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.