New Developments in USERRA and Military Leave
By Rebecca Bruch, Esq.
I find myself writing this blog two days after the midterm elections, and one day before Veteran’s Day. Of course, like all of us, I am always happy to get a day off for Veteran’s Day. For a long time, it was the traditional start of my Christmas shopping season, and I would travel to Walnut Creek and contribute to keeping the California retail economy thriving. But as a Vietnam-era veteran, the solemnity of the occasion has never escaped me. I am forever grateful to all those people who have sacrificed and were willing to give their lives, in large part or small part, so that the voting process that occurred two days ago could be available for those of us who choose to participate in it. To you who serve or have served, I thank you for your service, and for making election day possible.
That being said, there are some new trends and developments in military pay for employees which you need to watch, as major changes are in the air. The Uniformed Services Employment and Reemployment Rights Act (“USERRA”) is a federal law, passed in 1994, that 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. USERRA applies to both public and private employers and it applies to all employers, no matter the number of employees. It is enforced by the Department of Labor.
While employers may not interfere with a service member’s military service or deployment, it has from its inception not required employers to pay employees who are deployed or involved in service-related absences. The protections focus on making sure service members are not disadvantaged in their civilian careers because of their military service; that they are promptly reemployed in their civilian jobs upon return from duty; and are not discriminated against by employers because of past, present, or future military service. It is a federal law, and Nevada has a similar state law which provides the same protection.
In the last few years, lawsuits for paid military leave have been popping up across the country. Recently both the Seventh and Third Circuits sided with military reservists advancing these claims. One case was brought against United Airlines; the other was brought against FedEx. The arguments of employees, frequently in the form of class action suits, claim that employees who are involved in military service are being discriminated against because other employees are being paid for various kinds of leave, and as such, military employees are being treated differently and being discriminated against. District courts in at least two cases have rejected the arguments but were overturned on appeal. The nuance of the law is that although USERRA does not impose a general mandate for employers to pay all service members taking military leave, it does mandate service members to be treated equally to other workers.
The courts have developed a case-by-case analysis to determine whether in any given situation, military leave is similar to other paid leaves for employees, which would consequently mandate paid leave for military employees. The analysis looks at paid leaves such as bereavement, sick pay, vacation pay and jury duty. If an employer is paying employees in those kinds of situations, the courts have said, then they may need to pay employees on military leave. The question is whether military leave is “similar leave” to other paid leaves. The courts have considered three factors: (1) duration of the leave; (2) purpose of the leave; and (3) the ability of the employee to control when to take the leave.
Currently pending in the Ninth Circuit is the case of Clarkson v. Alaska Airlines. The U.S. District Court for the Eastern District of Washington dismissed the pilots’ claims, and the pilots appealed it to the Ninth Circuit. In looking at duration, the various District Courts have noted that jury duty, sick leave and bereavement leave are much shorter than typical military leave, typically three to five days. Standard reserve leave is nine-plus days, and oftentimes multiple leaves are taken each year, some of which last for a year or longer. On average, military employees may participate in 17 to 47 military leaves during a three-year period. Sick days over a three-year period average 33 days; average military leave over a three-year period averages 359 days. The District Courts said that in looking at the duration of military versus other leave, they are not similar, which would not support paying for military leave. The appellate courts disagreed.
In looking at purpose, District Courts have observed that military involvement is typically a parallel and simultaneous career that provides extra income. Jury duty is required, and thus supports payment for employees who are serving on a jury. Bereavement leave is for the limited purpose of grieving the death of a loved one. PTO is a time for rest, not to pursue another career. Employers have argued that bereavement leave, and sick/vacation time serve to ensure mental and physical fitness. Employers have argued the purpose of military leave is not similar to the purpose for other paid leaves, and thus, does not compel pay for military employees. The District Courts agreed but were overturned.
Employers argue in the third prong, the ability of the employee to control the absence is not similar. Military leave is automatically granted, and cannot be denied, while other paid leaves are subject to approval by the employer. Military leave is scheduled in advance, while bereavement, sick leave and jury duty are typically unexpected with minimal opportunity to reschedule. Employers argue other leaves are not comparable in the ability of the employee to control it. The District Courts agreed; but the Circuit Courts overturned the lower decisions.
The Seventh Circuit held that if an employer provides pay during other comparable absences, it must provide pay during military leave. The FedEx case overturned the District Court’s order that pay for military leave is not a right and benefit under USERRA. The Third Circuit focused on whether the FedEx rights and benefits of pay to employees who miss work for nonmilitary reasons but denies pay to the employees absent for military service violates the essence of USERRA. The Seventh Circuit held USERRA was violated.
Last year Walmart was involved in a class action lawsuit with similar claims by its military employees. Walmart paid approximately 10 million dollars to settle the case, and completely revamped its military pay policy. Walmart now guarantees full pay for employees on military leave for up to one month, and partial wages for military leaves up to one year.
What is the take-away here? Keep a close eye on the Clarkson case. My spidey sense tells me that given the fact that we are in the Ninth Circuit, there is a good chance the Ninth Circuit will go the same direction as the Third and Seventh Circuits. In the meantime, we highly recommend you take a look at your paid leave policies and think about how they would fare in a similar analysis of duration, purpose and control of the employee. For those of you with collective bargaining agreements, this may very well be addressed in those contracts, and likely are providing for some kind of pay for military leave. For those of you whose employees are not subject to a collective bargaining agreement, unless you can come up with better arguments than the folks at United Airlines, FedEx and Alaska Airlines, you might want to rethink your practices with regard to pay for military leave.
If you have any questions, you are invited to contact any of the employment lawyers at Lemons, Grundy & Eisenberg.