Uniformed Services Employment and Reemployment Rights Act (USERRA) requires employers to provide employees on military leave with the same rights and benefits that are provided to employees on other, similar leaves. If the benefits vary, the employee must be given "the most favorable treatment according to any comparable form of leave."
In a recent case the U.S. Court of Appeals for the Ninth Circuit in Clarkson v. Alaska Airlines, Inc. ruled that employers who provide paid leave for short-term absences, such as jury duty or sick leave, may be required to provide similar paid leave for short-term military purposes under USERRA. The Ninth Circuit's decision clarified that paid non-military leaves should not be compared to all military leaves, which can last from a few days up to years. Rather, a USERRA claim for leave may be defined by the particular length of the military leave at issue. Thus, the Ninth Circuit held that a jury could find the identified non-military paid leaves (i.e. sick leave, jury duty, bereavement, etc.) to be comparable to short-term military leave. The amount and duration of paid military leave would be determined by the amount of paid non-military leave available.
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 the 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.
The Ninth Circuit's decision in Clarkson v. Alaska Airlines, Inc. is in line with decisions made by the Seventh and Third Circuits, who have also upheld USERRA protections. These rulings highlight the importance of employers reviewing their benefits policies for compliance. Employers who voluntarily provide paid leave for non-military reasons such as jury duty, sick leave, or bereavement leave to employees should carefully consider whether they should also be providing paid leave of similar duration and frequency for military purposes, including short-term annual training, to avoid violating USERRA.
If you have any questions about this Alert, we encourage you to reach out to your Shulman Rogers contact for solutions and recommendations for addressing these issues.
To read the full opinion of Clarkson v. Alaska Airlines, Inc., click here.
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