On Feb. 1, 2023, the U.S. Court of Appeals for the Ninth Circuit held that employers who provide paid short-term leave for some reasons — such as for sickness, bereavement or jury duty — must also pay employees who take short-term leave for military service under the Uniformed Services Employment and Reemployment Rights Act (USERRA).
USERRA protects military service members and veterans, including reservists and National Guard members, from employment discrimination on the basis of their service. The law applies to all employers, no matter their number of employees, and it allows service members to regain their civilian jobs following a period of uniformed service.
USERRA entitles service members who are “absent from a position of employment by reason of service in the uniformed services” to the same “rights and benefits not determined by seniority” as nonmilitary employees who take leave. Where the employer provides varying benefits according to the type of leave, the service member must be given “the most favorable treatment accorded to any comparable form of leave.”
The type of leave that qualifies as comparable was at the heart of the Ninth Circuit’s recent opinion, Clarkson v. Alaska Airlines, Inc. In January 2019, an airline pilot brought a class action suit against Alaska Airlines and its subsidiary, Horizon Air, alleging the employer owed him and other pilots pay for time they took off from work for short-term service duties. The pilots argued that other airline pilots received pay when they took comparable nonmilitary short-term leave, namely jury duty, bereavement leave and sick leave. A U.S. District Court in Washington ruled for the airlines, holding the pilots’ military leave was not comparable to other paid short-term leave, in part because it was more frequently taken.
The Ninth Circuit reversed, finding the district court’s comparability analysis flawed because it compared all military leaves, rather than just short-term military leaves, to the other paid leave provided by the airlines. As military leave varies greatly in length, up to several years, to treat all types of military leave categorically would “render USERRA’s protections meaningless,” because “no other type of leave would look similar.”
The district court also erred by considering the frequency of the leave taken. Congress intended to protect service members during their frequent absences from civilian work with the full understanding that those frequent absences could cause considerable inconvenience to an employer. This protection applies even to service members, such as pilots, who are required to take leave more frequently than most service members. Instead, the district court should have focused on just three factors to conduct an individualized analysis and decide whether the different types of leave were comparable: (1) duration of leave, (2) purpose of leave and (3) ability of the employee to control when to take the leave. Duration of leave is “the most significant comparability factor.” Ultimately, the comparability of the leave is a question of fact to be analyzed on an individualized basis.
The federal courts of appeals that have reviewed this issue have spoken unanimously in upholding USERRA protections. In issuing this opinion, the Ninth Circuit joins the Seventh and Third Circuits in ruling that employers who pay employees for some types of short-term leave must provide equal benefits to employees who take short-term leave for military service. These three recent opinions illustrate the importance of employers frequently reviewing their benefit policies for compliance with shifting legal requirements.
If you have questions about how this opinion affects your business, or any other aspect of labor and employment law, please contact the authors of this article or any member of the firm’s labor and employment team.