Trial Magazine

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) §4316(b)(1)(B) provides that when an employee is absent for military service, the employee is “entitled to such other rights and benefits . . . as are generally provided by the employer . . . to employees having similar seniority, status, and pay who are on furlough or leave of absence.”¹ In other words, “employees who take military leave from their jobs must receive the same ‘rights and benefits’ provided to employees absent for other reasons.”² If the employer’s practice varies among the types of non-military leave, military leave must be provided “the most favorable treatment” afforded by any comparable leave.³

While USERRA §4316(b)(1)(B) has been in effect since 1994, case law addressing this provision has been sparse until recently.⁴ Now five circuit courts (and several district courts) have issued decisions addressing USERRA §4316(b)(1)(B)—including two in the last year. This article addresses what you need to know about those decisions when representing an employee who has taken military leave.

History of USERRA §4316(b)(1)(B)

Understanding USERRA §4316(b)(1)(B) requires understanding its predecessor, the Veterans’ Reemployment Rights Act (VRRA) §2021(b)(3).⁵ The U.S. Supreme Court held that VRRA §2021(b)(3) “require[d] that reservists be treated equally or neutrally with their fellow employees without military obligations.”⁶ It was not, however, intended to require “employers to provide special benefits to employee-reservists not generally made available to other employees.”⁷

After the Supreme Court’s decision, the Third Circuit in Waltermyer v. Aluminum Co. of America addressed whether a reservist was entitled to pay for a holiday that occurred during his leave of absence for a two-week military training period.⁸ In that case, a collective bargaining agreement provided holiday pay to employees “who were absent for reasons beyond their control,” such as when an employee was on a scheduled vacation, on certain layoffs, performing jury service, a witness in court, on certain bereavement leave, or on certain other sick leave.⁹

In considering the purpose of the holiday pay—to discourage voluntary employee absenteeism—and relying on the Supreme Court’s interpretation of VRRA §2021(b)(3), the Third Circuit held that the servicemember was entitled to holiday pay because the employer provided such pay to other employees whose “absence during the holiday week [was] involuntary.”¹⁰

In reaching this conclusion, the Third Circuit identified two characteristics of absences for which pay was provided: the absences were not generally of extended duration and were for reasons beyond the employee’s control.¹¹ As the dissent in Waltermyer observed, the implication was that if military leave is comparable to jury duty leave then “the reservist [was] not entitled to just holiday pay but to full pay for all days not worked, since employees absent for jury duty receive full pay.”¹²

In enacting USERRA, both the Senate and House reports explained that §4316(b)(1) was intended to codify Waltermyer’s holding.¹³ The House report noted that “to the extent the employer policy or practice varies among various types of non-military leaves of absence, the most favorable treatment accorded any particular leave would also be accorded the military leave, regardless of whether the non-military leave is paid or unpaid.”¹⁴

Litigating Claims

When representing employees with claims under USERRA §4316(b)(1)(B), be sure to consider these key issues.

Employers cannot use labels that attempt to distinguish military leave from other leave ‘to deprive a veteran of substantial rights guaranteed by’ USERRA.

Leave of absence. The first question is whether the employee was on a leave of absence. “‘Leave of absence’ is not a technical term under USERRA but simply means an absence from work.”¹⁵ Employers cannot use labels that attempt to distinguish military leave from other leave “to deprive a veteran of substantial rights guaranteed by” USERRA.¹⁶

The text of USERRA §4316(b) clarifies that it affords protections to “a person who is absent from a position of employment by reason of service in the uniformed services.” This means that leave does not include every day a servicemember performs military duties, but only when they otherwise would have been working.

As a result, a servicemember is only entitled to benefits when they “would have worked at [their civilian employer] but for [their] military obligations” and not for periods of service performed on days off.¹⁷ This comports with the ordinary meaning of being absent from work: “One cannot be absent from work unless required to be working.”¹⁸

Rights or benefits under USERRA. The next question is whether your client is seeking a right or benefit under USERRA §4316(b)(1). The term “rights and benefits” is defined in USERRA §4303(2)¹⁹ and is “extremely broad.”²⁰ For example, rights and benefits under USERRA have been held to include a transfer of employment, a shift in job duties, and accrual of leave while absent.²¹ The question is simply: “[D]oes Group 2 get something that Group 1 does not?”²²

Before 2019, a handful of cases had addressed whether servicemembers could receive holiday pay or other types of pay (such as bonuses or overtime pay) when taking military leave when other leaves qualified for such payment.²³ However, those cases did not address whether paid leave was a right or benefit under USERRA §4316(b)(1).²⁴

In the last several years, “federal courts have uniformly determined that paid leave—i.e., compensation at the normal rate during leave” is “a right or benefit under the ordinary meaning of §4303(2)” and therefore USERRA §4316(b)(1).²⁵ This issue has now been addressed by the Third and Seventh Circuits, as well as several district courts.²⁶

The arguments raised in different courts by employers seeking to deny employees pay for military leave were largely identical—and there are several helpful principles from these decisions. First, courts found that a parenthetical in USERRA §4303(2), “including wages or salary for work performed,” does not by “negative implication, exclude[ ] wages or salary for work not performed, such as paid leave.”²⁷

Second, the list of examples in USERRA §4303(2) does not exclude paid leave even if that interpretation means some of the examples would be duplicative or overinclusive.²⁸ Third, there is no conflict between USERRA §4316 and statutes that require a specific amount of paid military leave (such as up to 15 days under 5 U.S.C. §6323 for military leave)—courts concluded that those military pay statutes establish a floor not a cap on benefits, and §4316(b)(1) “sets forth an equality principle.”²⁹

Comparable leave. The next question is whether military leave afforded to a servicemember is comparable to non-military leave provided to similarly situated employees. USERRA §4316(b) does not identify the factors to assess comparability, but a U.S. Department of Labor regulation provides: “In order to determine whether any two types of leave are comparable, the duration of the leave may be the most significant factor,” but “other factors such as the purpose of the leave and the ability of the employee to choose when to take the leave should also be considered.”³⁰

Courts have agreed that assessing comparability involves fact questions that are not appropriate on a motion to dismiss³¹ and are properly addressed on summary judgment or at trial. Only a few courts have considered whether and what other types of leave are comparable to military leave, and there are no reported decisions after trial.

The earliest case to address the issue was Rogers v. City of San Antonio, in which 15 firefighters challenged the city’s leave practices.³² The Fifth Circuit found there were material issues of disputed fact as to whether jury duty, bereavement, and sick leave were comparable to the plaintiffs’ military leave.³³ Then in 2007, the Federal Circuit affirmed a decision by the Merit Systems Protection Board that a federal employee was not entitled to holiday pay while he was on military leave for over two years because that leave period was “significantly longer than the typical period” for which the government provided paid leave to employees acting as a juror or witness.³⁴ Importantly, however, the Federal Circuit found that whether the leave was paid or unpaid was irrelevant for the comparability analysis.³⁵

In early 2023, in Clarkson v. Alaska Airlines, the Ninth Circuit addressed how to evaluate whether short-term military leave taken by pilots was comparable to certain non-military leave offered by the airline defendants—namely jury duty, bereavement, and sick leave.³⁶ The Ninth Circuit held that the three factors in the Department of Labor regulation—the duration of the leave, the purpose of the leave, and the ability of employees to choose when to take the leave—“should be weighed most heavily” when considering whether two types of leave are comparable, not unenumerated factors.³⁷

First, as to duration, the Ninth Circuit held that the length of the specific military leave at issue (for which pay was sought) must be compared to the duration of the allegedly comparable non-military leave—and that the district court had erroneously considered all military leaves, including those for which the plaintiff did not seek pay.³⁸

Once only short-term military leave was considered, the Ninth Circuit found that statistics comparing the average, median, mode, and longest of the short-term military leave with the comparator leaves sufficed to create a jury issue as to whether the duration of the leaves was comparable.³⁹ The Ninth Circuit also held that “frequency” is a “distinct concept” that is “not encompassed by duration” and that considering frequency “undermines the purpose of USERRA,” which is designed to protect military leave that occurs “frequently.”⁴⁰

Second, as to purpose, the Ninth Circuit found that the testimony of both the plaintiff and the airline representatives that the purpose of military leave was to perform a civic duty and public service was sufficient, despite the airlines’ argument that a significant purpose of military leave was to allow pilots to “pursue parallel careers.”⁴¹

Finally, the Ninth Circuit found that conflicting evidence about the degree of control that pilots had over scheduling military leave as compared to other types of leave created a jury question.⁴² In doing so, the Ninth Circuit recognized that other types of leave—including jury duty and sick leave—afforded some scheduling flexibility so that a jury could find these “level[s] of control” comparable to the extent that pilots had some flexibility in scheduling their leave.⁴³ Thus, the Ninth Circuit reversed summary judgment and remanded the case for trial.

Later in 2023, in Myrick v. City of Hoover, Ala.—a case brought by city police officers—the Eleventh Circuit reviewed a summary judgment decision in favor of the plaintiffs that applied the Department of Labor’s three factors in assessing whether military leave was comparable to paid administrative leave.⁴⁴ First, as to duration, the Eleventh Circuit found that evidence solely about the “upper strata of paid administrative leave” was sufficiently comparable to the “longest instances of military leave” at issue.⁴⁵

Second, as to purpose, the Eleventh Circuit found no disputed issue that the purpose of both military leave and administrative leave is to “comply with the law,” including the due process clause and Alabama law that requires paid jury duty leave.⁴⁶ Third, the Eleventh Circuit held that the two forms of leave were undisputedly “similar in terms of control” as employees lacked control of when they took those leaves.⁴⁷ It also held that unenumerated factors could not change the outcome when all “enumerated factors” favor the employees, affirming summary judgment for the police officer plaintiffs.⁴⁸

Implications of Recent Decisions

These recent cases offer some key takeaways. Given the broad definition of a “right or benefit” under USERRA §4303(2), virtually any right or benefit, including paid leave, is protected by USERRA §4316(b)(1)(B). In addition, an analysis of the Department of Labor’s comparability factors will drive the outcome. The Ninth and Eleventh Circuits took slightly different approaches to the comparability factors and reached different conclusions as to whether a jury trial was necessary. These differences are a result of the evidence presented and whether there were disputed facts.

USERRA leave comparability cases are pending in the Third Circuit and in district courts—and other circuits will likely address these issues.⁴⁹ To date, no jury has decided a claim under USERRA §4316, and it is unclear whether jurors will ultimately find that military leave and the various types of non-military leave are comparable. While these recent circuit decisions have eviscerated many of employers’ arguments against providing fair compensation for military leave, employers have other arguments—and even some of the rejected arguments might be favorably viewed by a different circuit.

R. Joseph Barton is a partner at Barton & Downes in Washington, D.C., and can be reached at jbarton@bartondownes.com.

Notes

1. 38 U.S.C. §4316(b)(1)(B).
2. Travers v. Fed. Express Corp., 8 F.4th 198, 202 (3d Cir. 2021).
3. Brill v. AK Steel Corp., 2012 WL 893902, at *5 (S.D. Ohio Mar. 14, 2012).
4. Clarkson v. Alaska Airlines, Inc., 59 F.4th 424, 430 (9th Cir. 2023) (quoting legislative history and 29 C.F.R. §1002.150(a)).
5. “[T]he large body of case law that had developed under those statutes remained in full force and effect, to the extent it is consistent with USERRA.” Rogers v. City of San Antonio, 392 F.3d 758, 762 (5th Cir. 2004).
6. Monroe v. Standard Oil Co., 613 F.2d 641, 646 (6th Cir. 1980).
7. Monroe v. Standard Oil Co., 452 U.S. 549, 550 (1981).
8. 804 F.2d 821, 821 (3d Cir. 1986).
9. Id. at 822.
10. Id. at 825.
11. In dicta, the Third Circuit suggested that vacation was different than the other exceptions. Id. at 825 n.3. As the dissent observed, vacation was not involuntary. Id. at 827 (Hunter J., dissenting).
12. Id. at 827 (Hunter J., dissenting).
13. S. Rep. 103–158 (Oct. 18, 1993); H.R. Rep. 103–65(I) (Apr. 28, 1993).
14. H.R. Rep. 103–65(I).
15. Scanlan v. Am. Airlines Grp., 384 F. Supp. 3d 520, 527 (E.D. Pa. 2019).
16. Id. (quoting Accardi v. Pa. R.R. Co., 383 U.S. 225, 229 (1966) and rejecting such an argument); see also 20 C.F.R. §1002.149.
17. Brill, 2012 WL 893902, at *12.
18. Lickteig v. Bus. Men’s Assur. Co. of Am., 1994 WL 463944, at *4 (W.D. Mo. Aug. 25, 1994) (holding in a non-USERRA case that an employee who “was not scheduled to work on” a particular day was “not absent from work” that day under plain language of that term), aff’d, 61 F.3d 579 (8th Cir. 1995) (finding that when an employee was not scheduled to work, he was not absent from work).
19. USERRA §4303(2) defines “rights and benefits” to mean “the terms, conditions, or privileges of employment, including any advantage, profit, privilege, gain, status, account or interest (including wages or salary for work performed) that accrues by reason of” an employment contract, policy, plan, or practice (including those under any benefit plan, insurance, awards, bonuses, vacation, or opportunity to select work hours or location).
20. Haley v. Delta Airlines, Inc., 2022 WL 950891, at *4 (N.D. Ga. Mar. 29, 2022) (citing other cases for same proposition); Scanlan, 384 F. Supp. 3d at 526.
21. Dorris v. TXD Servs., LP, 753 F.3d 740, 745 (8th Cir. 2014) (transfer of employment); Clegg v. Ark. Dep’t of Corr., 496 F.3d 922, 930–31 (8th Cir. 2007) (dramatic shift in job duties); Maxfield v. Cintas Corp. No. 2, 427 F.3d 544, 552 (8th Cir. 2005) (transfer to a job with different hours); Paxton v. City of Montebello, 712 F. Supp. 2d 1007, 1016 (C.D. Cal. 2010) (accrual of vacation, sick, and holiday leave).
22. Travers, 8 F.4th at 202–03.
23. Even before Waltermyer, several district court decisions addressed the issue of holiday pay. See, e.g., Kidder v. E. Air Lines, Inc., 469 F. Supp. 1060, 1066 (S.D. Fla. 1978) (holding reservist was entitled to holiday pay for week when absent from work due to military leave even where the agreement did not entitle any other employees absent from work to holiday pay); Hanning v. Kaiser Aluminum & Chem. Corp., 1977 WL 1710, at *2 (E.D. La. June 29, 1977) (finding two reservists were entitled to holiday pay during week when on reserve duty where the agreement provided for holiday pay if they worked that week or were on jury duty, witness duty, or bereavement leave). In Hanning, the court rejected the argument that the plaintiffs would receive double pay because there was
    no prohibition on any employee working to earn additional money on a paid holiday. Id.
24. See Brill, 2012 WL 893902, at *12; Rogers, 392 F.3d at 840–41; Kidder, 469 F. Supp. at 1066; Hanning, 1977 WL 1710, at *2.
25. Haley, 2022 WL 950891, at *4.
26. Travers, 8 F.4th at 202; White v. United Airlines, Inc., 987 F.3d 616, 619, 623 (7th Cir. 2021); Won v. Amazon.com, Inc., 2022 WL 3576738, at *9 (E.D.N.Y. Aug. 19, 2022); Haley, 2022 WL 950891, at *4; Baker v. United Parcel Serv. Inc., 596 F. Supp. 3d 1251, 1257 (E.D. Wash. 2022); Scanlan, 384 F. Supp. 3d at 528.
27. Travers, 8 F.4th at 206; see also White, 987 F.3d at 621–22.
28. Travers, 8 F.4th at 206–07; White, 987 F.3d at 622–23. Courts also rejected speculative arguments about the parade of horribles that may result because of the rulings. See Haley, 2022 WL 950891, at *6; Travers, 8 F.4th at 208; White, 987 F.3d at 624; Scanlan, 384 F. Supp. 3d at 527.
29. Travers, 8 F.4th at 208; White, 987 F.3d at 624.
30. 20 C.F.R. §1002.150(b) (emphasis added).
31. Baker, 596 F. Supp. 3d at 1259 (denying motion to dismiss); White, 987 F.3d at 625 (reversing district court decision that dismissed in part on this basis); Clarkson v. Alaska Airlines, Inc., 2019 WL 2503957, at *8 (E.D. Wash. June 17, 2019) (denying motion to dismiss).
32. 392 F.3d at 760.
33. Id. at 771.
34. Tully v. Dep’t of Justice, 481 F.3d 1367, 1369 (Fed. Cir. 2007).
35. Id. at 1371.
36. 59 F.4th at 428–29.
37. Id. at 436.
38. Id. at 433.
39. Id. at 435–36.
40. Id. at 436–37.
41. Id. at 437.
42. Id. at 438.
43. Id. at 439. Ability to choose when to schedule leave may be a relevant consideration, but what is not is whether the servicemember volunteered for service, as USERRA protects both voluntary and involuntary service. Id. at 439, n.16. See also 38 U.S.C. §4303(13) (defining service to include voluntary and involuntary service). USERRA’s predecessor also protected voluntary leave, and courts have rejected arguments that such leave was not protected by USERRA. See, e.g., Eidukonis v. Se. Pa. Transp. Auth., 873 F.2d 688, 695 (3d Cir. 1989), abrogated on other grounds by King v. St. Vincent’s Hosp., 502 U.S. 215 (1991); Gulf States Paper Corp. v. Ingram, 811 F.2d 1464, 1469 (11th Cir. 1987), abrogated on other grounds by King v. St. Vincent’s Hosp., 502 U.S. 215 (1991).
44. 69 F.4th 1309, 1312 (11th Cir. 2023).
45. Id. at 1320.
46. Id. at 1319.
47. Id.
48. Id. at 1320, n.8.
49. E.g., Scanlan, v. Am. Airlines Grp., Inc., 638 F. Supp. 3d 453 (E.D. Pa. 2022, appeal filed Dec. 7, 2022); Won, 2022 WL 3576738, at *9.