Leave for Military Service Must Receive Same Benefits as Those Provided for Comparable Types of Leave

  • Mar 17, 2021
  • USERRA
  • Grant S. Gibeau

A recent case out of the Seventh Circuit provides employers with a good refresher regarding their obligations with respect to employees who take leave to serve in the armed forces. Specifically, the recent case of White v. United Airlines, Inc. highlights that under certain circumstances an employer may be required to pay a servicemember for their time spent on military leave.

White v. United Airlines, Inc.

The Plaintiff in White was employed as a pilot with United Airlines, and additionally was a member of the Air Force Reserve. Periodically, White was required to take short term periods of military leave, usually lasting a day or two, during which he did not receive any pay or benefits from United.

However, under United’s applicable collective bargaining agreement, pilots received pay and continued to accrue certain benefits when they took other types of short-term leave, for example, jury duty or sick leave, but not while they took military leave.

White filed suit against United alleging that the airline violated the Uniformed Services Employee and Reemployment Rights Act (“USERRA”), the relevant portion of which provided that employees who were on military leave were “entitled to such other rights and benefits not determined by senior as are generally provided by the employer [to employees who are] on furlough or leave of absence.”

USERRA leave –Servicemember employees are entitled to comparable benefits

USERRA provides generally that an employee is entitled to take leave for military service. Generally, this leave can be unpaid (especially in cases of long-term leaves, for example if the employee is deployed). However, USERRA requires that employees taking military leave must be treated equally to other employees on similar short-term leave.

The Seventh Circuit in White held that questions of fact existed regarding whether “any leave of absence for which [the plaintiff’s] employer provides paid leave is comparable to any given stretch of military leave,” and therefore found the district court had erred in dismissing the plaintiff’s claims. Stated differently, the issue in White was that if an employer provides paid short-term leave for situations comparable to military leave, then the military leave must be paid as well.

So what is comparable leave?

The Court noted that the Department of Labor regulations governing USERRA held that the following factors should be considered in the “comparability analysis:”

  • The duration of the leave (noted by the regulations to be the most significant factor);
  • The purpose of the leave; and
  • The ability of the employee to choose when to take the leave.

The Seventh Circuit specifically rejected the district court’s finding that leave for military service was different from other types of leave like jury duty because the plaintiff had voluntarily signed up for the military, with the appellate court noting that this “logic both ignores the text of the regulation and impermissibly penalizes servicemembers for joining the military, in direct contravention of USERRA’s core purpose.” The Seventh Circuit further clarified that “what matters is an employee’s control over the timing of her leave of absence—i.e., whether she has the option to choose when to take a given stretch of leave.”

Case remanded

The Court did not make a determination regarding the merits of White’s claim, instead only holding that his case should be allowed to proceed. Whether White will eventually prevail on his claim will depend on whether the other types of short-term leave offered by United were comparable to his period of military leave.

Bottom Line

The Court’s decision in White reiterates a simple point for employers to keep in mind with respect to employees who are also serving in the military – those employees should not be treated less favorably than because of their leave. Although other courts have noted that USERRA does not require that servicemembers receive preferential treatment, to avoid a potential violation, employers are well advised to review other types of comparable leave available to employees to make sure that there are no benefits provided which should also be granted with respect to military leave.