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Does Military Leave Have to be Paid?

March 25, 2023

By Anthony Kaylin, courtesy of SBAM-approved partner, ASE

If an employee goes off on military leave, is the leave paid or unpaid?  It depends on how the company covers other comparable leaves for non-military reasons.

Under USERRA § 4316(b)(1), “a person who is absent from a position of employment by reason of service in the uniformed services” shall be “deemed to be on furlough or leave of absence” and shall be “entitled to such other rights and benefits not determined by seniority as are generally provided by the employer” to other employees on non-military furloughs or leaves of absence. Under 20 C.F.R. § 1002.150, the “non-seniority rights and benefits to which an employee is entitled during a period of service are those that the employer provides to similarly situated employees.”

What is a comparable leave?

Casey Clarkson, a commercial airline pilot and military reservist, brought a class action lawsuit against Alaska Airlines and Horizon Air for allegedly violating USERRA because they didn’t pay him while on short-term military leave. According to Clarkson, because the airlines provided paid leave for non-military leaves, including jury duty, bereavement, and sick leave, the airlines were also required to pay pilots during short-term military leaves of 30 days or less.

The trial court granted summary judgement to the airlines stating that military leave is not comparable to non-military leave, including jury duty, bereavement, and sick leave.  The U.S. Ninth Circuit Court of Appeals reversed the trial court.

The 9th Circuit stated that the trial court erred because it compared all military leaves, rather than just the short-term military leaves at issue in the case with the comparator non-military leaves.  The 9th Circuit stated that to determine whether types of leave are comparable, the duration of the leave must be considered, as well as the purpose of the leave and the ability of the employee to choose when to take the leave.  Therefore, jury duty, bereavement, and sick leave should have been considered as “comparable” leaves.

The 9th Circuit specifically stated that “examining the length of leave at issue is the correct approach.”  The 9th Circuit pointed out that to “follow the district court’s approach and consider military leaves categorically would render USERRA’s protections meaningless.”  The court then stated:

Section 1002.150 states that duration is the most significant factor to compare when determining if “any two types of leave are comparable.” In context, “any two types of leave” must refer to (1) military leave and (2) another employer-offered leave. As the regulation explains, “a two-day funeral leave will not be ‘comparable’ to an extended leave for service.” 20 C.F.R. 1002.150(b). But while an “extended” military leave is not comparable to a “two-day funeral leave,” it is entirely possible that a two-day military leave is comparable to a two-day funeral leave.

In particular, to conduct the analysis for comparable leave, employers must review duration, purpose, and control of the military leave to similarly situated leaves.  According to the 9th Circuit, the duration is the most significant factor in the comparability analysis.  And if in dispute, the 9th Circuit stated that this issue becomes a jury question.

Although the pilot situation is a unique case, when a military leave is required for an employee, HR should review whether it should be treated like a comparable leave.  To determine that, employers should review their benefit policies with legal counsel and:

  • Compare the type of leave (e.g., short term vs. long term);
  • Look to see whether they pay other employees for any arguably comparable leave; and
  • Assess whether the servicemember taking military leave should get paid.

Therefore, military leave may be paid leave when reviewed to comparable leaves.

Source:  Clarkson v. Alaska Airlines, No. 21-35473 (9th Circuit Court of Appeals, 2/1/2023), JD Supra 2/15/23, Bradley 2/14/23, Business Insurance 2/3/23

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