USERRA Military Leave

USERRA Military Leave

In a decision issued earlier this month by the Seventh Circuit Court of Appeals, the court ruled that the Uniformed Services Employment and Reemployment Rights Act (USERRA) requires employers to provide short-term paid leave to military reservists to the same extent they provide paid leave for other absences such as jury duty. The case is White v. United Airlines, Inc. and United Continental Holdings, Inc., No. 19-2546 (7th Cir., Feb. 3, 2021). This is, to my knowledge, the first Court of Appeals to address the question of whether Section 4316(b) of USERRA provides a right to paid military leave.

The case involves a United Airlines pilot who took short-term military leave for training sessions without pay. Under United’s collective bargaining agreement, pilots receive pay when they take short-term leave for other reasons such as jury duty or sick leave, according to court documents. United also maintains a profit-sharing plan, under which pilots are credited with a share of the company’s profit based on the wages they earn over the relevant period. These credits are based on wages, so pilots who take paid leave for illness or jury duty earn credit toward their profit-sharing plan, while pilots who take short-term military leave do not. The pilot who took military leave sued, arguing that “United’s failure to provide paid leave and profit-sharing-plan credit to reservists on military leave denies them ‘rights and benefits’ that are given for comparable, nonmilitary leaves.”

After being incorrectly dismissed by the district court, the 7th Circuit reversed and reinstated the case, holding that paid leave is included in USERRA’s definition of “rights and benefits.”

Interestingly, the same day the 7th Circuit issued its decision in White, a court across the country in the Northern District of California certified a class of potentially thousands of pilots and other employees of Southwest Airlines who claim their employer violated USERRA by providing paid jury duty, bereavement and sick leave, but not paid military leave. See Huntsman v. Southwest Airlines Co., No. 19-cv-00083, 2021 U.S. Dist. LEXIS 20856, at *45 (N.D. Cal. Feb. 3, 2021).

USERRA forbids civilian employers from discriminating against employees because of their past or present military service. Learn more about USERRA law and military leave retaliation.