Pressure on employers to review military leave policies and re-asses employee benefits has increased in recent months. Under the rationale that employees are already being paid for some specified reasons (such as jury duty, bereavement, and illness) constituents have begun advocating for the payment to servicemembers for military leave as well.
Recently, a U.S. appeals court in Pennsylvania agreed and ordered pay to employees who take a military leave under the condition that their employers offer other comparable short-term paid leave. A 3rd U.S. Circuit Court of Appeals panel unanimously held paid leave to be a “right and a benefit” under the Uniformed Services Employment and Reemployment Rights Act (USERRA); re-emphasizing that if an employer is paying for some other types of leave, it cannot then exclude pay for military leave and servicemembers. This decision was the result of an alleged USERRA violation against a Navy reservist who was denied wages by his employer (FedEx) for his time on military leave despite the employer’s policy of paying workers who took leave for other comparable short-term leave reasons. After a legal battle of appeals, the 3rd Circuit ultimately concluded that USERRA applies to employee benefits generally regardless of distinctions that may be drawn between specific types of benefits (e.g. sick leave and military leave). The Court reasoned that “since employers cannot ‘provide’ military leave, paid or otherwise, to non-military employees, there is no way to deny the benefit in a neutral way.”
A similar situation occurred in February before a Seventh Circuit Court. In that case, a United States Airline pilot and U.S. Air Force reservist brought a class action lawsuit on behalf of himself and other pilots who took unpaid leaves in order to attend military training.
Although these decisions are only currently binding in Pennsylvania, New Jersey, Delaware, Illinois, Indiana, and Wisconsin, it is expected for courts nationwide to trend toward reaching the same conclusions as more cases continue to come to light.
If you have a question about your rights or obligations under USERRA, either as servicemember or as an employer, contact Michael Haeberle or Jordan Matyas.
ABOUT THE AUTHORS
Jordan Matyas – Clients benefit from Jordan’s more than two decades in government including working in the White House, the Legislature, and as a regulator for the State and most recently as the Chief of Staff at the Regional Transportation Authority. Jordan is also a registered State and City lobbyist, working with clients on government relations, legislation, policy, and other aspects of public affairs.
Michael Haeberle – Clients contact Mike when they need a litigator. He assists businesses and individuals in cases pending in court, arbitration and administrative agencies, and has tried cases before judges, juries, arbitrators, and administrative law judges, with a focus on business lawsuits, contract litigation, shareholder disputes (business divorces), and professional negligence cases.