If your company handles military leave for employees this way, you may be doing it all WRONG

Yesterday, a federal appellate court issued a precedential opinion clarifying when employers must pay employees and provide certain benefits while they take short-term military leave under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”).

USERRA is a federal law that protects servicemembers’ and veterans’ civilian employment rights. In many situations, USERRA guarantees reemployment rights for employees who leave to perform service in the uniformed service.

But isn’t the leave itself unpaid?

Not necessarily. USERRA entitles employees who take military leave “to such other rights and benefits . . . as are generally provided by the employer of the person to employees having similar seniority, status, and pay who are on furlough or leave of absence.” Those “rights and benefits” are the “terms, conditions, or privileges of employment, including any advantage, profit, [or] privilege . . . that accrues by reason of an employment contract or . . . employer policy, plan, or practice.”

In the Third Circuit, for example, those rights and benefits may include pay while on leave.

But here’s the rub. The USERRA regulations state that where benefits vary depending on the type of leave, an employee on military leave is entitled to “the most favorable treatment accorded to any comparable form of leave when he or she performs service in the uniformed services.”

So, what is considered a “comparable form of leave”?

In yesterday’s decision, the court compared short-term military leave to bereavement and jury-duty leave. Specifically, it examined how comparable the forms of leave were in (1) duration, (2) purpose, and (3) control (i.e., the ability of the employee to choose when to take the leave).

In this particular case:

• The average duration of a single instance of each type of leave was between 1.8 and about 3.3 days, and the most common duration was between one and three days. However, on average, pilots took far more military leave than jury duty or bereavement leave.
• Jury duty leave and military leave have a common purpose: civic duty. Military and bereavement leave promote public safety. But, unlike the other forms, military leave primarily enables pilots to have parallel careers.
• As with pilots who take jury duty or bereavement leave—most pilots who take military leave lack the ability to control their schedules. Or perhaps some pilots can control scheduling military obligations.

So, are the three forms of leave comparable? The Third Circuit concluded that a jury should always decide. That’s the takeaway here, at least in the Third Circuit. Your mileage may vary elsewhere.

The bottom line is when your company provides military leave consistent with USERRA, it may have to pay for it.