The Uniformed Services Employment and Reemployment Rights Act (USERRA) applies to all private employers in the U.S., regardless of size, and requires them to provide unpaid leave for up to five years for certain absences related to an employee’s service in the military. While employers may choose to pay for a portion of this time, there was no requirement to do so – until this year.
USERRA generally requires employers to provide the same “rights and benefits” to employees during a military leave of absence that the employer provides to similarly situated employees on non-military leave. For instance, if an employee is out on military leave for two years and would have received a promotion had she not taken the leave of absence, the employer is generally required to promote that employee accordingly upon her return.
Casey Clarkson, an Alaska Airlines pilot, filed a class-action lawsuit in 2019 challenging the provision’s application to paid leaves provided by employers. He alleged that Alaska Airlines violated USERRA by providing paid leave for non-military leaves, such as jury duty, bereavement and sick leave, but not providing paid military leave. Clarkson claimed he and other similarly situated employees were owed back pay for their past, unpaid military leaves of absence.
The trial court granted Alaska Airlines’ motion for summary judgment, finding the company’s employee sick and jury duty leaves were not comparable to military leaves, meaning it was not in violation of USERRA. Clarkson appealed and, earlier this year, the 9th U.S. Circuit Court of Appeals reversed the trial court’s decision and found that Alaska Airlines’ non-military leaves indeed were comparable to military leave under USERRA. The 9th Circuit found that the company’s jury duty, sick and other non-military leaves could be similar to military leave in terms of duration of the leave, the purpose of the leave and the ability of the employee to choose when to take the leave. The case was remanded back to the district court for a jury to decide whether Alaska Airlines’ non-military leaves are comparable to military leave and thus whether employee service members should be paid for military leave.
This decision applies only to employers in the 9th Circuit for now but other federal circuits may follow suit, so all employers should continue to monitor this issue and stay tuned for more updates. In addition, employers – especially those with employees in multiple states throughout the country – may consider modifying their employee leave policies to ensure compliance.
In light of the 9th Circuit decision, however, a paid, time-off policy that allows employees to use leave for any reason, including military leave, may fall short of meeting the requirement. If an employer provides other types of paid leave for short-term absences, the employer may want to include another similar-length, short-term absence specifically for military leave as well to be compliant.
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