Paid Military Leave Required Under USERRA? - American Society of Employers - Michael Burns

EverythingPeople this week!

EverythingPeople gives valuable insight into the developments both inside and outside the HR position.

Latest Articles

Paid Military Leave Required Under USERRA?

new normal - keyboard with mask

ASE’s 2019/20 Michigan Policies and Practices Survey reports that although most employers offer all necessary time off to employees that are in the military or national guard, most do not offer any supplemental pay to employees that go on military leave for such activities as annual National Guard training or Army Reserve active duty services.  Based upon a 7th Circuit Court of Appeals decision handed down at the start of February, this may be about to change.

In White v. United Airlines, Inc., the 7th Circuit Court ruled that employers must provide short term paid military leave if they provide other employees comparable non-military paid leave. This leave could be for time off such as jury duty or bereavement leave.

The question arose from a lawsuit that argued that the Uniformed Services Employment and Reemployment Rights Act of 1994’s (USERRA) Section 4316 (b) requires employers to provide the same “rights and benefits” as those given for non-military employees. This section states  employers must provide  a  person covered by USERRA “any advantage, profit, privilege, gain, status, account, or interest (other than wages or salary for work performed) that accrues by reason of an employment contract or agreement or an employer policy, plan, or practice and includes rights and benefits under a pension plan, a health plan, an employee stock ownership plan, insurance coverage and awards, bonuses, severance pay, supplemental unemployment benefits, vacations and the opportunity to select work hours or location of employment.”

Somewhat surprisingly (given the law has been in place since 1994) prior to this ruling the question of whether Section 4316 (b) guaranteed some paid military leave benefit was an open question. Most people believed this section of USERRA really applied to resumption of benefits upon return and did not mean the benefits an employer provided should extend out into the time off period when they were on active duty. Ergo some employers have extended some benefits like supplemental pay for a pre-determined time period and paying the employees benefit premiums for some time out on leave. But this additional pay and benefits were optional.

The 7th Circuit Court of Appeals however held in White that as a matter of law, paid leave does fall within the “rights and benefits” (Sec. 4316 (b)) section of USERRA, and if an employer provided some comparable non-military absence benefits this benefit should be extended to employees in military service under USERRA. The 7th Circuit Court left open whether certain non-military paid leave benefits were sufficiently “comparable” to qualify for USERRA coverage stating that the USERRA’s regulations direct employer to consider 1.) The duration of the leave; 2.) The purpose of the leave and 3.) The ability of the employee to choose when to take the leave. Duration is the most important factor the Court stated.

The Court reasoned the comparability analysis should take into consideration not whether the employee had the ability to “choose when to take leave” (to voluntarily join the military for instance) but rather whether the employee in military service has control over the timing of the leave. The primary beneficiaries of this interpretation of USERRA would be National Guard and Army Reserve members whose military leaves are sporadic and of short duration. These would be comparable to other short term paid leaves like jury duty, bereavement, and sick leave.

Before everyone scrambles to change their paid leave policies, keep in mind that the 7th Circuit Court of Appeals is just one Circuit. In fact, the 3rd Circuit Court of Appeals is looking at a similar case resulting from two lower District Court’s rulings. One of those lower Courts found similar to the 7th Circuit but the other Court ruled that Congress “unambiguously excludes paid military leave from the “rights and benefits” section of that law.” Travers v. FedEx Corp (ED PA). Most Michigan employers are in the 6th Circuit, so technically this issue is undecided here.

ASE members, particularly with large numbers of employees that serve in the National Guard and Army Reserve, should watch for developments on this new USERRA interpretation.

 

Source: Seventh Circuit Rules USERRA May Require Employers to Provide Paid Military Leave. Akin Gump Straus Hauer & Feld LLP in Lexology 2/12/2021

Filter:

Filter by Authors

Position your organization to THRIVE.

Become a Member Today