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Two employers recently had to deal with class action suits, defending their practice of not paying employees when they went on short-term military leave under the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA generally provides for job-protected unpaid leave, but it contains provisions that might result in requiring employers to pay employees for military leave.

The cases generally looked at whether USERRA’s mandate that military leave be accorded the same “rights and benefits” as comparable nonmilitary leave, requires employers to provide paid military leave to the same extent that it provides paid leave for other absences, such as jury duty, bereavement, and sick leave.

Case #1

As a reservist, Evan took a day or two of military leave every now and then to attend related training sessions. He was not paid for that time. The company’s policy entitled employees to be paid when they took other short-term leaves, such as jury duty or sick leave. This didn’t sit too well with Evan, so he sued, claiming that the company’s failure to provide paid leave to reservists on military leave denied them “rights and benefits” that are given for comparable, nonmilitary leave, which violated USERRA.

In looking at such rights and benefits, the important factor to consider is the duration of the leave. Two days of leave for a funeral, for example, would not be comparable to three years of military leave. A few days of leave for jury duty, however, could be comparable to a few days of leave for reservist training. Other factors include the purpose of the leave and the ability of the employee to choose when to take the leave.

The company argued that USERRA’s rights and benefits include wages for work performed, but when on leave, no work is being performed.

The 7th Circuit Court of Appeals agreed with Evan that the term “rights and benefits” is defined broadly, and paid leave is included. When crafting the law, Congress did not include any exceptions. The phrase wages for work performed is only parenthetical and as such, is an illustration, not an exception. When the law was first written, it excluded wages for work performed as a right and benefit. The statute was changed to delete that.

White v. United Airlines, 7th Cir, No. 19-2546, February 3, 2021

Case #2

Similar to the first case, the employer in the second had a policy of paying employees for short-term absences such as jury duty or bereavement leave, but not doing so for short-term military leave that lasted four days or more.

Nathan was a reservist and took short-term military leave without pay. He filed a claim similar to that of Evan’s in the first case. Again, the court agreed with the employee, pointing to the same reasoning. In addition to pointing out the importance of the duration of the leave, it indicated that the types of leave were all involuntary — employees had no choice.

Tsui v. Walmart Inc., MA District court, 1:20-cv-12309, December 31, 2020

Takeaway: These rulings may have opened the door to the requirement to pay employees for military leave if you provide pay for other forms of leave. Given this, now might be a good time to review all your paid leave policies to see if they would be comparable to military leave and, therefore, require that you pay employees during military leave.