to provide paid USERRA leave if it provides pay for other comparable leaves

USERRA is the federal military leave law that requires employers to provide workers time-off for military-related leaves. USERRA leave is generally unpaid. However USERRA, sec. 4316(b),  provides that employees must receive “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 or established while such person performs such service.”

The Seventh Circuit recently held in a case involving United Airlines that sec. 4316(b)’s “other rights and benefits” language includes “comparable” paid leave. The Seventh Circuit looked to DOL regulations, 20 CFR 1002.150(b), that explain paid leave is “comparable” and must be provided to USERRA leave-takers if is is comparable in terms of “the duration of the leave,” as well as “the purpose of the leave and the ability of the employee to choose when to take the leave.” However, it cautioned as to the last factor — the ability to schedule leave — an employee’s voluntary decision to enlist should not be considered.

Did United Airlines owe its pilot pay for time he took off for “periodic military-training sessions” under its jury duty policy, its sick leave policy or any of its “other short-term” paid leave policies? The Seventh Circuit held it did not have sufficient evidence to weight the comparability of such leaves; therefore, it remanded the case back to the trial court for further consideration.

Source: White v. United Airlines, Inc., — F.3d —, 2021 WL 365210 (7th Cir. 2/3/2021)

First and Seventh Circuit decisions illustrate the “adverse employment action” requirement in EEO cases

As a general rule, the EEO laws, such as Title VII (race, gender, religion, etc.) and the ADEA (age), do not allow a plaintiff to sue for the everyday “slings and arrows” they might suffer in the workplace (quoting Shakespeare’s Hamlet). Rather, the law requires an “adverse employment action.” The adverse employment action test requires the plaintiff to show material harm to the terms and conditions of their employment. That doesn’t always have to mean being fired or demoted. In retaliation cases, it can be anything a reasonable worker would find sufficient to chill them from reporting misconduct.

Two recent decisions by the First and Seventh Circuit illustrate the kinds of conduct that do not rise to the level of an adverse employment action.

In the First Circuit case, the plaintiff argued that each of the following, separately and together, was sufficient, but the court disagreed:

  • The plaintiff’s supervisor allegedly demonstrated anger and overreacted when the plaintiff went over his head.
  • The supervisor allegedly made a temporary change to the plaintiff’s schedule.
  • The supervisor allegedly told the plaintiff to pull down his pants when the plaintiff said he had a skin condition.
  • The supervisor and two coworkers allegedly called the plaintiff a “cry baby.”
  • When the plaintiff took a medical leave but did not provide the required medical documentation, his leave was converted to paid vacation.

In the Seventh Circuit case, that court held the following was insufficient to prove an adverse employment action:

  • The plaintiff’s request for medical leave was, allegedly, originally misclassified as paid sick leave not FMLA leave.
  • A psychological examination had, allegedly, been requested of him in circumstances where the evidence such a request was “not unusual” (the plaintiff was a police officer and the psychological exam was requested as part of his clearance to return to duty).
  • Approval of his request to work a secondary job had allegedly been delayed for three months.

As the First Circuit noted, the adverse employment action requirement may seem harsh, but it remains the well established threshold that a plaintiff must cross to warrant court litigation.

Today’s opinion is a lesson straight out of the school of hard knocks. No matter how sympathetic the plaintiff or how harrowing his plights, the law is the law and sometimes it’s just not on his side. See Medina-Rivera v. MVM, Inc., 713 F.3d 132, 138 (1st Cir. 2013) (quoting Turner v. Atl. Coast Line R.R. Co., 292 F.2d 586, 589 (5th Cir. 1961) (Wisdom, J.) (“[H]ard as our sympathies may pull us, our duty to maintain the integrity of the substantive law pulls harder.”)

Source: Freelain v. Village of Oak Park, case no. 16-4074 (7th Cir. 4/30/18); Sepulveda-Vargas v. Caribbean Restaurants, LLC, case no. 16-2451 (1st Cir. 4/30/18).