EMPLOYERS MAY NEED TO FURNISH PAID LEAVE TO EMPLOYEES TAKING MILITARY LEAVES OF ABSENCE
By Seth Matus
The Uniformed Services Employee and Reemployment Rights Act (“USERRA”) is the law preventing employers from discriminating against employees based on their service in the United States military or national guard. One of the protections provided by the USERRA is that employees taking military leaves of absence receive the same “rights and benefits” as employees taking comparable non-military absences. On February 3, 2021, the Seventh Circuit (the appeals court that covers Illinois, Indiana and Wisconsin) became the first federal court of appeals to examine what this right entails for employers.
In the case of White v. United Airlines, Inc., it was United’s policy that pilots who were absent due to jury duty or illness would receive paid time off, and this time off was included in the company’s profit share plan. Plaintiff Eric White, a United pilot in the air force reserve, brought a class action lawsuit because he was not given paid time off for his short-term military leaves of absence, nor were his military-related absences counted towards United’s profit-sharing plan. The Seventh Circuit ruled that White stated a viable claim under the USERRA. It reasoned that the right was broadly defined under the USERRA and rejected United’s arguments that the law made a distinction between benefits and wages. However, the Seventh Circuit stated that it was incumbent on White to show that his military leaves of absence were comparable to non-military leaves with respect to length and the inability to choose when to take the leave of absence.
The ramifications of the White ruling on the leave of absence policies of many employers could be significant. An increasing number of states are requiring paid leaves of absence for illness, pregnancy and other reasons and many businesses offer paid leave that is more generous than the legal mandate. These businesses may now need to offer the same quantity of paid leave to employees who are absent for training or other military service. Under White’s holding, a failure to do so could at least potentially expose an employer to liability under the USERRA.
So does White require employers to now modify their leave policies to provide paid leave for military leaves of absence? Click here for more thoughts.