Pop Quiz: Do employers need to provide paid military leave?
- No, because state-mandated military leave is usually unpaid.
- No, because generally, military members are paid by the federal government for their service.
- Yes, but only if the employer wants to.
- Yes, because the courts are saying it should be paid if they provide pay for other, similar leaves of absence.
The Answer: D. Recent case law suggests yes, employers need to provide paid military leave, so long as the employer provides pay for other, similar leaves of absence. Under the Uniformed Services Employment and Reemployment Rights Act (USERRA), employers must treat employees on military leave equally with other employees with respect to the terms, conditions, and privileges of employment. Most military leaves of absence, as mandated by state laws, are unpaid; however, according to recent court cases, this equal treatment under USERRA includes treatment with respect to paid leaves of absence. At least two recent court cases, summarized below, provide some insight into how courts are deciding these USERRA claims.
Fast Facts on USERRA in the Judicial System
USERRA, passed into law by Congress in 1994, is the latest in a series of laws, such as the Veterans’ Reemployment Rights Act of 1974 (“VRRA”), that Congress enacted to protect the rights of military service members who take leaves of absence from their employers to perform military service. Congress stated in the first section of USERRA that its goals, among others, are “to encourage noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service” and to prohibit civilian employers from discriminating against employees because of their service in the military.
Since its passage, many lawsuits have been filed by plaintiffs seeking relief under USERRA. Our keyword search with an online legal research service and proprietary database provider uncovered approximately 1,850 court opinions addressing USERRA claims. Such court filings increased more than 10 times after the year 2000, and between 2010 and today, almost 1,300 cases turn up in a USERRA search. USERRA claims are a hot topic in U.S. courtrooms. In these cases, courts regularly construe USERRA’s provisions liberally in favor of the service member, to align with congressional intent to protect the rights of U.S. armed service members. Likewise, the U.S. Supreme Court has recognized that “interpretative doubt is to be resolved in the veteran’s favor.” As such (spoiler alert!), it’s not surprising the below cases also found in favor of the plaintiffs.
James P. Scanlan v. American Airlines
Eastern District of Pennsylvania, 2019
(384 F. Supp. 3d 520)
James P. Scanlan, a commercial airline pilot and a Major General in the United States Air Force Reserve, worked as a pilot for American Airlines since October 1999. He also served in the armed forces since 1985. Throughout his employment with American Airlines, Mr. Scanlan took short-term periods of leave to perform his Air Force Reserve obligations.
While he was on military leave for a total of 128 days in 2016 and for 132 days in 2017, most of the periods of leave were for only a few days at a time although some extended up to 14 days. As a policy, American Airlines did not pay employees out on short-term military leave, including Mr. Scanlan, but did pay other employees for taking other forms of short-term leave, such as jury duty, sick leave, and union leave.
In the fall of 2018, Mr. Scanlan brought a class action against American Airlines in the District Court for the Eastern District of Pennsylvania, specifically alleging that he and others similarly situated have been wrongfully denied certain rights and benefits by American Airlines while on short-term military leave – benefits which other employees receive while absent from work for jury duty, sick leave, and union leave.
In its opinion, the Court noted that employees absent from work for non-military reasons were treated more favorably than those who were absent on short-term military duty, stating that USERRA provides a broad definition of rights and benefits, “embrac[ing] not only wages or salary for work performed but much more.” The Court continued, “While compensation for time on military leave is not required when it would be preferential treatment, [USERRA] mandates payment when failure to pay such compensation constitutes unequal treatment for those on reserve duty.” As Mr. Scanlan was able to prove that he and those similarly situated on unpaid short-term military leave have not been afforded equal treatment compared to other employees on other types of paid short-term leave, the District Court found that the pilot brought a valid claim that American Airlines violated USERRA by not paying Mr. Scanlan for his short-term military leave. Multiple subsequent motions by American Airlines to dismiss have been denied, and most recently, on October 8, 2021, the suit was certified as a class action.
Gerard Travers v. FedEx
3rd Circuit Court of Appeals, 2021
(8 F.4th 198)
“Those who serve in the military must also balance civilian life, including time away from a civilian job. To help servicemembers strike that balance, Congress enacted the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”).”
Gerard Travers served in the United States Navy and the Naval Reserve. He also works a civilian job for FedEx and fulfilled his Reserve duties during leaves from work. When Mr. Travers took leaves from work to fulfill his Reserve duties, he received no compensation from FedEx for those absences because the company does not pay employees for military leave. However, FedEx does pay employees who miss work for other reasons, such as jury duty, illness, and bereavement. Much like Mr. Scanlan in the above case, Mr. Travers believed that to be unequal treatment and a violation of USERRA.
Mr. Travers filed suit in the United States District Court for the Eastern District of Pennsylvania. However, the District Court dismissed Mr. Travers’s complaint, concluding that paid leave was not a “right and benefit” under USERRA. Mr. Travers appealed to the 3rd Circuit Court of Appeals.
The 3rd Circuit Court of Appeals disagreed with the lower court, considering, when looking at two groups of employees who are not at work, Group 1, for military service, Group 2, for anything else, the question simply is: “Does Group 2 get something that Group 1 does not?” Under USERRA, the Court questioned whether there were “other” benefits that one Group received, where the other did not, stating, “That ‘other’ benefit could be most anything—say, health insurance, a bonus, or a gym membership. What matters is who gets that benefit. Something the employer offers to Group 2 but denies to Group 1 becomes the comparator for a USERRA differential treatment claim.”
Under this distilled analysis, the Court found, by providing Group 2 (the employees on leave for jury duty, illness, bereavement, etc.) with a paid leave of absence, but denying such paid leave to Group 1 (the employees on leave for military service), such conduct constituted differential, unequal treatment between the groups, thus a violation of USERRA.
As a result of this analysis, the Court of Appeals concluded, “[T]he best reading of USERRA directs employers to provide the benefit of compensation when they choose to pay other employees for comparable forms of leave. . . . Best understood, USERRA does not allow employers to treat servicemembers differently by paying employees for some kinds of leave while exempting military service. So we will vacate and remand the District Court’s grant of FedEx’s motion to dismiss.” Mr. Travers’ lawsuit lives to see another courtroom.
What employers should do
Given the case law, and courts’ tendencies to lean in favor of the service member plaintiff, employers should evaluate their military leave policies and consider offering paid leave for military reasons if they offer other paid leave.
What ReedGroup is doing
At ReedGroup, we are the experts at leave management solutions, providing both outsourcing and software solutions to support leave of absence needs, including helping navigate the complicated world of interfacing leaves of absence. You can outsource management of some or all of your employees’ leaves to ReedGroup, or choose our software-as-a-service (SaaS) to better manage absence in-house. Need more help? Contact us to get started.
Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.