June 18, 2021
The U.S. Seventh Circuit Court of Appeals ruled that the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) requires employers to provide short-term paid military leave if they provide paid leave for comparable non-military absences, such as for jury duty or bereavement leave.
Background: USERRA is a federal law designed to encourage military service by reducing the negative impacts such service can have on civilian careers. USERRA requires that employees on military leave receive the same non-seniority-based “rights and benefits” as similarly situated employees on comparable forms of leave. Prior to the Seventh Circuit decision, several district courts have split on whether paid leave is a “right” or “benefit” within the meaning of USERRA.
The potential impact on employers with large reservist workforces in Indiana, Illinois, and Wisconsin is significant, as the denial of paid leave could result in a class action lawsuit.
Under White v. United Airlines, because employees protected by USERRA (primarily members of the National Guard and Army Reserve) often take military leaves that are sporadic or of short duration (for example, to conduct funeral duties or attend periodic training), military leave is often compared to jury duty, bereavement leave, and sick leave.
Outlook: Expect other class actions lawsuits to spring up. The same day the Seventh Circuit issued its decision, a court in the Northern District of California certified a class of potentially thousands of pilots and other employees who claimed their employer violated USERRA by providing paid jury duty, bereavement, and sick leave, but not paid military leave.