Tag Archive for: USERRA

Ninth Circuit holds USERRA leave must be paid if employer offers “comparable” paid leave

In Clarkson v. Alaska Airlines, Inc., the Ninth Circuit held that USERRA leave must be paid if the employer offers other “comparable” paid leave. To determine whether other paid leave is “comparable” to USERRA leave, the Ninth Circuit identified three factors: “duration, purpose, and control,” of which, it said, duration is the most important, and in gauging duration, the Ninth Circuit held that the analysis should look at the actual duration of USERRA leave sought by the plaintiff, not in general at, for example, the maximum hypothetical USERRA leave a worker might wish to take.

The Ninth Circuit remanded the case before it to determine whether the paid leave offered by the employer was “comparable,” requiring it to pay for the plaintiff’s USERRA leave. Thus, the Ninth Circuit held companies cannot take a “categorical” approach to payment for USERRA leave but must consider each individual worker’s circumstances.

Military leaves vary greatly in length, and the longest leaves can last years. Were we to adopt a categorical approach to military leaves, no other type of leave would look similar, and servicemembers would not be protected under § 4316(b)(1).

Although this was not the first case to hold that in theory USERRA leave may have to be paid if comparable paid leave is offered, it is the first appellate decision to address what “comparability” means, how to gauge it, and, more importantly, to reject a “categorical” analysis.

The opinion was issued by a 3-judge panel of the Ninth Circuit. It is unknown at this time whether the entire Ninth Circuit will rehear the case or if an appeal to the Supreme Court will be sought, much less how other courts will view this “comparability” test.

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San Francisco mandates paid military leave

San Francisco has broken ground, becoming the first jurisdiction to require that certain employers pay certain employees certain amounts of paid military leave. The leave is generally capped at 30 days per year and can be waived by the workers’ union in a collective bargaining agreement.

As noted in a prior post, at least one court has held that the federal military leave law (USERRA) requires paid leave if the company offers paid leave to people on similar non-military leaves, reasoning that USERRA prohibits discrimination against military leave.

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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)

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